Gifford v Strang Patrick Stevedoring Pty Ltd
[2001] NSWCA 175
•14 June 2001
Reported Decision:
51 NSWLR 606
New South Wales
Court of Appeal
CITATION: GIFFORD V. STRANG PATRICK STEVEDORING PTY. LTD. [2001] NSWCA 175 FILE NUMBER(S): CA 40718/99; 40719/99; 40720/99; 40721/99 HEARING DATE(S): 2 May 2001 JUDGMENT DATE:
14 June 2001PARTIES :
Kristine Gifford - appellant (40718/99)
Darren Gifford - appellant (40721/99)
Kelly Gifford - appellant (40719/99)
Matthew Gifford - appellant (40720/99)
Strang Patrick Stevedoring Pty. Ltd. - respondent in all casesJUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Ipp AJA at 76
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :9638/97; 7309/97; 7419/97; 7323/97 LOWER COURT
JUDICIAL OFFICER :Naughton DCJ
COUNSEL: Mr. B.J. Gross QC with Mr. H.W.H. Bauer for all appellants
Mr. T.F. McKenzie with Mr. M. Wright for respondentSOLICITORS: G.H. Healey & Co. Sydney for all appellants
Gillis Delaney Brown, Sydney for respondentCATCHWORDS: Torts - Negligence - Duty of care - Mental or nervous shock - Man killed in horrific accident - Widow and children told - Claim for damages for mental injury - Whether mental or nervous shock - Whether Workers Compensation Act s.151P gives cause of action - Whether Law Reform (Miscellaneous Provisions) Act excludes common law liability - Whether children have common law claim. D. LEGISLATION CITED: Workers Compensation Act 1987 ss.151, 151E, 151F, 151P CASES CITED: State of NSW v. Seedsman [2000] NSWCA 119
Scala v. Mammolitti (1965) 114 CLR 153
Mt. Isa Mines Ltd. v. Pusey (1970) 125 CLR 383
Jaensch v. Coffey (1984) 155 CLR 549
Wilks v. Haines (1991) Aust.Torts.Rep.81-078
Chiaverini v. Hockey (1993) Aust.Torts.Reps. 81-223
Coates v. Government Insurance Office (NSW) (1995) 36 NSWLR 1
Quayle v. State of New South Wales (1995) Aust. Torts Rep. 81-367
FAI General Insurance Co. Ltd. v. Lucre (2000) 50 NSWLR 261
Annetts v. Australian Stations Pty. Lt.d (2000) 23 WAR 35
Swan v. Williams (Demolition) Pty. Ltd. (1987) 9 NSWLR 172
Campbelltown City Council v. McKay (1989) 15 NSWLR 501
Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310
Pham v. Lawson (1997) 68 SASR 124
Petrie v. Dowling [1992] 1 Qd.R. 284DECISION: Appeals dismissed with costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40718/99 DC 9638/97
CA 40719/99 DC 7309/97
CA 40720/99 DC 7419/97
CA 40721/99 DC 7323/97
Thursday 14 June 2001
1 HANDLEY JA: I agree with Hodgson JA and for the reasons he has given that this appeal should be dismissed with costs. However I prefer at this stage to express no views on the matters he discusses in paragraphs 67 to 73 of his reasons dealing with some aspects of s.4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 which, as he recognises, do not squarely arise for decision in this case.
2 HODGSON JA: On 14th June 1990, the late Barry Gifford was killed in an accident in the course of his employment by the respondent Strang Patrick Stevedoring Pty. Limited. His widow Kristine Gifford and three children Darren Gifford, Kelly Gifford and Mathew Gifford each took proceedings against the respondent claiming damages for what may, in general terms, be called nervous shock.
3 The proceedings were heard together in the District Court, and on 24th August 1999, Naughton, DCJ gave judgment for the respondent in each case. The plaintiff in each case has appealed against that judgment to the Court of Appeal.
OUTLINE OF FACTS
4 The following outline is taken from the judgment of the trial judge.
5 The deceased and Mrs. Gifford were both born in 1947. They were married in 1968. Darren was born in 1971, Kelly was born in 1972, and Mathew was born in 1975. The deceased and Mrs. Gifford separated in 1984. From a time shortly after separation, Mrs. Gifford has been in a de facto relationship with one David Morgan.
6 For some years prior to the separation, the deceased had been drinking heavily and gambling. After the separation, he maintained a friendship with Mrs. Gifford and a close and loving relationship with the three children. In 1986, the deceased gave up alcohol, and this strengthened his relationship with Mrs. Gifford and the children.
7 The accident which caused the deceased’s death was horrific. At about 4pm on 14th June 1990, he was walking along a wharf at Darling Harbour, when a large forklift vehicle reversed into and over him, crushing him to death immediately.
8 Mrs. Gifford was soon afterwards, on that day at her place of work, informed of the death by Mr. Morgan and her uncle. She was shocked and distressed, and was taken home. She was off work for two weeks because of her distress.
9 The three children were informed of the death at their home in Woolloomooloo, in the presence of Mrs. Gifford, later on the day of the accident. They too were shocked and distressed at the news.
