Gifford v Strang Patrick Stevedoring Pty Ltd S147/2001 [2002] HCATrans 74 (5 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S145 of 2001

B e t w e e n -

KRISTINE RANGHILD GIFFORD

Applicant

and

STRANG PATRICK STEVEDORING PTY LTD

Respondent

Office of the Registry

Sydney No S146 of 2001

B e t w e e n -

DARREN GIFFORD

Applicant

and

STRANG PATRICK STEVEDORING PTY LTD

Respondent

Office of the Registry

Sydney No S147 of 2001

B e t w e e n -

KELLY GIFFORD

Applicant

and

STRANG PATRICK STEVEDORING PTY LTD

Respondent

Office of the Registry

Sydney No S148 of 2001

B e t w e e n -

MATHEW GIFFORD

Applicant

and

STRANG PATRICK STEVEDORING PTY LTD

Respondent

Applications for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 MARCH 2002, AT 10.52 AM

Copyright in the High Court of Australia

__________________

MR D.E. BARAN: If it please your Honours, I appear for the applicants. (instructed by G.H. Healey & Co with Graeme R. Jensen & Co)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR T.F. McKENZIE, for the respondent. (instructed by Gillis Delaney Brown)

McHUGH J: Do not sit down, Mr Hislop.

MR BARAN: Your Honours, this is an application - - -

McHUGH J: No, no. You might sit down. Mr Hislop, this case seems to raise all the great questions that are still floating around in relation to nervous shock. A more suitable vehicle for the grant of special leave in a nervous shock case could hardly be found.

MR HISLOP: Well, your Honour, let me deal with that to start with if I might.

McHUGH J: There are some very important questions to be decided here and you have the children involved in it, you have the widow, the grounds that they fail. I mean, you may well be successful in an appeal, but these questions, as you are well aware, really throw up differences between the English law and the Australian law. We have two cases under reserve judgment, Tame v Morgan and Annetts, as you are well aware, but this is quite a different case from those cases.

MR HISLOP: Your Honour, I am reminded of an old parable, but can I nevertheless put three propositions to the Court.

McHUGH J: Yes.

MR HISLOP: There are, as we would understand it, three matters which are raised. The first is in respect of the widow's claim, it seems to be put that the result in respect of her claim should be overturned.

McHUGH J: Well, her case arguably raises the whole question about the sudden sensory perception which results in shock and whether or not mental illness should not be now substituted for this whole idea of shock, which really only comes into the law, does it not, with Justice Brennan's judgment in Jaensch? There was not too much in favour of it before that, was there?

MR HISLOP: Well, that certainly spelt out what was meant by nervous shock.

McHUGH J: Yes.

MR HISLOP: There is no question about that. But, your Honour, there is really a factual question which is dealt with by the trial judge and upheld in the Court of Appeal which, in our submission, would make it inappropriate to grant leave in the widow's case. Under section 151P of the Workers Compensation Act it is expressly required that there be what was normally called a recognised psychiatric illness, which the Act - - -

McHUGH J: The question is whether or not 151P applied to the exclusion of the Law Reform (Miscellaneous Provisions) Act, is it not?

MR HISLOP: But, your Honour, that would not matter. That is a second question, but the point that I would seek to make is that there is an express requirement under 151P that the plaintiff in this case "suffered a demonstrable psychological or psychiatric illness".

McHUGH J: Yes.

MR HISLOP: Now, his Honour the trial judge found that that had not occurred, that there was no "demonstrable psychological or psychiatric illness" and that finding was upheld in the Court of Appeal. Now, there is thus no factual underpinning for any of the arguments that are then sought to be erected in relation to the widow's claim and for that reason we would say there should no be grant in relation to the widow's claim.

GUMMOW J: As to the child?

MR HISLOP: As to the children there are really two issues.

McHUGH J: Can you just take me to where the Court of Appeal upheld that finding?

MR HISLOP: Yes. The Court of Appeal upheld it at around about page 76 of the application book. His Honour commences to deal with the widow's claim at 76, your Honour, and then goes on to deal at some length with that and then ultimately the decision appears at page 80.

GUMMOW J: Paragraph 65.

MR HISLOP: And ultimately there is the final finding, as was remarked, at paragraph 65 on page 84. One should say it was not just a matter of accepting Dr Dyball's opinion, but it was also upon the judge's assessment of the widow in the witness box and as to how her life had progressed after the death of her husband. So it is a purely factual finding in respect of which there has been no difference of opinion in either of the courts below and, in our submission, it would be quite inappropriate to consider this case, so far as the widow's claim is concerned, a proper vehicle for the exploration of the matters, interesting which they may be, which lack a basic factual foundation in this case.

GUMMOW J: Now, there is no finding as to the children, is there, as to nervous shock?

MR HISLOP: No, there is not, your Honour.

GUMMOW J: They got knocked out on other grounds.

MR HISLOP: Yes, that is so. The children got knocked out on the sight and hearing control mechanism.

GUMMOW J: Yes. Well, that is a question.

MR HISLOP: That is an issue which, well, we would have thought, may have attracted the Court but for the fact that it is an issue which is squarely raised in Annetts' Case which was, as has already been remarked, argued in Morgan v Tame and there this very question is very much in play. That was a case of a secondary victim, if one likes to use the English terminology - - -

McHUGH J: But the facts of Annetts are very different from the facts of this case. In Annetts you had an antecedent relationship between the plaintiffs and the defendants and the questions that are raised in this case are not necessarily involved in Annetts. If you have read the transcript of the argument, you will see that members of the Court put questions which would suggest that the case might have had a different analysis from what it had received in the courts below, did it not?

