A recent High Court ruling has cleared the way for a victim to pursue her claim for post traumatic stress dis­-order (PTSD) against her alleged attacker, even though the alleged assaults leading to her claim occurred over thirty years ago.

In the case of Stingel v Clark [2006] HCA 37 (20 July 2006), the appellant alleged that she was assaulted and raped by the respondent in 1971. She sought to commence a civil action for damages for trespass to the person against her alleged attacker. The appellant alleged that she suffered delayed onset PTSD as a result of the respondent’s actions, but was not aware of the injury or its relationship to the alleged assaults until 2000. The respondent sought to have the appellant’s claim struck out on the basis that the six year time limit within which to commence legal proceedings had run out under the Limitations of Actions Act 1958 (Vic) (the Act).

The appellant relied on s5(1A) of the then Act to support her claim and extend the period of time within which she could bring it. The relevant provisions of the Act stated that:

“An action for damages for negligence nuis­ance or breach of duty . . . 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 that –

(a) he has suffered those personal injuries; and
(b) those personal injuries were caused by the act or omission of some person.”

“Personal injuries” as defined in the Act include “any disease and any impairment of a person’s physical or mental condition”.

The respondent argued that s5(1A) did not apply as the action for trespass to the person was not one for damages for negligence, nuisance or breach of duty. Further, it was argued that the appellant’s PTSD was not a disease or disorder within the meaning of the section, which was designed to cover “onset” diseases such as asbestosis or mesothelioma.

The County Court originally found in favour of the appellant by find­ing that s5(1A) applied. On appeal, the major­ity of the Court of Appeal (3:2) over­­turned the decision finding that s5(1A) did not apply to the injury suffered, namely PTSD.

The majority of the High Court (5:2) ruled in favour of the appellant, finding that trespass to the person was a claim for a breach of duty within s5(1A) and that the reference to diseases or disorders in the section could apply to those disorders that occur as a delayed consequence of a physical event, such as PTSD after a rape or assault.

The High Court ruling will be welcomed by those seeking to pursue claims for PTSD where the trauma, alleged or otherwise, occurred many years earlier. Former naval personnel suffering PTSD as a result of the collision between HMAS Melbourne and HMAS Voyager in 1964 are obvious examples.

Note that there has been significant reform to the provisions of the Limitation of Actions Act 1958 (Vic) and in the area of personal injuries claims generally. You should consult your lawyer to discuss the relevant provisions and how they relate to you.

Disclaimer: The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Brendan Kelly of our office.

Kenna Teasdale Lawyers © 2009 | Privacy Policy | Terms Of Use