Stingel v Clark [2006] HCATrans 153 (21 March 2006)

--

Stingel v Clark [2006] HCATrans 153 (21 March 2006)

Last Updated: 29 March 2006

[2006] HCATrans 153

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 TUESDAY, 21 MARCH 2006, AT 3.52 PM

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 appellant. (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, on behalf of the respondent. (instructed by Coadys)

MR T.J. CASEY, QC: If the Court pleases, I appear with my learned friends, MR J.H.L. FORREST, QC and MR A.J.M. MOULDS, for the Commonwealth seeking leave to intervene in this appeal. (instructed by Australian Government Solicitor)

MR J.H. KENNAN, SC: If the Court pleases, I appear with my learned friend, MR K.D. MUELLER, for Carl Henning Wright seeking leave to intervene. (instructed by Hollows)

GLEESON CJ: Mr Casey and Mr Kennan, is it inconvenient if we hear the oral argument of the parties in this matter? We have your written submissions and we look again, at the conclusion of oral argument, on the question of your intervention and hearing in the oral argument from you. Are you content with that?

MR CASEY: Yes, your Honour.

MR KENNAN: Yes, your Honour.

GLEESON CJ: We will take that course. Yes, Mr Gorton.

MR GORTON: If the Court pleases. The appeal in this case relates primarily to the meaning and effect of section 5(1A) of the Limitation of Actions Act 1958 (Vic). That subsection is part of the section imposing primary time limits for the institution of proceedings seeking damages and section 5(1A) is related particularly to:

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 -

I can read on beyond that but, at this stage, the real question is whether the condition suffered by Ms Stingel falls within the meaning of the term “personal injuries consisting of a disease or disorder contracted by” her - - -

GLEESON CJ: Mr Gorton, I realise that the question I am about to ask you may not go to the basis of your argument but how does this section work in a case – and I looking at those words “consist of or include damages” – how does it work in a case such as this? Suppose that the negligent driver of a motor vehicle causes immediate personal injury to a pedestrian in the form of a broken leg and seven years later the pedestrian first suffers a disorder of which the pedestrian could not have known earlier. In other words, there is a completed cause of action immediately upon the injury but one element of the damages is a disease or disorder contracted more than six years later.

MR GORTON: I am not aware of that situation having arisen and being dealt with by any court. It is our submission that this subsection would create a cause of action in respect of that disease or disorder - - -

GLEESON CJ: So there would be two causes of action, would there?

MR GORTON: So there would be two causes of action.

GLEESON CJ: That is pretty close to this case, is it not, assuming that your client suffered some form of personal injury as a consequence of the alleged conduct of the respondent?

MR GORTON: Yes, if that injury was something beyond de minimus or recognisable.

GLEESON CJ: Yes, even if she was only badly bruised, she would have had a cause of action then, would she not?

MR GORTON: Yes, your Honour, for that physical injury.

GLEESON CJ: So does she have two causes of action?

MR GORTON: Yes, your Honour.

GLEESON CJ: I see, thank you.

MR GORTON: That comes about by the addition in 1989 to this subsection of the words:

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

It may be that it should be interpreted as saying that there is one cause of action but its accrual comes later on but it, in effect, is a second cause of action.

I assume the Court is familiar with the facts so that I need not go through them so that the question comes down, assuming we are right about that cause of action situation, to the meaning, purpose, effect to be given to section 5(1A). The starting point, in our submission, in relation to that is to recognise that section 5(1A) creates a primary time limit. It is not in the form of an extension provision. It is deliberately set up as a section creating a right to bring actions a considerable time after the act or omission which gave rise to the injury occurred without having to have regard to possible prejudice to the defendant and without having to go through a process of seeking leave from a court and a discretionary exercise of power in favour of the plaintiff.

The purpose of the section was to deliberately benefit people who were injured in the form or in a way which produced a disease or disorder, the knowledge of the suffering of which was delayed or the knowledge of the cause, the causative act or omission, was delayed.

