81 I have not set out in full his Honour's discussion under the fifth heading. Each of his Honour's reasons is, with respect, very persuasive, but not beyond argument, given that s.5(1)(a) does not say that it is confined to cases of personal injuries caused by trauma and s.5(1A) does not expressly exclude injuries caused by trauma. Indeed, his Honour accepted that there may be cases that would fall within both sections.
82 As emerged in the parliamentary debates and in the report of the Chief Justice's law reform sub-committee a balance was sought to be struck between the rights of plaintiffs to have fair opportunity to claim for injuries caused by a tortfeasor, allowing adequate time to discover the full extent of those injuries, and the rights of defendants to meet claims at the earliest opportunity and to have claims resolved once and for all. In the case of insidious diseases and disorders the causal nexus may be very strong, and the consequences be very serious, so there are good policy reasons why, notwithstanding the delayed awareness of the injury, less weight or, indeed, no weight might be given to complaints of prejudice in cases where insidious disease or disorder has been caused, as opposed to the type of injuries which are dealt with under s.5(1)(a) and s.23A. Where there was a known traumatic event but action was delayed for more than six years s.23A, which allows for prejudice and other factors to be weighed, would seem a fairer basis on which the parties could deal with claims in respect of late onset injuries to which s.5(1)(a) applies.
83 Before leaving the reasons stated by Chernov, J.A. I note the general agreement, also obiter, of Winneke, P. with the analysis of Chernov, J.A. The President noted[44] that the legislation had provided a six year limitation period as a compromise of fairness between the injured parties and those said to be responsible, and that there had been recognition that unfairness could arise, as he said, "particularly in those cases of insidious disease caused by an act or omission of others, where the symptoms of the disease do not emerge for many years". The President, expressly, did not resolve the question as to whether the section ought be confined to non-traumatic injuries, being diseases or disorders, but expressed a tentative view that use of the word "contracted" in association with the words "disease or disorder" suggested that the legislature had intended to set those diseases or disorders "apart from physical injuries suffered as a consequence of traumatic insult . ."[45]. The President said that he found much force in the analysis of Chernov, J.A. and that of Hedigan, J. in Hickey, in particular when regard was had to the apparent purpose behind the package of legislative reforms in 1983.
84 Mr Tobin's primary submission was that his interpretation accords with the unambiguous words of the section, but he also submitted that even if it was essential that the "disorder" be of an insidious kind that description was apt to cover the situation here. Why, he submitted, was this condition of post-traumatic stress disorder not a disorder of an insidious kind? For this argument Mr Tobin appeared to apply to the expression "insidious disorder" the meaning that it was a disorder that was insidious because it did not come into existence until long after the tortious act or omission occurred which was its cause. In my view, the more apt meaning, and the way in which the expression had been applied to s.5(1A) when used in the decided cases to which I have referred, is that a disease or disorder was insidious because its contraction could not be known at the time of contraction, its existence only being discovered much later. However, even accepting Mr Tobin's understanding of the term, there is another reason why the respondent's complaint of post-traumatic stress disorder does not fit within s.5(1A). It is not, in my view, a disorder of the character to which the section was intended to apply, any more than would be the later onset of a personality disorder, for example. Mr Tobin, however, contended that a disorder such as post traumatic stress disorder, which, as its name suggests, can not arise at the moment the trauma is suffered falls within the term "disease or disorder" used in the section. There is no reason, he submits, to limit that expression, so that it means, compendiously, no more than "disease".
85 In the debates and in the legislation the word "disorder", is used as an alternative to the word "disease". The word "disorder" was retained throughout the debates and in the section, notwithstanding amendment to it in 1989. However, no example of an applicable disorder was ever discussed. Mr Tobin asked, rhetorically, why should it be presumed that the legislation, in using the word "disorder" was not intended to cover a case such as this? Section 5(1A), he noted, deals with "personal injuries", which was defined to include any disease and any impairment of a person's physical or mental condition, thus, so he submits, post-traumatic stress disorder, being a mental condition, falls within the ambit of the section.
