Janelle Ratcliffe v Kyriacoula Mareney

[2006] NSWDC 41

CITATION:	Janelle Ratcliffe v Kyriacoula Mareney [2006] NSWDC 41
HEARING DATE(S):	27/07/2006
EX TEMPORE JUDGMENT DATE:	07/27/2006
JURISDICTION:	Civil
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Verdict and Judgment for the plaintiff against the defendant; Defendant pay plaintiff's costs on the ordinary basis
CATCHWORDS:	"Nervous shock" claim by daughter of pedestrian killed whilst crossing street in pedestrian crossing - Motor Accidents Compensation Act 1999 - Civil Liability Act 2002 - Construction of s 61 of MACA - Whether plaintiff a person of normal fortitude
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002
CASES CITED:	Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100
PARTIES:	Janelle Ratcliffe (Plaintiff) Kyriacoula Mareney (Defendant)
FILE NUMBER(S):	5020/05
COUNSEL:	Mr S Dixon (Plaintiff) Mr K Kelleher (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Ms Janelle Ratcliffe, brings an action for damages for “nervous shock” arising out of the death of her late mother on 5 June 2002.

2 On 3 June 2002, the plaintiff’s mother was crossing Darling Street, Balmain near its intersection with Elliott Street on a marked pedestrian crossing. The defendant drove her vehicle in such a fashion as to collide with the plaintiff’s mother whilst the plaintiff’s mother was in the pedestrian crossing, knocking her down and causing her serious injury. The plaintiff’s mother was transported to the Royal Prince Alfred Hospital by ambulance. She died on 5 June 2002.

3 There is no dispute that the defendant was a tortfeasor in that she tortiously injured the plaintiff’s mother. There is no allegation of any contributory negligence on the part of the plaintiff’s mother. The plaintiff was advised of the accident which had befallen her mother by a telephone call from her sister. The plaintiff was quite unaware of the extent of the injury that her mother had sustained. She thought that her mother had broken her leg or something like that when she was advised of her mother’s being hit in the pedestriancrossing. When the plaintiff and her sister arrived at the Royal Prince Alfred Hospital they were taken by the doctor to a “quiet room” where the plaintiff and her sister were told that their mother would be unlikely to survive the injuries she sustained. They were joined by a priest who, one would infer, had been called to minister to the plaintiff’s mother. The priest conferred with the plaintiff and her sister and gave them a blessing. The plaintiff and her sister were then asked whether they would like to see their mother and the inference to be drawn is that they were advised that it may not be a pleasant sight. The plaintiff wished to see her mother. She told me that she sustained “major shock” when she saw her mother. She said that she was unrecognisable. Her face was severely swollen and bruised. It had been bandaged. There was blood seeping from the plaintiff’s mother’s eyes and ears. It is clear from the medical histories that the plaintiff’s mother was comatose. She clearly had sustained a major brain injury. The medical histories suggest that the plaintiff’s mother was taken to the operating theatre where surgery was practised to try to relieve intracranial pressure due to brain haemorrhage. The plaintiff’s mother was put on a life support unit. On the morning of 5 June, the second day after the motor vehicle accident, the plaintiff’s mother’s blood pressure was dropping alarmingly, and the plaintiff and her siblings were advised that their mother would not survive and that it was necessary for the life support system to be turned off. The plaintiff had to make that excruciating decision with her siblings and then was present when the life support machine was turned off and their mother died. The plaintiff told me that she was, to say the least, very upset.

4 On the day of her mother’s death she visited her general practitioner. According to the general practitioner’s manuscript report she presented to him with “intense horror and helplessness”. The general practitioner made a diagnosis of post-traumatic stress disorder and offered the plaintiff, eventually, hypnotherapy and referral to a psychiatrist, Dr Cornelius Greenway. The date of the mother’s funeral has not been given in evidence but it would have been within a few days of 5 July. Two weeks after her mother’s death, the plaintiff, who was pregnant at the time, miscarried. The plaintiff believes that the miscarriage was due to the psychological stress she suffered as a result of her mother’s death and she is supported in that regard by her general practitioner who thought that the miscarriage was most probably due to the stress she was suffering from the death of her mother.