It is distinguished from section 23A of the Limitation of Actions Act which is a provision giving the courts power to extend the six-year or now three-year limitation period in appropriate circumstances in a discretionary way. Section 23A, that is the discretionary power to extend, has application where the time limit has expired under either section 5(1)(a), the injury cause of action time for the motor car accident causing the immediate trauma that your Honour has referred to, or the expiry of the time of six years, now three, after the delayed commencement of the limitation period and after it has expired.

KIRBY J: Just help me with the history. Did the Victorian legislation ever follow that ungainly English legislation about material fact of a decisive character?

MR GORTON: Fundamentally, yes it did, your Honour.

KIRBY J: Then it sought a simpler remedy, is that what happened?

MR GORTON: Yes, in 1955 there was the first amendment - - -

KIRBY J: Edmund Davies Committee - - -

MR GORTON: The first amendment, following a whole lot of investigation in Victoria by a series of committees produced the Limitation of Actions Act 1955 (Vic) which is set out in part at tab 1 of the appellant’s list of authorities.

KIRBY J: Is it in the compilation?

MR GORTON: Then it was in 1972 that section 23A was first introduced, which should appear under tab 2, that first section 23A but in my copy of these documents, section 23A does not appear. It does appear under tab 3, I apologise. Section 23A as it was first introduced:

This section applies to a cause of action in respect of personal injuries whether or not the cause of action accrued or is claimed to have accrued before the commencement of the Limitation of Actions (Personal Injuries) Act 1972.

There could be an extension of a cause of action for damages for negligence, nuisance or breach of duty where the damages claimed consist of or include damages in respect of personal injuries and it appears to the court that any of the material facts relating to the cause of action were not known to the claimant. I think that is what your Honour was - - -

KIRBY J: It does not appear to have copied, in the way New South Wales and Queensland copied the English legislation which was, in turn, based on the Edmund Davies report.

MR GORTON: No, it introduced this according to the report, putting it in my terms rather than the terms of the report, going its own way because of difficulties in the other legislation.

KIRBY J: That is an understatement. I think it was wise of Victoria to go its own way.

GUMMOW J: Talking of going your own way, can you just look at section 5(1)(a) which you took us to?

MR GORTON: In its current form, your Honour?

GUMMOW J: Yes.

MR GORTON: Yes.

GUMMOW J: It says:

Subject to sub-sections . . . (1A), actions founded on simple contract (including contract implied in law) –

which will get restitution people in a lather –

or actions founded on tort –

and then you come to (1A). It does not say “damages in tort”. It says something less. The class actions founded on tort in 5(1A) is contracted into actions for “negligence nuisance or breach of duty”.

MR GORTON: Yes, your Honour.

GUMMOW J: What is the significance of that, if any?

MR GORTON: The significance of that is that it runs into some of the complexities that are raised in the notice of contention is what was meant. That was adopted as the wording enacted in England following the Tucker Report in 1939.

GUMMOW J: I know. But did any of these committees who cogitated over this make any point of the difference in the drafting that they are proposing between the new (1A) and the existing 5(1)(a)?

MR GORTON: I think the answer to your Honour’s question is not in that respect. They did look at these words in the sense of asking whether trespass causing personal injuries would be covered by the term “breach of duty”. That was so that there was consideration of the breadth of the words in that sense but no consideration that I am able to point to as saying why do we not do it as just saying tort as we did in 5(1)?

GUMMOW J: Provided there are damages in respect of personal injuries.

MR GORTON: Yes. It is a way that it could have been done. It appears to be adopting the wording from England and there is not an explanation given of - - -

GUMMOW J: The wording in England was then given a particular meaning, was it not, by the House of Lords?

MR GORTON: Yes. The wording in England was adopted following the Tucker Report which suggested these words and suggested that those words should not include “trespass” or “false imprisonment” or “defamation”.

GUMMOW J: Or nervous shock cases, I suppose.

