O'Neill v Foster

[2004] NSWSC 906

Reported Decision: 61 NSWLR 499

Supreme Court

CITATION:	O'Neill v Foster [2004] NSWSC 906
HEARING DATE(S):	13 September 2004
JUDGMENT DATE:	8 October 2004
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Three year limitation period for trespass to the person, subject to the possibility of discretionary extension. Limitation period for cross-claim brought against plaintiff stops on date when plaintiff commences suit against defendant.
CATCHWORDS:	LIMITATION OF ACTIONS - action for trespass to the person - action brought by cross-claim against plaintiff - TORT - trespass to the person - limitation period - limitation period for cross-claim alleging trespass to the person
LEGISLATION CITED:	Compensation to Relatives Act 1897 Limitation Act 1623 (UK) Limitation Act 1939 (UK) Limitation Act 1963 (UK) Limitation Act 1969 Limitation Act 1980 (UK) Limitation Bill 1969 Limitation of Actions Act 1958 (Vic) Limitation (Amendment) Act 1990 Property (Relationships) Act 1984
CASES CITED:	Ashby v White (1703) 2 Lord Raym 938 Battiato v Lagana [1992] 2 QdR 234 Billings v Reed [1945] KB 11 Clegg v Dearden (1848) 12 QB 576 Dawson v Commonwealth (1994) 12 WAR 29 Ellis v The Loftus Iron Company (1874) LR 10 CP 10 Hayward v Georges Ltd [1966] VR 202 Kruber v Grzesiak [1963] VR 621 Letang v Cooper [1965] 1 QB 232 Long v Hepworth [1968] 1 WLR 1299 Mason v Mason [1997] 1 VR 325 McDonell & East Limited v McGregor (1936) 56 CLR 50 Nelson v Wyong Shire Council (1989) 68 LGRA 164 Nicholls v Ely Beet Sugar Factory, Limited [1936] 1 Ch 343 Reeves v Butcher [1891] 2 QB 509 State of New South Wales v Judd [2003] NSWCA 355 Stubbings v Webb [1993] AC 498 Williams v Milotin (1957) 97 CLR 465
PARTIES :	Stephen O'Neill - Plaintiff/Appellant Beverley Foster - First Defendant/Respondent Mary Petty - Second Defendant
FILE NUMBER(S):	SC 2317/03
COUNSEL:	P Cullen - Appellant D E Baran - Respondent
SOLICITORS:	Garden & Montgomerie - Appellant Barclay Benson - Respondent

LOWER COURTJURISDICTION:	Supreme Court (Master)
LOWER COURT FILE NUMBER(S):	2317/03
LOWER COURT JUDICIAL OFFICER :	Master Macready

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

8 OCTOBER 2004

2317/03 STEPHEN O’NEILL v BEVERLEY FOSTER & ANOR

JUDGMENT

HIS HONOUR:

Nature of the Case

1 This case concerns the applicable limitation period for a cross-claim alleging trespass to the person.

Circumstances Giving Rise to the Application

2 The plaintiff and the first defendant were formerly in a de facto relationship. The second defendant is the mother of the first defendant. The plaintiff began proceedings against both defendants on 9 August 2002, seeking an adjustment of property interests against the first defendant under the provisions of the Property (Relationships) Act 1984, a declaration that he has a beneficial interest in some real estate of the second defendant which he claims to have improved, and consequential orders. Those proceedings were begun in the District Court, and were transferred to this Court by an order made on 13 March 2003.

3 The first defendant, on 22 January 2004, filed a cross-claim against the plaintiff. In that cross-claim, she sought damages in connection with an incident she alleges to have occurred on or about 18 August 2000, in the course of which, she asserts, the plaintiff committed several acts of battery and sexual assault against her.

4 One of the defences to that cross-claim asserts that the cross-claim cannot be maintained because it has been lodged more than three years after the injury and cause of action accrued, and hence is statute-barred pursuant to section 18A Limitation Act 1969. The plaintiff sought summary judgment on the cross-claim, by reason of that limitation defence. Master Macready, in a judgment delivered on 8 July 2004, declined to grant that summary judgment. The plaintiff now appeals against that decision.

Limitation Period for Actions of Battery and Assault – Statutory Provisions

5 Section 18A Limitation Act 1969 provides:

“(1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to [two exceptions not presently relevant]
(2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

6 Section 11(1) Limitation Act 1969 says:

“In this Act, unless the context or subject matter otherwise indicates or requires: …
Breach of duty when used in relation to a cause of action for damages for personal injury, extends to the breach of any duty (whether arising by statute, contract or otherwise) and includes trespass to the person …
Personal injury includes any disease and any impairment of the physical or mental condition of a person.”

