Stingel v Clark [2005] HCATrans 969 (18 November 2005)

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Stingel v Clark [2005] HCATrans 969 (18 November 2005)

Last Updated: 24 November 2005

[2005] HCATrans 969

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M63 of 2005

B e t w e e n -

CAROL ANNE STINGEL

Applicant

and

GEOFFREY CLARK

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2005, AT 9.31 AM

Copyright in the High Court of Australia

MR R.P. GORTON, QC: If the Court pleases, I appear with my learned friend, MR T.J. SECCULL, for the applicant. (instructed by Maurice Blackburn Cashman)

MR R.J. STANLEY, QC: If the Court pleases, I appear with my learned friend, MR C.M. O’NEILL, for the respondent. (instructed by Coadys)

GUMMOW J: Yes, Mr Gorton.

MR GORTON: If the Court pleases. There was a letter sent to the parties raising - - -

GUMMOW J: Yes, we have digested all of that and there seems to have been a false alarm.

MR GORTON: That has gone, yes, thank you, your Honour. Your Honour, section 5(1A) of the Limitation of Actions Act is a section which has vital importance for over 150 cases in Victoria on the affidavit evidence that has been filed. It is a section which has been considered by 12 Supreme Court judges.

GUMMOW J: We see it set out at page 40 of the application book, do we not?

MR GORTON: Yes, that is correct, your Honour.

KIRBY J: You formally read the affidavit of Dr Vivian Waller, I assume.

MR GORTON: Yes, your Honour. Do you wish me to read it?

KIRBY J: No, I am just putting it on the record in case there is any objection to it.

MR GORTON: We do rely on that. The section has been considered, as I said, by 12 judges of the Supreme Court.

GUMMOW J: What is the nub of the disagreement as to the construction of the text?

MR GORTON: There are three matters that are there, your Honour. The first is read the words “personal injuries consisting of a disease or disorder contracted by any person” in their ordinary everyday meaning. Do not look for any restriction or limitations in any extrinsic material or background way and consider each case on its facts to see whether they fall within those words. That is what six of the judges have said.

Two of the judges, President Winneke and Justice Chernov, said that in interpreting those words, having regard to the extrinsic material, they should be interpreted as saying, in effect, that there is a dichotomy to be drawn between traumatic injuries and insidious diseases, and traumatic injuries cannot fall within the words and insidious diseases do, and the words ought to be interpreted as if they were limited to insidious diseases, whatever that term encompasses, and they should be interpreted as excluding any condition that arises from trauma.

The third interpretation placed on them was the interpretation in the current case in the judgement of Justice Eames with which President Winneke and Justice Charles agreed. In that judgment the dichotomy suggested by the President and Justice Chernov in the earlier case of Mazzeo was said to be inappropriate as a dichotomy and the words should be interpreted, according to the current judgment, as if there is a division of personal injuries consisting of disease or disorder into insidious diseases or disorders, on the one hand, and frank diseases or disorders, the contraction of which is neither unduly delayed nor disguised and which are contracted at or about the time of the tortious act which causes them.

Either of the dichotomies is a plainly wrong interpretation of the section and the proper interpretation of the section is one which says take the words as they appear and, as Justice Tadgell said in Mazzeo, look at them on a case-by-case basis to see whether what is presented to the court falls within them or whether it falls without them.

After the decision in this case Justice Ashley looked at the decision in this case in footnotes to the case of Wright v Commonwealth of Australia, a case concerning post-traumatic stress disorder arising from the Melbourne/Voyager collision and he drew attention to the inadequacy of the dichotomy set up in this case as a means of dealing with and applying section 5(1A).

GUMMOW J: Whereabouts in Justice Ashley’s judgement?

MR GORTON: Page 119, in volume 1, tab 19.

GUMMOW J: Yes, it is a long footnote there.

MR GORTON: The footnote at 270. He in effect, without reading him in full, says his knowledge of and experience of cases and the medicine involved in cases says that there is no appropriate line that can be drawn between, I think he describes it as no “sufficiently bright line” in the circumstances that allows you to make a dichotomy and include some and exclude some. His proposition, if his statements of medicine and fact are accepted, is that if the interpretation adopted in the case in which we seek leave to appeal is adopted, it will in effect exclude the very injuries that the extrinsic material talks about, that is mesothelioma or asbestosis or pneumoconiosis, because those injuries, on factual scenarios, the medical scenario of how they develop, would not fall within the insidious disease concept arising at about the time of the tortious act.

