Clark v Stingel [2005] VSCA 107

1 I adopt the description of the facts and circumstances of the appeal set out in the judgment of Eames, J.A. However, for the reasons set out by Callaway, J.A., I would dismiss the appeal.

2 I otherwise agree with their Honours that the respondent be granted leave to amend the particulars of injury; that s.5(1A) applies to cases of intentional assault;[1] and that the finding of rape by the judge below ought to be disapproved.

3 In my view, the critical issue in question is whether or not the respondent's claim satisfies the requirement as provided for by s.5(1A) of the Limitation of Actions Act 1958 (Vic.), namely, that it is one "in respect of personal injuries consisting of a disease or disorder contracted by [the respondent]". I believe that the claim does satisfy the requirements of this provision.

4 The appellant's contention in the court below and in this Court was that it is not reasonably arguable that the damages claimed by the respondent include damages in respect of personal injuries consisting of a disease or disorder contracted by her. The respondent claimed the injuries suffered by her resulted from two separate sexual assaults allegedly committed against her by the appellant and other men in 1971. The appellant denied the attacks, but contended in any case that s.5(1A) applied only to "insidious workplace diseases" not to traumatic injuries of the type the respondent claimed.

5 The appellant essentially adopted the view espoused by Winneke, P. and Chernov, J.A. in Rita Mazzeo v. Caleandro Guastalegname & Co.[2] and that of Hedigan, J. in Hickey v. Womens & Childrens Health Care Network.[3] In Hickey, Hedigan, J. clearly expressed his opinion that the meaning of the words "disease or disorder contracted" limited applications under s.5(1A) to cases of insidious industrial diseases, thereby relieving the applicant from the necessity of obtaining an extension of time under s.23A where regard had to be had, among other considerations, to any actual or likely prejudice suffered by the defendant.

6 The judgment of Hedigan, J. in Hickey assumed ambiguity in the words of the Act. His Honour therefore embarked upon a purposive approach to statutory construction. In doing so, the court placed much reliance upon the extrinsic materials, namely, extracts from Hansard and papers of the Chief Justice's Law Reform Committee, which recommended many of the changes that were subsequently implemented by the Limitation of Actions (Personal Injuries) Act, Act No. 9884 of 1983, the legislation which introduced s.5(1A) into the Act.

7 According to s.35 of the Interpretation of Legislation Act 1984 (Vic.), a court may have regard to extrinsic materials in the interpretation of a provision of an Act. However, I agree with Callaway, J.A. that it is unsafe to place too much reliance upon references to examples in the extrinsic materials. Although second reading debates repeatedly referred to diseases "such as asbestosis and pneumoconiosis", the fact that the legislature omitted to define "disease" and "disorder" in the Act is an indication that Parliament did not intend to restrict the ordinary meaning of these words. It has been left open therefore for the courts to identify a range of physical and psychological irregularities as either diseases or disorders. As observed by the Court in Herschberg & Anor v Mula,[4] the extracts from the parliamentary debates are of little assistance in this regard.

8 The insidious workplace diseases/traumatic injury dichotomy pronounced in Hickey, and followed in Mazzeo, represented a distinct departure from the position outlined in earlier cases, namely Mula[5] and Perry v Royal Women's Hospital.[6] Nevertheless, the view espoused in Perry and Mula is to be preferred for a number of other reasons. In Perry, Beach, J. rejected the view that the legislation was confined to insidious industrial diseases, stating that:

"In my opinion, this Court is justified in taking the view that the legislature intends that a liberal interpretation be given to the legislation, one which assists persons who have suffered injury through the wrongful and negligent actions of others rather than one which inhibits or restricts them."[7]

On this view, the operation of the provision ought to be given a beneficial interpretation.

9 Section 5(1A) gives special treatment to persons who only discover that they have acquired a disease or disorder years before but after the expiration of the limitation period. Although its application does not extend to include other personal injury claims, such as those caused by accident (which s.23A does encompass), this would appear to be with the intention of recognising the needs of this special category of injured person, rather than with any intent to exclude.

10 Furthermore, I do not accept the appellant's submission that there is some significance attached to the use of the word "contracted" in s.5(1A). This is because "contracted" clearly applies to both disease and disorder in the context of "to get", "to develop" or "to acquire". I fear that too much has been read into this word in the provision and that, instead, it should be given its plain and ordinary meaning.

11 Whilst there might be a plausible and comprehensive argument as to what the legislature might have envisaged by the use of the terms "contracted", "disease" and "disorder" (terms that are both critical to this case and yet are not specifically defined by s.5(1A). I am not convinced that they are sufficiently ambiguous to allow this Court such discretion as to read into them the sort of narrow interpretation urged by the appellant. I see no reason why this Court should seek to depart from the unambiguous wording of the provision and the interpretation offered by Southwell and O'Bryan JJ. in Mula.

12 I have formed this view despite supposing that it is highly likely that the contracting of a psychiatric disorder of the type experienced by the respondent in this case was not predicted by the legislature to the same extent as the onset of an insidious physical disease such as asbestosis. However I can find no substantive

basis on which to presume that the legislature sought to exclude post-traumatic stress disorder with delayed onset from the provisions enacted in s.5(1A).

13 As McHugh and Gummow JJ. observed in Byrne v Australian Airlines Ltd, plumbing for legislative intention may be an "illusory quest".[8] As their Honours observed, "the task of the court ... is to give effect to the will of the legislature but as it has been expressed in the law and by ascertaining the meaning of the terms of the law".[9] Just because ambiguity might be construed in a statute does not mean, as the appellant would have it, that courts should actively seek it out or impose their own meaning on words.

14 For these reasons, it is my view that the appeal should be dismissed.

15 For the reasons given by Eames, J.A., I agree that this appeal should be allowed and that the orders made by the trial judge on 13 February 2003 should be set aside, and that, in lieu thereof, the respondent's application for a declaration that, by virtue of s.5(1A) of the Limitation of Actions Act 1958, her claim was not statute barred should be refused. The major point in issue on the appeal concerned the proper interpretation of s.5(1A) of the Act. The interpretation given to the section by Eames, J.A. is, in my view, correct. I also agree with his Honour that the trial judge's purported finding that he was "satisfied to the requisite degree" that the appellant had raped the respondent on the two occasions alleged by her, was a finding that the trial judge should not have made in the proceedings before him.

