Hancock v Nominal Defendant

[2001] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

Hancock v Nominal Defendant [2001] QCA 227

PARTIES:

DAVID JOHN HANCOCK
(plaintiff/respondent)
v
PAUL HARRISON WALLACE
(first defendant)
THE NOMINAL DEFENDANT
(second defendant/appellant)

FILE NO/S:

Appeal No 2634 of 2000
DC No 1170 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2000

JUDGES:

McMurdo P, Davies JA and Byrne J
Separate reasons of each member of the Court, each concurring as to the orders made.

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – COMMON LAW – where respondent’s son was killed by the negligent driving of the first defendant – where respondent was informed of the accident the following morning – where initial uncertainty due to impossibility of visual identification as to whether it was the driver or passenger that had been killed – where respondent’s relationship to his son was very close – where effect on the respondent of the receipt of the news was immediate and serious – whether a person who negligently causes injury or death to another owes a duty of care to a third person not present at the scene of the incident or its aftermath not to cause psychiatric injury to that person in consequence of hearing about it – consideration of reasonable foreseeability and proximity elements – whether policy considerations compel the imposition of the requirement of direct perception of the relevant incident or its immediate aftermath – consideration of elements involved in "sudden sensory perception"

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MENTAL AND NERVOUS SHOCK – COMMON LAW – where respondent awarded damages for psychiatric injury formerly called nervous shock – whether allowance should have been made for the grief which the respondent would ordinarily have suffered and for its consequences

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, considered
Annetts v Australian Stations Pty Ltd (2000) WAR 35, considered
Donaghue v Stevenson [1932] AC 562, referred to
Coates v GIO of New South Wales (1995) 36 NSWLR 1, considered
Jaensch v Coffey (1984) 155 CLR 549, considered
Barnard v Santam BPK (1999) (1) SA 202 (SCA), considered
McLoughlin v O’Brian [1983] 1 AC 410, followed
Morgan v Tame (2000) 49 NSWLR 21, considered
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, referred to
Petrie v Dowling [1992] 1 QdR 661, considered
Pham v Lawson (1997) 68 SASR 357, considered
Reeve v Brisbane City Council [1995] 2 QdR 661, considered

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, considered

COUNSEL:

R J Douglas SC, with K N Wilson for appellant
J W Lee for respondent

SOLICITORS:

O'Shea Corser & Wadley for appellant
Goodfellow & Scott for respondent

1. McMURDO P:  I agree with the reasons for judgment…