5 In the next six months the plaintiff again fell pregnant twice and again miscarried twice. There is no evidence of a gynaecological nature put before me other than the admission by the plaintiff that she had a laparoscopy which was said to reveal no internal abnormality, and no doubt that only fortified the plaintiff in her view that her miscarriages were due to some form of psychiatric or psychological upset or distress.

6 After her mother’s death the plaintiff did not work for approximately six months, returning to work in December 2002 to her pre-injury job as an on-call casual advanced childcare worker at a nursery at Forest Lodge. The evidence suggests the plaintiff cared for young children, that is, children who might be otherwise described as babies. When the plaintiff returned to work there is no suggestion that she suffered any diminution of earnings. She claims loss of earnings for a period of six months. It is agreed between the parties that her nett weekly earnings should be seen as $250 per week.

7 The issues tendered for my determination are firstly whether the defendant owed a duty of care to the plaintiff; secondly, whether the plaintiff suffered from any recognised psychiatric illness as required by s 31 of the Civil Liability Act 2002 and, in that regard, whether a report of Dr Derek Lovell of 1 December 2004 and two certificates under s 61 of the Motor Accidents Compensation Act 1999 attached to the report conclusively establish that there was no recognised psychiatric illness.

8 The next item for my determination is whether the plaintiff was in fact rendered incapable of working during the six-month period because of her condition, and there are a few minor problems relating to quantum.

9 In order to understand the arguments as to the duty of care and as to whether there was a recognised psychiatric illness, it is necessary to delve into the plaintiff’s background. The plaintiff was candid about that in chief. She was asked whether she had any problems during her high school years. She attended Balmain High School. She admitted that there was bitching and fighting between friends but she did not need to see any doctor because of any problems that she was having. At the age of seventeen, which was approximately the time she left school, she formed a relationship with a man called Tony, which the plaintiff described as “rocky”. Tony was abusive from time to time. On occasions, the plaintiff took anti-depressants. She might take them for a few weeks but up for a month was the longest period that she took such medication. By her relationship with Tony the plaintiff has a child Ashleigh, who is currently fourteen years of age. The relationship broke up in 1995. The plaintiff admitted that led to a period of emotional turmoil. She said that she was not happy about the ending of the relationship but she was able to cope. She was unable to remember seeing her general practitioner and being prescribed anti-depressants. She said that, if she did obtain them, she would have only taken them for a short while.

10 In 1996 the plaintiff commenced a new relationship with a man known as Jason. She described Jason as a “genuine and nice fellow”. That relationship persists. It is somewhat unusual in that the plaintiff and Jason do not live together. The plaintiff has two children by Jason: Logan, who is shortly to turn two years old, and Coby, who is only four weeks old.

11 After ending the relationship with Tony, the plaintiff has been forced to deal with him from time to time because of their common parenting of Ashleigh. There have been “issues” between the plaintiff and Tony, and also between Tony and Jason. The plaintiff described one episode when Tony abused Jason and attempted to “trash” the house and which the medical reports indicate required the plaintiff to call the police and prefer charges against Tony. The plaintiff told me that she was prescribed anti-depressants, and that was in mid-March of 2002, some three months prior to her mother’s death. The plaintiff’s general practitioner confirms that he prescribed Zoloft to the plaintiff on 14 March 2002 for “depression”. The plaintiff told me that she took those anti-depressants for about two weeks or a month at most. She told me that she had stopped taking Zoloft and was feeling well, that she was functioning normally and happy immediately prior to her mother’s death. In that regard, the plaintiff has been challenged. The challenge was based on the manuscript report of Dr Wijeratne, the plaintiff’s general practitioner, which is expressed in the following terms:

“Janelle had been under treatment with Zoloft for depression since 14 March 2002, but she suffered from post-traumatic stress disorder when seen by me on 5 June 02...”

12 Based on his reading of that history, Mr Kelleher, for the defendant put to the plaintiff that she remained in receipt of Zoloft between 14 March 2002 and 5 June2002, and that she remained on that medication after her mother’s unfortunate death. The plaintiff would not accede to that at all and said at most she only took Zoloft for a month. The evidence is that when the plaintiff is prescribed Zoloft that the prescription lasts for one month and then she must buy further medication. The plaintiff told me that Zoloft had initially been prescribed for her in her mid to late twenties. The plaintiff was born on 30 April 1970. She is now thirty-six years of age. Her mid to late twenties would take one back to a period between 1995 and 1999. That is well before 2002.

