Chiaverini v Hockey

[1993] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl38 of 1992

B e t w e e n -

FLORA CHIAVERINI

Applicant

and

GORDON HOCKEY

First Respondent

and

WILLIAM HICKS

Second Respondent

Application for special leave

to appeal

DAWSON J

Chiaverini 1 21/5/93

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 12.32 PM

Copyright in the High Court of Australia

MR J.A. McCARTHY, OC:  May it please Your Honours, I appear

with my learned friend, MR R.B. WILSON, for the

applicant. (instructed by Gunesekera, Barone &

Cavanagh)

MR B.F. MURRAY, OC: If the Court pleases, I appear with my

learned friend, MR A.J.J.R. RENSHAW, for the
respondents. (instructed by Peter Jessep,

Solicitor for the Government Insurance Office).

MR McCARTHY:  Your Honours, I hand up to the Court four

copies of the outline of grounds for special leave
in this matter, and I provide my friend with two
copies. There are also other papers that I will be

taking the Court to and I will provide those to the

Court shortly.

DAWSON J: Yes, Mr McCarthy.

MR McCARTHY:	Your Honours, as I state at the beginning of the written submissions, the point in this
application is that the Law Reform {Miscellaneous
Provisions) Act has been misinterpreted by the have found against the applicant for that reason. It is not a fact dispute. It is a dispute as to a matter of law, to the interpretation of a very
important part of our negligence law - compensation
law in New South Wales, and it is simply over the
characterization of the type of claim that can be
successful under section 4 that the matter is
brought to the High Court.

Your Honours, as has been stated in the

written submission, it is not only just that there

is an argument about the interpretation of this

section. What we submit is this: the Court of

Appeal has not followed the interpretation of the

section that has been stated by this Court in Scala

v Mammolitti and, having done so, it would, in our

submission, be the case that it was a strong ground

for special leave to this Court that a judgment -

one of the few judgments, I might say, that has

given some detailed consideration to the Law Reform

(Miscellaneous Provisions) Act was, in actual fact,

misunderstood, in one sense, or misinterpreted

by - - -

DAWSON J:  You are going to take us to that, are you?

MR McCARTHY:  I am indeed, yes, Your Honour. Now,

Your Honours, for the purpose of the legislation, and dealing with our matters, in the application

book at pages 26 and 27, you will find set out the

details of the Law Reform (Miscellaneous

Chiaverini 2 21/5/93

Provisions) Act 1944. It begins at about line 25

and continues through into page 27. This was a

provision which, in terms of the issues before us,
are picked up at the beginning of line 10,

"Extension of liability in certain cases".

The provisions are set out there and what is

referred to in terms of the liability is in

clause (1).	The other operative clause for these
purposes is clause (l)(a).	The position here is

that we are involved with circumstances concerning

Mr and Mrs Chiaverini, husband and wife, and they

are picked up in terms of application of the

section in clauses dealing with husband and wife at

line 30 of that page.

I would draw the Court's attention to the

following concerning the way that this clause is

drafted because I think it is important over the

sort of issues of where or how nervous shock, to

use the language of this section, or psychiatric

illness has, in actual fact, come about.

What the purpose of the section was, I am

not putting complete reliance on it, was to do with

the extension of liability.	Now, what are you
liable for?	You are liable, in certain

circumstances, to pay damages to someone. So, what

is it that the Act does? It says that it is in

respect of liability, or:

The liability of any person in respect of

injury caused -

so, it is injury caused by something for which

damages may be paid. It says that it is injury which is, first of all, in a context of an act,

neglect or default whereby someone was killed and,

as I have said in the written submissions, the

extension is adjectival to the word "injury". That

is, it describes the injury for which compensation

will be paid or for which damages are to be paid.

It does so in the language of the 1940s.

