Stingel v. Clark

(2006) 228 ALR 229
[2006] HCA 37

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(Judgment by: Gleeson CJ, Heydon JJ, Callinan JJ, Crennan JJ)

Stingel v.
Clark

Court:

Judges:
Gleeson CJGummow J
Kirby JJ
Hayne JJ

Heydon JJ
Callinan JJ
Crennan JJ

Judgment date: 20 July 2006

Canberra

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Judgment by:
Gleeson CJ
Heydon JJ
Callinan JJ
Crennan JJ

1 The appellant, who was born in 1955, alleges that in 1971 she was assaulted and raped by the respondent. She alleges that, in consequence, she suffered injury, in the form of post-traumatic stress disorder of delayed onset. She also says that she first became aware of the connection between the assaults and rapes, and the injury, in 2000. In August 2002, the appellant brought an action for damages against the respondent in the County Court of Victoria. She claims aggravated, exemplary and punitive damages. Her cause of action is for trespass to the person.

2 The merits of the appellant's case have not been tried. The present appeal concerns the application of the Limitation of Actions Act 1958 (Vic) (the Act). For actions founded on tort, s 5(1)(a) of the Act prescribes a general limitation period of 6 years from the date on which the cause of action accrued (in the case of trespass, from the date of the trespass). If that period applied, it had long since expired in 2002. The general limitation period of 6 years is subject to certain qualifications, which have varied in a number of respects since 1958. The legislative history is important.

3 In 1955, the Victorian Parliament enacted a general Limitation of Actions Act, which came into effect on 1 January 1956. The topic had been under consideration by the Statute Law Revision Committee for several years. That committee, in turn, had examined the Report of the Tucker Committee in the United Kingdom. It had also received evidence from Mr Justice O'Bryan, in which he expressed his understanding of some aspects of what was intended by the Tucker Committee. The Victorian Parliament followed the precedent set by the United Kingdom and provided, in s 5(1) of the 1955 Act, a general limitation period of 6 years, which was qualified by s 5(6). The qualification was expressed as follows:

(6) No action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries to any person, shall be brought after the expiration of 3 years after the cause of action accrued.

4 Section 5(1) and (6) were reproduced in the 1958 Act, which, in its amended form, is the legislation with which we are concerned.

5 Section 23A was introduced into the Act by amendment in 1973. ^[1] It applied to causes of action in respect of personal injuries. It conferred upon a court a discretionary power to extend the limitation period. The conditions subject to which the power could be exercised were specified. An order under the section could be made on application by a person claiming to have a cause of action for damages for negligence, nuisance or breach of duty (whether the duty existed by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consisted of or included damages in respect of personal injuries to any person. Plainly, that part of the language of s 23A mirrored that of s 5(6) which, in turn, followed the language of the United Kingdom legislation enacted in response to the Report of the Tucker Committee. When giving evidence to the Statute Law Revision Committee, Mr Justice O'Bryan had referred to a passage in that report which said that trespass to the person was not intended to be covered by the language which introduced the stricter 3-year limitation period as a qualification to the more general 6-year period. He said that his understanding was that "assault which causes gross personal bodily injury would certainly be covered, but a mere trespass ... would not be covered. ^[2] The appellant does not invoke s 23A in this case, but its terms are important to the issues of construction which must be decided.

6 In 1983, s 5(6) was repealed. ^[3] Section 23A was amended, in a manner that is not presently material. A new s 5(1A) was inserted, which is of direct relevance. It provided: ^[4]

(1A) An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 6 years ^[5] from the date on which the person first knows -

(a)

that he has suffered those personal injuries; and

(b)

that those personal injuries were caused by the act or omission of some person.

