|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of New South Wales |
COURT
IN THE SUPREME COURT OF NEW SOUTH WALES
COURT OF APPEAL
GLEESON CJ(1), KIRBY P(2) AND CLARKE JA(3)
HRNG
SYDNEY, 30 November
1994
#DATE 15:2:1995
#ADD 14:11:1995
Counsel for the Appellants: B M J Toomey QC and R H B Wood
Solicitors for the Appellants:
Walsh and Blair
Counsel for the Respondent: H J Mater
Solicitor for the Respondent: Government Insurance Office
of
New South Wales
ORDER
Appeals dismissed with costs
JUDGE1
GLEESON CJ: I have had the benefit
of reading in draft form the reasons for
judgment of Clarke JA. I agree with the orders proposed by his Honour and with
his reasons
for those orders.
2. In particular, I agree that no successful challenge has been made to the
conclusion of Judge Urquhart QC
to the effect that neither appellant was shown
to have suffered a recognisable psychiatric illness or injury (cf Jaensch v
Coffey
[1984] HCA 52; (1983-84) 155 CLR 549 at 559-560 per Brennan J).
3. In view of the difference of opinion between the other members of the
court on this issue I should
add some brief observations of my own.
4. First, it would be erroneous to approach a consideration of the reasons
for judgment
of the trial judge as though the only relevant evidence on the
point were that of Dr Jolly. On the contrary, there was a deal of
other expert
evidence. Furthermore, Dr Jolly only examined the appellants long after the
relevant events and at a time when, as he
agreed, they manifested no symptoms
of any psychiatric disorder.
5. Second, the evident reason why particular reference was made
in the
judgment to Dr Jolly was that his opinions were those relied on by the
appellants, and represented the high water mark of
the appellants' case.
Clearly, however, the trial judge paid regard to the whole of the evidence.
6. Third, Dr Jolly's opinions
were in a number of respects extremely guarded
and tentative. For example, he gave the following evidence concerning the
appellant
Steven Coates:
"Q. Prior to the inquest and following the accident the
emotional trauma Steven suffered was a normal reaction?
A. It could be either. It could be normal, yes".
7. This evidence was later qualified but the matter was complicated by the
suggestion that the inquest into the accident was itself a further significant
cause of emotional stress.
8. Fourth, there is
no reason to conclude that the trial judge made the
mistake, attributed to him by counsel, of overlooking the fact that one of Dr
Jolly's findings as to the appellant Steven Coates related to the condition he
"presently" manifested. When the reasons for judgment
are read as a whole, in
my view they reveal no such error.
9. The strongest evidence against the appellants was that of Dr Beesley,
who
was not cross-examined.
10. As to Suzanne Coates, Dr Beesley said:
"1. There is no evidence to indicate the presence
of a
recognisable psychiatric injury or disorder ...
2. ... The historical perspective leads me to accept that Mr
Coates'
death resulted in deep sorrow and led to grief and
mourning followed by some transient reactive depressive symptoms
and psychosomatic
symptoms for some 18 months to two years
regarding Miss Coates. Miss Coates' feelings of sorrow, anger,
anxiety, hostility,
change in conduct patterns, irritability,
insomnia, and abdominal pains, (were) indeed distressing but
understandable in
the circumstances".
11. Dr Beesley went on to express the opinion that what Miss Coates
manifested was appropriate given the distressing
circumstances and that it was
something far short of mental or psychiatric injury or illness, or nervous
shock.
12. Both Dr Beesley
and Dr Jolly agreed that neither appellant displayed
evidence of any demonstrable or significant degree of permanent injury, and
their opinions as to the significance of the transient symptoms probably
reflected, to a degree, the general uncertainty that exists
as to what amounts
to "nervous shock". Dr Beesley regarded Suzanne Coates' reaction, including
her temporary psychosomatic illness,
as within the bounds of a normal reaction
to grief, whereas Dr Jolly, in his written report, referred to her reaction as
"mildly
abnormal".
13. In the light of the whole of the expert evidence the trial judge's
conclusion that he was not persuaded that either
appellant had suffered a
recognisable psychiatric illness or injury is understandable, and has not been
shown to be in error. There
is no clear line between severe but natural grief,
on the one hand, and "nervous shock" on the other. Many people become
physically
ill in reaction to grief. Many people grieve for a deceased
relative or friend for an extended period. This does not mean that such
people
are suffering from psychiatric illness or injury. In the present case the
experts agreed that there was no permanent psychiatric
injury and disagreed as
to whether there had been temporary psychiatric injury. The opinions of the
expert who favoured the appellants
were themselves guarded, and the trial
judge was entitled to regard them as unconvincing. The appellants did not
discharge the onus
of proving that they had suffered from nervous shock.
14. The respondent, by a Notice of Contention, raised a point of law not
argued in the District Court. The appellants learned of the death of their
father as a result of information communicated to them
by a third party. There
was no direct visual or aural perception by them of the accident which
resulted in the death of their father,
nor did they witness or attend what
some authorities have described as the aftermath of the accident. There was no
sudden sensory
perception, by seeing, hearing, or touching, of a person, thing
or event, of the kind referred to by Brennan J in Jaensch v Coffey
(155 CLR at
567).
15. If the Australian law on this subject is the same as the modern English
law, as expounded by the House of
Lords in Alcock v Chief Constable of South
Yorkshire Police [1991] UKHL 5; (1992) 1 AC 310, then the appellants could not succeed in
their action, quite apart from their failure to establish nervous shock.
16. It is,
however, not clear that, in relation to this question, the law of
Australia is the same as the law of England. The question that
was decided by
the House of Lords in Alcock was left open by the majority of the members of
the High Court of Australia in Jaensch
v Coffey (155 CLR at 555 per Gibbs CJ,
at 556 per Murphy J, and at 608-609 per Deane J). Gibbs CJ said, at 555:
"The law must
continue to proceed in this area step by cautious
step".
17. The matter is complicated further by an additional question that
has been
adverted to, but left open, by the High Court. Section 4 of the Law Reform
(Miscellaneous Provisions) Act 1944 provides as follows:
"4(1) The liability of any person in respect of injury caused
after the commencement of this Act by
an act, neglect or
default by which any other person is killed, injured or put
in peril, shall extend to include liability
for injury arising
wholly or in part from mental or nervous shock sustained by -
(a) a parent or the husband or wife of the
person so killed,
injured or put in peril; or
(b) any other member of the family of the person so killed,
injured or
put in peril where such person was killed, injured
or put in peril within the sight or hearing of such member of
the family.
(2) Where an action is brought by a member of the family of
any person so killed, injured Or put in peril in respect of
liability for injury arising wholly or in part from mental
or nervous shock sustained by the plaintiff as aforesaid and
claims have been made against or are apprehended by the
defendant at the suit of other members of the family of such
person
in respect of liability arising by operation of
subsection (1) out of the same act, neglect or default the
defendant may
apply to the Court in which the action is brought
and that Court may thereupon stay any proceedings pending at
the suit of
any such other member of the family arising out
of the same act, neglect or default and may proceed in such
manner and subject
to such regulations as to making members
of the family of such person parties to the action as to who
is to have the carriage
of the action and as to the exclusion
of any member of the family who does not Come in within a
certain time as the Court
thinks just.
