Tusyn v State of Tasmania (No 2)

[2008] TASSC 76

[2008] TASSC 76

CITATION:              Tusyn v State of Tasmania (No 2) [2008] TASSC 76

PARTIES:  TUSYN, Walter Michael
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  38/2003
DELIVERED ON:  26 November 2008
DELIVERED AT:  Burnie
HEARING DATE:  22, 23 September 2008
JUDGMENT OF:  Blow J

CATCHWORDS:

Damages – General principles – Other matters – Damages assessed once and for all – Immediate physical injuries and delayed psychiatric injury.

Djordjevic v Australian Iron & Steel Ltd (1966) 67 SR (NSW) 441, followed.
S v G [1995] 3 NZLR 681, not followed.
Aust Dig Damages [11]

REPRESENTATION:

Counsel:
             Plaintiff:  P W Tree SC
             Defendant:  P Turner
Solicitors:
             Plaintiff:  Bradfields
             Defendant:  Director of Public Prosecutions

Judgment Number:  [2008] TASSC 76
Number of paragraphs:  29

Serial No 76/2008
File No 38/2003

WALTER MICHAEL TUSYN v STATE OF TASMANIA (NO 2)

REASONS FOR DETERMINATION  BLOW J

26 November 2008

1. On 4 February 2003 the plaintiff, Walter Tusyn, sued the State of Tasmania for damages in relation to sexual abuse that occurred in 1961, when he was 11 years old.  In that year he was sent to live with foster parents.  He remained with them for several weeks.  His foster father sexually abused him on numerous occasions during that period.  Mr Tusyn now suffers from a psychiatric disorder.  His psychiatric disorder was caused by the sexual abuse by the foster father in 1961, and possibly a number of other factors.  He contends that the State of Tasmania, the Director of the Social Services Department, and their officers, servants and agents were negligent in permitting the foster father to be entrusted with him; that he suffered psychiatric injury as a result of their negligence; and that he became entitled to recover damages in respect of that negligence.  The State now admits, for the purposes of these proceedings, that Mr Tusyn was sexually abused by the foster father on occasions in 1961, and that he suffered psychiatric injury as a result of those sexual assaults.  However the State contends that any cause of action which Mr Tusyn may have against it in respect of his psychiatric injury is statute barred. 

1. Because of some complexities in this case, Mr Tusyn and the State both asked me to order that a number of the questions arising in the case be tried before all others.  I made such an order on 8 August 2008 in respect of the following questions:

"(a)Between approximately 19 March 1961 and 25 May 1961, at divers dates and at divers places, was the plaintiff sexually assaulted by [the foster father]?

(b)In consequence of those sexual assaults, did the plaintiff suffer psychiatric injury?

(c)When did any cause of action which the plaintiff may have against the State of Tasmania arising from that psychiatric injury first accrue to the plaintiff?"

It is now common ground that the answers to questions (a) and (b) are both, "Yes".  I have determined that the answer to question (c) is, "If any such cause of action is available to the plaintiff, a separate cause of action accrued to him each time he was sexually assaulted in 1961, and his only causes of action in respect of which he could claim damages for psychiatric injury are ones that accrued to him in 1961."  These are my reasons for that determination.

1. It is absolutely clear that a cause of action for any tort, including negligence, does not arise until the claimant has suffered damage.  Thus, for example, in Commonwealth v Cornwell (2007) 229 CLR 519, Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said at 523:

   "However, to show the existence of a completely constituted cause of action in negligence, a plaintiff must be able to show duty, breach, and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action 'first accrues' …".

2. Mr Tusyn contends that he did not experience any psychiatric symptoms until after an occasion in 1996 when, by chance, he happened to set eyes on the foster father who had abused him 25 years previously.  There is evidence that his mental health deteriorated after that chance sighting, but that it was not until 2002 that he realised that he had psychiatric problems, and that they were linked to the sexual abuse. 

1. Mr Tusyn contends that a cause of action against the State accrued to him at that time in respect of his psychiatric injury.  If that is correct, the Limitation Act 1974, s5(1), applied, the limitation period for the institution of proceedings was three years, and his action was commenced within time. The State contends that any relevant cause of action accrued in 1961, and that the applicable limitation period expired long before the filing of the writ in 2003.

1. The foster father who abused Mr Tusyn is now dead.  I will not name that man because there is a possibility that naming him might be unfair to surviving members of his family.  Mr Tusyn had a number of foster fathers during his childhood.  I wish to make it clear that it was only the man with whom he lived between approximately 19 March 1961 and 25 May 1961 who is said to have sexually assaulted him.