7 In 1989, the words "and the cause of action shall be taken to have accrued on" were added after the words "6 years from". ^[6] The language of the first part of s 5(1A) mirrored that of the repealed 5(6), and of s 23A. The respondent denies the application of s 5(1A) on two grounds. The first ground, upon which the appellant succeeded in the Court of Appeal of Victoria, ^[7] is raised by notice of contention. If upheld, it would require this court to overrule a line of authority in Victoria, going back to 1963, as to the meaning of the statutory language. The argument is that the appellant's action is not an "action for damages for negligence nuisance or breach of duty". It is said that an action for trespass to the person is not an action for breach of duty. If that is so, the 6-year limitation period in s 5(1) applies, without qualification by s 5(1A). The second ground, upon which the respondent succeeded in the Court of Appeal of Victoria (Winneke P, Charles and Eames JJA; Warren CJ and Callaway JA dissenting), is that the facts alleged by the appellant do not bring the case within the concept of a "disease or disorder contracted" so as to attract the operation of s 5(1A). That ground is the subject of the appellant's appeal. It is convenient to deal with the grounds in that order. The second point only arises if the notice of contention fails.

The notice of contention

8 The Court of Appeal in the present case followed the Victorian authority earlier mentioned. The Victorian decisions were in line with decisions of the English Court of Appeal ^[8] on comparable United Kingdom legislation, but the decisions of the English Court of Appeal were overruled by the House of Lords in Stubbings v Webb . ^[9] The decision of the House of Lords was followed by the Supreme Court of Ireland in Devlin v Roche . ^[10] The Supreme Court of Ireland, noting that "there are two perfectly legitimate viewpoints on this question", ^[11] decided to follow the House of Lords rather than the Court of Appeal of Victoria.

9 The learned authors of the 19th edition of Clerk & Lindsell on Torts described Stubbings as controversial. ^[12] If the respondent's argument is correct, it produces a surprising result. Although in this case we are concerned directly with s 5(1A), the respondent's argument must apply equally to s 23A. It means that an injured plaintiff who is the victim of an intentional trespass is worse off, under the Act, than a plaintiff who is a victim of negligence. It means that there is a discretionary power to extend the limitation period in favour of a plaintiff who is run down by a negligent driver, but not in favour of a plaintiff who is deliberately assaulted. In the case of injuries of the kind dealt with by s 5(1A), assuming the other conditions are satisfied, the statute extends the limitation period in the case of a person who was neglected as a child, but not one who was sexually abused. It is difficult to understand why the policy of the Act would be to discriminate in that fashion.

10 The Victorian Parliament enacted both ss 23A and 5(1A) after it had been decided in 1963 by Adam J, in Kruber v Grzesiak , ^[13] that an action for trespass to the person, at least in a case of unintentional trespass, was included in the meaning of "action for damages for ... breach of duty" in s 5(6) of the Act. Adam J asked the rhetorical question: ^[14] "Do not all torts arise from breach of duty - the tort of trespass to the person arising from the breach of a general duty not to inflict direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse?" The "valuable judgment" of Adam J was approved by Lord Denning MR 14 months later in Letang. ^[15] In that case, the English Court of Appeal (Lord Denning MR, Danckwerts and Diplock LJJ), following Billings v Reed , ^[16] held that an action for trespass to the person was an action for "breach of duty" within the meaning of the Limitation Act 1939 (UK) as amended following the Report of the Tucker Committee. The case was one of unintentional trespass, but the reasoning of the Court of Appeal covered intentional trespass. Diplock LJ said: ^[17]

Counsel for the plaintiff has ... submitted that an action for trespass to the person is not an action for "breach of duty" at all. It is, he contends, an action for the infringement by the defendant of a general right of the plaintiff; there is no concomitant duty upon the defendant to avoid infringing the plaintiff's general right. This argument or something like it, for I do not find it easy to formulate, found favour with Elwes J ...In the context of civil actions a duty is merely the obverse of a right recognised by law. The fact that in the earlier cases the emphasis tended to be upon the right and in more modern cases the emphasis tends to be upon the duty merely reflects changing fashions in approach to juristic as to other social problems, and must not be allowed to disguise the fact that right and duty are but two sides of a single medal.

