Gifford v Strang Patrick Stevedoring Pty Ltd - [2007] NSWCA 50

New South Wales

Court of Appeal

CITATION: Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50

HEARING DATE(S): 13 February 2007

JUDGMENT DATE:
19 March 2007

JUDGMENT OF: Ipp JA at 1; Basten JA at 2; Handley AJA at 3

DECISION: CA 40176 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.; CA 40174 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.; CA 40175 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.

CATCHWORDS: DAMAGES – nervous shock – children of deceased worker – not governed by Workers Compensation Act 1987 - NERVOUS SHOCK – children of deceased worker – damages – not governed by Workers Compensation Act 1987

LEGISLATION CITED: Workers Compensation Act 1987

CASES CITED: Baker v Graham (1961) 106 CLR 340
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269
Hunter Area Health Service v Marchlewski [2000] NSWCA 294
Kimberly-Clarke Australia Pty Ltd v Thompson [2006] NSWCA 264
Marinko v Masri [2000] Aust Torts Rep 64-201

PARTIES:
CA 40174 of 2005
Matthew Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)
CA 40175 of 2005
Kelly Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)
CA 40176 of 2005
Darren Gifford (Appellant)
Strang Patrick Stevedoring Pty Ltd (Respondent)

FILE NUMBER(S): CA 40174 of 2005; CA 40175 of 2005; CA 40176 of 2005

COUNSEL: B Gross QC (Appellants)
H Kelly SC/T McKenzie (Respondents)

SOLICITORS: G H Healey & Co (Appellants)
Gillis Delaney Brown (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 7309 of 1997; DC 7323 of 1997; DC 7419 of 1997

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 17 December 2004

CA 40174 of 2005
CA 40175 of 2005
CA 40176 of 2005

IPP JA

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: [2007] NSWCA 50
Decision Date: 19 March 2007

CaseChat Overview and Summary

The appeal concerned claims for damages for nervous shock brought by the children of a deceased worker against their father's employer, Strang Patrick Stevedoring Pty Ltd. The children alleged they suffered psychiatric injury as a result of witnessing the aftermath of a workplace accident that led to their father's death. The primary legal issue before the Court of Appeal of New South Wales was whether the claims for nervous shock were governed by the *Workers Compensation Act 1987* (NSW) or were actionable in common law negligence.

The court was required to determine if the *Workers Compensation Act 1987* provided an exclusive remedy for the plaintiffs, thereby precluding a common law claim for damages for nervous shock. Specifically, the court considered whether the Act's provisions relating to compensation for injury to a worker extended to cover psychiatric injury suffered by the worker's dependants who witnessed the consequences of the workplace accident.

The court reasoned that the *Workers Compensation Act 1987* did not extinguish the common law right to sue for nervous shock in circumstances where the plaintiffs were not employees of the defendant and their injuries were not suffered in the course of their own employment. The court found that the Act's scope was limited to injuries sustained by workers in the course of their employment and did not encompass the distinct cause of action for nervous shock available to third parties who suffer psychiatric harm as a result of witnessing a traumatic event caused by the defendant's negligence. The court applied established principles of negligence, including the foreseeability of harm and the proximity of the relationship between the plaintiffs and the deceased worker, to determine liability.

The Court of Appeal allowed the appeals, set aside the judgments of the District Court, and substituted new judgments for the plaintiffs, awarding them damages for nervous shock, economic loss, and interest. The cross-appeals were dismissed.

Orders

Orders of the court

CA 40176 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.; CA 40174 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.; CA 40175 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50
HEARING DATE(S):	13 February 2007
JUDGMENT DATE:	19 March 2007
JUDGMENT OF:	Ipp JA at 1; Basten JA at 2; Handley AJA at 3
DECISION:	CA 40176 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $61,880 for general damages of $60,000 and out of pocket expenses together with interest on the past component of general damages of $50,000 at the rate of 2 percent per annum for 14 years.; CA 40174 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $109,627.86 for general damages of $80,000, economic loss of $20,000 and out of pocket expenses together with interest at the rate of 2 percent per annum on the past component of the general damages of $70,000 for 14 years.; CA 40175 of 2005: (1) Appeal allowed with costs.; (2) Cross-appeal dismissed with costs.; (3) Judgment of the District Court set aside and in lieu thereof substitute judgment for the plaintiff, with effect from 17 December 2004, for $83,183 for general damages of $57,500 and economic loss of $25,683 together with interest at the rate of 2 percent per annum on the general damages for five years and at the rate of 4 percent per annum thereafter, and interest on the damages for past economic loss of $4,128 at 9 percent per annum from 30 June 2003.
CATCHWORDS:	DAMAGES – nervous shock – children of deceased worker – not governed by Workers Compensation Act 1987 - NERVOUS SHOCK – children of deceased worker – damages – not governed by Workers Compensation Act 1987
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Baker v Graham (1961) 106 CLR 340 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 Hunter Area Health Service v Marchlewski [2000] NSWCA 294 Kimberly-Clarke Australia Pty Ltd v Thompson [2006] NSWCA 264 Marinko v Masri [2000] Aust Torts Rep 64-201
PARTIES:	CA 40174 of 2005 Matthew Gifford (Appellant) Strang Patrick Stevedoring Pty Ltd (Respondent) CA 40175 of 2005 Kelly Gifford (Appellant) Strang Patrick Stevedoring Pty Ltd (Respondent) CA 40176 of 2005 Darren Gifford (Appellant) Strang Patrick Stevedoring Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40174 of 2005; CA 40175 of 2005; CA 40176 of 2005
COUNSEL:	B Gross QC (Appellants) H Kelly SC/T McKenzie (Respondents)
SOLICITORS:	G H Healey & Co (Appellants) Gillis Delaney Brown (Respondents)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 7309 of 1997; DC 7323 of 1997; DC 7419 of 1997
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	17 December 2004