GUMMOW J: It got a different focus, I think.

MR HISLOP: Well, I mean, I, of course, have read the argument and it did seem that there were certainly differences factually. It was a more extended period of time for starters and - - -

McHUGH J: But there had been an undertaking by the station manager to the parents that he would look after the children. I mean, arguably there was even a fiduciary duty in one sense there.

MR HISLOP: Yes. Well, ultimately the issue which is here was raised, but your Honour better knows - we have not the benefit of the judgment.

McHUGH J: Yes.

GUMMOW J: Now, on the children's appeal do questions of the New South Wales statutory structure emerge as well?

MR HISLOP: They would to a certain extent, your Honour. They would impact upon the decision of Hancock, which is the Queensland case that was referred to, and also we would seek to draw something from section 151P of the New South Wales Workers Compensation Act because we would say that that shows a legislative intent in this State to retain the various controls which have been in force and which the legislature chose not to interfere with when they enacted 151P. So that we would say that, in an answer to your Honour's question, yes, the statute would come into play and would provide a reason why a different result might ensue in New South Wales than in the other States.

Similarly, in Hancock's Case, the non-reliance upon Jaensch v Coffey and the reasoning supporting that is not made out in relation to New South Wales because of the fact that in Jaensch v Coffey Justice Murphy took a position which would have meant that he supported the approach of Justice Brennan, which would have meant that the balance that was perceived in the Queensland court in Hancock was not so and would not be so in New South Wales.

So that if the Court was to grant leave in respect of the children as to the sight and hearing mechanism, then it would really be limited to that, but the case or the result would very likely be not of general application because of what we say the effects of the statutory provisions in New South Wales are. So that, in our submission, this is not really an appropriate vehicle for testing the many questions which were suggested to be raised in it and really the only single question which might have attracted the Court, if Annetts is not going to deal with the matter, is one which would be quite limited by reason of the New South Wales statutory provisions and might result in a decision which has no application anywhere but in New South Wales.

So that, accordingly, we would submit it is not the vehicle which might have been thought at first blush for a determination of issues which are very live and real in many respects. So they are the submissions which we would advance as to why it is not an appropriate case for leave. If it please the Court.

McHUGH J: Yes, thank you, Mr Hislop. Now, Mr Baran, what do you say about the widow's appeal?

MR BARAN: Well, with the greatest respect, I differ with my learned friend. If your Honour goes to the evidence which was referred to by his Honour Mr Justice Hodgson regarding Dr Shand and that is to be found at AB79, lines 5 to 20, your Honour will see that the evidence of Dr Shand was the primary evidence accepted by his Honour the trial judge that the plaintiff had suffered abnormal grief from the start.

McHUGH J: Well, I know.

GUMMOW J: No, no.

MR BARAN: From the start. In terms of - - -

GUMMOW J: What do you say about the findings?

MR BARAN: Well, the finding, your Honour, is - - -

GUMMOW J: Are you accepting that you would have to overthrow the finding?

MR BARAN: Yes, your Honour.

McHUGH J: It is strange because at the bottom of 25 the judge says:

I accept the evidence of Dr Shand.

MR BARAN: Yes.

McHUGH J: He gives the reasons:

because of Dr Shand's considerable experience as a consultant psychiatrist.

It is hardly surprising. Anybody that is familiar with Dr Shand's evidence, he is an impressive witness. But nevertheless the trial judge for some reason does not accept his evidence that it was a psychiatric disorder.

MR BARAN: Your Honour has it in one.

McHUGH J: Yes.

MR BARAN: That issue, we say, is very much alive.

McHUGH J: Yes, Mr Baran.

MR BARAN: Your Honour, effectively the reasons why we say that there should be a grant of special leave is because it does raise for the very first time the issue your Honour raises. This is the - - -

McHUGH J: We do not want to hear you in relation to children, but if there is anything further you want to say in respect of the wife, you - - -

MR BARAN: No, your Honour. That is all I have to say in response to my friend.

McHUGH J: Which appeal is the - there are four appeals.

MR BARAN: The three children and the widow.

McHUGH J: Yes, I know. In this matter there will be a grant of special leave in matters S146, S147 and S148 of 2001. The wife is Kristine Gifford?

MR BARAN: Yes.

McHUGH J: But special leave is refused in matter S145 of 2001 on the ground that the findings of fact made by the learned trial judge give an appeal insufficient prospects of success to warrant the grant of special leave. Accordingly, there will be a grant of leave in S146, S147 and S148 of 2001, but matter S145 of 2001, the application is dismissed.

MR BARAN: If the Court pleases.

MR HISLOP: Costs in that matter, your Honour?

MR BARAN: I do not seek costs.

McHUGH J: Well, I think having regard to the - what do you say about the question of costs, Mr Baran?

MR BARAN: Your Honour, I do not seek costs.

McHUGH J: Well, you cannot get costs. You cannot get costs. Costs in special leave applications abide the event of the appeal.

MR BARAN: Yes, your Honour.

McHUGH J: But the question is whether there should be an order for costs against your client in S145 of 2001.

MR BARAN: I was going to come to that, your Honour. Because substantially the matter is all joined together in effect, the special application has really in effect been successful on the general issue which was before the Court, namely the rights of secondary victims. That was the real issue. In my respectful submission, that has been successful so there should not been any order for costs.

McHUGH J: Yes, in matter S145 the application is dismissed with costs.

AT 11.08 AM THE MATTERS WERE CONCLUDED