13 Whether the plaintiff was on Zoloft for the whole of the period from 14 March 2002 to 5 June 2002 could be ascertained by calling Dr Wijeratne or by tendering his notes which might, for example, show attendances upon him in April and May 2002 and his prescribing Zoloft. However, they were not tendered, nor was the doctor called. It is noteworthy that in a report of 31 March 2004 by Dr Maxine Walden, a consultant psychiatrist retained by the defendant’s insurer, that Dr Walden expressed the view that “The notes of her treating practitioner would be useful in further delineating the nature of her psychiatric disorder over the years” but they were never required by the defendant on subpoena.

14 The plaintiff gave a history to Dr Morse, qualified by the plaintiff’s solicitor, who saw her on or about 27 October 2003. That history is that her GP originally prescribed Zoloft for her when she had a bad relationship but she was not taking it at the time of the accident. That is consistent with what the plaintiff told me. The report of Dr Walden contains this history:

“Ms Ratcliffe stated that she had been on antidepressant medication intermittently over the years since the break-up of the relationship with her daughter’s father. She stated that she felt very angry and that the medication had helped with this. She did not think she was on medication at the time of her mother’s death, but accepted Dr Wijeratne’s records which showed that anti-depressant medication had been commenced (Sertraline) on 14 March 2002. She is vague as to why she may have commenced antidepressants at that point. She said that it is probably because she was angry and felt as if she had premenstrual tension all the time.”

15 The plaintiff was challenged about that history and she conceded quite frankly that she was reluctant to inform Dr Walden as to the circumstances which led to the prescription of Zoloft on 14 March 2002, that is the unfortunate behaviour of Tony towards the plaintiff and Jason when the police needed to be called.

16 It was not suggested to Ms Ratcliffe that she sought to hide her earlier treatment for a psychiatric condition to Dr Lovell, who, in any event, was well aware of it because of his having earlier viewed the reports of Dr Morse and Dr Walden. In those circumstances, I accept the evidence of the plaintiff that she had been prescribed Zoloft in March 2002 and that she did not take it for any period longer than a month, and that she did not need to take that drug or any similar medication for two months or so prior to her mother’s death. Furthermore, the challenge to the plaintiff was probably based on a misreading of Dr Wijeratne’s report. It is noteworthy that the tense of the verb used in the first sentence which I quoted above was the pluperfect tense and not the imperfect. The doctor said, “Janelle had been under treatment”, and did not say, “Janelle was under treatment”. The use of the pluperfect tense clearly indicates that, as far as the doctor was concerned, that treatment had finished.

17 It is abundantly clear that the plaintiff had longstanding emotional/psychiatric/psychological problems prior to the death of her mother, requiring treatment. It required her not only to visit her general practitioner and his diagnosing of psychotropic medication, it also involved the attendance by the plaintiff upon a psychiatrist in Rowntree Street, Rozelle, Dr Hans Knutzeilus. However, the plaintiff was not cross-examined about her attendances upon that psychiatrist, nor was any report from him or his notes put into evidence. One can only assume that they were not subpoenaed just like the records of the general practitioner were not subpoenaed.

18 As is very common in cases of this nature, I am provided with a number of differential diagnoses. The initial diagnosis proffered by the plaintiff’s general practitioner, Dr Wijeratne was, as I have said, post-traumatic stress disorder. In a medical certificate of 17 March 2003, Dr Wijeratne makes a number of diagnoses. They are these:

“Major depression.
Panic disorder with panic attacks.
Post-traumatic stress disorder.
Over-consumption of alcohol.”