Now, all we say or what our basic submission

here is and as it was in the Court of Appeal was

this, that what that section aimed to do was to

remove the common law tests of foreseeability and
remoteness from the special relationship of husband
and wife where a - what was called then "nervous

shock" and is now called "psychiatric injury"

occurred. The full purpose of this section was to

overcome Chester v the Waverley Council in this

Court and Bourhill v Young in the House of Lords,

and was so stated by the then Premier,

Sir William McKell, in the Legislative Assembly,

Chiaverini 21/5/93

and I will something further to say about that as

to what was the object of the bill.

But, in short terms, when this bill was

brought in it removed any necessity for the type of

argument that had been developed down to that stage

about whether the injury that had occurred had been

foreseeable or not in terms of where the person

was, the time of the accident, the place which

became an argument about the scene of the accident

and then later, in common law, the aftermath or the

immediate aftermath. All of that was removed by

this section. All one had to do under this

section, Your Honours, was establish that there had

been a default and that someone within the

categories of the section had suffered what we now

call psychiatric illness; what was then

called - - -

McHUGH J: That cannot be right, can it, because, in terms,

the section distinguishes between the injury and

its cause? The liability which is extended is:

liability for injury arising ..... from mental

or nervous shock - - -

MR McCARTHY: Exactly, Your Honour.

McHUGH J: Well, are not those words, "mental or nervous

shock" in that context the clearest indication that

what one is dealing with is injury resulting from

some sudden perception rather than a psychiatric

illness which has developed gradually?

MR McCARTHY:  There are two answers to that. The first is

that that is not what the section meant and that is

not what the proposer of the section meant when it

was brought in in 1944. What is being

distinguished in using the words "arising wholly or
in part from mental or nervous shock" is to

distinguish that from mere grief or anxiety, and

what is the evidence for that?

DAWSON J: Certainly the words import an immediacy, do they

not?

MR McCARTHY:  Your Honour, in terms of what is being aimed

at, the distinction there is between the type of

injury for which the common law then would not

compensate and still does not compensate in these

circumstances, and that is what is described as

"ordinary grief or anxiety or distress".

DAWSON J:	That may be one distinction but it may not be the only one.
Chiaverini	21/5/93
MR McCARTHY:	It may not be but, Your Honours, this is what

Sir William McKell said in the Legislative

Assembly:

It will suffice for present purposes to

say that the ipse dixit of a plaintiff that he

or she was shocked in the popular sense had

not made a cause of action. To be the subject

of damages, shock had, under that bill -

that was the previous one that was entered?? -

as under this bill -

and this is the one that we are doing here -

to amount to a nervous or mental injury such

as can be detected and measured by the medical

science of neurology.

Your Honours, it was aimed at making that

distinction or, in our submission - - -

DAWSON J: But it makes that distinction - as has been

pointed out by Justice McHugh, it talks about

"injury caused by mental or nervous shock" or

"arising" rather, and that means that there must be

some point at which the mental or nervous shock

takes place from which an injury arises.

MR McCARTHY:  Yes, Your Honour, but it is covered earlier in

the section. It is "an injury caused by an act of

another person". Its causation, its aetiology in
terms of legal terms begins with the act or default

of another person.

McHUGH J: Yes, it says:

The liability of any person in respect of

injury -

and the opening words are based on the hypothesis

that at common law there is a liability in respect

of an injury, and it says:

shall extend to include liability for injury

arising wholly or in part from mental or

nervous shock sustained by -

people who fall in one of two categories: it does

away with foreseeability in respect of a parent or

husband or wife. All they have to show is some

causal connection between the injury to, what I

will call, the plaintiff or the person originally

injured, and their own nervous shock; and in the

case of paragraph (b), they have got to show that

what occurred took place "within the sight or

Chiaverini 21/5/93

hearing of such member of the family". But that is

all the section does.

MR McCARTHY:  Your Honour, that is enough, in our

submission. You do not have to show - - -

McHUGH J:  You have got to show that as a result of

something or other, seeing the child or seeing the

spouse you suffered a shock and, as a result, you

got injury which, if you did, you are home.

GAUDRON J:	The difficulty in your case is that the findings against you do not make that causal connection
between the injury and shock.