16 It follows from what I have said in the preceding paragraph that I agree with the reasons of Eames, J.A. which reject the appellant's contention that a claim for intentional assault or trespass to the person is not a claim for "damages for negligence, nuisance or breach of duty" within the meaning of s.5(1A) of the Act. In

Mason v. Mason[10], this Court decided that a claim for damages for an intentional assault fell within the meaning of the phrase "damages for negligence, nuisance or breach of duty"; and nothing which was advanced in the arguments for the appellant in this appeal has persuaded me that this Court should now depart from the decision in Mason v. Mason.

17 Having had the advantage of reading the reasons prepared by Eames, J.A. in this matter, I agree with his Honour that the appeal should be allowed and the orders made by the trial judge on 13 February 2003 should be set aside, and in lieu thereof the respondent's application for a declaration that her claim was not statute barred should be refused, for the reasons given.

18 I, too, have had the advantage of reading in draft the reasons for judgment prepared by Eames, J.A. I agree with his Honour that leave to amend the particulars of injury should be granted, that Mason v. Mason[11] should not be overruled and that the finding of rape made by the learned trial judge should be disapproved. I adhere to the reasons I gave in Mason v. Mason. I was encouraged then by the concurrence of Hayne, J.A. and Smith, A.J.A. I am reinforced in my opinion now by the concurrence of the other members of the Court.

19 Unfortunately I differ from the majority regarding s.5(1A) of the Limitation of Actions 1958 as in force at the relevant time. The critical words are "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". To my mind the word "contracted" attaches to "disease or disorder" and nothing turns on the fact that the word "suffered" was used, not in relation to "disease or disorder" but in relation to "personal injuries", in sub-s.(1A)(a).

20 As a matter of ordinary language, and consistently with the evidence in this case, post-traumatic stress disorder of late onset is a "disorder" which may be "contracted" by a person such as the respondent. There is no reason to distinguish between physical and psychiatric injuries. Indeed "personal injuries" is defined in s.3(1) to include "any disease and any impairment of a person's physical or mental condition" (emphasis added). As Mr Stanley conceded, "disorder" is more apt to describe a psychiatric condition than a physical ailment.

21 I attach less importance than Eames, J.A. to the extrinsic material, partly because I think that the language of the statute is unambiguous and partly because I consider it unsafe to place too much reliance on examples. It is unsurprising that insidious diseases such as asbestosis and pneumoconiosis were mentioned, but that does not confine the language that was submitted to and approved by the legislature. I agree with Southwell and O'Bryan, JJ. in Herschberg v. Mula[12] that Parliament did not intend to confine the ordinary meaning of the words "disease" and "disorder". In particular, in my opinion, there is no warrant in the statutory language, or in the presence in the Act of s.23A, to restrict s.5(1A) to non-traumatic injuries.

22 The appellant argued, in the alternative, that the respondent first knew that she was suffering personal injuries consisting of post-traumatic stress disorder more than six years before she filed her writ. The respondent may have been aware of some depression and anxiety, but I would not disturb his Honour's finding that it was only in 2000 that she became aware of the full-blown disorder. It is unnecessary to decide whether she contracted the disorder before that time.

23 As mine is a minority view, there is nothing to be gained, in the circumstances of this case, by writing a long judgment. For the reasons I have outlined, I would dismiss the appeal.

Postscript

24 I agree with the Chief Justice that it is wrong to substitute inferences drawn from extrinsic material for the words of the statute, all the more so when the inferences are uncertain and the statute is clear. The effect of doing so is to diminish the rule of law and tarnish the sovereignty of Parliament.[13]

25 By writ filed in the County Court registry at Warrnambool on 26 August 2002 the respondent/plaintiff, Carol Anne Stingel, commenced proceedings against the appellant, Geoffrey Clark, seeking damages including aggravated, exemplary and punitive damages. The plaintiff sought trial by jury. By her amended statement of claim dated 24 April 2003 Ms Stingel claimed that Mr Clark, in company with other men, assaulted and raped her, first in March 1971 at Warrnambool Municipal Gardens and again in April 1971 at Lady Bay in Warrnambool. Identical particulars of injury with respect to both incidents were alleged in the statement of claim, namely:

"Long term psychological reaction with depression and lowered self-esteem;

Mental reaction to trauma;

Shame;

Embarrassment."

26 By paragraph 6 of the amended statement of claim the respondent asserted

that she did not know that the injuries pleaded were a consequence of the assaults and rapes by the appellant until a day subsequent to 26 August 1996 and pleaded that she brought the proceeding pursuant to the provisions of s.5(1A) of the Limitations of Action Act 1958 (hereafter referred to as "the Act")[14].

27 By his defence Mr Clark pleaded that s.5(1A)[15] had no application to the case, and by paragraph 8 of the defence the appellant pleaded that the proceedings were barred by reason of the provisions of the Act.

28 The appellant served a request for further and better particulars, paragraph 2 of which sought the following particulars:

"Look at paragraph 5 of the statement of claim, and in relation to the alleged injuries of long term psychological reaction with depression and lowered self-esteem, mental reaction to trauma state:

(a) when;

(b) in what circumstances;

the plaintiff first became aware of the said injuries were [sic] as a result of the alleged assault."

29 The plaintiff supplied further and better particulars, by answering paragraph 2 as follows:

(b) in circumstances of comparing her own experience with that of Ms McGuinness as detailed in media reports, and in consequence of contact and exposure to the defendant."