19 The latter is not the diagnosis of any psychiatric or other illness, it is merely an opinion of the doctor as to the amount of alcohol that the plaintiff consumed. The plaintiff was quite frank in admitting that in the six month period following her mother’s death she drank more alcohol than she normally did and would consume up to one bottle of wine per night. However, it is clear that the general practitioner diagnoses three psychiatric conditions. I am very fond of applying Ockham’s Razor in cases of this nature. Why would I postulate three psychiatric conditions when only one would explain all the symptoms? As I earlier indicated, the plaintiff was referred by Dr Wijeratne to Dr Cornelius Greenway at Drummoyne. Dr Greenway diagnosed “an acute stress disorder”. The plaintiff saw Dr Greenway on three or four occasions. He continued the prescription of Zoloft.

20 On or about 27 October 2003, the plaintiff saw Dr Morse. His diagnosis was that initially the plaintiff had “major depression with melancholic features” and that the plaintiff was then suffering from “major depression, partially treated with residual features”.

21 When the plaintiff saw Dr Maxine Walden on 18 March 2004 she said that the plaintiff’s history was suggestive of Dysthymia. She went on to make the comment about the need to view the plaintiff’s treating doctor’s notes. Dr Walden went on to say that she did not think there was evidence that the plaintiff had developed a psychiatric disorder in response to her mother’s death or that the grief reaction could be considered pathological or abnormal. Her view was that, if the plaintiff had Dysthymia, it pre-existed the death of her mother.

22 As I read his report, Dr Lovell said the same as Dr Walden. In paragraph 13 of his report, Dr Lovell said, “There is a long history of dysthymia and intermittent substance abuse”. As far as the death of the plaintiff’s mother was concerned, he thought she was suffering from a normal grief reaction. He thought that the plaintiff’s reactions and responses to bereavement “to date” did not constitute a recognised psychiatric illness.

23 At this stage I should deal with the argument based on the construction of s 61 of the Motor Accidents Compensation Act 1999. Dr Lovell produced two formal certificates pursuant to s 61(1) of that Act. The first certificate is headed “The degree of permanent impairment of the injured person as a result of the psychiatric or psychological injury caused by the motor accident.” The substance of that certificate is this:

“The psychiatric/psychological injuries sustained give rise to no diagnosable psychiatric condition and no permanent impairment .”

24 The second certificate is headed “Whether an injury has stabilised”. The substance of that certificate is this:

“There is no assessable psychiatric or psychological impairment as a result of the subject motor vehicle accident.”

25 Each certificate is dated 1 December 2004. As a matter of interpretation, it is important to note that the substance of each certificate is in the present tense, not the past tense, or any past tense.

26 Section 61(1) of the MACA requires the medical assessor or assessors to whom a medical dispute is referred to give a certificate as to the matters referred for assessment. The next two subsections are these:

“(2) Any such certificate as to:

(a)whether the degree of permanent impairment of the injured person is greater than 10 per cent, or

(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or

(c) whether an injury has stabilised,

is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.

(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.”

27 The argument raised by the defendant is that, as the first certificate said there was “no diagnosable psychiatric condition”, it is conclusive, and because that opinion was necessary to the finding of no permanent impairment. Again, that would require me to read the certificate as if the verb “give” were the verb “gave”. Furthermore, it is not a necessary ingredient to the finding of “no permanent impairment”, which is the binding matter. A person, for example, might have had in the past a psychiatric illness and recovered from it and, in those circumstances, there would be “no permanent impairment”. Likewise, the second certificate is also expressed in the present tense rather than any past tense, and really, in any event, avoids the question asked because it is unnecessary to answer it. In my view, the statement that the injuries sustained “give rise to no diagnosable psychiatric condition does not provide conclusive evidence that there was no diagnosable psychiatric condition. However, in the circumstances, the opinion of Professor Lovell must be taken into evidence along with all the other evidence.

28 The weight of the medical evidence clearly persuades me that there was a pre-existing psychiatric condition. That is the opinion expressed by Dr Morse and also by Dr Walden and also by Dr Lovell. It ties in with the plaintiff’s having earlier received treatment from her general practitioner for psychological or psychiatric problems and also having other earlier treatment. I am persuaded that, because of the pre-existing problem or problems, the plaintiff was vulnerable to developing psychiatric problems upon the event of something such as her mother’s death.

