Supreme Court Civil Procedure Act 1932 (Tas), s10(7).

CHERIE JAYNE HORNE v GRAEME JAMES GREGORY WILSON

The plaintiff commenced these proceedings by filing a writ on 23 May 1996. The endorsement on the writ claimed damages for negligence, assault, battery and breach of fiduciary duty. However, the statement of claim confined the plaintiff's claim to damages for negligence. Relevantly, par6 pleaded that the defendant owed the plaintiff a duty of care, par7 pleaded that he was in breach of the duty of care and par8 pleaded that the plaintiff had suffered damage as a result of the breach of that duty. Evidence was given by the plaintiff and several witnesses on her behalf, including a psychiatrist, Dr Sale. At the close of the plaintiff's case, senior counsel for the defendant submitted that there was no case to answer. Initially, the submission was put on the basis that I should hear it and determine whether I should rule on it without first requiring the defendant to be put to his election (Ford v Forestry Tasmania B5/1996), but during the course of making the submission the defendant elected to call no evidence.

For the purpose of ruling on the submission of no case to answer, it is only necessary to briefly outline the evidence. The plaintiff was born on 12 April 1968 and therefore was 5 years old in 1973. The defendant is the plaintiff's uncle and 25 years her senior. As a child the plaintiff lived with her parents and siblings at Mt Seymour, near Oatlands. The defendant lived a short distance away with his parents, the plaintiff's grandparents. The plaintiff's evidence was to the effect that between 1973 and 1980, the defendant systematically and repeatedly subjected her to sexual abuse.

The plaintiff said that she regularly visited her grandparents' house after school and the defendant frequently then took her for a ride in his motor vehicle. During the course of these journeys, the defendant fondled the plaintiff's genitalia, got her to fondle his genitalia and rubbed his penis on the plaintiff's vagina. The plaintiff said that on some of these journeys the defendant showed her pornographic magazines depicting heterosexual activity. The plaintiff's evidence was that this kind of thing happened several times a week. The plaintiff also gave evidence of other occasions of similar sexual abuse at the hands of the defendant in her grandparents' lounge room, in their bathroom and in a room in their house where the defendant kept his CB radio. In addition, the plaintiff said that similar sexual activity occurred in the fowl house at her grandparents' home. The plaintiff's evidence was to the effect that the defendant made her a co-conspirator in this unlawful activity by telling her to keep it their secret, by rewarding her with a chocolate bar on each occasion and by promising to buy her a pony if she kept their special secret. The plaintiff gave evidence that on one occasion the defendant took her and an adult woman into a paddock and there he fondled the plaintiff's genitalia and tried to get the woman to do likewise, while he had sexual intercourse with the woman. The plaintiff said that the sexual abuse ceased in 1980 when she was 12 years old and commenced to menstruate.

In general terms, the plaintiff's evidence was to the effect that at the time of this unlawful conduct she did not appreciate it was wrong and as she became sexually aware, she repressed her memories of it. She said that in 1994 one of her sisters told her that she, too, had been sexually abused by the defendant. The plaintiff's sister encouraged the plaintiff to go to counselling and gradually the plaintiff's memories of these events returned. As they did, the plaintiff began to experience symptoms of chronic Post-Traumatic Stress Disorder, being sleep disturbance and repetitive nightmares, irritability, intrusive memories and various manifestations of anxiety. In evidence-in-chief, Dr Sale opined that the plaintiff did not suffer from any psychiatric illness prior to 1995.

In cross-examination it was put to the plaintiff that she had invented or imagined the allegations of unlawful conduct but this was not pursued with any vigour. The cross-examination of the plaintiff and Dr Sale did explore in considerable depth the correctness of Dr Sale's opinion that prior to 1995 the plaintiff suffered no psychiatric illness as a result of the defendant's treatment of her. It is not necessary to detail this evidence at this stage. The cross-examination was obviously designed to lay the foundation for a submission in support of the plea put in the defence, par9, that the plaintiff's claim is "out of time and barred by virtue of the provisions and operation of the Limitation Act 1974 (Tas)".

In support of the submission of no case to answer, senior counsel for the defendant argued:

"Where there is a direct and intentional act [and] an injury was intended or must have been adverted to, trespass is the only cause of action which is open to the plaintiff."

The argument proceeded that as damage is not an element in the tort of trespass to the person, and as the plaintiff's evidence was that the last direct and intentional application of force to her person by the defendant was more than six years ago, this action is barred by the provisions of the Limitation Act 1974, s4(1).