(3) Where any application under subsection (2) is made the
action shall be for the benefit of such members
of the family
of the person so killed, injured or put in peril as are joined
by the Court as plaintiff's pursuant to such
application and
the Court may give such damages as it may think proportioned
to the injury resulting to the persons joined
as plaintiffs
respectively, and the amounts so recovered after deducting
the costs not recovered from the defendant shall
be divided
amongst the persons joined as plaintiffs in such shares as
the Court finds and directs.
(3A) Where any case
to which subsection (3) applies is tried
by a judge sitting with a, jury, the jury shall find the shares
of damages and the
judge shall direct in accordance with the
finding.
(4) Any action in respect of a liability arising by operation
of
subsection (1) shall be taken in the Supreme Court or the
District Court".
18. Jaensch v Coffey concerned events that occurred
in South Australia which
has no comparable legislation. Murphy J appeared to assume (115 CLR at 556-7)
that the New South Wales legislation
operated to limit the right of recovery
that might otherwise exist at common law. On the other hand, Deane J at least
regarded the
question as open (155 CLR at 611), and referred to what had been
said about it in Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153 at 158-160 and Mt Isa
Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 408.
19. The view of the common law that prevailed at the time of the enactment of
this legislation explains why the legislature
thought that the provision was
one which extended liability. What is the effect of the section when the
modern view of the common
law has significantly altered?
20. The answer to that question does not turn upon the provisions of s4(1)
alone. The remaining
subsections also need to be examined in considering
whether there was a legislative intention that the provisions of subs. 1 were
to be definitive of the liability with which the legislation was concerned.
21. The consequences of a change in what the legislature
has assumed to be
the common law were considered in the judgment of Mason CJ and Toohey J in
Environment Protection Authority v Caltex
Refining Co Pty Ltd [1993] HCA 74; (1992-93) 178
CLR 477 at 505-6. In that case, the High Court observed that there were
numerous State and Federal statutes which assumed that the privilege
against
self-incrimination was available to corporations. The High Court determined
that the common law was otherwise. Their Honours
said:
"The circumstance that Parliament (or a drafter) assumed that
the antecedent law differed from the law as the Court
finds it
to be is not a Mason for the Court refusing to give effect to
its view of the law. Parliament does not change the
law 'simply
by betraying a mistaken view of it'. However, it is open to
Parliament to amend a common law rule by implication.
Whether
a statute evinces such an intention is a matter of statutory
interpretation. In that respect, it is one thing to
say that
the legislature accepted the law as it thought it to be; it is
quite another thing to speculate upon whether the
legislature
would have sought to change the law had it realised what it
was. If the legislative provisions were only workable
if the
law was as the legislature supposed it to be, that might serve
to indicate that the legislature intended to change
the law".
22. In the present case, the legislature clearly and (having regard to the
date of the legislation) understandably assumed
that the common law was as
enunciated by the High Court in Chester v Waverly Municipal Council [1939] HCA 25; (1939) 62
CLR 1. Parliament set out to change the law, and, again understandably, it
described the change as an extension of the law. Since then the
common law has
developed, and, if the argument for the appellants is correct, has advanced
well past the point to which the law was
taken by the Act of Parliament. The
question to be asked, as identified by Mason CJ and Toohey J, is whether the
statute evinces
the intention that the law on the subject of claims for
damages for nervous shock is to be as stated in the statute, or whether,
as
senior counsel for the appellants has submitted, the statute is to be regarded
as supplementary to, and not derogating from, the
rights of persons at common
law.
23. These are interesting and important questions, but they have been
consciously left open by
the High Court and their resolution should await a
case in which the facts make it necessary to decide them. Since, on the view I
take of the facts, the questions do not arise, I do not intend to express an
opinion about them by way of obiter dicta which would
have no precedential
force.
JUDGE2
KIRBY P In these appeals, from judgments entered in the District Court by
Urquhart DCJ, three
issues are raised.
Three issues in children's nervous shock claims
1. Having regard to the terms of s 4(1)(b) of the Law Reform (Miscellaneous
Provisions) Act 1944 (the Act), are the appellants. being the children of a
person killed in circumstances giving rise to liability of a tortfeasor to
the
deceased. denied recovery for nervous shock upon the footing that the Act
exhausts the circumstances in which members of the
family of the person killed
may recover damages for nervous shock?
2. If not, are they nonetheless denied recovery at common law
upon the
ground that neither of them actually saw the accident, nor its immediate
"aftermath", and each suffered the injury said
to constitute nervous shock as
a result of hearing of the death of the person killed (their father) from a
third person (their mother)?
and
3. If the appellants can overcome each of the foregoing suggested barriers,
have they, nonetheless, failed to establish that
they suffered "nervous shock"
within the relatively narrow view which has been taken by the common law of
that injury? Under that
view, damages for nervous shock have been
distinguished from "ordinary grief" for which no damages may be provided.
2. The facts
are set out in the reasons of Clarke JA. So are the terms of s
4(1) of the Act. To raise the first point, the respondent in each
appeal
required the leave of the Court as the argument was not advanced at the trial.
I would grant that leave. The point raised
is purely a question of law. No
conceivable additional evidence or line of questioning could affect the facts
relevant to its application.
There is, therefore, no applicable procedural
unfairness in permitting the respondent to rely upon the point. Cf O'Brien v
Komesaroff
[1982] HCA 33; (1982) 150 CLR 310, 319; Coulton and Ors v Holcombe and Ors [1986] HCA 33; (1986)
162 CLR 1,8
3. By notice of contention in each appeal, the respondent also relied in
defence of the appellants' claims upon the fact that
(1) the psychiatric
damage alleged did not result from direct visual or aural perception of the
accident; (2) neither appellant witnessed
nor attended the aftermath of the
accident; and (3) the injuries alleged did not result from the perception by
either appellant of
the accident or its aftermath.
The statute does not exhaustively define recovery for nervous shock
4. In my view, s 4(1)(b) of
the Act does not exhaustively define the right of
persons to recover for nervous shock. The section is not expressed in a way
apt
to have that consequence. Anderson v Liddy and Anor [1949] NSWStRp 23; (1949) 49 SR (NSW) 320
(FC), 323. The phrase "shall extend to include" implies the continued
existence of a right which is additional to other rights which remains
unaffected. The history of the statute, being designed, in part, to overcome
Chester v The Council of the Municipality of Waverley
[1939] HCA 25; (1939) 62 CLR 1, is not
supportive of the suggestion of an exclusive definition of entitlements to
damages for nervous shock. The procedural arrangements
originally provided by
the Act deny the legislative purpose of abolishing common law rights. Those
rights remained as they were,
and as they were later to develop. It is an
established doctrine in the interpretation of statutes that legislation should
not be
construed to take away common law rights except by clear terms.
5. There are also important reasons of principle why s 4(1) of
the Act would
not be construed to be exhaustive of all other legal rights. The range of
people who are likely to be so profoundly
affected by the death or injury of
another so as to suffer nervous shock extends beyond the "parent or the
husband or wife ... or
other member of the family" specified in the Act. Human
relationships do not fit so readily into such neat categories. Grief and
nervous shock are not limited, in their toll, to the relationships mentioned
in the Act. The statute should therefore be construed,
as Taylor J suggested
in Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153 at 159-160, as merely operating:
"... to extend the field in which persons standing in a special
relationship to a person
... injured ... may recover for nervous
or mental shock ... Section 4(1)(b) ... operates to substitute
for the test of foreseeability
a concrete test. ... But it does
not otherwise affect the cause of action of any such member of
the family."