10 None of the four appellants saw the deceased’s body after the accident. They were apparently discouraged from doing so because of its damaged condition.
ISSUES AT THE TRIAL
11 Negligence causing death of the deceased was admitted. There was no question concerning loss of support in these cases: that was dealt with in a separate action under the Compensation to Relatives Act 1897, heard at the same time.
12 Because the accident occurred during the course of the deceased’s employment by the respondent, Pt.5 of the Workers’ Compensation Act 1987, entitled “Common Law Remedies”, applies. The sections relevant to this case are ss.151, 151E, 151F and 151P, which are in the following terms:
151. This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.
151E(1) This Division applies to an award of damages in respect of:
(a) an injury to a worker, or
(b) the death of a worker resulting from or caused by an injury,
being an injury caused by the negligence or other tort of the worker's employer.
(2) This Division does not apply to an award of damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies.
(3) This Division applies to an award of damages in respect of an injury caused by the negligence or other tort of the worker's employer even though the damages are recovered in an action for breach of contract or in any other action.
(4) Subsection (3) is enacted for the avoidance of doubt and has effect in respect of actions brought before as well as after the commencement of that subsection.
151P No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:151F A court may not award damages to a person contrary to this Division.
(a) the injured worker, or
(b) a parent, spouse, brother, sister or child of the injured 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 illness and not merely a normal emotional or cultural grief reaction.
13 Because the claim made by the appellant was for nervous shock, it is necessary also to have regard to s.4 of the Law Reform (Miscellaneous Provisions) Act 1944, which is in the following terms:
- 4(1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by:
(a) a parent or the spouse of the person so killed, injured or put in peril; or
(b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family.
(2) Where an action is brought by a member of the family of any person so killed, injured or put in peril in respect of liability for injury arising wholly or in part from mental or nervous shock sustained by the plaintiff as aforesaid and claims have been made against or are apprehended by the defendant at the suit of other members of the family of such person in respect of liability arising by operation of subsection (1) out of the same act, neglect or default the defendant may apply to the Court in which the action is brought and that Court may thereupon stay any proceedings pending at the suit of any such other member of the family arising out of the same act, neglect or default and may proceed in such manner and subject to such regulations as to making members of the family of such person parties to the action as to who is to have the carriage of the action and as to the exclusion of any member of the family who does not come in within a certain time as the Court thinks just.
(3) Where any application under subsection (2) is made the action shall be for the benefit of such members of the family of the person so killed, injured or put in peril as are joined by the Court as plaintiffs pursuant to such application and the Court may give such damages as it may think proportioned to the injury resulting to the persons joined as plaintiffs respectively, and the amounts so recovered after deducting the costs not recovered from the defendant shall be divided amongst the persons joined as plaintiffs in such shares as the Court finds and directs.
(3A) Where any case to which subsection (3) applies is tried by a judge sitting with a jury, the jury shall find the shares of damages and the judge shall direct in accordance with the finding.
(4) Any action in respect of a liability arising by operation of subsection (1) shall be taken in the Supreme Court or the District Court.
(5) In this section:
"Member of the family" means the spouse, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used.
"Parent" includes father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another.
"Child" includes son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis.
"Spouse" means:
(a) a husband or wife, or
(b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984,
but where more than one person would so qualify as a spouse, means only the last person so to qualify.
14 One issue dealt with by the trial judge was whether or not s.151P of the Workers’ Compensation Act displaces the operation of s.4 of the Law Reform (Miscellaneous Provisions) Act, in the case of injured workers, in the sense that it removes the requirement that, in order for a child of an injured or deceased parent to recover for nervous shock, the parent must be killed or injured or put in peril in the sight or hearing of the child. The trial judge held that s.151P did not have that effect, but merely provided limits on damages that can be awarded for psychological or psychiatric injury.
15 Another issue which arose in relation to the children’s claims was whether they were barred by s.4 of the Law Reform (Miscellaneous Provisions) Act, because the deceased was not killed or injured or put into peril in the sight or hearing of any of them. The trial judge held that the children’s claims were barred in this way. In effect, the trial judge held that s.4 displaced the common law on the subject, substituting a reasonably clear statutory test for the unclear common law test dependent inter alia on foreseeability. Accordingly, the trial judge dismissed the children’s claim.
16 The trial judge dealt with the widow’s claim, in the light of s.4 of the Law Reform (Miscellaneous Provisions) Act and s.151P of the Workers’ Compensation Act. He considered the evidence as to the widow’s psychological condition and affectation by the accident and by the news she received of it. His ultimate finding was that she had not suffered any demonstrable psychological or psychiatric illness caused by mental reaction to news of the deceased’s accident and death. Accordingly, he dismissed the widow’s claim.
ISSUES ON APPEAL
17 In relation to the children’s claims, the first issue on appeal was whether the trial judge was correct in holding that s.151P of the Workers Compensation Act did not displace the requirement of s.4 of the Law Reform (Miscellaneous Provisions) Act that the death of the deceased take place in the sight or hearing of the children: the appellants’ contention was that in effect it provided an independent basis for recovery of damages for psychological or psychiatric illness.
