Stingel v. Clark

(2006) 228 ALR 229
[2006] HCA 37

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(Judgment by: Gummow J)

Stingel v.
Clark

Court:

Judges: Gleeson CJ

Gummow JKirby JJ
Hayne JJ
Heydon JJ
Callinan JJ
Crennan JJ

Judgment date: 20 July 2006

Canberra

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Judgment by:
Gummow J

34 On 23 August 2002, the plaintiff (the appellant in this court) commenced an action in the County Court of Victoria claiming damages, including aggravated, exemplary and punitive damages, against the defendant. By her second further amended statement of claim, the plaintiff states that she was born on 9 March 1955 and alleges that she was assaulted and raped by the defendant on two occasions, in March and April 1971. The first occasion was alleged to be at the Warrnambool Municipal Gardens and the second at a beach in the same area.

35 The plaintiff was a minor at the time of the alleged offences. Allowing for that circumstance, nevertheless she commenced her action many years after she had attained her majority. Is that lapse of time fatal to pursuit of her action against the defendant? The answer depends upon the construction of s 5 of the Limitation of Actions Act 1958 (Vic) (the Act) as it stood when the plaintiff commenced her action on 23 August 2002. ^[33]

36 The text of s 5 will be set out later in these reasons. It is sufficient to observe here that a critical portion of the text of s 5 of the Victorian legislation has a progenitor in changes made to the Limitation Act 1939 (UK) by the Law Reform (Limitation of Actions, & c) Act 1954 (UK) (the 1954 UK Act), that the changes made by the 1954 UK Act were adopted in Ireland, ^[34] and that this legislation has been construed by the House of Lords in Stubbings v Webb ^[35] and by the Supreme Court of Ireland in Devlin v Roche ^[36] in a fashion which, if adopted for s 5 of the Victorian legislation, would be fatal to the plaintiff's case.

37 Something more now should be said of the course of litigation leading to the appeal to this court. The defendant pleaded that the plaintiff's action was statute-barred. Paragraph (a) of s 5(1) of the Act provides that "actions founded on tort" are not to be brought "after the expiration of 6 years from the date on which the cause of action accrued".

38 However, among the particulars of injury given by the plaintiff were "Post-traumatic stress disorder of/with delayed onset" together with an allegation that she did not know until a date subsequent to 26 August 1996 that this was a consequence of the alleged rapes and assault by the defendant. This was said to enliven in her favour s 5(1A) of the Act.

39 Section 5(1A) states:

(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 from, and the cause of action shall be taken to have accrued on, 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. [Emphasis added]

The term "personal injuries" is defined in s 3(1) as including "any disease and any impairment of a person's physical or mental condition".

40 The emphasised portions of s 5(1A) indicate the two issues which have been argued on this appeal. The first, which arises on the defendant's notice of contention, is whether the plaintiff's action is one "for damages for negligence nuisance or breach of duty"; the second, which arises from the notice of appeal, is whether, if so, post-traumatic stress disorder of late onset is a "disease or disorder contracted by [the plaintiff]". Further reference to the second issue may be deferred at this stage, and attention now given to the first issue.

41 Section 5(1A) should be read with s 23A. Section 5 is found in Pt 1 of the Act and s 23A in Pt 2. The former Part is headed "Periods of Limitation" and the latter "Extension of Limitation Periods". The provisions of Pt 1 have effect subject to Pt 2 by reason of s 4 of the Act. Section 23A(2) empowers the court, on application and if it be just and reasonable to do so, to extend the period within which an action may be brought on a cause of action enumerated by s 23A(1). On the other hand, s 5(1A) operates of its own force and qualifies the limitation period otherwise applicable under s 5(1).