86 In my view, as I have said, the section was intended to cover diseases contracted at or about the time of the tortious act or omission but which were not then known to have been contracted. In my opinion, the addition of the word "disorder" was not intended to identify disorders which were merely causally connected to an earlier act or omission but which had neither been contracted at that time, nor been contracted in a disguised way. The addition of the word "disorder" is explained by the fact that it is not always clear whether the insidious condition ought properly be called a disease or disorder. That is why when both the sub-committee and the Attorney General spoke of "disease or disorder" they only illustrated the condition with which they were concerned by reference to diseases, for example, asbestosis and pneumoconiosis. The difficulty of determining whether a condition fits within the definition of "disease", rather than "disorder" has long vexed personal injuries and workers compensation litigation. Examples of the difficulties which arise when resort is had to medical dictionaries to characterise a condition are not difficult to find: see, for example, Hickey, where the condition was cerebral oedema; Falcon v. McCann[46] where it was glaucoma; Perry[47] (retrolental fibroplasia) and Herschberg[48] (chronic pelvic infection).
87 In the present case the disorder of post-traumatic stress disorder was not "contracted" at or about the time of the tortious act or omission and then discovered much later. It was "suffered" at a later time, and on the respondent's case, if proved, was, indeed, "caused" by the traumatic events of the alleged rapes. But it is the respondent's case on this application that the disorder did not exist, at all, until 1999 at the earliest. It is not contended that it existed earlier but was hidden from view. Thus, even if it was to be regarded as having been "contracted" at the later time (after the interview with the police), it was nonetheless not "contracted" at the earlier time when the acts or omissions occurred which caused it. In my opinion, s.5(1A) is intended only to apply to situations where it was invariably the case that the fact that a person was suffering the disease or disorder could not be known at the moment of its contraction or within, at most, six years of its contraction. Giving s.5(1A) that interpretation provides a fair balance in the legislation between the interests of proposed plaintiffs and defendants. Post-traumatic stress disorder could arise within a six year period and be known to have been suffered, as indeed might the individual symptoms be known before they combined to constitute post-traumatic stress disorder. An action within time could then be brought, but where such a disorder did not arise within six years s.23A provided the opportunity for the person suffering the disorder to seek leave to bring an action. This is an interpretation of the legislation which is logical, makes it workable, and entirely accords with the expressed intention of the Parliament.
88 Although Chernov, J.A. applied a dichotomy which distinguished between traumatic injuries, on the one hand (which were said not to fall within s.5(1A)) and insidious diseases or disorders, on the other hand (to which, alone, the section did apply), it is my view, for the reasons earlier discussed, that the dichotomy is better expressed as between insidious diseases and disorders, on the one hand, and, on the other hand, frank (i.e. not disguised) diseases or disorders, the contraction of which are neither unduly delayed nor disguised. Most "traumatic" injuries (that term including injuries which did not immediately accompany the traumatic event but which developed as an outcome of the trauma, such as epilepsy and osteoarthritis) would fall outside the terms of s.5(1A). In my view, this case is one such instance. A traumatic event might, however, be accompanied by the contraction of a disease or disorder that falls within the terms of s.5(1A). Arguably, that might constitute the disease or disorder a traumatic injury. For that reason, a dichotomy expressed as being between traumatic injuries and insidious diseases or disorders may create confusion as to what it is that the section does and does not cover.
89 The word "trauma" was never used in the parliamentary debates nor in the committee report, nor does it appear in s.5(1)(a) or s.5(1A). It is not the traumatic nature of the tortious act or omission which matters, so much as the character of the injury that it causes. It is only when the injury is a disease or disorder of an insidious kind, in the sense that it is contracted but not known to exist until much later, with which the section is concerned.
90 I conclude, therefore, that the condition of post-traumatic stress disorder of delayed onset was not a disease or disorder contracted by the respondent within the meaning required by s.5(1A). It was a disorder not of an insidious kind to which the section applies, and was suffered at a time later than the act or omission relied on by the respondent as the negligent act or breach of duty constituting the cause of action in this case. No application is now brought under s.23A. If the late onset of post-traumatic stress disorder was to be the basis of an action the proceedings in respect of that injury had to be the subject of leave granted under s.23A. Section 5(1A) does not apply to this case, and subject to any further submissions the proceedings should be dismissed.
A finding of rape
91 There remains one last issue. When the judge gave his reasons for decision he declared that he was "satisfied to the requisite degree" that the appellant had raped the respondent on the two occasions alleged by her. That purported finding received wide publicity. The finding was neither sought by counsel for the respondent nor supported by them on appeal. The hearing before the judge only involved debate on the threshold issue of the interpretation of s.5(1A) and of the psychological and/or psychiatric injury which was being claimed. It was only on those issues that the respondent was examined and cross-examined.
