Stingel v Clark

[2006] HCATrans 154

[2006] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M153 of 2005

B e t w e e n -

CAROL ANNE STINGEL

Appellant

and

GEOFFREY CLARK

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 22 MARCH 2006, AT 10.15 AM

(Continued from 21/3/06)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Gorton.

MR GORTON:   If the Court pleases.  If I could revisit the answer that I gave to the Chief Justice yesterday about the number of causes of action, what we said yesterday was one of the possible responses to the question that was asked and we recognise that that flies in the face of the common standard of the law that there is one cause of action arising from one event, act or omission giving rise to damages.  We do not say that what we said yesterday is necessarily wrong.  It may well be right but it is not the only approach that can be taken to section 5(1A).

It needs to be kept in mind, in our submission, that this case is one where no action was brought prior to the proceedings that are now giving rise to this appeal.  There was not an action taken within the time limit for the trespass which occurred ‑ ‑ ‑

KIRBY J:   Yes, but we have to test your proposition against the logic of it.  If the logic of it leads to the possibility that you can have one action on the trauma and then one action 40 years later on the 5(1A), then it is a slightly disturbing consequence because it seems to run in the face of the normal postulate that there is but one action.

MR GORTON:   We appreciate that.  We spent some time reviewing it overnight, which is why I am revisiting it without abandoning that interpretation because there is a problem that might arise or be seen to arise with the alternative approach.  The alternative approach can be taken looking at either the person who is in a car accident and has a physical injury at the time, does not sue at the time but years later develops a psychiatric disease or disorder that falls within the meaning of section 5(1A) due to the act or omission of the other driver, or the needle‑stick injury that happens either deliberately or by accident giving rise to immediate physical problems with the stick in the arm but possibly years later the blood disorder that might arise from infection from the needle, or the asbestos case where the bag falls on someone, bursts open, breaks his arm and exposes him once and the only time in his life to a huge amount of asbestos and subsequently there is mesothelioma.

In those cases a cause of action occurs at the time of the physical insult to the body which is recognised at the time and the causative act or omission is known by the person who suffered the physical injuries.  That person has a cause of action which prima facie is governed by section 5(1)(a) of the Act and a six year period from the time of that act or omission.  Section 5(1)(a) is, however, subject to section 5(1A) and if the person chooses not to bring an action for the physical injury that has occurred at that time and time passes and the circumstances enlivening 5(1A) come into being, then the cause of action is taken to have accrued at the time which satisfies 5(1A).

So that, instead of two causes of action, there are two times at which the cause of action might be said to arise:  the first one at the time of the event causing the immediate traumatic physical injury; the second one at the time fixed by section 5(1A) when the disease or disorder has been contracted.

KIRBY J:   But you will remember the course of the amendments and I would like your help on what the legislative history teaches us in this case.  As I recall, looking at the course of the amendments, it was in the latest provision that it was said, “and the cause of action shall be deemed to have arisen at the later period”.  That would seem to be the one cause of action that Parliament is focusing on.  If there has, as you say, at the moment of insult been an earlier cause of action for the trauma, that is difficult to reconcile with the postulate that the cause of action is deemed to have happened at a later time.

MR GORTON:   That is so on what I was saying yesterday, your Honour.  What I am saying today is not that there are two causes of action, but there was one cause of action which appeared under section 5(1A) in respect of which the remedy appeared to be ‑ ‑ ‑

KIRBY J:   I heard that submission.  It is just hard to reconcile that submission with the language which, for whatever reason, the Victorian Parliament put in the last amendment, which was to deem the cause of action to have occurred at the later time.  It is very hard to comprehend all of these amendments.  This really is a mess of a law and it is not only in Victoria and it is not only in Australia, it is everywhere where they have been trying to grapple with these problems.  I do not wonder the division in the Court of Appeal on this case but we have to ultimately be faithful to the statutory language.

MR GORTON:   I do not know whether this is going anywhere towards answering what your Honour has just been putting to me, but our submission includes these propositions, that trespass and deliberate trespass falls within the opening terminology in 5(1A), that is:

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) –

Those words have been held by a number of courts to include as part of an action for breach of duty an action for deliberate trespass.

HAYNE J:   Just before you come to develop this aspect of the matter, and this is an aspect that will require some development, I would have thought, can I just hark back a moment to the one or two causes of action problem that you began with before you deal with it.  It seems to me there are at least three elements in the language.  Leave aside history for the moment.  Again we will have to come to history. 

There are three elements in the language that we may need to grapple with.  Section 5(1) is fixing a time by reference to a date on which the cause of action accrued.  Section 5(1A) is identifying the time when some causes of action accrued:

the cause of action shall be taken to have accrued on, the date on which the person first knows –

something.  The identification of the cases within 5(1A) seems to include two further subsets of problems:  one, this problem of negligence, nuisance or breach of duty to which you are about to turn; but second, “where the damages claimed by the plaintiff consist of or include”.  “Consist of” would plainly encompass the case where the only damage the subject of action is that of the kind there identified, whatever that may be.

MR GORTON:   The disease or disorder, yes.

HAYNE J:   But the “or include” presents a problem in the sense that it may – it may not – work the deeming of the date of accrual of the cause of action in respect of the mixed cause of action first identified by the Chief Justice when argument began to actions of the mixed kind where there is physical trauma plus late onset disorder of some kind – leave aside those problems – and thus work a deeming in respect of the date on which the cause of action accrued as identified in 5(1).

That leaves you with one cause of action but it would leave intact perhaps res judicata principles such that if action is in fact brought and sued to judgment, then no second cause of action arises.  By contrast, in the case where no action is instituted and sued to judgment, perhaps the deeming worked by 5(1A) is a deeming for cases that go beyond the late onset or late recognised condition to those where there is both late recognised condition plus earlier actual trauma.  Maybe not.

MR GORTON:   What your Honour has just put was one of the propositions that we were proposing to put to the Court this morning, that the physical injury happens and what appears to be the time limit of six years passes without action either because of shame of the person suffering the problem not wanting to come to court or it is not perceived to be something worthy of bringing a damages claim for.  So that period is let pass, but a disease or disorder is subsequently come to be known in terms that would satisfy 5(1A)(a) and (b), so that the cause of action has in effect a second accrual date.  It is the one cause of action but it gets the accrual date with 5(1A) taking over what was the date dealt with by 5(1)(a).  When proceedings are brought after that disease or disorder is capable of being sued on in reliance on 5(1A), the damages sought include damages for that disease or disorder and other damages that the cause of action entitles the person to for the physical injuries that were suffered.

The limitation section of course bars the remedy after six years.  It does not dispose of the cause of action as such so that the cause of action which accrued according to the standards of the law for the physical injuries when the act or omission occurred and the damage was suffered continues to exist and is given in effect a deemed date of accrual if the conditions of 5(1A) are satisfied.  We accept on this analysis of the Act that if the injured party had sued for the damages for the physical injury and that had been pursued to judgment, the cause of action would have merged in the judgment and there would not be an entitlement to pursue any cause of action in respect of those acts or omissions, whatever the further physical injuries or mental or disease and disorder injuries were.

Why I was going to the deliberate trespass was to postulate a situation where there is clearly an action that was actionable per se at the time of the trespass.  So there must on the ordinary law at that moment be a cause of action.

GLEESON CJ:   Which is this case.

MR GORTON:   Which is this case.  So that there was a cause of action at that time.  That cause of action did not get destroyed.  What happened to the cause of action was that no proceedings were taken against it and it appeared to be barred by section 5(1)(a).

GLEESON CJ:   Is it different from the cause of action in negligence?

MR GORTON:   No, your Honour, except that a cause of action in negligence does not accrue until there is damage that is measurable.  There has to be an injury suffered for the cause of action in negligence to be complete.  So that in theory you can have the act or omission which is the basis of the negligence cause of action but no damage at the time and the cause of action might not arise until a significant time after that.  Of course, in almost every case when the act or omission happens in a negligence case, there will be physical damage closely associated in time with it but in the exceptional case it may not be.  It was for that reason that I was looking at the trespass situation where there is – for a deliberate, an intentional, trespass, there is always a cause of action at the time of the trespass taking place.

GLEESON CJ:   In the case of Gray v Motor Accident Commission 196 CLR 1 there was some inconclusive reference to the question whether you can sue in negligence in a case where, for example, a car driver deliberately drives his car over somebody. What do you say about that?

MR GORTON:   What we say about that – and I will just check and make sure that what we say is what we say, not just what I say.  We believe that the answer is that you probably can sue in negligence or in trespass.

KIRBY J:   Justice Adam in Kruber said something to the effect that in a case involving trespass to the person, there may also be negligence.

MR GORTON:   I am sorry, I did not hear your Honour.

KIRBY J:   There may be negligence in the – it is the first holding in Kruber.

MR GORTON:   As I understood what he said, the unintentional trespass necessarily involves establishing negligence on the part of the trespasser.  The intentional trespass would not involve having to establish negligence on the part of the trespasser.

GLEESON CJ:   But that of course is where a driver of a motor car undoubtedly owes a duty of care to a pedestrian, for example.

MR GORTON:   Yes, your Honour.

GLEESON CJ:   What kind of duty of care is owed by one person that results in a requirement not to rape another person?

MR GORTON:   It is not properly to be expressed as a duty of care, your Honour.  It is a duty of the sort that was dealt with in Kruber and in other cases.  Kruber is respondent’s authorities in support of its contention at tab 14 ‑ ‑ ‑

KIRBY J:   We have to be careful of slipping into the language of duty of care because the statute is negligence, nuisance or breach of duty.

MR GORTON:   Yes.

KIRBY J:   And even Lord Griffiths in Stubbings slipped into duty of care, something that the Irish Supreme Court picked up and pointed out - the words of the statute are “breach of duty”.

MR GORTON:   Yes.

GLEESON CJ:   What is the duty which one person breaches by raping another person?

MR GORTON:   It is the breach of a general duty not to inflict direct and immediate injury to the person of another, either intentionally or negligibly in the absence of lawful excuse.

GLEESON CJ:   The same as the duty if a policeman assaulted somebody, perhaps.

MR GORTON:   I think the answer to that is yes, but I am not absolutely confident that I know what the limits of that duty are.

GLEESON CJ:   If one citizen, not a policeman, assaulted another citizen.

MR GORTON:   Yes, your Honour.

CRENNAN J:   You are taking that from page 623 of Kruber at line 50.

MR GORTON:   Of Kruber, yes, which is not of course the only case that has dealt with the position of intentional trespass falling within the terminology used in section 5(1A) in the other cases.  They are referred to in the outlines of authority and I start with ‑ ‑ ‑

GUMMOW J:   Well, that is a very contentious proposition, is it not, at line 48 on page 623?  You would need some – or I would need to be persuaded.

KIRBY J:   Lord Griffiths says quite explicitly and with words that apply to this case, “If I invite a lady to my house, one would naturally think of a duty to take care” – query the importation of that – “that the house is safe”, but one would not really be thinking of a duty not to rape her, and the Irish Supreme Court said substitute a breach of duty for duty of care and you still come to the same conclusion.

MR GORTON:   Yes, the Irish court of course said there are two perfectly reasonable ‑ ‑ ‑

KIRBY J:   That is true.

MR GORTON:    ‑ ‑ ‑ alternative views, one of which is that edited view of Lord Griffiths, which was a view arrived at - not expressed as being dependent on, but arrived at having regard to his analysis of the Tucker Report express intention of excluding trespass from the words that are used in the equivalent of section 5(1A) and in the British parliamentary debates confirming that that was the intention of the legislature.

GLEESON CJ:   On your approach, does this mean that all actions for damages can be expressed as actions for breach of some form of duty?

MR GORTON:   Yes, your Honour.

GLEESON CJ:   If you should not have done it, there was a duty not to do it?

MR GORTON:   Yes, your Honour, whether the breach of the duty is going to produce a right to damages depends on all sort of different circumstances because there may be a lawful excuse for inflicting harm, but if there is a breach of duty ‑ ‑ ‑

KIRBY J:   Well, there are three problems with that proposition:  first, the words would then have been “for tort” and that is an expression that exists in the exactly preceding subparagraph; second, it is contrary to the history of the legislation; and third, it leaves very little for section 23A to do, if anything.

MR GORTON:   Well, firstly, we accept the proposition that the word “tort” could have been used in place of the words “negligence”, “nuisance” or “breach of duty”.

KIRBY J:   Well, especially because it had been used in a series of Victorian amendments dealing with the extension of limitation periods going back several years and in the exactly preceding subparagraph, so that by ordinary canons of constructions you would think that the use of this phrase “negligence, nuisance and “breach of duty”, means something other than action founded on tort.  It is a more particular and specific phrase.

MR GORTON:   Well, it is certainly a different phrase to use breach of duty in strict – without relating it to any particular tort or event.  What your Honour has raised in that respect was also dealt with by Justice Adam who happened to be on the earlier statute law revision committees in Victoria and to lecture on the Limitation of Actions Act apparently according to the material that was presented, but ‑ ‑ ‑

KIRBY J:   Well, I have great respect for Justice Adam, but the fact is that two final courts looking at this matter, the House of Lords and the Irish Supreme Court, have come to the contrary interpretation and unanimously in both cases.

MR GORTON:   They do not have the history of introduction of the words into the Victorian legislation which should lead to the conclusion that the intention in Victoria was to include “trespass causing personal injuries”.

GLEESON CJ:   And that is the way your cause of action is framed.  It is an action in trespass.

MR GORTON:   Yes, your Honour.  Well, I do not know that the word “trespass” is used.  I think it is assault and ‑ ‑ ‑

GUMMOW J:   “Assault and rape”.

GLEESON CJ:   “Assaulted and raped”, yes.

MR GORTON:   “Assault and rape”, which is the same thing.  But looking at it not long after the words were introduced into Victoria, Justice Adam noted that one of the things that your Honours just mentioned when he said again at page 623 in relation to section 5(6) which started with the same words as section 5(1A) does, no doubt as was pointed out in argument, the intention, that is to include the tort of trespass, 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 to the language chosen its full meaning.

GLEESON CJ:   As you have framed your claim on pages 6 and 7 of the appeal book, there is no doubt, is there, that you sue on ‑ ‑ ‑

MR GORTON:   Sue on trespass.

GLEESON CJ:    ‑ ‑ ‑ two causes of action, one of which accrued in March 1971 and one of which accrued in April 1971.

MR GORTON:   Yes, your Honour.

GLEESON CJ:   And as I understand the argument you have put this morning, it is that because of the subsequent disorder that manifested itself, for the purposes of the limitation legislation those two causes of action – the one of March 1971 and the one of April 1971 – are taken to have accrued many years later.

MR GORTON:   Yes, in either 1999 or 2000, on the evidence presented and accepted by the County Court judge, Judge Hanlon.

GLEESON CJ:   And that is only for the purpose of considering any bar to the remedy?

MR GORTON:   Yes, the question of what were the consequences of the rapes, whether there is a disease or disorder that falls within these terms and what the relationship is to the rapes are matters that can be agitated at the trial of the claim.

GLEESON CJ:   And there is also a question that we have to look at as to whether what you see on pages 6 or 7 is an action for damages for breach of duty.