MR McCARTHY: There is no doubt about that. There is no

doubt about that at all.

GAUDRON J:  And not even an "arising out of in part

connection". Your connection may be of the kind

"arising in part" but it does not even do that.

The evidence and findings do not go that far.

MR McCARTHY: Certainly, in relation, Your Honour, to

something that happened or about November 11, 1980,

we do not challenge the finding that was made by

the Court of Appeal but, Your Honours, what we say

is that if it is the case that remoteness and

foreseeability has been removed from this section

which we submit is the effect of someone within a

special relationship in (l)(a), the implications of

that have got to be accepted, which is, that if you

had evidence which is found below, it is not in

dispute, that the psychiatric illness of the

plaintiff was caused by the defendants' action,

then that - - -

DAWSON J:  But it has to be caused by the shock or arise out

of.

McHUGH J: "Arise out of" is a causal term: "arising out of

and in the course of employment"; "arise" is always

held in that context to constitute causal

connection; "in the course of", temporal

connection. But if your argument was right, a

child might sustain injury; six months later a

parent learns about it; worries about it;

ultimately becomes psychiatric ill, and they have

got a cause of action under section 4.

McCARTHY: Well, they have, indeed.

McHUGH J: Well, I would have thought that was about the

last thing that the legislature had in mind unless

there was a shock. If, on hearing the news, even

six months later, the parents sustain a shock which

causes psychiatric illness, you are right, but

Chiaverini 6 21/5/93

merely because they grieve and worry about the

condition of the child, it produces a psychiatric

illness does not bring it within the section.

McCARTHY:  Your Honours, that, in part, of course, is

exactly what the law is in relation to motor

accidents in New South Wales now in this State.

That is the law I have just handed up to

Your Honours as to - - -

McHUGH J: What is the law, Mr McCarthy?

MR McCARTHY:  Section 77 of the Motor Accident Act says

this:

a parent, spouse, brother, sister or child of

the injured person or deceased person who, as

a consequence of the injury to the injured

person or the death of the deceased person,

has suffered a demonstrable psychological or

psychiatric injury and not merely a normal

emotional or cultural grief reaction.

is entitled to damages.

McHUGH J:  You have still got to prove the causal

connection, the consequence of, but this is a very

different piece of legislation.

MR McCARTHY:  Your Honours, when one talks about the matter

being unreasonable, which is what I am addressing

in relation to an interpretation, as raised by

Mr Justice McHugh, it is the state of the law in

New South Wales. The causal connection in this·

case is not in dispute.	That is found.	Where this
flows from -

McHUGH J: But it is, it is in dispute.

MR McCARTHY:  I am sorry, Your Honour: there is no dispute

or we do not dispute the finding of the Court of

Appeal - and it is stated, Your Honours, at page 25

of the application book where Justice Sheller says:

His Honour found that the mental illness was

caused by events outside the range of the

necessary proximity, that is to say, not from
the impact of matters which themselves form

part of the accident and its aftermath but

rather from contact with more remote

consequences such as the subsequent effect of

the accident upon the appellant's husband. In

my opinion the evidence was consistent with

this finding and I do not think ground is

shown for disturbing it.

He goes down and says the submission was made:

Chiaverini 7 21/5/93

that no more was required to be shown than

that as the result of the injury to her

husband the plaintiff had suffered a

psychological or psychiatric injury. There is
no doubt in the present case that his Honour

made a finding that the plaintiff suffered

from such an illness.

So, causal connection is both in the ordinary

sense and in the legal sense of a breach of legal

duty established in this case. All one has to

show, in our submission, if there is no

foreseeability test or limited foreseeability test

because of the nature of the special relationship
and there is nothing in the Act, I think it would

be conceded, that says it has to arise from a

special time or place or a connection of that sort

as distinct from something arising out of the

breach of duty of the defendant, that takes us then

to what does it mean to say that you are in a

situation where, in effect, concerning those in a

special relationship, there is the widest possible

foreseeability.