A separate cause of action for psychiatric damage?

1. It is an agreed fact that the foster father's sexual abuse in 1961 resulted in physical harm at that time, as well as subsequent psychiatric injury.  The State relies on that fact.  It contends that, as a matter of law, Mr Tusyn cannot have a right of action for damages in respect of his psychiatric injury that is separate from a right of action for damages in respect of his physical injury.  Mr Tusyn contends that he can.

1. The State relies on a common law rule that is known as the "once-and-for-all rule".  It has been established by a long line of cases that, when a plaintiff becomes entitled to recover damages as a result of an act or omission on the part of a defendant, he or she may obtain only one award of damages.  In such circumstances, a court awards damages in respect of both past and future loss.  An early example is Fitter v Veal (1701) 12 Mod 542; 88 ER 1506 (also reported as Fetter v Beal 1 Ld Raym 339; 91 ER 1122; Ferrer v Beale 1 Ld Raym 692; 91 ER 1361; and Fetter v Beale 1 Salk 11; 90 ER 11; Holt 12; 90 ER 905.) It was held in that case by the Court of King's Bench that the plaintiff, who had recovered damages for battery in relation to the bruising and wounding of his head, was not able to recover further damages in relation to subsequent surgery for the same injury.

1. In Darley Main Colliery Co v Mitchell (1886) 11 App Cas 127 at 132 – 133, Lord Halsbury said:

"No one will think of disputing the proposition that for one cause of action you must recover all damages incident to it by law once and forever.  A house that has received a shock may not at once shew all the damage done to it, but it is damage none the less then to the extent that it is damaged, and the fact that the damage only manifests itself later on by stages does not alter the fact that the damage is there; and so of the more complex mechanism of the human frame, the damage is done in a railway accident, the whole machinery is injured, though it may escape the eye or even the consciousness of the sufferer at the time; the later stages of suffering are but the manifestations of the original damage done, and consequent upon the injury originally sustained." 

1. That passage was cited with approval by Lord Pearce, with whose speech the other members of the House of Lords agreed, in Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 780 – 781.

1. The once-and-for-all rule has been acknowledged in the High Court as applicable in Australia.  See, for example, Pamment v Pawelski (1949) 79 CLR 406 at 411; Todorovic v Waller (1981) 150 CLR 402 at 412.

1. To the best of my knowledge there is no reported Australian case in which it has been held that a tortious act resulting in both physical and psychiatric injuries gives rise to two separate causes of action.  The decision of the New South Wales Court of Appeal in Djordjevic v Australian Iron & Steel Ltd (1967) 67 SR (NSW) 441 is authority for the proposition that there is only one cause of action in such a case. That case concerned the wording of a limitation provision in the Workers' Compensation Act 1926 (NSW), s63 but the court decided the matter by reference to the common law rule. A worker had received payments of compensation for an injury to his foot and ankle. He subsequently brought an action for damages for negligence in respect of shock, neurosis and tuberculosis alleged to have resulted from the same occurrence. The legislation imposed a limitation period for the bringing of an action for damages in respect of an injury when compensation had been paid in respect of the injury. The Court of Appeal held that the claim for damages in respect of shock, neurosis and tuberculosis related to the same injury as that for which compensation had been paid.

1. The employer had earlier made an application for a perpetual stay, which was refused by the Full Court: Djordjevic v Australian Iron & Steel Pty Ltd (1964) 82 WN (Pt 1) (NSW) 218.  In that decision at 220, Hardie J said:

   "The law is well settled that, when a person is injured as a result of negligence or other wrongful act of another person, then he has one indivisible claim for damages.  He cannot apportion or split it into sections, either in terms or limbs or periods of times or otherwise; he can only recover once and for all for physical injury and impairment to his bodily and mental health." 

2. The case came before the Court of Appeal on a demurrer in 1966.  The worker was unsuccessful.  Each member of the Court referred to, and applied, the reasoning of Hardie J at the earlier hearing.

1. The once-and-for-all rule has not been so strictly applied in New Zealand.  In S v G [1995] 3 NZLR 681, the plaintiff was sexually abused from 1978 when she was 14 years old until she was 16 years old. She suffered physical harm at the time, including infection with venereal warts. She applied for an extension of time for the bringing of an action in respect of psychiatric damage in 1993, contending that she had a cause of action that did not arise until 1990. The Court of Appeal refused her application, but in the course of its reasoning it held unanimously that a separate cause of action had accrued in relation to her psychiatric damage.