6. To the
extent that the respondent advanced the argument resting on
s4(1)(b) of the Act, it should be rejected. Cf Mount Isa Mines Limited
v Pusey
[1970] HCA 60; (1970) 125 CLR 383, 408; Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153, 157, Rowe v
McCartney (1975) 1 NSWLR 544 (SC), 549; Wilks v Haines (1991) Aust Torts Rep
81-078 (NSWSC), 68, 652-3.
Recovery for nervous shock resulting from later communication
7. The second point, raised in resistance to the appellants'
claim, presents
greater difficulties. It concerns the entitlement of persons such as the
appellants, who were children of the person
killed, to recover damages for
nervous shock although they did not witness the relevant wrong and were not
within the immediate "aftermath"
in such a way as to warrant imposing
liability on the respondent as representative of the tortfeasor.
8. The respondent urged
that the common law did not extend an entitlement to
sue for nervous shock to family members, such as the deceased victim's
children,
who were merely told of the peril and the deceased's injury and
death as a result of it. A longstanding principle of the common law
in England
was expressed by Lord Wilberforce in McLoughlin v O'Brian [1982] UKHL 3; (1983) 1 AC 410
(HL), 423 in these terms:
"... shock must come through sight or hearing of the event or
of its immediate aftermath."
9. The
object of the various formulations, designed to restrict recovery for
nervous shock at common law, was to give effect to policy concerns.
These
included that unless so restricted, the scope of recovery for an often very
nebulous medical and psychological condition suffered
by unforeseeable people
who enjoyed a vast range of relationships with the victim of the tort, would
become too broad and the recovery
too potentially large and crippling. Cf F
Trindade and P Cane The Law of Torts in Australia (2nd ed) OUP, Oxford, 1993,
348. Professor
John Fleming expressed the concern about the expansion of
recovery for nervous shock as "far from negligible". The fear was that,
if
extended, the right of recovery might open up "a wide field for imaginary
claims". Cf Victorian Railway Commissioners v Coultas
(1888) 13 App Cas 222
(PC), 226. It could put an unduly onerous burden on human activity for fear of
exposing potential tortfeasors to the risk of perhaps unreasonable,
distant
and often unforeseeable damages. See J G Fleming, The Law of Torts, 7th ed,
Law Book Co, Sydney, 1987, 145. It could mean
that for every wrong - at least
with serious (ie shocking) consequences - a penumbra of liability would be
cast to afford rights
to a wide range of persons in a close relationship with
the victim of the wrong. The result of these concerns has been the attempt
by
judges of the common law to introduce "several limiting devices". Alas, none
of these has proved very satisfactory.
10. In
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, the judges of the High Court of
Australia divided concerning the prerequisite of damage being caused by
perception. Gibbs CJ (at
555) did not commit himself on the issue. Brennan J
(at 567) stressed the necessity for perception-produced damage. actually
experienced
by the plaintiff. Deane J (at 608f) viewed the issue as an open
one. Dawson J (at 612) rejected the recovery of damages in the case
of
socalled "distant shock".
11. The entitlement of recovery of damages for proved "nervous shock" on the
part, at least, of young
and loving children of a deceased victim of a tort is
therefore open in the current state of legal authority in Australia. I do not
consider that any authority of the High Court of Australia, or of this Court,
requires a conclusion one way or the other. It is true
that the House of Lords
has recently rejected liability for communication induced shock and related
psychiatric harm. See Alcock
v Chief Constable of South Yorkshire Police
[1991] UKHL 5; (1992) 1 AC 310 (HL). However, a number of cases in Australia have shown that
the courts of this country have proved resistant to the artificial
line-drawing
inherent in the former understanding of the common law rule. See
eg Andrews v Williams (1967) VR 831 (VFC, 834); Kohn v State Government
Insurance Commission (1976) 15 SASR 255 (FC), 256; Tsanaktsidis v Oulianoff
(1980) 24 SASR 500; Petrie v Dowling (1992) 1 Qd R 284 (SC).
12. While it is notable that the plaintiff nervous shock victims in almost
all of the foregoing cases were injured in the same
accident as the deceased,
the fact of involvement, in my opinion, should not provide the rationale for
invoking an 'exception' to
the rule requiring direct perception of the
incident, or its immediate 'aftermath', in order to recover nervous shock
damages. Petrie
v Dowling is the exception. There, a mother, having been told
to expect only concussion and gravel rash when informed of her daughter's
bicycle accident, had her nervous question, "She's not dead, is she?" affirmed
by the attending nurse. She subsequently recovered
damages.
13. I concede the difficulty of drawing lines on policy grounds to restrict
the exposure of tortfeasors to liability
for nervous shock caused by a message
of injury or death consequential upon the tort. However, provided the
requisite factors of
foreseeability and proximity are demonstrated, the logic
which traditionally prohibits recovery where a plaintiff has been told of
the
incident and its effects, as opposed to directly perceiving the incident, is
unsustainable. See N J Mullany and P R Handford,
Tort Liability for
Psychiatric Damage: The Lau, of 'Nervous Shock' The Law Book Co. Ltd, Sydney,
1993, 160. I accept, with respect,
the logic of Deane J's comments on the
issue in Jaensch v Coffey (above), 608 where his Honour said:
"It is somewhat difficult
to discern an acceptable reason why
a rule based on public policy should preclude recovery for
psychiatric injury sustained
by a wife and mother who is so
devastated by being told on the telephone that her husband and
children have all just been
killed that she is unable to attend
at the scene while permitting recovery for the reasonably, but
perhaps less readily,
foreseeable psychiatric injury sustained
by a wife who attends at the scene of the accident or at its
aftermath at the hospital
when her husband has suffered serious
but not fatal injuries."
14. The facts before the Court in the present case do not present
the same
policy problems of vastly increasing the categories of possible litigants such
as are created by the countless witnesses
of disasters portrayed by means of
mass telecommunications. See Alcock v Chief Constable of South Yorkshire
Police (above) where
the English courts were confronted with such a case.
15. Rather, I suggest, it is clearly foreseeable that, the young, loving
children, at least, of a particular person seriously injured or killed will
shortly be informed of the injuries or death and may,
in certain cases, then
suffer such a serious instance of "nervous shock" as to warrant holding the
tortfeasor liable. Damage to such
persons is certainly foreseeable in the
ordinary course of human experience. In some cases that damage may take the
form of nervous
shock. The artificiality of restricting recovery to
perceptions derived directly from active, physical proximity to the happening
of the tort, or to its immediate aftermath. has been pointed out in numerous
cases and academic commentary. See. eg, Danuta Mendelson,
"The Defendant's
Liability for Negligently Caused Nervous Shock in Australia; Quo Vadis?"
(1992) 18 Monash Uni L R 16 at 45; Jane
Swanton, "Issues in Tort Liability for
Nervous Shock", (1992) 66 ALJ 495, at 500; F A Trindale, "The Principles
Governing the Recovery of Damages for Negligently Caused Nervous Shock",
(1986) CLJ 476 at 478-480. In Schneider v Isovitch (1960) 2 QB 430, Paull J,
at 441f pointed out:
"... once a breach of duty is established the difference
between seeing and hearing is immaterial.
Hearing can be just
as direct a consequence as seeing."