29 Dr Morse said this in his report:

“She describes a previous emotional disorder after the break-up with the father of her daughter. This was a cause of distress to her and she had treatment for this depression but recovered from it. There is no doubt that any episode of depression makes one more likely to a further episode. However, I believe that the death of her mother and the subsequent effect on her life that is the cause of the psychobiological change which is Major Depression.”

30 The doctor makes the point that the major depressive illness, which he diagnosed, was partially treated by the time he saw her, and that gradual recovery would occur with the passage of time. That is what the plaintiff herself told me.

31 As Dr Morse said, major depression is a psychobiological change. The biological change is a chemical change in the brain. It is not induced by an external stressor. However, psychiatrists do accept in some cases that an episode or a set of symptoms of the condition can be generated by an external stressor. I believe that that is what Dr Morse is referring to on this occasion. If the plaintiff had a major depressive condition one would expect there to be episodes when she was symptomatic and then she would recover from symptoms and then there might be another onset of symptoms due perhaps to some external stressor or perhaps due to the underlying condition. Essentially, as the doctor said, it is an episodic condition. If the plaintiff had a major depressive illness it would explain many of the things that happened to her prior to her mother’s death, at the time of her mother’s death, and to things that have occurred to her subsequently. The other thing to bear in mind in accepting that the plaintiff’s earlier problems can be related to major depression is that Dr Wijeratne, in his manuscript report of 13 May 2003, points out that he had earlier treated the plaintiff for “depression”. It is not clear whether he was referring to merely the symptoms of depression or was making a diagnosis of “depression”, although the modern diagnosis must either be “major Depression” or “depressive illness”, and not “depression”.

32 The alternative diagnosis is of dysthymia. That is that offered by both Dr Walden and Dr Lovell. Those two doctors tell me very little about that condition, but the inference to be drawn from Dr Lovell’s report of a “long history of dysthymia” seems to suggest the condition is not episodic but has remained over a long period of time. That is not consistent with the plaintiff’s evidence of which I have very little hesitation in accepting, indeed, I have no hesitation in accepting. I therefore accept that the plaintiff’s condition prior to her mother’s death when she was symptomatic was due to symptoms of major depression, and the symptoms that she suffered at the time of her mother’s death were due to major depression. It is to be noted that not only is “depression” used as a diagnosis, it is also a description of symptoms. That it existed as a symptom following upon the plaintiff’s mother’s death can be gleaned from Dr Wijeratne’s certificate of 17 March 2003. When asked to list his clinical findings, Dr Wijeratne wrote:

“Hypersomnia (oversleeping) / overeating / depressed mood / poor concentration / anhedonia / weight gain / panic attacks / had a miscarriage two weeks after death of mother/over consumption of alcohol”.

33 The symptoms recorded by Dr Greenway in his report such as mood swings and being quite tearful and being socially withdrawn are consistent with depression. When Dr Morse examined the plaintiff, he noted that she was mildly tense, tearful on occasions, and obviously depressed.

34 When the plaintiff saw Dr Walden the plaintiff’s presentation was one of being angry and upset when speaking about her mother’s death, but otherwise her mood was normally reactive with no sustained mood of anxiety or depression. When Dr Lovell examined the plaintiff he said that her presentation was not consistent with major depression as described by Dr Morse. That may well have been the case. There was more than a year between when the plaintiff saw Dr Morse and when she saw Dr Lovell. She may well have recovered during that one year. Indeed, Dr Morse suggested recovery and one could infer from the findings made by Dr Walden that the plaintiff had recovered by that time. In those circumstances, it is hardly surprising that the plaintiff’s presentation to Dr Lovell a year after she had seen Dr Morse was not consistent with major depression. The episode had gone away.

35 Dr Walden, at page 10 of his report, criticised the diagnosis of post-traumatic stress disorder by Dr Wijeratne. I accept Dr Walden’s criticisms. They are quite valid. She also criticised the diagnosis of Dr Greenway of acute stress disorder, and those criticisms are also valid. They reinforce, in my view, the correctness of the diagnosis of an episode of major depression.

36 Accepting, as I do, that the plaintiff had major depression prior to the accident on an intermittent basis, it is clear that the plaintiff was vulnerable to a psychiatric or psychological stressor such as the death of her parent. That causes the defendant, of course, to rely upon the “person of normal fortitude” rule, which is now enshrined in s 32(1) of the Civil Liability Act 2002. Subs (1) is in the following terms:

“A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.”