KIRBY J: Why not?

MR GORTON: Because they do not, as a matter of fact. Mesothelioma arises – I would put as a proposition and Justice Ashley has suggested that the tortious act involves the exposure of the person to asbestos. The exposure to the asbestos might create a traumatic injury in the sense of the asbestos entering the body at the time but the development of the mesothelioma is something that occurs at an unknown time in relation to that trauma and - - -

KIRBY J: That just seems to be the insidious disease.

MR GORTON: - - - that it cannot be said to be contracted at a time proximate to the tortious conduct which is part of the dichotomy that is drawn by Justice Eames and the court in this case. That dichotomy runs a very real risk, at least, of excluding a number of the diseases that are referred to in the extrinsic material, which we say is of no proper use in this case, in any event, but it does refer to it.

KIRBY J: The problem with your theory of the statute is that it really pays no heed to the considerations that Justice McHugh mentioned in Brisbane South Regional Health Authority v Taylor. It does then run a team of elephants through the statute of limitations and exposes people 30 years later to being sued.

MR GORTON: It does do that, but it does that not as an extension provision. This is a primary limitation provision section adopted by the Parliament, not requiring any consideration of the extension provisions.

GUMMOW J: Is there anything in the second reading speech which we have in these materials? Does that throw any light that helps you?

MR GORTON: It does not really help us or help the other - - -

KIRBY J: I think it is pretty clear that the reason for these dichotomies is that the Court is looking for an interpretation that is not going to run a team of elephants through the statute. This is why the Court has been looking for a formula, but, anyway, answer Justice Gummow’s question. Is there anything in the second reading speech that helps?

MR GORTON: We would say that there is nothing in the second reading speech that is sufficient to take it one way or the other. There is reference in the second reading speech to, I think, asbestosis and pneumoconiosis as examples that have prompted consideration of this sort of section and that there is reference in the second reading speech to the earlier decision of Cartledge v Jopling and to the Chief Justice’s Law Reform Committee report which is referred to in the second reading speech.

GUMMOW J: Yes, we have that.

MR GORTON: They are both here in tabs 12 and 13. What the speech and that committee’s report is doing is saying where you have a disease which is not recognised at the time of its onset there should be the ability to start the cause of action when both it is recognised as existing and it is recognised at that time that it is the act or omission of some person.

HAYNE J: In the Assembly speech in 1982 behind tab 13, page 2766, do I find any more than, at the foot of column 1:

Personal injury claims with respect to the contracting of a disease or disorder are treated differently from all other personal injury claims. No longer will a person have to seek an extension of time –

and then at the foot of column 2:

The amendments . . . produce the following benefits:

. . .

(b) A recognition of and provision for the particular difficulties in disease and disorder cases concerning the possible expiration of the limitation period before the injured person knows he has a cause of action.

MR GORTON: That is the substance of the speech, your Honour, and there are examples given of particular types, but the substance is that general overriding purpose.

HAYNE J: If it cuts any way, it may cut neither way. It might perhaps be thought to cut your way.

MR GORTON: It could be said. There are countervailing aspects and my friends, I assume, will say they are talking about industrial diseases, it is all promoted through the fact that - - -

GUMMOW J: It is the earlier cases on the industrial diseases that seemed to have inspired the legislation, Cartledge v Jopling and so on.

MR GORTON: Yes, and complaints by lawyers.

KIRBY J: The theory, I think, behind the reform was that there are some conditions which you do not know happen to you and they are insidiously going on inside you and you should not be put out by a statute of limitations because it is unreasonable to expect you to know it. But where, as in your case, an alleged event happened, a traumatic event, it is hardly going to attract that sort of exception to the general statute of limitations principle that Justice McHugh refers to.

