W v Eaton [2011] TASSC 4

Limitation Act 1974 (Tas), s5(1).

Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442; Kruber v Grzesiak [1963] VicRp 84; [1963] VR 621; Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232; Hayward v Georges Ltd [1966] VicRp 28; [1966] VR 202; Mason v Mason [1997] 1 VR 325; A v Hoare [2008] UKHL 6; [2008] 1 AC 844, followed.

Devlin v Roche [2002] IESC 34; [2002] 2 IR 360, not followed.

Judgment Number: [2011] TASSC 4

1 The plaintiff has sued the defendant for damages for assault and battery, alleging that the defendant sexually assaulted him on a number of occasions in the years 1999 to 2002 inclusive. The action was commenced by the filing of a writ on 25 May 2007. The defendant, apart from denying the allegations of sexual assault, has pleaded that any causes of action that the plaintiff may have are barred by virtue of the Limitation Act 1974 ("the 1974 Act"), s5. If that section applies, the limitation period is three years, and all of the plaintiff's claims are statute barred, subject to the discretionary powers of the Court to extend time under ss5(3), 38A(1), and 38A(3). However the plaintiff has pleaded that s5 does not apply. He contends that that section does not apply to intentional torts. If that is the position, there is no need for the plaintiff to apply for any extension of time.

2 It is therefore appropriate that there be a determination, before any further step is taken, of the question of law as to whether s5 applies to intentional torts. Holt AsJ has directed that that question of law be raised for the opinion of the Court pursuant to the Supreme Court Rules 2000, r566. This is my determination in relation to that question.

3 The relevant provisions in the critical section, s5, read as follows:

"(1) An action for damages for negligence, nuisance, or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of, or include, damages in respect of personal injuries to any person shall not, subject to this section, be brought after the expiration of a period of 3 years from the date on which the cause of action accrued.

...

(3) Notwithstanding anything in the foregoing provisions of this section, upon application being made by the person claiming the damages referred to therein a judge, after hearing such of the persons likely to be affected by that application as he may think fit, may, if he thinks that in all the circumstances of the case it is just and reasonable so to do, extend the period limited for the bringing of the action for such period as he thinks necessary, but so that the period within which the action may be brought does not exceed a period of 6 years from the date on which the cause of action accrued.

(4) The powers conferred on a judge by subsection (3) may be exercised notwithstanding that the period limited by subsection (1) for the bringing of the action may have expired.

(5) For the purposes of this section personal injuries include any disease and any impairment of a person's physical or mental condition."

4 The plaintiff contends that an action for damages for an intentional tort is not one for a "breach of duty" within the meaning of s5(1). The defendant contends that an intentional tort, such as assault or battery, does amount to a "breach of duty". He relies on the High Court's decision in Stingel v Clark [2006] HCA 37; (2006) 226 CLR 442. That case concerned the meaning of the words "breach of duty" in a Victorian limitation statute. The High Court held that an intentional tort amounted to a breach of duty for the purpose of the relevant statutory provision. The plaintiff contends that the words "breach of duty" in Tasmania's s5(1) should be construed more narrowly, and that there are good reasons to distinguish that case. If the plaintiff's contentions are correct, then a limitation period of six years applies to his claimed causes of action pursuant to the 1974 Act, s4(1)(a). That is a general provision in relation to "actions founded on simple contract (including contract implied by law) or founded on tort, including actions for damages for a breach of statutory duty".

5 The plaintiff was a minor throughout the years to which his claim relates. As a general rule, time does not begin to run against a minor under the 1974 Act until he or she attains the age of majority: s26(1). However s26(1) does not apply to an action for damages for personal injuries to which s5 applies. An exception is made by s26(6), which reads as follows:

"(6) This section does not apply to an aggrieved party proposing to bring an action under section 5 or 5A unless that aggrieved party proves that he or she or, as the case requires, the person under a disability was not in the custody of a parent or was in the custody of a parent who was a person under a disability at the time when the cause of action accrued."

6 The plaintiff was in the custody of one or more parents of full capacity at all material times. Nothing in the pleadings suggests otherwise. It follows that none of his claimed causes of action are statute barred unless s5 applies to intentional torts. If, as the defendant contends, s5 does apply to intentional torts, then none of the plaintiff's claims can succeed without an order for an extension of time.

7 In Tasmania, prior to 1965, a limitation period of four years applied to "actions of trespass, of assault, battery, wounding, imprisonment or any of them" by virtue of the Mercantile Law Act 1935, s3.

