GLEESON CJ GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
CAROL ANNE STINGEL APPELLANT
AND
GEOFFREY CLARK RESPONDENT
Stingel v Clark [2006] HCA 37 20 July 2006 M153/2005
ORDER
1. Appeal allowed with costs.
2.Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 12 May 2005 (as amended by order made on 8 June 2005) and, in their place, order that the appeal to that Court is dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation
R P Gorton QC with T J Seccull for the appellant (instructed by Maurice Blackburn Cashman)
R J Stanley QC with C M O'Neill for the respondent (instructed by Coadys)
T J Casey QC with J H L Forrest QC and A J M Moulds seeking leave to intervene on behalf of the Commonwealth of Australia (instructed by Australian Government Solicitor)
J H Kennan SC with K D Mueller seeking leave to intervene on behalf of Carl Henning Wright (instructed by Hollows Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Stingel v Clark
Limitation of Actions – Appellant alleged respondent had raped and assaulted her in 1971 – Appellant alleged that she suffered post-traumatic stress disorder of delayed onset in 2000 and became aware of the connection between this disorder and the rapes and assaults in the same year – Proceedings were commenced for trespass to the person in 2002 by which time the general limitation period of six years for commencing actions in tort stipulated in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) ("the Act") had expired – Whether s 5(1A) of the Act applied to extend the limitation period from the date she first knew of those injuries and their causal connection – Whether a trespass to the person is an action for a "breach of duty" – Whether the injury alleged is a "disease or disorder contracted".
Words and phrases – "breach of duty", "disease or disorder contracted".
GLEESON CJ, CALLINAN, HEYDON AND CRENNAN JJ. 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.
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…
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.
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Details
AGLC
Stingel v Clark [2006] HCA 37
Case
[2006] HCA 37
Decision Date
CaseChat Overview and Summary
The appeal concerned a plaintiff who commenced proceedings in the County Court of Victoria in 2002, alleging she had been raped and assaulted by the defendant in 1971 when she was a minor. The plaintiff claimed to have suffered from post-traumatic stress disorder of delayed onset, becoming aware of the connection between this disorder and the alleged assaults in 2000. The defendant argued that the action was statute-barred, as the general limitation period of six years for tort actions under section 5(1)(a) of the *Limitation of Actions Act 1958* (Vic) had expired. The High Court of Australia considered the application of section 5(1A) of the Act to extend this limitation period.
The central legal issues before the High Court were whether section 5(1A) of the *Limitation of Actions Act 1958* (Vic) applied to the plaintiff's claim, thereby extending the limitation period from the date she first knew of her injuries and their causal connection to the alleged assaults. This required the Court to determine if a trespass to the person constitutes an action for a "breach of duty" within the meaning of the Act, and whether the plaintiff's alleged post-traumatic stress disorder qualified as a "disease or disorder contracted".
The High Court allowed the appeal, setting aside the orders of the Court of Appeal of Victoria. The Court reasoned that the plaintiff's claim for trespass to the person was not an action for a "breach of duty" as contemplated by section 5(1A) of the Act, nor was the post-traumatic stress disorder a "disease or disorder contracted" in the sense intended by that provision. Consequently, section 5(1A) did not operate to extend the limitation period, and the plaintiff's action was indeed statute-barred. The appeal to the Court of Appeal was therefore dismissed.
Orders
Orders of the court
1. Appeal allowed with costs. 2. Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of Victoria made on 12 May 2005 (as amended by order made on 8 June 2005) and, in their place, order that the appeal to that Court is dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
CJ, CALLINAN, HEYDON AND CRENNAN JJ
(dissent)
GUMMOW J
(dissent)
KIRBY J
(dissent)
HAYNE J
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 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. 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. 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[36].[36]The Act since has been amended by the Limitation of Actions (Amendment) Act 2002 (Vic), by Pt 3 of the Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003 (Vic), by the Limitation of Actions (Amendment) Act 2004 (Vic), by the Limitation of Actions (Adverse Possession) Act 2004 (Vic), and by ss 47 and 48 of the Defamation Act 2005 (Vic), but it is not submitted that these changes bear upon the issue on this appeal. 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[37], and that this legislation has been construed by the House of Lords in Stubbings v Webb[38] and by the Supreme Court of Ireland in Devlin v Roche[39] in a fashion which, if adopted for s 5 of the Victorian legislation, would be fatal to the plaintiff's case.[37]Statute of Limitations (Amendment) Act 1991 (Ir), s 3.[38][1993] AC 498.[39][2002] 2 IR 360. 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 six years from the date on which the cause of action accrued". 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.