42 What both ss 5(1A) and 23A(1) share, given the textual relationship described above between Pts 1 and 2 of the Act, is the same starting point. From this, each provision then makes its own departure to qualify what otherwise is the general position established by that starting point. This point is located in para (a) of s 5(1) which, as indicated above, fixes a 6-year limitation period for "actions founded on tort". Both ss 5(1A) and 23A(1) qualify that general provision by using an expression which is narrower in its text and scope than "actions founded on tort". To interpret s 5(1A) (and s 23A(1)) as if they spoke of "actions founded on tort" would deny the evident textual contrast between the starting point in para (a) of s 5(1) and the regimes established by the provisions which follow.

43 Parts 1 and 2 of the Act must be read as a whole and by reference to their terms, not upon assumptions as to the kinds of action in tort which its limitation provisions might have applied if different terms had been employed in the statute.

44 The two provisions of ss 5(1A) and 23A(1) have, as a criterion of their several operations, an expression specifying actions "for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of [a] ^[37] provision made by or under a statute or independently of any contract or any such provision)". The construction of these words is critical for this appeal. The same formula was used in the 1954 UK Act considered in Stubbings ^[38] and the Irish legislation considered in Devlin. ^[39]

45 Section 23A(1) states:

23A Personal injuries

(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists 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 consist of or include damages in respect of personal injuries to any person.

46 Sections 5 and 23A ^[40] use the expression "cause of action". In Williams v Milotin , ^[41] in the course of explaining, in the context of the Limitation of Actions Act 1936 (SA), that the causes of action in negligence for personal injuries and in trespass to the person "are not the same now and they never were", Dixon CJ, McTiernan, Williams, Webb and Kitto JJ remarked: ^[42]

When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce.

47 Further, in McHale v Watson , ^[43] Windeyer J demonstrated that, contrary to the view taken by Diplock J in Fowler v Lanning , ^[44] in an action for trespass to the person by a blow or missile it was for the defendant to aver and prove the absence of intent and negligence on the defendant's part, rather than for the plaintiff to aver and prove that the defendant acted either intentionally or negligently. ^[45] It would not be accurate to describe negligence as the essence of the plaintiff's cause of action in trespass to the person, or to treat this cause of action, at least as regards "unintentional" infliction of injury, as supplanted by the tort of negligence. ^[46] Moreover, in the present case, the plaintiff alleged personal violence by the defendant, not his failure to exercise reasonable care. The result was that on no footing was her cause of action in the tort of negligence.

48 The plaintiff applied for a declaration that s 5(1A) applied to her cause of action and alternatively for an order under s 23A for an extension until 26 August 2003 of the time for the commencement of her action. The application under s 23A was abandoned and Judge Hanlon in the County Court held that s 5(1A) did apply. Accordingly, he struck out para 8 of the Defence which pleaded the Act in bar to the action.

49 The Court of Appeal, by majority (Winneke P, Charles and Eames JJA; Warren CJ and Callaway JA dissenting), allowed an appeal by the defendant. ^[47] The Court of Appeal divided in favour of the defendant upon what has been described in these reasons as the second issue, the application of s 5(1A) to the alleged late onset of the plaintiff's post-traumatic stress disorder. As to the first issue, earlier, in Mason v Mason, ^[48] the Court of Appeal had declined to apply the reasoning of the House of Lords in Stubbings which would have favoured the defendant. Mason, like the present case, was an action for personal injuries the result of intentional assault. Eames JA, who gave the leading majority judgment in the present case, followed Mason .

50 In this court, by his notice of contention, the defendant submits that the Court of Appeal also should have decided in his favour on the ground that the plaintiff's claim for damages for the alleged intentional assaults was not "an action for damages for negligence nuisance or breach of duty" within the meaning of s 5(1A). For the reasons which follow, this contention should be upheld and the appeal dismissed on that ground.

51 The primary limitation provision applicable in this case is s 5(1)(a), which states:

5 Contracts and torts

(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued -

(a)

actions founded on simple contract (including contract implied in law) or (subject to subsection (1A)), actions founded on tort including actions for damages for breach of a statutory duty.

