Category Archives: limitation of actions

Limitation of Actions and Post Traumatic Stress Disorder

I was interested to see that the High Court have handed down a decision in Stingel v Clark [2006] HCA 37.

This case involves former chairman of ATSIC, Geoff Clark, and Carol Stingel, a woman who alleges that Clark was the leader of a pack of men who gang raped her in 1971. She claims that she suffered post traumatic stress disorder which had delayed onset and that it developed in 2000 when she saw reports that Mr Clark had become chairman of ATSIC.

The case hinges on the interpretation of s 5(1A) of the Limitation of Actions Act 1958 (Vic), which reads as follows:

“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) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than six years from and the cause of action shall be taken to have accrued on the date on which the person first knows –

(a) that he has suffered those personal injuries; and
(b) that those personal injuries were caused by the act or omission of some person.”

Gleeson CJ, Callinan, Heydon and Crennan JJ gave a joint judgment and Hayne J gave a separate judgment, in which they allowed the appeal by Ms Stingel. Gummow J and Kirby J dissented in separate judgments.

Essentially, Clark’s counsel were arguing that the words “breach of duty” in s 5(1A) did not cover an intentional assault or trespass. Gleeson CJ, Callinan, Heydon and Crennan JJ noted that this interpretation would mean that an injured plaintiff who was the victim of an intentional trespass would be worse off under the Act than a plaintiff who was a victim of negligence. They state:

“In the case of injuries of the kind dealt with by s 5(1A), assuming the other conditions are satisfied, the statute extends the limitation period in the case of a person who was neglected as a child, but not one who was sexually abused. It is difficult to understand why the policy of the Act would be to discriminate in that fashion.”

In his separate judgment, Hayne J agreed with the findings of Gleeson CJ, Callinan, Heydon and Crennan JJ and stressed the historical context of such an interpretation.

In comparison, each of Gummow J and Kirby J found in separate judgments that “breach of duty” in s 5(1A) did not cover an intentional assault or trespass. In so finding, they followed the UK authority of Stubbings v Webb [1993] AC 498 and the Irish authority of Devlin v Roche [2002] 2 IR 360, both of which had dealt with substantially similar legislation.

The next argument by Clark’s counsel was that the word “damages” in s 5(1A) was intended to distinguish between “traumatic” or “frank” personal injuries and “insidious” personal injuries. Counsel argued that the reference to “damages” only applies to insidious diseases where the victim is not aware they have contracted the disease, where symptoms do not become evident within the limitation period and the symptoms become evident at a later time.

Winneke P, Charles and Eames JJA of the Victorian Court of Appeal had adopted this distinction. They held that Ms Stingel’s injury was “traumatic” or “frank” (being the assault and rape which occurred in 1971) followed by a late-onset psyhiatric condition and was thus not covered by s 5(1A). This was contrasted with an insidiously progressive disease (such as asbestosis). Warren CJ and Callaway JA dissented and refused to adopt this distinction. They were of the opinion that the word “damages” was unambiguous, and that there was nothing in the wording of the section which would merit a distinction between “traumatic” and “insidious” injuries.

It seems to me that, on a legal basis, the decision of the majority is correct. That is to say, there seems no reason from the history and words of the statute to draw distinctions between an intentional assault or trespass and negligence or “traumatic” and “insidious” injuries.

The interesting question is how this case will affect various claims for post traumatic stress disorder and whether (in that time-honoured phrase) “the floodgates have been opened”. I would suggest that claimants such as Ms Stingel will still face substantial difficulties in bringing claims. The length of time between the original triggering event and the later psychiatric injury will mean that claimants’ cases will probably be difficult to prove on the merits. I will watch with interest to see how Ms Stingel fares on the merits against Mr Clark.

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