16. One could add to this proposition that hearing by telephone, or
by later
oral message, can, in today's world. be just as foreseeable and just as
directly related to the wrong sued upon as if the
vulnerable observer had
received the shocking perception by his or her own eyes and ears at the moment
of the relevant wrong. The
rule of actual perception is in part a product of
nineteenth century notions of psychology and psychiatry. In part, it was
intended
as a shield of policy against expanding the liability of wrongdoers
for the harm they caused. And in part, it was a reflection of
nineteenth
century modes of communicating information.
17. But as Mullany and Handford (above) comment. at 168,
"Judicial
retreat to the sanctity of public policy arguments
to deny the pragmatic and logical expansion of liability in
this context
is an unimpressive tactic and serves only to
stunt the maturation of the common law."
18. The suggested rule is also hopelessly
out of contact with the modem world
of telecommunications. If any judge has doubts about this, he or she should
wander through the
city streets and see the large number of persons linked by
mobile telephones to the world about them. Inevitably such telephones
may
bring, on occasion, shocking news, as immediate to the senses of the recipient
as actual sight and sound of catastrophe would
be. This is the reality of the
world in which the law of nervous shock must now operate.
19. To draw a line and to expel from
recovery all third party claims for
nervous shock may be harsh. But it is at least rational and manageable in
practice. However,
it is neither rational nor manageable to draw the lines of
recovery according to:
(a) The presence of the "victim" or absence
from the event "or its immediate
aftermath" whatever that may mean. Then there will always be conflict as to
what the "immediate
aftermath" was and how far it extended in time and medium;
(b) The direct perception of the shocking news by sight and sound and
the
Indirect perception, eg by telecommunications, television, video or oral
message; or
(c) The precise legal relationship of
the claimant to the victim of the
tort. Human relationships are so infinitely varied that to confine coverage to
a parent, lawful
spouse or child (who may, in fact, be indifferent) would be
to exclude many other persons in close and intimate relationships, where
grief
and shock are profound and, having regard to the relationship, readily
foreseeable.
20. The law should now recognise that,
at least from a medical understanding
of the outdated legal denomination of 'nervous shock', it is as much the
direct emotional involvement
of a plaintiff in an accident or perilous
situation, as her or his physical presence at the scene of directly at its
aftermath that
is pertinent to the level and nature of the injury suffered,
and the consequent psychological damage. See eg Mendelson (above) at
40-44.
21. The appellants urged that the enactment of the Motor Accidents Act 1988,
s 77 gave an indication of what Parliament took to be the common law in 1988.
It was submitted that the provisions of the Act amounted
to a recognition by
Parliament of the advances in medical knowledge which have occurred since the
passage of the Law Reform (Miscellaneous Provisions) Act 1944. It was argued
that this Court should permit Parliament's understanding to assist in its
declaration of the common law. I see force
ill this additional argument.
22. There is no binding Australian authority to control the decision of this
Court on this point.
There is no reason of legal principle or policy to
exclude reasonably foreseeable damage to persons such as the appellant
children
of the deceased person. I would therefore not be prepared to exclude
them from recovery for proved "nervous shock" simply because
they were not in
the sight or hearing of the event which led to their father's death or its
"immediate aftermath", whatever that
phrase may precisely mean.
Did the appellants prove nervous shock or "mere grief"?
23. That conclusion leaves the third question.
This is whether the appellants
have demonstrated that Urquhart DO was wrong in concluding that each of them
had failed to prove that
they had suffered "nervous shock" within the
understanding of that condition as expressed in the cases.
24. I agree with Clarke
JA that little guidance is to be had, even in the
recent cases, to assist in the differentiation of grief (which is natural but
gives
rise to no recovery of damages) from nervous shock (which is taken to be
abnormal and compensable). Samuels JA in Swan v Williams
(Demolition) Pty
Limited (1987) 9 NSWLR 172 (CA) at 184f expressed the rule which is generally
applied in this State:
"The next question is whether the learned judge was wrong
to
reject the ... claim for damages for loss ... caused by the
nervous shock ... suffered as a result of the deceased's
death. Lusher J came to the conclusion that the (plaintiff)
had not established that the injury alleged had been sustained,
finding that (the victim) had suffered no more than grief in
his bereavement. In my view, the judgments in Jaensch v Coffey
[1984] HCA 52; (1984) 155 CLR 549 establish that in order to recover damages
for nervous shock, the claimant must show that the condition
precipitated satisfies
the description of psychiatric illness
or psychiatric or psychological disorder. As Brennan J pointed
out in Jaensch v Coffey
(at 559-560) Lord Denning MR in Hinz
v Berry (1970) 2 QB 40 at 42 used the description "any
recognisable psychiatric illness" which was adopted by
Windeyer J in Mount Isa Mines Limited
v Pusey [1970] HCA 60; (1970) 125 CLR
383 at 394. It may very well be that the lawyers' use of a
term such as "mental or nervous shock" indicates scant
acquaintance
with the subtleties of psychiatric medicine.
However, as I have indicated, the evidentiary requirement seems
to me quite
clear."
25. One might criticise the scarcely delineated distinction made between
grief and suffering following tragic news and
psychological or psychiatric
injury. Even more open to criticism must be the suggestion, made in some
jurisdictions, that illness
resulting from grief as opposed to shock caused by
sight or sound is not compensable. See Montgomery v Murphy (1982) 136 DLR (3d)
525 at 529-30, State (Keegan) v Stardust Victims Compensation Tribunal (1987)
ILRM 202. If courts are to maintain that the requirement for damages is proof
of a recognisable psychiatric illness, the existence of that
condition is what
should matter and not the classification of the initial reaction or catalyst
as one either of extreme grief, shock
or horror. See eg Mullany and Handford
(above) at 24.
26. Nineteenth century notions of psychological illness and an abiding
suspicion
of such claims (not so susceptible to objective scrutiny and
determination) lurk in the cases to forbid recovery where prolonged
grief is
shown. extending beyond the norm deemed acceptable to our society. The
changing composition of the Australian community,
and different cultural
attitudes to the demonstration of profound grief, afford yet another reason
for reconsidering this area of
the law. To adhere to stereotypes expressed in
terms of "abnormal grief" derived from England, may work an injustice upon
Australian
litigants for whom the norms are different and grief reaction more
variable than was hitherto expressed to be the case.
27. The
appellants submitted that the opinion of Brennan J in Jaensch,
limiting recovery to cases of established psychiatric disorders, were
obiter
and that this Court should follow its own earlier opinion in Macpherson v
Commissioner for Government Transport (1959) 76 WN (NSW) 352 (FC), 352f. Some
support for this view can be found in the reasons of Priestley JA in Swan
(above) at 194. For the purposes of this appeal,
I shall assume that the more
stringent requirement contemplated by Brennan J is the law. I may make that
assumption because, in my
view, the evidence in this case which most concerned
the primary judge reached that standard.
The case of the son - abnormal grief
reaction and withdrawal
28. Turning to the case of Mr Steven Coates, Urquhart DCJ primarily dismissed
his claim because he found:
"An absence of that which must exist for nervous shock to be
found ... (viz) that there was no conspicuous psychiatric
illness."
29. In so concluding, Urquhart DCJ referred to the opinion of Mr Coates'
psychiatrist. Dr Hugh Jolly. It is true
that there was other evidence.
However, like his Honour I am content to deal with the claim within the
opinion expressed by Dr Jolly.