There is then, as the reference in the text of s 5(1)-(1A) indicates, a special but limited regime whereby the cause of action is taken to have accrued by reference to a later state of knowledge by the plaintiff. However, that special regime does not apply to the general description in s 5(1)(a) of "actions founded on tort including actions for damages for breach of a statutory duty". What is specified for s 5(1A) to apply is a subset of the actions identified in s 5(1)(a). In order for the tort action brought by the plaintiff to cross the threshold of s 5(1A), it must answer the narrower description of "an action for damages for negligence nuisance or breach of duty".

52 The words which follow in s 5(1A) within the brackets indicate the duty may exist by virtue of a contract or by virtue of a provision made by or under a statute; the duty may also exist "independently" of contract or statute. Hence the text provides a footing for the proposition that at least some actions in tort cross the threshold of s 5(1A) as actions for damages for "breach of duty". But is the action by the plaintiff for damages for assault and rape an action for breach of duty by the defendant?

53 The plaintiff relied for an affirmative answer, as did the Court of Appeal in Mason , ^[49] upon the rhetorical question posed by Adam J in Kruber v Grzesiak : ^[50]

After all, 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?

54 However, the answers to that question are, first, that it is too widely framed as a statement of universal principle to be of utility in construing s 5(1A) of the Act and, secondly, that it does not accommodate the structure of the Act itself.

55 As to that second matter, if s 5(1A) had the general application which would follow from treating all tort actions as actions for breach of duty, the result would be the frustration of the evident purpose of s 5(1A) to apply its special regime to some and not to all of the general class of tort actions to which s 5(1)(a) applies. Further, there would be rendered superfluous the separate identification in s 5(1A) of actions for damages for negligence and for nuisance.

56 As to the first matter, and the proposed general principle of tort law, the following may be said. At a high level of generality, it may be said that because "duty" means the "prohibition of a certain form of behaviour in a given kind of situation", it follows that "every tort is the breach of some legal duty". ^[51] But against that is the caution administered by Dixon J in Victoria Park Racing and Recreation Grounds Co Ltd v Taylorm : ^[52]

There is, in my opinion, little to be gained by inquiring whether in English law the foundation of a delictual liability is unjustifiable damage or breach of specific duty. The law of tort has fallen into great confusion, but, in the main, what acts and omissions result in responsibility and what do not are matters defined by long-established rules of law from which judges ought not wittingly to depart and no light is shed upon a given case by large generalizations about them.

57 With respect to trespass to the person, it may be said that the application of force to another without lawful justification amounts to battery even without the intended or actual occasioning of harm thereby, and that the interests thereby protected include that of personal dignity as well as physical integrity. ^[53] But it adds little, even at this level of analysis, to say that the defendant to such an action has broken a duty to the plaintiff not to infringe these interests.

58 If the defendant had invited the plaintiff to his house and committed there the alleged violent acts against her, it might be said that the defendant had owed a duty to take care that the house was safe. But, as has been said in the cases, would one really be thinking of a duty not to assault and rape the plaintiff while she was there? ^[54]

59 The question then becomes whether, in relation to any torts, negligence and nuisance apart, the phrase "breach of duty", when used in s 5(1A), has any content. With respect to the Irish legislation to which reference has been made, in Devlin Geoghegan J remarked: ^[55]

A breach of a duty of care is really the same thing as negligence. But the law of tort traditionally recognised particular breaches of duty which were governed by their own principles rather than by Donoghue v Stevenson. ^[56]

Reference then was made by Geoghegan J to the duty set out in Fletcher v Rylands , ^[57] to the absolute duty in respect of dangerous goods or articles, and to the common law duty to invitees as examples where breaches of duty would not always accurately be described as breaches of a duty of care and where damages might be sought in respect of personal injuries. To that may be added the branch of the common law of liability for dangerous animals which, independently of questions of trespass and negligence, imposes upon the owner an "absolute duty" to take measures to prevent them from doing damage. ^[58]

60 In Australia and as a consequence of decisions of this court delivered in fairly recent years, some of those examples have been enveloped and absorbed by the tort of negligence. ^[59] But that was not the situation when s 5(1A) and s 23A (in its present form) were first introduced into the Act by the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic) (the 1983 Act). It certainly was not the case in England at the time of the enactment of the 1954 UK Act. ^[60]

61 Something more needs now be said of the provenance of the 1983 Act.

62 The Act, as first enacted as the Limitation of Actions Act 1955 (Vic) (the 1955 Act), contained in para (a) of s 5(1) the general 6-year limitation period for actions "founded on tort". However, s 5(6) imposed a 3-year limitation period for certain actions and did so in the following terms:

(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.