That matter was adverted to, Your Honours, by

Justice Deane in commenting in his judgment in

Jaensch v Coffey, and he had this to say:

If liability in negligence for nervous

shock caused by the death, injury or peril of

another in a road accident fell to be

determined by reference to an unqualified test

of reasonable foreseeability -

and, in our submission, that is what is being found

here in relation to the statutory duty. He goes on

to say:

on an unqualified test of reasonable

foreseeability, would there be any rational

basis for excluding liability to a close

relative or friend who has no contact with the

accident or its immediate aftermath but who

suffers reasonably foreseeable nervous shock

by reason of constant social contact, as loyal

nurse or companion, with the injured victim.

It is conceivable that, if left to develop by

analogy and logical necessity on a case by

case basis, the common law in Australia may

eventually change to the extent that it comes

to recognize liability in some or all of such

cases.

Might I just say this - and I give a number of

examples within the judgment. Where the words

there, "nervous shock" are used, what

Mr Justice Deane is referring to is what he has

Chiaverini 21/5/93

used in other sections to describe as "psychiatric

illness" and that the words there are "psychiatric

illness" that he is describing.

Now, if it is the case that in one of the most

quoted world-wide judgments of this Court, where

there is an unlimited test of foreseeability, that
is the consequence, in our respectful submission,

it is well and truly open, when we turn to a

statutory test such as is before the Court here, to

say that that is a consequence that would flow.

McHUGH J: But if your argument was right, then the words

"arising wholly or in part from mental or nervous

shock" have no effect whatever.

MR McCARTHY:  They do, indeed, Your Honour. They

distinguish this from mere grief. That is the

point. That is the point of the quote from McKell.

McHUGH J: Injury is not grief, is it:

shall extend to include liability for injury -

leave out the words -

sustained by.

MR McCARTHY:  Your Honour, you were involved with a judgment

that gave damages for distress caused by a house

that fell down out at Campbelltown.

McHUGH J: That was a completely different case.

MR McCARTHY:  I understand but, Your Honour - - -

McHUGH J: That was a consequential - - -

MR McCARTHY: That may be so, Your Honour, but Your Honour is

asking if this was the case.

McHUGH J: That was consequential damage, there being a

cause of action, in McKay's case, it was held that

distress was then part of the damage.

MR McCARTHY:  What Sir William McKell is making clear is the

distress will not be part of the damage in this

particular action. It will have to be injury that

arose from what was then called nervous and mental

shock. It is the description - - -

DAWSON J: It is still, for our purposes, in this case,

called "nervous or mental shock". I mean,

Justice Deane's observations were directed to a

different matter. He was looking ahead in the

subsequent development of the law. But the words

Chiaverini 9 21/5/93

had a particular meaning in this statute at the

time the statute was enacted.

MR McCARTHY:  As to what that meaning was to be,

Your Honour, I would have thought if there was

ambiguity and, in my respectful submission, there

was, that not only was the idea that nervous shock

could have the two meanings, that is, an actual

event and the description of a condition, that is

not only a legislative term, that was what was said

by the then Mr Justice Dixon in this Court in

Bunyan & Jordan, which was only four years before

the events that are tied up with - that is

Chester's case, that led to this legislation but it

was only six years before this legislation - - -

DAWSON J:  I think we have grasped what you are saying. You

were going to take us to Scala v Mammolitti.

MR McCARTHY:  Yes, I am. Your Honours, if I could turn to

the judgment at page - one will see the judgment

sufficiently set out at page 30 that we wish to

rely on but I hand up to the Court four copies of

Scala v Mammolitti. Your Honours, the section of

the judgment with which the Chief Justice agreed

was that of Mr Justice Taylor and the page I would

take you to is page 159, and I take you to the

section that commences at about point 5 with the

words "What then does s 4(1) accomplish".

