Colin John Shipard and Clazina Shipard v Motor Accident Commission (Appellant) No. Scgrg-97-343 Judgment No. 6429 Number of Pages 10 Procedure Nervous Shock

[1997] SASC 6429

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, LANDER AND BLEBY JJ

CATCHWORDS:

Procedure - Supreme Court procedure - South Australia - pleadings - motor vehicle accident - negligence. Statement of claim alleged that one of the plaintiffs had suffered nervous shock through having witnessed the death of the tortfeasor - defendant applied to strike out the pleadings as disclosing no reasonable cause of action, or alternatively to have summary judgment entered in its favour on the grounds that the plaintiff's claim could not succeed on any possible view of the facts or the law - consideration of the requirements that must be satisfied before a claim may be struck out - whether these were made out in the instant case - held that they were not - plaintiff's claim not obviously untenable or without any chance of success - possibility that the pleadings could be amended on relevant consideration - held in relation to the application for summary judgment, for similar reasons, that it would not be appropriate to determine the fate of the proceedings summarily without all the relevant factual material being before the court. Supreme Court Rules 1987 r46.18(9), 25.04, referred to. Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; Coombes and Barei Pty Ltd v Lincolne Scott Australia Pty Ltd and Another (Unreported, Full Court, SA Supreme Court, 28 February 1997, Jgt No S6045 (p3)), applied. Jaensch v Coffey
(1984) 155 CLR 549, considered.

HEARING:

ADELAIDE, 6 November 1997 (hearing) 5 December 1997 (decision)

#DATE 5:12:1997

#ADD 15:12:1997

Appearances:

Appellant:

Counsel: Mr D A Trim QC with Mr M Livesey

Solicitors: Ward & Partners

Respondents:

Counsel: Mr P W Eriksen with Mr T R Bryant

Solicitors: Angela Bentley & Associates

ORDER: appeal dismissed.

DOYLE CJ

Introduction

This is an appeal against a decision of a Master. The appeal was referred to the Full Court with the consent of the parties.

The Master dismissed an application, by the defendant in this action, for an order that the Statement of Claim be struck out or, alternatively, for an order that summary judgment be entered for the defendant.

The issue before the Master, and on appeal, is whether the Statement of Claim should be struck out because it does not disclose a cause of action, or whether summary judgment should be entered because the claim cannot succeed on any view of the facts or of the law.

Facts

The plaintiffs are husband and wife. Mr Shipard claims damages for "nervous shock" and "post traumatic stress disorder" ("ptsd"), sustained by him, as a result of a collision between a prime mover driven by him and a motorcycle. The motorcycle was being ridden by Mr Young, who died in the collision. The defendant is sued as the approved insurer, under the Motor Vehicles Act (SA), of the motorcycle.

It is not alleged that Mr Shipard sustained any physical or bodily injury. The case turns on the fact that the only injuries alleged to have been sustained by Mr Shipard are nervous shock and ptsd.

Mrs Shipard claims damages for loss of consortium. Her claim can, for present purposes, be put to one side. Her claim depends upon the fate of her husband's claim.

The case has been argued, and decided by the Master, on the basis that Mr Shipard's claim is for what is described in the cases as "nervous shock". I proceed on the basis that the plaintiff's claim is for a psychiatric illness resulting from the collision. I will use the term "nervous shock" to embrace both of the alleged injuries, even though the term may be medically inaccurate: see Jaensch v Coffey (1984) 155 CLR 549 at 559-560 Brennan J. I also proceed on the basis that Mr Shipard sustained no physical or bodily injury in the collision.

The issue

The defendant submits that Mr Shipard's claim cannot succeed as a matter of law.

