Coates v NSW Insce Ministerial Corp

[1995] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S24 of 1995

B e t w e e n -

SUZANNE LOUISE COATES

Applicant

and

NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW)

Respondent

Office of the Registry
  Sydney  No S25 of 1995

B e t w e e n -

STEVEN JOHN COATES

Applicant

and

NSW  INSURANCE MINISTERIAL CORPORATION (formerly GIO of NSW)

Respondent

Applications for special leave to appeal

BRENNAN CJ
GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1995, AT 11.23 AM

Copyright in the High Court of Australia

_________________

MR B.M. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MS F. BACKMAN, for the applicants.  (instructed by Walsh & Blair)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR H.J. MATER, for the respondent in each matter.  (instructed by R.J. Walters, NSW Insurance Ministerial Corporation)

MR TOOMEY:   We have photocopy authorities here, your Honours.  These were cases brought by a young man and a young woman who, in 1985 when they were 11 and 14, suffered the loss of their father in a road accident.  He was a long distance truck driver and was killed in an accident near Coonabarabran.  The male applicant, Steven Coates, who was 14, was at home with a friend on the weekend that his father was killed.  His mother and sister were away.  The police came to the ‑ ‑ ‑

McHUGH J:   I do not think you should waste your time telling us the facts.  We are well aware of the facts.  Go to your argument, Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  Our argument begins with the question of whether an abnormal grief reaction - this is the boy’s case, Steven Coates - fits within the descriptions which have been given of injury from nervous shock.  Your Honour the Chief Justice in Jaensch v Coffey accepted the statement of Lord Denning in Hinz v Berry that any recognisable psychiatric illness be injury from nervous shock and your Honour also referred with approval to the statement by Mr Justice Walsh in Mt Isa Mines v Pusey that it refers to all forms of mental or psychological disorder which are capable of resulting from shock.  You said, at page 560:

Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability.

BRENNAN CJ:   What is your evidence of shock, though?

MR TOOMEY:   The evidence was the boy refused to accept that his father was dead.

BRENNAN CJ:   When?

MR TOOMEY:   He refused to accept it for some days until his mother had actually gone up to Coonabarabran, identified the body and come back.  He immediately began to wear his father clothes.  He wore his father’s jacket and shoes, for example, to the funeral and continued to wear them until they wore out, although they were much much too big for him.

BRENNAN CJ:   Any evidence from treating doctors at the time?

MR TOOMEY:   No, your Honour.  But can I say this, that his Honour the trial judge found that there was an abnormal grief reaction.  The real question, it seems to us, is whether, having made that finding, his Honour was then entitled to say - and I ought say that the question of whether what flowed to the two applicants was the result of nervous shock was not really the issue, the issue was whether what happened to them amounted to injury from nervous shock.  But the learned trial judge having decided, and having accepted, that the applicant had suffered an abnormal grief reaction, he then made the finding which appears at the application book ‑ ‑ ‑

McHUGH J:   What are you looking for?

MR TOOMEY:   I am looking for his finding.  It is at page 5.

In my view neither Steven or Suzanne suffered nervous shock in the sense of a recognizable psychiatric illness -

He then said, down the bottom of the page at line 25:

I am not satisfied that Suzanne suffered from more than a grief reaction -

I will go to that later, your Honours -

to her father’s death and whilst I am satisfied that Steven’s reaction to that death was an abnormal grief reaction I am not satisfied that it resulted in or constituted a recognizable psychiatric illness.

Now, in our respectful submission, that position seems to turn on the very question of classification which your Honour the Chief Justice said in Jaensch v Coffey was not determinative.  The question was whether he suffered injury from nervous shock.  If he had suffered a grief reaction and it was not abnormal he could not have recovered.  But for him to suffer an abnormal grief reaction, and it to be said that that was not a psychiatric illness or, to use the words of Mr Justice Walsh in Mt Isa Mines v Pusey, a mental or psychological disorder, in our respectful submission just defies sense.  If a grief reaction is abnormal it must, in our submission, be a psychological disorder.

GAUDRON J:   That is really a question of fact, is it not, upon which one might want expert evidence?

MR TOOMEY:   But the expert evidence established the abnormal grief reaction, your Honour.  I mean it would be a question of fact as to the categorisation of what the person suffered, but once it has been categorised as an abnormal reaction it would be our submission that that really determined the question.

McHUGH J:   But there were also problems about intensity and duration.

MR TOOMEY:   The only problem was that his Honour found that they did not exist at the time of the trial and, indeed, he said at page 6 of the application book:

Without in these reasons analysing Dr Jolly’s evidence, his opinion that there was no conspicuous psychiatric illness I regard on the whole of his evidence as being the expression of an absence of that which must exist for nervous shock to be found.

Dr Jolly’s evidence was in fact - and it is reproduced in the President’s judgment in the Court of Appeal - was that there is now no conspicuous psychiatric illness.

GAUDRON J:   The trial judge was not rejecting his evidence; he was saying that is the statement of a condition that I think is necessary and I find that there was not such a condition.

MR TOOMEY:   He did say that, your Honour, but he also reproduced Dr Jolly’s evidence which referred to the condition at the date of trial, not to the condition earlier, as one of his reasons for finding there was an absence of injury from nervous shock.

GAUDRON J:   But is not your problem really what appears in the very last words of what his Honour said on page 6, “there is no evidence supporting thereof”.  He says:

I cannot diagnose a grief reaction or indeed an abnormal grief reaction in terms of psychiatric illness let alone one which is recognizable where there is no evidence supporting thereof.

That was the problem with your case, was it not?  There was a paucity of evidence, most markedly there being no evidence of any treatment given for the condition.