1. In that case the Court of Appeal was following a number of its earlier decisions in which it held that separate and distinct damage can give rise to a separate cause of action in negligence: Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394; Mount Albert Borough Council v Johnson [1979] 2 NZLR 234. The first of those cases concerned a negligent builder who built some flats in 1968. Damage became manifest in 1969. Further damage was observed in 1971 after the property had changed hands. At 424, Cooke J quoted and adopted the following passage from Salmond on Torts (16th ed) 606 – 607:

   "Where the act of the defendant is actionable per se, there is no doubt that all damage, both actual and prospective, may and must be recovered in one action.  But where the act of the defendant is not actionable per se, but is actionable only if it produces actual damage, and it produces damage twice at different times, is there one cause of action, or are there two?  If, for example, the defendant by an act of negligence has created a source of danger which on two successive occasions causes personal harm to the plaintiff, is the plaintiff barred from recovery for the second harm because he has already recovered damages or accepted compensation for the first?  Both on principle and on authority it seems that when an act is actionable only on proof of actual damage, successive actions will lie for each successive and distinct accrual of damage.  But where the damage sued for in the second action is not in reality distinct from that sued for in the first, but is merely a part of it or consequential upon it, it cannot be recovered.  For it is clear that the second damage in order to be recoverable in a second action must arise directly from the wrongful act of the defendant and not indirectly through the damage already sued for.  In other words, compensation for the first damage includes compensation for all the ulterior consequences of that damage whether already accrued or not, but it does not include compensation for entirely distinct damage accruing from the defendant's act independently of the damage first sued for."

2. His Honour went on to say that it was "a question of fact and degree whether damage is sufficiently distinct to result in a separate cause of action".  He concluded that, because of the interval between 1969 and 1971, and because the first damage was slight and the later damage considerable, the later damage should be treated as distinct.  Woodhouse J reached a similar conclusion.  Richmond P dissented on the basis that the builder had not been negligent, but would have reached the same conclusion if he had been satisfied of negligence.

1. Mount Albert Borough Council v Johnson (supra) was another building case, involving negligence in 1965 that resulted in damage in 1967 and different damage in 1970.  The Court of Appeal followed Bowen, and held that a separate cause of action had arisen in 1970. 

1. Those cases went one step further than the High Court went in Bryan v Maloney (1995) 182 CLR 609. It held in that case that the owner of a house at the time when damage first became manifest was able to recover damages for negligence against a builder engaged by a previous owner. The rationale was that damage was first suffered at that time, not earlier, because the damage in question was economic loss constituted by a diminution in the value of the property resulting from a defect becoming manifest. Bryan v Maloney did not involve a departure from, or watering down of, the once-and-for-all rule.

1. The course taken by the New Zealand Court of Appeal appears to have had its genesis in the passage in the 16th edition of Salmond on Torts that I have set out above.  The learned author of that work cited only two cases as authority for the proposition that, when an act is actionable only on proof of actual damage, successive actions will lie for each successive and distinct accrual of damage, namely Maberley v Peabody & Co [1946] 2 All ER 192 and O'Keefe v Walsh [1903] 2 IR 681. Maberley concerned a claim for damage to a boundary wall caused by the defendants having piled up debris and earth against it.  It was a case about a continuing nuisance.  O'Keefe concerned a claim for damages for conspiracy intended to cause economic loss.  The plaintiff alleged that the conspirators were maliciously inflicting loss and damage upon him by boycotting him.  Both were cases concerning continuous breaches of duty. 

1. There is little scope for the operation of the once-and-for-all rule in cases of continuing or recurrent torts such as a continuing nuisance like that in Maberley, or the negligence of an employer who exposes an employee to an unsafe system of work, and thus commits a fresh breach of duty on every working day.  In such cases, a fresh cause of action arises with each fresh infliction of damage.  In Maberley, Stable J suggested that the plaintiff could bring "a whole series of actions for damages as and when the wall disintegrates brick by brick", and that possibly "a fresh cause of action arises as each brick topples down".  However, with great respect to the learned author and to the New Zealand Court of Appeal, I do not think such cases should be regarded as establishing a general proposition that applies in relation to damage suffered at different times as a result of a single act or episode of negligence.  I acknowledge that the common law of New Zealand has developed in that way.  However the common law has not developed that way in Australia.