The defendant's submission is that a plaintiff may not recover damages for nervous shock sustained as a result of witnessing the self-inflicted death, injury or peril of the person whose negligence is the negligence upon which the claim is based. The defendant submits that Mr Shipard is able to recover damages for nervous shock caused by the negligence of Mr Young if Mr Shipard suffered bodily harm in the collision (and no such allegation is made), or if Mr Shipard apprehended immediate physical harm or injury to himself as a result of the manner in which Mr Young rode his motorcycle, and, in either event, the nervous shock is consequential upon the bodily harm or the apprehension.

The Master was not satisfied that that proposition is established as the law of Australia, and considered it arguable that the plaintiff's claim could succeed even if neither of the two qualifying circumstances identified by the defendant were present. Accordingly, he dismissed the application.

The Statement of Claim

The Statement of Claim alleges that Mr Shipard was driving a prime mover through the junction of two roads when Mr Young, riding his motorcycle, collided with the prime mover. For present purposes it is to be assumed that Mr Young was negligent, and was wholly to blame for the collision. Paragraph 9 of the Statement of Claim alleges that Mr Young owed the plaintiff a duty of care. I read it as referring to a duty of care not to cause nervous shock. Paragraph 9 is as follows:

"The said Christopher George Young did at all material times owe the plaintiff a duty of care in that it was reasonably foreseeable that a person in the plaintiff's position would suffer nervous shock and develop a post traumatic stress disorder in those circumstances such as arose out of the collision and the plaintiff's perception of its aftermath."

Paragraph 7 of the Statement of Claim alleges that Mr Young was in breach of that duty of care. Paragraph 6, which is the crucial paragraph, alleges: "The circumstances of the collision referred to in paragraph 4 hereof and the plaintiff's perception of its aftermath were factors sufficient to cause the plaintiff to suffer a nervous shock and develop a post traumatic stress disorder and did in fact do so.

PARTICULARS

(i) Immediately prior to the collision occurring the plaintiff heard a roar on his right and looked in that direction and saw Christopher George Young and the motor cycle being ridden by him.

(ii) The plaintiff observed the motor cycle collide with the fuel tank of the Mercedes prime mover adjacent to where the plaintiff was sitting causing the fuel tank to split apart.

(iii) The plaintiff was shocked and startled by the actions of Christopher George Young and in particular why he had ridden and accelerated against a red light. As he alighted from his prime mover the plaintiff was shaking and nervy.

(iv) The plaintiff observed diesel fluid flowing out of the fuel tank and on to the roadway and following the accident kept smelling diesel fluid.

(v) When the plaintiff checked on the motor cyclist he found that he had been decapitated and he saw blood.

(vi) The plaintiff was distressed at the accident scene when a Police Officer who had attended there said to him, 'You're lucky there were witnesses or you would have been up for culpable driving'. The plaintiff was also distressed when on attending work the next day his employer had said, 'You're lucky you weren't in the wrong or you'd be sacked'."

Paragraph 8 alleges that that "perception and affect" were reasonably foreseeable consequences of Mr Young's negligence.

Sub-paragraphs (i), (ii) and (iii) of paragraph 6 allege that the plaintiff was aware of the impending collision, saw the collision and "was shocked and startled" by the prospect of the collision. These appear to be "the circumstances of the collision" that caused the plaintiff nervous shock.

Sub-paragraphs (iv) and (v) refer to consequences of the collision, part of the "aftermath" which caused nervous shock. So does sub-paragraph (vi), although that is in a different category, because it deals with the conduct of other persons.

In a nutshell, the alleged causes of the nervous shock are first, the plaintiff's awareness of the impending collision and his observation of the actual collision. Secondly, the plaintiff's observation of two consequences of the collision, the escape of diesel fluid and the fatal injury to Mr Young. Thirdly, statements by third parties to the effect that the plaintiff was fortunate that he could not be blamed for the accident.

It is to be noted that the Statement of Claim does not explicitly plead that the plaintiff feared that he would be injured in the impending collision. But the Statement of Claim goes as close as one can to pleading that, without actually doing so. As a matter of commonsense it is difficult to see what else is intended or meant by subparagraphs (i), (ii) and (iii) of paragraph 6.

