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Chester v Waverley Corporation

Chester v Waverley Corporation

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Case Copied 6 June 1939 84 min read

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62 CLR 1

[ ] CHESTER

THE COUNCIL OF THE MUNICIPALITY OF

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Negligence-Public road-Excaration by local governing authority-Imperfectly

guarded-Child drowned in execuation-Recovery of child's body witnessed by mother-Right to recover damages from local governing authority-Duty-Extent

A deep trench, which had been excavated by the defendant council in a public street, became filled with water. The trench was left unattended and protected only by a railing under which young children could easily pass. The plaintiff's son, aged seven years, went out to play in the street, and, on his failing to return after an hour or more, the plaintiff went to search for him. The search, in which the plaintiff was later joined by other persons, lasted for some hours. The plaintiff was present while, for about half an hour, search was made in the water-filled trench, and when the body of her son was recovered therefrom. As a result of these experiences, the plaintiff sustained a severe

62 CLR 2

shock, causing her health to be impaired. The plaintiff sued the defendant council to recover damages in respect of the injury to her health so caused.

Held, by Latham C.J., Rich and Starke JJ. (Evatt J. dissenting), that the facts did not disclose a breach of any duty owed by the defendant council to the plaintiff and that the plaintiff's action must therefore fail.

Decision of the Supreme Court of New South Wales (Full Court): Chester V. Council of the Municipality of Waverley, (1938) 38 S.R. (N.S.W.) 603; 55 W.N. (N.S.W.) 221, affirmed.

APPEAL from the Supreme Court of New South Wales.

In an action brought by her in the Supreme Court of New South Wales the plaintiff, Janet Chester, alleged that the defendant, the Council of the Municipality of Waverley, had by its servants and agents SO carelessly, negligently and unskilfully conducted itself in and about an excavation upon which it was engaged at and near to a public highway, and in and about the failure safely and properly to protect, control and barricade an open drain thereat, and in and about the failure to provide adequate and proper warnings and protection, that the drain became and was unsafe to persons lawfully passing at by and near thereto in consequence whereof and whilst he was lawfully at by and near to the excavation work and open drain Max Chester, the infant son of the plaintiff, fell into the drain and received injuries whereof he subsequently died, and the plaintiff apprehending that her son had fallen into the drain and had thereby become injured and imperilled and being present at and witnessing the removal of her son from the drain injured and imperilled as aforesaid " sustained severe nervous and mental shock and ill health and suffered great pain of body and mind and was for a long time sick and incurred medical and nursing expenses and was unable to attend to her business and was otherwise greatly damnified."

In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1939] HCA 25
Decision Date: 6 June 1939

CaseChat Overview and Summary

The plaintiff, Janet Chester, brought an action against the defendant, the Council of the Municipality of Waverley, seeking damages for nervous shock and resulting ill health. The plaintiff alleged that the defendant's negligence in excavating and inadequately guarding a trench in a public street led to her seven-year-old son falling in and drowning. The plaintiff claimed she suffered severe shock and impairment of health as a result of witnessing the recovery of her son's body from the trench. The case was heard in the Supreme Court of New South Wales and subsequently appealed to the High Court of Australia.

The central legal issue before the High Court was whether the defendant council owed a duty of care to the plaintiff, and if so, whether that duty was breached, leading to the plaintiff's injury. Specifically, the court had to determine if the defendant should have reasonably foreseen that its negligent excavation and inadequate guarding of the trench could cause a mother to suffer nervous shock and resulting physical harm upon witnessing the recovery of her drowned child's body. This involved considering the scope of the duty of care owed by a local authority in relation to public works and the remoteness of the plaintiff's alleged injury from the defendant's actions.

A majority of the High Court, comprising Latham C.J., Rich and Starke JJ., held that the facts did not disclose a breach of any duty owed by the defendant council to the plaintiff. Their reasoning focused on the principle that a defendant is only liable for consequences that a reasonable person would have foreseen. The majority concluded that while the council might have been negligent in relation to the child, the nervous shock suffered by the mother upon seeing the recovered body of her child was too remote a consequence to be reasonably anticipated by the council. They distinguished the present case from those where a duty of care was owed to persons directly affected by the negligent act or omission, finding that the plaintiff's injury was not within the reasonable contemplation of the defendant when carrying out its work on the road.

Evatt J. dissented, finding that there was ample evidence from which a jury could infer negligence on the part of the defendant. He argued that the council's failure to adequately guard the trench, which was known to be attractive to children, created a foreseeable risk of harm. Evatt J. considered that the shock suffered by the mother was a direct consequence of the defendant's negligence and fell within the scope of a duty owed to those who might be closely and directly affected by the defendant's actions. Despite the differing opinions, the appeal was dismissed, affirming the decision of the Supreme Court of New South Wales.

Orders