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Article Excerpt
[This article examines the application of limitation periods to civil actions for sexual assault, with particular reference to the High Court of Australia's decision in Stingel v Clark and the 'reforms' enacted pursuant to the recommendations of the Ipp Report. In Stingel v Clark, a majority of the High Court held that under the Limitation of Actions Act 1958 (Vic) as it stood at the relevant time, the limitation period would only begin to run from the time the survivor of the sexual assault recognised the connection between the assault and the harm resulting from it. This article argues that the case was correctly decided both on grounds of correct statutory interpretation and on sound public policy. It then reviews changes that have been enacted to limitation periods in Victoria and other Australian jurisdictions based on the recommendations of the Ipp Report. The article is critical of the fact that the effect of the changes in Victoria has been to erode the extension of time benefits conferred by the High Court's decision. It then examines the relevant statutory limitations provisions throughout Australia and argues that these are inconsistent, unduly complex and inadequate in the context of civil sexual assault actions. The article concludes that the only way to ensure that a consistent and just approach is taken to the issue is to enact simple and uniform legislation throughout Australia which completely eliminates the time bar in sexual assault actions.]
CONTENTS I Introduction II Stingel v Clark A The Background to the Case B Is an Intentional Trespass a Breach of Duty? 1 The Legislative History (a) The Tucker Committee. (b) The Context of Subsequent Legislative Amendments (c) The 'Decisional Context' in Which s 5(1A) Was Enacted 2 Jurisprudential Analysis of the Phrase 'Breach of Duty'. 3 An Anomalous Result C Is PTSD of Delayed Onset a 'Disease or Disorder Contracted'? 1 The Court of Appeal Majority: Section 5(1A) Applies to Insidious Diseases Only 2 The High Court: Unambiguous Language 3 PTSD as a 'Disease or Disorder': Taking PTSD Seriously III The Current Position in Victoria: The Ipp Report and Subsequent Amendments to the Limitation of Actions Act 1958 (Vic) A The Ipp 'Reforms' in Victoria B Evaluation of the Ipp 'Reforms' in Victoria 1 The 12-Year Long-Stop Period: A Step Backwards for Survivors in Victoria 2 The Problem with Leaving the Extension of Time up to the Court's Discretion: The Story of Joanne McGuinness IV The Position in Other Australian States and Territories V The Need for Change: Towards the Abolition of the Time Bar VI Conclusion
I INTRODUCTION
The High Court of Australia's decision in Stingel v Clark (1) is an important step forward for survivors of childhood sexual assault who pursue a 'late' (2) civil claim against the perpetrator. The High Court decided that, based on the Limitation of Actions Act 1958 (Vic) ('the Act') as it stood at the relevant time, the limitation period for bringing an action only began to run from the time the survivor recognised the connection between the assault and the harm resulting from it. (3) Unfortunately, legislative amendments introduced in Victoria following the Review of the Law of Negligence: Final Report ('Ipp Report') (4) have largely eroded the Victoria-specific extension of time benefits offered by the High Court's decision. (5) But for survivors like Ms Stingel who commenced late compensation proceedings before the 'reforms' took effect, (6) the decision provided a short-lived opportunity to at least have their cases heard. At a broader, continuing and symbolic level, the decision implicitly acknowledges that a delayed complaint of sexual assault is not to be treated with automatic suspicion and that, moreover, the delay in bringing an action is often a product of the consequences of the specific psychological harm suffered by the survivor. The decision supports the principle that the damage caused by sexual assault can be long lasting, suppressed and extremely serious. This article argues that it is high time for Australian state legislatures to also recognise this fact by following the lead of a number of overseas jurisdictions which have abolished the limitation period for civil sexual assault actions. (7)