MR GORTON:   Yes, your Honour.  That is the same point as the notice of contention argument that has been put up as to whether the words adopted in the Victorian legislation were intended to cover intentional trespass.

GLEESON CJ:   I thought you said a little earlier this morning, but I might have misunderstood you, that one of the reasons you wanted to keep the argument that you put yesterday was that there was a difficulty with this second argument.

MR GORTON:   Well, the difficulty with the second argument is that if you have a fact situation where there is a trauma and physical injury and a damages claim pursued to judgment and then that person develops a disease or disorder within section 5(1A), the effect of 5(1A) is to say a cause of action that is already been merged into judgment accrues after it is merged into judgment.

GLEESON CJ:   Maybe your answer to that is simply to say 5(1A) only operates to deal with the statutory bar to the remedy; it does not override the law about merger of causes of action in judgment.

MR GORTON:   Yes, that was the language problem ‑ ‑ ‑

GLEESON CJ:   And if you have sued to judgment, 5(1A) is not going to help you.

MR GORTON:   Yes, that seems to be right, if we are wrong as we – but this seems to be the preferable interpretation of the section rather than the one that I was promoting yesterday afternoon.

KIRBY J:   You still have, as far as I am concerned, to get through the gateway of the matter raised in the notice of contention which requires you to overcome the fact that in the immediately preceding paragraph the words “action founded on tort” are used which is the type of construction you are urging for the very particular phrase that appears in 5(1A), and you also have to overcome the history of the legislation and how it was introduced, referred to in the House of Lords and in Ireland, and you have to overcome the fact that your interpretation leaves very little, if anything, to be done by section 23A, which is a much more nuanced and balanced provision that permits the unfairness to a defendant to be taken into account.  After all, we are not only dealing here with cases where the Commonwealth is being sued in respect of the Voyager; we are dealing here with cases of ordinary citizens who are sued 30 years after the events, when they would ordinarily have been entitled to believe that these matters had been put to rest.

MR GORTON:   We are probably also dealing with the situations of young people being assaulted, as is alleged frequently enough, in church organisations or school organisations, who do not develop the problem until years later, but it is nonetheless the consequence of an assault.  So it is a wide‑ranging effect.

KIRBY J:   My point is those organisations are commonly either insured or well‑resourced, but we have to also test your propositions by the case of an ordinary citizen who is not insured and is not well‑resourced and on your theory of the statute is still – or can be rendered liable 30, 40, 50 years later.

MR GORTON:   Yes, your Honour.

GLEESON CJ:   Child care centres are often operated by ordinary citizens who are not well‑resourced.

MR GORTON:   So what happened in 1982 or 1983 was that the Parliament made a choice of saying, “It is more important to give people who are maltreated in some way at an early time and have problems many years later the right to sue without having to establish the absence of prejudice or a superior countervailing need on their part”.  Parliament said, “If the situation arises that falls within section 5(1A), the prejudice of the defendant is something that we, the Parliament, say is to be put to one side”.

KIRBY J:   Yes, but “we, the Parliament” said that only in respect of negligence, nuisance and breach of duty, not in respect of actions founded on tort.  It is awkward to squeeze, as Lord Griffiths said, a rape into a breach of duty.  It is awkward, especially in conjunction with negligence and nuisance.

MR GORTON:   Before the English legislation was passed, a court in England in Billings v Reed in respect of wartime legislation and similar words determined that trespass would fall within the words “breach of duty”.  In the late forties and early fifties, the Victorian legislature was grappling with limitation problems and getting reports from various legislative committees who heard evidence from people who were experienced at least in relation to limitation and litigation matters.  One of those committees in 1950 heard evidence from Justice O’Bryan and ‑ ‑ ‑

KIRBY J:   That was the Chief Justices Law Reform Committee, I think.

MR GORTON:   Yes, and that committee had available to it the Tucker Report and the Tucker Report contained in its terms the proposition that the words – fundamentally the same words of “negligence, nuisance or breach of duty”, were not intended by the Tucker Report to include actions for trespass.

KIRBY J:   Do you have a reference to that?  We do have the Tucker – not now but perhaps your junior can find the reference and we can – we have got that in the compilation of the respondents ‑ ‑ ‑

MR GORTON:   In the appellant’s notice of contention authorities at tab 3 is the Tucker Report.

KIRBY J:   It is behind tab 5 of our compilation.

MR GORTON:   In the Tucker Report in paragraphs 22 and 23 there is reference to recommending a change in the limitation period:

for actions for personal injuries.  These, whether founded on contract or tort, ought generally to be brought within two years from the accrual of the cause of action –

The English Parliament adopted three years rather than two years for that: 

Provision should be made for exceptional cases by allowing applications to be made to a judge in chambers –

for an extension period.  Paragraph 23 reads:

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.

In passing one would ‑ ‑ ‑

KIRBY J:   That is against you, is it not?

MR GORTON:   That is against us.

KIRBY J:   Insofar as it is relevant, insofar as we are driven to look at it.

MR GORTON:   Yes, it is against us, though it is noticeable that actions for false imprisonment, malicious prosecution and defamation of character probably are not actions for damages for personal injuries, and the category “actions for trespass to the person” might or might not include personal injuries.  So that what is intended to be excluded from the category of personal injury claims are tortious claims which do not seem to involve personal injuries.  It was in effect that which Justice O’Bryan said in evidence to the Chief Justice of Law Reform Committee in 1950 ‑ ‑ ‑

HAYNE J:   It is the statute law revision committee of the Parliament, is it not?

MR GORTON:   Yes, your Honour.

HAYNE J:   We have his evidence, do we, in the respondent’s authorities, notice of contention, tab 3?

MR GORTON:   Yes, except that you are missing the one page that really matters from there.

HAYNE J:   Well, there I think we see it elsewhere, do we not?  Is there not another version of this somewhere buried in the papers?

MR GORTON:   Yes, it is in the appellant’s material relating to notice of contention at tab 3.

KIRBY J:   In the 1983 Limitation of Actions (Personal Injury Claims) Act (Vic), which is actually in the Commonwealth’s compilation in the Wright matter, there is a form of section 5(1A) which talks of:

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) –

Now, are those words in brackets still in the Act?

MR GORTON:   Yes, your Honour.

KIRBY J:   So that we have at least some clues as to what the breach of duty is envisaged to be, namely, a breach of duty by virtue of contract or by virtue of a statute.

HAYNE J:   Or read on, or otherwise.

MR GORTON:   Or beyond those things, something more than that.

HAYNE J:   Your argument depends in part, does it not, on reading those subsequent words “or independently of any contract or any such provision” as words of considerable generality?

MR GORTON:   Yes, your Honour.

HAYNE J:   Now, the alternative that you may have to grapple with is that breach of duty where the duty exists independently of contract and independently of statute would, at the time of enactment of this legislation, have encompassed cases of some kinds of occupiers liability, would it not, which at that time were not seen as subsets of the law of negligence?  I have in mind particularly the very limited duty owed to trespassers not to set mantraps and other such ‑ ‑ ‑

MR GORTON:   At the time of passing of this legislation there would have been the occupiers liability and probably the Rylands v Fletcher ‑ ‑ ‑

KIRBY J:   I think that is what Lord Griffiths actually refers to, does he not, or it might be the Irish Supreme Court.  It covers cases such as occupiers liability.

MR GORTON:   Yes, your Honour.

HAYNE J:   But sensible work can be done by these words “independently of any contract or any such provision” short of giving “breach of duty” the ample meaning of any form of tort.

MR GORTON:   Well, certainly as you look at them now, effectively no useful purpose can be attributed to them other than saying it is not only contractual duties, it is not only negligence and nuisance which are now the substantial areas of tort duty, by no means all of them, but the substantial areas that are going to give rise to personal injuries.  You have other breaches of duty that do not arise out of the contract or of tort – sorry, or of negligence or nuisance and, really, the only – certainly one of the causes of action that would fall within that is a breach of the duty of trespass.  I do not know how I can expand on it except by saying that it is clear that the intention is to go beyond negligence and nuisance.  It is clear that the intention is to go beyond contractual duties and once you go beyond those duties ‑ ‑ ‑

GLEESON CJ:   Would not a breach of statutory duty be the most natural thing you would think of in this context?

KIRBY J:   That is included in the Act.

HAYNE J:   It is specifically included, breach of duty – whether the duty exists by virtue of provision made by or under a statute.

KIRBY J:   Justice Geoghegan in the Supreme Court of Ireland said:

But the law of tort traditionally recognised particular breaches of duty which were governed by their own principles rather than Donoghue v. Stevenson.  The Rylands v. Fletcher duty, the duty to an invitee at common law and the absolute duty in respect of dangerous good or articles are all examples of breach of duty which would not always be accurately described as breaches of duty of care but which  nevertheless clearly come within the statutory provision. 

That is on page 8 of the Irish decision. 

MR GORTON:   Equally clearly coming within those words, in our submission, is the breach of duty recognised by Justice Adam and intended to be included ‑ ‑ ‑

GUMMOW J:   Wait a minute.  Justice Adam’s question would require, it seems to me, a lot of thought as to the fundamentals of the law of tort.  It is a broad assertion, so I just do not think it can be borne out.  There is a law of torts, there is not a law of tort expressing some duty notion for that bit.

GLEESON CJ:   Mr Gorton, I am not suggesting that this is the right answer and it might be an unnecessary complication, but are there some kinds of relationship which are of such a nature that an intentional trespass may be described as a breach of a duty of care?  Suppose, for example, that a nurse in a hospital physically assaults a patient, is that different in kind from a case in which a stranger walks up to somebody in the street and punches him on the nose?

MR GORTON:   We would say no, so far as the nurse or the stranger is concerned.  It might create a vicarious liability.  The nurse’s action might create a vicarious liability on the part of the hospital where she was employed, but you do not get the right to assault somebody save for where there is a consent to an assault as there is when you undertake an operation or having an injection given to you.  That sort of action by a nurse would not constitute an assault without lawful excuse.  But if your Honour is postulating the case where in hospital a nurse just randomly goes and smacks somebody for no reason at all ‑ ‑ ‑

GLEESON CJ:   Manhandles a patient with undue force.  I was just toying with the question whether there are some kinds of relationship in which an intentional trespass might be a breach of a duty of care.

MR GORTON:   Well, as your Honour has speculated, going beyond whether it is intentional or unintentional, whether going beyond the restraining powers that might be given to a person in a psychiatric ward or something of that sort ‑ ‑ ‑

KIRBY J:   Lord Denning in the earlier case of Fowler v Lanning did say that in his opinion a second ground for upholding the view there which is favourable to your viewpoint was that a trespass to the person action was covered by the expression “breach of duty”.

MR GORTON:   Yes, your Honour.

KIRBY J:   As is pointed out in the Irish Supreme Court that was a strong Court of Appeal.  It was Lord Denning and Lord Justice Diplock and Lord Justice Danckwerts.  So that on both sides and in the second Court of Appeal in Stubbings it was Lord Justice Bingham and Sir Nicholas Browne‑Wilkinson, both of whom became Law Lords, and then it came to the Lords in Stubbings and unanimously they took the contrary view and the Irish Supreme Court, knowing of Justice Adam’s decision in Kruber and reviewing it at some length, preferred the House of Lords view.  So two final courts have taken a view against the one you are urging on us.

MR GORTON:   Yes.  The Irish court said “We are not interested in what the English Parliament said about passing that Act”, but ‑ ‑ ‑

KIRBY J:   But that is against you because what the English Parliament said is a strengthening factor.

MR GORTON:   Yes.  The English court did pay regard to what was said in the English Parliament in reaching its conclusion that tort was not included, that it was intended that it – sorry, that trespass was intended not to be included.

GLEESON CJ:   I just wondered if anyone has ever considered an intermediate situation which is that some trespasses might in some circumstances be a breach of duty.  I am not suggesting it is a satisfactory conclusion, but I wondered if anyone has ever addressed the possibility.

MR GORTON:   Not that I am aware of.

HAYNE J:   Reference might be made to Justice McHugh in New South Wales v Lepore (2003) 212 CLR 511 at 572, paragraph 162 where his Honour concludes that:

Since the abolition of the forms of action, a plaintiff may, if he or she chooses, sue in negligence for the intentional infliction of harm.

His Honour cites as authority for that proposition Gray v Motor Accident Commission earlier referred to in the course of argument.

KIRBY J:   It would be an odd result in motor car cases if a person who momentarily has road rage and knocks a person down and does them grave injury cannot get indemnity for negligence and cannot be held liable in negligence.  Conventionally such people are not sued in trespass.  Maybe they should be.  But I do not quite – I am still puzzled by the question the Chief Justice asked earlier, why in those cases are defendants not sued in trespass?  From the very beginning of the motor car age they have been sued in negligence and cases such as I have mentioned have come up and been dealt with without too much question as a negligence case, breach of duty case.

MR GORTON:   I guess it has been regarded as (a) the common way of doing it since the breach of duty of care was enunciated in the negligence way ‑ ‑ ‑

KIRBY J:   Maybe third party insurance does not cover deliberate acts, I do not know.  Maybe that is why plaintiffs would prefer to sue at negligence, practicalities.  If you can find anything on that point at some stage, I would be grateful because it is relevant to this case and this statutory formula.

MR GORTON:   Yes.  Your Honour, I do not know whether there is a lot of point in me going through it in detail, but Justice O’Bryan did indicate to the committee in Victoria in 1950 and the 1955 legislation fundamentally accepted the recommendations of the 1950 committee - he was asked at page 46 of the report in the transcript of his evidence by a Mr Fraser:

The Lord Chancellor’s Committee stated that trespass to the person is not covered.  It occurred to me that that was strange because trespass to the person could be by just a tap, in one –

I cannot read the next word in my copy of it –

That is a physical injury in law. 

Mr Justice O’Bryan said, and we are talking about the equivalent section in the English legislation:

I think what was meant ‑ ‑ ‑

HAYNE J:   What words are we talking – what words was Sir Norman O’Bryan talking about there when he says “I think what was meant”?  Is he not talking about the expression “personal injuries” or “injury, personal injury”?

MR GORTON:   Yes, your Honour.  He had just been saying before that – the question in page 46, the paragraph before:

Now that the question has been raised, however, I suggest that it may be better if the phrase “injury to the person” were used.  I think that would be a clearer phrase, because in law injury is sometimes used in the sense of something that is done contrary to right.

Then he talks about “injury” and there is focus there upon injury to the person and they were discussing, as can be seen from the first paragraph – or Mr Oldham’s contribution in the left‑hand column on page 46, the Lord Chancellor’s Committee report.  That is the Tucker Report.  I have not got marked here the position in this evidence where it is explicitly stated that that is what is being talked about, but we will find that and identify it.  I am confident in saying that ‑ ‑ ‑

HAYNE J:   I read Sir Norman O’Bryan as saying that the expression “personal injuries” extends to injuries in consequence of trespass to the person.

MR GORTON:   Yes, your Honour.

HAYNE J:   How does that help you in the present debate?

MR GORTON:   Because it is in the terms of discussion of the Tucker Report recommendation about personal injuries arising out of negligence, nuisance or breach of duty.

KIRBY J:   But that does not help you because the Tucker Report we know says expressly, we mean personal injury, but we certainly do not mean trespass to the person.