30 By summons filed on 22 November 2002 (as amended on 13 June 2003) the respondent sought a declaration that by reason of s.5(1A) of the Act her causes of action in the statement of claim were not barred by the Act and alternatively sought an order pursuant to s.23A of the Act that the time for the issuing of the proceedings be extended to 26 August 2003. Those applications were heard by his Honour Judge Hanlon in the County Court over several days in February 2004. At the outset of that hearing senior counsel for the plaintiff announced that the only application which would be maintained was that seeking a declaration under s.5(1A). Counsel advised the judge that the application under s.23A was abandoned[16].

31 The terms of s. 5(1)(a) and 5(1A) of the Limitation of Actions Act 1958 as applied at the time of this application were as follows:

"5. Contracts and torts

(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued -

(a) actions founded on simple contract (including contract implied in law) or (subject to sub-section (1A)), actions founded on tort including actions for damages for breach of a statutory duty;

.....

(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 contact 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."

32 Counsel for Ms Stingel submitted to the judge that the basis of the s.5(1A) application was "in effect, that as pleaded in the amended statement of claim, that the plaintiff did not know that the injuries which she suffered were as a consequence of the assaults and rapes by the defendant until a day subsequent to 26 August 1996".

33 The reference to July 2000 in the further and better particulars dated the plaintiff's relevant awareness for the purpose of s.5(1A) as being the time of her statement to police, which was made by her in July 2000. It was, however, not until 24 September 2002 that the plaintiff was examined by the psychologist, Ms Pamela Matthews, whose report dated 19 November 2002 asserted for the first time that the plaintiff's complaints met the DSM-IV criteria[17] for "post traumatic stress disorder with delayed onset". Ms Matthews also then opined that, in addition, the plaintiff had the disorder of vaginismus, but said that she had had that condition over many years. Subsequently, psychiatrist Professor Lorraine Dennerstein, who examined the plaintiff on behalf of the defendant, reported on 29 July 2003 that the plaintiff "has manifestations of post-traumatic stress disorder with delayed onset".

34 Counsel submitted to the judge that the plaintiff's "ultimate appreciation" or "full appreciation" of the matters addressed by sub-paragraphs (a) and (b) of the section did not occur until after she had seen Ms Matthews and had learned of her assessment. Counsel submitted that post-traumatic stress disorder with delayed onset was the disorder upon which the s.5(1A) application was based.

Application to amend the particulars of injury

35 By summons dated 30 March 2003 the respondent sought leave to amend her statement of claim by substituting "post-traumatic stress disorder with delayed onset", in lieu of the injuries pleaded in the statement of claim. That application was referred to the Court of Appeal by the judges hearing the application for leave.

36 Mr Stanley, who appeared for the appellant on the appeal, did not in the end oppose the amendment to the particulars of injuries, albeit, he contended that "post-traumatic stress disorder with delayed onset" should merely be added to the existing list of injuries which were claimed in the particulars of injury. Mr Stanley conceded that the case was fought before the judge on the basis that the respondent contended that she had contracted the disorder of post-traumatic stress disorder with delayed onset and had first known that she suffered that disorder, and that it was caused by the acts or omissions of the appellant, within a period of six years before she brought her proceedings.

The evidence before the judge

37 Mr Tobin, who appeared as senior counsel for the respondent both before the judge and on appeal, accepted that the onus was on the respondent to establish that she fell within s.5(1A), in particular that the knowledge referred to in paragraphs (a) and (b) was gained by her not more than six years before she issued the proceedings. In response to the contentions on behalf of the appellant that long before 1999 the respondent had acquired the relevant knowledge of the injuries which she now claims and had attributed them to the acts and omissions of the appellant that she said occurred in 1971, Mr Tobin submitted to the judge that the claimed disorder, "post-traumatic stress disorder with delayed onset", was not contracted before 1999, at the earliest, and, thus, the relevant knowledge that she suffered that disorder and that it was caused by acts of the appellant must also have been gained only after the contraction of the disorder.

38 The hearing before the judge was conducted largely by reference to affidavit evidence, but the respondent and also the psychologist, Ms Matthews, gave oral evidence to supplement their affidavits.

39 In 1971 the respondent, who was born on 9 March 1955, was 16 years of age. She was living in Warrnambool and working as a machinist. In her affidavit she alleged that the appellant was the leader of a group of males who raped and assaulted her on two occasions, in March and April 1971. She deposed that she was raped on four subsequent occasions in 1971 and became pregnant as a result of those rapes, the child being put up for adoption after birth, but she did not allege that the appellant was involved in any of the subsequent rapes. In her affidavit, sworn 3 July 2003, the respondent deposed that for most of her life she believed that she had got over the rapes and had got on with her life, but in 1999 she began to see the appellant on television programs and started to have nightmares and panic attacks.

40 In her oral evidence Ms Matthews said that people had many ways of dealing with psychological turmoil and emotional distress and that it might take only a small event to trigger "the onset of delayed symptoms". The trigger in this case for the respondent was the appearance of Mr Clark on television in 1999 and the anger it prompted in the respondent. Ms Matthews said that in her opinion the onset of post-traumatic stress disorder arose with that eruption of anger in 1999.

41 The multiple diagnostic criteria for post-traumatic stress disorder were discussed at length in the hearing and were set out in DSM-IV. Upon examination, Ms Matthews said that the respondent suffered "from a constellation of symptoms" that then met the diagnostic criteria for the diagnosis of post-traumatic stress disorder. Post-traumatic stress disorder could be acute, chronic or delayed. Ms Matthews said that in this case many of the symptoms and criteria, which she listed and discussed in her evidence, dated only from the time of the television appearances of Mr Clark in 1999 or else from the making of the police report in July 2000.

42 Ms Matthews said that for there to be a diagnosis of post-traumatic stress disorder: "There needs to be the constellation of symptoms", as set out in DSM-IV, and she then discussed each of those listed symptoms and indicated which of them applied to this case. The symptoms or criteria "have to be co-existing", she said, for there to be the diagnosis. In reply to his Honour, Ms Matthews said that the major symptoms of post-traumatic stress disorder "of being very, very distressed and nightmares, being very, very angry" did not arise until 1999-2000. Before then the respondent had suppressed her history and not made a connection between that history of rape and her symptoms. While some of the symptoms disclosed by Ms Matthews' examination had existed before 1999 others had only appeared afterwards.

