Gifford v Strang Patrick Stevedoring Pty Ltd - [2001] NSWCA 175

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 2001

PARTIES :

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 cases

JUDGMENT 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 respondent

SOLICITORS: G.H. Healey & Co. Sydney for all appellants
Gillis Delaney Brown, Sydney for respondent

CATCHWORDS: 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. 284

DECISION: 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

GIFFORD & ORS V. STRANG PATRICK STEVEDORING PTY. LTD.

JUDGMENT

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.…

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.

Keep reading for free

Create a free CaseChat account to read Gifford v Strang Patrick Stevedoring Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWCA 175
Decision Date: 14 June 2001

CaseChat Overview and Summary

The case of *Gifford v Strang Patrick Stevedoring Pty Ltd* concerned a claim for damages for mental injury brought by the widow and children of a worker who died in a horrific accident. The worker's employer, Strang Patrick Stevedoring Pty Ltd, was the defendant. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the plaintiffs had suffered compensable mental or nervous shock, whether section 151P of the *Workers Compensation Act 1987* (NSW) provided a cause of action for damages for mental injury, and whether the *Law Reform (Miscellaneous Provisions) Act 1944* (NSW) excluded common law liability in this context. The court also had to determine whether the children of the deceased worker possessed a common law claim for damages.

The Court of Appeal held that the plaintiffs had established a claim for mental injury. The court reasoned that the employer owed a duty of care to the worker's family to avoid causing them psychiatric injury, and that this duty extended to the circumstances of the notification of the worker's death. The court found that the *Workers Compensation Act* did not preclude common law claims for damages for psychiatric injury, and that the *Law Reform (Miscellaneous Provisions) Act* did not exclude such common law liability. The court affirmed that the children had a valid common law claim.

The appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs

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. [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 2001
PARTIES :	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 cases
JUDGMENT 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 respondent
SOLICITORS:	G.H. Healey & Co. Sydney for all appellants Gillis Delaney Brown, Sydney for respondent
CATCHWORDS:	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. 284
DECISION:	Appeals dismissed with costs