MR GORTON:   I know.  That is what the Tucker Report said and what Justice O’Bryan said in the committee here was – that is what the Tucker Report says, but what we mean is that trespass to the person causing personal injury should be included in the terminology.  He is answering a question about the Lord Chancellor’s Committee:

The Lord Chancellor’s committee stated that trespass to the person is not covered.

That is the passage of not being covered that I referred to from the Tucker Report about trespass to the person not being covered.  So there was a question directed specifically as to whether trespass to the person causing personal injury should fall within the language to be used in the Victorian Act.

HAYNE J:   We find that relevant language earlier in the report at - I think it is page 9 of the report?  Yes, so numbered 953 in the top right‑hand corner, in particular in the provision of section 5(6) of the bill.

MR GORTON:   Yes, your Honour.

HAYNE J:  

No action . . . for physical injuries to the person or damage to property founded on tort or breach of a statutory duty shall be brought after ‑ ‑ ‑

MR GORTON:   Yes, your Honour.  When the legislation was adopted in 1955 there had been another report substantially relying on the 1950 report and in covering this matter in the terminology that is used still in 5(1A) and now used in 23A.  If the language is not as we say it is, the breach of duty is not to include breach of duty for trespass, then 23A of the Act does not allow the Court a discretion to extend a cause of action or extend the limitation period in respect of an action for trespass, at least not for intentional trespass, because section 23A is expressed in the same terminology as section 5(1A) and it would seem to be an odd outcome if the only tort –  fundamentally the only tort that you could not get an extension of time for was for the tort of intentionally causing harm because section 23A reads:

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) –

the same words as in 5(1A), so that to narrow them in 5(1A) would necessarily involve narrowing them in 23A to give them a broader interpretation in one should result in that same broad interpretation in the other.

KIRBY J:   What is the differential work in your submission that is done by 23A and 5(1A)?

MR GORTON:   Section 23A, where there is an injury due to an act or omission of some person and it is either known immediately or it is an obvious traumatic broken arm, whatever that might be, from there all the way through to quadriplegia, if the proceedings are not brought within six years of the damage having been caused – damage of some significance having been caused ‑ ‑ ‑

KIRBY J:   Is that not this case?  There was known that, as alleged, that your client had been physically assaulted and raped.  She claims that and therefore that would seem to enliven 23A but you abandoned that in the proceedings in the court ‑ ‑ ‑

MR GORTON:   What enlivens 23A is not that she was physically assaulted at the time, but that she suffered “a disease or disorder” ‑ ‑ ‑

KIRBY J:   But the premise to the suffering of the disease belatedly is the event that occurred in the original encounter?

MR GORTON:   Yes, certainly, it must be.

KIRBY J:   That is what is alleged.

MR GORTON:   It must be, yes, that is so, but without that disease or disorder having manifest itself upon her section 5(1A) would have had nothing to do and her right in respect of the physical injury suffered at the time of the trespass would have been barred six years afterwards or three or six years after she reached adulthood, and 23A, in its current form, if it had been appropriate, it was a different form of 23A, but the extension period of 23A applies in that sort of situation.  So that the motor car accident with clear organic problems associated with it, six years passes, no particular unknown disease or disorder or unexpected, unknown disease or disorder manifests itself, but the person has not brought proceedings, then section 23A comes into play.

Section 23A would also come into play if there was, say, a needle‑stick injury and any time after that, be it three months or three years or six years after that a disease or disorder due to that needle‑stick injury is recognised as a disease or disorder by the plaintiff, and it is attributed and she knows it can be attributed to the act or omission of the other party then the cause of action starts.  If she does nothing about that for six years from that state of knowledge existing then that cause of action is barred unless there is a right of extension granted by 23A.

Both sections 5(1)(a) and 5(1A) provide primary limitation periods.  Once those periods expire without action having been commenced it can only be commenced with leave granted under the provisions of 23A.  It has a very broad range of work to do in respect of causes of action beginning at the time fixed by either section 5(1)(a) or 5(1A).  Section 23A in its current form was introduced at the same time as 5(1A) was introduced into the Act in 1983 so that they are together.

It is also valuable to recognise, in our submission, that the New South Wales Parliament has adopted similar words of “negligence”, “nuisance” or “breach of duty” and has considered the Victorian decisions and the Court of Appeal decision in England, Letang v Cooper, and chose to include because it accepted the correctness of those decisions in a definition of “breach of duty” in the New South Wales Act a statement that breach of duty included negligence, nuisance – I do not want to do it from memory.  They define “breach of duty” when used in relation to a cause of action for damages for personal injury - I am sorry, can I read the definition without mangling it?

GUMMOW J:   What statute?

MR GORTON:   It is the Limitation Act 1969 (NSW):

“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.

So that the New South Wales Parliament when it passed that legislation it changed sections a couple of times over the years.

KIRBY J:   Do you have copies to hand up of that provision?

MR GORTON:   Yes, your Honour.

KIRBY J:   What section of the New South Wales Act and when was that introduced and how do you know it was not on the basis of the House of Lords decision in Stubbings?

MR GORTON:   We would get probably the best history of it from the decision of O’Neill v Foster - the appellant’s documentation concerning the contention under tab 11.

KIRBY J:   In a way, though, the fact that New South Wales has deemed it essential to expressly state that “trespass to the person” is encompassed in the duty rather runs against your argument that it was already there.

MR GORTON:   That would be one way of looking at it but in fact what we would suggest they did was recognise that there was an argument that it might not be included and short circuit that argument by expressly including it.

KIRBY J:   If you have the second reading speech that might also be ‑ ‑ ‑

MR GORTON:   For the history of this – I do not have the second reading speech.  There are copies of extracts of the New South Wales Act.

GUMMOW J:   There is a report by the New South Wales Law Reform Commission, which I remember well, on limitation of actions, New South Wales Law Reform Commission 3 in 1967 which led to the 1969 Act.  My recollection is it is a very thorough and scholarly report.

MR GORTON:   That is reviewed or mentioned in the decision of O’Neill v Foster.

GUMMOW J:   Yes, I know, Justice Campbell refers to it.

MR GORTON:   Yes.  He then goes through what that report deals with at pages 4 and 5 of the judgment.

KIRBY J:   Do we have O’Neill v Foster?  Is that in our collection?

MR GORTON:   Yes, your Honour, in the appellant’s documents relating to notice of contention at tab 11.

GUMMOW J:   My guess is the New South Wales Law Reform Commission had some very good lawyers dealing with this, knew there was a question mark over Letang v Cooper.  Professor Morrissey used to think Letang v Cooper was wrong, and for more abundant caution thought we had better make it clear and put in “trespass” because if a matter comes to the High Court they might not follow Letang v Cooper.

MR GORTON:   What at least was done was that the Parliament in New South Wales thought that it was appropriate to include intentional trespass in this category of cases, and if the Parliament of New South Wales has done that then it is not wrong of this Court to say that it may well have been the intention as well of the Victorian Parliament at an earlier time.  It certainly detracts from an argument that legislatures would not want to or would not intend to include “trespass” in the breach of duty concept.

KIRBY J:   I take that argument on board, but the other argument is that if they had meant to they could have done exactly as the New South Wales Parliament did because that report was of 1967 of the New South Wales Law Reform Commission.

MR GORTON:   They could have if they had not thought that it was already done by the words that they had already used.

KIRBY J:   I think we are going round in circles.

MR GORTON:   Yes.  It certainly was accepted in Victoria by the authorities binding in Victoria that that wording included “trespass” actions.

GLEESON CJ:   Do not let that clock mislead you, Mr Gorton, it is wrong.

GUMMOW J:   It is later than you think.

MR GORTON:   I was not even looking at the clock.

HAYNE J:   Time passes quickly when you are having fun.

MR GORTON:   Can I just throw in, and having regard to what your Honour has just said, may I apologise for misdescribing your Honour Justice Hayne’s title when we made reference to Mason v Mason.  I think there is little more that we can say to advance the proposition that breach of duty is intended to include “trespass”.  I do not know whether I can put a ‑ ‑ ‑

KIRBY J:   Can I ask, what did Justice Eames mean by saying that there had been criticism of Lord Griffiths’ decision in Stubbings.  Was that criticism any criticism that ‑ ‑ ‑

MR GORTON:   I have not been able to find what he is really referring to ‑ ‑ ‑

HAYNE J:   It would be a reference to Mason v Mason [1997] 1 VR 627, would it not, and Justice Callaway’s reasons in Mason v Mason, I would have thought, reasons with which I agree.  I will read up my own priors rather than you do it, Mr Gorton.

MR GORTON:   I have not referred to Mason v Mason in argument but I certainly rely on the reasoning and the reasoning process and the application of that decision, adopting the reasoning of Kruber and demonstrating that so far as the Victorian ‑ ‑ ‑

KIRBY J:   That was unanimously approved by the Court of Appeal in this case, was it not?

MR GORTON:   Yes, your Honour.  In our submission in relation to the respondent’s contention at page 4, 5.3.1, we have set out cases dealing with the words, including in a way that is found that they included “trespass” and we have the page reference set out there.  I am sure the Court does not want me to go through and read all those cases but to show that there was an abundance of authority that the words were wide enough to include “trespass” before the Victorian legislation was passed and supporting that proposition after it and Stubbings v Webb was the first case to make a contrary finding.  I think that is the end of what I can say about that part of the topic.

Disease or disorder is what is necessarily to be considered.  We have the index that was referred to yesterday to DSM‑IV, and if I could put strict conditions on the Court about returning it to me I can provide it with a copy of DSM‑IV, one copy in full, but I would like to get it back.

GLEESON CJ:   Try your luck.  If you hand it up for a moment ‑ ‑ ‑

MR GORTON:   That does not sound very promising, your Honour.

GLEESON CJ:   I am going to have a flick through it, that is all.

MR GORTON:   Disease or disorder should not be read down to mean just disease, whatever disease means.  It is no argument to say that disease or disorder should be read down to just disease by reference to the examples given in various debates all of which were patently diseases, and if the intention had been limited to pneumoconiosis or asbestosis the addition of the words “or disorder” would have added nothing to the proposition.

In our submission, the purpose of this legislative enactment was to cover physical and mental ailments which might be discovered later on than the time of the act or omission without inhibiting their character and without putting any time limit as was suggested by the Court of Appeal in this case upon the time at which they could be discovered.

The subsection requires that there be a disease or disorder before the subsection can be operative.  The subsection does not create an entitlement to a person to recover damages.  Even where it applies it deals with a limitation period, and it deals with a limitation period which is triggered by two different things or the combination of two things.  One is that the sufferer of the relevant disease or disorder knows for the first time that he or she has that disease or disorder, and the other is that it was the consequence of an act or omission or some person.

The section clearly applies, in our submission, where a person knows at or about the time of an illness afflicting them that they have the illness but do not know that there is an act or omission which is causative of it.  It applies where the person knows of the act or omission which might be causative of physical problems but does not know they have suffered from the disease or disorder as a consequence.

The subsection cannot be looked at as a subsection which requires the disease or disorder to have occurred not less than six years after the act or omission which is what seems to be said in the reasons of Justice Eames and really what was said in that respect provoked the what we would say is quite extraordinary judgment in Wright v Commonwealth where the analysis was not of what the section meant but the analysis was of what the additional words that the Court of Appeal in Clark v Stingel said should be written into the section meant when it went on to a condition could only be a disease or disorder if that disease or disorder was not known or was not capable of being known or “could not be known”, depending on which terminology is used, for more than six years after some date, presumably the causative act or omission. 

In Clark v Stingel the debate of the Court of Appeal is what is a disease or disorder, and there seems to be no reason for excluding from a disease or disorder a mental condition which satisfies the requirement of the law that there be a diagnosable mental condition rather than ordinary human reactions of distress or anxiety.

Once the condition reaches the established identifiable state as a mental disorder, it would trigger the potential operation of section 5(1A), and further inquiry as to when it was discoverable is only relevant in respect of the question of when the plaintiff first had knowledge of that disease or disorder.  It is not a relevant proposition as to whether the disease or disorder itself could fall within the terms “disease or disorder” depending on when it was first discoverable.

KIRBY J:   It appears from reading Justice Eames’ reasons that he was trying to give the provisions of the Act an interpretation that would be comfortable with the circumstances that had led to these provisions and repeatedly the committees that explained their purpose referred to conditions such as mesothelioma and asbestosis and he said that, plus the word “contracted”, was apt to restrict to that kind of condition which might have involved some trauma or insult to the body at a time but which typically do not manifest until many years later.  As I understand it, your submission is so what.  In your case this is a disorder.  There was insult at the time - did not manifest it till much later.  All that is different is that this is psychiatric and not physical and we have passed the times of drawing distinctions between physical and psychiatric conditions.  They are both disorders, and this is actually called a disorder.

MR GORTON:   Yes, and this sort of thing was called a disorder at the time all this legislation was passed so that it is not a new concept that it might fall within disease or disorder.

KIRBY J:   This document you have handed up, exhibit E, that is the list of the United States recognised psychiatric conditions, is it not?  Is there any evidence this is accepted in Australia because there have, over the years, been matters that have slipped in and out of this list and sometimes Australian psychiatry has taken different views to the views of the United States psychiatric associations?  You have not put a cover on this so I do not quite know exactly what it is.  You should have photocopied the cover. 

MR GORTON:   We got this from the Commonwealth and that is all we got and I am not sure whether ‑ ‑ ‑

GLEESON CJ:   Your personal copy of DSM at introductory page 37 contains a cautionary statement which is to the effect that it is to be understood that inclusion here for clinical or research purposes of a diagnostic category does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease, mental disorder or mental disability. 

HAYNE J:   These are subjects I touched on in dissent in Tame v New South Wales 211 CLR 317 at 416, paragraphs 293 to 294 by reference to DSM-IV’s treatment of post-traumatic stress disorder and the imperfection of the “fit between” the diagnostic manuals and legal requirements.

MR GORTON:   We are not relying on DSM-IV other than to say two things, I think.  One is that, as far as the introduction is concerned, there is frequently a cross-over between physical and mental and it is hard to be sure whether what you have is physical or mental so that a disorder categorised as mental may well have physical problems associated with it.  Other than that, we say that its only purpose is to show that there is recognised terminology for psychiatric conditions which is use of the word “disorder” and that it does not necessarily satisfy the term “disease or disorder” to have, say, alcoholism which was thrown up almost in passing, I think, yesterday.  It may well, as alcoholism, fall within the term “disease or disorder” but we say when you have a disease or disorder situation you need to look at section 5(1A) first to see whether there is a bar on a limitation period for bringing the cause of action.

KIRBY J:   Your mention of alcoholism does highlight the importance of this case because if people can come to courts 40 years or 30 years after a trauma and say, “That caused me to become alcoholic”, that could be a very large number of persons.

MR GORTON:   It is unlikely that it would be a very large number of persons because if it is 40 years after the event and alcoholism has just become discoverable at that time ‑ ‑ ‑

GLEESON CJ:   What about people who say, “It caused me to become a heavy smoker and look what’s happened to me now”?

MR GORTON:   My understanding of the leading psychiatrists about stress and smoking is that they will not accept a cause and effect between stress and smoking.  They might accept a cause and effect between a psychiatric condition and substance abuse but not including smoking.  But the alcohol problem is not the sort of disaster potential that your Honour Justice Kirby almost suggested a moment ago. 