11 In 1965, McInerney AJ, in the Supreme Court of Victoria, followed Kruber and Letang in a case raising assault and battery. ^[18] In 1968, Cooke J in the Queen's Bench Division followed Letang in a case of intentional trespass to the person. ^[19]

12 That was the decisional context in which s 23A, and later s 5(1A), were enacted. The words "breach of duty" in s 5(6) had been held in Victoria, and the corresponding words in the United Kingdom legislation had been held, to cover trespass to the person including intentional trespass. Attributing to parliament a consciousness of judicial interpretation of some word or phrase is often pure speculation, but in considering legislation upon a matter of legal technicality such as limitation of actions it may be reasonable to infer an awareness of the manner in which technical language has been construed, where a choice is made to adopt such language in future legislation. ^[20] That is especially so where the amending legislation was the product of the work of an expert committee which would have followed closely the course of judicial interpretation of the legislation in its earlier form. It is at least as reasonable to attribute to the Victorian Parliament, in 1972 and 1983, an awareness of the decisions of Adam J and McInerney AJ as it is to attribute to it an awareness of the Report of the Tucker Committee, especially since the effect of that report had been interpreted, in a manner consistent with Adam J's later decision, by Mr Justice O'Bryan in his evidence to the Statute Law Revision Committee. The fact that the decision of Adam J had been approved and followed by the English Court of Appeal in relation to the United Kingdom legislation was also a significant part of the context.

13 When s 23A was first enacted, its repetition of the language of s 5(6) made good sense, given the meaning that had previously been attributed to that language. The description of the causes of action to which the provision applied had been treated as language of amplification rather than of restriction. The words were taken to be comprehensive, and were not treated as narrowing the provision by reference to the old forms of action. If "breach of duty" did not cover intentional trespass, the adoption in s 23A of the language of s 5(6) is more difficult to explain. Why would parliament have restricted the discretionary power conferred by s 23A to cases of negligence as distinct from intentional harm? Such a restriction also would carry its own problems. Trespass to the person might be intentional or unintentional. Would a case of unintentional (or negligent) trespass (leaving aside questions of onus of proof) be treated as a breach of duty? Furthermore, an intentional trespass might be committed by someone (such as a teacher or a nurse) who owes a conventional duty of care to the injured person. Is that duty to be ignored in characterising an action for the purposes of s 23A? The present is not such a case, but such cases are not uncommon, and they have a bearing on the interpretation of s 23A. If the language of the section has the meaning given to it by judicial decisions prior to its enactment, then those problems do not arise. If it has a different meaning, those problems cannot be overlooked.

14 When, in 1983, s 5(6) was repealed, and s 5(1A) was introduced, so as to postpone the time bar in personal injuries actions in certain circumstances, the familiar words were used. Once again, if, as had been held, breach of duty included intentional trespass, the legislation made good sense. If it did not, anomalies arose. Assuming the requisite latency or delayed onset of the injuries in question, why would the legislature have intended to postpone the bar in the case of negligence but not in the case of intentional conduct? In a context such as that of s 5(1A), why should a victim of an intentional tort be disadvantaged by comparison with a victim of a negligent act or omission? Again, on what was then the accepted construction of the statutory language, the problem did not arise.

15 In 1991, the English Court of Appeal in Stubbings considered a case of an adult plaintiff alleging sexual abuse during childhood, and the application to that case of a provision of the Limitation Act 1980 (UK), using the same kind of language as that set out above which postponed the bar in circumstances comparable to those dealt with by s 5(1A) of the Victorian legislation. It was argued that the provision did not apply because the action, being an action based on intentional trespass to the person, was not an action for "breach of duty". The Court of Appeal rejected that submission, applying Letang . Bingham LJ said that, in the absence of authority, he would have reached the same conclusion, because he could see no reason why parliament should have intended to draw a distinction between intentional torts and negligence. ^[21] As noted above, the decision of the Court of Appeal was overruled by the House of Lords.

16 In 1996, in Mason , a case not materially different from the present except in that the plaintiff was relying alternatively on s 5(1A) and s 23A, the Court of Appeal of Victoria (Hayne and Callaway JJA and Smith AJA) declined to follow the decision of the House of Lords, and held that the expression "breach of duty" in ss 5(1A) and 23A covered "intentional trespass to the person where the damages claimed consist of or include damages in respect of personal injuries". ^[22] The leading judgment was that of Callaway JA, who based his reasoning substantially on the legislative history of the provisions in question.

