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Date: Fri, 21 Jul 2006 11:08:35 +1000

From: Neil Foster

Subject: Is trespass to the person a "breach of duty"?


Dear Colleagues;

The High Court of Australia in Stingel v Clark [2006] HCA 37 (20 July 2006) had to address two very interesting questions arising under Victorian limitation legislation. The plaintiff alleges that she was raped by the defendant in 1971 and later contracted post-traumatic stress in 2000 which she only then realised was attributable to the rape. (Those outside Australia may not be aware that this litigation is very controversial here, as the defendant has been a high-profile activist for indigenous issues for a number of years. I understand that both plaintiff and defendant are members of the indigenous community.)

The legal issues however were these - the Victorian legislation provided a provision allowing an extension of the normal limitation period in certain "disease" cases; but the provision was expressed to only operate in cases of "negligence, nuisance or breach of duty". The two issues that presented (in logical order) were (1) was trespass to the person (the basis of the civil claim for rape) a "breach of duty"? (2) if it was, did the sort of "disease" claim here attract the extension provisions of the legislation.

The majority of the Court ruled in favour of the plaintiff to allow the action to proceed.

(1) On the first issue, by 5-2 the Court ruled that for the purposes of the Victorian legislation "breach of duty" had to be interpreted to allow it to include actions for trespass to the person. In doing so they were conscious that they were deciding contrary to the interpretation of an almost identical UK provisions (conceded to have been the model for the Victorian provision) given by the House of Lords in Stubbings v Webb [1993] AC 498. But what seemed to weigh most heavily was the fact that the provision had been interpreted that way by a line of Victorian cases, and the Act had been amended when Parliament must have been aware of the prevailing judicial approach. (As a statute dealing with "lawyer's law" there seems to be a reasonable argument that the lawyers updating it were conscious of the issue; though one could also argue that if so they should have made it clearer!) It may surprise some to note that the two dissenters were not only Gummow J but also Kirby J. They both offered strong arguments to note that trespass to the person (especially in a piece of "lawyer's law") cannot be described as an action for "breach of duty".

(2) The second issue was whether the type of disease here (late onset post-traumatic stress as it was described) was covered by the expression "damages in respect of personal injuries consisting of a disease or disorder contracted by any person". Neither Gummow J nor Kirby J offered a definitive view on this issue as they had decided the previous issue contrary to the plaintiff (though Kirby J said at [120] that he "tended to agree" with the majority on the issue.) The majority held that the words were apt to describe the plaintiff's situation; in doing so they over-ruled the Court of Appeal in Victoria which had divided 3-2 on the point, the majority there maintaining a distinction between "insidious" diseases and those caused by "frank" injury which the majority in the High Court rejected as unjustified by the words of the legislation.

To some extent the decision is perhaps better characterised as an exercise in statutory interpretation rather than in "pure" tort law, but it well illustrates the interplay between the two.


Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
ph 02 4921 7430
fax 02 4921 6931



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