The similarity to the opening words of s 5(1A) will be apparent. However, it also is apparent that the subsections serve quite different ends. Section 5(1A) operates where it applies to advance what otherwise would be the general limitation period provided by s 5(1); s 5(6) contracted the 6-year period to 3 years.

63 The 1955 Act marked the introduction into Victorian statute law of a limitation statute of general application to replace a large number of enactments touching the subject. ^[61] The 3-year limitation period had been introduced as a quid pro quo for removal of the special protection which had been given to various public authorities. ^[62]

64 Section 3 of the 1983 Act repealed s 5(6). It also introduced s 5(1A) and made consequential amendments to s 5(1). ^[63] Section 5 of the 1983 Act introduced the present s 23A. The 1983 Act was described by the Attorney-General in the second reading speech in the Legislative Assembly as introducing a new scheme for limitation of actions in personal injury claims in Victoria which would "be simple and easily understood". ^[64] Of the relationship between ss 5(1) and 5(1A), the Attorney-General said: ^[65]

In personal injury claims, other than disease or disorder cases, the injured person may bring his action for damages within 6 years after the date of the accrual of his cause of action. Normally that would be the date of the injury. In disease cases, such as asbestosis or pneumoconiosis, the injured person may bring his action for damages within 6 years from the date that he knows he has the disease or disorder and that someone is responsible - that is, when he knows he has a cause of action. That knowledge may not come to the injured person until many years after the disease or disorder starts to develop.

65 No attention appears to have been given in the preparation of the Bill for the 1983 Act to the significance of the carrying over, to a quite different setting, of the form of words used in s 5(6) of the 1955 Act. But this is not a case of the class considered in Cooper Brookes (Wollongong) Pty Ltd v FCT , where Gibbs CJ said: ^[66]

There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case.

Rather, this is a case where the words of s 5(1A) which are in question can be intelligibly applied to the subject-matter with which the subsection deals, ^[67] and the distinction drawn between actions in tort generally (s 5(1)(a)) and those tort actions for negligence, nuisance or breach of duty (s 5(1A)) cannot be put aside as an evident drafting oversight. ^[68] The disease cases to which the Attorney-General referred, perhaps not unreasonably, were seen as including only actions lying in contract and those tort actions which lay for negligence, nuisance or breach of duty. It is not for the court to conjecture that there appears no good reason for the parliament not speaking in s 5(1A) of any action in tort and then to construe the provision accordingly. ^[69]

66 On the appeal to this court, each side claimed that in construing s 5(1A) controlling significance was to be found in its view of the provenance of s 5(1A) in s 5(6) of the 1955 Act. If regard be had to the origins of s 5(6) as suggested, the result favours the defendant.

67 In Mason, ^[70] Callaway JA traced the origins of s 5(6) in the Bills introduced in various forms in 1947, 1948, 1949 and 1950 and in the work of the Statute Law Revision Committee in Victoria. What is apparent is that the presentation to the British Parliament in July 1949 of the Report of the Committee on The Limitation of Actions (the Tucker Committee) ^[71] had a great impact upon the form taken by the law reform legislation in Victoria. Again, there had been in the United Kingdom the problem of the special position of public authorities. Paragraph 23 of the Report of the Tucker Committee read:

We consider that the period of limitation we have recommended should apply to all actions for personal injuries, whether the defendant is a public authority or not. We do not think it is necessary for us to define "personal injuries", although this may possibly be necessary if legislative effect is given to our recommendations. We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution, or defamation of character, but we do include such actions as claims for negligence against doctors.