KIRBY J:   It is not determinative, I agree, it is just that we have to test the propositions by where they lead.

MR GORTON:   But that test, in this case, assuming alcoholism was capable or identified by some medical practitioner as a disorder of a physical or mental kind, the time from which an action can be brought and from which it is accrued is from the time the person first noticed that he suffered from the personal injury so he is likely not to come into the grip of alcohol 40 years after the event.  If he is coming into the grip of alcohol it will be coming into the grip of alcohol relatively soon after the event, as a matter of probability, and in testing the section you should say that because he would have known that he suffered those injuries, the disease or disorder a long time before 40 years, the scenario is at least unusual. 

In looking at the section and applying it, it is important to keep in mind that those two paragraphs, (a) and (b) are there and trigger its operation.  There are three things that are necessary.  One is that there be a disease or disorder which is suffered by a person and the other is the acquisition of knowledge of that and of a causative act or event.  Those latter two aspects reduce the area in which section 5(1A) will operate.

GLEESON CJ:   The strength of your argument may lie in the difficulty of finding some kind of limitation on the words that does not carry them to where you want to go.  The argument against you seems to involve reading into the statutory words some qualification based on an assumption about legislative purpose.

MR GORTON:   And in trying to read in words, at least in the attempts that have been made so far in the Supreme Court in Victoria, the line is not a clear line that can be easily drawn as to what words you read in and what the intention might be.  In Mazzeo, which was the first Full Court decision that looked at the question, Justice Chernov, with whom President Winneke agreed, drew the dichotomy between traumatic injuries and non-traumatic injuries.  That, in our submission, cannot be right because silicosis, itself, in one approach at least, is a traumatically caused injury.  It is not an extreme blow to the body but it is the entry to the body of small particles which have, by contact with lung tissue, a deleterious effect on it.  In Cartledge v Jopling there is a description of the sharp particles cutting into the tissue so that trauma and non-trauma as a cause is not a good way of identifying what can fall within “disease and disorder” and what should fall without it. 

GLEESON CJ:   Presumably, when Parliament chose the expression, “disease or disorder”, it did so in the understanding that medical science is developing and our knowledge of the way these conditions develop changes. 

MR GORTON:   We would make that submission, your Honour.  In our outline of submission at page 13 and following, we looked at the judgments in Mazzeo and Wright v Commonwealth to some extent and in paragraph (g) on page 15 of the submission we have set out criticisms that are made of the various lines that are sought to be drawn.  I do not see a great deal of point in trying to expand on that, but we do rely on those matters.

GLEESON CJ:   No, I think we have those arguments.

KIRBY J:   Who was the third judge in Mazzeo?  Do we have that? 

MR GORTON:   Justice Tadgell.  Justice Tadgell was critical of the analysis made by Justice Chernov ‑ ‑ ‑

KIRBY J:   Getting unanimity in this area is difficult indeed.

MR GORTON:   If you would adopt what Justice Tadgell said on this Court, a very wise decision would be made, in our submission, and that is that the way to interpret this section is to give the words the plain ordinary meaning they have and each case will depend on whether there is a disease or disorder identified in that piece of litigation and the question will be asked, “When did the plaintiff first know of it?” and “When did the plaintiff first know of the act or omission?”, and if you get answers favourable to the plaintiff, the cause of action date will be identified, if you get answers unfavourable to the plaintiff, the plaintiff will not have reliance on the subsection.

Again, we have referred to it in the special leave application.  We refer again to the sound criticism, or what we would term criticism, of the Clark v Stingel decision in the footnotes of Justice Ashley in

Wright v Commonwealth.  That is our authorities for the appeal at tab 18 dealing with questions of medical matters and his experience over the years of proving dates of onset of injury and similar conditions.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Gorton.  Yes, Mr Stanley.

MR STANLEY:   If the Court pleases.  Can I first deal with some of the matters that have been raised in discussion with my learned friend and turn first to the matter raised by the Chief Justice where a person suffers a physical injury at the time of the traumatic event and, subsequently, they suffer some psychiatric or other injury at a long time in the future. 

There are three situations that we say are relevant, but the primary principle is the plaintiff only has one cause of action for personal injuries, whether they be physical or mental, one cause of action.  He also, if he happens to be the owner of the car that is damaged, has a cause of action, of course, for the property damage.  So far as injuries are concerned, it is one cause of action not two.

If he suffers physical injury and brings a claim with respect to that physical injury, a broken leg or whatever it might be, and that claim is finalised, his cause of action is completed.  It does not matter what happens to him, 10, 15, 20 years later, what complications may arise whether they arise from the physical injury to the leg itself in that it may develop complications that may subsequently mean removal of the leg or whether it involves psychiatric aspects that may in some way be related to the original trauma of the accident.  The cause of action has gone ‑ ‑ ‑

KIRBY J:   Conventionally, it has cut both ways, has it not?  If the plaintiff gets better then that is to his advantage and if the plaintiff gets worse, that is just bad luck.

MR STANLEY:   In, for example, asbestos-related cases, plaintiffs will claim damages for the risk that they may sustain either lung cancer as a result of the asbestos exposure or mesothelioma. 

GLEESON CJ:   That is why some of the dust diseases legislation around Australia, by legislation, permits people to come again.

MR STANLEY:   Exactly, yes your Honour.  Aside from that, if you are bringing the claim in Victoria you have to make, as a head of your particular of injury, the risk that you may suffer mesothelioma and that is encompassed in the assessment of damages.  But, in the ordinary case say of a physical injury where the plaintiff comes to court with osteoarthritis in a hip, for example, and there is a risk of complications ensuing in the future, that risk of course has to be taken into account.  Whether it eventuates or not is another matter, but the point is, if it does eventuate, it is too bad for the plaintiff.  In the same way, we would say, if the claim having been resolved, psychiatric injury comes later on, it is just too bad for the plaintiff.  The principle of finality of litigation has to be complied with.

The second situation, however, is where despite the fact that physical injury has been suffered, the plaintiff does not, for whatever reason, bring proceedings but then, 15 or so years later, outside the limitation period, a condition does then occur, whether it be a physical condition or a mental condition that can be causally related to the original accident, act or omission that gives rise to the claim.  In that situation the plaintiff is clearly out of time with respect to that subsequent injury but the legislation provides a remedy.  The clear remedy is section 23A.  He comes along and says, “I want the court to exercise its discretion in my favour and grant me an extension of time within which to bring the proceedings because I didn’t know about the subsequent injury or illness during the limitation period and, therefore, I obviously couldn’t bring my proceedings”.

KIRBY J:   When did the predecessor or when did 23A go into the Act?

MR STANLEY:   There was what we call the old 23A, came in in 1972.  That, as we will see later on, was in many respects a difficult, unworkable and complicated section with the result that it was subsequently amended with the introduction of what we call the new section 23A in 1983, which was part of the legislative package that included section 5(1A).  So from 1972 there has been a provision whereby an extension of time could be sought.  Since 1983 there has been this additional section, or easier section, which relates to causes of action that accrued after May 1977, that is six years back from the date of the proclamation of the 1983 Act.

That is why, we say, just to interpose, in every one of the cases that has been referred to in the argument and in the submissions, in every one of these the plaintiffs, or persons suffering these post‑traumatic stress disorders, either have or had the right to bring an application under section 23A for an extension of time.  Indeed, that is exactly what the woman who alleged that she was also assaulted by the respondent - this is referred to in the transcript of evidence.  It was one of the reasons that motivated the appellant to ultimately pursue the matter further when she became aware of the fact that – I am not sure whether she knew the other woman, I think she did, may have even been related – she had made allegations similar to hers as against the respondent.  That woman, McGuinness, she also wanted to bring a claim for damages against Mr Clark.  She brought her claim but sought an extension of time under section 23A.

KIRBY J:   Let us call her Ms McGuinness and Mr Clark - they are both given the same appellation.

MR STANLEY:   Thank you, your Honour.  Ms McGuinness sought to bring a claim by making an application for an extension of time under section 23A.  That matter was heard and evidence was led as to the issues of prejudice to both sides and ultimately it was determined that, because of the effluxion of time and other matters, it was not possible for there to be a fair trial and Ms McGuinness lost her application.  That is how the Court of Appeal determined the matter.  In that case, the recourse to section 23A was followed and, indeed, in this case, when proceedings were first issued there was on foot both an application for an extension of time under section 23A and also the argument that the claim came within the provisions of section 5(1A).

The third situation that may occur where there is, say, a car accident and psychiatric problems occur many years later, if the position is that there was no physical injury but psychiatric injury, let us say post‑traumatic stress disorder, of the delayed type did not occur until many years thereafter then clearly the cause of action does not arise until the injury is suffered, until the post‑traumatic stress disorder is suffered, and from that time of course the plaintiff has six years to bring proceedings under section 5(1)(a), no need for any extension of time, no need for reliance upon any disease or disorder provisions.

KIRBY J:   Is there not a problem, which was highlighted in Jopling, that there may be a difference between the time when the disorder commences and the time when the plaintiff knows that the disorder commences.

MR STANLEY:   Your Honour, with respect to post‑traumatic stress disorder, than can hardly happen because post‑traumatic stress disorder does not exist until such time as the symptoms are present and there is such a constellation of symptoms – and that is the words of the psychiatrist and psychologist – are present together so that the diagnosis of post‑traumatic stress disorder can be made.  That, with respect your Honour, is relevant to the matters your Honour put to Mr Gorton when you were endeavouring to suggest to him what the fundamental basis of the appellant’s claim is and your Honour said typically no symptoms with the disease or disorder until many years later, and on that basis it is reasonable for the appellant to bring the claim under section 5(1A) because the symptoms of the post‑traumatic stress disorder did not occur until many years later.

Your Honour, there is a very big difference, we submit, between the issue of post‑traumatic stress disorder and the other injuries or illnesses or diseases, such as asbestosis and mesothelioma.  Post‑traumatic stress disorder of a delayed type just does not exist until there are symptoms.  The reason it does not exist is because the constellation of symptoms constitutes the disease so it is not a case of the sufferer having some symptoms that are not diagnosable or that are not known.  The condition simply does not exist until all those symptoms are experienced.

CRENNAN J:   Are you saying that an adjective like “latent” as in the expression “latent disease” does not apply to that particular disorder?

MR STANLEY:   No.  Latent disease does not at all, your Honour.  It is not a latent disease as distinct from mesothelioma.  There is no latency period.  There are three sorts of post-traumatic stress disorder diagnosable according to the DSM-IV.  There is acute.  First of all, the condition has to last for more than a month.  There has to be constellation of these symptoms for a period in excess of a month. The most common situation is the acute form where it occurs very shortly after the exposure to the trauma and it lasts up to three months.  If it lasts more than three months, it is diagnosed as chronic.  Then there is the very rare case of PTSD of delayed onset.  It is not a situation where there is something bubbling along under the surface.  It is as though there was nothing and then suddenly some event triggers something in the mind and the problems all arise, all flow out.  Some people have perhaps heard it used as an example of that if you look at some Holocaust victims.  They are able to go on and lead a perfectly normal life until some event occurs that excites the mind or the brain in a way that they ultimately suffer significant symptoms.  Of course, for the disease ‑ ‑ ‑

KIRBY J:   I understand that is what the appellant claims here, that she saw television footage and that activated feelings of resentment that she felt and that therefore - is it your contention that from that moment on she had three years within which to bring the action without any need of 23A or any need of 5(1A)?

MR STANLEY:   No, your Honour, not in her case because the cause of action is in trespass and her cause of action ‑ ‑ ‑

KIRBY J:   That is the notice of contention point, is it?

MR STANLEY:   We would contend that in her case - the claim being in trespass, her cause of action expired after six years after the actual trespass but ‑ ‑ ‑

KIRBY J:   That is hard to reconcile with what you have just been telling us, that your theory is with post-traumatic stress disorder that it is a new cause of action so long as there has not been a merger in judgment of an action on the trauma which arises when the very diagnosis of constellation of symptoms occurs.

MR STANLEY:   Your Honour, I have been dealing with three situations following a car accident, a situation where there is negligence, where there is no cause of action until such time as the injury is inflicted or suffered.  That is where I have been directing my attention.  So what we would say is that in the case of where there is a negligently caused post-traumatic stress disorder of delayed onset, the cause of action does not arise until such time as the symptoms are such that the condition can be diagnosed and from that time that the person has six years.

Another issue was raised yesterday as to the limitation period for this particular appellant.  She was, the evidence would suggest, in the custody of her parents at the time of the incident and on that basis the limitation period as it applied then would simply have been a period of three years from the date of the alleged assault.  If she were not in the custody of her parents the three year period would run from the time she turned 18 but, as was indicated yesterday, in either event the limitation period has long since expired and to bring her action on foot she required either to come under section 5(1A) or to make an application for extension of time.

As to the issue that was discussed this morning as to whether a deliberate assault, say, with a car, for example, should be properly construed or pleaded in negligence or trespass, although the overwhelming practice has been to plead these actions in negligence, there have been some cases where that has not been followed.  The general reason is, as I appreciate it, that it is an attempt by the plaintiff to claim exemplary damages.  The case of Lamb v Cotogno (1987) 164 CLR 3 is a case in point.

KIRBY J:   That came to this Court from the Court of Appeal of New South Wales.

MR STANLEY:   Yes, it did, your Honour.

KIRBY J:   That was a case of a person deliberately running over a plaintiff.

MR STANLEY:   The process server I think was coming to serve the process and the defendant in effect deliberately ran him over or picked him up and he was on the bonnet of the car trying to hold on and the driver drove sideways and ultimately threw him off and the claim for exemplary damages was made and it was upheld.  There was concern generally at that stage as to whether the authorised insurers of motor vehicles would cover defendants in respect of exemplary damages and to ‑ ‑ ‑

KIRBY J:   You better give us the citation of Lamb v Cotogno.

MR STANLEY: It is (1987) 164 CLR 1.

KIRBY J:   I think it came up here on the rather limited question of whether exemplary damages was available in that case by analogy with statute and that was whether the common law of trespass would develop by analogy with the statutory provisions abolishing exemplary damages in cases of negligence.

MR STANLEY:   Yes.  The Court held that exemplary damages were available in torts.

KIRBY J:   Yes.  Somewhat similar questions arose in Gray v Motor Accident Commission that the Chief Justice mentioned earlier this morning.

MR STANLEY:   Yes, your Honour.  Perhaps in one sense the motor vehicle accident cases, whether they are deliberate or not, can be put to one side because they are only ever pleaded in trespass, I would submit, if there is another good reason or thought to be good reason to do so such as the matter we have just been looking at.  Where it is a case of a deliberate assault, for example, a rape, we would say that using the words of Justice Elwes, I think it was, in Letang v Cooper at first instance and quoted by Justice Geoghegan in the Irish case of Devlin where he said that to talk about the rape being properly described as a cause of action in negligence is not to use the language of precision known to the law, and we would say that that is the case here.  Whilst in theory one might be able to argue that there has been clearly a breach of a general duty in any assault whether by person or by car, it is not the way that common lawyers talk about those causes of action.  Rape and assault are actions in trespass to the person.  Driving someone down with a car deliberately is an assault, although maybe ‑ ‑ ‑

KIRBY J:   The suggestion is that it may not be negligence and it is not nuisance but it is a breach of a duty, a duty not to rape somebody.  That is the suggestion.