Clearly enough, it merely operates to extend the field in which persons standing in a

special relationship to a person killed,

injured or put in peril may recover for

nervous or mental shock -

that is the first one we would ask you to note

there.	He says, "What is he adverting to?"	"He is
adverting to what you may recover for." You never could recover for any sort of shock unless it was shock of a certain sort. So, it was the lawyer's	use of the word "nervous or mental shock" that we	submit is being described there.

in the case of a husband or wife, makes it

unnecessary to show that an injury to the

plaintiff of this kind -

what is the kind? It is the kind described by

lawyers as "nervous or mental shock", now described

as "psychiatric illness" -

could reasonably have been foreseen. But in

no way doles it make the right to recover

damages for nervous or mental shock - - -

Chiaverini 10 21/5/93

GAUDRON J: But is that not just the difficulty in your

problem, your interpolation there? You want us to

read "nervous shock" as though it said "psychiatric

illness"?

MR McCARTHY:  I do. My submission is it was in the sense of

the description of a condition, Your Honour, that

it was used by Sir William McKell in that

legislation - as being the purpose of the way that

the words were used.

McHUGH J: Well then, Mr Justice Taylor must have been

involved in some tautology at the foot of the page,

two lines from the bottom, when he talks:

The section may, perhaps, be said to proceed

on the basis that injury by nervous or mental

shock -

et cetera, et cetera.

MR McCARTHY:	I am sorry, Your Honour, I am - - -?
McHUGH J:	Two lines from the bottom, on page 159,

Mr Justice Taylor refers to "injury by nervous or

mental shock".	He regards them as two different
concepts.

MR McCARTHY:  That is so in the way that it is used there.

I am not saying that it does not have a double

meaning but, Your Honour, one just has to come back

to it again:	it may be the case that you got
nervous or mental shock.	You can have any sort of

a shock but if that shock does not amount to a

psychiatric illness by whatever way it was

described, either then or now, you do not recover

damages.

GAUDRON J:  That is the other side of the coin. The well

accepted point is that you can have psychiatric or

psychological illness which does not arise from

shock.

MR McCARTHY: That is so. But if it is the case,

Your Honour - in the sense that you are talking

about shock as a specific incident?

GAUDRON J: Yes.

MR McCARTHY: That is certainly so.

GAUDRON J: That is a difficulty with the construction you

place on the section?

MR McCARTHY:  Your Honour, if the section is concerned with

what liability will be posited, it has got to be

talking in the much stronger sense of the actual

Chiaverini 11 21/5/93

condition for which money will be paid. Just

because someone has suffered an experience to their

senses, if it amounts to ordinary grief or anxiety

or so on, it can be described and, indeed, McKell

said 50 years ago it could be described as shock.

McHUGH J: But the section was brought in to overcome the

shock-type of cases: Bourhill v Young; Chester v

Waverley Council, they were shock cases. The

mother sees a drowned child pulled out of the pool;

the fishwife sees some injury almost occur to her

husband or vice versa, whatever the - - -

DAWSON J: Mr McCarthy, you might like to ponder that over

lunch-time.

MR McCARTHY:	As Your Honour pleases.
DAWSON J:	The Court will adjourn now and resume sitting at

2.00 o'clock.

AT 1.04 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

DAWSON J: Yes, Mr McCarthy.

MR McCARTHY:  May it please Your Honour. Mr Justice McHugh

raised with me the question as to what submission

would I put about the words at the bottom of the

page on 159 in the judgment of Sir Alan Taylor.	I
do not think that those words do more than what
Justice Taylor has said in the middle of the page,

Your Honour, which is that what the section does is

to operate in a field where there is a special

relationship, that is before (l)(a), and that it

provides circumstances in which there may be

recovery for mental or nervous shock. Now, that is

the type of injury for which a person may recover.