18 The second issue in relation to the children’s claim was whether the trial judge was correct in holding that s.4 of the Law Reform (Miscellaneous Provisions) Act excluded the possibility of any claim by the children on the basis of the common law.
19 A third issue argued on appeal in relation to the children’s claim, although not clearly raised either by the Notice of Appeal or by any Notice of Contention, was whether, in the event that s.4 did not exclude the possibility of a claim based on common law, the circumstances of this case were such as could possibly give the children a claim at common law.
20 Turning to the widow’s claim, it is convenient to set out the grounds of appeal, which were as follows.
1. His Honour erred in law in holding that the Plaintiffs’ claims depended not only upon the Plaintiffs satisfying the statutory criteria of entitlement in s151P of the Workers Compensation Act 1987 (NSW) but also upon:
(a) in the case brought by Mrs Kristine Gifford, satisfaction of the statutory qualifying elements in s4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW);
(b) proof of nervous shock, in the sense of psychological injury or psychiatric illness caused by the mental or emotional impact of the sudden perception made by each Plaintiff at the time of the accident or during its immediate aftermath.
2. In any event, in the case brought by Mrs Kristine Gifford, His Honour erred in law in reaching inconsistent conclusions as to the occurrence or non-occurrence of "nervous shock" in that His Honour:
(a) found that Mrs Gifford, when informed of the deceased's death, "was shocked and distressed" and was "off work for 2 weeks because of her distress" (Judgment p3.9);
(b) found that "Mrs Gifford did suffer shock and distress when the news of the deceased's death was reported to her on the day of the accident" (Judgment pp9.9-10.1);
(c) found that the 3 children (Darren, Kelly and Mathew Gifford) were informed of the death at their home at Woolloomooloo, and in the presence of Mrs Gifford, later on the day of the accident and "They too were understandably shocked and distressed at the news" (Judgment pp3.9-4.1);
(d) accepted the evidence of Dr Shand that Mrs Gifford's continuing bereavement was not caused by shock from news of the deceased's accidental death (Judgment pp21.7-22.9).
3. In the case brought by Mrs Kristine Gifford, His Honour erred in misconceiving the facts by holding that Dr Canaris' evidence was “unsatisfactory" because of an inconsistency between:
(a) his evidence that Mrs Gifford's "ruminations" about her late husband, which had been characteristic of grief, had become less frequent and that Mrs Gifford’s situation with her partner has significantly improved, and
(b) Mrs Gifford's report to Dr Canaris that "I do not think a day goes by without my thinking about him" (the deceased) together with Dr Canaris' view that "life continues to cause significant sadness which is a daily pre-occupation for her. Grief that has persisted this long is unmistakably pathological." (Judgment pp26.7-26.9).
4. In the case brought by Mrs Kristine Gifford, His Honour further erred in discounting or rejecting Dr Canaris' evidence on the grounds that Dr Canaris failed to recognise that long-term grief should be analysed in terms of specific diagnostic descriptions set out in "DSM-III-R" (now DSM-IV) before it is termed "pathological" in that there was no evidence to justify such a basis for discounting or rejecting his evidence.
5. In the case brought by Mrs Kristine Gifford, His Honour erred in law in reasoning that the duration of a grief reaction could not be taken as proof that a pathological condition had developed which represented demonstrable psychological or psychiatric illness, and if such was a factual conclusion rather than a legal proposition, in reaching a conclusion of fact which was wrong by being unsupported by the evidence.
7. In the case brought by Mrs Kristine Gifford, His Honour erred in law in failing to consider whether there was compensable injury arising from a combination of:6. In the case brought by Mrs Kristine Gifford, His Honour erred in law in acting upon the basis that a grief reaction which continues was incapable of satisfying any requirement for proof of a recognisable psychological or psychiatric omission and if such was a factual conclusion rather than a legal proposition, in reaching a conclusion of fact which was wrong by being unsupported by the evidence.
(a) the effect of shock from news of the deceased's accident, and
(b) the effect of her sense of guilt over the relationship with the deceased and her inner feelings about the ambiguity of the preceding personal relationships in which she had been involved.
21 It will be seen that her appeal raised the same question concerning s.151P as the children’s appeal.
22 The second issued raised by the widow’s appeal was whether, as a matter of law, there needed to be proof of nervous shock, in the sense of psychological injury or psychiatric illness caused by the mental or emotional impact of sudden perception by the widow at the time of the accident or during its immediate aftermath.
23 The third issue raised in the widow’s appeal was that concerning Grounds 2-7 of the Grounds of Appeal, being essentially alleged interrelated errors of fact and law by the trial judge.
