Hoinville-Wiggins v Connelly

[1999] NSWCA 263

CITATION:	Hoinville-Wiggins v Connelly [1999] NSWCA 263
FILE NUMBER(S):	CA 40360/98
HEARING DATE(S):	20 July 1999
JUDGMENT DATE:	27 July 1999
PARTIES :	Lee Hoinville-Wiggins - Claimant Daphne Connelly - Opponent
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Giles JA at 6

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	101/97 (Port Macquarie)
LOWER COURT JUDICIAL OFFICER:	Cooper DCJ

COUNSEL:	D F Rofe QC & M J Walsh - Claimant C G Gee QC & D J Russell - Opponent
SOLICITORS:	Falvey Byrne Associates, Port Macquarie - Claimant Phillips Fox, Sydney - Opponent
CATCHWORDS:	MOTOR ACCIDENT - nervous shock - limitation on recovery of damages by Motor Accidents Act s 77 - claimant in school classroom when pedestrian struck on road outside - did not see or know of it until told - thereafter rendered first aid - not at scene of accident at the time it occurred - no damages.
DECISION:	Time for applying for leave to appeal extended to 18 December 1998, but leave to appeal refused; the appeal filed purportedly as of right struck out; and the claimant to pay the opponent's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40360/98
DC101/97
(Port Macquarie)

MASON P
STEIN JA
GILES JA

Tuesday 27 July 1999

HOINVILLE-WIGGINS v CONNELLY

JUDGMENT

1    MASON P: I agree with Giles JA.

2    STEIN JA: I agree with Giles JA and with the orders be proposes.

3 While the court would have great sympathy for the claimant for what she suffered, the application for leave to appeal has to be determined on the proper construction of s 77 of the Motor Accidents Act 1988. The facts are clear. The relevant motor accident was the collision between the deceased pedestrian and the driver. When the motor accident took place, the claimant was inside a classroom in the school. She was not present at the scene of the accident when it occurred (s 77 (a)(ii)). The claimant did not suffer injury in the motor accident (s 77(a)).

4 I do not accept that ‘accident’ referred to in s 77 includes the intervention of the claimant (however laudable) after the collision occurred.

5    Cooper DCJ was correct in his construction of the provision.

6    GILES JA: The claimant wished to bring proceedings for damages for psychological or psychiatric injury suffered in connection with a motor accident occurring on 14 July 1993. She was out of time, and applied for leave to commence proceedings pursuant to s 52(4) of the Motor Accidents Act 1988 (“the Act”). On 8 May 1998 Cooper DCJ held that the facts disclosed in her proposed statement of claim did not, as a matter of law, entitle her to damages, and dismissed her application.

7 The claimant filed a notice of appeal without appointment, not setting out any grounds of appeal, on 1 June 1998. She filed a notice of appeal with appointment, setting out grounds of appeal, on 27 August 1998. The appeal purportedly as of right was incompetent, see s 101(2)(e) of the Supreme Court Act 1970, Hall v Nominal Defendant (1966) 117 CLR 423 and Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374. On 18 December 1998 she filed a summons claiming leave to appeal from the dismissal of her application by Cooper DCJ and an extension of time for claiming the leave to appeal.

8    Full argument on the substance of the proposed appeal was heard in conjunction with the application for leave to appeal.

The facts

9    Although his Honour dealt with the matter on the basis of the allegations in the proposed statement of claim, he had evidence from the claimant to which the parties referred both before his Honour and before this Court.

10    It was alleged that the opponent struck a pedestrian, Mrs Suzanne Shipton, when driving a motor vehicle along Wisemans Ferry Road, Spencer, and that the collision between the motor vehicle and the pedestrian was caused by the opponent’s negligence. The collision occurred outside the Spencer Primary School, to which the opponent had been travelling to collect her child. It was then alleged -

“The plaintiff then attended the scene of the accident and administered mouth to mouth recitation to Suzanne Shipton for approximately 50 minutes. During that period of time, and whilst the plaintiff was administering CPR to Suzanne Shipton, Suzanne Shipton died.”

11    The evidence supplemented this last allegation. The claimant was the principal of the Spencer Primary School. She was inside a classroom with her class. A Ms Marilyn Kelly came into the classroom in an emotional state, saying “They’ve killed the old lady. Call the ambulance”. The claimant ushered her children away from the window and set them to reading, then telephoned for the ambulance. While doing so she asked Ms Kelly what had happened, and was told that an old lady had been run over and killed. She looked out the window and saw that the person described was unattended. She went out to the roadway. On her way she passed the opponent, whom she knew. The opponent was in an emotional state, and the claimant paused to calm her. The claimant went to the pedestrian. There was no pulse. She then thought she detected a pulse. She began to give the pedestrian CPR. Without further description in these reasons of what must have been distressing circumstances, the claimant continued to administer CPR, until after some time it became apparent that the pedestrian was dead.