43 Ms Matthews also concluded that the respondent suffered vaginismus, which was a distinct disorder. That disorder had not been pleaded in this case, and Ms Matthews said that the respondent both knew she had the sexual difficulties which constituted that disorder (although not aware that those difficulties had a name) and that they related to rapes that had occurred in her past.

The findings of the judge

44 After reserving on 10 February 2003 the judge delivered his judgment and gave oral reasons on 13 February 2004.

45 The judge found that the plaintiff had suffered "heartbreak" as a result of the giving up her child for adoption and had been unable to maintain relationships with men and had been generally unhappy. In the late 1980's she had suffered two nervous breakdowns but she had attributed all of those events as just being part of life and, he held, she had "adopted the mechanism of suppression of thoughts and ideas concerning the events which had happened from 1971". His Honour found that she had suppressed the effect upon her life of the events which she alleges occurred in 1971 but first complained to police in July 2000 after publicity surrounding the election of the defendant to the position of chairman of ATSIC, and also after seeing publicity associated with accusations made against him by Ms Joanne McGuinness. At that point, so his Honour held, the plaintiff "could contain her anger no longer".

46 His Honour held that "post-traumatic stress disorder" was properly called a disorder for the purpose of s.5(1A). His Honour accepted the evidence of Ms Matthews that the plaintiff had suppressed the events of 1971 as a mechanism of controlling the symptoms and that the disorder itself did not commence until after the plaintiff was no longer able to control it. That moment arrived, according to Ms Matthews, after the plaintiff saw the television programs in 1999 and went to the police in 2000.

47 His Honour held:

"The disorder is, to adopt the term favoured by Mr Tobin, the 'constellation of symptoms' which would be unable to be controlled by her in the way in which they had been controlled before Mr Clark started to get the publicity which she deemed to be inappropriate."

His Honour accepted that "post-traumatic stress disorder with late onset" constituted a disorder which comprised a collection of symptoms which might occur to persons subjected to grave or unusual trauma, it being a disorder which did not in fact commence until a time well past the date upon which the traumatic event occurred. His Honour continued:

"But over that period of time, whilst she has had manifestations of, to use Professor Dennerstein's words, 'manifestations' over the years, at no point that I can see in the evidence that they all come together in a way in which she describes them now as coming together and in causing her intense anger and depression and a reaction which she cannot control."

48 The judge said that the report of Professor Dennerstein did not itself provide a diagnosis of post-traumatic stress disorder with delayed onset, because it was couched only in terms that the respondent "has manifestations" of that disorder. Nonetheless the judge had regard to the findings in that report as being consistent with the evidence of Ms Matthews. Ground 4 of the appeal grounds complains that it was not open to his Honour to rely on the report in that way, as part of a broader complaint that it was not open to find that she had suffered the disorder of post-traumatic stress disorder with late/delayed onset. In my opinion, a reading of Professor Dennerstein's report shows that the use made of it by the judge was quite appropriate. The findings stated in the report were consistent with the diagnosis of Ms Matthews; at the very least, they were not inconsistent with the diagnosis of post-traumatic stress disorder with delayed onset. Professor Dennerstein had reported at the request of the advisers to the appellant and was not called to give evidence on his behalf.

49 The judge concluded that he was satisfied to the requisite degree that the respondent's application fell within s.5(1A) "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". Rather than make a formal declaration as to the application of the section, his Honour, at the request of counsel for the respondent, made an order striking out paragraph 8 of the defence, in which the limitations defence was pleaded.

50 On behalf of the appellant a number of attacks were made upon the decision of the judge. A considerable number of the grounds of appeal were not debated before us and the issues on the appeal were reduced to a series of agreed questions.

Does s.5(1A) apply to cases of intentional assault?

51 Under ground 1, it was submitted that s.5(1A) did not apply to this case because a claim for an intentional assault, that is, a claim alleging intentional trespass to the person, was not an action for "negligence nuisance or breach of duty". That contention faced the hurdle of the decision of the Court of Appeal in Mason v. Mason[18].

52 In Mason v. Mason the court considered a case in which the plaintiff had sued for damages for personal injuries allegedly caused by unlawful sexual assaults by the defendant. The plaintiff claimed that the injuries suffered included post-traumatic stress disorder and an associated major depressive illness. The assaults were said to have occurred between 1970 and 1989, the writ being issued in 1995. In response to the defendant pleading that the proceedings were statute barred the plaintiff made a number of responses, including calling in aid s.5(1A) and also making application under s.23A. The Court of Appeal was concerned to answer a reserved question of law in which the trial judge asked whether a claim for an intentional assault fell within the phrase "damages for negligence nuisance or breach of duty" which appeared in both of those sections. It is important to appreciate that the Court of Appeal was not called on to consider the question whether the injuries pleaded in that case constituted "personal injuries consisting of a disease or disorder contracted by any person", within the meaning of s.5(1A).

53 Callaway, J.A., with whom Hayne, J.A. and Smith, A.J.A. agreed, held that the reference to an action "for damages for negligence nuisance or breach of duty" which appeared in both s.23A and in s.5(1A) embraced a claim which alleged an intentional assault or trespass to the person. The same phrase had appeared in s.5(6) until its repeal and the introduction of s.5(1A) by Act No 9884 of 1983. Section 5(6) had provided a three year time limit upon claims for damages for personal injuries deriving from "negligence nuisance or breach of duty".

54 His Honour reached his conclusion, that the sections applied to cases of intentional assault, after making close analysis of the legislative history both in Victoria and England (the legislature in Victoria having paid regard to the U.K. legislation), and upon examination of authority concerned with the interpretation of the phase as it had appeared in s.5(6). Callaway, J.A. declined to follow a decision of the House of Lords, Stubbings v. Webb[19], in which Lord Griffiths delivered the leading speech in reaching a conclusion that "breach of duty" did not apply to claims with respect to intentional trespass. As noted by Callaway, J.A., interpretation given to the phrase in s.5(6) by judges in four previous decisions in the UK and Australia[20] had suggested that the opposite conclusion would have been appropriate.