24 I will deal in turn with the three issues raised in the children’s appeal, and then with the second and third issues raised in the widow’s appeal.
section 151p
Submissions
25 Mr. Gross QC for the appellants submitted that the correct interpretation of s.151P was that it re-established the right to a common law action, and was an independent source of rights. It defined the circumstances for recovery by a child of an injured or deceased worker as being “a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction”. If those circumstances were established, togehter with a breach of duty of care to the worker, as contemplated by s.151E, then the child was entitled to recover. Mr. Gross referred to State of New South Wales v. Seedsman [2000] NSWCA 119, in support of the proposition that the liability for damages under s.151P was not restricted to circumstances where the general law would have provided damages for nervous shock.
Decision
26 In my opinion, the case of Seedsman has no application to the present case. In relation to an employer’s duty to provide a safe system of work to an employee and protect that employee from reasonably foreseeable risks, the common law would not have required the occurrence of nervous shock, as that expression is used in the cases, before permitting recovery by such an employee. Similarly, s.151P makes no such requirement in the case of psychological or psychiatric injury to an employee, as distinct from the case where such injury is occasioned to an employee’s relative.
27 In my opinion, s.151P is not a source of rights to damages, but merely places limitations on what damages may be recovered when there is available a cause of action based on common law principles. Section 151P does not provide that there will be damages awarded in the circumstances it refers to, merely that no damages will be awarded unless those circumstances exist.
28 Accordingly, in my opinion, the trial judge was correct on this issue.
LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1944 (SECTION 4)
Background
29 In deciding that s.4 in effect displaced the common law, the trial judge referred to a number of case.
30 He first referred to Scala v. Mammolitti (1965) 114 CLR 153, in particular to a statement by Taylor, J. to the effect that s.4 “operates to substitute for the test of foreseeability a concrete test - was the initial victim killed, injured or put in peril within the sight or hearing of such member of the family?” He next referred to Mt. Isa Mines Limited v. Pusey (1970) 125 CLR 383, and especially to the statement by Windeyer, J. at 407-8 that s.4 has the following effect:
- ... a right of action for nervous shock resulting from a happening, tortiously caused, in which a member of the plaintiff’s family was killed, injured or put in peril, can be founded on the fact of the relationship of the plaintiff to the person so killed, injured or put in peril. If the plaintiff who suffered the shock is a parent, as defined, or husband or wife of such person, that is enough. If the plaintiff is some other member of the family, as defined, that is enough if the event which caused the shock happened within his sight or hearing.
31 Next, he referred to Jaensch v. Coffey (1984) 155 CLR 549, and particularly to statements in that case made by Murphy, J. (at 556-7) and Deane, J. (at 602 and 611). At the latter page, Deane, J. said:
- It is unnecessary to consider the question whether such legislative provisions, where they are to be found, should be construed as intended to have a limiting, as well as an ameliorating effect on the common law.
32 The trial judge then referred to Wilks v. Haines (1991) Aust.Torts Rep. 81-078, where Loveday, J. expressed the view that s.4 did not supersede or limit the common law, but merely extended it. The trial judge referred to Chiaverini v. Hockey (1993) Aust.Torts Rep. 81-223, and also Coates v. Government Insurance Office (NSW) (1995) 36 NSWLR 1. The trial judge referred to the dissenting judgment of Kirby, P. in the latter case, where Kirby, P. stated that s.4 did not exhaustively define the right of persons to recover for nervous shock.
33 The trial judge expressed the view that the plain and ordinary meaning of s.4 was such as to indicate an intention to displace the common law, and that this was supported by the dicta of the High Court justices to whom I have referred. He considered that otherwise s.4(1)(b) would have no function to perform at all. He considered that s.4(1)(b) amounted to a legislative compromise, substituting a reasonably certain test for an uncertain common law test. The trial judge disagreed with the decision of Quayle v. State of New South Wales (1995) Aust.Tort.Rep. 81-367, in which Hoskings, DCJ upheld claims by the mother and three brothers of an Aboriginal man who had hanged himself in a police cell.
34 Mr. McKenzie for the respondent submitted that the trial judge was correct in his decision and reasons.
Decision
35 In my opinion, s.4 of the Law Reform (Miscellaneous Provisions) Act 1944 does not have the effect of excluding any liability at common law that may otherwise exist, arising out of a duty of care owed to persons other than the immediate victims of negligent acts. What s.4 says, in effect, is that where a person by negligence has caused the death, injury or peril of another person, the former person is liable for injury from mental or nervous shock sustained by certain other defined classes of people. It does not expressly say that there should be no liability in respect of mental or nervous shock sustained by persons other than the immediate victim, unless the conditions laid down by that section are satisfied. I do not think any of the statements relied on by the trial judge support a different view, except possibly the statement by Taylor, J. that this legislative provision substituted a statutory test for the common law test. However, I do not think that was a carefully chosen expression, intended to convey that the common law position was displaced. Furthermore, in addition to the view expressed by Kirby, P. in Coates, there has recently been a further decision by this Court supporting the view that the common law is not excluded: see FAI General Insurance Co. Ltd. v. Lucre (2000) 50 NSWLR 261 at 263-4, per Mason, P.
36 One other consideration which persuades me that the common law is not displaced is that s.4 starts with a breach of duty of care to one person, and then extends liability for that breach to include a liability to certain other persons: it does not provide that there is any duty of care to those other persons. In so far as the common law provides for liability to persons other than the immediate victim, it does so by means of a duty of care owed directly to those persons, rather than a liability built upon a breach of duty to the primary victim.