Senior counsel for the defendant said there was no authority for his submission, but he relied upon obiter dicta in the following passage from the judgment of the court in Williams v Milotin (1956 - [1957] HCA 83; 1957) 97 CLR 465 at 470, in particular the passage italicised:

"At that time the present action might have been framed as an action of trespass. For it seems that the facts which the plaintiff, by his next friend, intends to allege are that he was immediately or directly hit by the motor car driven by the defendant as a result of the negligence of the defendant himself. There is no suggestion that the defendant intended to strike him. If that had been the allegation the action could have been brought in trespass and not otherwise. But as only the negligence of the defendant is relied upon, while the cause of action might have been laid as trespass to the person, the action might also have been brought as an action on the case to recover special or particular damage caused by the defendant's negligence. Had the damage been caused indirectly or mediately by the defendant or by his servant (a state of things to be distinguished from violence immediately caused by the defendant's own act) the action must have been brought as an action on the case and not otherwise." [The judgment then referred to a number of authorities.]

Williams v Milotin (supra) involved a claim by the plaintiff for damages for personal injury caused when he was struck by a truck being driven along the highway on which he was riding his bicycle. The writ was issued more than three years, but less than six years, after the accident. The defence pleaded that the action was barred by the Limitation of Actions Act 1936 - 1948 (SA), s36. That Act, s35, provided that (inter alia) "save as otherwise provided in this Act", "actions which formerly might have been brought in the form of actions called actions on the case and actions which formerly have been brought in the form of action called trespass on the case" shall be commenced within six years after the cause of action accrued. Section 36 provided that all actions for (inter alia) assault, trespass to the person shall be commenced within three years after the cause of action accrued. The argument was that on the facts the claim would "formerly" have been brought by way of an action for trespass to the person (s36) or by way of an action for trespass on the case (s35). Thus, it was contended that upon a proper construction of the Act the expression in s35 "save as otherwise provided in this Act" meant save as provided in s36 and accordingly, as this case might formerly have been brought by way of an action for trespass, the three year time limit for trespass applied. The court rejected that argument and held that the expression "save as otherwise provided in this Act" referred to provisions in the Act concerning the extension of the period of limitation due to disability, absence from the State and so on. The court noted at 473, that the facts gave rise to two causes of action, trespass to the person and case or negligence and that each had different ingredients, for damage is not an element in the tort of trespass. It was held that as the plaintiff had sued in negligence the limitation period was that prescribed by s35.

The judgment of the court at 469 - 470 determined that the word "formerly" in s35 meant prior to the passing of the Supreme Court Act 1878 in South Australia by which Act the "Judicature System" was adopted. Thus, the passage relied upon by senior counsel for the defendant can be construed to mean that prior to the adoption of the Judicature System in South Australia:

_ a direct and intentional application of force gave rise only to an action for trespass;

_ a direct, but negligent, application of force gave rise to an action for trespass or an action for trespass on the case;

_ however, if the damage suffered had not been directly caused by the defendant's act, the only remedy was for an action on the case.

The question is whether that statement of the law before the adoption of the Judicature System applies to-day.

As legal historians know, the common law is the offspring of procedure. According to Maine, Early Law and Custom at 389, "... substantive law has at first the look of being gradually secreted in the interstices of procedure". Access to the Royal Courts in the time of Bracton depended on obtaining a writ from the King, and success depended upon the correct choice of action. It is not necessary for the purposes of this judgment to trace in any detail the development of various forms of writ, or forms of action of which trespass and trespass on the case (or simply "case" as it became known) were two. However, it is worth noting in passing that early common law was a commentary on the writs. Each form of action embodied in a writ carried its own particular original process and a particular mode of pleading, trial and judgment. See Maitland, Lectures on the Forms of Action at Common Law (Together with Lectures on Equity) Lecture 1, 295 et seq; Holdsworth, Sources and Literature of English Law, 114. Choosing the correct form of action was critical for each writ contained its own rules and substantive law. Maitland wrote with respect to this, (supra) at 298-299:

"It is quite possible that a litigant will find that his case will fit some two or three of these [writs]. If that be so he will have a choice, which will often be a choice between the old, cumbrous, costly, on the one hand, the modern, rapid, cheap on the other. Or again he may make a bad choice, fail in his action and take such comfort as he can from the hints of the judges that another form of action might have been more successful. The plaintiff's choice is irrevocable; he must play the rules of the game that he has chosen. Lastly he may find that, plausible as his case may seem, it just will not fit any of the receptacles provided by the court and he may take to himself the lesson that where there is no remedy there is no wrong."