30. When, however, Dr Jolly's report is examined, what he said was that:
"PRESENTLY I cannot diagnose CONSPICUOUS psychiatric
illness."
(emphasis added)
31. In evidence, the witness repeated this opinion in cross-examination:
"Q: When you say
you cannot PRESENTLY diagnose any conspicuous
psychiatric illness you say that without doubt?
A: Yes." (emphasis added)
32. With respect to Urquhart DCJ, his Honour appears to have transposed an
opinion expressed at the time of the report (21 March
1990) or of the trial
(10 April 1990) for an evaluation of the condition of Mr Coates in the
critical period after he learned of
his father's death.
33. Turning to Dr Jolly's report, this read:
"Mr Coates presents as a young man lacking a little in personal
confidence and identity, still hurting dreadfully inside on
account of losing his father, and the 'I don't want to get too
close to anyone ...' bit caused me some concern for his
psychological welfare. I didn't have a chance to explore the
relationship with the lady friend, and I don't know whether it
is of real significance. There is also what I call a 'roots'
issue.
Mr Coates has three grandparents alive in England, and I think
he looks forward to returning to England, at least
to reassess
his origins and possibly his way of life. Presently, I think
he has a lot of searching and sorting out to do,
which would
not have happened had his father not been killed.
Presently, the young man is not psychiatrically ill. His grief
and unhappiness, described in my narrative speak for themselves.
The problem we have, as so often, is to identify whether
the
grief reaction I have described falls into the severe normal or
mildly abnormal category. Many might say that the reaction
is
actually 'severe normal', but if Steven Coates is showing the
after effects in terms of personal growth, maturation and
ability (inability) to form relationships - then one would have
to say that he had not properly negotiated adolescence, and,
on the balance of probabilities, that flowed on from the
accident and its consequences. On this basis, the grief
reaction
would have to be defined as abnormal, and if the rest
of the family - and other important people who know Mr Coates
well
- still feel he is awkward and unhappy, then that would
tip the balance of my diagnostic formulation."
34. Mr Steven Coates'
mother described him as being more withdrawn since the
accident, disturbed in sleep for many years and withdrawn in his relationships
with his peer group. There had been some improvement in confidence "recently",
ie proportionate to the trial which was five years
after the accident which
led to his father's death.
35. Acknowledging fully the difficulty of differentiating "mere grief" (if
any grief may be described as "mere") and "psychological injury" or
"psychiatric injury", it does seem to me that it was open to
infer from Dr
Jolly's report that there was, at least to some degree, a psychiatric or
psychological impact upon the personality
of Mr Steven Coates consequential
upon the receipt of the news of his father's traumatic death. The chronic
depressive state described
by Dr Phillip Greenberg would, in my view, amount
to a psychiatric or psychological condition. The fact that depressive symptoms
were transient is a reason for confirming recovery. It is not a reason for
denying compensation for them altogether. See Swari v
Williams (Demolition)
Pty Limited (1989) 9 NSWLR 172 (CA) at 199.
36. With respect, the mistake which appears to have occurred here is to deny
recovery because of Dr Jolly's conclusion
as to the "present" absence of
psychiatric disturbance, ie at the time of his report and oral evidence. This
mistake, easily enough
made, deflected Urquhart DCJ from deciding whether a
condition had been demonstrated at some time after the subject accident which
gave rise to a right of recovery.
37. The damages payable to Mr Steven Coates may not be large. Clearly, this
Court (which has
seen neither him nor his psychiatric witness) cannot assess
the damages. But many cases brought in the District Court lead to quite
modest
verdicts. The issue here is not whether Mr Steven Coates was entitled to a
large verdict. He was not. But that leaves the
question whether, by the proper
application of the principles of the common law, he was to be denied a verdict
altogether. In my
view of the law, he was not.
The case of the daughter- physical symptoms requiring hospitalisation
38. If this is the conclusion
in the case of Mr Steven Coates, it follows
even more plainly in the case of Ms Suzanne Coates. She was eleven years of
age at the
date of the accident involving her father. There was uncontested
evidence that she suffered serious stomach pains off and on for
a period of
eighteen months after the news of her father's death was conveyed to her. On
one occasion, the pains were so serious
that Ms Coates was admitted to
hospital for two weeks. During most of that time she was on a drip. No
physical cause was ever determined
as the cause of her condition.
39. Dr Hugh Jolly, in a report of 7 November 1989 described Ms Coates'
stomach pains thus:
"In my view, the pains were a sort of 'marker' ... an indication
that something psycho-pathological was going on, and needed
to
be fixed. ... Her immediate emotional reaction was one of
denial, following which apparent physical problems became
established. My opinion, bearing all information I have
available in mind, is that the abdominal pain represented a
psycho-pathological
symptom".
40. No cross-examination was directed for the respondent to challenge the
foregoing opinion.
41. Urquhart DCJ said
of Dr Jolly's views:
"During the hearing, Dr Jolly gave oral evidence and it was
upon that evidence as well as Dr Jolly's
written report that
the plaintiffs' counsel submitted nervous shock had been
established. I have read and reread both Dr
Jolly's report
and the transcript of his oral evidence and have given the most
careful consideration to it as I have to all
of the evidence.
I am not satisfied that Suzanne suffered from more than a
grief reaction to her father's death ... Indeed,
as I have
already said, Dr Jolly's evidence does not enable me to find as
to either plaintiff a recognisable psychiatric
illness."
Conclusion: an entitlement to recovery for nervous shock was shown
42. With respect, I consider that in coming to this
conclusion, Urquhart DCJ
must have applied too narrow a view of psychiatric illness. It is hard to see
what more a plaintiff could
do, to recover in a nervous shock case, than to
establish such a disturbance as to occasion physical symptoms which took her
to hospital,
which had no established physical basis and which was attributed
by her psychiatrist to "something psychopathological going on".
With every
respect to Urquhart DCJ, whose judgment is otherwise very helpful, the
dismissal of the claim for nervous shock portrays
too much of the old
reluctance of the common law to acknowledge serious mental dislocation as a
proper subject matter for compensation
in the law of wrongs.
43. There is no real reason for such reluctance, at least in the present
cases. The general understanding
of the fragility of human personality, and
the very acute reality of mental disturbance, has advanced considerably since
the early
cases of nervous shock were decided. There is no warrant, in 1994,
for a Court such as this to exhibit the same resistance and antipathy
to this
head of claim as was voiced in the last century and in earlier decades of
this. At that time knowledge of psychiatric disorder
and its causes was
confined. Judicial attitudes to it were hostile. If it be the case that grief
alone does not afford a basis for
recovery by family members and others deeply
distressed by the consequences of the wrong of a tortfeasor to someone in
close relationship
to them, and if reasons of legal policy restrain the
expansion of a remedy to such persons, such policy scarcely operates to deny
recovery in the case of the present appellants. The uncontested evidence is
that the appellants were the children of the deceased.
Each was very close to
him. Each was at a vulnerable age at the time of his death. Each called
psychiatric evidence to establish
depression and mental dislocation. In each
case this went, to some extent, beyond the ordinary expectations of "normal"
grieving.
In the case of Ms Suzanne Coates especially, the mental condition
exhibited itself for a time in acute physical symptoms requiring
hospitalisation. On the preferable view of the evidence, each of the
appellants established a case for recovery at trial. Whilst
the damages for
each would not have been large, it was wrong to deny damages altogether and to
reject their claims on supposed legal
grounds which when examined, have no
convincing merit.