37 For those reasons, in my opinion the trial judge was incorrect on this aspect of the case. However, that does not necessarily mean that the children’s appeal should succeed. It is necessary to consider whether they do or could have a claim at common law.
CHILDREN’S CLAIM AT COMMON LAW
Background
38 Because of his decision on the previous question, the trial judge did not make detailed findings as to the existence of any psychological or psychiatric injury to the children or as to the manner of causation or nature and extent of any such injury. If it were necessary for there to be such findings in order to determine whether or not they can succeed in their claim, it would be necessary to send their case back for retrial. It was the respondent’s contention that, notwithstanding the horrific nature of the accident and the death of the deceased, the deceased’s close and loving familial relationship with his children, and the very short lapse of time before the children received news of the event, no findings that the trial judge could have made as to any psychological or psychiatric injury to the children or the manner of causation or nature or extent of any such injury, could have entitled the children to recover damages. The basis of this contention was that mental injury from mere hearing of bad news could not ground liability at common law.
Submissions
39 Mr. Gross submitted that, in terms of foreseeability and causation of injury, there was no justification for drawing a distinction, in the case of a close and loving family member, between perceiving a shocking occurrence and being told about it. He referred to an article by H. Jeff (1983) 99 LQR 100 at 104 and 107, in which it was asserted that “there is medical support for the view that, in some cases, hearing of the loss of a loved one in an accident could prompt an ever stronger reaction than seeing it, given the human mind’s propensity for constructing an image of the event more gruesome than the reality”, and that the critical factor in determining whether a person suffers a recognisable psychiatric illness “is almost invariably the nature of his relationship with the victim”.
Decision
40 However, at present authority is strongly against the view that there can be liability at common law for damages for mental injury to a person who is told about even an horrific accident or injury to a loved one but does not at any time actually perceive the incident or its aftermath.
41 In Mt. Isa Mines Ltd. v. Pusey (1970) 125 CLR 383 at 407, Windeyer, J. said this:
- In particular I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. If the sole cause of shock be what is told or read of some happening, then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news.
42 And in Jaensch v. Coffey (1983-4) 155 CLR 549 at 567, Brennan, J. said this:
- A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon suffice, the bearers of sad tidings, able to foresee the depressing effects of what they have to impart, might be held liable as tortfeasers.
43 These and other authorities, in particular some English authorities, were discussed by the Full Court of the Supreme Court of Western Australia, particularly by Ipp, J. in Annetts v. Australian Stations Pty. Ltd. (2000) 23 WAR 35, especially at 60-61, where Ipp, J. concluded that such authorities should be followed. Malcolm, CJ and Pigeon, J concurred in that view.
44 I agree that these authorities should be followed. It may be the case that substantial mental injury can be caused to a person by that person merely hearing of a loved one being killed, injured or put in peril, without having perceived the incident or its aftermath; and it may be that the nature of the relationship with the primary victim is a more significant factor in determining whether such injury occurs than the manner of learning about the incident; and it may also be the case that it is therefore foreseeable that loved ones will be caused mental injury by merely hearing about an incident. However, quite apart from the strength of the authorities, I do not think this is sufficient reason to extend the duty of care or liability at common law to persons who are merely told about an incident, however horrific the incident and however close the personal relationship.
45 It is not possible to compensate everyone who is injured, and the law must draw lines. It should be kept in mind that the civil standard of proof on the balance of probabilities necessarily means that damages may sometimes be awarded for injuries which did not occur or have been exaggerated, and/or against persons whose actions did not cause them. It is difficult enough for courts to resolve conflicting evidence in relation to claimed physical injuries, and harder still to do so in relation to claimed mental injuries to persons actually perceiving a horrific event. It is or would be much harder again to resolve conflicting evidence in relation to mental injuries claimed to arise from merely hearing about horrific events. Floodgates arguments are often criticised, but there are limits to the compensation that the community can afford to pay, particularly in relation to claimed injuries the existence and causation of which are so difficult to determine with assurance. In my opinion, it is reasonable to maintain the line that has been drawn in the cases.
46 There may be some room for development in relation to what amounts to perception of an incident, just as there has been some development so as to include perception of the close aftermath of an incident and not merely perception of the incident itself. Some cases have required direct unaided perception; but there may be a question as to how far liability extends, for example, where sound is amplified or events are seen by those present portrayed live on a large television screen, and so on. It is not necessary to consider that question in this case.
47 Mr. Gross submitted that the question is not a pure question of law, being not purely a question as to duty of care, particularly since it is not known in advance who will perceive an event or its immediate aftermath; so that the matter really goes to remoteness of damage, which is a question of fact that would need to be determined by the trial judge. In Annetts, Ipp, J. at 51 suggested that “Where damages are claimed for negligence causing psychiatric injury, there should only be one basic enquiry that incorporates an investigation into all the elements of negligence. In such a case those elements are dependent on each other and can only be defined by reference to each other”.