7 Section 14(1)(b) establishes a six-year limitation period for a cause of action founded on tort. An action for battery or assault is clearly an action founded on tort. However, section 13 Limitation Act 1969 provides:

“Where, under each of two or more provisions of this Part, an action is not maintainable if brought after a specified time, the action is not maintainable if brought after the earlier or earliest of those times.”

Thus, if the cross-claim alleging battery and assault falls within section 18A, a three-year limitation period will apply to it, notwithstanding section 14(1)(b). If the cross-claim does not fall within section 18A, it will have a six-year limitation period pursuant to section 14(1)(b).

Limitation Period for Actions of Battery and Assault

8 An argument put by Mr Cullen, for the appellant, is that the cause of action for battery and assault is an action for damages for personal injury, is also an action for trespass to the person (Williams v Milotin (1957) 97 CLR 465 at 471), hence is an action for ”breach of duty” in the extended sense required by section 11(1) Limitation Act 1969, hence falls within section 18A of that Act, and hence has a three-year limitation period. In my view that simple submission is right. It is right as a matter of construing and applying the words of the statute, on its face.

9 The arguments of Counsel went wider than this, however. In deference to those arguments, I shall set out some additional reasons why it is correct to say that a three-year limitation period applies to actions for battery and assault.

Limitation Act 1969 as Originally Enacted – Source of the Wording of Section 18A

10 Before the enactment of the Limitation Act 1969 the limitation period in New South Wales for torts was (apart from various statutory exceptions which had been made to it) governed by the Limitation Act 1623 of England (21 Jac 1, c 16). Section 3 of that Act provided various limitation periods for torts – a two-year limitation period for slander, a four-year period for trespass to the person, and a six-year period for certain other actions in tort.

11 Following the New South Wales Law Reform Commission’s First Report on the Limitation of Actions (LRC 3) in October 1967, the New South Wales Parliament passed the Limitation Act 1969. In its then form, the Limitation Act 1969 did not contain the special three-year limitation period now provided for by section 18A. Thus, those causes of action which now fall within section 18A were governed by the general six-year limitation period arising under section 14(1)(b).

12 Part III of the 1969 Act set out, in Divisions 2 and 3, a variety of circumstances in which the time bar established by earlier provisions of the Act might be postponed. Division 2 dealt with matters like disability, confirmation, fraud and mistake, which of themselves and as a matter of law, could postpone a limitation period. Division 3 (which ran from section 57 to section 62 inclusive) enabled some limitation periods to be extended by an exercise of the Court’s discretion.

13 The circumstances in which the Limitation Act 1969 as originally enacted enabled a limitation period for a cause of action to be extended in exercise of the Court’s discretion, related to actions for damages for “personal injury”, and actions for damages under the Compensation to Relatives Act 1897. Section 57(1)(a) defined “personal injury” as including “any disease and any impairment of the physical or mental condition of a person”. That definition is well able to cover injury to a person resulting from a trespass to the person.

14 Each of sections 58 and 59 empowered the Court to extend the limitation period in relation to certain types of “… cause of action founded on negligence nuisance or breach of duty, for damages for personal injury …”. Section 57(2) stated that, for Part III, Division 3 of the Act:

“… the expression “breach of duty” extends to the breach of any duty, whether arising by statute, a contract or otherwise, and includes trespass to the person.”

15 One of the conditions for extension of time under Part III, Division 3 of the Act depended on whether material facts of a decisive character relating to the cause of action were not within the means of knowledge of an applicant for extension until after a date which was one year before the limitation period expired. “Material facts” were defined by section 57(1)(b) to include the identity of the person against whom the cause of action lies, the nature and extent of the personal injury so caused, and the extent to which the personal injury is caused by the negligence nuisance or breach of duty. “Material facts” of a “decisive character” were defined, by section 57(1)(c), by reference to criteria which included whether the facts known would show that an action on the cause of action would “… have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the cause of action …”.

16 Thus, if there were to be circumstances where a person knew that they had suffered injury as a consequence of a trespass to the person, but it was only after one year before the limitation period ended that the plaintiff realised that the injury and its consequences were sufficiently serious to be likely to result in an award of damages large enough to justify the bringing of an action, there could be an extension of the limitation period for an action for trespass to the person. Likewise if a person knew that they had suffered a trespass to the person, but only after one year before the limitation period ended was able to identify the assailant, there was power for the Court to grant an extension.

17 At the time the New South Wales Law Reform Commission wrote its report in 1967 it had before it the example of the reform of the limitations law in Victoria, effected by the Limitation of Actions Act 1958 (Vic). Section 5(6) of that Act provided:

“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 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 three years after the cause of action accrued.”

