Kemp v Lyell McEwin Health Service - [2006] SASC 364

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
KEMP & ORS v LYELL MCEWIN HEALTH SERVICE
[2006] SASC 364
Judgment of The Honourable Justice Debelle
1 December 2006
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER
Negligence – duty of care – psychiatric injury – death of patient at hospital – negligence alleged on part of the hospital – claim for damages by mother, father and brothers of deceased for mental injuries suffered as a consequence – whether hospital owed a duty of care to plaintiffs – appeal allowed.
Magistrates Court Rules r 24; Supreme Court Rules r 25.04, referred to.
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; Licul v Corney (1976) 180 CLR 213; Port of Melbourne Authority v Anshun Ltd (1981) 147 CLR 35; Tame v New South Wales (2002) 211 CLR 317, applied.
Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; Consolidated Gold Mining Areas NL v Enterprise Gold Mines NL (1992) 57 SASR 584; Duke Group Ltd (in liq) v Arthur Young (1991) 4 ACSR 355; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40, considered.

KEMP & ORS v LYELL MCEWIN HEALTH SERVICE
[2006] SASC 364
Magistrates Appeal: Civil

DEBELLE J: This is an appeal from a decision of a magistrate striking out the claims of four plaintiffs in four separate actions against Lyell McEwin Health Service Incorporated. Lyell McEwin Health Service Incorporated operates a public hospital at Elizabeth Vale known as the Lyell McEwin Hospital. For convenience, I will refer to it either as “the Lyell McEwin Hospital” or “the Hospital”.
John and Janet Kemp are the parents of Duane Richard Kemp. Aaron Kemp and Brendon Kemp are his brothers. Each of those persons has instituted an action against the Lyell McEwin Hospital in which each claims damages for mental injuries suffered as a consequence of the death of Duane Kemp who died at the Hospital following chronic rejection of a heart transplant.
In each action, the Hospital applied for an order striking out the statement of claim on the ground that it did not disclose a cause of action. The magistrate allowed the application and struck out each action. The magistrate’s reasons were that the harm suffered by each plaintiff was not reasonably foreseeable by the Hospital so that in the circumstances the Hospital did not owe a duty of care to any of the plaintiffs. Each of the plaintiffs has appealed to this Court from the order striking out each action.
It is to be noticed that the magistrate did not merely strike out the statement of claim in each action. Instead, he struck out each action. Mr Doyle, who appeared for the appellants, contended that each appeal was an appeal from a final order so that the defendants had an appeal as a right. Mr Mills, who appeared for the Hospital, contended that each appeal was interlocutory in nature. A judgment or order is final if it finally determines the rights of the parties: Licul v Corney (1976) 180 CLR 213 per Gibbs J at 225; Port of Melbourne Authority v Anshun Ltd (1981) 147 CLR 35 at 38; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248. The question whether the judgment or order finally determines the rights of the parties is to be determined by considering its legal effect and not its practical effect: Carr v Finance Corporation of Australia Ltd at 248. In my view, the orders made by the magistrate were final orders because the magistrate struck out the actions. The legal effect of each order finally determined the rights of the parties. However, for the reasons which follow, even if each appeal is an appeal against an interlocutory order, leave to appeal should be granted.
Leave to appeal against an interlocutory order will be granted only where the Court is satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant reconsideration on appeal and, in addition, substantial injustice will be done if the decision is not set aside: Duke Group Ltd (in liq) v Arthur Young (1991) 4 ACSR 355 at 372, 381, 407: Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 54 – 55. That principle is entirely consistent with Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 per Gibbs CJ, Aickin, Wilson and Brennan JJ at 177 and Consolidated Gold Mining Areas NL v Enterprise Gold Mines NL (1992) 57 SASR 584 per King CJ at 587. For the reasons which follow, the decision of the magistrate was wrong and to allow the decision to stand will cause manifest and substantial injustice to the plaintiffs in that they will not be able to prosecute their separate actions. It is, therefore, appropriate to grant leave to appeal.
For these reasons, the plaintiffs are entitled to appeal. They are either appealing from a final judgment or they appeal pursuant to a grant of leave.
A Patient Seeks Treatment
In about 1991, when aged 14 years, Duane Kemp had undergone heart transplant surgery at the Lyell McEwin Hospital. Shortly after noon on 29 December 2000, Duane sought treatment at the Emergency Department of the Hospital. He was complaining of abdominal pain, vomiting and diarrhoea. The Hospital staff noted that he had undergone a heart transplant. The staff examined him and subjected him to a number of tests. He was diagnosed as suffering from gastroenteritis and was treated for that condition. At about 1820 hours, at Duane’s request, his parents came to the Hospital. At about 1900 hours Duane was discharged from the Hospital despite his mother’s protests that he should stay at the Hospital.
The Patient Dies