In relation to his expression further down there, I think that that is entirely consistent

with it. Again, what is being said, in our

submission, is that you look at the type of mental

or nervous shock that is recoverable and that

mental or nervous shock, then and now, means a

psychiatric illness which is caused by a breach of

duty of the defendant. Now, in this case, it is

not in dispute that there has been such a breach of duty which has led to a psychiatric illness. There

the only issue, it would seem, to arise over that

Chiaverini 12 21/5/93

chain of causation as to the mode of the coming

about of that, would become relevant, Your Honours,

only if foreseeability or remoteness were issues in
respect of the type of injury that has been

received and the breach of duty itself. If that

causation is in line and it is found both as a

matter of law and a matter of fact - and that is

the case here - then the connection for the

purposes of section 4 is complete.

Your Honours, that there is removed

foreseeability and remoteness is clear from what

both Sir Alan Taylor and Sir Victor Windeyer have

said in Scala. If I could take you to

Sir Victor Windeyer's judgment which is at

page 162, again it is in terms of, in our

submission, the dealing with the notion of what is

recoverable under this section, it is a psychiatric

illness that he is describing. I take you to the

line that begins, "The language of s.4(1) is not

without difficulty". If I might just stop there,

Your Honours, I think that is also a part of my

submission and a part of the reason why there
should be a reconsideration of this matter in the

High Court.

There seems to be an ellipsis.

In terms of language, that might be so.

So far as it is necessary to construe it for the decision of this case I can summarize my

view of its effect as follows. It assures to

a member (as described) of the family of a

person killed, injured or put in peril a right

of action, against the person whose conduct

caused such death, injury or peril, for injury

arising from mental or nervous shock -

so that it is a right of action for injury arising

from mental or nervous shock sustained by a member

as a result of such injury, death or peril. Again,

refers to that for which you can recover.	there is the emphasis on the right of action which	It makes it unnecessary for such member of the
family to establish, as the foundation of his
or her action, that there was a foreseeable
risk of harm to him or her; and it makes it
impossible to say that such harm -

and that harm would be the psychiatric illness -

if it results from the death, injury or peril,

was too remote a consequence to sound in

damages. It is, I consider, implicit that the

Chiaverini 13 21/5/93

act, neglect or default that caused death,

injury or peril was in some sense wrongful.

That means the breach of duty.

But that does not mean that, if a member of

the family, who has suffered mental or nervous

shock -

that is who has suffered it -

brings an action, the defendant in that action

can only be found liable to the plaintiff if

he has been found to be liable or is liable in

damages to the representative of the person

that he killed, or to the person whom he

injured or put in peril.

There was one other remark of his - it was the

words "too remote a consequence to sound in

damages" for the type of harm. Your Honours,

again, what is the harm for which damages can be

achieved? Again, it is a matter of a psychiatric

illness.

Now, Your Honours, in our submission, if you have the removal of an accident, immediate

aftermath, aftermath test, from causation - if you moved away from all of that, the only relationship between the type of injury that a person can

recover for and causation is expressed as being

something that must flow through from that breach

of duty. If that is so and you are not needing to

test anything in relation to the chain of

causation, the chain having been established, if it

would, in our submission, be irrelevant as to the

manner in which the psychiatric illness has come

about, if it is the case that foreseeability and

remoteness are not in issue - and that would seem to be, in our submission, the meaning of what the Court has put upon those words in the judgments in

Scala v Mammolitti - if that is the meaning of

this, that is that the section frees up any

connection other than causation itself, it is in
our submission the only way in which those words

can properly be understood. Otherwise you are

saying, or it would come about to be being said,
that once more there is being imported into a

section that seems not to require it some test

about foreseeability, that you are only liable if

it is foreseeable that the chain of causation

whereby a psychiatric illness has been suffered

comes via something to do with the way that the

person reacted at the time that he or she

presumably heard of what happened.

Chiaverini 14 21/5/93

They do not have to be present at the scene;

they do not have to go to the aftermath; there is

no need for any of that. It can only be that a

person who can recover on this, who has some

immediate form of reaction, because we are not

describing here, in this case, because the evidence

is in, that this applicant has not suffered as a

result of what the respondent has done. It is

quite clear that she has.