18 In Kruber v Grzesiak [1963] VR 621 Adam J construed that provision. The particular factual context was a claim by a plaintiff who alleged she had been injured when either she or her bicycle was stuck by a motor vehicle driven by the defendant. Her action, founded on negligence was brought more than three years, but less than six years, after the date of her injury. When a limitation defence was pleaded, she sought leave to amend her Statement of Claim to allege that the incident involved a trespass to the person. Adam J refused her leave to make that amendment.

19 That decision was arrived at on two distinct grounds. The first was that, while negligence and trespass to the person were separate causes of action, the particular kind of trespass to the person which was there alleged was one in which proof of negligence was an essential ingredient, and that in section 5(6) the expression “action for damages for negligence”:

“should be construed to include not only actions on the case for negligence, but also actions of trespass to the person in which, because the trespass is not intentional, proof of negligence is an essential ingredient”. (at 623)

For that reason a three-year limitation period would apply to the action for trespass to the person.

20 The second basis was:

“But even if, to those familiar with the history of traditional forms of action, it may seem an undue straining of language to treat as covered by the expression “action for damages for negligence” (itself incidentally a non-technical expression) a cause of action for trespass to the person in which proof of negligence is an essential ingredient, I would see no sufficient reason for excluding such an action from the description of an action for damages for breach of duty, especially when it is provided that the duty may be one existing independently of any contract or any provision made by or under a statute. 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? The substance of the matter appears to be that s 5(6) is intended to provide a special limitation period of three years for actions in which damages for personal injuries are claimed. No doubt, as was pointed out in argument, this intention might have been achieved by the use of other and perhaps simpler and more direct language, but that does not seem to be a sufficient reason for not giving the language chosen its full meaning.” (at 623)

This provided a separate reason why section 5(6) applied to the action for trespass to the person, and hence it was subject to a three-year limitation period.

21 The New South Wales Law Reform Commission in 1967 also had before it the decision of the English Court of Appeal in Letang v Cooper [1965] 1 QB 232. That decision concerned an English limitation provision the operative wording of which was not materially different to section 5(6) Limitation of Actions Act 1958 (Vic). As in Kruber v Grzesiak [1963] VR 621, the factual circumstance which gave rise to the litigation was that a plaintiff, who had been injured by the negligent driving of the defendant, sued more than three years after the injury was sustained, and endeavoured to overcome a three year limitation period by suing in trespass to the person. As in Kruber v Grzesiak [1963] VR 621, the plaintiff failed. One of the reasons was stated by Lord Denning MR, at 241, where his Lordship said of the exception of actions for breach of duty:

“Those words seem to me to cover not only a breach of a contractual duty, or a statutory duty, but also a breach of any duty under the law of tort. Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character. Professor Winfield indeed defined “tortious liability” by saying that it “arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”: See Winfield on Tort, 7th ed (1963) p. 5.
In my judgment, therefore, the words “breach of duty” are wide enough to comprehend the cause of action for trespass to the person as well as negligence. In support of this view, I would refer to the decision of this Court in Billings v Reed [1945] KB 11; 61 TLR 27, CA, where Lord Greene MR ([1945] KB 11, 19) gave the phrase “breach of duty” a similar wide construction. I would also refer to the valuable judgment in Australia of Adam J in Kruber v Grzesiak [1963] 2 VR 621. The Victorian Act is in the self-same words as ours; and I would, with gratitude, adopt his interpretation of it.”

22 Danckwerts LJ said, at 242:

“In my view, trespass to the person involves a breach of duty, as in the case of any other tort …”

23 Diplock LJ said, at 245:

“… I agree with my brethren and with Adam J that this action also falls within the words “actions for … 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).” I say “also falls”, for in the absence of the word “other” before “breach of duty” that expression as explained by the words in parenthesis is itself wide enough to include “negligence” and “nuisance”.
In their ordinary meaning, the words “breach of duty” as so explained are wide enough to cover any cause of action which gives rise to a claim for damages for personal injuries, as Lord Greene MR in Billings v Reed [1945] KB 11 said of very similar words in the Personal Injury (Emergency Provisions) Act, 1939 . Why should one give them a narrower and constrained construction? …”

24 Diplock LJ also said, at 246-7:

“A has a cause of action against B for any infringement by B of a right of A which is recognised by law. Ubi jus, ibi remedium. B has a corresponding duty owed to A not to infringe any right of A which is recognised by law. A has no cause of action against B for an infringement by B of a right of C which is recognised by law. B has no duty owed to A not to infringe a right of C, although he has a duty owed to C not to do so. The number of other people to whom B owes a similar duty cannot affect the nature of the duty which he owes to A which is simply a duty not to infringe any of A’s rights. 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.”