12    In the proposed statement of claim it was alleged that it was reasonably foreseeable that those witnessing the accident or attending the scene of the accident would thereafter suffer nervous shock, and that the claimant -

“ … suffered a recognisable psychiatric illness, namely nervous shock, as a result of hearing the accident, attending the scene of the accident and administering CPR to the said Suzanne Shipton.”

The Act

There was a motor accident within the meaning of the Act, that is, an accident caused by the fault of the driver of a motor vehicle in the use or operation of the vehicle which caused the death of or injury to a person. Any nervous shock suffered by the claimant was an injury within the meaning of the Act, since the definition of injury was that it meant personal or bodily injury and included, amongst other things, psychological or psychiatric injury.

13 By s 69 of the Act, Pt 6 of the Act applied to and in respect of the award of damages relating to the death of or injury to a person caused by the fault of the driver of a motor vehicle in the use or operation of the vehicle. Amongst the provisions in Pt 6 was s 77 -

“77. No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of:
(a) a person who suffered injury in the accident and who:
(i) was the driver of or a passenger in or on a vehicle involved in the accident, or
(ii) was, when the accident occurred, present at the scene of the accident, or
(b) a parent, spouse, brother, sister or child of the injured person 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 injury and not merely a normal emotional or cultural grief reaction.”

14 The Act’s objects included abolition of the TransCover scheme, “to re-instate a common law based scheme under which damages can only be awarded after a finding of negligence”, and “by the scheme under this Act to reduce the cost of the former common law based scheme by limiting benefits for non-economic loss in the case of relatively minor injuries” (s 2A). By s 68A, the objects of Pt 6 were -

“(a) to control the amount of damages that may be awarded to a claimant for the purpose of ensuring that the scheme under this Act is affordable, and
(b) to achieve this control by the deliberate strategy of placing the burden of ensuring affordability on those who suffer relatively minor injuries so that sufficient funds are available to more fully compensate those who suffer more severe injuries”

15    Section 70 provided that a court shall not award damages to a person in respect of a motor accident contrary to the Part. The following sections regulated the award of damages in various respects, not only in relation to non-economic loss or relatively minor injuries. Section 70A limited damages for future economic loss. Section 71 prescribed a discount rate for some future economic loss. Section 72 limited damages referable to domestic care. Section 72A provided for damages referable to respite care. Section 73 limited the running of interest on damages. Sections 74 and 75 stated how contributory negligence should be dealt with in certain respects, including by lessening its effect in compensation to relative claims. Section 76 made specific provision in relation to voluntary assumption of risk. Only in s 79 (and s 79A although not applying to this accident because it occurred before 26 September 1995) were damages for non-economic loss limited. Section 81 provided for structured settlements.

16 It is as plain as can be that Pt 6 of the Act did more than the statements of the objects indicated, and that the damages which a court could award differed from so-called common law damages in many ways. It is unnecessary to place any reliance on the statement in the second reading speech for the Motor Accidents Bill (Hansard 7 December 1988, p 4578) that “Part 6 is the first step towards a general revision of the law of damages for personal injuries. A number of important modifications are introduced by the Act …”. The popular statement that the Act restored common law damages is not accurate, first because even before the TransCover scheme common law damages had been changed by statute, hence no doubt the reference to the former common law based scheme, and secondly because even the former common law based scheme was itself changed by the Act, hence the references to “the scheme under this Act”.

17 Section 77 of the Act, on which the dismissal of the claimant’s application turned, was part of the scheme under the Act.

The reasons of Cooper DCJ

18 It was common ground before his Honour that the claimant claimed only damages for psychological or psychiatric injury, and that she could not succeed in her claim unless, within the meaning of s 77(a), she was “a person who suffered injury in the accident and who … was, when the accident occurred, present at the scene of the accident”. The claimant argued that the accident was not limited to the actual impact between the opponent’s motor vehicle and the pedestrian, but included the time when the claimant was attending to the pedestrian. His Honour did not accept the argument, saying that the accident began and ended with the impact between the opponent’s motor vehicle and the pedestrian and that it would “strain the meaning of the word ‘accident’ in s 77(a) beyond its clear limits to say that it included first-aid given by the applicant to Suzanne Shipton subsequent to the impact”. Hence his Honour held that the facts disclosed in the proposed statement of claim did not, as a matter of law, entitle the claimant to damages, but he added that, had he held otherwise, he would have granted leave to the claimant pursuant to s 52(4) of the Act.