8 That section was partly superseded, but not formally amended, by the Limitation of Actions Act 1965 ("the 1965 Act"), s2(1) of which provided as follows:

"2 - (1) Notwithstanding any other law or rule of law to the contrary, an action for damages for negligence, nuisance, or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for negligence, nuisance, or breach of duty consist of or include damages in respect of personal injuries to any person shall, except as provided in subsection (2) of this section, be commenced within a period of two years and six months from the time when the cause of action arises."

9 Under s2(2), provision was made for extensions of time up to a maximum of six years from the time when the cause of action arose.

10 This was the first Tasmanian legislation fixing a limitation period for a claim for damages for personal injuries in "an action for damages for negligence, nuisance, or breach of duty". The next relevant change to the law in this State came with the enactment of the 1974 Act. The relevant limitation period was extended from two years six months to three years, but s5(1) otherwise in substance repeated s2(1) of the 1965 Act, including the references to "breach of duty".

11 The 1974 Act was amended in 2004 so as to introduce a new s5A. That section applies to causes of action arising on or after 1 January 2005. Section 5A(3) is a limitation provision relating to personal injuries. It also uses the words "breach of duty". It provides as follows:

"(3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

(a) 3 years commencing on the date of discoverability;

(b) 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action."

12 Before the introduction of s5A, it was in the interests of the victims of intentional torts for the words "breach of duty" to be interpreted narrowly. If an intentional tort did not involve a breach of duty, then an assault victim had six years to sue, and time did not begin to run against a minor until his or her 18th birthday. By contrast, in relation to causes of action arising in or after 2005, there will be cases when it is in the interests of victims of intentional torts for the words "breach of duty" to be interpreted broadly. If the six-year limitation period fixed by s4(1)(a) has expired, but a plaintiff's "date of discoverability" is less than three years before the issue of the writ, then it would suit that plaintiff for his or her claim to be based on a "breach of duty" within the meaning of s5A(3).

13 Personal injury limitation provisions very similar to Tasmania's s5(1) have existed in the United Kingdom and in Victoria for some time: Limitation Act 1939 (UK), s2, as amended by the Law Reform (Limitation of Actions, etc) Act 1954 (UK), s2(1); Limitation of Actions Act 1958 (Vic), s5(6). In a line of cases in both jurisdictions, the words "breach of duty" were interpreted as referring to unintentional trespasses to the person, and to intentional torts.

14 In Kruber v Grzesiak [1963] VicRp 84; [1963] VR 621, Adam J held that a claim for damages for trespass based on an unintentional infliction of injury was an action for breach of duty for the purposes of the relevant provision. At 623, his Honour said:

"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?"

15 That case was followed by the English Court of Appeal in Letang v Cooper [1964] EWCA Civ 5; [1965] 1 QB 232. Their Lordships followed an earlier Court of Appeal decision, Billings v Reed [1945] KB 11, which concerned legislation as to compensation for war injuries that included an exemption in relation to injuries "attributable to some negligence, nuisance or breach of duty".

16 In Hayward v Georges Ltd [1966] VicRp 28; [1966] VR 202, McInerney AJ followed those cases in allowing an amendment concerning allegations of assault and battery.

17 Those cases were cited with approval by Hart J in Ure v Humes Ltd [1969] QWN 25.

18 Legislation was enacted in the United Kingdom in 1975, and in Victoria in 1983, so as to provide that, for certain actions in which damages were claimed for personal injuries, the limitation period would not commence to run until the plaintiff first knew of certain material facts: Limitation Act 1975 (UK); Limitation of Actions (Personal Injury Claims) Act 1983 (Vic). The provision introduced in Victoria became s5(1A) of the Limitation of Actions Act 1958 (Vic). A new s23A, permitting extensions of time, was introduced into that Act at the same time. The meaning of the words "breach of duty" in Victoria's s5(1A) was considered by the Victorian Court of Appeal in Mason v Mason [1997] 1 VR 325, and by the High Court in Stingel v Clark. In each of those cases, the Court concluded that an intentional trespass constituted a breach of duty, following Kruber v Grzesiak, Letang v Cooper, and Hayward v Georges Ltd.

19 Meanwhile in the United Kingdom, the House of Lords considered the meaning of "breach of duty" in limitation legislation for the first time in Stubbings v Webb [1993] AC 498. That case concerned claims for damages for indecent assaults upon a minor. Under the Limitation Act 1980 (UK), ss11 and 14, if the action related to a breach of duty, a limitation period of three years began to run from the plaintiff's date of knowledge that the injuries in question were significant and attributable to the defendant's acts. It was held that the words "breach of duty" did not relate to cases of deliberate assault, including acts of indecent assault. The result was that the action was statute barred.

20 The Supreme Court of Ireland followed Stubbings v Webb in Devlin v Roche [2002] IESC 34; [2002] 2 IR 360. Geoghegan J acknowledged at par[10] that there were "two perfectly legitimate viewpoints on this question".