MR GORTON: Your Honours should not easily say because the trauma in our case was an obvious and apparent trauma that you can say it excludes traumatically caused conditions. This Court has said on a number of occasions that the trauma of a virus entering the body or the virus entering the body is a trauma and the disease flowing from that trauma manifests itself considerably later. That is Favelle Mort Ltd v Murray which is amongst the papers, and not the only one. So the suggestion that the problem is solved by saying, “If it is caused by trauma and occurs later on, it should be excluded from the section”, will exclude, as an approach, many conditions that would fall within insidious diseases but have an initiating traumatic event recognised by the law and not so easily apparent in day-to-day life but, nonetheless, trauma, so that that distinction is not one which should be brought into play in - - -

KIRBY J: I understand the force of that argument and I take the force of that argument but those cases have been decided on questions of whether workers can recover compensation under beneficial provisions of Acts giving benefits. This is a question of whether one construes a statute of limitations and amendment to it in a way that does not, as it were, effectively undermine the whole purpose of statutes of limitation.

MR GORTON: Certainly, your Honour, but the examples of the sort of thing that Justice Tadgell in Mazzeo talked about, medical negligence cases, there are examples that can be produced of people in hospital being exposed to viruses that they did not know were coming from the hospital and years later they get a problem coming from a virus. It is the same sort of situation as Favelle Mort Ltd v Murray in this environment, not in a workers compensation environment, so that you would - - -

KIRBY J: But a virus in hospital is a pretty clear case of an insidious disease.

MR GORTON: It is traumatically caused as well on one evaluation of what trauma comprises. The reality is, in our submission, that once you start trying to read down the ordinary meaning of the words and put in a rule that says, “This categorisation of diseases or disorders are good for being able to bring actions; this category is bad”, and you start trying to categorise diseases or disorders beyond the ordinary words that are used in the Act, you create problems because the circumstances of human life and suffering diseases and disorders and developing the onset of them is so broad that you will be excluding things you meant to include and including things that you meant to exclude. The only satisfactory way of achieving the end result is to allow a court to look at each fact situation as it arises rather than imposing some additional requirements beyond those set out in the words of the Act.

GUMMOW J: These words “negligence nuisance or breach of duty” were treated rather differently by the House of Lords, were they not?

MR GORTON: Yes, your Honour, but in the Victorian court in the decision in Mason v Mason it was held that a trespass fell within those words. I would hope that Justice Hayne would consider that decision was correct.

HAYNE J: It is no good reading up my priors, Mr Gorton.

MR GORTON: But that matter was argued in this Court in this case as to whether a trespass could fall within the words, with an attempt made in this case to overturn Mason v Mason. This Court did not overturn Mason’s Case so that - - -

GUMMOW J: I am just trying to work out whether, if we took this case, it would, nevertheless, come into it. It is probably a question for your opponent.

MR GORTON: The only other matter I think with any value of me saying at this stage is that two judges have tried to set out an explanation of a dichotomy that is satisfactory. Those two judges have, in our submission, failed, that is Justice Chernov and Justice Eames. Justice Chernov’s dichotomy has been said by Justice Eames not to be appropriate. We are saying Justice Eames’s dichotomy is not appropriate. It is not a matter that can be dealt with by any rearranging of the words that are there; it is a matter of saying, interpret those words as they stand without going and trying to plunder their meaning by extracting an uncertain intent from unfair extrinsic material.

GUMMOW J: Yes, thank you, Mr Gorton. Yes, Mr Stanley

MR STANLEY: If the Court pleases. We obviously rely upon our written submissions and, in particular, we say that this issue has been now determined by a court that was specially convened to determine the matter so as to resolve any uncertainty that may have previously existed.

KIRBY J: Subject to us.

MR STANLEY: Subject, of course, to your Honours. It is a Victorian statute that has no counterpart in - - -

KIRBY J: It is just as well Justice Callinan is not here to hear you say that because he gets very upset. We are the supreme Court of Australia and the fact that it is a statute of Victoria is neither here nor there. The citizens in Victoria are entitled to have our opinion if it is a proper case. It is fair to say, is it not, that there is a division of opinion in the Court of Appeal and, potentially, the division affects a range of different cases quite apart from your client’s case? That is the aspect that attracts me to a grant of special leave, that it affects a whole range of other cases.