68 The text of s 5(6) of the 1955 Act was drawn from that of s 2(1) of the 1954 UK Act, rather than from previous proposals in Victoria. The view was taken by the parliamentary draftsman in Victoria that "the Tucker Committee had comprised some of the best known jurists of the day and that it was advantageous to have uniformity in such matters among the different countries of the British Commonwealth". ^[72]

69 The phrase "breach of duty" in s 2(1) of the 1954 UK Act was construed by the House of Lords in Stubbings as not including a deliberate assault. Lord Griffiths referred to para 23 of the Report of the Tucker Committee, ^[73] noting that rape and indecent assault (the subject of the action by the plaintiff in Stubbings) fell within the category of trespass to the person, and concluded: ^[74]

The phrase lying in juxtaposition with negligence and nuisance carries with it the implication of a breach of duty of care not to cause personal injury, rather than an obligation not to infringe any legal right of another person.

70 It should be added that the House of Lords had before it not the 1954 UK Act itself, but provisions of the Limitation Act 1980 (UK). These provided for the exercise of a judicial discretion to extend the limitation period in respect of a class of personal injury actions defined in terms drawn from s 2(1) of the 1954 UK Act. There will be apparent some analogy to s 23A of the Victorian legislation. Stubbings has the added significance that the above interpretation was given to the same form of words as had appeared in earlier legislation with a different objective (differential limitation periods). This was carried forward to later legislation with another focus (an extension of time regime).

71 The Irish legislation considered in Devlin resembled s 5(6) of the 1955 Act. ^[75] It provided for a limitation period of three rather than 6 years for actions for damages for personal injury "caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)". The Supreme Court followed the reasoning in Stubbings to conclude that the 6 rather than the 3-year period applied to an action for assault and battery at a football ground by members of the Garda.

72 No doubt different conclusions might have been reached in Stubbings and Devlin on the question of construction. No doubt the drafting of s 5(6) of the 1955 Act to adopt the British precedent in the interests of consistency may be seen, with hindsight, to have disappointed some expectations of members of the Statute Law Revision Committee. ^[76] But these are considerations of insufficient weight to displace what flowed from the use made in Victoria of the Report of the Tucker Committee and of s 2(1) of the 1954 UK Act.

73 There remains one matter for consideration on this branch of the appeal. It concerns the point made by Eames JA in the Court of Appeal, namely that it would be anomalous if a claim of rape by a father fell outside s 5(1A) whilst a claim against the mother for breach of a duty of parental care fell within it.

74 That some actions in tort, albeit respecting disease cases to which s 5(1A) otherwise may apply, will fall outside the scope of the subsection follows from the particular terms adopted to mark off s 5(1)(a) from s 5(1A) and to differentiate the two limitation period regimes. Further, the same factual matrix may supply the different (or at least not coincident) essential ingredients of the rights enforced in several causes of action. One of these causes of action may answer the description in the opening words of s 5(1A), while another may not do so. But to recognise that state of affairs is one thing. It would be another to rely upon such instances to read the expression "negligence nuisance or breach of duty" as encompassing any tort action in a disease case to which s 5(1A) otherwise speaks.

75 Again, it may be said that the bracketed words in s 5(1A) are words of extension rather than limitation. ^[77] So much may be agreed. But what the extension does not do is employ language to adopt a general theory of a duty-based law of torts.

76 The conclusion reached above upon the issue raised by the notice of contention dictates the dismissal of the appeal. The question whether the Court of Appeal correctly construed the phrase "personal injuries consisting of a disease or disorder contracted by a person" must await an appeal to this court in a case where the threshold of the opening words of s 5(1A) has been crossed.

77 The applications to intervene in this appeal by the parties to the pending special leave application from the decision of the Court of Appeal of the Supreme Court of Victoria in Wright v Commonwealth ^[78] should be allowed, but no further costs order should be made about their case at this stage.

78 The appeal should be dismissed with costs.