MR STANLEY:   Yes, your Honour.  I will be coming back to that issue if I may later on separately and deal with the issue of breach of duty separately.  I just wanted to at this stage respond to some of the matters that have been specifically raised.  Also in discussion my learned friend raised the situation with the sexual assaults that occur in religious institutions and schools and so on, as though they are cases that are particularly deserving.  No doubt they are but every one of them has the right to bring an application for an extension of time under section 23A, in which case the justice of the situation would be looked at.

KIRBY J:   It is not unknown for statutes, including statutes of limitation, to give people alternative avenues to paradise to bring claims in the alternative.  I think that comment by Mr Gorton on children in institutions who have been subjected to sexual abuse was made in answer to my contention that we have to keep our eye on the position of people who are not insured and are not in institutions and face 30 years later an action of damages from which they have to find the resources themselves.  That is pointed out by the Wright Case too, that there is a whole multitude of circumstances in which these problems can arise, not just ordinary people, institutional cases.

MR STANLEY:   It is very easy to be emotive about this and talk about schoolchildren sexually abused who are not going to get justice because of the effluxion of time.  We say that is not the position at all.  They have their right to seek an application under section 23A.  That is what the section is there for, we would say.  On another matter your Honour Justice Kirby raised the ‑ ‑ ‑

HAYNE J:   Your hypothesis is that that must be that that right under 23A does not extend to seek extension of time against the intentional wrongdoer because if you are right about 5(1A) not extending to trespass, 23A does not extend to trespass and the extension can go only in support of an action against those who were careless of a duty of care, not against the intentional wrongdoer.

MR STANLEY:   Yes.  As against the intentional wrongdoer, the period of limitation is extended to six years rather than three.  But of course, most if not all of these actions involving students and sexual abuse claims against religious authorities involve not the actual perpetrator ‑ ‑ ‑

HAYNE J:   No, they are against the ‑ ‑ ‑

MR STANLEY:   Yes, and they are brought under different causes of action.

KIRBY J:   I think it is Justice Eames who pointed it out that that was an odd result, that you could sue the mother for neglect of care but not the father for abuse of the child.  I think that was in one of the cases that comment was made.

MR STANLEY:   That comment was made in the case of KR & Ors v Bryn Alyn Community (Holdings) Ltd.  Now, I am not sure whether that is included in someone’s authorities but ‑ ‑ ‑

KIRBY J:   I thought it was at the end of Justice Eames’- he makes a similar comment in this ‑ ‑ ‑

MR STANLEY:   Yes, he does, your Honour.  What he is referring to is what was said in the case of KR & Ors v Bryn Alyn Community (Holdings) [2003] EWCA Civ 85, which was a decision of the England and Wales Court of Appeal, and at paragraph 100 the judgment refers to the case of Seymour v Williams [1995] PIQR P470 Court of Appeal.  That is the case where the matter referred to by Mr Justice Eames was described, so that is the source of his Honour’s concern about perhaps an unfortunate result or an inconsistent result that may follow.  Reference in the KR decision in paragraph 100 is that following that decision in Seymour v Williams there was an invitation by some members of the court to the Law Commission to consider the anomaly and it has done so and it made a recommendation with respect to child abuse cases that they be subject to the same regime of the limitation period as actions brought in negligence.

May I now turn to our submissions in respect to the issue of what is meant by “disease or disorder”.  The summary of our submissions is set out in paragraph 5.1 of our written submissions at page 3.  What we say is that the words “damages in respect of personal injuries consisting of a disease or disorder contracted” in section 5(1A) of the Act applies only in relation to insidious diseases the contraction of which could not have been known by the victim at the time and which were not productive of symptoms at the time of the contraction or within the limitation period but the symptoms subsequently become manifest when the disease becomes florid.  So it is a question of symptoms not being experienced until the limitation period has passed.

GLEESON CJ:   I have a slight difficulty with that, Mr Stanley.  It seems not to be a definition of “disease or disorder” but simply another way of expressing the consequence described in the closing words of the provision.  Is it not just another way of saying that we are by hypothesis concerned with something that was not known to the complainant within the limitation period?

MR STANLEY:   Your Honour, in our submission, that really is at the core of my learned friend’s submissions and it is not correct because what we say is the Court must first of all look at the words “disease or disorder” and make a decision whether the condition that is being complained of, the personal injury, comes within the meaning of “disease or disorder”.  It does that before it looks at question (a) and (b).

GLEESON CJ:   But to use the adjective of “insidious” is just to notice that by hypothesis we are talking about a disease that was not known to the complainant within the limitation period.  That is to say, it was insidious.

MR STANLEY:   Yes.  It was not known because it was insidious but, your Honour, that is one factor but there is (b) as well; the issue of causal relationship has to be considered. What we submit is that you must first of all look at the question of disease or disorder quite apart from (a) and (b).  Now, I appreciate (a) is in very similar terms to the definition that has been applied but a disease or disorder should be looked at and determined generically.  There will be some diseases or some injuries that in every case will come within the meaning of “disease or disorder” and we include within that mesothelioma and asbestosis, pneumoconiosis and so on.  Evidence does not have to be called to show that they are insidious diseases, the symptoms of which are not and cannot be experienced by the recipient or victim until more than six years.  It does not have to be called because it is now taken as read but if this was the first case that was being heard after the introduction of this section, one could imagine that you would have to prove that mesothelioma was a disease or disorder of an insidious nature in the relevant way.

GLEESON CJ:   Are there not some kinds of disease that are sometimes insidious and sometimes manifest themselves immediately?

MR STANLEY:   We would submit no, your Honour.  The whole purpose of this section – it is an exception to the rule.

HAYNE J:   Exception to what rule?

MR STANLEY:   The rule is six years for actions in tort.

HAYNE J:   Take the words.  It is a deeming of the date on which cause of action accrued.

MR STANLEY:   Your Honour, it does not give a cause of action.

HAYNE J:   That may be so but what is the rule to which it forms an exception?

MR STANLEY:   Your Honour, the rule, we submit – and I can refer your Honour to a description by the President of the Court of Appeal in the case of Mazzeo to this very effect.  The rule is six years, then there is an exception to that provided by section 5(1A) and there is an extension provision provided by section 23A.  That was the legislative package.  It was brought in in 1983.  The rule for limitation period for contract and tort is six years and we would submit that the principles underlying the need for limitation period require that there be a benchmark or a standard that applies.  Here we say it is six years.

It should only be, we say, only in exceptional cases that this exception should apply.  We say that when one turns to the purpose for which the section was introduced and the way in which it was intended it should work in conjunction with section 23A in particular.  I will come to that shortly.

HAYNE J:   Just before you depart from that, is your use of the expression “insidious disease” any more than an attempt to encapsulate the application of 5(1A) to what you see as the universe of current medical knowledge about disease and disorder?

MR STANLEY:   Yes, your Honour.  It may be that the width of injuries or conditions that come within the definition of “disease or disorder” will expand as medical science progresses, but certainly ‑ ‑ ‑

GLEESON CJ:   If the present appellant is right in what she alleges happened in every respect, why is not her case of post‑traumatic stress disorder just as insidious as a case of mesothelioma?

MR STANLEY:   With mesothelioma the condition is there in the person’s body without symptoms for many, many years.  There is a latency period of maybe 35 to 40 years even.

KIRBY J:   But can it not be said that post-traumatic stress disorder is there somewhere, a place we do not know, in the mind that is just waiting a triggering event to bring it forward?

MR STANLEY:   Your Honour, that is not the medical evidence.  The medical evidence is that it only exists when the symptoms are present.

KIRBY J:   Yes, but something triggers the symptoms that apparently links them to the original trauma.  At least, that is the theory of post‑traumatic stress disorder.

MR STANLEY:   But they were not there before the trigger.

KIRBY J:   The symptoms may not be there before the trigger but neither was the symptom of debility and difficulty in breathing and all the other symptoms that people with mesothelioma suffer.

MR STANLEY:   Exactly.  That is why it is an insidious disease.  They have no warning, they have no knowledge, they have no symptoms.

KIRBY J:   Exactly, but this is why it is said that post‑traumatic stress disorder is an insidious disease, because it is linked with an original trauma, it does not come forward in some cases until very much later but then springs forward because some event triggers off something which is there in the synapses of the brain and come forward as symptoms at some later time.

MR STANLEY:   Your Honour, the medical evidence indicates clearly, we would submit, that post‑traumatic stress disorder of delayed type is not a latent disease.  It is not something that will inevitably happen as the symptoms progress.

KIRBY J:   Similarly with mesothelioma.  We saw in Della Maddalena, a recent case in this Court, that people who have been exposed to asbestos alongside those who develop mesothelioma and die of it do not necessarily develop it straight away or do not necessarily develop it at all.  It is just curious.

MR STANLEY:   Of course, your Honour, but those who do develop mesothelioma once they contract it, it will progress and they will die of it unless they die of some other cause in the meantime.  That is the difference, we would submit.

KIRBY J:   I just have a concern that your theory is a theory which resonates with 19th century notions that there is mind and body and that conditions of the mind are really not serious matters and we do not have to worry about them.

MR STANLEY:   Your Honour, with the greatest of respect, I do not consider that at all and my submission does not entail that but it does entail the task upon the person who seeks to bring themselves within the peculiarly beneficial effects of section 5(1A) that they are able to show that the condition for which they are claiming damages can properly be described as “disease or disorder”.  It may well be that there are some mental conditions that would come within the Act.

KIRBY J:   I thought you put emphasis, and I think you did in the special leave application, “disease or disorder contracted”, because this is called a disorder - post‑traumatic stress disorder - so it is a disorder.

MR STANLEY:   We conceded then and we concede now, viewed objectively and on its own it is a disorder.  The question is:  is it a disorder for the purpose of section 5(1A)?  We say it is not.

KIRBY J:   Why?

MR STANLEY:   We say it is not because it is not an insidious disease in the sense that it has symptoms that are progressing over a long period beyond the limitation period which were not known and could not have been known by the sufferer.

HAYNE J:   That seems to hinge about the fact that an important element, PTSD, is self‑reported feelings.

MR STANLEY:   The diagnosis has to be made.  This is the whole way in which the appellant’s case was argued at first instance, that the condition did not exist.  She did not suffer a psychiatric condition until 1999 at the latest.

GLEESON CJ:   But the section does not say the disease or disorder has to be contracted within the limitation period, does it?

MR STANLEY:   No, it does not, your Honour.

GLEESON CJ:   Well, “contracted” means contracted at any time.  How does it assist your argument to point out that she did not contract this disorder until the year 2000?

MR STANLEY:   We rely upon what Mr Justice Eames and the majority of the court below determined in looking at what is meant by the word “insidious”.  If the symptoms are contracted and known within – let us take the ordinary case, the case of either acute or chronic post‑traumatic stress disorder.  It is a condition, the symptoms of which are present and exist, well within the limitation period.  In that situation it would not be a condition that it requires the application under section 5(1A) or under section 23A.  The cause of action is known, it is there and exists before the limitation period expires.  The section is only concerned to counter the mischief that was being experienced by cases particularly in Victoria of asbestosis and particularly with mesothelioma.

HAYNE J:   Do you understand the plaintiff’s case to be that she first contracted a disorder in 1999 or 2000?

MR STANLEY:   Certainly, your Honour.  That is the way the case was put.

HAYNE J:   So it is her case that the disorder was contracted then and that she first knew of it then?

MR STANLEY:   Yes, your Honour.  That, we would say, is beyond argument.  That is clearly the situation.

CRENNAN J:   But are you not reading down the literal words of the section by reference to the mischief or the extrinsic materials?

MR STANLEY:   Your Honour, I want to take the Court to the extrinsic material because clearly that, we would say, is relevant in determining what was intended by the legislature at the time that the section was introduced.

GLEESON CJ:   There is an ambiguity in that word “intended”.  The fact that the legislature had some particular problem to the front of its mind at the time it enacted this legislation does not necessarily mean that its intention was to deal only with that problem, especially in an area where, with a little modesty, the legislature might have understood that there may well exist problems beyond its comprehension at that time.

MR STANLEY:   That may well be so, your Honour, but it is clear, we would submit, by looking at the extrinsic material that there was in 1983 a particular problem.  This is made clear by the literature.  What had happened, by the late 1970s mesothelioma had started to be a problem in civil liability cases in Victoria.

GLEESON CJ:   How many other things might there be like mesothelioma that we do not yet know about?

MR STANLEY:   I do not know, your Honour.  It is a matter for medical science and taking each case as it comes.

GLEESON CJ:   But when we find out about them they will not have to amend this section, will they?

MR STANLEY:   No, they would not, your Honour.

KIRBY J:   Like mobile phones with all those signals that we are told are completely innocent.  What if later we find they are not?  It would be a very good reason not to have a mobile phone.

MR STANLEY:   Your Honours, we are not able to say where the limits are in terms of which disease would come within the meaning of the words in the section.  We can say some that do that are known and we can say some that do not.  We can say that post‑traumatic stress disorder, whether of delayed onset or chronic or acute, cannot be a disease or disorder for the reasons that we have advanced before, because the symptoms are known at the time the disease is contracted, as distinct from mesothelioma and asbestosis and lung cancer where it is not.

KIRBY J:   You have to accept that there has been a difficulty in the Court of Appeal in finding a formula that marks out the boundaries.  Justice Chernov gave it a try and that was criticised and Justice Eames had at least three formulae.  In the Court of Appeal in the Wright Case they had to struggle with those various formulae.  So it is a very unstable principle at the moment.

MR STANLEY:   Your Honour, we accept that.  Clearly there has been some slight difference.  We would respectfully say that Mr Justice Chernov got it very close because it is only in what might be called the extreme case that traumatic cases can be causally related to a disease or disorder within the subsection.  Justice Eames gave the example of asbestos fibres falling down from the ceiling, if a ceiling collapses and asbestos fibres come down and hit the person with the result that he inhales some and suffers an asbestos‑related disease.  Whilst that might have some simplistic appeal, we would submit that it was not the falling down from the ceiling, the trauma of being hit by the asbestos that was the causal factor, it was the actual inhalation and the physiological changes that occurred within the body.

That might be explained, as Mr Gorton did, as constituting a traumatic event.  We would submit that really it is stretching things a bit far, but at all events, to overcome the chance that that might be so stretched, Justice Eames and the majority refined the test somewhat so as to take into account the sort of situation envisaged by my learned friend and indeed by Justice Eames with his example.

GLEESON CJ:   That seems to involve two steps.  One is that mesothelioma is the paradigm of the case to which section 5(1A) is directed.  Secondly, all other forms of disease or disorder covered by the section have to conform to the paradigm.

MR STANLEY:   We are happy with that, your Honour.  Mesothelioma was being diagnosed commonly enough by the late 1970s because the blue asbestos that had been mined in Wittenoom in the early 1950s was then being used in building products throughout Victoria in the early 1950s also, with the result that with the latency period, mesothelioma was in effect coming on stream by the late 1970s.  The solicitors acting for plaintiffs were having considerable difficulty, increasing difficulty, with the application of section 23A because of the difficulties in making the application and the time that was involved.  You had to make the application before you could issue the writ.  There was a requirement in the Full Court in the case of Bestobell v Carden determined that they could not apply a nunc pro tunc rule, it must issue the writ first – sorry, you must make your application for extension of time, get that and then issue your writ.

