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Clark v Stingel

Clark v Stingel

Case [2005] VSCA 107 12 May 2005

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3703 of 2004

GEOFFREY CLARK
	Appellant
v.
Respondent
CAROL ANNE STINGEL

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JUDGES:	WARREN, C.J., WINNEKE, P., CHARLES, CALLAWAY and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	13 and 14 September 2004
DATE OF JUDGMENT:	12 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 107

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Limitation of Actions – Personal injuries – Intentional trespass to the person – Whether action for damages for negligence, nuisance or breach of duty – Limitation of Actions Act 1958 (No. 6295), ss.5(1A), 23A – Limitation of Actions (Personal Injury Claims) Act 1983 (No. 9884) – Mason v. Mason [1997] 1 V.R. 325 applied.

Limitation of Actions – Assault and Rape – Long term psychological reaction – Post-traumatic stress disorder with delayed onset - Meaning of “disease or disorder contracted by any person” – Whether applicable to traumatic injuries or only to insidious diseases or disorders – Whether post-traumatic stress disorder a “disease or disorder contracted” by respondent – Certain factual findings made by judge impermissible – Use of extrinsic material in interpretation of legislation – Whether legislation ambiguous – Limitation of Actions Act 1958 (No. 6295), ss.5(1A), 23A – Mazzeo v. Caleandro Guastalegname & Co. (2000) 3 V.R. 172 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. R.J. Stanley, Q.C. and Mr. C.M. O’Neill	Coadys
For the Respondent	Mr. T.P. Tobin, S.C. and Mr. S.M. Roseman	Hale & Wakeling

WARREN, C.J.:

I adopt the description of the facts and circumstances of the appeal set out in the judgment of Eames, J.A. However, for the reasons set out by Callaway, J.A., I would dismiss the appeal.

I otherwise agree with their Honours that the respondent be granted leave to amend the particulars of injury; that s.5(1A) applies to cases of intentional assault;[1] and that the finding of rape by the judge below ought to be disapproved.
[1]As held in Mason v Mason [1997] 1 VR 325.

In my view, the critical issue in question is whether or not the respondent’s claim satisfies the requirement as provided for by s.5(1A) of the Limitation of Actions Act 1958 (Vic.), namely, that it is one “in respect of personal injuries consisting of a disease or disorder contracted by [the respondent]”. I believe that the claim does satisfy the requirements of this provision.

The appellant’s contention in the court below and in this Court was that it is not reasonably arguable that the damages claimed by the respondent include damages in respect of personal injuries consisting of a disease or disorder contracted by her. The respondent claimed the injuries suffered by her resulted from two separate sexual assaults allegedly committed against her by the appellant and other men in 1971. The appellant denied the attacks, but contended in any case that s.5(1A) applied only to “insidious workplace diseases” not to traumatic injuries of the type the respondent claimed.

The appellant essentially adopted the view espoused by Winneke, P. and Chernov, J.A. in Rita Mazzeo v. Caleandro Guastalegname &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clark v Stingel

Details

AGLC: Clark v Stingel [2005] VSCA 107
Case: [2005] VSCA 107
Decision Date: 12 May 2005

CaseChat Overview and Summary

In the matter of Clark v Stingel, the Court was tasked with determining the applicability of the Limitation of Actions Act 1958 (Vic) and the Limitation of Actions (Personal Injury Claims) Act 1983 (Vic) in relation to claims arising from intentional trespass to the person and psychological injury. The primary dispute was whether the respondent's claim for damages due to psychological harm, including post-traumatic stress disorder (PTSD) with delayed onset, fell under the purview of these statutes.

The legal issues before the Court were twofold. Firstly, it was necessary to determine whether the respondent's claim should be categorised as one for negligence, nuisance, or breach of duty, which would implicate the provisions of the Limitation of Actions Act 1958. Secondly, if the claim was to be considered a personal injury claim, the Court had to ascertain whether PTSD with delayed onset could be classified as a "disease or disorder contracted by any person" within the meaning of the Limitation of Actions (Personal Injury Claims) Act 1983. Additionally, the Court had to consider the implications of extrinsic material in interpreting the legislation and whether any factual findings made by the judge were impermissible.

The Court found that the respondent's claim should indeed be categorised under personal injury claims. It held that PTSD with delayed onset constitutes a "disease or disorder contracted" by the respondent, thereby falling within the ambit of the Limitation of Actions (Personal Injury Claims) Act 1983. The Court emphasised the importance of considering extrinsic material to resolve ambiguities in the legislation, as was done in Mazzeo v. Caleandro Guastalegname & Co. The Court further noted that certain factual findings made by the trial judge were impermissible as they were not supported by the evidence presented. Consequently, the respondent's claim was deemed not to be statute-barred, and the case was remitted for further consideration of the merits of the claim.

The final orders of the Court were to affirm the respondent's entitlement to proceed with the claim, notwithstanding the limitation period, and to remit the matter to the trial court for reassessment of the respondent's claims based on the merits.

Orders