MR STANLEY: If your Honour is referring to the other 158 cases, with respect to those, there is a lot we do not know.

KIRBY J: I realise that, but they do make the point, without going into the detail, that the dichotomies, which I understand and have some partial sympathy for, nonetheless, do present themselves in a whole range of cases different from your client’s case.

MR STANLEY: Every one of those cases either has or had the right to bring an application under section 23A for an extension of time. There can be, therefore, we would say, no injustice to any party that suffers injury as a result of that, whether it be a sexual abuse or whether it be as a result of some previous traumatic event.

HAYNE J: But the issues on an extension application are radically different from the issue presented by 5(1A) and its provision that the cause of action shall be taken to have accrued on a particular date.

MR STANLEY: Your Honour, section 5(1A) requires the plaintiff to show nothing other than that he comes within the section in the sense that it is a disease or disorder contracted and then that he or she did not know the two mattered.

HAYNE J: Just so.

MR STANLEY: So there is no issue of prejudice or considering the rights of the defendant. Section 23A, under the scheme that has been incorporated in the Act, requires an application to be made so that the rights of the defendant are heard and a fair result should eventuate. Again, essentially it relates to the issue of when the plaintiff knew certain things. Clearly, the application under section 23A cannot be brought before the plaintiff has suffered an injury and knows he has suffered it, but there are other factors as well that come into account, particularly referable to the delay, to determine whether it is fair or otherwise.

The Court asked my learned friend whether the extrinsic material was of relevance and he indicated that he thought it went either way. We would dispute that and take your Honours briefly to the report of the subcommittee of the Chief Justice’s Law Reform Committee, which is at tab 12. The whole issue of the personal injury claims under the Limitation of Actions Act was causing considerable problems in the 1960s and into the 1970s and the matter was referred to this subcommittee - - -

GUMMOW J: Did the subcommittee explain the origin of this rather mysterious phrase, “negligence nuisance or breach of duty”? Why did they just not say “in tort” or “breach of statutory duty”?

MR STANLEY: Not in its report, your Honour. I cannot answer that, your Honour. The subcommittee was set up to review the whole issue of limitation of actions for personal injuries. If your Honours go to page 5, you will see, under paragraph (f), the last sentence:

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.

The committee then looked, under paragraph 2 on that page, at “Disease cases” and then set out its recommendation. Under the “Commentary” there is reference to:

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 and that it was caused by some act or omission of his employer.

So it is to overcome that sort of problem that essentially section 5(1A) was introduced. Then, over the page, we look at the other sort of injury that the committee was concerned with and that relates to extension of time for personal injury cases and they recommended that there be an extension there of up to six years, because at this time the limitation period was only three years in personal injury cases. Section 23A, if I can call it the old section 23A that came in 1972, had proved very, very difficult, particularly in these cases of insidious diseases, because it meant that - - -

KIRBY J: But you just get a bit of a suspicion that this is just the latest case of the unsympathy of the common law to mental disorders. I understand everybody is sympathetic to mesothelioma and diseases of an insidious kind, but the statute uses the words “disease or disorder” and the English law and the Australian law have been very unsympathetic to mental disorders which are a real factor in our community. They affect lots of people. So why would one read down the word “disorder” to exclude mental disorders that the person cannot put their finger on, do not even perhaps realise that they have?

GUMMOW J: Nervous shock cases were well known in this era, which may explain the use of the phrase “disease or disorder”.

MR STANLEY: Everyone can really be guessing as to why the words “or disorder” were introduced. There does not seem to be any specific explanation for it. It first seems to have come in at page 5, what I have just read to the Court. Under the heading of “Disease cases” the recommendation, under subparagraph (ii)(b), refers to “contracting of a disease or disorder”.

KIRBY J: Well, “disorder” is meant to do something in addition to “disease”.

MR STANLEY: Maybe it was just, as Mr Justice Eames said, because there was some uncertainty as to what might be encompassed within “disease”.

KIRBY J: Your former Premier here has become involved in depression and mental conditions, and very rightly so, if I can say so, but why do they not fall within “disorder”?