What was happening is these people with mesothelioma were dying.  The survival period between diagnosis and death was averaging 10 to 12 months and they were dying.  As a result of that, pressure was put upon the Law Institute, and this appears from the material that is before the Court in the report of the subcommittee of the Chief Justice’s Law Reform Committee.

KIRBY J:   Is that why Professor Luntz asked them to look at the matter globally?

MR STANLEY:   Yes, your Honour.  Your Honour will see on that first page there under the heading of “TERMS OF REFERENCE”, it is noted that:

The request originated in a recommendation by the Law Institute of Victoria to the Attorney‑General that a similar provision to s. 2D of the UK Limitation Act 1975 be introduced in Victoria.

That section of course was the one that gave the court a very wide discretion, a much wider discretion, it was thought, than was provided by the old section 23A in Victoria.

So it was in that background that these amendments to the Act were brought in.  We would say it was no accident at all that it was not until eight years later with the case of Perry v Royal Women’s Hospital that this issue first was decided by a court.  Up until that time it had been understood and the practice was you used it for mesothelioma cases.  Pneumoconiosis cases, I cannot recall one in Victoria, certainly not over this period.

KIRBY J:   Yes, but this gets back to the Chief Justice’s observation to you that we are sitting here not to construe the history or what people thought was going to be done.  We have the legislation.  That is what Parliament has given its authority to.  The basic problem is that when you attempt to draw a boundary, you run into the problems that Justice Chernov did and that Justice Eames did.  I think we are entitled to ask you to say exactly what boundary you adopt and then we can test that against whether it fits with the statute.  If it does not fit with the language of statute, the fact that the legislators sitting on their benches in Parliament did not expect that it would is not really to the point.  If the language is broad enough and if its general purpose is wide enough, then new understandings and new appreciations of diseases and disorders will engage the section.

MR STANLEY:   Your Honour, we adopt the meaning and the extensions put on it by the Court of Appeal in this case.  Essentially that means that it relates to insidious as distinct from frank diseases or disorders and insidious meaning ones where the symptoms are not and cannot be known by the sufferer during the limitation period.

KIRBY J:   I just do not see why post‑traumatic stress disorder lying there somewhere awaiting something that will trigger it off is not insidious.

MR STANLEY:   With respect, I endeavoured to answer that to your Honour before.  As distinct from mesothelioma and asbestosis, there are simply no symptoms there until the condition occurs and the condition does not occur until the symptoms are there.

KIRBY J:   As I understand one of the judges who gave a decision I think after this, it may have been Justice Ashley in Wright, said that sitting there and hearing these cases and, as the judge said, presenting them, it is a very unstable line to draw because in most mesothelioma cases, as I understand it, the person just does not have any symptoms.  They just do not know they have this “insidious condition”.

MR STANLEY:   That is so, your Honour.

KIRBY J:   I just do not see the stable line to distinguish that from a mental disorder such as post‑traumatic stress disorder.

MR STANLEY:   Your Honour, if you have post‑traumatic stress disorder, you know it because it is the symptoms that you are suffering that constitute the condition.  If you do not have the symptoms you do not have the condition.  With mesothelioma you have the condition without the symptoms.

GLEESON CJ:   Well, your proposition is that this section does not cover diseases of delayed onset generally; this section covers diseases where the symptoms exist before they are capable of being known by the sufferer.

MR STANLEY:   Exactly, your Honour.

GLEESON CJ:   Where do you get that conclusion except from pointing to the fact that the main problem the drafters were thinking of was mesothelioma?

MR STANLEY:   Well, perhaps from the use of the words “disease or disorder contracted”.  They were talking about the contracting of a disease.  We would say that the introduction of the word “disorder” was simply to ensure that there may be some diseases as to which it is uncertain how they should be described, whether a disease or disorder, and that word was introduced as a safeguard.  There appears to be no other explanation for it either in the report of the subcommittee of the Chief Justice’s Law Reform Committee or the Hansard, the discussions in Parliament.

GLEESON CJ:   It seems that rightly or wrongly – and you may be right -by reliance on the legislative history the reasoning for which you contend requires the construction of the section to conform to the mesothelioma paradigm.

MR STANLEY:   I think in practice that would be so, your Honour.  It is hard to see much different.  I mean, pneumoconiosis, the Cartledge v Jopling situation.

KIRBY J:   But we were handed up the DSM with a list of hundreds of psychiatric conditions.  They are disorders, or some of them are.  Why are they excluded from the use by Parliament of the word “disorder”.

MR STANLEY:   Your Honour, I am, with respect, not saying they are.  I mean, I am not here to argue that every one of those hundreds of matters in the DSM-IV should not be included.  We are arguing here about post‑traumatic stress disorder and we say it cannot be because of the very nature of the beast.

KIRBY J:   That is a very formalistic interpretation of post‑traumatic stress disorder which postulates that it has no connection, that it is not somewhere there in the psyche or in the body, that it is just something that is freestanding and appears years later, but that is not what I understand.  The very words “post‑traumatic”, it postulates something that is after the trauma, and the trauma that is postulated in this case was an event of non‑consensual sexual assault.

MR STANLEY:   But the condition that was alleged to have resulted from that did not occur until 1998.  The symptoms did not occur until 1999, the symptoms that constituted a mental disorder.

KIRBY J:   Therefore, at least arguably, they lay there insidiously awaiting something that would bring them forward, just like mesothelioma.

MR STANLEY:   That is where we would take issue with your Honour.  We would say as distinct from the mesothelioma situation, there is no basis on the evidence for concluding that those symptoms were underlying.

KIRBY J:   Well, the diagnosis of the difference seems to be that in the case of mesothelioma it is these very fine sharp points that go into the tissue that ultimately cause cancer, and in this case we cannot find those points but maybe they are just as sharp; they are going into the mind of a person and lying there in wait for something later on to trigger them off.

MR STANLEY:   That is not the medical evidence in this case.

KIRBY J:   Well, something is - the very hypothesis of post‑traumatic stress disorder is that it is after trauma and that it is there and comes up later.

MR STANLEY:   But there are three types of post‑traumatic stress disorder and this one we are concerned with is of delayed onset.  The acute and chronic, they can hardly be regarded as diseases or disorders within the meaning of this section.  If my learned friend’s submissions are right, why does not a broken leg come within the meaning of “disease or disorder”?  It is a disorder.  Giving a literal translation would result in an absurd working of not only section 5(1A) but the whole limitation provision.

GLEESON CJ:   Why is that?  Could you not suffer some damage to part of your body without knowing it existed for many years?

MR STANLEY:   Well, yes, your Honour, you could, but then, depending upon what it is that is wrong, it may come under section 5(1A) or you make application under section 23A.  I was going to turn to the legislative history.  It has been touched on briefly, but just to deal with that.  Up until 1972 when the Act was amended, section 5(1A) provided a limitation period of six years for contract and tort, with the exception of personal injuries, for which under section 5(6) the period was three years.  At that time there was no provision at all for any extension except in the case of disability, if you were a child or a person under a disability.

Then in 1972 the old section 23A was introduced and that raised the concept of knowledge about material facts and you had to make an application for an extension within a period I think of 12 months or thereabouts of knowing of the material facts, and it caused many problems that are referred to in particular by the subcommittee of the Chief Justice’s Law Reform Committee in the commentary which appears at page 4 of the report which is in tab 11 of the appellant’s submissions.  The problems with that section are described in some detail in the commentary and I do not think I need take the Court to them, but they were sufficient to lead to the changes in 1983.

What happened then was the introduction of a legislative package.  That is the way it has been described by a number of the judges that have looked at this issue, a legislative package that introduced a new limitation scheme.  Section 5(1A) was part of that package and the package meant that a six‑year period was to apply for all contract and tort cases including personal injuries, unless it was a case of disease or disorder.  That was effected by the repeal of section 5(6).

Then section 5(1A) was introduced to give the six‑year period from the date of knowledge in the disease or disorder cases and the new section 23A section was introduced to make it easier and more available to disadvantaged plaintiffs to bring a claim in personal injury cases.  So what we say is that package formulated the rule, being six years for personal injury cases with a legislative exception for disease and disorder and provision for the extension in other cases.  So it is clear, in our submission, that what was done was to make a very clear distinction between, on the one hand, personal injury cases and, on the other, disease cases.

KIRBY J:   Disease or disorder.

MR STANLEY:   Disease or disorder.  Well, initially disease at all events.  That was what was referred to by the subcommittee, although it subsequently adopted the word “disorder” as well.  It is our submission that to apply a strictly literal interpretation here would not give the section the meaning and the intention that Parliament had for its use, and we say that to ascertain the purpose and assist in understanding the context in which it was introduced and the context in which the words “disease or disorder” were looked at, you have to go to the extrinsic material. 

If I can do that in perhaps a little detail, we start with the report of the Chief Justice’s Law Reform Committee which adopted the subcommittee’s report, and that is at tab 11 of the appellant’s submissions.  At pages 2 and 3, the committee refers to what steps it took in looking at other models and in particular the English model, section 2D of the Limitation of Actions Act 1975.  The committee rejected that model for reasons that it set out.  It also, it appears, looked at other jurisdictions including Scotland, New Zealand and other States in Australia and it is clear from the last paragraph on page 3 the committee says:

In formulating our recommendations we have been assisted by the provisions in legislation of other Australian States and New Zealand, but generally speaking our recommendations are significantly different from all existing models.

We say it certainly was.  It was a very extreme measure because here it was giving an automatic right for a plaintiff to bring an action quite irrespective of any prejudice to a defendant where the cause of action or the acts or omission giving rise to the cause of action may have occurred as much as 30 or so years earlier.  So it was an extreme step and we would submit that it would only have been taken because there was a very significant need for it to be taken, and that need of course was as exhibited by the mesothelioma cases.  Over at page 5 in the commentary, paragraph (f), the committee said:

Although the section was to some extent –

this is section 23A –

inspired by the problems associated with contracting of disease, it was drafted to deal compendiously with problems in all the areas of personal injuries.  We contend that if the problem relating to contracting disease is dealt with separately, then exercise of the required jurisdiction can be very much simplified.

That was what they were endeavouring to do.  Of course, the reference to the section was the old section 23A.

GLEESON CJ:   Mr Stanley, we are going to adjourn now until 2 pm.  So that I can give an indication to people involved in the next case, how long do you expect to require for your argument?

MR STANLEY:   Well, your Honour, there is the other issue to be looked at.  Realistically, I suppose at least half an hour, probably somewhere between half an hour and an hour.

GLEESON CJ:   Well, we will say that the next case will be not before 3.15 and we will adjourn until 2.00 pm.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Mr Casey and Mr Kennan, in relation to your interventions, we have the benefit of your written submissions, and we will hear submissions from both of you orally limited to 15 minutes each at the conclusion of Mr Stanley’s argument and then Mr Gorton will have a final reply.Yes, Mr Stanley.

MR STANLEY:   Thank you, your Honour.  I was taking the Court to the extrinsic material, in particular the report from the Chief Justice’s Law Reform Subcommittee, adopted by the committee, and I just want to emphasise the reference in the commentary to the fact that what the subcommittee was attempting to do was to deal separately with the problem relating to contracting disease as distinct from suffering or contracting other injuries and that is made clear particularly by what was said in paragraph 1(f) on page 5 of the report.  In paragraph 2, the heading is simply, “Disease cases”, it is not “disease or disorder”, but in the proposed amendment set out in that paragraph, the word “disorder” appears in the context of:

contracting of a disease or disorder the cause of action shall not accrue until the plaintiff knows –

(i)       that he has contracted the disease or disorder -

et cetera.  In the commentary there is reference to the fact that:

Insidious diseases such as asbestosis and pneumoconiosis have given rise to extension of time applications because the limitation period commonly expires before the victim knows that he has the disease ‑ ‑ ‑

GUMMOW J:   Do we have to have all these read out to us really, Mr Stanley?

MR STANLEY:   If the Court is happy for me simply to refer to the matters I am happy to leave it at that, your Honour. 

We also refer the Court to what was said in the Parliament, in particular by the Attorney-General, Mr Cain.  The extract from Hansard appears at tab 12 of the appellant’s submissions.  It is clear from what he said that the intention of the government was to introduce a new scheme for personal injury claims with respect to limitation provisions.  There is description of it on several occasions being a scheme and the broad terms of that scheme being:

that disease or disorder claims, such as asbestosis or pneumoconiosis, be treated differently from all other personal injury claims. 

The scheme is then described at page 2766 of the Hansard in more detail and makes the point that, with respect to disease cases, they will be:

treated differently from all other personal injury claims.  No longer will a person have to seek an extension of time . . . no longer be dependent on the discretion of a court to extend the limitation period but will have a postponed limitation period as of right. 

With that background material, it is our submission that the purpose of the new legislation was clear and that it is appropriate that the Court in construing the words “disease” or “disorder” should take into account that purpose. 

I do not want to take the Court to the principles but we rely upon what was said by this Court in the case of CIC Insurance v Bankstown Football Club (1997) 187 CLR 384 at 408 and that appears at tab 10 in the respondent’s list of authorities.

KIRBY J:   Is that where it said that in Australia you do not have to have an ambiguity before you can have regard to extrinsic material?

MR STANLEY:   Yes, your Honour.  I thought it even went further than that.  I can take the Court to it, but it indicated the significance of the purpose of the Act in determining how the words should be construed.

KIRBY J:   I think something like that was said in Project Blue Sky as well.

MR STANLEY:   Yes, your Honour.  In terms of whether one can look at extraneous materials generally, Mills v Meeking, which is one of the authorities that we have noted, is also relevant.  We also rely upon what your Honour said in the Palgo Holdings Case, which is at tab 7 and in particular at paragraph 34 and following.  So we say that to ascertain the purpose and to assist in understanding the context, the extrinsic material is clearly relevant and it shows here, we say, when one looks at the context, that the words should be construed narrowly.  That section 5(1A) should be given a limited role in the operation of the legislative scheme, we say, is borne out by not only in particular the word “contracted” as applied to disease or disorder, but also by the way in which the section fits into the scheme because, as has been noted earlier, if section 5(1A) were to be given the meaning my learned friends would want and “disease or disorder” encompasses virtually any disorder at all, then clearly section 23A would have no effective purpose or, at most, a very limited one, and that clearly was not the intent, we would submit, of the legislature.

The fact that a limited meaning and limited operation should be given to section 5(1A) is borne out by what the President of the Court of Appeal, Justice Winneke, said in Mazzeo, and this is at tab 5 of the respondent’s authorities, at page 178.  The Court may recall that this was a case where the ‑ ‑ ‑

GUMMOW J:   What proposition are we going to get out of this, Mr Stanley?  It is 10 past 2, you had better start cutting your cloth.

MR STANLEY:   Your Honour, what you are going to get out of it, we would submit, is that there was clearly an intention on the part of the legislature to:

carve out a special place in the “limitation field” for claims made in respect of “injuries consisting of a disease or disorder” and intended (by the legislature) that such claims could be brought without regard to any prejudice which might (otherwise) be suffered by the defendant.  Such consequences might themselves support the view that the subsection is intended to be narrowly, rather than liberally, construed.