MR TOOMEY:   There was no evidence of any treatment given for the boy, your Honour.  The girl is a different case and, with respect, a stronger case.  But it is true that there was no evidence which said an abnormal grief reaction is a psychiatric illness.  In our respectful submission the statement of the condition itself must give rise to an inference that it is a psychiatric illness.  It is psychiatric, it is not physical.  It is a disorder because it is abnormal and it is our respectful submission that you would not need evidence that that was a psychological disorder.  I appreciate the difficulty because of the different descriptive terms which have been used from time to time, but an abnormal grief reaction must certainly be a psychological disorder within the terms used by Mr Justice Walsh in Pusey’s Case.  There is nothing more I can put on that. 

But in the girl’s case the situation was quite different.  The girl was 11 at the time.  She had been in perfect health before being told of her father’s death.  She immediately that night developed stomach pains which lasted on and off for 12 to 18 months, which put her in the hospital at one stage for two weeks on a drip and which were quite unable to be explained in terms of any physical illness.  No physical illness could be found.  So the doctors both for the plaintiff and the defendant on the trial accepted that they were psychosomatic pains.  Now, our argument is very simple.

BRENNAN CJ:   Why was she put on the drip?

MR TOOMEY:   I think she was not eating, your Honour, and it was felt that she was under some threat.  The importance of it, of course, is that it was not trivial.  It was bad enough for her to be kept in hospital for two weeks and it was bad enough for her to be thus fed.  But the strength of our argument, we would submit, is this:  the pains were psychosomatic, so it was a psychiatric or psychological condition, it was not physical; she was disabled by them because she was in hospital for two weeks, quite apart from the fact that they lasted for 18 months.  In those circumstances it would, we would submit, clearly be a psychiatric illness or a psychological disorder.  His Honour dealt with it by saying this at page 4:

Shortly after her father’s death Suzanne commenced to experience pains in her stomach for which a variety of medication was prescribed.  The pains came and went and interfered with her sleep and on one occasion was so severe as to have her admitted to hospital where she remained for some two weeks.  After her discharge the pains abated in duration and intensity and ceased after about twelve months.

Now his Honour’s finding is:

I am not satisfied that Suzanne suffered from more than a grief reaction to her father’s death -

Supposing a grief reaction led to schizophrenia or led to the absolute inability of a person to cope with normal life.  The fact that it was a grief reaction would not, in our respectful submission, refuse the person the right to recover.

If I may just take your Honours to Swan v Williams (1987) 9 NSWLR 172, this arose in that case. It was a case in which a man’s wife and child were killed in an horrific accident when a block of granite was dislodged from the parapet of a building in York Street and fell onto a car in the street and crushed the plaintiff’s wife and child to death. The question was whether the reaction which Mr Swan had suffered was psychiatric illness or not. Mr Justice Priestley, in whose judgment your Honour Justice McHugh agreed, reproduced the well known passage from Macpherson v Commissioner for Government Transport (1959) 76 WN(NSW) 352. They reproduced the charge to the jury of the trial judge in the case and perhaps the important part is to be found beginning with the words, about six lines up from the bottom on page 193:

I intended to say that all the consequences of nervous shock, if you find there was a nervous shock and if you find that individual things are the result of the nervous shock, all those are compensatable.  On the other hand ordinary grief, anguish or anything like that which is the ordinary result of sudden death, and of end of life and all those things, is not compensatable......I have tried to make it but you appreciate the difference with those results which have flowed for the plaintiff as the result of injury.  All of them are capable of being considered in terms of damages.  Therefore gentlemen if you find for instance he was suffering from grief and anguish, if you find that grief and anguish was a result of the nervous shock and was due to the injury then that is one thing, he is entitled to have you consider that in his favour.  But he is not entitled to have you consider at all the fact that he is suffering from ordinary grief, ordinary anguish, ordinary shock, even though anguish is far beyond that of the ordinary man.’

His Honour went on to say:

I think I made it plain to the jury unless the anguish and grief is a result of the injury and is part of the psychological injury that he received it does not sound in damages.  If it is normal grief it does not sound.  If it is even abnormal grief unrelated to the injury it does not sound.

Now, in Steven’s case we say it was beyond normal grief, because there was a finding it was abnormal grief.  There was no challenge to the fact that it was the result of nervous shock.  In Suzanne’s case, again there was no challenge to the fact that it flowed from the shock of being told of her father’s death or the shock of her father’s death, both of those, and in our respectful submission it clearly falls within that question of what is normal and what is not normal.

I should say that Mr Justice Priestley, and as I say your Honour Justice McHugh agreed with, said that he believed that the test stated in Macpherson was the same as the test stated by your Honour the Chief Justice in Jaensch v Coffey.  If that be the case, in our respectful submission both these cases fell within the test.

The two further questions I will not address any argument to because they do not arise, of course, if your Honours are against us on the primary point. Those are the questions of whether or not the applicants were disqualified in any event at common law because they did not see the accident or its aftermath and under section 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 of New South Wales. May it please your Honours.

BRENNAN CJ:   Thank you, Mr Toomey.  We need not trouble you, Mr Hislop.

The evidence of nervous shock in the case of either plaintiff was tenuous.  This is not a suitable case in which to canvass the question of the psychological conditions which might attract an award of damages consequent on nervous shock or the question of liability for nervous shock created when a plaintiff hears of an accident befalling a third party.  The decision of the Court of Appeal was correct.  Accordingly special leave is refused.

MR HISLOP:  We would ask for an order as to costs, your Honour.

BRENNAN CJ:   It will be refused with costs.

AT 11.45 AM THE MATTER WAS CONCLUDED