MR STANLEY: Because, we would submit, your Honour, they are not contracted. The use of the word “contracted” we say has particular relevance and it indicates the way in which the disease or disorder is suffered, is obtained.

HAYNE J: What is it adding other than a degree of externality, if that is the sense that you say it is to be derived from?

MR STANLEY: Your Honour, we would say that in ordinary parlance you do not contract a disease in the sense that you do not contract post-traumatic stress disorder.

KIRBY J: I am not sure if that is right because often they say people contracted HIV.

MR STANLEY: You do not contract a disorder, I am sorry. I beg your pardon. You do not contract a disorder such as post-traumatic stress disorder.

KIRBY J: I think you have a very narrow view of “contract”.

MR STANLEY: Your Honour, if I can answer the issue you raised with me before, and indeed it was raised by my learned friend. These medical negligence cases and the mental illness cases can all be met fairly to the plaintiff by the application of section 23A. The new section 23A that was brought in as part of this scheme is much more forgiving than the old one was. It is simply a matter of making an application without time constraints and this Court then has to determine the case essentially on the basis of where it is fair and reasonable at the end of the day in the light of all the evidence.

It is clear beyond doubt, we submit, that when one looks at what was said in the Assembly by Mr Cain, the Attorney-General as he then was, that what was intended at the time this section 5(1A) came in was to introduce a whole new scheme for limitation actions. He says there, quite bluntly, at the foot of page 2765 at the foot of the second column. If we go over the page, there are three amendments, three changes to the existing system. The first one is:

In personal injury claims, other than disease or disorder cases, the injured person may bring his action for damages within six years after the date of the accrual of his cause of action.

Previously, it had been three, so now in personal injury cases it is brought to six years to make it consistent with limitation periods applicable to other tort and contract cases.

The second aspect was the introduction of section 5(1A). With respect to that, the Attorney said:

In disease cases, such as asbestosis or pneumoconiosis, the injured person may bring his action for damages within six years from the date that he knows he has the disease or disorder and that someone is responsible –

a perfectly fair and appropriate result, we would submit, and consistent with the advice that was being given from the subcommittee of the Chief Justice’s Law Reform Committee.

The third aspect is what we call the new section 23A. In the second paragraph on the first column of 2766, the Attorney said:

In all personal injury claims, if the injured person fails to bring the action within the relevant six-year period, he can apply to a court for an extension of time in which to bring his action. The court will decide in all the circumstances of the case whether it is just and reasonable to grant the extension.

So that scheme enables people, whether they are suffering injury as a result of some medical negligence or mishap or whether it is as a result of some abuse, whether it be physical or psychiatric or mental abuse – if a psychiatric injury is suffered, that person has the right to bring an application under section 23A. That was the scheme that was introduced as it applied at the time - - -

KIRBY J: But you know as well as we do that you interpret statutes not by what was in the subjective mind of the Minister or anybody else. Ultimately, our duty is to the purpose of Parliament as expressed in its language, and you have to overcome that word “disorder”, it seems to me.

MR STANLEY: But, your Honour, we would say to that that one has to give weight also to the word following it, namely the word “contracted”.

GUMMOW J: Yes, I think we are seized of that. If we were minded to grant leave, would there be any notice of contention?

MR STANLEY: I would have to seek some instructions with respect to that, your Honour.

GUMMOW J: We should know about these things. You should come here prepared to threaten us with it.

MR STANLEY: It was not our intention that the matter of Mason v Mason should be revisited. That matter has been resolved by five members of the court that sat in this case and I cannot say for certain what the position was with respect to Mason v Mason itself, what the composition of the court was there.

KIRBY J: You were just saying you are loyal and you accept whatever the majority say and you are not going to – but now you are in a new ballpark. This is the gladiators. I think you have been given a bit of a hint that if the matter is going to come up to us, we would want to look at that House of Lords authority. If we are going to do it, we have to do it properly.

MR STANLEY: I do not know that I can say any more at this stage, your Honours.

GUMMOW J: Thank you, Mr Stanley. We do not need to hear you in reply, Mr Gorton. There will be a grant of leave in this matter. It will be a one-day case, I would think.

AT 10.06 AM THE MATTER WAS CONCLUDED