The central issue in Stingel v Clark was whether an action for sexual assault could proceed in the context of a 31-year lapse from the alleged assault to the commencement of proceedings. This involved the resolution of two complex questions of statutory interpretation relating to the Act as it then stood. First, does an intentional trespass (the sexual assault) amount to a 'breach of duty' within the meaning of the Act? (8) Secondly, is post-traumatic stress disorder ('PTSD') of delayed onset a 'disease or disorder contracted' within the meaning of the Act? (9) The High Court's affirmative answer to the first question (10) marked a departure from the problematic position taken by the House of Lords in Stubbings v Webb (11) and the Supreme Court of Ireland in Devlin v Roche (12) in their interpretation of similarly worded legislation. (13) On the second issue, the High Court accepted that PTSD of delayed onset is 'a disease or disorder contracted', even though it is a delayed consequence of a 'traumatic' (rape) rather than 'insidious' injury. (14) In doing so, the Court overruled a distinction that had been made in earlier authorities between 'insidious' injuries and 'traumatic' or 'frank' injures, which had limited the benefits of the relevant statutory extension provision to cases of the former. (15)
This article argues that the decision of the High Court in Stingel v Clark should be applauded on the grounds of both correct statutory interpretation and public policy. It is, however, critical of the fact that Ms Stingel was only able to have her case heard after a complex and longwinded legal battle about the meaning of statutory language, rather than on the sound policy ground of giving childhood survivors of sexual assault the time they need to decide whether or not to bring an action. This article examines the complex, varied and (it is argued) inadequate nature of the relevant statutory limitations provisions applying throughout Australia and, in particular, the Ipp Report-inspired amendments to the Victorian Act that have eroded the benefits of Stingel v Clark in that state. The article then argues that the only way of ensuring a consistent and just approach for survivors is to enact simple and uniform legislation which completely eliminates the time bar in sexual assault actions.
II STINGEL V CLARK
A The Background to the Case
In August 2002, Carol Anne Stingel commenced an action for damages against Geoffrey Clark in the County Court of Victoria. (16) She alleged that in 1971, when she was 16 years of age, she was assaulted and raped on two occasions by a group of men led by Mr Clark. (17) She alleged that the assaults and rapes occurred in the Warrnambool Municipal Gardens in March and at Lady Bay in Warrnambool in April. (18) She claimed that she suffered PTSD of delayed onset as a result of the alleged assaults and rapes. (19) Her cause of action was based on the tort of trespass to the person.
Ms Stingel claimed that it was only around 1999-2000 that she made a connection between her injuries and the alleged assaults and rapes. (20) She said in evidence that for most of her life she believed that she had recovered from the attacks, but when in 1999 she started seeing Mr Clark on television she began to suffer from panic attacks and nightmares. (21) She reported the alleged rapes and assaults to police in July 2000, after she saw the publicity received by Mr Clark as a consequence of his election as Chair of the Aboriginal and Torres Strait Islander Commission and after she had heard about accusations of sexual assault made against Mr Clark by another woman. (22) Mr Clark denied the factual allegations of assault and rape and pleaded that the proceedings were time-barred by the Act. (23)
In November 2002, Ms Stingel sought a declaration that her case was not statute-barred under s 5(1A) of the Act. (24) In the alternative she sought an order for an extension of time under the discretionary provisions of s 23A. The s 23A application was, however, abandoned at the commencement of the hearing. (25)
Section 5(1)(a) of the Act prescribed a limitation period of six years for actions in tort. This was qualified by s 5(1A), which provided as follows:
5. Contracts and torts
...
(1A) 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. (26)
The effect of s 5(1A) then was to qualify the six-year limitation rule. For cases that could be brought within its terms, the limitation period would only start to run from the time that the person first knew both that they had suffered an injury and that the injury was caused by the act of a person. The question of whether Ms Stingel's claim could be brought within the section turned on the interpretation of the italicised words in the extract above. The first issue was whether the words 'breach of duty' encompassed the intentional tort of trespass. The second involved a consideration of whether PTSD of delayed onset was a 'disease or disorder contracted by any person'.