48 However, I note that in that case the matter was decided against the plaintiff on a preliminary question of law; and in my opinion, although actual causation may enter into consideration of the matter, cases like this can be approached by considering whether there is a relevant duty of care. Although the membership of classes of secondary victims to whom duties of care may be owed cannot be ascertained until after the event, the description of the classes can be identified before the event; and in cases such as the present, the duty of care is relevantly owed only to persons who perceive the event or its aftermath.
49 Accordingly, in my opinion, the children’s appeal fails.
- WIDOW’S APPEAL
Background
50 At common law, the widow is in no different a position from the children, because she did not perceive the accident or its aftermath. However, because she was the spouse of the deceased, she can rely on s.4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 to the effect that the respondent would be liable to her for “injury arising wholly or in part from mental or nervous shock sustained by her”, even though the deceased was not killed, injured or put in peril within her sight or hearing, as was required for the children under s.4(1)(b). However, in order to recover she must establish “injury arising wholly or in part from mental or nervous shock” within s.4(1), and she also has to satisfy the test in s.151P of the Workers’ Compensation Act, and establish that she has suffered some “demonstrable psychological or psychiatric illness”.
51 To satisfy these requirements, the trial judge held that she had to establish a recognisable or demonstrable psychological or psychiatric illness, amounting to more than grief, sadness or bereavement: see Swan v. Williams (Demolition) Pty. Ltd. (1987) 9 NSWLR 172 at 184-5 and 193-4, and Coates v. GIO (NSW) (1995) 21 MVR 169 at 170. He also held that the widow had to show that this illness was caused by shock or a sudden sensory perception, and that it was insufficient that it be caused by the experience of coping with the sequelae of the incident: see Campbelltown City Council v. McKay (1989) 15 NSWLR 501 at 503, 507-8; Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400, 401; Jaensch v. Coffey (1984) 155 CLR 549 at 565; and Chiaverini v. Hockey (1993) Aust. Tort Reps. 81-223.
52 Then, having expressed a preference for the respondent’s experts Dr. Dyball and Dr. Shand over experts called by the appellant, his Honour reached the following conclusions:
- I find that for some years after the death of the deceased Mrs. Gifford suffered grief from the shock of his death. I find, however, that that grief was a normal grief reaction. I find that the length of the litigation process helped to prolong that grief. I find also that since prior to the deceased’s death Mrs. Gifford has suffered secret inner feelings of guilt about her separation from her late husband. I find that this has not affected her ability to maintain a normal and adequate quality of life both in her work and family environments. My finding of ultimate fact is that she has not suffered any demonstrable psychological or psychiatric illness caused by mental reaction to news of the deceased’s accident and death.
Submissions
53 Mr. Gross submitted that the trial judge erred in holding that the psychiatric condition necessary to satisfy the claim for nervous shock must be spontaneous and simultaneous with the precipitating events and not susceptible of change or exacerbation: such a view, he submitted, was simplistic and not supported by the evidence or decided cases. In any event, Mr. Gross submitted, the trial judge found that the extent of the widow’s grieving was caused by a combination of guilt feelings about her separation from the deceased, from which she suffered prior to the deceased’s death, and the happening and news of the deceased’s death. In those circumstances, the shock of the bereavement operated on these existing feelings to cause the abnormal reaction of the widow. Indeed, Mr. Gross submitted, the trial judge erred in law in failing to consider whether there was compensable injury arising from the combination of the shock of the news and the widow’s sense of guilt over the relationship with the deceased and her inner feelings about the ambiguity of her relationship with him.
54 Mr. Gross also relied on a number of alleged errors of fact.
55 In the first place, Mr. Gross submitted that the trial judge had found that the widow, when informed of the death of the deceased, was “shocked and distressed”; and that she did “suffer shock and distress” when the news of the deceased’s death was reported to her on the day of the accident. Such findings were inconsistent with his subsequent finding that she did not suffer nervous shock.
56 Next, Mr. Gross submitted that the trial judge said he accepted the evidence of Dr. Shand, yet, contrary to that evidence, he found that the widow’s grief reaction was normal; and also found that no demonstrable psychological or psychiatric illness had been caused by mental reaction to the news of the deceased’s accident and death. Dr. Shand had given evidence that the widow did have an abnormal grief reaction, right from the start; and that this was a psychiatric disorder. Furthermore, he conceded that the circumstances were such as could have “a powerful impact in relation to nervous shock”, and that the circumstances of the widow’s pre-accident guilt feelings could have predisposed her to “having a greater element of shock”.
57 Next, Mr. Gross submitted that there were errors of fact in relation to the widow’s expert Dr. Canaris. First, the trial judge’s finding that there was inconsistency in Dr. Canaris’ evidence was in error, because the only inconsistency was an alleged inconsistency in a history given by the widow; and in any event, properly understood, there was no real inconsistency there. Mr. Gross submitted that the trial judge also erred in holding that Dr. Canaris did not diagnose a demonstrable psychological or psychiatric illness, because contrary to the terms of DSM-III-R, there was no more specific illness diagnosed. DSM-III-R was not in fact in evidence, and in any event, properly understood, it did not establish that there was no demonstrable psychiatric or psychological illness in an abnormal grief reaction unless it was categorised as some more specific illness.