21 The point came before the House of Lords again in A v Hoare [2008] UKHL 6; [2008] 1 AC 844. Their Lordships unanimously held that Stubbings v Webb had been wrongly decided, and that they should depart from it. At par[10] Lord Hoffman, with whose reasons the other members of the House agreed, said the following in relation to the Limitation Act 1975 (UK), s1, which was subsequently re-enacted in the 1980 UK Act as s11:

"The inference I would draw is that in using the same form of words in the 1975 Act, Parliament must have intended them to bear the meaning which they had been given in the uniform line of authority in England and Australia to which I have referred."

22 In New South Wales, good sense prevailed, and a definition of "breach of duty" was included in the Limitation Act 1969 (NSW), s11(1). The definition expressly includes trespass to the person. However there are dicta in two New South Wales cases to the effect that, independently of the definition, intentional torts should be regarded as constituting breaches of duty for the purpose of limitation legislation: O'Neill v Foster [2004] NSWSC 906; (2004) 61 NSWLR 499 at pars[20] - [29], [36] - [45] (Campbell J); State of New South Wales v Radford [2010] NSWCA 276 per Sackville AJA, with whom Beazley and Macfarlan JJA agreed, at pars[75] - [78]. Both of those cases concerned legislation similar to Tasmania's s5(1), not legislation involving a "date of knowledge" or "date of discoverability" provision.

Should Stingel v Clark be followed or distinguished?

23 The principal judgment in Stingel v Clark was that of Gleeson CJ, Callinan, Heydon and Crennan JJ. At par[17], their Honours explained their reasons for adopting a wide interpretation of the words "breach of duty", as follows:

"This Court should uphold the decision in Mason v Mason, which was followed by the Court of Appeal of Victoria in the present case. There are three reasons for this. First, as a matter of principle, for the reasons given by the English Court of Appeal in Letang v Cooper, the words 'breach of duty' are capable of covering intentional trespass. In view of the difference of opinion between Diplock LJ in Letang v Cooper and Lord Griffiths in Stubbings v Webb, it is clear that eminent judges may disagree about whether, upon jurisprudential analysis, the expression 'breach of duty' is apt in the case of trespass, but statutes of limitation are more concerned with practical justice than with jurisprudential analysis, and, at the very least, the language is ambiguous. Secondly, the legislative history in Victoria is significant, and in some respects different from that in the United Kingdom. The House of Lords, in Stubbings v Webb, considering the same expression in the Law Reform (Limitation of Actions, &c) Act 1954 (UK), attached significance to some remarks in the Report of the Tucker Committee, but in his evidence to the Committee of the Victorian Parliament, Mr Justice O'Bryan had earlier glossed those remarks differently (Victoria, Report from the Statute Law Revision Committee on Limitation of Actions (1950), p 47) in a manner consistent with the approach that later prevailed in Victoria. More significantly, ss 23A and 5(1A), both of which were the product of reviews of the existing law by expert committees, adopted language which, at the time of its adoption, had been construed judicially in a certain fashion. That history of judicial construction was part of the context in which the provisions are to be understood. It would certainly have been known to the committees advising on changes to the Act. We are dealing here with a matter of 'lawyers' law'; and considerations of judicial precedent would have been to the forefront of matters taken into account. Third, the alternative construction preferred in Stubbings v Webb results in anomalies (Exemplified in S v W (Child Abuse Damages) [1995] 1 FLR 862.); it attributes to Parliament an intention to draw a distinction which defeats, rather than advances, the purpose of the legislation. The evident purpose of both ss 23A and 5(1A) is to relieve the position of victims of tort: the former by giving a court a discretionary power to extend the time bar; the latter by providing for an automatic extension in cases of injuries of delayed onset. There is no discernible difference, in point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting the perpetrators of intentional torts in a better position than the perpetrators of unintentional torts. There being, as the Supreme Court of Ireland said, two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation. The construction of the words 'breach of duty' in the Victorian legislation accepted in Mason v Mason accords with legislative history, context and purpose. It is, therefore, to be preferred to that advanced by the respondent."

24 There are two aspects of that reasoning that are inapplicable to the present case:

•

Stingel v Clark concerned Victoria's ss5(1A) and 23A, which were enacted for the benefit of victims of torts, whereas Tasmania's s5(1) and its predecessor were not. The relevant Tasmanian provision imposed shorter time limits on victims than would otherwise have been applicable.

•

There is no reason to think that the evidence of Mr Justice O'Bryan to a committee of the Victorian Parliament in 1950 sheds any significant light on the intentions of the Tasmanian Parliament in 1965 and 1974.