25 Diplock LJ also said, at 247:

“Really, the only argument for cutting down the plain and wide meaning of the words breach of duty is that to do so renders the inclusion of the specific torts of negligence and nuisance unnecessary. But economy of language is not invariably the badge of parliamentary draftsmanship. Negligence and nuisance are the commonest causes of action, which give rise to claims for damages in respect of personal injuries. To mention them specifically without adding the word “other” before “breach of duty” is not in itself sufficient to give rise to any inference that the wide general words were not intended to cover all causes of action which give rise to claims for damages in respect of personal injuries; particularly when the same combination of expressions in a similar context had already been given a very wide interpretation by the Court of Appeal.”

26 It is relevant in the present context that Billings v Reed [1945] KB 11, upon which all of their Lordships in Letang v Cooper [1965] 1 QB 232 relied, was a case which involved a war-time statute which limited recovery of damages for a war injury “on the ground that the injury in question was attributable to some negligence, nuisance or breach of duty for which the person by whom the compensation or damages would be payable is responsible”. An argument was specifically put that trespass to the person did not fall within that phrase, because it was not a breach of duty. Lord Greene MR said, in Billings v Reed at 19:

“I am unable to accept that proposition. It would appear to limit the words “breach of duty” to cases of breach of duty to take care, which is the same thing as negligence. It seems to me that in this context the phrase “breach of duty” is comprehensive enough to cover the case of trespass to the person which is certainly a breach of duty as used in a wide sense.”

27 The New South Wales Law Reform Commission in 1967 also had before it some recent English legislation, the Limitation Act 1963 (UK). Section 1 of that Act provided that a provision in the 1939 English limitations legislation which imposed a three-year time limit would not afford a defence if the Court granted leave for the action to be brought, and material facts of a decisive character relating to the cause of action were outside the knowledge (actual or constructive) of the plaintiff until a certain date, identified by reference to both when the limitation period ended and when the action was brought. Section 1(2) of that Act provided:

“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 provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.”

28 The New South Wales Law Reform Commission, at para 300 of its report (page 135) explained that section 57(2) of its recommended bill, (which was identical to section 57(2) as eventually enacted):

“… follows the substance of some words in section 1(2) of the Imperial Limitation Act, 1963 . The inclusion of trespass to the person states the position reached in Victoria ( Kruber v Grzesiak [1963] VR 621) and in England ( Letang v Cooper [1965] 1 QB 232).”

In other words, it was a necessary implication of the reasoning in Kruber v Grzesiak [1963] VR 621 and Letang v Cooper [1965] 1 QB 232 that trespass to the person fell within the scope of “breach of duty” in the Victorian section 5(6) and its English equivalent. In adopting a form of words closely similar to the Victorian section 5(6), the New South Wales Law Reform Commission made it express that “breach of duty” included trespass to the person, rather than merely leaving it to implication. It was precisely the type of extension to the limitation period for actions for trespass to the person that I have identified at para [16] above that the New South Wales Law Reform Commission intended by the inclusion of the words “includes trespass to the person” in section 57(2).

29 The second reading speech for the introduction of the Limitation Bill 1969 makes clear that that Bill is based on the report of the New South Wales Law Reform Commission (Hansard, Legislative Assembly, 26 March 1969, page 5151). To the extent that there might be any ambiguity in the wording of the Act, that ambiguity should be resolved to accord with the intention emerging from the New South Wales Law Reform Commission report.

1990 Amendments to Limitation Act 1969

30 The present section 18A was introduced following a 1986 report of the New South Wales Law Reform Commission, Limitation of Actions for Personal Injury Claims (LRC 50). That report dealt, as its title suggests, with the entire topic of limitations on actions for personal injury claims. In its account of the history of the law, in para 2.1, it makes clear that actions for trespass to the person were considered as actions for personal injury for the purposes of that report. The report recommended, in para 6.11, that:

“A shorter period [than six years] is desirable, primarily to encourage the early determination of contested claims. The argument for a longer period is met by a provision for discretionary extension of time. The primary limitation period in cases of personal injury should therefore be three years from the date of accrual of the cause of action.”

31 The Limitation (Amendment) Act 1990 effected those recommendations of the New South Wales Law Reform Commission. It removed the definitions of “breach of duty” and “personal injury” from section 57 Limitation Act 1969, introduced definitions of “Breach of duty” and “Personal injury” into section 11(1) in identical words to those removed from section 57, and inserted section 18A. The effect of moving the definitions from section 57 to section 11 was that they applied to the whole Act, instead of just to the Division in which section 57 occurred. The 1990 Act also introduced, in sections 60A-60M, a new regime to govern discretionary extensions of time for causes of action accruing on or after 1 September 1990.