Now, if that has come about through the

consequences of the defendants' action, that is

that he has injured the plaintiff's husband, it

must follow on from that that if the plaintiff's

psychiatric illness is as a result of the contact

over a period of time with the injured husband,
then that can flow on from there as a consequence -

that is caused by the defendants' breach of duty. This is a variation, Your Honours, on the Swan

case in the Court of Appeal some years ago. In that

case, Mr Swan had not been at the scene - it was

the terrible case where the sandstone block dropped

on a car in York Street. What Mr Swan had in terms

of a connection was he was grieved and upset at the

time, he went on to have a condition which, looking

back on it, was regarded as being abnormal. But

my point about it, as it was in the Court of

Appeal, as to how that is useful in this case is

that it was as a consequence of the death of his

wife, not in any immediate aftermath sense of being at the scene or so on, that his injuries arose - in fact I think it was the case there that he did not

in actual fact attend at the hospital or anything

of that nature.

If it is the case that there can be recovery

in circumstances where it is the consequences for

a person under section 4 that they have a

psychiatric illness arising from, the results for

them of someone being killed, it must also be the

case that it will arise where it flows from the

consequences of someone being injured. And if

someone is injured, and that person over a period

of time suffers what develops to be a psychiatric

condition, if it is as here causally connected,

there would be the same sort of connection as there

is for Swan's case.

Now, in the facts of this case we have a

situation where the husband is brought home.

Obviously we do not have an aftermath situation in

the usual terms.. She did not go to the hospital,

he was brought home on crutches and so on. She

said that she had a reaction at the time. Of

course it is difficult to describe - she said she

was chilled by what had happened. It is obviously

Chiaverini 15 21/5/93

difficult to describe that as being a psychiatric

condition, looking back on it, but within six

weeks - I withdraw that - within eight weeks she

had been to the doctor and was receiving

tranquilizers. The psychiatrist who reviewed the

case - - -

DAWSON J:	We have read the facts, Mr McCarthy.
MR McCARTHY:	Your Honours, in terms of that time, Mr Pusey had gone six weeks before anything had occurred in
relation to himself after the -

GAUDRON J: Are you not, in raising this, just seeking to

challenge a finding of fact against you?

MR McCARTHY:  No, Your Honour, my only point there is that

in the chain of how matter go through in this, that

this is a closer case to the type of situation

where there has been found to be a reaction at

common law. I am not putting forward, as we did

not put forward in the Court of Appeal, that this

is necessarily a case that can be found 'in terms of

the principles as they are presently at common law.

Rather that there are some analogous circumstances

to what has been found to be the fact situation in

other cases.

DEANE J:  I think we have grasped the point you are trying

to make, Mr McCarthy.

MR McCARTHY:  Your Honours, the question of the nature of

nervous shock is something that has troubled the

profession over the last 100 years. Obviously, it

is something that, in terms of connection, there

have been grave difficulties with. Where

Parliament has stepped·in, as it did in this case,

to try and break what was seen as very narrow

constrictions and did it for the purpose of a

certain type of injury, to not recognize that as

being the way in which the section has been framed

is to misinterpret it. It would seem to be an

element that is not necessary in causation to say

that there has got to be in the chain some sort of

incident -

DAWSON J:	You have made this point, I think.
MR McCARTHY:	Your Honours, on the wider front, what is

raised here is in relation to a relationship in the
section, but as well, that is a relationship that
exists at common law and in a reconsideration of

this section would also raise matters for

reconsideration in terms of the common law.

Chiaverini 16 21/5/93

Your Honours, we rely on the rest of what is

in the written submissions. They are our

submissions, Your Honours.

DAWSON J:  The Court need not trouble you, Mr Murray.

The Court does not think that the decision of the Court of Appeal is attended with sufficient

doubt to warrant the grant of special leave to

appeal. Accordingly, special leave is refused.

MR MURRAY:  We ask for costs.

DAWSON J:  Mr McCarthy? It will be refused with costs.

AT 2.20 PM THE MATTER WAS ADJOURNED SINE DIE

Chiaverini 17 21/5/93