This appeal

19    There was the same common ground on this appeal. The claimant’s primary argument was as before, and she also presented a subsidiary argument.

(a) The primary argument

20    In Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 it was held that “injury” in s 77(a) was not confined to physical injury, but extended to psychological or psychiatric injury even if unaccompanied by physical injury. Submissions on the common law position in relation to damages for nervous shock were regarded as unhelpful, because s 77 did not purport to confer a cause of action but limited the common law position, and it was said that the question was one of construction of s 77.

21 The claimant in the present case also sought support in the common law position in relation to damages for nervous shock, to the extent of submitting that s 77 was intended to codify the common law position. I see no reason for so concluding, and regard to the provisions to which I have referred negates any such conclusion. In this case also regard to the common law position is unhelpful, and the question is one of construction of s 77.

22 Section 77 states the extent of entitlement to damages for psychological or psychiatric injury. As relevant to the claimant, it is necessary that -

(i) her psychological or psychiatric injury was suffered in the accident; and
(ii) she was present at the scene of the accident when the accident occurred.

23    Close connection in space and time is required. The words “when the accident occurred” mean that it is not enough that she came to the scene of the accident after the accident had occurred, as might have happened in “rescuer” cases at common law. The claimant argued that the accident included what she described as its aftermath, and extended to her attendance to minister to the pedestrian. For the notion of aftermath she referred to Benson v Lee (1972) VR 879 at 880, McLoughlin v O’Brian (1983) AC 410 at 422, and Jaensch v Coffey (1984) 155 CLR 549 at 606-8. The passages were to do with recovery at common law of damages for nervous shock suffered not only by a plaintiff who saw or heard the accident, but also by a plaintiff who saw or heard events at the scene of the accident after its occurrence or even at a hospital during immediate post-accident treatment. They distinguished between the accident and its aftermath. Section 77 limits this common law position, because the plaintiff must have been present at the scene of the accident and must have been present at the scene of the accident when the accident occurred; the additional requirement that the plaintiff suffer injury in the accident underlines these spatial and temporal requirements. The aftermath was never part of the accident and (at least for the purposes of s 77(a)) seeing or hearing the aftermath no longer founds recover of damages.

24    On the clear wording of the section, I do not think it can be said that any nervous shock suffered by the claimant from her attending to assist the pedestrian can be said to have been suffered in the accident, and in particular I do not think that it can be said that she was present at the scene of the accident when the accident occurred. The claimant’s case in this respect is not assisted, as was argued, if the pedestrian was alive (as shown by the pulse the claimant thought she detected) at an early part of the period of administration of CPR. The accident occurred when the opponent’s motor vehicle struck the pedestrian, whether or not the pedestrian’s death was immediate, and the claimant’s presence in the classroom, unaware of the accident until Ms Kelly told her of it, was not presence at the scene of the accident at that time.

(b) The subsidiary argument

25    It was faintly argued that the claimant’s suffering of nervous shock was itself a motor accident, that is, an accident caused by the fault of the opponent in driving her vehicle causing psychological or psychiatric injury to the claimant. If so, it was said, the claimant suffered injury in the accident and was present at the scene of the accident when it occurred. The argument itself demonstrates its unsoundness. The suffering of injury, necessarily with the sufferer present at the time, is not of itself the motor accident.

26 The claimant submitted that it was necessary only to have an arguable case in order to obtain a grant of leave pursuant to s 52(4) of the Act. Assuming that to be so, I do not think she has an arguable case for recovery of damages for psychological or psychiatric injury: s 77 stands impenetrably in her path. Ordinarily leave to appeal would be refused without reasons. Because the effect of s 77 of the Act may be of general interest, I have thought it appropriate to explain in these reasons why Cooper DCJ came to the correct conclusion.

Costs

27 The claimant submitted that refusal of leave to appeal should not bring the normal costs order, first because it was in the public interest that the effect of s 77 of the Act be clarified in this Court, and secondly because she suffered debilitating injury as a result of going to the assistance of a person in need. I accept that the effect of s 77 of the Act may be of general interest, but the claimant brought her application, and sought leave to appeal, for her own benefit. Her condition deserves sympathy, but I do not think that in law it warrants departure from the ordinary rule as to costs.

Orders

28    I propose that time for applying for leave to appeal be extended to 18 December 1998, but that leave to appeal be refused; the appeal filed purportedly as of right should be struck out; and the claimant should pay the opponent’s costs.

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