32 The Explanatory Memorandum explicitly stated, concerning the definitions:

“The definitions of “Breach of duty” and “Personal injury” are transferred from the existing section 57.” (at 2)

There is nothing in the words of the definitions of “breach of duty” , or in the Explanatory Memorandum, or in the second reading speech concerning that 1990 Act ( Hansard , Legislative Council, 4 June 1990, p. 4993 ff ) to suggest that the definition of “breach of duty” was intended to have any different meaning in the 1990 amendments to the meaning it had in section 57(2) of the original 1969 version of the Act.

Any Significance in Stubbings v Webb?

33 Mr Baran, for the respondent, placed considerable reliance upon the decision of the House of Lords in Stubbings v Webb; Same v Webb [1993] AC 498. That case involved a plaintiff who alleged she had suffered significant sexual assaults while a child, who issued a writ against the people she alleged had committed those assaults twelve years after she had attained her majority, and claimed an extension of time on the ground that it was only within three years before she had issued the writ that she perceived a causal connection between the sexual assaults and some psychiatric difficulties she was suffering. The relevant English limitation statute (Limitation Act 1980 (UK)) created a three year limitation period, and a power of extension of that three year limitation period, concerning actions described by words not materially different to the sub-section which Adam J had construed in Kruber v Grzesiak [1963] VR 621. Lord Griffiths (with whom Lord Templeman, Lord Bridge of Harwich, Lord Ackner and Lord Slynn of Hadley agreed) held that those words did not apply to a cause of action based on indecent assault or rape. For that type of action, the limitation period was six years, and not subject to extension. After considering the history which led to the enactment of the relevant English legislation, his Lordship concluded, at 507, that:

“… Parliament had enacted section 2(1) of the Act of 1954 with the deliberate intention of giving effect to the Tucker Committee’s advice that the three-year period should apply to what I will broadly describe as accident cases and should not include causes of action such as rape or indecent assault.”

34 This conclusion was directly contrary to one of the bases upon which Letang v Cooper [1965] 1 QB 232 had been decided, giving a wide meaning to “breach of duty”. His Lordship dealt with that problem by overruling that aspect of Letang v Cooper. He said, at 507:

“I accept that Letang v Cooper was correctly decided insofar as it held that negligent driving is a cause of action falling within section 2(1) of the Act of 1954. But I cannot agree that the words “breach of duty” have the effect of including within the scope of the section all actions in which damages for personal injuries are claimed which is the other ground upon which the Court of Appeal decided Letang v Cooper . If that had been the intention of the draftsman it would have been easy enough to say so in the section. On the contrary the draftsman has used words of limitation; he has limited the section to actions for negligence, nuisance and breach of duty and the reason he did so was to give effect to the recommendation of the Tucker Committee that the three-year period should not apply to a number of causes of action in which damages for personal injury might be claimed namely damages for trespass to the person, false imprisonment, malicious prosecution or defamation. There can be no doubt that rape and indecent assault fell within the category of trespass to the person.”

35 It was not only the legislative history of the particular English statutory provision which led Lord Griffith to this conclusion. As well, he rejected, as a matter of ordinary English, the notion that “breach of duty” extends to assault, in the context of the particular statutory provision. His Lordship said, at 508:

“Even without reference to Hansard I should not myself have construed breach of duty as including a deliberate assault. 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. If I invite a lady to my house one would naturally think of a duty to take care that the house is safe but would one really be thinking of a duty not to rape her?”

36 Mr Baran submitted that, analogously, the phrase “breach of duty” in section 18A Limitation Act 1969 should be construed as carrying a similar implication of a breach of a duty of care not to cause personal injury. He submitted that section 18A should be read as requiring “breach of duty” to have the more limited meaning which Lord Griffiths supplied in Stubbings v Webb; Same v Webb [1993] AC 498, and that when it was so read the context or subject matter of section 18A was such as to show that the definition of “breach of duty” in section 11(1) should not be applied to section 18A.

37 I do not accept that construction. One reason is that the only sections in the present version of the Limitation Act 1969 where the expression “breach of duty” is used in relation to a cause of action for damages for personal injury (and hence where the definition in section 11(1) has work to do) are sections 18A, 57B(1)(b)(i), 57B(1)(b)(iii), 57B(1)(b)(v), 58(1), 59(1), 60C(1), 60G(1), and Schedule 5, clause 4(1). Apart from section 18A, all these provisions are ones which permit extension of a limitation period. Clearly, it is Parliament’s intention that, just as there could be a discretionary extension of the limitation period for an action for trespass to the person under the regime for discretionary extensions created by the Act in its original form, there could likewise be a discretionary extension of the limitation period for trespass to the person under the new regime for discretionary extensions created by the 1990 amendments. It would be strange for the definition of “breach of duty” in section 11(1) to apply to provisions for extension of a limitation period, but not to the only provision which uses the phrase and which actually creates a limitation period.