37 Subs (2) provides that, for the purposes of applying s 32 in respect of pure mental harm, the circumstances of the case include the nature of the relationship between the plaintiff and any person killed. Subsections (3) and (4) of s 32 are currently irrelevant.

38 The submission essentially of the defendant is the plaintiff was not a person of “normal fortitude”. That may well be the case, but it does not mean that the defendant did not owe a duty of care to the plaintiff even if she were a person of normal fortitude. One would think that, if one owed a duty of care in the circumstances of a case such as this to the plaintiff, one would also owe it to her siblings. If the plaintiff’s sister developed a psychiatric illness as the result of the death of her mother she could recover because she was a person of normal fortitude, but if the plaintiff developed a psychiatric illness she could not recover because she was not a person of normal fortitude. It appears to me that that paradox shows the fallacy in the defendant’s argument. If a duty of care is owed to a person of normal fortitude, the plaintiff, if she falls within that class of persons, is entitled to recover even if she had some vulnerability provided that a person of normal fortitude in the same class would in any event suffer a psychiatric illness. However, the matter can be looked at in the light of authority, especially when one has regard to the terms of s32(2) para (c) which requires me to consider the nature of the relationship between the plaintiff and the victim of the accident. I refer in particular to the decision of the High Court of Australia in Gifford v Strang Patrick Stevedoring Pty Limited (2003) 198 ALR 100; [2003] HCA 33. The stevedoring company employed Gifford, who was killed in an accident in the course of his employment. The employer admitted negligence. The plaintiffs were the children of Gifford. They did not witness the accident but were informed of their father’s death later that day. They were shocked and distressed at the news. Their claim failed in this Court and in the Court of Appeal. Involved was consideration of s 4(1) para (b) of the Law Reform (Miscellaneous Provisions) Act 1944. At [4] Gleeson CJ pointed out that the Court of Appeal reached the same ultimate conclusion as the trial judge upon the ground that, because the children had merely been told about the incident, and did not directly perceive either the event that resulted in the death of their father or its aftermath, there was no duty of care at common law. That decision of the Court of Appeal was held to be incorrect.

39 Commencing at [10] the Chief Justice said this:

“In its capacity as an employer, the respondent was under a duty of care towards the father of the appellants. The question is whether, additionally, it was under a duty of care which required it to have in contemplation psychiatric injury to the children of its employee, and to guard against such injury. The relationship of parent and child is important in two respects. First, it goes to the foreseeability of the injury. That a child of the age of the various appellants might suffer psychiatric injury in consequence of learning, on the day, of a terrible and fatal injury to his or her father, is not beyond the “common experience of mankind”. (The fact that all three of the victim’s children are said to have suffered psychiatric injury might give rise to some questions for the experts on a new trial, but is not presently relevant). Secondly, it bears upon the reasonableness of recognising a duty on the part of the respondent. If it is reasonable to require any person to have in contemplation the risk of psychiatric injury to another, then it is reasonable to require an employer to have in contemplation the children of an employee.

In Jensch v Coffey, Gibbs CJ said:

‘Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery.’

“Not all children have a close and intimate relationship with their parents; and it may be that, even when parents are killed in sudden and tragic circumstances, most grieving children do not suffer psychiatric injury. However, as a class, children form an obvious category of people who might be expected to be at the risk of the kind of injury in question. When there is a class of person, such as children, who are recognised, by the law, and by society, as being ordinarily in a relationship of natural love and affection with another class, their parents, then it is not unreasonable to require that the employer of the person in the second class, whose acts or omissions place an employee at risk of physical injury, should also have in contemplation the risk of consequent psychiatric injury to a member of the first class.”

40 In my view, any motorists must have regard to pedestrians crossing at pedestrian crossings. It is foreseeable that a lady might be a mother or grandmother. It is foreseeable that a man crossing the street might be a father or grandfather, a husband or lover, and that a motorist ought have such people in contemplation when driving on the highway. In the same case, McHugh J said commencing at [48]:

“It is the closeness and affection of the relationship - rather than the legal status of the relationship - which is relevant in determining whether a duty is owed to the person suffering psychiatric harm. The relationship between two friends who have lived together for many years may be closer and more loving than that of two siblings. There is no policy justification for preventing a claim for nervous shock by a person who is not a family member but who has a close and loving relationship with the person harmed or put in peril. In a claim for nervous shock at common law, the reasonable foresight of the defendant extends to all of those with whom the victim has or had a close and loving relationship.