55 Lord Griffiths gave two reasons for his conclusion. In the first place, he gave emphasis to a paragraph in the report of the Tucker Committee, which had reported to the British Parliament in 1949 as to reform of limitations legislation. The committee proposed legislation, which was adopted, providing a six year limitation period for claims founded on tort but proposed for actions claiming personal injuries arising out of negligence nuisance or breach of duty that there be a three year limitation period. A similar dichotomy was to be found in s.5(1)(a) and s.5(1A) of the Victorian legislation as it applied to this case (but a six year period applied to both).[21] In the paragraph of the Tucker Committee report highlighted by Lord Griffiths (which is set out in the judgment of Callaway, J.A.[22]) the committee reported that it felt it unnecessary in its report to define "personal injuries", but said that it did not intend to include actions for trespass to the person in the categories of actions for personal injuries arising out of negligence, nuisance or breach of duty within the proposed section. Lord Griffiths concluded that it had been intended, thereby, to exclude actions for intentional assault. As Callaway, J.A explains[23], however, the statement by the committee is better understood as meaning that the three year time period was intended to apply to cases of trespass to the person where personal injuries had resulted, but where a trespass to the person did not cause personal injuries then it was intended that such a claim would fall within the provision applying to actions founded on tort, thus having a six year limitation period.

56 The second reason stated by Lord Griffiths, was that "breach of duty", when juxtaposed with "negligence" and "nuisance", should be read as implying a breach of a duty of care not to cause personal injury, in contrast to an obligation not to infringe any legal right of another person. His Lordship illustrated the distinction by positing a person inviting a woman to visit his house: one would understand there being a duty to take care that the house was safe, but one would not think of a duty of care in terms of a duty not to rape the woman.

57 For reasons which he stated, and I adopt, Callaway, J.A. found the second reason of Lord Griffiths also unpersuasive, and concluded that the plain meaning of the words "breach of duty" covered a deliberate assault and, thus, a claim for damages for personal injuries arising from such an assault would not, on that account, be excluded from the operation of s.5(1A).

58 In seeking to have the court overturn Mason v. Mason Mr Stanley primarily relied upon the same authorities and arguments which were analysed by Callaway, J.A. in his judgment and were found to be unpersuasive. Two additional cases cited to us by him were Donnelly v. State of Victoria and Others[24], a decision of O'Bryan, J. in which his Honour was not called upon to analyse authority, as it had not been disputed by counsel that assault and false imprisonment fell outside the scope of s.5(1A), and Devlin v. Roach[25], an appeal decision of the Supreme Court of Ireland. In that case, which involved a claim for assault and battery, Geoghegan, J. held that there were "two perfectly legitimate viewpoints[26]" but preferred that of the House of Lords to the opinion expressed in Mason v. Mason. His Lordship's preference for the reasoning of Lord Griffiths was based on the second of Lord Griffith's reasons, namely that the suggested juxtaposition of the words "negligence nuisance" with the words "breach of duty" meant that what was intended to be embraced was not only a duty of care, as in negligence, but also other categories of tort where the duty imposed was not appropriately described as a duty of care, but rather as a duty imposed in a specific category of tort. Examples of such specific categories of duty were said to be those governing invitees and also the "absolute duty in respect of dangerous goods or articles". Those, Geoghegan, J. held, were different to "some general duty not to commit a civil wrong"[27].

59 Like Callaway, J.A., I respectfully prefer the analysis of Adam, J. in Kruber v. Grzesiak[28] in which his Honour observed: "After all, do not all torts arise from breach of duty - the tort of trespass to the person arising from the breach of a general duty not to inflict direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse?".

60 The judgment of Lord Griffiths has not escaped criticism, and in his interpretation of the section his Lordship's dichotomy has the potential to produce anomalous results if applied here: for example, a claim against a father who raped his child would be at once excluded from the operation of s.5(1A) but a claim based on breach of duty for want of parental care brought against the mother would not, on that account, be excluded from the section[29].

61 In my view, no error has been disclosed in the reasons of Callaway, J.A, which, with respect, remain compelling. If, therefore, s.5(1A) is intended to apply to injuries of the kind alleged in this case, then it would apply notwithstanding the fact that the act or omission alleged here is an intentional assault or trespass to the person. As I said, however, Mason v. Mason was not concerned with the question of the injuries to which s.5(1A) applied, but to the question whether an intentional assault could constitute a breach of duty within the terms of the section. The ambit of personal injuries to which the section applied was the next issue raised by the appellant.

Does s.5(1A) apply to traumatic injuries or only to insidious diseases or disorders?

62 Ground 2 complained that s.5(1A) "did not apply to traumatic injuries which are caused or sustained rather than contracted". Mr Stanley contended that the provision was intended by Parliament to address, only, a specific category of injuries, namely, instances of insidious disease, where the knowledge that the disease had been contracted would not emerge until many years after its contraction. That contention gains considerable weight if resort is had to extrinsic material such as the parliamentary debates and reports of committees upon which Parliament acted when amending this legislation. It is not a precondition for the court having regard to the extrinsic material that it first find ambiguity in the legislation[30], but, in any event, as Hedigan, J. observed in Hickey v. Womens and Childrens' Health Care Network[31] a legislative provision is ambiguous when a court decides it is, and it seems to me that there must be a degree of ambiguity in this provision, given that critical terms such as "disease", "disorder" and "contracted" are not defined. The extrinsic material to which I have been referred by Mr Stanley was taken into account by the Court of Appeal in Mazzeo v. Caleandro Guastalegname & Co[32] when interpreting this section, and it is again appropriate to do so. Mr Tobin submitted, however, that when the terms of the section are clear on their face it is to the plain words of the section that the court ought look for the intention of the Parliament. The respondent's claim with respect to the onset of post-traumatic stress disorder with delayed onset falls within the plain terms of the section, he submitted.