The issue for determination

It is convenient to deal with the issue of whether the Statement of Claim discloses a reasonable cause of action: r46.18 Supreme Court Rules. If it does disclose a reasonable cause of action, there is in my opinion no reason to enter summary judgment.

The cause of action is in negligence. The existence of a duty of care is essential. Paragraph 7 alleges that a duty of care was owed, and paragraph 9 alleges a duty of care in relation to nervous shock.

However, under the Supreme Court Rules the Statement of Claim must "contain a statement in a summary form of the material facts on which the party relies", and must also "contain sufficient particulars of the claim": r46.04(1)(b) and (f). It is therefore necessary for the Statement of Claim to allege facts which in law give rise to the duty of care alleged. Does it do so?

The defendant's submission

The defendant's argument rests upon remarks made by Deane J in the course of his judgment in the High Court in Jaensch v Coffey (1984) 155 CLR 549. I will not attempt to summarise that landmark decision, dealing with liability for nervous shock.

In the course of his judgment, Deane J developed the proposition that liability in negligence for nervous shock is not determined solely by reference to a test of reasonable foreseeability. He held that a duty of care not to cause nervous shock arose only if there was a relevant relationship of proximity between the plaintiff and the defendant. In that context he said (at 602):

"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, there would be no proper basis for excluding liability on the part of the injured person, her or his estate or her or his compulsory third party insurer for mere psychiatric injury which was sustained by another as a result of the self-inflicted death, injury or peril of the negligent person in circumstances where the risk of such psychiatric injury was reasonably foreseeable: cf. Bourhill v. Young's Executor 1941 S.C. 395, at p.399."

A little later he said (at 603):

"The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable. The other is that, on the present state of the law, such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury ..."

The defendant founded its argument upon the exclusion of liability by Deane J, in the case of a negligent person who causes psychiatric injury by the self-inflicted death, injury or peril of the negligent person, and by that means alone.

Duty of care

In my opinion it is clear, as counsel for the defendant acknowledged, that Deane J did not intend to deny that a duty of care could be owed, not to cause nervous shock, by one who kills or injures himself or herself, or puts himself or herself in peril, if as well that person's carelessness caused another person to suffer physical harm or, at the least, fear imminent physical harm as a result of the carelessness of the first person. In my opinion this emerges quite clearly from a discussion by Deane J of various decided cases. In particular, Deane J (at 593 and at 605) referred with apparent approval to Dulieu v White & Sons [1901] 2 KB 669. This was a case in which the plaintiff suffered nervous shock because she apprehended physical injury to herself as a consequence of the negligent driving of a "pair-horse van". She did not suffer any physical injury. That is clearly a case in which the plaintiff recovered for nervous shock although that nervous shock was sustained as a result of the careless person causing injury or peril to himself. The significant thing is that, although no physical injury was caused to Mrs Dulieu, her shock arose from a fear of immediate personal injury, which fear resulted from the negligent driving of the other person involved.

I therefore consider that the exclusionary principle stated by Deane J refers to a plaintiff who does not suffer bodily injury and does not apprehend immediate bodily injury as a result of the defendant's negligence. He was referring to a plaintiff who suffers nervous shock solely as a result of the death, injury or peril of the very person upon whose carelessness the plaintiff rests the cause of action.

The defendant argued that the limitations upon the test of foreseeability, stated by Deane J, represent a majority view of the High Court. It was submitted that Gibbs CJ had agreed generally with the reasons of Deane J (at 551) and that Dawson J expressed a similar view. Neither Brennan J nor Murphy J dealt specifically with the limitation identified by Deane J.

Of course, the defendant also argued that the present case fell within the limitation identified by Deane J, because the plaintiff has not alleged that he feared imminent physical injury to himself, and that his nervous shock was consequent upon that.