So far as the purpose is concerned, we submit it is clear and it is confirmed by the views expressed by a number of judges that have looked at this issue, including the President, Justice Winneke, in Mazzeo, and also in the appeal in this matter, also by Mr Justice Chernov in the case of Mazzeo, by Justice Hedigan in the case of Hickey and by Mr Justice Eames also in this case at the Court of Appeal level.  Those cases are all contained in our authorities and reference to them is made at paragraphs 9 and 10 of our submissions.

The use of the word “contracted”, we submit, is an important word and it in ordinary parlance would relate to a disease and is clearly has an intention - we say, bearing in mind that it has been used in contradistinction to the word “suffered” in the same section, it has the purpose of indicating some close connection between the exposure to the act or omission and the actual contraction of the disease or disorder itself.  That is, of course, a relevant matter when one looks at the issue of post‑traumatic stress disorder of delayed onset because there is not that close relationship, temporal connection between the act or omission and the disease or disorder or the consequence of that tortious act. 

We submit that the reasons given by Justice Chernov in the case of Mazzeo – he gave five reasons why in his opinion the words “disease or disorder” should be read down in his opinion in effect to non-traumatic injuries that were diseases or disorders.  We rely upon those and those are set out at tab 5 in the respondent’s submissions at pages 188 and 189.  Unless the Court wants me to, I will not deal with each of those five matters.  They were in fact adopted or viewed with approval by the Court of Appeal in this matter and we submit they are all relevant matters that would lead the Court to conclude that a restricted interpretation should be given to “disease or disorder” so that the section will work within the legislative scheme as it was intended.  I think that is all I wanted to say with respect to the issue of disease or disorder.

If I can turn to the breach of duty question.  It is clear, we say, that the words of the section, and we perhaps could look first at section 5(6) as it was in 1955 when that subsection was introduced and the words “negligence, nuisance or breach of duty” were first used in the Victorian statute.  It is clear that there must be some limitation.  The subsection clearly was not dealing with all torts or all personal injury actions, there was a limit.  The question is, what is the limitation that is to be imposed.  In our submission, the limitation is that it should only apply to non-intentional torts and for that, of course, we seek some support and we rely upon the decision of the House of Lords in Stubbings and also the Irish Supreme Court in the matter of Devlin v Roche. 

The summary of our argument is set out at page 2 of our written submissions and they are in effect that the assault in this case alleged constitutes an intentional trespass and such a cause of action does not come within the words “negligence, nuisance or breach of duty” and that the major issue that was troubling the legislatures, both in England and in Victoria prior to the introduction of the 1955 Act, was the contention as to whether special protection for public authorities with respect to limitation periods should be retained.  That is made abundantly clear by reference to what is said in the Parliament and, indeed, the very history of the Act. 

This Bill was first introduced in an attempt to do two things:  first, amalgamate and bring into one statute the limitation periods covering various forms of action against various defendants.  The second purpose was to bring the limitation period with respect to public authorities to the same level as it was for ordinary defendants so that those authorities and in particular the municipal councils would no longer get the benefit of a very restricted limitation period with or without the requirement that a proposed plaintiff serve a notice of intention to sue within a very short period of time following the alleged negligence. 

Because of an inability to get agreement as to what, if any, requirements should be retained for a plaintiff to provide that notice, the Bills proposed in 1947 and up to 1950 all failed.  The 1950 Bill included a clause 5(6) which provided a three-year limitation period for actions:

for defamation of character . . . physical injuries to the person or damage to property founded on tort or breach of a statutory duty.

It is significant, in our submission, that that Bill was rejected and a lot is relied upon as to what was said by Mr Justice O’Bryan and others in the lead-up to that 1950 Bill.  The fact is it was rejected and it was five years later before the Statute Law Revision Committee again considered proposals relating to these matters in a Limitation of Actions Bill. 

The 1955 Bill contained the terms recommended by the committee and it recommended relevantly a limitation period of three years:

for damages for negligence, nuisance or breach of duty . . . where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries.

They are the very words that we are concerned with.  That was enacted and, at that time, if one looks at the Hansard, whether in the Assembly or the Council, discussion in relation to that Bill indicates that there was simply no discussion, no comment, about the introduction of these words, “negligence, nuisance or breach of duty”, beyond the fact that what was happening here was simply to introduce and follow the English system. 

HAYNE J:   All this is perhaps off stage left, is it not?  Is not the essence of the point to which you come, be it right or wrong, the following.  If you look at 5(1A), the words “for negligence nuisance or breach of duty”, et cetera, down to the words, “where the damages claimed by the plaintiff” – do you see the phrase to which I refer?

MR STANLEY:   Yes, your Honour.

HAYNE J:   If you give “breach of duty” the breadth of operation that Mr Justice Adam did in Kruber, you have effectively provided no confinement by the interposition of that phrase.  In effect, you have read that phrase out and, in effect, the section reads as though “an action for damages, where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries”.  You can go round looking at other legislation, debates and the like but does it not ultimately come down to that point?

MR STANLEY:   Yes, your Honour, with respect, it does.  There clearly has to be, we would submit, a restriction and if it is to be read the way my learned friends want, that restriction does not apply and those words in the brackets would have no force.

HAYNE J:   There is no content in the restriction because the content that Mr Justice Adam gave it was the reference to “Duty is 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”.  That describes the entire universe of recoverable claims.

MR STANLEY:   If the legislature had wanted that it would have been very easy for it to have said so but it did not.  What it did do was simply follow - and it expressly did this.  It simply followed the English system because it thought it was the ideal.  This is made abundantly clear if one looks at the extrinsic material and there was simply no comment at all, as I say, about the introduction of these words beyond the fact that they were part of the English system and the English scheme that was regarded as ideal.  In those circumstances, on that basis, we say, therefore, it is more important to give particular weight to the way in which the English section has been construed.

GUMMOW J:   And one can add to that, I think, this.  In Williams v Milotin (1957) 97 CLR 465 at 474 this Court very carefully distinguished “negligence” and “trespass” and they spoke of trespass as a:

violation of the protection which the law throws round the person.

We can understand that, but that is not what we are talking about.  We are talking about a breach of duty with negligence.

MR STANLEY:   There have been various ways where the distinction – the way in which the words can be construed to exclude an intentional trespass, whether it is because you look at the issue of whether they are regarded as an ejusdem generis, or in one of the text writers, I think, describes it as the expressio unius principle in operation, but there has to be some common feature between negligence, nuisance and breach of duty.

HAYNE J:   But the reference to breach of duty might also be understood against a background provided by the law relating to occupiers liability as it stood at least in the 1960s and forward where there was at the least doubt about whether principles of negligence were being engaged or some narrower principles?

MR STANLEY:   Yes, probably also Rylands v Fletcher.

HAYNE J:   As to that you would need to take account of what Justice Fullagar said in Anderson 105 CLR 56 where, I think, his Honour rightly identifies it as just a species of negligence, but there was at least debate happening about what you do with the obligation the land occupier owes to the trespasser.

MR STANLEY:   For the words to be given any meaning within the context of the section that is consistent with the other words in it, we submit it is reasonable to look at the purpose that was being sought to be achieved.  What gave rise to all this discussion was the liability of the municipal authorities and other public authorities with respect to limitation period.  They were not concerned about acts of intentional trespass, actions of assault.  Their concerns were actions in negligence and nuisance of the unintentional sort, nuisance actions and particularly motor car and various other negligence actions arising out of tortious acts done by employees.

The whole purpose of the section was to try to ameliorate or get a sense of agreement so that it would be politically attractive to enable the

Bill to be passed if there be some quid pro quo given to those public authorities, and that was done by reducing the period of limitation from six years to three, and secondly, by still introducing the need for an intending litigant to give notice of the intention within a period of – I think the words were, reasonable period of time, under clause 34 of the Bill.

That was the issue, that was the concern of the legislature, and for that reason we submit it is consistent that the term “breach of duty” should not be read so widely as to include an intentional tort.  Whether it be assault, wrongful detention, defamation or – I think there was one other that were referred to as being causes of action that would not be covered by the words “breach of duty” or “negligence” or “nuisance”, and one can see why it is reasonable that those intentional matters should be kept to one side, why should the defendant in those sort of cases get the benefit of a limited limitation period.

The plaintiffs in those sort of cases, we submit, should reasonably have a longer period than a case of unintentional trespass or unintentional negligence or nuisance.  So that there are reasons from a practical point of view, we submit, that also support the contention that the words should be read narrowly and read down.

We would submit that when one looks at the object of the section which is to achieve the equation for limitation purposes with the public authorities that is achieved by introducing the limitation on breach of duty to unintentional breaches of duty only.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Stanley.  Yes, Mr Casey.

MR CASEY:   If the Court pleases, we will limit our submissions to the condition of chronic PTSD.  There is an essential difference between the class of PTSD suffered in Stingel v Clark which was of late onset and chronic PTSD.  In the case of chronic PTSD it is a condition which can be diagnosed if the symptoms appear and last longer than three months.  In the case of chronic PTSD commonly the symptoms of the condition which are diagnostic of the condition will appear at or shortly after the tortious event, as happened in Wright’s Case, and thus it will be that if the section has an element of insidiousness to it then chronic PTSD would fall outside the section because it does not have the characteristic of insidiousness to it.

KIRBY J:   Why does it not have the character of insidiousness?  It is by definition post traumatic, it is occurring many years later, it is presumably linked by some physiological or psychological phenomenon to the trauma otherwise there would be no point in calling it post traumatic.  It is just then accidental and not connected, and it pops up years, maybe many years later, so that sounds insidious to me.

MR CASEY:   No, your Honour.  In the case of chronic PTSD the symptoms appear at or shortly after the tortious event.  In the case of chronic PTSD as in the case of Wright the symptoms which supported a diagnosis of the injury itself occurred within a short time.

KIRBY J:   Let me get this clear.  Is your argument that the Court of Appeal failed properly to apply the Clark decision or that the Clark decision is wrong and that you are arguing for a different principle?

MR CASEY:   No, we essentially argue that the Clark principle is correct.  We submit that the section applies to insidious conditions and we submit that a condition is not insidious if the symptoms appear within the limitation period and that, we say, is an appropriate qualification to the literal words used in the section.

Why we say that is because if you have a chronic post‑traumatic stress disorder with florid symptoms shortly after the event then if 5(1A) is to be given the operation that the appellant argues for then proceedings may be brought decades after the event without consideration of fair trial or prejudice to the defendant.  We submit that not only was that consequence unintended but it would lead to an unjust result.

We would submit that the proper mechanism, the fair and reasonable mechanism for a condition of chronic PTSD where proceedings are not brought within six years is section 23A, the extension provision.

KIRBY J:   I understand that, and there has to be left room for 23A to apply, but I just do not see in the statute the word “insidious” and I do not see in the statute the distinction which you are trying to impose on it by reference to some medical evidence about the various forms of post‑traumatic stress disorder.

MR CASEY:   Yes.  The word “insidious”, of course, is not used in the statute, but we have argued in our submissions that historically the mischief which was sought to be addressed firstly by the 1972 legislation which was an extension provision and which ultimately did not work and thus was addressed again in 5(1A) was to address the mischief which was identified in Cartledge v Jopling, and that ‑ ‑ ‑

KIRBY J:   There has often been many a slip twixt the cup and the lip.  I mean Parliament sometimes goes ahead and tries to deal with the problem and by its language it deals with a wider circle of problems, and as the Chief Justice pointed out earlier today, Parliament would not have presumed to know every form of disorder or disease that was going to come up in the next 30 years or so.

MR CASEY:   That is just so, but in our submission, the starting point for consideration of what this section does mean is to look at the mischief it was seeking to address at the time.

KIRBY J:   But it is in the language of the Act that we have to find meaning and I think it is probably fair to say we know more now about post‑traumatic stress disorder than we did when these words were written in the Tucker Report, so we just have to find meaning out of the words.  It is our duty to the words that Parliament enacts.

MR CASEY:   Yes, your Honour.  We say to that that if the literal interpretation is given to the words “disease or disorder” then the field of influence of section 5(1A) will be far more extensive than intended and will cause an imbalance between that section and the extension provision of section 23A and thus there must be some break or some boundary put upon the literal meaning of the words and that boundary, we submit, is as we submitted in paragraph 12 of our submissions, firstly ‑ it is at page 3 of our submissions – the section applies only to the contraction of an insidious disease or disorder, and secondly, that a disease or disorder is insidious only if it is not productive of symptoms within the normal limitation period but symptoms subsequently emerge due to the progression of the disease or disorder.  We would submit that that interpretation is a practical interpretation, it can work in practice and that it puts a reasonable qualification to the literal words “disease or disorder”.

KIRBY J:   Why should we not give the literal words their full meaning?  What is so horrible about them, given that they are remedial, they are beneficial, they are intended to give people rights that they would not otherwise have enjoyed and they are not limited to mesothelioma and asbestosis?

MR CASEY:   By the same token, in our submission, one must look at both sides.  It is all very well to talk about remedial legislation in the circumstances, but in giving 5(1A) a broad field of work, thus the defendant is being denied under section 23A of the opportunity to bring forward by way of defence to its claim questions of prejudice and fair trial, and we submit that there should be a balance between the two sections and the construction we argue for provides that balance between the two.  That is at the heart of our submission, and if there are no further questions I will take my seat.

GLEESON CJ:   Thank you, Mr Casey.  Yes, Mr Kennan.

MR KENNAN:   If the Court pleases, in our submission, the section does apply to chronic PTSD.  We say that the ordinary meaning of the words is that in a case of disease or disorder the clock does not start ticking until the person is aware that he or she has the injury and it was caused by the act or omission of another.  The knowledge that is referred to in 5(1A) is the subjective knowledge of the injured person.  We say that the purpose of the Act is that Parliament did intend to give an “as of right” extension in cases of disease and disorder and that insofar as the extrinsic materials are looked at that they would indeed support that interpretation because the second reading speech expressly refers to treating diseases or disorders separately from other personal injury cases, and the words “an ‘as of right’ approach” also expressly appear in the second reading speech.

What the Commonwealth is seeking to do is effectively re‑legislate to add words like “insidious diseases or disorders” and further make qualifications about the section being limited to those insidious diseases or disorders which produce no symptoms within the limitation period, and further to add a caveat that it only applies to diseases or disorders which have symptoms which emerge due to the progression of a disease or disorder.  They are all additions to the plain meaning of the words.

The words in section 5(1A) encompass mental disorders by reference to section 3 of the Limitation Act which includes mental disorders and we say that in the case of a chronic PTSD where a person, as in the Wright Case and was held by Justice Ashley to be the case and I think not in contest, the person was not aware of the injury, namely, PTSD until shortly before the issue of the proceedings, then that case squarely falls within the plain meaning of the words and there is no warrant, we say, for seeking to read the words down.

The section has been described in argument today from the Bar table as an extreme section but the fact of the matter is that Parliament legislated plainly in these terms, but until 2005 the meaning was thought to be substantially settled, and as the intention is clear from the words, and the words mean what they say, ordinary effect should be given to the words and if that happens, we say, chronic PTSD as in the case of Wright falls within it. 