63 The critical phrase in s.5(1A) which falls for examination is "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 ...". Of the highlighted words only "personal injuries" was defined in the Act, to wit, that the term "includes any disease and any impairment of a person's physical or mental condition". Mr Stanley conceded that "post-traumatic stress disorder" was a "disorder" within the meaning of s.5(1A). He did not concede, however, that the disorder which was claimed in this case was of a kind or was in fact, one "contracted". The word "contracted", he submitted, was appropriately applied only to a disease, describing the moment of origin of the pathology of the disease.

64 Central to the interpretation for which Mr Stanley contends is an understanding that s.5(1A) was part of a scheme of legislative reform in which it was assigned a precise and limited function. Although the history of the legislative reform is fully discussed by Chernov, J.A. in Mazzeo, it is appropriate to discuss it again.

65 Section 23A was introduced in 1972 to ameliorate what, by s.5(6), was then a three year limitation period for actions for personal injuries based on negligence, nuisance or breach of duty. The new provision itself created a range of problems in its interpretation, and other problems had also emerged in interpretation of the legislation. A sub-committee of the Chief Justice's Law Reform Committee reviewed the legislation and the parent Committee then adopted the sub-committee's report in itself reporting to the government on 6 May 1981. Not all of the sub-committee's recommendations were adopted in the resulting legislation, the Limitations of Actions (Personal Injury Claims) Act 1983.

66 The sub-committee recommended that s.5(6) be amended so that it dealt only with personal injuries "which consisted in the contracting of a disease or disorder". It proposed terms similar to what became s.5(1A), but with a three year time period applying, not six years. The sub-committee then recommended that a separate provision deal with applications "in actions for personal injuries" to extend the three year time period under s.5(6) to a maximum of six years, where the three year limitation period would operate unfairly against a plaintiff.

67 By way of explanation for those recommendations, the sub-committee reported the difficulties which had arisen in the interpretation of the English legislation because it had drawn no distinction between "personal injury cases arising out of personal accident and those which are based on disease". To treat them the same way was "undesirable", the sub-committee reported. In discussing problems which s.23A had created the sub-committee observed:

"Although the section was to some extent inspired by the problems associated with contracting of disease, it was drafted to deal compendiously with problems in all the areas of personal injuries. 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"[33].

68 In recommending a provision along the lines of what became s.5(1A) the sub-committee, citing a series of decisions of the courts in Victoria and the UK, reported:

"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 . . .[34]" (My emphasis.)

69 The government did not accept all of the committee's recommendations. It abolished s.5(6) and adopted a two tiered approach. First, a six year limitation period was introduced by s.5(1)(a)[35] for actions founded on simple contract and on tort, including breach of statutory duty, and, secondly, by s.5(1A), a six year period was to apply to actions for personal injuries "consisting of a disease or disorder contracted by any person". The Attorney General said in his Second Reading Speech:

"In broad terms the committee recommended that disease or disorder claims, such as asbestosis or pneumoconiosis, be treated differently from all other personal injury claims. The committee recommended a standard limitation period for all personal injury claims with a broad discretion in the courts to extend that period where it is just and reasonable to do so. The committee also recommended guidelines to assist a court in the exercise of its discretion."[36] (My emphasis.)

70 In many places in his speech the Attorney emphasised that in the new legislation disease and disorder cases were treated differently from other cases. Thus, the Attorney General spoke of how knowledge of the disease or disorder, and of there being someone responsible for it, "may not come to the injured person until many years after the disease or disorder starts to develop", and of the disease and disorder cases being placed in a separate category so that the victim will no longer have to apply for an extension of time "simply because the disease or disorder was not discovered until after the expiration of the limitation period."[37] (The emphasis is mine in both cases.) Later, he again spoke of "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".

71 The Attorney said that by way of contrast with those disease and disorder cases, and the way in which they were treated under s.5(1A), for other cases an extension of the limitation period from three to six years was justified, because normally six years will be adequate time to afford "an injured person sufficient time to seek medical, legal and other expert advice, concerning all aspects of his injury, to identify the person responsible and institute proceedings to recover damages for the injury". He added, however, that even in those cases "the precise nature and extent of injuries suffered by a person may not be fully determined for some years after the accident which caused those injuries", and because a six year limitation could therefore operate unfairly in some cases, s.23A would allow for an application to be made seeking the exercise of discretion by the court to extend the time for the commencement of proceedings.

72 Mr Stanley submitted that the extrinsic material demonstrates that Parliament had intended that s.5(1A) should apply only to diseases such as asbestosis and mesothelioma, where the contraction of the disease was incapable of being known at the time it occurred and where its growth was insidious, its existence only being discovered long after the limitation period had expired. Parliament, he contended, did not intend the section to apply to victims who suffered a traumatic injury but who then delayed action until after the limitation period had expired. If injuries resulting from trauma did take time to emerge then s.23A provided an opportunity to ameliorate the limitations period, by extending time in which to bring proceedings. Mr Stanley submitted that the intention of Parliament was to spare the sufferers of insidious diseases (who invariably were in the terminal stages of their illness by the time it was discovered) the necessity of applying for an extension of time under s.23A.

73 Mr Stanley contended the word "contracted" was deliberately chosen, in a provision which also used the terms "suffered" and "caused". It was a word appropriately applying to a disease. I agree that the word does carry that connotation. The Oxford English Dictionary, Second Edition, defines "contracted" as "incurred, acquired" and the Macquarie Dictionary[38], defines "contract" as "to acquire, as by habit or contagion; . . . to contract as a disease". I will return later to the relevance of use of the word "disorder".