The first difficulty with the defendant's submission is that Dawson J did not agree with Deane J. In the passage relied upon he said (at 612):

"For example, if no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability."

In my opinion Dawson J was doing no more than acknowledging the possibility that Deane J might be right. It follows that the view expressed by Deane J was not supported by a majority of the Court. Nevertheless, it is a considered view which had the support of two members of the Court, and is to be given due weight by this Court.

Counsel for the defendant then submitted, as I understood him, that the High Court has subsequently accepted proximity as an essential element in establishing the existence of a duty of care. So it has, although with various qualifications: see Hill v Van Erp (1997) 71 ALJR 487. But it does not follow from this that the conclusion reached by Deane J about the application of the requirement of proximity in cases of nervous shock now has authoritative support.

The defendant further submitted that this Court should now decide that the view expressed by Deane J is the law in South Australia. It is, of course, open to this Court to do so.

I propose to refer to some only of the decisions that the defendant called in aid.

First, there is the remark made in passing by Bray CJ in Kohn v State Government Insurance Commission and Commercial Union Company of Australia Limited (1976) 15 SASR 255 at 258, where in the course of assessing damages he said, although he did not have to decide the point:

"... a man or his representatives can hardly be legal responsible for the injurious effect of his own death."

Reliance was also placed upon two decided cases. In Harrison v State Government Insurance Office (Qld) (1985) Aust Torts Reports 80-723 Vasta J dealt with a claim by a plaintiff for physical injuries, and also for a psychiatric illness. Her injuries were suffered when a car driven by her husband left the road. The accident was caused solely by her husband's negligence. The husband died as a result of the injury sustained. Vasta J found (at 69,176):

"... that none of the physical injuries of the plaintiff, in any material sense, contributed to her psychiatric condition."

He found that the psychiatric condition was a result of the experience of the accident itself and of the plaintiff's awareness that her husband had been injured. He apparently regarded a claim for "nervous shock" based upon the plaintiff's concern about her husband as one that could not succeed, but awarded damages for the plaintiff's psychiatric illness on the basis that he could not distinguish between the emotional trauma "associated with the crash itself and the trauma brought about by her concern for her husband" (at 69,176).

In my opinion this case does not assist the defendant. While Vasta J accepted the limitation state by Deane J in Jaensch v Coffey (supra), he did not regard it as applicable to a case in which the plaintiff, who was involved in the accident, experienced "major emotional trauma" in the accident caused by the negligence of her husband. As I have already pointed out, this was not a case in which the physical injury suffered by the plaintiff contributed to her psychiatric condition. If anything, the decision is consistent with a view that nervous shock resulting from the experience of being involved in an accident is compensable.

The other decision relied upon was Klug v Motor Accidents Insurance Board
(1981) Aust Torts Reports 81-134. There the plaintiff was a passenger in a motor vehicle being driven by his defacto wife. The vehicle crashed due to her negligence. The wife was killed and the plaintiff was injured. The plaintiff developed a pathological grief reaction. Zeeman J held (at 69,271) that the plaintiff's condition was not compensable insofar as it was a result of feelings of guilt. He went on to say (ibid) that the only other cause for the grief reaction was "the death of the deceased whose carelessness caused the injury." He then went on to discuss the limitation identified by Deane J in Jaensch v Coffey (supra), and treated it as excluding a claim in the case before him. But, like Vasta J, he appears to have distinguished between

"... shock caused by the accident itself and shock caused by becoming aware of the injuries to the negligent tortfeasor." (at 69,273)

He did not regard the case before him as falling into the former category. Once again, this decision does not assist the defendant, insofar as it appears to recognise that shock consequent upon involvement in an accident caused by the defendant's negligence is compensable.