17 This court should uphold the decision in Mason, which was followed by the Court of Appeal of Victoria in the present case. There are three reasons for this. First, as a matter of principle, for the reasons given by the English Court of Appeal in Letang, the words "breach of duty" are capable of covering intentional trespass. In view of the difference of opinion between Diplock LJ in Letang and Lord Griffiths in Stubbings, it is clear that eminent judges may disagree about whether, upon jurisprudential analysis, the expression "breach of duty" is apt in the case of trespass, but statutes of limitation are more concerned with practical justice than with jurisprudential analysis, and, at the very least, the language is ambiguous. Secondly, the legislative history in Victoria is significant, and in some respects different from that in the United Kingdom. The House of Lords in Stubbings considering the same expression in the Law Reform (Limitation of Actions, & c) Act 1954 (UK), attached significance to some remarks in the Report of the Tucker Committee, but in his evidence to the Committee of the Victorian Parliament, Mr Justice O'Bryan had earlier glossed those remarks differently ^[23] in a manner consistent with the approach that later prevailed in Victoria. More significantly, ss 23A and 5(1A), both of which were the product of reviews of the existing law by expert committees, adopted language which, at the time of its adoption, had been construed judicially in a certain fashion. That history of judicial construction was part of the context in which the provisions are to be understood. It would certainly have been known to the committees advising on changes to the Act. We are dealing here with a matter of "lawyers' law"; and considerations of judicial precedent would have been to the forefront of matters taken into account. Thirdly, the alternative construction preferred in Stubbings results in anomalies; ^[24] it attributes to parliament an intention to draw a distinction which defeats, rather than advances, the purpose of the legislation. The evident purpose of both ss 23A and 5(1A) is to relieve the position of victims of tort: the former by giving a court a discretionary power to extend the time bar; the latter by providing for an automatic extension in cases of injuries of delayed onset. There is no discernible difference, in point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting the perpetrators of intentional torts in a better position than the perpetrators of unintentional torts. There being, as the Supreme Court of Ireland said, two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation. The construction of the words "breach of duty" in the Victorian legislation accepted in Mason accords with legislative history, context and purpose. It is, therefore, to be preferred to that advanced by the respondent.

18 The point raised by the respondent's notice of contention should fail.

The appeal

19 As has been noted, s 5(1A) was introduced in 1983. By s 11 of the amending Act, it applied to causes of action which arose after 11 May 1977. By virtue of further amendments made in 1989, ^[25] s 5(1A) as amended by the 1989 Act applies (or potentially applies) to these proceedings. It should also be noted that, in s 3 of the Act, "personal injuries" is defined to include any disease and any impairment of a person's physical or mental condition.

20 Putting to one side the issue the subject of the notice of contention, and assuming that the appellant's action is an action for damages for breach of duty, the provision applies "where the damages claimed by the [appellant] consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by [the appellant]". In that case, the action may be brought not more than 6 years from, and the cause of action shall be taken to have accrued on, the date on which the appellant first knew that she had suffered those personal injuries and that those personal injuries were caused by the act of the respondent. The appellant claims, the primary judge found, and the Court of Appeal accepted, that the appellant suffered from post-traumatic stress disorder of delayed onset, that the onset occurred in 2000 and that the appellant first knew of that condition and of its causal connection with the alleged acts of the respondent at some time thereafter. It is unnecessary to go into the detail of the psychiatric evidence on which that finding was based. Accordingly, the primary judge struck out the paragraph of the defence that pleaded that the action was statute-barred. It was against that order that the respondent appealed to the Court of Appeal. The reasons in the Court of Appeal refer to a division of judicial opinion in Victoria as to the application of s 5(1A) to what have been described as "traumatic" or "frank" personal injuries as distinct from what have been described as "insidious" personal injuries. Those expressions are taken from the judgments of Chernov JA in Mazzeo v Caleandro Guastalegname & Co ^[26] and of Eames JA in this case. The three members of the majority, allowing the appeal, assigned the case to the former category, that is, a case of frank or traumatic personal injury (assault and rape), with psychiatric consequences of late onset, as distinct from an insidiously progressive disease. It is the validity of that distinction, in its application to s 5(1A), that is at the centre of this appeal.