Orders
44. Because this Court cannot reassess damages, not having seen
either of the
appellants give evidence, nor having seen or heard the psychiatric testimony,
the orders which I favour are, in each
appeal:
1. Appeal allowed;
2. Set aside the judgment of Urquhart DCJ;
3. Order that the proceedings be returned to the District
Court where a new
trial should be had in each matter limited to damages;
4. Order that the costs of the first trial be in the
discretion of the judge
hearing the second trial; and
5. Order that the respondent pay the appellants' costs of the appeal but
have, in respect thereof, a certificate under the Suitors' Fund Act 1951.
JUDGE3
CLARKE JA: The appellants in these two appeals were the children of Malcolm
Stuart Coates (the deceased) who was killed in
a motor vehicle accident which
occurred near Coonabarabran on 18 August 1985. The respondent was the insurer
of the vehicle whose
driver's negligence was the cause of the accident, and
therefore, in accordance with the relevant statute, the respondent was liable
to pay damages properly due as a consequence of the driver's negligence. Both
appellants sued the respondent claiming damages for
the nervous shock which
each suffered as a result of the death of their father.
2. The trials of their actions were heard by Judge
Urquhart QC before whom
the respondent admitted that the death of the appellants' father was caused by
the negligence of the driver
of the other motor vehicle involved in the
accident. Judge Urquhart said that:
"The real issue between the parties in each action
is whether
or not the plaintiffs suffered nervous shock."
3. His Honour concluded, in a reserved judgment, that the appellants
had
failed to establish their claims and entered verdicts and judgment for the
respondent. The appellants have both appealed alleging
that his Honour was
mistaken in his conclusion and have contended that he failed to accord due
weight to the opinions of Dr Hugh
Jolly who furnished a report which was
tendered in evidence and gave oral evidence in the appellants' case.
4. The evidence led
at the trial established conclusively that neither
appellant saw the accident nor was anywhere near the scene of the accident at
any relevant time. Neither appellant saw the body of their father, nor did
they attend the scene of the accident and witness something
which caused them,
or either of them, nervous shock, Each claimed that he or she suffered nervous
shock as a consequence of being
informed of their father's death.
Notwithstanding this evidence there was no submission to the trial judge by
counsel for the respondent
to the effect that neither appellant had
established a factual basis for an award of damages, nor was the trial judge
referred to
s4 of the Law Reform (Miscellaneous Provisions) Act 1944 ("the
Act").
5. In summary, the only issue contested was whether the appellants, or either
of them, had established that he or she had suffered
from compensible nervous
shock. I have already pointed out that the appellants assert that his Honour
was in error in rejecting their
claims but that issue was not the sole one
which arose for consideration by this Court.
6. A short time before the hearing of
the appeal the respondent sought to
file a Notice of Contention pursuant to which it desired to argue that,
whether or not nervous
shock was established, neither appellant had proved the
existence of a factual basis for the award of damages for that nervous shock.
The argument which underlay this contention was that it was necessary for both
plaintiffs to establish either that the deceased sustained
his injuries or
died in their presence or alternatively that they sustained their injuries as
a result of what each saw or heard
in the 'aftermath' of the accident in which
the deceased died.
7. The appellants opposed the right of the respondent to rely on
the
arguments formulated in the Notice of Contention for the reason that the
respondent had not complied with the rules and had only
sought to raise the
matters appearing in the Notice of Contention a short while before the trial.
The court heard argument upon the
respondent's application for leave to rely
on the Notice of Contention and, because the issues raised under the Notice
were legal
ones and there was no additional evidence which the appellants
would have sought to lead if these issues had been raised at the trial,
the
court granted the respondent leave to rely upon the notice.
8. Although in a sense the issues raised by the Notice of Contention
arise
for consideration prior to the matters relied upon by the appellants it is
convenient in the first instance to deal with the
Notice of Appeal.
Notice of Appeal
9. The appellant Steven Coates (Steven) was fourteen and the appellant
Suzanne Coates (Suzanne)
was eleven at the time of their father's death. They
were both born in England and lived there until the family migrated to
Australia
in February 1982. The deceased was a long distance truck driver and
although he was away from home regularly he had a close relationship
with his
two children and in particular with Steven with whom he enjoyed many outdoor
activities. Steven also accompanied his father
on occasions on long distance
trips and had done so on the Friday preceding the accident when the two of
them travelled from Melbourne
to their home.
10. On the Saturday evening Steven went to the home of some friends while his
father drove to Brisbane and while
his mother and sister were in Sydney at a
netball carnival. On the Sunday Steven was at home with a friend when police
came and informed
him of his father's death and took him to the home of
friends. Later that day Suzanne and her mother returned home from Sydney and
shortly afterwards were informed by police officers of the unfortunate death
of Mr Coates.
11. The reactions of both children
are chronicled in the judgment under
appeal in a manner to which no exception has been taken. In the circumstances
it is sufficient
for me to summarise the histories of each of the appellants
before turning to consider his Honour's conclusion in the light of the
medical
evidence. Upon learning of his father's death Steven became very angry and
withdrawn and denied to himself that his father
had died. On the Sunday
evening he required sedatives and he has little memory of the days leading to
the funeral. For that occasion
his wore his father's shoes and jacket although
they were far too big for him. He continued to wear the shoes until they wore
out
and occasionally still wears the jacket. After some hesitation he returned
to school a short while after the funeral. Initially he
went to Cootamundra
High School and then transferred to Temora High School where he obtained his
Higher School Certificate. He then
enrolled in a college of journalism in
Sydney and as a result of some work experience with a magazine publisher
during his course
he was eventually offered and accepted a position as a staff
writer. He has remained in that employment since and he enjoys his work.
12. Steven did not enjoy schooling at Cootamundra High School and had little,
if any, social life with his peer group. However,
the family had not been
living in that district for long and Steven had been finding difficulty
settling into the school and his
new social environment prior to his father's
death. When the family moved and he went to Temora High School he was much
happier and
in Sydney he is able to mix with and relate to people. He has
always been shy but he said that after his father's death he went into
his
shell and either did not want or could not communicate with people.
13. The position with Suzanne was somewhat different.
After the tragedy she
commenced to experience pains in her stomach which came and went and
interfered with her sleep and on one occasion
were so severe as to have her
admitted to hospital where she remained for two weeks. After her discharge the
pains abated in duration
and intensity and ceased after about 12 months. At
the time of trial she was in year 11, was a good student and hoped to become a
primary school teacher. She still occasionally suffered from 'teary sessions'
when something relating to her father was raised.
14. His Honour said that he was not satisfied that Suzanne suffered from more
than a grief reaction to her father's death and that,
whilst he was satisfied
that Steven's reaction was an abnormal grief reaction he was not satisfied
that it constituted a recognisable
psychiatric illness. In his judgment the
trial judge made it clear that he had had regard to all of the evidence but as
the appellant
relied primarily on the opinions expressed by Dr Jolly his
Honour gave those special attention. In the course of discussing that
doctor's
evidence his Honour said:
"... his opinion that there was no conspicuous psychiatric
illness I regard oil the whole
of his evidence as being the
expression of an absence of that which must exist for nervous
shock to be found. The word 'conspicuous'
on the whole of his
evidence does not in my view so qualify his opinion as to
result in a finding of a psychiatric illness
which though
present was not conspicuous."