74 When the Chief Justice's law reform sub-committee reported in 1981 it proposed that what has now become s.5(1A) be expressed in terms that the cause of action would not accrue "until the plaintiff knows . . . that he has contracted the disease or disorder" and also that "such personal injuries were caused by an act or omission of some person". The legislation inserted the word "suffered" rather than "contracted" in s.5(1A)(a). Arguably, that was done in acknowledgment of the fact that a person could not know that he had contracted one of the insidious diseases at the moment when it was actually contracted, but he could later know that he then "suffered" that disease, which had been contracted at some earlier time.[39]

75 In my view, not only does the word "contracted" suggest that it refers to a disease, the word also suggests that there is a close temporal link between the tortious act or omission and the injury which constitutes "those" personal injuries for which the claim is later made. That would also be consistent with its intended application being to the onset of disguised diseases. The section, in my view, postulates the cause of action arising at a time when the victim of the tortious act or omission would not know that time had commenced to run, the cause of action having accrued upon there being damage caused by the breach. In the case of an insidious disease the fact that the disease had been contracted would not be known or, indeed, be knowable. By amendment to the section in 1989[40] the cause of action was deemed to have accrued on the date when the victim first gained the knowledge required by s.5(1A)(a) and (b). That beneficial amendment, of itself, was acknowledging that time would otherwise have commenced long before the plaintiff knew that he had contracted the relevant disease or disorder.

76 Thus, s.5(1A) is concerned with contraction of the disease or disorder at or proximate to the time of the tortious act or omission, but where there would be long delayed awareness of the very injury which is the subject of claim. In the case on appeal those factors do not apply to the complaint of post-traumatic stress disorder, and any claim as to that could only have been addressed under s.23A, if an action was to be brought, and it is appropriate that it be under s.23A that such claims concerning late onset of injuries should be considered. Other late onset injuries, such as epilepsy and osteoarthritis, could also be addressed under s.23A having arisen in claims under s.5(1)(a) because they were "caused" or were "suffered" by reason of the act or omission but were not "contracted" in the terms of s.5(1A).

77 In the case of most insidious diseases or disorders the precise moment the condition was contracted could not be known. An allegation that a worker was exposed to asbestos by virtue of an unsafe system of work might, for example, mean that asbestosis or mesothelioma could have been contracted at any time over decades of exposure. In my opinion, it was such a situation that s.5(1A) was intended to address. However, it may be that an insidious disease or disorder could be contracted as a result of trauma. Take the example of a person being showered with blue asbestos fibres. That would meet the description of "trauma", but the fact that the person had at that time contracted mesothelioma may not be discovered for decades. That person could also utilise s.5(1A). In that case it would be both an insidious disease and also one arising out of trauma. The fact that the tortfeasor and the victim might be on notice of the possibility of injury, and might discover it to be so at an earlier time than otherwise would be the case (and identify the tortfeasor), would not make it any less an appropriate case for s.5(1A), nor any less a case of insidious disease.

78 The interpretation of the legislation to which I have been drawn, upon analysis of the terms of the sections and by reference to the extrinsic material, has also found favour among other judges.

79 In Hickey Hedigan, J. said that were he not bound by authority he would have concluded that the debates demonstrated an intention that the section not apply to frank personal injury cases. A contrary view had been taken, however, in Herschberg & Anor v. Mula[41], a Full Court comprising Southwell and O'Bryan, JJ., in which their Honours agreed with the interpretation of the section by Beach, J. in Perry v. Royal Womens' Hospital[42]. In neither case did the Court consider that the words of the section were ambiguous and the courts concluded that the plain terms of the section did not confine it to cases of insidious disease or disorder. Hedigan, J. considered that he was bound by the authority of those cases which had concluded that the terms of s.5(1A) were not ambiguous, and observed that: "It seemed to have been long assumed that an ambiguity in the words of the Act must have arisen before one may embark upon the purposive approach to statutory construction". Hedigan, J. would have placed weight on the extrinsic material had he felt free to do so. In Mazzeo, Chernov, J.A., obiter, supported the interpretation which Hedigan, J., free from authority, would have favoured.

80 Chernov. J.A. gave five reasons why s.5(1A) ought be interpreted as not applying to traumatic personal injury claims.[43] For convenience, I have inserted numbers into the following extract so as to distinguish them.

"There are, in my opinion, sound reasons for favouring the view that s.5(1A) does not operate in relation to traumatic personal injury claims and that the limitation period in respect of them is prescribed by s.5(1)(a). [1] First, although s.5(1)(a) and s.5(1A) are the only provisions in the Act that prescribe the limitation period in respect of personal injury claims, their wording suggests that they are mutually exclusive in that each relates to different categories of personal injury claims so that those falling within s.5(1A), for example, do not also fall within s.5(1)(a) and vice versa. This follows from the definition in s.5(1A) of the personal injury claims to which the provision relates, namely, "personal injuries consisting of disease or disorder" and from the effective exclusion of those injuries from the operation of s.5(1)(a) by the words "(subject to sub-section (1A))" as they appear in that sub-section. [2] Secondly, the terms and the operation of s.5(1A) suggests that it relates only to personal injuries which ordinarily take a considerable period of time to manifest themselves to the injured person, hence the provision that the cause of action shall not be taken to have accrued unless the plaintiff knows "that he has suffered those personal injuries". No such postponement of the limitation period is necessary as a matter of fairness in respect of traumatic personal injuries because in nearly all such cases their existence is recognised at or shortly after the happening of the relevant event. It is true that often the full extent of a traumatic injury may not be ascertained until after the lapse of a considerable period of time, but the fact of such an injury would be known almost immediately or shortly after the event in question. Even where, in the relatively unusual case, the fact or the existence of the injury caused by a trauma is not known until after the expiration of six years after the event, the justice of the situation is met by the opportunity to have the limitation period extended pursuant to s.23A. [3] Next, the use of the word "contracted" in relation to personal injuries consisting of disease or disorder is consistent with such injuries not being the result of a trauma. Ordinarily, traumatic injuries are said to be "caused" or "sustained" rather than "contracted". [4] Further, if traumatic injuries fell within s.5(1A) much of s.23A would be unnecessary and irrelevant.

If s.5(1A) is concerned only with personal injury claims arising out of an insidious disease such as asbestosis, a traumatic personal injury which properly falls within s.5(1)(a) does not become a "disease or disorder" for the purposes of s.5(1A) merely because the plaintiff has been unaware of its existence or of the relevant causal nexus until after the expiration of six years following the trauma. If it were otherwise, as I have said, s.23A would have very little operation. Such a plaintiff would effectively obtain an extension of the limitation period without having to persuade the court that an extension would be just and reasonable and without having to address the question whether the extension is likely to prejudice the defendant. In my view, that is unlikely to have been contemplated by the legislature.