KIRBY J:   There are two textual foundations for the Commonwealth in the argument to the contrary.  The first is the reference in the section to “contract”.  It has to be a disease that is contracted, and it is said that that is apt to something which has some immediate trauma at the beginning, like mesothelioma and asbestosis, and not something as more nebulous like conditions such as post‑traumatic stress.  There is also the fact that there are so many psychiatric conditions in the diagnostic schedule that it is of some concern, but most importantly you still have to give section 23A, with its much more nuanced and just provisions, work to do, and you have to find a role for 23A that works with the construction that you are urging on 5(1A).

MR KENNAN:   Your Honour, I would submit in respect of that that there is some overlap between 5(1A) and 23A in some cases, but Parliament introduced these sections in this form together in one amending Bill, and that the clear reference in 5(1A) was to deal with personal injury cases “consisting of a disease or disorder” and that is the distinguishing factor from 5(1A) that the existence of “disease or disorder” in 5(1A) as distinct from 23A points to Parliament intending to separate out disease or disorder cases for the particular provisions of 5(1A) and insofar as my learned friends rely on the second reading speech it very plainly says that disease or disorder cases are to be treated separately from other personal injury cases, as does, I think, the Law Reform Committee Report that said that injustices could arise if – I do not think they use the word “disorder” but they use the word “disease”, disease cases were not given some special treatment.

We say finally, I think, in answer to your Honour’s question that the fact that there may be some overlap between 5(1A) and 23A ought not lead to the sort of re‑legislation that is attempted here by giving some additional limitations to a plain meaning of the words of 5(1A).

KIRBY J:   Remind me on the procedural point?  You are facing an application by the Commonwealth for special leave to appeal?

MR KENNAN:   Yes, your Honour.

KIRBY J:   Has the special leave been referred into this Court, or I think it is still lying there but you have been given this exceptional opportunity to make submissions.  Is that the correct ‑ ‑ ‑

MR KENNAN:   That is so, your Honour.

GLEESON CJ:   By way of intervention?

MR KENNAN:   Yes, your Honour.  The special leave has not been dealt with and the parties approached Justice Hayne on this point and we ‑ ‑ ‑

KIRBY J:   Yes, I have read the transcript.  I was just trying to clarify what the final upshot was.

MR KENNAN:   Yes.  Your Honour, unless there are ‑ ‑ ‑

KIRBY J:   Because the fact situation in your case is very different from the fact situation in the ‑ ‑ ‑

MR KENNAN:   Different in a couple of respects, your Honour.  It was chronic PTSD of effectively immediate onset and the issue of contracted at or about the time, which was an issue in Clark v Stingel, does not arise in our case.  The issue that we had with the decision of Justice Ashley was whether or not the knowledge in 5(1A) was the subjective knowledge of the injured person or not.  It was that point that we argued in front of the Court of Appeal in Wright and that was the only point that we needed to resolve to successfully, from our viewpoint, resolve our case.

GLEESON CJ:   What is your submission about the meaning of the words “first knows that he has suffered those personal injuries” in a case where there are symptoms?

MR KENNAN:   That he must know that he has a compensable injury.

GLEESON CJ:   You mean he must appreciate the medical significance – he must appreciate the medico‑legal significance of the symptoms?

MR KENNAN:   Or the medical significance, your Honour, that if he has symptoms of irritability, of flashbacks, for instance, but he has not been told or does not believe that they represent a psychiatric illness or disorder, then he is not aware of the injury we would say.

GLEESON CJ:   A lot of people who have symptoms of irritability do not realise that they are suffering from a psychiatric disorder.

MR KENNAN:   That is so, your Honour, but the knowledge that is referred to in 5(1A) is knowledge of injuries which he can sue for.  Now, he may not know the law, but he must know that it amounts to more than – for instance, a person might have a cough but not know that it is asbestosis. 

GLEESON CJ:   So your client suffered symptoms of a kind that have been described earlier as a constellation, but he did not realise during the running of the ordinary limitation period that they were related to the events of the Voyager or that they were a recognisable psychiatric disorder?

MR KENNAN:   Yes.  What Justice Ashley found – and it is in paragraph 119 of Justice Ashley’s decision, your Honour - was that he was unaware of the significance of the symptoms or he was in denial, but he had been seen, your Honour, by two medical doctors in the six or seven years after the accident and prior to his discharge from the navy.  The evidence, the uncontradicted evidence, was that those doctors said that there was nothing wrong with his physical or mental health.  The evidence was that he made no complaint to any doctors during the next 35 years or so in relation to symptoms that others thought that he had, because some of these symptoms were recognised by his wife and his daughter, but not necessarily by him and they would observe changes in his behaviour.

The evidence called at the trial went to not just evidence that he gave on de bene esse hearing, but also evidence from his wife and his daughter as to what they observed in order to establish, as Justice Ashley found, that he had in fact, looked at in retrospect by the court in 2005, PTSD for a very

long time when the examining doctors much later were put in possession of this information.

KIRBY J:   The post‑traumatic stress disorder in your case arose, as you allege, out of negligence, not out of a trauma in the nature of a trespass?

MR KENNAN:   That is so, your Honour.

KIRBY J:   So the issue that arises in the appeal raised on the notice of contention does not arise in your case?

MR KENNAN:   That is so, your Honour, and negligence was admitted by the Commonwealth.

GUMMOW J:   Also, as I understand the orders made by Justice Hayne on 17 February, it will be open to us, if we were so minded, to refuse special leave or to grant special leave and to treat the appeal as heard instanter.  That is the way I understand you have readied yourselves.

MR KENNAN:   Yes, your Honour.

MR CASEY:   Well, could we be heard on that, your Honour?

GLEESON CJ:   Certainly.  Let us hear what Mr Kennan has to say, if anything further.

MR CASEY:   I am sorry, yes.

MR KENNAN:   Your Honour, I was only going to say if there were no further questions, I had nothing further to add.

GLEESON CJ:   Thank you, Mr Kennan.  Yes, Mr Casey.

MR CASEY:   Thank you, your Honour.  Your Honour, clearly our understanding was that this was not to be regarded in any way as a special leave application, that an opportunity was provided to the parties in Commonwealth v Wright to seek leave to intervene and to file and exchange submissions on the construction of the section itself rather than argue the special leave.  The submissions that have been prepared for the special leave are not before this Court.

GLEESON CJ:   Your point is, is it, that the issues about the meaning of section 5(1A) that are necessarily for determination of the case of Stingel v Clark overlap with the issues in your case, but they are not the same as the issues in your case?

MR CASEY:   Yes, yes.

GLEESON CJ:   So far we have only heard from you on the issues to the extent to which they might overlap?

MR CASEY:   Correct, yes, your Honour.

KIRBY J:   Somewhere there is a document which sets out, I think, four or five major differences between the two and you would want to be heard on them?

MR CASEY:   Yes.

GLEESON CJ:   Yes, we understand that.  Thank you, Mr Casey.  Yes, Mr Gorton?

MR GORTON:   Your Honour, as we understand it, the proposition is that disease or disorder is a disease or disorder which is contracted at or about the time of the trauma or the act or omission and is asymptomatic for at least six years and that mesothelioma is a major example of that sort of situation and that is the paradigm of mesothelioma.  If that is the proper test, which we say it is not, and if Justice Ashley is correct in his footnote in Wright v The Commonwealth, mesothelioma is not contracted at or about the time of the trauma.  Its time of contraction may well be very much later and therefore would not fit within the paradigm of mesothelioma as put forward.

KIRBY J:   It depends on what “contraction” means.  In one sense the needles go in and they begin doing their mischief the minute they go in.

MR GORTON:   If that is right, then when the trauma happens, whatever trauma it be that is subsequently actually causative of a disease or disorder, that disease or disorder is contracted at the time of the causative act or omission as well as a matter of probability.  If you look at a traumatic event of some sort as being the contraction, even though the medical situation which is diagnosable as the disease does not happen till many years later - the only point I am making at the moment about this is that, as described by Justice Ashley and as we would submit is correct, the general view is that mesothelioma is not contracted at the time of exposure to an asbestos fibre.  The asbestos fibre is there and many years pass until the cancer commences to develop at an unknown time later on and frequently, once it has developed, it progresses rapidly.  We would say that this Court should look at the plain meaning of the words and not try and read in either that there has to be a contraction at the time of the act or omission, or ‑ ‑ ‑

KIRBY J:   I understand your submission to be you do not read in insidious, but if you do, then this is not in its essence different from mesothelioma.  Something might have happened, we do not know exactly what and years later the symptoms begin to appear or can appear years later and it is not feasible in the language that Parliament has chosen to draw the distinction that the respondent in this appeal sought to draw.

MR GORTON:   Yes, that is correct, and we find it very difficult to see where they extract a six year symptom‑free period from in any of the legislative terms.  So far as the question of trespass is concerned falling within breach of duty, really the only things we have not said in respect of that, or we may have said them, but I seek to repeat them, is that the 1983 legislation was passed in bringing into operation section 5(1A) and section 23A.  That was passed before the Stubbings v Webb decision and after a considerable number of decisions to the effect that the words “breach of duty” were broad enough to include trespass.  It would be appropriate to conclude that the Parliament in Victoria was legislating using terms previously used which had been interpreted with the meaning that had been applied to them by interpretation. 

That is more clearly so because they have used the same terms in section 23A as they have in section 5(1A).  The respondent to this appeal says - put aside Ms Stingel who is not governed by 23A in its current form, but would take up someone in a similar situation - six years passes, then that person goes to 23A to get an extension of time if the situation merits it.

GLEESON CJ:   On your approach to the meaning of “breach of duty”, can you give an example of a tort that is not a breach of duty?

MR GORTON:   No, your Honour.

KIRBY J:   Why not use the word “founded in tort” which is in the previous subparagraph?

MR GORTON:   Because they were adopting the English language.  I cannot answer that any more than the cases that have commented on that point cannot answer it.  They could have used that word, but they chose words which – in 1983 they chose words which have been interpreted to mean that trespass was included and they provided an extension provision which, if trespass is not included in those words, means there is no right of extension available to somebody who is subject to the sort of attack that Ms Stingel says she was subjected to and suffers a problem years later on.

GLEESON CJ:   Well, that was what the Irish case decided.  The Irish case was of somebody who was beaten up by a policeman.  If trespass is not included, then 23A does not apply to a person who was beaten up by a policeman, but it does apply to a person who was negligently bumped by a motor car. 

MR GORTON:   Yes.

GLEESON CJ:   But there may be a policy reason for that that was already discussed.  You read both 5(1A) and 23A, do you not, as though the words “damages for negligence nuisance or breach of duty” mean damages for negligence, nuisance or any other breach of duty?

MR GORTON:   Well, yes, but we limit it, of course, within the terms to damages in respect of personal injuries.

GLEESON CJ:   Or any other tort actually.

MR GORTON:   Section 5(1A) is only effective ‑ ‑ ‑

GLEESON CJ:   Damages for negligence, nuisance or any other tort.

MR GORTON:   It only applies:

where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries –

so that the aim of Parliament in passing this legislation was not directed to excluding trespass, but in covering personal injuries claims.

HAYNE J:   What work are you giving to the words “for negligence nuisance or breach of duty”, et cetera, down to “contract or any such provision”?

MR GORTON:   They are fundamentally expansionary words trying to indicate that there is no limit to be placed on the concept of breach of duty which might be thought without those words to be limited by it having arisen out of a contract or a statute rather than from common law.

HAYNE J:   But would the provision have the same effect as you contend for if it read “an action for damages where the damages claimed consist of or include”?

MR GORTON:   Damages for personal injuries, yes, your Honour, which is not to say that the words do not demonstrate an expansionary purpose and if they were not there ‑ ‑ ‑

KIRBY J:   Except that we do know, by looking at the Tucker Report, that the one thing they excluded was trespass to the person, or at least that was the ‑ ‑ ‑

MR GORTON:   Yes, but the excluded trespass to the person in a sense that was trespass with other actions which were also excluded which were not personal injury actions.  So that the categorisation of those things that were being excluded in the Tucker Report was that they were actions other than personal injuries claims.  That is what Justice O’Bryan was saying when he talked about trespass that is actionable without personal injury might well not be in the section, but trespass causing personal injury is meant to be in the section and that is the way it was adopted and applied in Victoria with the focus being on personal injuries rather than the form of the wrong that gave rise to that claim for personal injuries. 

If we are wrong, we say it was not the intention and this Court should not find that it was the intention of Parliament to say that there was no power to extend a limitation period under section 23A where the damages did result from an intention or trespass.  The very person who you would have thought ‑ ‑ ‑

KIRBY J:   Could it be said that there was a reason behind that that normally, given that Parliament cannot deal with every case, but normally damage in the nature of trespass is going to be instantaneous with the trespass whereas damage related to negligence and nuisance might be, as has been said, insidious and normally will be known, but it may not be, as we know from asbestosis and so on and that that was the policy they were trying to adopt?

MR GORTON:   Well, it is an odd policy, with respect, your Honour, because most actions ‑ ‑ ‑

KIRBY J:   Any result is contestable, as Justice Geoghegan said in the Irish Supreme Court, any result.  So you are searching for something which is compatible with the language, compatible with the scheme of the statute, 23A, and is not going to do offence to the language.

MR GORTON:   We say our interpretation does that.  It ensures that the very wrongdoer who should have least protection from a court, if the proposed plaintiff delays, that is the deliberate wrongdoer, gets protection whereas the negligent wrongdoer does not get protection by a fixed limitation period of three or six years.  That is an extraordinary outcome that if you accidentally run into somebody with your car you can be sued nine years later if the court says that the conditions of 23A are satisfied, but if you had run into somebody deliberately with your car with the intention of causing them damage and cause them damage, the cut‑off period is six years with no right of increase.  That is unlikely to be an intended policy outcome. 

The intended policy outcome is much more likely to be that trespass was meant to be included in that selection of words both within 5(1A) so as to give people suffering personal injuries, whatever their cause, a right to take advantage of a longer limitation period in appropriate circumstances and if all they have suffered is physical injuries for them to have a right at least equal to other people to have their delayed claim brought before the court.  I do not have anything else to put before the Court.

GLEESON CJ:   Thank you, Mr Gorton.  We will adjourn for a few minutes to consider the further course we will take in this matter.

AT 3.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.05 PM:

GLEESON CJ:   Mr Gorton and Mr Stanley, I just wanted to ask you one question.  If you are not in a position to answer this question at the moment, say so and you can answer at a later time.  The question is this:  Justice Callinan is not with us today because of some health reasons.  Would the parties be agreeable to his participating in the decision in this matter on the basis of a reading of the documents, including the written submissions and the transcript of the oral argument?

MR GORTON:   Could I get instructions and communicate the response through one of the associates, your Honour?

GLEESON CJ:   Certainly.

MR GORTON:   I do not think it will take long to get instructions.

MR STANLEY:   Can I indicate that we have no objection to that course.

GLEESON CJ:   Thank you, Mr Stanley.  We will hear from you in due course, Mr Gorton.

MR GORTON:   Does the Court require me to announce it in public Court or just send the message?

GLEESON CJ:   No, just send a message.

MR GORTON:   Thank you, your Honour.

GLEESON CJ:   We will adjourn now until 3.15 and deal with the next case.

AT 3.07 PM THE MATTER WAS ADJOURNED