1. An approach that might be thought inconsistent with the once-and-for-all rule was taken by the English Court of Appeal in Brunsden v Humphrey (1884) 14 QBD 141. It was held in that case that, when negligence results both in property damage and personal injury, a plaintiff may recover damages in an action in respect of the property damage, and still recover damages in a second action relating to the personal injury. It has been accepted in Australia that that is the common law: Jackson v Goldsmith (1950) 81 CLR 446 per Fullagar J at 467; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 611; Marlborough Harbour Board v Charter Travel Co Ltd (1989) 18 NSWLR 223; Linsley v Petrie [1998] 1 VR 427. In the Court of Appeal in Brunsden v Humphrey, Brett MR and Bowen LJ formed the majority, with Lord Coleridge CJ dissenting.  Brett MR simply held that property damage and personal injury gave rise to two distinct causes of action, but Bowen LJ went further.  At 151 his Lordship said:

"It may be said that it would be convenient to force persons to sue for all their grievances at once and not to split their demands; but there is no positive law (except so far as the County Court Acts have from a very early date dealt with the matter,) against splitting demands which are essentially separable … , although the High Court has inherent power to prevent vexation or oppression, and by staying proceedings or by apportioning the costs, would have always ample means of preventing any injustice arising out of the reckless use of legal procedure."

1. In Linsley v Petrie (supra), Hayne JA (as he then was) referred at 434 to "the general rule that a plaintiff must bring but one action for all damage allegedly sustained at the one time" and made the following comment:

"I leave to one side consideration of the existence or content of any such rule.  It may well be that any such rule is no more than a statement in other words of the effect of principles of res judicata, issue estoppel, and what has come to be known as 'Anshun estoppel'." 

His Honour was referring to Port of Melbourne Authority v Anshun Pty Ltd (supra) which establishes that the doctrine of res judicata or cause of action estoppel precludes a litigant from attempting, in a second proceeding, to litigate a cause of action which could have been litigated in an earlier proceeding between the same parties.

1. Whilst the seeds of a different approach to the once-and-for-all rule may be found in the judgments of Bowen LJ and Hayne JA in those cases, I do not think it is appropriate for me to take a new approach to that rule.  I think I am bound by the weight of English and Australian authority to apply the once-and-for-all rule as traditionally understood, and as explained in Djordjevic.

1. Mr Tusyn was assaulted by his foster father on a number of occasions.  The precise number is not known.  Each time he was physically harmed, a new cause of action accrued to him.  When psychiatric harm developed as a result of those assaults many years later, no new cause of action accrued to him.  As to each of the sexual assaults, the common law permitted him to bring only one action in respect of both physical injury and injury (or contingent injury) to his mental health.  I infer from the evidence as to the 1961 assaults that each one resulted in physical injury to some degree, as well as contributing to Mr Tusyn's later psychiatric injury.  It follows that the only conclusion open to me is that, if Mr Tusyn does have any cause or causes of action against the State of Tasmania arising from his psychiatric injury, a separate cause of action accrued to him each time he was sexually assaulted in 1961, and his only causes of action in respect of which he could claim damages for that psychiatric injury are ones that accrued to him in 1961.

Delayed discoverability

1. Counsel for Mr Tusyn submitted that I should follow decisions of the Supreme Court of Canada and the New Zealand Court of Appeal in which it has been held that, in actions for damages for psychological or psychiatric harm caused by child sexual abuse, the cause of action does not exist, and the limitation period does not begin to run, until the victim discovers, or becomes reasonably capable of discovering, both the psychological damage and the link between the sexual abuse and that damage: M (K) v M (H) (1992) 96 DLR (4th) 289 at 301 – 314; S v G (supra).  Evans J made comments as to the merits of such an approach in Wilson v Horne (1999) 8 Tas R 363 at 386 – 389, without reaching a conclusion as to whether those cases should be followed in Tasmania.

1. In those Canadian and New Zealand cases, the courts each applied and followed earlier decisions in which they had held that limitation periods for torts do not necessarily begin to run when damage is suffered, and will not begin to run until the victim discovers, or becomes reasonably capable of discovering, both the damage and the link between the event constituting a breach of duty and that damage: City of Kamloops v Nielsen (1984) 10 DLR (4th) 641; Central Trust Co v Rafuse (1986) 31 DLR (4th) 481 at 535 - 536; Invercargill City Council v Hamlin [1994] 3 NZLR 513. In Canada that principle is referred to as the reasonable discoverability rule. The High Court has declined to adopt such a rule in relation to claims in negligence for economic loss: Hawkins v Clayton (1988) 164 CLR 539; Commonwealth v Cornwell (supra) at 523.

1. Because I have concluded that no new cause of action has accrued to Mr Tusyn as a result of him suffering psychiatric damage, it would be inappropriate for me to determine whether the delayed discoverability rule would otherwise be applicable on the facts of this case.

Conclusion

1. For these reasons, the answers to the questions that I have to determine are as set out in paragraph 2 above.