38 As well, the New South Wales legislation differs fundamentally from the English legislation being construed in Stubbings v Webb; Same v Webb [1993] AC 498, in that it contains a definition of “breach of duty”, which expressly includes trespass to the person. The legislative history of that definition, outlined earlier, shows that the New South Wales Law Reform Commission intended that inclusion to give effect to the view of the law which had been expressed in Kruber v Grzesiak [1963] VR 621 and Letang v Cooper [1965] 1 QB 232. The Parliament of New South Wales having adopted that recommendation, the meaning and effect of the definition of “breach of duty” in section 11(1) Limitation Act 1969 is not affected by one aspect of the decision in Letang v Cooper [1965] 1 QB 232 having been overruled by Stubbings v Webb; Same v Webb [1993] AC 498, years after the New South Wales Parliament has made its decision.

39 Mr Cullen referred me to the decision of the Victorian Court of Appeal in Mason v Mason [1997] 1 VR 325. In that decision the Victorian Court of Appeal (Hayne and Callaway JJA and Smith A-JA) answered a question of law reserved by a County Court judge, concerning whether an action for damages for personal injuries which are the result of an intentional assault was an 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)” within the meaning of those words in:

(a) section 5(1A) of the Limitation of Actions Act 1958 (Vic);

(b) section 23A of the Limitation of Actions Act 1958 (Vic) –

(i) as it existed prior to the commencement of Act number 9884 of 1983; and

(ii) as amended by Act number 9884 of 1983.

40 Section 5(1A) was introduced by Act number 9884 in 1983. Callaway JA explained it, at 326, as providing:

“That certain actions for damages for personal injuries consisting of a disease or disorder may be brought within six years from the date on which the person who contracted the disease or disorder first knows that he or she has suffered those personal injuries and that they were caused by the act or omission of some person.”

Section 23A is a section which permits extension of a limitation period. It was introduced in one form pronounced upon in Mason v Mason in 1973, and was amended by Act 9884 in 1983 to the other form pronounced upon in Mason v Mason . Their Honours answered “Yes” to each of the questions listed in para [39] above. In doing so, Callaway JA (with whom Hayne JA and Smith A-JA agreed) pointed to the particular legislative history of the provisions in Victoria, and to the fact that by the time section 5(1A) and both versions of section 23A were enacted, not only had Kruber v Grzesiak [1963] VR 621 and Letang v Cooper [1965] 1 QB 232 been decided, but as well it had been held in both Victoria ( Hayward v Georges Ltd [1966] VR 202) and in England ( Long v Hepworth [1968] 1 WLR 1299) that the wording of section 5(6) of the Victorian legislation applied to an action for assault. Callaway JA was unpersuaded by the reasoning which had led Lord Griffiths to the conclusion he reached in Stubbings v Webb; Same v Webb [1993] AC 498. His Honour was (at 329-330) unimpressed by the reliance Lord Griffiths had placed on the English legislative history, and as well concluded that the English second reading speech could not be used for the purpose of construing the Victorian legislation.

41 Callaway JA also did not accept the construction of the expression “breach of duty” which Lord Griffiths had arrived at independently of the English legislative history. His Honour, at 330, was unpersuaded that the juxtaposition of “breach of duty” with “negligence” and “nuisance” carried 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”. Callaway JA said, at 330:

“That is not how the matter had appeared to Diplock LJ in Letang v Cooper at 246-7 or to Bingham LJ in the court below [ Letang v Cooper ] [1992] QB 197 at 204-5. Whether one applies the maxim noscitur a sociis or ejusdem generis, it is difficult to identify the connecting link. The common feature (breach of a legal duty) identified in Harris v Gas & Fuel Corp. of Victoria [1975] VR 619 at 627 is not enough.
Mr Horgan, who appeared for the defendant, endeavoured valiantly to persuade us that the genus was either as suggested by Lord Griffiths or that it was causes of action of which damage is an essential ingredient. I do not think that all cases of nuisance involve breach of a duty of care or that damage would be an essential ingredient where personal injuries were inflicted in breach of contract. See Fleming, Law of Torts , 8th ed, (1992), pp 424-5. Matthews v Kuwait Bechtel Corp. [1959] 2 QB 57 is an example of an injured employee choosing to sue in contract: cf Hawkins v Clayton (1988) 164 CLR 539 at 585. More fundamentally, I can see no good reason why Parliament would have been concerned with either of the suggested distinctions. The words “(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)”, which appear to be words of extension rather than limitation, add to the difficulty of giving the expression “breach of duty” any narrower meaning than that suggested by Adam J in Kruber v Grzesiak . It covers intentional trespass to the person where the damages claimed consist of or include damages in respect of personal injuries.”

