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From:
Neil Foster
Sent: Thursday, July 20, 2006 8:09 PM
Subject: ODG: Is trespass to the person a "breach of duty"?
Dear
Colleagues;
The
High Court of Australia in Stingel
v Clark [2006] HCA 37 (20 July 2006) had to address two
very interesting questions arising under Victorian limitation legislation.
The plaintiff alleges that she was raped by the defendant in 1971
and later contracted post-traumatic stress in 2000 which she only
then realised was attributable to the rape. (Those outside Australia
may not be aware that this litigation is very controversial here,
as the defendant has been a high-profile activist for indigenous
issues for a number of years. I understand that both plaintiff and
defendant are members of the indigenous community.)
The
legal issues however were these - the Victorian legislation provided
a provision allowing an extension of the normal limitation period
in certain "disease" cases; but the provision was expressed
to only operate in cases of "negligence, nuisance or breach
of duty". The two issues that presented (in logical order)
were (1) was trespass to the person (the basis of the civil claim
for rape) a "breach of duty"? (2) if it was, did the sort
of "disease" claim here attract the extension provisions
of the legislation.
The
majority of the Court ruled in favour of the plaintiff to allow
the action to proceed.
(1)
On the first issue, by 5-2 the Court ruled that for the purposes
of the Victorian legislation "breach of duty" had to be
interpreted to allow it to include actions for trespass to the person.
In doing so they were conscious that they were deciding contrary
to the interpretation of an almost identical UK provisions (conceded
to have been the model for the Victorian provision) given by the
House of Lords in Stubbings v Webb [1993] AC 498. But what
seemed to weigh most heavily was the fact that the provision had
been interpreted that way by a line of Victorian cases, and the
Act had been amended when Parliament must have been aware of the
prevailing judicial approach. (As a statute dealing with "lawyer's
law" there seems to be a reasonable argument that the lawyers
updating it were conscious of the issue; though one could also argue
that if so they should have made it clearer!) It may surprise some
to note that the two dissenters were not only Gummow J but also
Kirby J. They both offered strong arguments to note that trespass
to the person (especially in a piece of "lawyer's law")
cannot be described as an action for "breach of duty".
(2)
The second issue was whether the type of disease here (late onset
post-traumatic stress as it was described) was covered by the expression
"damages in respect of personal injuries consisting of a disease
or disorder contracted by any person". Neither Gummow J nor
Kirby J offered a definitive view on this issue as they had decided
the previous issue contrary to the plaintiff (though Kirby J said
at [120] that he "tended to agree" with the majority on
the issue.) The majority held that the words were apt to describe
the plaintiff's situation; in doing so they over-ruled the Court
of Appeal in Victoria which had divided 3-2 on the point, the majority
there maintaining a distinction between "insidious" diseases
and those caused by "frank" injury which the majority
in the High Court rejected as unjustified by the words of the legislation.
To
some extent the decision is perhaps better characterised as an exercise
in statutory interpretation rather than in "pure" tort
law, but it well illustrates the interplay between the two.