25 There was no Hansard in the Tasmanian Parliament until after 1974. Counsel were able to provide me with only one piece of extrinsic material in relation to the enactment of s5(1) - a report of the Law Reform Committee of Tasmania entitled "Report on Limitation of Actions". It is an undated report to the Attorney-General that pre-dates the 1974 Act and appears to have formed part of that Act's gestation process. The learned authors did not give much attention to claims for damages for personal injuries. The majority recommended that the provisions of the 1965 Act be re-enacted, but with an increase of the limitation period to three years. One member opposed that increase. The learned authors apparently overlooked Kruber v Grzesiak, Letang v Cooper, and Hayward v Georges Ltd. On page 18, they proposed that the new Tasmanian Act should copy Victoria's s5(1)(a). At page 23, they commented in relation to that proposal:

"The present law sets up a period of 6 years for tort and contract in general. (Civil Procedure Act 1833 Sec 3, and Mercantile Law Act 1935 Sec 3) but periods of 4 years exist for trespass, assault, battery, wounding and imprisonment (Mercantile Law Act Sec 3).

The proposed amendment sets up a period of 6 years in all cases, in accordance with the Imperial and Victorian Acts."

26 That recommendation evidently led to the enactment of s4(1)(a). In the absence of the committee's report, one would ordinarily infer that the Tasmanian Parliament was aware of the reported cases in the United Kingdom and Victoria as to the meaning of "breach of duty" when it enacted s5(1). The failure of the committee to refer to those cases tends to weaken the basis for such an inference.

27 There are a number of powerful arguments for giving the words "breach of duty" a narrow interpretation. They are set out very well in Stingel v Clark in the dissenting judgments of Gummow and Kirby JJ. I would summarise the main points made by their Honours as follows:

•

An intentional trespass to the person is very different from a breach of a duty of care. The words "breach of duty" do not ordinarily refer to deliberate violence.

•

Neither a breach of duty nor damage is an ingredient of a cause of action for trespass to the person: Williams v Milotin [1957] HCA 83; (1957) 97 CLR 465 at 474.

•

If Parliament had intended the words "breach of duty" to have a wide meaning, there would not have been any need to make specific reference to negligence or nuisance, but those torts are expressly referred to.

•

When the provision in question was enacted, the prevailing view was that there were torts other than negligence and nuisance that involved breaches of duty, eg a duty in relation to dangerous things: Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330. The words in question can be construed as referring to those other torts.

•

Legislative provisions of the type in question had their origin in the United Kingdom in the report of the Tucker Committee (Report of the Committee on the Limitations of Actions 1949 (Cmd 7740)), which expressly stated (in par23) that the recommended provision for personal injuries was not intended to include actions for trespass to the person.

28 All of those arguments were insufficient to persuade the majority in the High Court to adopt a narrow interpretation of "breach of duty". They are no stronger now than they were when Stingel v Clark was argued. In fact they are weaker, as a result of the House of Lords' decision in A v Hoare.

29 In my view the points of distinction between this case and Stingel v Clark are not sufficient to warrant adopting a different interpretation of the words "breach of duty", for the following reasons:

•

It is reasonable to assume that the Tasmanian Parliament was aware of the decisions in Kruber v Grzesiak and Letang v Cooper when it passed the 1965 Act. Although Letang v Cooper was not reported in the authorised reports until 1965, it was decided on 15 June 1964, and reported in the same year at [1964] EWCA Civ 5; [1964] 2 All ER 929; [1964] 3 WLR 573; and [1964] EWCA Civ 5; [1964] 2 Lloyds Rep 339. The Tasmanian Parliament should be presumed to have intended the interpretation adopted in those cases to have been adopted in relation to s2 of the 1965 Act, and therefore in relation to s5(1) of the 1974 Act, despite the unfortunate oversight in the committee report that I have referred to.

•

A wide interpretation of the words in question has been adopted in relation to limitation provisions that were not enacted for the benefit of the victims of torts in Kruber v Grzesiak, Letang v Cooper, and Hayward v Georges Ltd. I am not persuaded that any of those cases were wrongly decided. No attempt was made to distinguish them.

•

Section 5A(3) uses the same wording as s5(1). Since s5A(3) was clearly inserted for the benefit of the victims of torts, Stingel v Clark should be followed when interpreting it. That is to say, the words "breach of duty" must be given a wide meaning in the interpretation of that provision. To adopt a different interpretation in relation to the same words in s5(1) would be ludicrous.

30 For these reasons, it is my conclusion that an action for damages for an intentional tort, in which damages are claimed by the plaintiff in respect of personal injuries, is an action for damages for "breach of duty" to which s5(1) applies. I therefore determine that the Limitation Act 1974, s5, applies to intentional torts.