58 Accordingly, he submitted, the Court of Appeal should either re-consider the matter, or send it back for further hearing. If the Court did re-consider the matter, it should do so on the basis that it was sufficient that the demonstrable psychological or psychiatric illness develop gradually from the time of the incident or news of the incident: it did not matter that there was no obvious impact at the time. Mr. Gross pointed out that Dr. Shand’s evidence was that the widow’s grief reaction was abnormal from the start; and he submitted that a distinction sought to be drawn by Dr. Shand between an abnormal grief reaction arising from shock, and such a reaction arising from guilt feelings, was not a valid distinction.
Decision
59 In my opinion, for the widow to succeed in her claim under s.4 of the Law Reform (Miscellaneous Provisions) Act 1944 for damages for mental injury, it was necessary for her to prove that it was caused by shock, in the sense of a sudden sensory perception of something which was so distressing that the perception affronted or insulted her mind: this was the view of this Court in Chiaverini, and I see no reason to depart from it. The trial judge’s decision on this question was correct.
60 In my opinion, no error is shown by way of inconsistency between a finding that the widow was shocked and distressed by news of the accident, and a failure to find mental or nervous shock in this sense. In my opinion, the factual finding to which I have referred was simply a factual finding as to a natural reaction on hearing news of this kind, and not a finding of mental or nervous shock as that expression is explained in cases such as Chiaverini.
61 There was more substance in the submissions concerning Dr. Shand. Dr. Shand did give evidence that the widow’s grief reaction was abnormal, was abnormal from the start, and did amount to a psychiatric disorder. However, although the trial judge said he accepted Dr. Shand’s evidence, I do not think that this means that he accepted every element of Dr. Shand’s evidence; and the trial judge also said he accepted Dr. Dyball’s evidence, which was to the effect that there was no abnormal grief reaction. The trial judge did advert to the respect in which Dr. Shand said the reaction was abnormal, so it does not appear that he misunderstood Dr. Shand’s evidence or overlooked or ignored it. One might have expected that this element of conflict between Dr. Shand and Dr. Dyball would have been addressed explicitly; but it is not necessary that reasons be given for every detail of a decision.
62 Mr. Gross’s submission concerning no demonstrable psychological or psychiatric illness is associated with the submissions concerning Dr. Canaris, and I will turn now to those submissions.
63 In my opinion, there was no error in the trial judge’s comment about inconsistency concerning Dr. Canaris. In setting out the history given by the widow, Dr. Canaris noted “Over the last few years they have become less frequent and now recollections of Barry might manifest themselves every six months or so”, and also “Even now ‘I don’t think a day goes by without my thinking about him’”. In my opinion, there is some inconsistency in that history, and it should not have passed without comment: I think Dr. Canaris should have attempted to reconcile the two statements, or else given his opinion as to the significance of the two apparently conflicting statements. I think there is more force in the submission about the trial judge’s reliance on DSM-III-R: that was not in evidence in such a way as to give it evidentiary force, and in any event, I do not think on its true construction it is inconsistent with an abnormal grief reaction being a demonstrable psychological or psychiatric illness, even though it is not given a more specific classification.
64 In my opinion, the trial judge’s reasoning and findings can fairly be understood as consistent with the following analysis:
- (a) Prior to the accident, the widow had guilt feelings concerning her relationship with the deceased.
(b) News of the accident caused a grieving response in a normal way; but the grieving continued well beyond a normal time, because of the complication of the guilt feelings and other factors, such as not viewing the body and not having counselling, as well as the drawn-out litigation.
(c) That explains Dr. Shand’s view that the grief reaction was abnormal; though not his oral evidence in cross-examination that it was abnormal from the start, and amounted to a psychiatric disorder.
(d) However, Dr. Dyball’s evidence was to the contrary, and Dr. Shand was clearly of the view that the abnormal grief reaction was not caused by shock.
(e) The normal causation of a grieving response, which then fails to resolve in a normal way because of other factors, is not an injury caused by sudden sensory perception of something so distressing that the mind is affronted or distressed.
(f) Such a grieving response is in any event more reasonably regarded as a normal response extended and enhanced by these factors, rather than a demonstrable psychological or psychiatric illness.
Such an analysis is plainly supportable on the evidence.
65 I do not think errors have been shown which vitiate the trial judge’s ultimate conclusions. The trial judge was entitled to accept Dr. Dyball. The trial judge was also entitled to accept Dr. Shand, in so far as his evidence was that the abnormal grief reaction of the widow was not caused by shock, but rather was caused by grieving exacerbated by other factors. In my opinion, that is a distinction which can be validly drawn in at least some cases, and could validly be drawn in this case.
66 I do not think a ground is made out to interfere with the trial judge’s decision, and in my opinion the widow’s appeal should also be dismissed.