42 I find the reasoning of Callaway JA, about the meaning of “breach of duty” in that particular phrase more persuasive than that of Lord Griffiths.

43 The New South Wales legislation has its own legislative history, and its own definition of “breach of duty”, which expressly includes trespass to the person. That definition applies to section 18A Limitation Act 1969. When the reasoning of Lord Griffiths is unpersuasive, this provides a further reason why there is nothing in the context or subject mater of section 18A to stop that definition applying to section 18A.

44 For these reasons, I conclude that a cause of action for assault has a limitation period of three years pursuant to section 18A Limitation Act 1969, though that limitation period can, in some circumstances, be extended.

45 The conclusion at which I have arrived accords with a sentence in the decision of the Court of Appeal in State of New South Wales v Judd [2003] NSWCA 355. That case involved a plaintiff who alleged he had been assaulted by a police officer. While the dispute in that case concerned whether a limitation period should be extended, in exercise of the Court’s statutory discretion to do so, the starting point was what would be the limitation period if no extension were granted. Handley JA (with whom Santow and Ipp JJA agreed) said, at [2]:

“The primary limitation period for an action against either the policeman or the State was three years pursuant to s 18A(2) of the Limitation Act , but under s 60C this period could be extended by the Court.”

That sentence is, it seems to me an essential step in the reasoning in State of New South Wales v Judd , and hence, is binding upon me. I am bound with no complaint.

Date When the Three Years Commences Running

46 Section 18A(2) Limitation Act 1969 expressly states that the three-year limitation period commences running “from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.” A cause of action “accrues” on the date which is the earliest time an action could have been brought: Reeves v Butcher [1891] 2 QB 509 at 511, 512. Trespass to the person is actionable per se (ie, without proof of damage): Ashby v White (1703) 2 Lord Raym 938 at 955 (extracted in Shirley’s Leading Cases in the Common Law, 5th ed (1896) p. 347); Williams v Milotin (1957) 97 CLR 465 at 474; Battiato v Lagana [1992] 2 QdR 234 at 235-6; Dawson v Commonwealth (1994) 12 WAR 29. For trespass to the person, as for all trespasses, the cause of action accrues immediately on the trespass being committed: Clegg v Dearden (1848) 12 QB 576 at 601; 116 ER 986 at 995 (trespass to land); Ellis v The Loftus Iron Company (1874) LR 10 CP 10 (tres pass to land); Nicholls v Ely Beet Sugar Factory, Limited [1936] 1 Ch 343 (trespass to a fishery).

47 Thus, in the present case the cause of action which the first defendant alleges in her cross-claim “first accrues” to her at the time of the alleged battery and assault, ie. on or about 18 August 2000.

When the Cross-Claim is “Brought”

48 Section 18A(2) Limitation Act 1969 has the effect that an action for trespass to the person:

“is not maintainable if brought after the expiration of a limitation period of three years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims.”

If the cause of action is one which a plaintiff relies upon, an action on that cause of action is “brought” when the plaintiff commences proceedings which allege that cause of action. But when is a cross-claim “brought” ?

49 Prior to the enactment of the Limitation Act 1969, the application of limitation periods to causes of action relied upon by way of a defence of set-off was different to the application of limitation periods to causes of action relied upon by way of counter-claim. In McDonell & East Limited v McGregor (1936) 56 CLR 50 Dixon J, at 55, said:

“The importance … of the distinction between set-off and counterclaim lies in the fact that debts which have accrued within six years of the issue of the writ may be relied upon as a set-off by way of defence, while a cause of action relied upon as a counterclaim must have accrued within the period of limitation calculated from the delivery of the counterclaim.”

A reason for the difference was explained by Dixon J at 58:

“One reason why a set-off in the strict sense might be pleaded if it accrued within six years of the commencement of the action was that it answered the cause of action, and if, at the date of the writ, a good answer existed, the plaintiff’s claim could not be maintained. The distinction between a cross-demand affording an answer to the cause of action wholly or in part and a cross-demand which could only be enforced by an independent claim, although in the same proceedings, is thus a real one.”

50 Further, as Dixon J pointed out, at 61, the power to counterclaim is purely procedural, allowing a cross action to be brought and tried at the same time as an original action. Being a matter of procedure, it did not affect substantive rights.

51 Section 28 of the Limitation Act 1939 (UK) abolished this distinction between how limitation periods apply to set offs and counterclaims, and assimilated the position of a claim brought by way of counterclaim to that of a claim brought by way of set-off. Its operation was explained in Franks, Limitation of Actions (Sweet & Maxwell Limited, 1959), 271-2:

“The 1939 Act provides (s 28) that for its purposes any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have commenced on the same date as the action in which the set off or counterclaim is pleaded. It is therefore necessary to look at the date of issue of the writ in the action to see whether the claim was made in time. Where the action is not governed by the 1939 Act the pre-1940 rule will still apply, viz, with regard to set-off time ceased to run on the action being commenced ( Walker v Clements (1850) 15 QB 1046), but with regard to counterclaim only when it was pleaded ( Lowe v Bentley (1928) 44 TLR 388).”