MR GORTON: Nervous shock was not specifically dealt with, as I recall it, in any of the committee reports. The English Tucker Report which was enacted into the English legislation made specific recommendations and it appears that the English Parliament adopted the recommendations of not meaning to include “trespass to the person” in their language but the committee that considered the matter in Victoria obtained advice from Justice O’Bryan in a committee saying that that omission of “trespass” was meant to relate to trespass causing property damage and the trespass causing personal injury should fall within the meaning of these words.

GLEESON CJ: Was your client of full capacity to sue at the time of the alleged events?

MR GORTON: No. She was 16, I think, at the time - - -

GLEESON CJ: Was there some postponement of the limitation bar by reason of her age, in any event?

MR GORTON: Yes, there was until she was 21 at the time. Yes, not 18 but 21. But that would have expired in 1976.

GLEESON CJ: I see. I just wanted to be accurate as to when the limitation period on the case against you expired and it was six years after she turned 21, was it?

MR GORTON: Yes, your Honour, which would make it 1982, I think. Certainly well before the proceeding so that if we are wrong on this matter then we are outside the limitation period.

HAYNE J: In computing that time there has been a wavering in the legislation, has not there, between three-year and six-year periods for personal injuries - - -

MR GORTON: Yes, your Honour.

HAYNE J: - - - and you would need to identify which period was then relevantly to be applied.

MR GORTON: But it really does not matter, I do not think, your Honour, whether it was three years or six years from time to time. Whichever it was it had certainly expired before the proceedings were issued.

GLEESON CJ: In the example I gave earlier about the person injured in the motor vehicle accident who suffers post-traumatic stress disorder seven years later, if between the time of the accident and the time of the seven years, an action for damages for personal injuries has been brought to conclusion and the pedestrian has been awarded damages, is it still the case that the pedestrian has another go?

MR GORTON: I do not know the answer to that question, your Honour. We would say yes, it would still be the case because there is a cause of action which would be restricted to the disease condition but again, as I say, that is not something that I can answer from experience of what has happened in the past. It is a question of whether this section would overcome the principle that an award of damages for a tort is the final resolution of that tort.

GLEESON CJ: On your argument, your client in this case, when she turned 21, could have sued the respondent for damages and obtained an award of damages and then later sued for more damages.

MR GORTON: Yes. She could have sued without damage for the trespass, as it was, and she could have sued - - -

GLEESON CJ: She probably suffered some damage as a result of the - - -

MR GORTON: If she suffered some damage. Experience tells you that there would be some damage associated with it but there was no evidence to suggest that there was any damage to the body suffered at the time. That is probably a nitpicking response rather than a real response to your Honour. She could have sued in any event for trespass without damage. She could not have sued effectively for damages for damage unless there was some damage beyond de minimus which there very probably was.

Our position is that this section 5(1A) does create the right to sue, whatever has happened to the action for damages that would have arisen for personal injuries that were traumatically received and apparent at the moment of reception as a result of apparently somebody else’s act or default or omission.

The question that your Honour has raised was not subject to discussion in the committees that dealt with this and the committees that dealt with this certainly seemed to approach it on the basis that you were going to have your disease or disorder, whatever that may be, as something distinct from another form of damage and there was no discussion as to whether they were alternatives or cumulatives.

GLEESON CJ: Everybody seems to agree it would include mesothelioma.

MR GORTON: Yes, your Honour.

GLEESON CJ: So, presumably on your submission if a worker was believed to have contracted some kind of lung disease but it was not known to be mesothelioma the worker could sue within the ordinary limitation period and, indeed, sue to judgment and then start another action for damages when it was found that he had mesothelioma.

MR GORTON: Yes, your Honour. That sort of concept was discussed, more or less, in passing by Justice Eames when he talked about the distinction between trauma and other events as acts or omissions. He dealt with a case where you have a bag of asbestos drop on top of you and you inhale the asbestos at the time and get physical injuries at the time but mesothelioma much later from that exposure and appeared to approach that on the basis sort of that the section 5(1A) would create the cause of action in that case for the mesothelioma. If I can leave that point, I do not think I can usefully say anything more about it, your Honour.