In the County Court, (27) Judge Hanlon held that the case fell within s 5(1A) of the Act, striking out the limitation period defence raised by Mr Clark. His Honour held that Ms Stingel suffered PTSD of delayed onset 'with onset time, knowledge of the events giving rise to her problems, as being in the first half of the year 2000, culminating with the police statements in July'. (28)
Mr Clark's appeal to the Court of Appeal was upheld by a majority of the Court. (29) Although the Court of Appeal unanimously held that trespass to the person was a 'breach of duty', (30) a majority of the Court held that PTSD of delayed onset was not 'a disease or disorder contracted by any person'. (31)
In the High Court, Ms Stingel succeeded on both of these issues by majority, with a joint judgment by Gleeson CJ, Callinan, Heydon and Crennan JJ ('joint reasons') and a separate judgment by Hayne J upholding the appeal; Gummow and Kirby JJ dissented in separate judgments. (32) The trial before a jury commenced in the County Court on 16 January 2007 and, on 31 January 2007, the jury found in favour of Ms Stingel, awarding damages of $20 000. (33) Mr Clark's appeal against the decision of the jury was dismissed by the Court of Appeal on 11 December 2007. (34)
B Is an Intentional Trespass a Breach of Duty?
Prior to Stingel v Clark, the question of whether the tort of intentional trespass was a 'breach of duty' within the meaning of s 5(1A) had been the subject of judicial consideration on a number of occasions in both Victoria and overseas. In Kruber v Grzesiak35 and Mason v Mason, (36) the Victorian Supreme Court and the Victorian Court of Appeal respectively held that intentional torts were encompassed by the phrase 'breach of duty'. Likewise, in Letang v Cooper, the Court of Appeal of England and Wales held that identical statutory language in the UK extended to actions of trespass. (37) In 1993, however, the House of Lords in Stubbings v Webb overruled the English Court of Appeal (38)--a decision subsequently followed in 2002 by the Supreme Court of Ireland in Devlin v Roche. (39) Nonetheless, upon reconsidering the issue in Clark v Stingel, the Victorian Court of Appeal chose to follow the existing Victorian rather than English or Irish authority. (40) The decision of the Victorian Court of Appeal on this issue was then upheld by the majority of the High Court. (41)
There are three main reasons underlying the division in judicial opinion on this issue of statutory interpretation. (42) The first relates to the interpretation of the legislative history of s 5(1A); the second to the jurisprudential analysis of the meaning of the phrase 'breach of duty'; and the third to the significance that should be placed on the anomalous practical result which would occur should the phrase be held to exclude intentional trespass.
1 The Legislative History
(a) The Tucker Committee
The legislative history of the Act and its relationship to similar legislation in the UK is an important backdrop to the interpretation of s 5(1A). In the Limitation of Actions Act 1955 (Vic) ('the 1955 Act'), which was the precursor to the present Act, s 5(6) qualified the general limitation period of six years by providing a less generous three-year limitation period for personal injury cases that were actions for 'negligence, nuisance or breach of duty'. The words 'negligence, nuisance or breach of duty' were identical to the wording used in similar UK legislation, on which the 1955 Act was based. (43) The UK legislation was enacted following the recommendations of the Tucker Committee. In its report, although the Tucker Committee noted that the shorter limitation period should apply to 'all actions for personal injuries', it also stated that they 'do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution, or defamation of character'. (44)
Thus, the recommendations were intended to have the effect of reducing the limitation period for most personal injury cases while retaining the more generous limitation period of six years for cases involving trespass to the person (and certain other specified actions). (45) In Victoria, committee deliberations regarding the proposed content of the 1955 Act made reference to the Tucker Report. (46)
Judicial proponents of the view that intentional trespass is not encompassed by the phrase 'negligence, nuisance or breach of duty' emphasise this particular legislative history regarding the meaning of these words. In his dissenting judgment, Kirby J noted that:
For the Tucker Committee, the three year period was to apply to a number of causes of action loosely described as 'personal accident cases'. Where the cause of action arose out of deliberate conduct, it fell outside the scope of the intended reforms. (47)
Lord Griffiths in his judgment in Stubbings v Webb said that:
the terms in which this Bill was introduced to my mind make it clear beyond peradventure that the intention was to give effect to the Tucker recommendation that the limitation period in respect of trespass to the person was not to be reduced to three years but should remain at six years. (48)
It is submitted, however, that the history of subsequent legislative amendments paints a different picture as to what these same words might mean in the contexts in which they...
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