52 The New South Wales Law Reform Commission’s 1967 First Report on the Limitation of Actions recommended the adoption of the provision now to be found in section 74 Limitation Act 1969. That provision adopted the English 1939 position concerning limitation periods for cross-claims, with one modification. The New South Wales Law Reform Commission’s report, para 341, explained the modification thus:

“Section 28 of the Imperial Act of 1939 provides amongst other things that a claim by way of set-off or counterclaim is to be deemed to have commenced on the same day as the action in which the set-off or counterclaim is pleaded. In some cases a defendant may counterclaim against a person who is not a party to the original action: in such a case it is not right that the running of the limitation period should be stopped by the commencement of proceedings to which he is not a party. Section 74 provides that, in that case, the action against the new party is not to be taken to have been brought until he is made a party to the claim.”

53 Thus, where, as in the present case, the cause of action is asserted by way of a cross-claim, section 74 Limitation Act 1969 imposes a different test to that of the pre-1969 New South Wales law for when the action is treated as being “brought”. Section 74 provides:

“Where, in an action (in this section called the principal action ), a claim is made by way of set off, counterclaim or cross action, the claim, for the purposes of this Act:
(a) is a separate action, and
(b) is, as against a person against whom the claim is made, brought on the only or earlier of such of the following dates as are applicable:
(i) the date on which the person becomes a party to the principal action, and
(ii) the date on which the person becomes a party to the claim.”

As Giles J explained in Nelson v Wyong Shire Council (1989) 68 LGRA 164 at 169, section 74 can involve a “relation back” of the limitation period for which it provides.

54 Applying section 74 Limitation Act 1969 to the facts of the present case, the claim of trespass to the person made in the cross-claim is treated, pursuant to section 74(a), as a separate action. That claim is brought against the plaintiff. The plaintiff became a party to the principal action on the date he commenced it, namely 9 August 2002. He became a party to the claim (of trespass to the person) on the date that the cross-claim was filed, namely 22 January 2004. The earlier of those dates is 9 August 2002. Thus, pursuant to section 74(b), the claim of trespass to the person is “brought” on the earlier of those dates, namely 9 August 2002. Being “brought” on that day, it is within the three-year limitation period from the date when the cause of action first accrued to the cross-claimant. Thus, it is brought within time.

Orders

55 The appeal is dismissed.

56 The appeal was conducted by both counsel without reference to section 74 Limitation Act 1969, and on the assumption that the date upon which the limitation period stopped running was the date of filing of the cross-claim. It was only after I had reserved judgment that the possible relevance of section 74 became apparent to me, and I sought submissions from counsel concerning it. That circumstance is one which might possibly bear upon the appropriate costs order to be made.

57 If either party wishes to make any application for costs, they should make an appointment with my Associate, within 14 days of the date of delivery of these reasons for judgment, for the argument of such an application. Alternatively, if the parties are able to agree upon an order as to costs, and submit a signed minute of order, I will make that order in chambers.

Post Script

58 After the expiry of the time which I had fixed for the delivery of submissions relating to section 74 Limitation Act 1969, counsel for the plaintiff delivered some written submissions which sought to agitate a question of whether the cross-claim should be severed from the principal claim, and separately determined. Those submissions assume, mistakenly, that if a severance of the trial of the principal claim and of the cross-claim were to occur, a three-year limitation period would become available concerning the cross-claim.

59 Some other factors concerning the most convenient way of disposing of the proceedings are also relied upon as a basis for a severance of the trial. Those questions are outside the scope of the Notice of Appeal from the Master’s decision, so I decide nothing about them here.

60 Considering those submissions has, however, brought to light one matter. It is not clear to me how it came about that the cross-claim came to be filed at all. On 4 September 2003, the Court, by consent, made orders which included providing for the first and second defendants to file and serve a verified defence and/or cross-claim on or before 6 November 2003. I have not located any order or consent which permitted the filing of the cross-claim on 22 January 2004. Once it was filed, the plaintiff filed a defence to it. The argument before me (and, it seems, before Master Macready) proceeded on the basis of assuming that there was an entitlement to file the cross-claim in these proceedings. Whether that assumption was mistaken, and, if it was mistaken, whether it is now too late to do anything about it, are matters which are not within the scope of the appeal, and concerning which I say nothing.

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Last Modified: 10/15/2004