21 The written submissions for the respondent summarise the argument which prevailed in the Court of Appeal as follows:

The words "... damages in respect of personal injuries consisting of a disease or disorder contracted ..." in s 5(1A) of the Act [apply] only in relation to insidious diseases:

•

the contraction of which could not have been known by the victim at the time;

•

which are not productive of symptoms at the time of contraction or within the limitation period prescribed by s 5(1);

•

where the symptoms become manifest at a later time when the disease becomes florid.

22 The leading judgment for the majority in the Court of Appeal was written by Eames JA, with whom Winneke P and Charles JA agreed. Eames JA quoted, and described as "very persuasive", ^[27] the reasons of Chernov JA in the case of Mazzeo. The passage quoted ^[28] (with numbers added by Eames JA for convenience) was as follows: ^[29]

[43] There are, in my opinion, sound reasons for favouring the view that s 5(1A) does not operate in relation to traumatic personal injury claims and that the limitation period in respect of them is prescribed by s 5(1)(a).

1

First, although s 5(1)(a) and s 5(1A) are the only provisions in the Act that prescribe the limitation period in respect of personal injury claims, their wording suggests that they are mutually exclusive in that each relates to different categories of personal injury claims so that those falling within s 5(1A), for example, do not also fall within s 5(1)(a) and vice versa. This follows from the definition in s 5(1A) of the personal injury claims to which the provision relates, namely, "personal injuries consisting of disease or disorder" and from the effective exclusion of those injuries from the operation of s 5(1)(a) by the words "(subject to subsection (1A))" as they appear in that subsection.

2

Secondly, the terms and the operation of s 5(1A) suggest that it relates only to personal injuries which ordinarily take a considerable period of time to manifest themselves to the injured person, hence the provision that the cause of action shall not be taken to have accrued unless the plaintiff knows "that he has suffered those personal injuries". No such postponement of the limitation period is necessary as a matter of fairness in respect of traumatic personal injuries because in nearly all such cases their existence is recognised at or shortly after the happening of the relevant event. It is true that often the full extent of a traumatic injury may not be ascertained until after the lapse of a considerable period of time, but the fact of such an injury would be known almost immediately or shortly after the event in question. Even where, in the relatively unusual case, the fact or the existence of the injury caused by a trauma is not known until after the expiration of 6 years after the event, the justice of the situation is met by the opportunity to have the limitation period extended pursuant to s 23A.

3

Next, the use of the word "contracted" in relation to personal injuries consisting of disease or disorder is consistent with such injuries not being the result of a trauma. Ordinarily, traumatic injuries are said to be "caused" or "sustained" rather than "contracted".

4

Further, if traumatic injuries fell within s 5(1A) much of s 23A would be unnecessary and irrelevant.[44] If s 5(1A) is concerned only with personal injury claims arising out of an insidious disease such as asbestosis, a traumatic personal injury which properly falls within s 5(1)(a) does not become a "disease or disorder" for the purposes of s 5(1A) merely because the plaintiff has been unaware of its existence or of the relevant causal nexus until after the expiration of 6 years following the trauma. If it were otherwise, as I have said, s 23A would have very little operation. Such a plaintiff would effectively obtain an extension of the limitation period without having to persuade the court that an extension would be just and reasonable and without having to address the question whether the extension is likely to prejudice the defendant. In my view, that is unlikely to have been contemplated by the legislature.[45]

5

The conclusion that, on its proper construction, s 5(1A) is concerned only with actions arising out of "insidious" personal injuries (ie, those which have not been caused by trauma), gains support from the extrinsic material relating to the 1983 amending legislation.

23 In expressing his conclusions about the present case, and qualifying what was said by Chernov JA in Mazzeo in one respect, Eames JA said: ^[30]