15. Counsel for the appellants seized on this portion of his Honour's
judgment
pointing out that the opinion expressed by Dr Jolly related to
Steven's condition at the time of examination (this flowed from the
use of the
word 'presently') and that what the doctor had said could not be understood to
deny the existence of a conspicuous psychiatric
illness at an earlier time. In
the course of his submissions counsel referred to the concluding passages in
Dr Jolly's report of
21 March 1990 in which he said:
"Presently, the young man is not psychiatrically ill. His grief
and unhappiness, described
in my narrative, speak for
themselves. The problem we have, as so often, is to identify
whether the grief reaction I have
described falls into the
severe normal, or mildly abnormal, category. Many might say
that the reaction is actually 'severe
normal' but if Steven
Coates is showing the after effects -... - then one would have
to say that he had not properly negotiated
adolescence, and,
on the balance of probabilities, that flowed on from the
accident and its consequences. On this basis the
grief reaction
would have to be defined as abnormal, and if the rest of the
family - ... - still feel he is awkward and unhappy,
then that
would tip the balance of my diagnostic formulation."
16. In his oral evidence Dr Jolly reiterated the identification
of an
abnormal grief reaction and said that presently he could not diagnose
conspicuous psychiatric illness.
17. The claim that
Steven made was that he had suffered nervous shock as a
result of his father's death. Whether he established that claim depends upon
an evaluation of all the evidence in the case. But the question which arises
for determination when such a claim is made may not
be an easy one for a
number of reasons in the light of the inherent vagueness of the phrase
'nervous shock'. This vagueness can be
exemplified in a passage from the
judgment of the full Supreme Court of New South Wales in MacPherson v
Commissioner for Government
Transport (1959) 76 WN (NSW) 352 wherein it was
said:
"His Honour was at pains to draw the distinction between what
he called ordinary, grief the natural
result of his wife's
death, and grief amounting to an injury resulting from shock."
18. What is not explained in the judgment
in that case is how the line should
be drawn between what is described as ordinary grief and grief amounting to an
injury. The authorities
are at one in asserting that it is incumbent upon a
plaintiff to establish the existence of an injury - variously described as
psychological
(Bradford Kendall Foundaries Pry Ltd v Ryder, NSW Court of
Appeal, 4 June 1987, unreported) or psychiatric (Hinz v Berry (1970) 2 QB 40,
at 42); Jaensch v Coffee [1984] HCA 52; (1984) 155 CLR 549, at 560) - but there is little
guidance to be found in the authorities to aid in determining whether the
grief suffered is of such
a nature as to constitute psychological or
psychiatric injury. This is, perhaps, understandable because the question
whether an injury
has been suffered is in every sense a factual one depending
upon an evaluation of the whole of the evidence in a given case and appellate
courts have in the past responded to the factual situations presented.
Further, there are obvious dangers in seeking, in the context
of a particular
set of circumstances, to define the conditions necessary to exist before it
can be said that a particular plaintiff
has suffered from an injury. It would
seem to me that little assistance is to be gained from the use of expressions
such as 'normal
grief or 'abnormal grief' and that a court is concerned to
determine whether on the evidence presented the grief or suffering of
a
particular plaintiff constituted, or formed part of, a psychological or
psychiatric injury (see the discussion by Priestley JA
in Swan v Williams
(Demolitions) Pty Ltd (1987) 9 NSWLR 172, at 193-5).
19. In many cases (Jaensch was one) it will not be difficult to classify the
reactions of a particular plaintiff as
constituting nervous shock, for
example, where the plaintiff has suffered a complete nervous breakdown and has
been hospitalised.
In other cases the determination whether the plaintiff has
established the psychological injury or illness necessary to sustain the
claim
will be close to the borderline and in those instances the tribunal of fact
will be required to evaluate the evidence in order
to ascertain whether it is
satisfied that the reaction suffered by the plaintiff went beyond normal, and
perhaps abnormal, grief
and constituted a psychological injury. In carrying
out its task the tribunal will, no doubt, be guided by the medical opinions
which
it regards as persuasive. The difficulties which can arise in a
borderline case are exemplified in the present appeals by the fact
that Dr
Jolly, who provided the greatest support for the appellants, expressed his
opinions in guarded language.
20. A part, probably
a substantial part, of his diagnostic difficulties
resulted from the fact that he had only seen Steven on one occasion and that
was
at a time when Steven was not suffering from any conspicuous psychiatric
illness. It seems to me that the highest that the doctor's
evidence could be
put is that there were features in Steven's case which could be regarded as a
basis for postulating nervous shock.
However, as I have pointed out the doctor
was guarded having, in his written report, gone no further than saying that
upon the history
he was given it would be reasonable to identify an abnormal
grief reaction.
21. The trial judge gave careful consideration to
Dr Jolly's opinion but, as
he made quite clear in his judgment, considered those opinions in the context
of the evidence as a whole.
Accordingly, it is incumbent upon this Court, in
my opinion, to have regard to the other expert evidence given albeit that Dr
Jolly
was the only doctor who gave oral evidence. In this context it should be
mentioned that there was no report given by any treating
medical practitioner.
All the experts who furnished reports tendered in Steven's case were retained
by the appellants' solicitors.
Dr Anthony Linford in November 1986 spoke of an
extended grieving process but did not, in my view, provide assistance on the
question
whether a psychological injury had been suffered. Dr Phillip
Greenberg, who reported in March 1987, went further considering that
a mild
chronic depressive state supervened on a normal grief reaction. Dr M Beesley,
who examined Steven on behalf of the respondent
in March 1990, expressed an
opinion entirely consistent with that of Dr Jolly that as at that time (March
1990) there was no evidence
to indicate the presence of a recognisable
psychiatric injury or disorder. He thought that Steven had suffered from
transient depressive
symptoms in association with a prolonged grief reaction
which was appropriate in all the circumstances but did not constitute a mental
disorder.
22. Having read all the opinions expressed by the doctors, and in particular
those of Dr Jolly, I am unable to agree
with counsel's submission that the
trial judge misunderstood the thrust of Dr Jolly's evidence or that one can
find error in his
evaluation of the evidence as a whole. I, of course, defer
to the trial judge's position of advantage in his assessment of Dr Jolly's
evidence and having done that I am unable to conclude that any error pervades
his Honour's final conclusion. Even if one disregards
the advantaged position
of the trial judge it is difficult to see in this borderline case in which no
evidence was given by a treating
practitioner that his Honour fell into any
error. I can readily accept that Steven suffered from significant grief which
extended
over a lengthy period but I have not found any compelling evidence in
the opinions of the doctors to support a conclusion different
from that
arrived at by the trial judge.
23. The position with Suzanne is somewhat different in that she was treated,
and on one
occasion hospitalised, for pains in her stomach which on one view
could be associated with the grief she suffered at the loss of
her father.
Notwithstanding, the medical opinions were expressed in even more qualified
language than those which related to Steven.
The highest that Dr Linford, who
saw her on more than one occasion, put it was that she suffered from a grief
reaction 'greater than
would normally be expected'. Dr Jolly said, in his
report, that the abdominal pain represented a psychopathological symptom and
that
Suzanne exhibited an abnormal grief reaction. He went on to add that
there was no evidence of a major depressive illness. In his
oral evidence he
expressed the opinion that she was not suffering from any conspicuous
psychiatric illness when he saw her.