Whether such a relationship exists in a particular case will often be a matter of evidence although, as Lord Keith pointed out in the above passage, in some cases the nature of the relationship may be such that it may be presumed. Among such relationships are those of parent and child. As section 4 of the Law Reform (Miscellaneous Provisions) Act recognises, the children of a person who is killed, injured or put in peril are especially likely to suffer nervous shock upon learning that their parent has suffered harm. Ordinarily, the love and affection between a parent and a child is such that there is a real risk that the child may suffer mental injury on being informed of the harm to, or of observing the suffering of, the parent. The ordinary relationship between parent and child is so close and loving that a wrongdoer cannot reasonably disregard the risk that the child will suffer mental injury on being informed that his or her parent has been harmed or put in peril as a result of wrongdoers negligence.”

41 Of course the Civil Liability Act now limits the persons who might claim for nervous shock but that does not prevent children claiming for nervous shock. As I understand what fell from their Honours in the High Court of Australia, the mere relationship of parent and child between a victim and a plaintiff causes a defendant to owe a duty of care.

42 In any event even if I be wrong in that, here there are very extraordinary circumstances regarding the suffering by the plaintiff of her illness. She was advised of the motor accident but given little detail. She was expecting some injuries such as a broken bone. When she arrived at hospital she was given the extremely bad news that her mother’s injuries were likely to be fatal. She then sought, as no doubt any child would, to see her parent, to be confronted by a very shocking and very distressing sight. A mother who was unrecognisable, a person that she found it very hard to accept was her mother. She then had to endure her mother’s condition for two days until it was necessary for her with her two siblings to decide whether the life support machine should be turned off and she was physically present when that was done and when her mother died. These were shocking and distressful circumstances which clearly in my view a tortfeasor or a reasonable man ought foresee if he so negligently drives his vehicle that he runs down pedestrians in pedestrian crossings.

43 The force of a speeding metal car of great weight against the human body can be extremely catastrophic, especially if the body is thrown and hits a large, hard immovable surface such as a roadway or a wall. Gory injuries often result from collisions between vehicles and pedestrians. It is foreseeable by any motorist that if he does collide with a pedestrian the pedestrian could be grievously injured and die and that the close relatives such as the children of the victim might be extremely upset and injured as a result of seeing the effect of traumatic injuries on their loved one.

44 In my view the duty of care in this case exists. Even if the plaintiff were not vulnerable to psychiatric illness it appears to me that the circumstances are such that a person of normal fortitude would succumb to a psychiatric illness.

45 Because of the certificate of Dr Lovell of no permanent impairment the plaintiff cannot succeed in recovering any general damages. I accept that the plaintiff was incapacitated as a result of major depression from pursuing her normal occupation for six months following her mother’s death. Especially is that so when she had to deal with young children and their parents who had obviously come to drop them off and collect them and with whom she must make contact if anything went wrong during the day. One would not expect to have a gloomy, unhappy childcare worker for an extended period in a nursery such as the plaintiff worked in.

46 The plaintiff is unable because of certain provisions in the Motor Accident’s Compensation Act to recover her first week of economic loss. She has accordingly lost twenty-five weeks income at the rate of $250 a week. That amounts to the sum of $6,250. Out of pocket expenses have been agreed in the sum of $486. However the defendant would not agree as to any amount for the prescription of Zoloft. The reason why is clear from my earlier discussion. There was an issue as to nexus between the giving of that prescription and the injury here in question.

47 It appears to me to be inevitable that I find the plaintiff needed to take Zoloft as the result of the effects of her mother’s unfortunate death until at least the time that she was seen by Dr Morse but ceasing some time before she saw Dr Walden when it is clear that there was no longer any signs of an episode of a major depression. Doing the best I can that appear to me to be about the end of 2003. That indicates that there would have been eighteen months during which the plaintiff had Zoloft at $3.70 per month for eighteen months, comprising the sum of $66.60.