Reliance was also placed upon certain remarks to be found in the speeches of their Lordships in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Particular reliance was placed upon the speech of Lord Ackner at 400-401 where he appeared to recognise a limitation similar to that identified by Deane J in Jaensch v Coffey (supra). But, in my opinion, the subsequent decision of the House of Lords in Page v Smith [1996] AC 155 erodes the reliance to be placed upon the earlier decision of their Lordships. In the more recent case their Lordships appear to have accepted that in cases involving nervous shock, in relation to persons actually involved in an accident ("the primary victim"), the "control mechanisms" necessary in the case of secondary victims had no part to play: see, for example, Lord Lloyd at 197.

I consider that there are two answers to be made to the submission that this Court should now determine the law for South Australia in accordance with the views expressed by Deane J.

First, I consider that this is the sort of case in which it is better to determine the law with knowledge of the relevant facts. This is not simply a case in which the plaintiff has suffered nervous shock as a consequence of the self-inflicted death of Mr Young. Mr Shipard, although he suffered no bodily injury, was within the area of risk of bodily injury in the collision that occurred. Moreover, Mr Shipard was aware that the collision was about to occur, and saw it happen immediately adjacent to him. In the language of the House of Lords in Page v Smith (supra), he was a primary victim.

Determining whether the required element of proximity exists involves a careful consideration of the relevant policies in the light of the facts of the case. Drawing a line to either include or exclude the possibility of a duty of care in a case such as this one involves a careful exercise, and may finish up involving drawing distinctions not explicitly dealt with by Deane J. First, a distinction between primary and secondary victims. Secondly, a distinction between primary victims who suffer physical injury and those who do not.

In my opinion the plaintiff is entitled to have that exercise done on the basis of facts clearly found, rather than on the basis of factual hypotheses. The pleadings in the present case are not, in my opinion, as precise as they might be, but they lie in an area in which the necessary precision may be difficult to achieve.

I do not consider it to be beyond argument that the limitation accepted by Deane J will be adopted as the law of Australia, although I acknowledge that it is quite likely that it will be. However, and more importantly, I consider that this case lies right on the borderline, if a line is to be drawn, and for that reason should be permitted to go to trial.

The case as pleaded

My second reason for considering that the Statement of Claim should not be struck out is that, as the pleading stands, it is arguable that the limitation identified by Deane J in Jaensch v Coffey (supra) does not stand in the way of the plaintiff. I have already set out and referred to the particulars given in relation to paragraph 6 of the Statement of Claim. In my opinion it is fairly arguable that sub-paragraphs (i), (ii) and (iii) are intended to, and do allege, that the plaintiff's nervous shock is attributable to a reasonably held fear of imminent physical injury. It is not easy to understand what else they are intended to allege, and I refer in particular to the allegation that the plaintiff was "shocked and startled" by seeing the motorcycle accelerating towards him and collide with the prime mover.

I agree that the Statement of Claim could, in this respect, be much better drawn. As counsel for the defendant said, with some justification, if the intention was to allege a reasonably held fear of immediate physical injury, why was that not done in those terms? The point was made, in this connection, that the plaintiff has already amended the Statement of Claim once. I acknowledge that there is considerable force in that point. But, in the end I consider it sufficiently arguable that the necessary apprehension is alleged and that, accordingly, the case does not fall within the exclusion that Deane J intended to identify.

Conclusions

In my opinion, the exclusion of liability for nervous shock identified by Deane J in Jaensch v Coffey (supra) has not yet received authoritative support from the High Court. In my opinion this Court should not, in this case, declare that that limitation represents the law of South Australia. The Court should not do so because the present case presents factual elements that require a line to be drawn with the sort of care and eye to detail that make it best to do so when all the facts are known. In my opinion it is also arguable that, in any event, the Statement of Claim as it stands alleges facts which put the case outside the area of exclusion identified by Deane J.

For those reasons I would dismiss the appeal.