92 In anticipation of there being a hearing of an application under s.23A, Mr Clark had filed a sworn affidavit denying the allegations (which denial the judge appears to have overlooked) and had filed affidavit evidence from other witnesses supporting his denial. That application was withdrawn and the truth of the rape allegations was not relevant to the application under s.5(1A). The appellant was not required to give evidence and Ms Stingel was neither examined nor cross-examined as to the truth of the allegations.
93 On appeal Mr Tobin said that the "finding" by the judge came as a complete surprise to counsel on both sides and he conceded, without argument, that it ought not to have been made. The truth of the allegations was to be determined by a jury, if the court ruled that s.5(1A) enabled the respondent's claim to go to trial.
94 That error by the judge, of itself, justified the grant of leave to appeal. Mr Stanley did not argue, however, that the erroneous finding vitiated the whole application and he was content to put it to one side and to address the substantive questions of the interpretation of s.5(1A).
95 It was extremely unfortunate that the judge chose to make the findings which he did, given that they had not been sought, no argument on the issue had been addressed to him or been invited by him from counsel, and no evidence had been led on the issue by the appellant, save for his sworn denial in his affidavit. In those circumstances the finding was both unjustified on the evidence before the judge and was unfair to the appellant.
Conclusion
96 The respondent issued her proceedings some 32 years after the events of rape which she has alleged were committed against her by the appellant, and some 29 years after the expiry of what was then the three year limitation period which applied for the commencement of such an action.
97 By virtue of the operation and inter-relationship of s.5(1A) and s.23A of the Limitations of Actions Act 1958 Parliament has provided some amelioration of the effect of the limitations legislation. The extent of the amelioration is tempered, however, in recognition of the fact that there will inevitably be competing contentions as to where justice and injustice lie in the enforcement of limitations periods.
98 The terms of s.23A, as it now applies, would enable an applicant to obtain leave from a court to commence proceedings out of time where the court deemed it was just and reasonable to do so. In considering that application the court would be obliged to consider a wide range of factors, including the reasons for delay in commencing proceedings and the prejudice which delay has caused to the defendant in defending the action[49]. In the present case, however, the relevant terms of s.23A were those which were introduced by the Limitations of Actions (Personal Injuries) Act 1972. The provision at that time provided an applicant with much more limited opportunity to overcome a time limit than was the case when that section was repealed and new terms of s.23A were substituted by the Limitation of Actions (Personal Injury Claims) Act 1983. The new provision provided the court with a much broader discretion than before. It was, no doubt, because of the restricted effect of the 1972 provision that counsel for the respondent abandoned Ms Stingel's alternative application to seek an extension of time under s.23A[50].
99 Thus, the respondent sought to bring her claim within s.5(1A). That provision relates to cases of personal injuries consisting of a disease or disorder contracted by a person. If the section applied to her situation then Ms Stingel would have had a right to maintain her proceedings, without having to seek an extension of time under s.23A. I have concluded, however, that Parliament intended that s.5(1A) was to apply only to cases where the claimant has suffered a disease or disorder of an insidious kind, such as mesothelioma and asbestosis, being cases where the fact that a disease or disorder had been contracted could not be known until well beyond the limitation period.
100 In determining the legislative intention behind the legislation it is appropriate to have regard to that extrinsic material, in my view, because the terms of s.5(1A) are not free from ambiguity. Judges of this court have disagreed in the past as to the intended scope of that provision, and in this case there is, again, division of opinion as to the operation of the section.
101 In my opinion, upon analysis of the history of the legislation and of the extrinsic material, to which I have made extensive reference, the intention of Parliament for the operation and inter-relationship of s.5(1A) and s.23A is clear, and under that intended legislative scheme s.5(1A) would not apply to the condition of post-traumatic stress disorder of late onset, which was the injury alleged to have been suffered by Ms Stingel.
102 I conclude, therefore, that the appeal should be allowed, the orders made by the judge on 13 February 2003 should be set aside and in lieu thereof the respondent's application for a declaration - that by virtue of s.5(1A) her claim was not statute barred - should be refused.