The substantive law of many existing causes of action finds its provenance in the early forms of action. Trespass to the person is no exception. Originally, trespass was concerned with armed force threatening the peace of the Realm. That requirement did not long remain a traversable element in the action for trespass to the person but it did give rise to the requirement, known to modern law, that the harm complained of must have been directly inflicted by the personal and positive act of the defendant upon an unwilling person. Outside that circumstance new writs were developed called, at first, trespass on the case, and then action on the case or "case". Fault was not an element. The law was concerned only with the directness of the act. It soon became apparent that the law needed to accommodate careless and direct, but not wilful, injury and the question arose whether in such a circumstance the claim lay in trespass or case. Leame v Bray [1803] EngR 590; (1803) 3 East 593; 102 ER 724 was early authority for the proposition that trespass lay whether the injury was wilful or not. However, the court did not hold that trespass was the only action available and later development permitted harm done by direct, but accidental injury to be recovered by way of either trespass or case. Hence the proposition stated in the judgment of the court in Williams v Milotin (supra), namely that a direct, but negligent, application of force gave rise to an action for trespass or an action for trespass on the case. However, in the case of direct and intentional trespass to the person the only appropriate form of action remained trespass but where the damage was indirectly caused by the defendant's act, the only appropriate form of action was case. The modern action of negligence developed from the old forms of action of trespass and case. Case has disappeared but trespass has survived albeit much emasculated by the encroachment of negligence. Interesting reading with respect to the history of the tort of trespass and the tort of negligence can be found in M A Millner, Negligence in Modern Law at 169 et seq; Professor P H Winfield, The History of Negligence in the Law of Torts (1926) 42 LQR 184; W S Holdsworth, A History of English Law, vol8, 446, et seq.

The old forms of action no longer exist. The first blow for the abolition of the forms of personal action including trespass and case was struck by the Uniformity of Process Act 1832 (UK) which abolished all the old writs and provided for a single new form for all personal actions, but it remained necessary to mention one of the old known forms of action in the new form (Maitland (supra) 302). The next blow was struck by the Common Law Procedure Act 1852 (UK) which abolished the need to mention any of the original forms of action but according to Maitland (302 - 303), although the formal documentation of the different forms of action had gone by 1852, "... the several personal forms of action were still considered as distinct." The final blow was struck by the Judicature Act 1873 (UK), which came into force in 1875, and the rules made under it. After this Act came into operation, law and equity were fused into a single system, pleadings contained only the material facts upon which the plaintiff relied to obtain the remedy sought and no longer was an action confined to a single cause of action. Indeed, today, if a plaintiff has two causes of action, he or she should certainly avail himself or herself of both when bringing the action unless there is good reason not to do so.

The reforms effected by the Common Law Procedure Acts and the Judicature Acts in the United Kingdom are, in this respect, reflected in the Supreme Court Civil Procedure Act 1932, s10(7) which provides:

"(7) The Court and every judge thereof, in the exercise of the jurisdiction of the Court which is subject to this Act, shall in every cause or matter pending in the Court grant, either absolutely or on such terms and conditions as to the Court or judge shall seem just, all such remedies whatsoever as any of the parties thereto may be entitled to in respect of any and every legal or equitable claim properly brought forward by them respectively in such cause or matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided."

The statement in Williams v Milotin (supra) at 470 relied upon by senior counsel for the defendant does not support the submission of no case to answer. That statement is authority for the proposition that prior to the introduction of the Judicature System a direct and intentional application of force only gave rise to an action for trespass. However, nothing in that judgment purports to declare that that remains the law today. In negligence, a duty of care is owed to those within the requisite proximity not to expose them to the risk of injury or harm. Such a duty must encompass protection from intentional, as well as actionable, harm. As Cooke J observed in Long v Hepworth [1968] 1 WLR 1299 at 1308:

"An intentional trespass by A to the person of B is just as much a breach of the duties owed by A to B as an unintentional trespass by A to the person of B."

It is unnecessary to consider the submissions made on behalf of the defendant on the issue of whether the cause of action known as trespass is still available in Australia for direct, but negligent acts of the defendant. It is clear that that cause of action does not exist in England. See Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232 and it would seem that Williams v Milotin (supra) is authority for the proposition that "negligent" trespass is still available as a cause of action in Australia. This distinction sometimes gives rise to difficult questions involving the statute of limitations (see Trindade and Cane, The Law of Torts in Australia (2nd edn) 320 - 321 and burden of proof (see Platt v Nutt (1988) 12 NSWLR 231; McHale v Watson [1964] HCA 64; (1964) 111 CLR 384). However, none of that falls for consideration in this case. The plaintiff has not pleaded her case in trespass. Had she done so, the Limitation Act, s4(1) would have barred its success. The plaintiff has brought her action in negligence as she is entitled to do, regardless of whether the trespass to her person was intentional or negligent.

As an alternative basis for the submission that the defendant has no case to answer, senior counsel submitted that the plaintiff's claim for damages for negligence was barred by the provisions of the Limitation Act because damage accrued and the tort was complete more than six years before the writ was filed. Senior counsel for the plaintiff submitted that this argument was not appropriate to support a submission that the defendant has no case to answer for the statute of limitation does not arise until the defendant's case begins. I accept this proposition as correct. In Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 58 - 59, Lord Cairns said:

"With regard also to the Statute of Limitations as to personal actions, the cause of action may remain even although six years have passed. It cannot be predicated that the Defendant will appeal to the Statute of Limitations for his protection; many people, or some people at all events, do not do so ; therefore you must wait to hear from the Defendant whether he desires to avail himself of the defence of the Statute of Limitations or not."

Accordingly, I rule that the defendant has a case to answer.