67 Although the circumstances of the present case do not require me to do so, I would like to make some additional observations about s.4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944, in particular concerning the question of whether s.4(1)(a) allows a person to recover for psychiatric injury associated with the death, injury or perilous situation of their child or spouse, in circumstances where the common law would not allow recovery.
68 Recovery under s.4(1)(a) is possible where injury is caused by “mental or nervous shock”, or in other words, by “a sudden sensory perception of something so distressing that the perception affronts or assaults the mind”: see Campbelltown City Council v. Mackay (1989) 15 NSWLR 501 at 503, 507 and Chiaverini v. Hockey [1993] Aust. Torts Reports 81-223. To determine the range of circumstances in which s.4(1)(a) would permit recovery, it is therefore necessary to consider what is meant by a “sudden sensory perception …”. It is well accepted that “the accumulation over a period of time of more gradual assaults on the nervous system” is a phenomenon which falls outside the scope of the expression “sudden sensory perception …”: see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400, 401, Campbelltown City Council v. Mackay (1989) 15 NSWLR 501 at 503, 507 and Chiaverini v. Hockey [1993] Aust. Torts Reports 81-223. What is not clear from the authorities, however, is whether a “sudden sensory perception …” is something which can be experienced by a person in respect of a loved one’s injury or death or perilous situation, in circumstances where the person is neither directly exposed to, nor involved in the immediate aftermath of, their loved one’s injury or death or perilous situation.
69 Where a claim is brought under s.4(1)(a), and the circumstances are such that the claimant parent or spouse perceived neither their loved one’s situation nor its immediate aftermath, the question of whether direct perception of the situation or its immediate aftermath is a necessary requirement of the expression “sudden sensory perception … ” becomes critical. If it is a necessary requirement, then it is difficult to see how s.4(1)(a) could provide any avenue for recovery beyond what the common law already offers: although s.4(1)(a) does not specifically require that the parent or spouse perceive the situation or its immediate aftermath, such a precondition would in any event be imposed through the requirement that injury be caused by “mental or nervous shock”.
70 The view that direct perception of the situation or its immediate aftermath is necessary for “mental or nervous shock” draws some support from Brennan, J’s judgment in Jaensch v Coffey (1984) 155 CLR 549. There, Brennan, J (at 567) drew a distinction between psychiatric injury induced by ‘shock’ on one hand, and that induced by ‘mere knowledge of a distressing fact’, on the other. Subsequent statements which might support this first approach are for the most part based on Brennan, J’s comment, and are unnecessary to cite here.
71 However, in my opinion the better view is that there can be mental or nervous shock without direct perception of the situation itself or its immediate aftermath. This view draws some support in pronouncements about the limits of common law compensation. For example, implicit in Windeyer J’s statement in Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 407, that “I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events” (at 407) is the acknowledgment that “shock” can occur in the absence of direct perception of a loved one’s situation or its immediate aftermath. Similarly, in Jaensch v Coffey, Deane, J (at 608-609) pointed out that although the injury would not be compensable at common law, it was possible that a mother, on being told on the telephone that her husband and children had all just been killed, might suffer shock.
72 More explicitly, in Coates v Government Insurance Office (NSW) (1995) 36 NSWLR 1, Kirby, P suggested (at 10) that it was foreseeable that “young, loving children, at least, of a particular person seriously injured or killed will shortly be informed of the injuries or death and may … suffer … a serious instance of ‘nervous shock’”; and in Pham v Lawson (1997) 68 SASR 124, Lander, J with whom Bollen, J agreed (at 125) said at 149 ,“I think it is sufficiently clear enough that the appellant suffered a nervous shock. She did so when she was told of the death of her daughter. She started screaming and running around the house”. Kneipp, J in Petrie v Dowling [1992] 1 Qd. R. 284 stated (at 286) that “ … the plaintiff’s shock was caused solely by something said to her and not by things seen or by a combination of things seen and heard.”
73 In my opinion, the preferable view of “shock” or “sudden sensory perception …” is one which does not categorically exclude the reaction experienced by somebody who merely hears the news of a loved ones’ death, injury or peril. Earlier in my judgment (at para 44) I expressed the view that … “(i)t may be the case that substantial mental injury can be caused to a person by that person merely hearing of a loved one being killed, injured or put in peril, without having perceived the incident or its aftermath.” It is also conceivable, in my opinion, that such mental injury might be caused by “mental or nervous shock” within the meaning of s.4(1)(a). Accordingly, a spouse or parent who suffers mental injury in this way, who will have no recourse at common law, may nevertheless be able to recover under s.4(1)(a).
74 However, for reasons I have given, no error is shown in the trial judge’s decision that the widow did not suffer injury from mental or nervous shock in this case.
CONCLUSION
75 The order I propose in each case is that the appeal be dismissed with costs.
76 IPP AJA: I agree with the conclusion of Hodgson JA that the claims of the widow and children fail and with his Honour’s reasons in coming to this conclusion. I also agree with the orders proposed by Hodgson JA. I express no opinion as to the additional observations made by his Honour about s.4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 concerning the effect of s 4(1)(a) in circumstances where the common law would not allow recovery.
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