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Wilson v Horne

Wilson v Horne

Case [1999] TASSC 33 31 March 1999

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[1999] TASSC 33

PARTIES:  WILSON, Graeme James Gregory
  v
  HORNE, Cherie Jayne

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 34/1998
DELIVERED:  31 March 1999
HEARING DATE/S:  26 August, 26 October 1999
JUDGMENT OF:  Cox CJ, Wright J, Evans J
CATCHWORDS:

Torts - Negligence - Essentials of action for negligence - Duty - Breach of duty - Damage - Sexual abuse - Indecent assault suffered during childhood - When damage arose - Repressed memory - Recognisable psychiatric illness - Nervous shock or mental disorder - Onset of post-traumatic stress disorder - Time when psychiatric injury suffered.
Aust Dig Torts [56 - 57]
Limitation of Actions - Contracts, torts and personal actions - Personal injury cases - Extension of the bar - Accrual of cause of action - When injury suffered - Repressed memory - Time began when psychiatric injury suffered.
Aust Dig Limitation of Actions [28]

Limitation Act 1974 (Tas), ss4(1), 5(1).
Williams v Milotin (1957) 97 CLR 465, distinguished.
Hawkins v Clayton (1988) 164 CLR 539; Gray v Motor Accident Commission (1998) 158 ALR 485; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1983 - 1984) 155 CLR 549; Rankine v Garton Sons &Co Ltd [1979] 2 All ER 1185, applied.
Kruber v Grzesiak [1963] VR 621; Letang v Cooper [1965] 1 QB 232; Hinz v Berry [1970] 2 QB 40; Behrens v Bertram Mills Circus Ltd, [1957] 1 ER 583; Cowell v Corrective Services Commission (1988) 13 NSWLR 714; Donoghue v Stevenson [1932] AC 562; Carroll v Folpp, unreported, Supreme Court of New South Wales 10/2/1998; Elliott v Barnes (1951) 51 SR(NSW) 179; Cartledge and Others v EJopling & Sons Ltd [1963] AC 758; Pirelli General Cable Works Ltd v Oscar Faber & Partners (a firm) [1983] 1 All ER 65; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27; Tsanaktsidis v Oulianoff (1980) 24 SASR 500; Coates and Another v Government Insurance Office of New South Wales (1995) 36 NSWLR 1; S v G [1995] 3 NZLR 681, consdiered.

REPRESENTATION:

Counsel:
             Appellant/Defendant:  S P Estcourt and J P E Walker
             Respondent/Plaintiff:  C K Brown and R A Browne
Solicitors:
             Appellant/Defendant:  Collins Law
             Respondent/Plaintiff:  Legal Aid Commission

Judgment category classification:
Judgment ID Number: [1999] TASSC 33
Number of pages: 19

Serial No 33/1999
File No FCA 34/1998

GRAEME JAMES GREGORY WILSON v CHERIE JAYNE HORNE

REASONS FOR JUDGMENT FULL COURT

COX CJ
WRIGHT J
EVANS J
31 March 1999

Orders of the Court:

Appeal dismissed.

Serial No 33/1999
File No FCA 34/1998

GRAEME JAMES GREGORY WILSON v CHERIE JAYNE HORNE

REASONS FOR JUDGMENT FULL COURT

COX CJ
31 March 1999

The respondent/plaintiff began proceedings against the appellant/defendant by filing a writ on 23 May 1996. While the writ claimed damages for negligence, assault, battery and breach of fiduciary duty, the statement of claim confined the respondent's claim…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wilson v Horne

Details

AGLC: Wilson, Graeme James Gregory v Horne, Cherie Jayne [1999] TASSC 33
Case: [1999] TASSC 33
Decision Date: 31 March 1999

CaseChat Overview and Summary

In the case of Graeme James Gregory Wilson v Cherie Jayne Horne, the Full Court of the Supreme Court of Tasmania dismissed the appellant's appeal against the judgment of Underwood J. The court found that the appellant, who was the respondent's uncle, had sexually abused her when she was between the ages of 5 and 12. The respondent filed a writ against the appellant on 23 May 1996, claiming damages for negligence, assault, battery, and breach of fiduciary duty. However, the statement of claim only pursued a claim for negligence. The trial judge found that the respondent had established her claim in negligence and awarded damages, including exemplary damages.

The appellant's first two grounds of appeal argued that the trial judge erred in law by ruling that the respondent's evidence gave rise to a cause of action in negligence. The court rejected this argument, stating that the facts found by the trial judge on the evidence adduced did give rise to a cause of action in negligence. The court further held that the mere fact that the circumstances complained of by a plaintiff might fit more than one category of tort did not deprive the court of jurisdiction to entertain an action in the latter form and grant a remedy therefor, provided all the facts essential to that cause of action could be established.

The remaining grounds of appeal challenged the proposition that the respondent's cause of action only accrued in about 1994, so that the Limitation Act 1974, s5(1) did not operate to bar the remedy. The court found that the respondent did not suffer injuries for which damages might be awarded in an action for negligence until an identifiable form of psychiatric illness, namely Post-Traumatic Stress Disorder, was diagnosed as having commenced in about 1994. The court held that the aberrant sexual development of the respondent fell short of illness or disorder and was not therefore compensable in an action for negligence. Compensable damage only came into existence after 1993 when the symptoms observed and diagnosed as Post-Traumatic Stress Disorder manifested themselves.

In conclusion, the Full Court dismissed the appeal and upheld the judgment of Underwood J, finding that the respondent's claim for damages in negligence was not statute-barred and that the trial judge's findings were correct.

Orders