24.
Dr Beesley expressed the opinion that there was no evidence of injury. A
psychologist, Mr McKinnon, who examined Suzanne on behalf
of the respondent,
wrote a report in which there is one paragraph which provides some insight
into his Honour's ultimate conclusion
that Suzanne had demonstrated nothing
more than a grief reaction. The relevant paragraph reads:
"Spending time with memorabilia
relating to a deceased loved
one is regarded as a normal response to grief and appropriate
for the effective completion of
the grieving process. It is,
however, about 4 years since her father's death and this is
longer than the normal grieving
process. On the other hand,
her scholastic effort and her social life do not seem to be
affected by grief. She is said to
have many friends, and she
engages in sports and reading just like any other teenager. It
does not seem that Suzanne's concern
over her dead father
could be regarded as a maladjustment, since, apart from an
emotional sensitivity when discussing her
father, she seems
otherwise unaffected."
25. Having regard to the whole of that evidence and with particular regard to
the
evidence that she was a pleasant and friendly person who related well to
her peers I can find no basis upon which to conclude that
the trial judge
erred. Although the grief in both cases appeared intense at times and of
relatively long duration I do not think
it can be said that the trial judge
was wrong to conclude that the appellants had not established the existence of
the injury necessary
to sustain their claims.
Notice of Contention
26. In view of the conclusions I have expressed it is strictly unnecessary to
deal
with this notice. However, in deference to the arguments which have been
presented it is appropriate that I make some observations
about the points
debated. Initially counsel for the respondent submitted that the facts
provided did not, even assuming that the
appellants suffered nervous shock,
establish a claim for damages at common law. He did not refer to s4 of the
Act.
27. Once this section had been mentioned by the court he widened the ambit of
his submissions and sought to rely upon it. The
relevant part of that section
reads:
"4(1) The liability of any person in respect of injury caused
after the commencement
of this Act by an act, neglect or default
by which any, other person is killed, injured or put in peril,
shall extend to include liability
for injury arising wholly or
in part from mental or nervous shock sustained by -
(a) a parent or the husband or wife of the
person so killed,
injured or put in peril; or
(b) any other member of the family of the person so killed,
injured or
put in peril WHERE SUCH PERSON WAS KILLED, INJURED
OR PUT IN PERIL WITHIN THE SIGHT OR HEARING OF SUCH MEMBER OF
THE FAMILY."
28. This section was enacted to overcome the effect of Chester v Waverley
Corporation [1939] HCA 25; (1939) 62 CLR 1 and at a time when the common law regarding the
awarding of damages for nervous shock was far more restricted than it
presently is.
In these circumstances an interesting question arises whether
the section which was designed, and is so expressed, to extend the
liability
of a tort feasor operates to limit that liability in New South Wales with the
consequence that a child who may recover
in respect of the death of a parent
under common law principles cannot do so unless the parent was killed, injured
or put in peril
within the sight or hearing of the child.
29. There is no authority of an appellate court specifically dealing with
this question
although there are a number of cases heard during the 1960s
which could be thought to convey the suggestion that a plaintiff would
not be
denied the fight of pursuing a common law remedy by the existence of s4. (See
Thiele v Batton and Anor (1963) 80 WN (NSW) 91, at 92, Mammoliti v Scala 1965
SR 1, esp at 6, and [1965] HCA 63; (1965) 114 CLR 153.) These cases do not, however, provide
authority for the proposition that following the enactment of s4 a plaintiff
could elect whether
to sue under its terms or in accordance with the common
law. On the other hand the section is, as I have pointed out, expressed as
one
which extends the common law jurisdiction and if that be correct I see no
reason to construe it in a manner which would have
the contrary effect. There
is, however, dicta of Murphy J in Jaensch at 558, which may be regarded as
supporting the proposition
that the statute limited liability. But in my
opinion in its context his Honour's statement should not be understood as
supporting
the proposition that the appellants could not proceed to recover
damages for nervous shock according to the principles of the common
law. (See
also Deane J at 611 who mentioned but did not decide the question.) On the
other hand there are two first instance decisions
to the effect that the
section does not operate to deny plaintiffs the right to rely both on the
common law and the section. (Wilks
v Haines ((1991) Aust. Torts Reports
81-078, 68,649) and Hanley and Ors v Keary and Kearey (Supreme Court of the
ACT, January 1992, unreported).)
30. It is unnecessary to express a concluded opinion on this interesting
question and I content myself
with the observation that, as at present
advised, I would not construe the section as denying plaintiffs the right to
rely on the
common law.
31. Turning then to the alternative right under the common law it is
necessary to recall the fact that neither appellant
saw the accident. Neither
saw the body of the deceased. Neither visited the scene at the time, or
shortly after, the accident Both
reacted to the information conveyed by police
officers. While decisions in England (McLoughlin v O'Brian, [1982] UKHL 3; (1983) 1 AC 410)
and Australia (Jaensch) support the existence of what might be described as an
"aftermath" doctrine, so that it is sufficient if
the nervous shock results
from events within the immediate aftermath of the relevant event (Lord
Wilberforce in McLoughlin p 423
and Deane J in Jaensch at 607-8) the leading
authorities in England do not support the proposition that a plaintiff who is
informed
of the death of a relative and as a result suffers shock can sue to
recover damages for that nervous shock. It is true that Hevican
v Ruane (1991)
3 AER 65 and Ravenscroft v Rederiaktiebolaget Transatlantic (1991) 3 AER 73,
permitted the recovery of damages in instances where the effective cause of
the psychiatric illness was the news of the death of
a relative but in Alcock
v Chief Constable of South Yorkshire ((1992) 1 AC 310) the House of Lords
expressed serious doubt as to
the correctness of those decisions.
32. On the other hand the courts in Australia have not taken the firm stand
of denying recovery
where the plaintiff did not see the accident or events
within its aftermath but suffered shock as a result of being informed of the
death of, for instance, her mother. Indeed there are decisions of Australian
courts which permitted recovery where there was no sighting
of the accident,
or its aftermath (Petrie v Dowling, (1992) 1 QdR 284, Hanley and Ors v Keary
and Keary (Supreme Court of the ACT, January 1992, unreported); Melor v Morans
(1985) 2 MVR 461; Andrews v Williams (1967) VR 831). In Jaensch the question
was adverted to by Gibbs CJ (at 355) and Deane J (at 608-9) and left
open.
33. In Alcock, Lord Oliver could not accept that the basis of the English law
was some "arbitrary but unenunciated rule
of 'policy'". Nor did he think it
rested on foreseeability. In his opinion it flowed from the fact that in
contemplation of the law
persons who simply heard of the death were not in a
relationship of sufficient proximity to give rise to a duty of care (p410).
34. In Australia, as I have pointed out, there is support for the view that a
different answer should be given on the proximity
question in circumstances
where the deceased was a close relative of the plaintiff and, possibly, in
other circumstances.
35.
In the present case it is unnecessary to resolve the issue and I do not
think it appropriate to proffer a tentative view by way of
obiter dictum. The
question should be reserved for another day.
36. The appeals should be dismissed with costs.
37. Since writing
this judgment I have been furnished, belatedly, with
additional submissions concerning the notice of contention. In the
circumstances,
there is no occasion to deal with them.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/nsw/NSWSC/1995/160.html