[5] The conclusion that, on its proper construction, s.5(1A) is concerned only with actions arising out of "insidious" personal injuries (i.e., those which have not been caused by trauma), gains support from the extrinsic material relating to the 1983 amending legislation."

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.

[1] As held in Mason v Mason [1997] 1 VR 325.

[2] Rita Mazzeo v Caleandro Guastalegname & Co [2000] VSCA 230; (2001) 3 VR 172.

[3] Hickey v Womens & Childrens Health Care Network (Unreported, 11/6/1998); BC9802336.

[4] Herschberg & Anor v Mula (1993) Aust Torts Reports 81-256; BC9300900.

[5] Ibid.

[6] Perry v Royal Women's Hospital (Unreported 14/5/1991); BC9102932.

[7] Ibid. at 22.

[8] [1995] HCA 24; (1995) 185 CLR 410, 459.

[9] Ibid, citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518; Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555, 572-5.

[10] [1997] 1 V.R. 325.

[11] [1997] 1 V.R. 325.

[12] Unreported, Full Court, 29th November 1993 at 6.

[13] I emphasize the word "effect". I do not attribute an intention to do either of those things to the majority. It is their legal method I am criticizing, not them.

[14] The relevant time limits applicable to personal injuries claims were significantly amended by the Limitations of Actions (Amendment) Act 2002, but by s.39 that applied only to causes of action that accrued on or after the commencement date, which was 4 November 2002, and thus did not apply to this action. The relevant terms of ss.5(1)(a) and 5(1A) for this case were those applicable after amendments by s.3 of Act No 9884 of 1983 and by s.3 of Act No 21 of 1989.

[15] In error the pleading referred to s.5(1B) rather than 5(1A), the error being corrected by subsequent amendment.

[16] The applicable version of s.23A was that introduced by the Limitations of Actions (Personal Injuries) Act 1972 (No. 8300 of 1972). Although its operation extended to causes of action which accrued or were claimed to have accrued before the commencement of that Act the benefit of that version of s.23A was much more limited for applicants than was the case with the version which was later substituted by s.5 of Act No.9884 of 1983.

[17] Diagnostic and Statistical Manual of Mental Disorders IV Edition, Text Revised, American Psychiatric Association, Washington DC 2000. Professor Dennerstein adopted the International Statistical Classification of Diseases and Related Health Problems, 10th Revision, which also classified the disorder.

[18] [1997] 1 V.R. 325.

[19] [1993] A.C. 498

[20] Kruber v. Grzesiak [1963] VicRp 84; [1963] V.R. 621, at 623, per Adam J.; Hayward v. Georges Ltd [1966] VicRp 28; [1966] V.R. 202, per McInerney, J.; Letang v. Cooper [1964] EWCA Civ 5; [1965] 1 Q.B. 232, at 241, 245, 246-247, per Diplock, L.J.; Long v. Hepworth [1968] 1 W.L.R. 1299. It is to be noted that s.23A was not introduced in Victoria until 1972 (by Act No 8300 of 1972).

[21] The amending legislation, Act No. 52 of 2002, thereafter provided for three year periods for both actions for damages for personal injuries (s.5(1AA)) and actions for damages in respect of personal injuries consisting of a disease or disorder contracted by any person (s.5(1A)).

[22] At 327.

[23] At 327.

[24] Unreported, Supreme Court, 30 June 1994.

[25] [2002] IESC 32, 30 April 2002, McGuinness, Hardiman and Geoghegan, JJ.

[26] At [10]

[27] At [9].

[28] [1963] VicRp 84; [1963] V.R. 621, at 623.

[29] See, Seymour v. Williams [1995] PIQR 470, Court of Appeal, discussed in K.R. & Ors v. Bryn Alyn Community (Holdings) Ltd & Anor [2003] EWCA Civ 85, at [100], per Auld, L.J, Waller, L.J., Mantell, L.J.

[30] See s.35 Interpretation of Legislation Act 1984; R. v. Boucher [1995] 1 V.R.110, at 123.

[31] Unreported, 11 June, 1998, at pp.20-21.

[32] (2000) 3 V.R. 172

[33] Chief Justice's Law Reform Committee "Report on Limitation of Actions in Personal Injury Claims", 6 May 1981, par 1(f).

[34] par 2.

[35] Limitation of Actions(Personal Injury Claims) Act 1983, s.3.

[36] Hansard, Legislative Assembly, Second Reading Speech, 14 December 1982, p.2765.

[37] At 2766.

[38] Federation Edition, 2001.

[39] On the other hand, "those personal injuries" in s.5(1A)(a) are those "personal injuries consisting of a disease or disorder contracted by any person", so it might be thought that the choice of the word "suffered" was not intended to be significant in itself.

[40] Limitations of Action (Amendment) Act 1989, s.3(a). The Minister said in the Second Reading Speech, on 13 April 1989, Hansard, p.756, that the words were added to make it clear that where a disease with "a long latent period" was contracted the plaintiff did not have to apply for leave under s.23.

[41] Unreported, 9 December 1993.

[42] Unreported, 14 May 1991.

[43] Mazzeo, at 189 [43]-[45].

[44] At 174 [4].

[45] At 177-178 [9].

[46] [1998] VSC 83.

[47] Perry v. Royal Women's Hospital. unreported, Supreme Court of Victoria, Beach, J. 14 May,1991.

[48] Herschberg & Anor v. Mula, unreported, Supreme Court of Victoria, Southwell & O'Bryan, JJ. 9 December 1993.

[49] Such an application was made in the case of Clark v McGuinness [2005] VSCA 108, which was also heard and decided by this Court.

[50] Counsel advised the judge that an application under s.23A would, in any event, be superfluous, since the 1972 Act would have required the respondent to establish as a "material fact" a matter which, if established, would have enabled her to succeed under s.5(1A).