CRENNAN J: I suppose section 23A(4) has something to say about the circumstance of an action being commenced. It does not say anything about it having been concluded by a judgment.

MR GORTON: Your Honour is looking at the - - -

CRENNAN J: It covers a situation where “more than 6 years has expired since the cause of action accrued” and an action has been commenced.

MR GORTON: Your Honour is looking, I think, at section 23A as it was in 1972 - - -

CRENNAN J: No, I was looking at it in the - - -

MR GORTON: Or you are looking at the current one?

CRENNAN J: I was looking at in, I think, Reprint 7 which is the relevant reprint, is it not, in terms of when the cause of action was commenced by the plaintiff in this case?

MR GORTON: Yes, I think so, your Honour. The reality of subsection (4) was that it was designed to allow people to make applications when they omitted to have regard to the limitation period and commenced proceedings and then they were authorised to bring an application under 23A even though proceedings had been commenced and it is applicable to all causes of action and it is applicable once the limitation period under section 5(1A) has commenced and run and expired. I do not believe that I can make a useful argument that that says that section 5(1A) begins or ends at any particular time or has a duplicating cause of action affect.

GLEESON CJ: Mr Gorton, there is a repeated reference in the written submissions and in the judgments to that American standard diagnostic criteria. Where can we most conveniently find that?

MR GORTON: A portion of it is set out in the appeal book.

GLEESON CJ: I was actually interested to look at the whole of it, if that was possible?

MR GORTON: I regret to say I left my copy of it back in Melbourne, your Honour. Your Honour has asked for the whole of it but we only have extracts from it.

GLEESON CJ: I will tell you why I asked and you might have a think about this overnight. As I understand one of the arguments that is put against you, it is that if you cast your eyes over that document you will find all manner of disorders that on your argument would be comprehended by this legislation. Now, that may be no argument against you but I would just be interested to see what that diagnostic manual covers as disorders.

MR GORTON: I think the most I can refer the Court to is in the court book prepared by the respondent. It starts there at page xxx.

HAYNE J: It is tab 3.

MR GORTON: Tab 3, and in the appellant’s book of authorities it appears at tab 14 starting at page xxiv and going through to xxxi, and I have been provided, your Honour, with appendix E from DSM-IV-TR Diagnoses and Codes, which is an index setting out the disorders that are dealt with in the book, and I am in a position to either provide that as one copy now or have it copied and provide more copies tomorrow.

GLEESON CJ: I notice just looking at it quickly that one form of disorder is alcohol dependence.

MR GORTON: Yes, your Honour, I think that is - - -

GLEESON CJ: Is that a form of disorder that could develop more than six years after an injurious event and constitute the basis of an independent cause of action?

MR GORTON: It depends on the facts of a particular case. In most cases one would say probably not, though in many cases where post-traumatic stress disorder is complained of as a result of a stress, it is commonly associated – or commonly associated with post-traumatic stress disorder is alcoholism as a response to the stress and a condition that frequently accompanies it and that is commonly recognised by medical practitioners dealing with post-traumatic stress disorder. I do not have enough experience in other areas of mental disease to say whether it would receive
that sort of support from doctors in other areas or not. It would depend on the facts of each case whether in some way alcoholism did develop years after an act or omission and whether it could be associated with that act or omission.

GLEESON CJ: Is that a convenient time, Mr Gorton?

MR GORTON: Yes, your Honour, but if I could just say one thing though. We say that the DSM-IV argument supports our proposition that disease and disorder is used to cover physical and mental and a reference in that guide saying that they are very difficult to distinguish between what is a mental disorder and what is a physical disorder, and there is crossing over from one to another, and that is not an argument against us but an argument in our favour for “disease and disorder” having a wide and general meaning.

GLEESON CJ: Thank you, Mr Gorton. We will adjourn until 10.15 tomorrow.

AT 4.24 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 22 MARCH 2006