In the interests of efficiency and certainty I would allow the plaintiff one more opportunity to amend the Statement of Claim to allege, if so advised, that the plaintiff apprehended immediate physical injury as a result of seeing the motorcycle ridden towards the prime mover driven by him, and as a result of seeing the impact between the motorcycle and the prime mover very close to where the plaintiff was sitting in the prime mover. I consider it appropriate to require the plaintiff to indicate his attitude to that invitation before the Court decides upon the costs of the appeal. I say this because I strongly suspect that had that allegation been clearly made, the matter would not have come before this Court.

LANDER J

I agree for the reasons given by the Chief Justice that this appeal ought to be dismissed.

Bleby J

The issues before the Master and before this Court were whether the plaintiff's Statement of Claim should be struck out because it discloses no reasonable cause of action (r46.18(a)), or, alternatively, whether there should be an order for summary judgment because the plaintiff's claim cannot succeed on any possible view of the facts or the law (r25.04).

In order to succeed in an application pursuant to r46.18(a) it must "plainly appear that the claim is so obviously untenable that it cannot possibly succeed no matter what amendments are made": Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445 per Bray CJ at 448. Bray CJ continued in that case:

"A reasonable cause of action means one with some chance of success, however small, when only the allegations in the pleadings are considered: Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688, per Lord Pearson at p.698. If it has none, and if there is no chance that it can be endowed with one by amendment, then it can be struck out."

Whether the limitation identified by Deane J in Jaensch v Coffey (1984) 155 CLR 549, to which the Chief Justice has referred, does properly represent the law in South Australia is debatable. The Chief Justice has referred to the various authorities on the question. That uncertainty in itself is not sufficient answer to an application under r46.18(a). The uncertainty does not arise from the pleadings but from the state of the law, and it would be that question of law that the application seeks to resolve. This Court could therefore determine, on such an application, that the dictum of Deane J does represent the law in South Australia and that there must be a relevant relationship of proximity between the plaintiff and the defendant before the plaintiff can succeed.

However, the resolution of the plaintiff's claim may depend on more than that. It may depend on whether in fact he suffered any fear of imminent harm. It may depend on the policy justification for requiring a relationship of proximity and whether that fits the circumstances of this case. It is therefore inappropriate to determine the plaintiff's claim in a factual vacuum which pleadings cannot fill, and on that ground alone the requirements of r46.18(a) cannot be met.

The Statement of Claim has already been amended in a manner which suggests that the limitation of Deane J in Jaensch v Coffey (supra) may not apply. If that were intended, and I can think of no other reason for the amendment, it could have been better expressed, and no doubt may be the subject of a further application to amend.

That is a further reason why it would be inappropriate to take the bold step of striking out the Statement of Claim altogether. I agree with the Chief Justice that the plaintiff should be given one more opportunity to amend the Statement of Claim in the manner suggested, and that the plaintiff's attitude to that invitation may well influence the question of costs on this appeal.

So far as the alternative claim is concerned, I have probably said enough to indicate that I do not think it can be said that the defendant must succeed on any possible view of the facts or the law. The obligation to be discharged by the defendant in an application made under r25.04 is a stringent one, and the power must be exercised with great care. As the Chief Justice said in Coombes and Barei Pty Ltd v Lincolne Scott Australia Pty Ltd and Another (Unreported, Full Court, SA Supreme Court, 28 February 1997, Judgment No S6045) at p3:

"It is not sufficient that the Court might think it is likely that at the end of the day the party who invokes r25.04 will succeed, or even that the Court thinks success for that party is more than likely. The requirement of the Rule is more demanding than that. The Rule performs an important function, particularly these days where there is an emphasis upon efficiency in the conduct of litigation, in enabling the Court to dispose promptly and economically of claims entirely lacking in merit. But at the same time the Court must be careful not to dispose of claims in this way unless they really are lacking in merit."

It is quite inappropriate, when the outcome may depend on nuances of fact and degree, that the fate of the proceedings be determined in a summary fashion under this Rule.

I agree that the appeal should be dismissed.