[88] Although Chernov JA applied a dichotomy which distinguished between traumatic injuries, on the one hand (which were said not to fall within s 5(1A)) and insidious diseases or disorders, on the other hand (to which, alone, the section did apply), it is my view, for the reasons earlier discussed, that the dichotomy is better expressed as between insidious diseases and disorders, on the one hand, and, on the other hand, frank (ie not disguised) diseases or disorders, the contraction of which are neither unduly delayed nor disguised. Most "traumatic" injuries (that term including injuries which did not immediately accompany the traumatic event but which developed as an outcome of the trauma, such as epilepsy and osteoarthritis) would fall outside the terms of s 5(1A). In my view, this case is one such instance. A traumatic event might, however, be accompanied by the contraction of a disease or disorder that falls within the terms of s 5(1A). Arguably, that might constitute the disease or disorder a traumatic injury. For that reason, a dichotomy expressed as being between traumatic injuries and insidious diseases or disorders may create confusion as to what it is that the section does and does not cover.[89] The word "trauma" was never used in the parliamentary debates nor in the committee report, nor does it appear in s 5(1)(a) or s 5(1A). It is not the traumatic nature of the tortious act or omission which matters, so much as the character of the injury that it causes. It is only when the injury is a disease or disorder of an insidious kind, in the sense that it is contracted but not known to exist until much later, with which the section is concerned.[90] I conclude, therefore, that the condition of post-traumatic stress disorder of delayed onset was not a disease or disorder contracted by the [appellant] within the meaning required by s 5(1A). It was a disorder not of an insidious kind to which the section applies, and was suffered at a time later than the act or omission relied on by the [appellant] as the negligent act or breach of duty constituting the cause of action in this case. No application is now brought under s 23A. If the late onset of post-traumatic stress disorder was to be the basis of an action the proceedings in respect of that injury had to be the subject of leave granted under s 23A. Section 5(1A) does not apply to this case, and subject to any further submissions the proceedings should be dismissed.

24 The minority view, espoused by Warren CJ and Callaway JA, was that the words in question are unambiguous, and that while the expression "insidious disease" might be apt to describe many of the circumstances to which those words apply, they are not limited to such cases, and that there is no reason why, in an appropriate case, the delayed consequence of a physical event might not attract the operation of the provision. That, it seems to us, is the better view.

25 In this court, counsel for the respondent, supporting the reasoning of the majority in the Court of Appeal, argued that, in the case of post-traumatic stress disorder of delayed onset, there is no injury until what was described as the necessary "constellation of symptoms" occurs; in this case in 2000. There is no insidious progress of a disease contracted many years earlier, such as mesothelioma or lung cancer. There is an occurrence, many years after a traumatic event, of a psychiatric disorder. Where, as here, the traumatic event allegedly constituted a trespass to the person, the cause of action accrued at the time of the event (damage not being a necessary element of the cause of action), the ordinary limitation period of 6 years applied, and s 5(1A) had nothing to do with the matter. This is not a case of a latent disease manifesting itself after a long period. Post-traumatic stress disorder of a delayed type does not exist until there are symptoms. It was further submitted that s 5(1A) "applies only in relation to insidious diseases the [contracting] of which could not have been known by the victim at the time and which were not productive of symptoms ... within the limitation period".

26 The extrinsic materials referred to by Chernov JA in Mazzeo, by Eames JA in the present case, and by counsel for the respondent, show that, when s5(1A) was enacted, the focus of concern was insidious disease of the kind just described. It may be accepted that lung disease was the paradigm case to which s 5(1A) was directed. It may also be accepted that the discretionary power conferred by s 23A was regarded as the normal method by which any injustice resulting from the operation of the general limitation period could be remedied. Both considerations are relevant, but neither is conclusive. It is the text of s 5(1A) which is to be applied; not the prevailing opinion as to what was likely to be the most common kind of case in which it would be invoked. The task of a court is to construe the language of the statute. Extrinsic materials may be useful as an aid to deciding the meaning of that language, but the subjective contemplation of the drafters as to the kind of case in which that language would be most likely to be applied is not determinative. Let it be supposed, for example, that it was the problem of progressive lung disease that prompted the enactment of s 5(1A). It does not follow that the language of s 5(1A) should be confined to cases of progressive lung disease. That problem may explain why parliament chose the words it used, but if the meaning of those words has wider application, then a court is bound to give effect to that meaning. To hold that "personal injuries" as used in the section is confined to insidious or indeed any particular form of injury is to foreclose the factual inquiries which the section demands, these being whether the person has suffered "personal injuries" and when she first knows that she has suffered them.