48 The plaintiff also claims for subsequent prescriptions of Zoloft and for subsequent medical attention and perhaps for some intermittent loss of time. I am afraid the plaintiff’s claim in that regard must fail. It is in the essence of my finding that an episode of major depression was caused by the plaintiff’s seeing and observing her mother dying in hospital on 3 May 2006 and because of her death on that day. Essential to my finding on the out-of-pocket expenses is that episode ceased by the end of 2003. Any need for treatment thereafter or any loss of income thereafter might be due to a further episode of major depression or arising of its own momentum or arising because of some subsequent stressor.

49 Here there are suggestions of a number of other stressors. They include the unfortunate running down by the plaintiff of her sister when she was backing a car in her sister’s driveway, the plaintiff’s brother’s addiction to narcotic drugs and the distress that has caused the whole family, the fact that the plaintiff’s sister was held up whilst in a TAB at gunpoint and subsequently developed post traumatic stress disorder, the fact that the plaintiff has had difficulties with Logan since his birth and indeed had to leave court early today because of an illness of one of her children and it has been mooted by Dr Lovell that the plaintiff may have a postnatal depression.

50 There are many other stressors in the plaintiff’s life that after the end of 2003 it can no longer be seen that the effective cause of the plaintiff’s need for treatment or any loss of earnings the like was the effects of learning of her mother’s injury and death.

51 Furthermore on the question of economic loss the evidence before me is the plaintiff stopped working in December 2003 because she was pregnant with Logan. He has remained off work since that time because of her duties as a mother and again during her recent pregnancy and as I said earlier her youngest child is now only four weeks old. There was no evidence by the plaintiff that she wished to return to the workforce either in the short term or the long term.

52 I have inquired of counsel for the parties if any further reasons for judgment are required. I am told that none is so required. For those reasons I give verdict and judgment for the plaintiff against the defendant for $6,802.60. Is there any argument about costs?

53 The plaintiff seeks the usual order for costs against the defendant. The defendant resists that application on the basis that the proceedings could have been commenced in the Local Court and the amount recovered was extremely small, namely $6,802.60. To complicate matters the plaintiff made an offer of settlement on 24 July 2006 to settle the matter for the sum of $5,500 plus costs. That offer remained open until 4pm yesterday afternoon. Under rule 42.14 the plaintiff is entitled to an order against the defendant for the plaintiff’s costs in respect of her claim assessed on the ordinary basis up to the time from which those costs are to be assessed on an indemnity basis and assessed on an indemnity basis if the offer was made before the first day of the trial as from the beginning of the day following the day on which the offer was made and the offer was made on or after the first day of the trial as from 11am on the day following the day on which the offer was made.

54 Accordingly the rules provide that the plaintiff is entitled to indemnity costs from 25 July 2006. However, sub rule (2) gives the court a discretion. The discretion is to order otherwise. The cases decided thus far on this issue have been conveniently collected in Ritchie’s Uniform Civil Procedure NSW p 8781 and at almost 5pm I am not going to troll through the case law. The fact that there was only a minor amount between the offer made and the sum recovered is irrelevant.

55 However one authority establishes that a successful plaintiff may be refused an order for indemnity costs where the costs incurred are wholly disproportionate to the judgment amount.

56 The amount of costs that will be recovered in my view will far exceed the amount of the judgment. That is because it appears to me that the provisions of the Legal Profession Act 2004 Part 3.2 Division 9 relating to the maximum costs in personal injuries damages matters does not apply because these proceedings are governed by the Motor Accident’s Compensation Act 1999. Counsel have been unable to show me any limitation on legal costs for proceedings under that Act. Therefore the amount of an ordinary costs order far outstrips the extent of the judgment debt.

57 In my view there ought be some proportionality between the verdict recovered and the costs awarded. To award indemnity costs for yesterday and today in my view would cause such an inequity or disproportionality between the amount recovered and the costs payable that it is appropriate in the circumstances to refuse indemnity costs. Accordingly the order is that the defendant pay the plaintiff’s costs on the ordinary basis.

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