27 The nature of the subject matter of s 5(1A) is a reason for particular caution in treating expressions of subjective understanding of how the provision would operate as controlling the meaning of the statutory language. Medical knowledge develops, sometimes rapidly. When the Victorian Parliament enacted s 5(1A) it cannot have believed that it could foresee all the circumstances in which diseases or disorders might later be found to fall within its terms. No doubt parliament can keep developments in science, and medical knowledge, under review. In the nature of things, however, parliament's knowledge, in 1983, of the circumstances in which diseases or disorders may be contracted, or become known, many years after their original causes, cannot reasonably be used, in 2006, to limit the meaning of the words it adopted. That knowledge enabled parliament to identify the problem, but not to define its metes and bounds. That, no doubt, is why parliament chose general language. There is no reference in s 5(1A) to insidious disease. That may be an apt description of the paradigm case that prompted parliament's consideration of the issue, but it is not the language used by parliament in its response. If post-traumatic stress disorder of delayed onset falls within the language of s 5(1A), the fact that it was not something to which parliament adverted in 1983 may not be surprising. If changes in medical knowledge reveal that s 5(1A) creates a wider exception to s 5(1) than was originally contemplated, then parliament may reconsider the language of the exception, but the courts must apply that language.

28 Section 5(1A) follows, and qualifies, s 5(1). The reference in s 5(1A) to a cause of action being taken to have accrued on a certain date is plainly related to the reference in s 5(1) to a limitation period expiring 6 years from the date on which the cause of action accrued. "Taken to have accrued" means "taken to have accrued for the purposes of determining the limitation period". The damages claimed by the appellant include damages in respect of personal injuries (of a psychiatric nature) consisting of a disorder contracted by the appellant. There is nothing in s 5(1A) that limits its operation to cases in which the disorder was contracted before the expiry of the limitation period identified in s 5(1). Nor is its operation limited to diseases, insidious or otherwise. The expression used is "disease or disorder", not "insidious disease". The provision undoubtedly covers a case where a plaintiff suffered personal injuries before he or she knew of them. Indeed, such a case may be the most common case to which the provision applies. There is, however, nothing in the language which denies its application to a case where knowledge of a disorder, and of its cause, occurs at or about the same time as the occurrence of the disorder.

29 The error in the reasoning of the majority in the Court of Appeal is that it applied the language of the statute, not according to its terms, but by reference to an assumption as to the kind of case in which it would be most likely to be invoked.

30 It was pointed out on behalf of the respondent that s 5(1A), unlike s 23A, applies regardless of any prejudice to a defendant. This was put forward as a reason for construing it narrowly, rather than liberally. ^[31] That is a weighty consideration, but it assumes the existence of some stable theory according to which s 5(1A) may be confined, consistently with its language. The theory propounded by the respondent does not satisfy that requirement. The differences between Chernov JA and Eames JA on the matter of "trauma" illustrate the difficulty of confining the language so as to limit the operation of s 5(1A) to the case of insidious disease contracted within the general limitation period.

Interventions

31 The parties to a pending application for special leave to appeal from a decision of the Court of Appeal of Victoria, Wright v Commonwealth, ^[32] sought leave to intervene, and made submissions to the court, principally in writing. That also is a case of post-traumatic stress disorder, but there are some differences from the present case. There were sufficient similarities to move the parties to seek to be heard in this case. The Commonwealth argued that s 5(1A) applies only to the contracting of insidious diseases or disorders, and that a disease or disorder is insidious only if it is not productive of symptoms within the limitation period prescribed by s 5(1) but symptoms subsequently emerge due to the progression of the disease or disorder. The section, it was said, was designed to fill a particular gap in the legislation as it existed in 1983, that is to say, the necessity to avoid extension of time applications in cases involving insidious, pernicious, often life-threatening diseases. All other personal injuries claims are covered by ss 5(1) and 23A. The section, according to the Commonwealth, should not be given its literal interpretation.

32 The arguments of the interveners have been taken into account in the foregoing reasoning. They should have leave to intervene, but no further order should be made about their case at this stage.

Conclusion and orders

33 The appeal should be allowed with costs. Orders 2 and 3 of the Court of Appeal of Victoria should be set aside and, in their place, it should be ordered that the appeal to that court be dismissed with costs.