On being discharged, Duane was taken to his girlfriend’s house where he was then residing. About one hour later, at about 2000 hours, Duane collapsed and became unconscious. An ambulance was called and his parents were notified. His parents immediately drove to Duane’s girlfriend’s house. They saw Duane being treated by ambulance officers who were trying to revive him. Duane was taken to the Lyell McEwin Hospital. His parents went to the Hospital. At the Hospital, further attempts were made to revive Duane. At about 2210 hours, after consultation with Duane’s parents, the Hospital stopped trying to revive him. Soon afterwards, the Hospital informed Duane’s parents that he had died. The cause of death was chronic rejection of the cardiac transplant.
Claims For Damages For Mental Injury
Each of Duane’s parents and each of his two brothers have instituted an action in the Elizabeth Magistrates Court in which each claims damages for the mental injuries they have suffered in consequence of his death.
In her statement of claim, Mrs Janet Kemp alleges that her mental injuries were caused by her direct perception of the events leading to the death of her son. She alleges that her mental injuries are recognised psychiatric disorders. She pleads that the Hospital owed her a duty of care in that it ought to have foreseen that, as Duane’s mother, she was a person who might suffer a psychiatric disorder in consequence of witnessing or being informed of the circumstances leading to the death of her son or serious injury to him in the event that the death or serious injury resulted from the negligence of the Hospital.
Mrs Kemp pleads that she was shocked and traumatised by her direct perception of the events leading to her son’s death and by being informed of his death at the Hospital. She then pleads that her son’s death and her mental injuries resulted from the negligence of the Hospital by its servants or agents. The particulars of that negligence essentially allege a failure correctly to diagnose Duane’s symptoms; a failure to have regard to symptoms that Duane was seriously ill and required specialist assessment and treatment; a failure to consult senior staff; a failure, given the Hospital’s knowledge that Duane had undergone a heart transplant, to admit Duane for further assessment; and a failure to arrange for him to be assessed by an appropriate specialist or to arrange for him to be transferred to another hospital for such assessment and treatment.
In addition to the particulars in the statement of claim, the plaintiffs’ solicitors sent a letter dated 9 June 2006 to the defendant Hospital’s solicitors with further particulars of the allegations of a pre-existing relationship between the Hospital, Duane Kemp and Duane Kemp’s parents and siblings. The material parts of the letter are in these terms:
The death of Duane and the nervous shock experienced by his parents and siblings ought to have been foreseen by your client by reason of the hospital’s pre-existing relationship with Duane and his parents and in the knowledge of the fact that Duane had siblings and, particularly, on the basis of the following matters pertaining to the pre-existing relationship between the hospital and Duane Kemp and his parents and siblings specifically that:
1.In February 1991, Duane collapsed at school from his heart condition. The school called an ambulance that took Duane to the Lyell McEwin Hospital.
2.Mrs. Kemp attended at the hospital after being contacted by the school.
3.The Lyell McEwin contacted Duane’s treating doctor at the Womens (sic) and Childrens’s (sic) Hospital for guidance in relation to Duane’s care.
4.The Lyell McEwin kept Duane in their care until his condition stabilized and liaised with the WACH throughout the admission which lasted several hours.
5.Duane was discharged after the WACH advised the Lyell McEwin that Duane was fit to be discharged.
6.In about 1993, the WACH arranged with the Lyell McEwin Hospital that Duane would attend at the pathology department on at least a monthly basis to give blood to be tested at the Queen Elizabeth Hospital for Cyclosporin levels. Cyclosporin is an anti-rejection drug taken by transplant patients.
7.Duane attended on a monthly basis at the Lyell McEwin Hospital and gave blood for a period of years. Janet Kemp accompanied Duane on each occasion. Janet Kemp was particularly well informed about Duane’s heart problem and saw it as her mission to keep him alive and well.
8.The attendances became so frequent that Duane and his mother developed a social relationship with staff at the hospital and staff at the hospital were well aware of the dimensions of the Kemp family and their close relationship with Duane.
9.The hospital staff was well aware of Janet Kemp’s knowledge and inquisitiveness about Duane’s care and the mission-like quality of her quest to keep Duane alive and well.
The application to strike out the statement of claim was made after that letter had been received. For the purposes of the strike out application and this appeal, that letter has been treated as being incorporated into each statement of claim. However, for the purposes of this appeal, it is not necessary to rely on that letter.
In all material respects, the allegations by Duane’s father, Mr John Kemp, and by his two brothers are expressed in the same terms as Mrs Kemp’s statement of claim.
Relevant Principles
The question whether a duty of care is owed to a person to prevent the risk of that person sustaining a psychiatric injury has been considered in a number of decisions. For the purposes of this appeal, it is sufficient to refer to the most recent exposition of the relevant principles by the High Court in Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (“Tame”) and in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. Those decisions have established the following propositions:
1.Two matters are critical to the resolution of the question whether a defendant has a duty of care to a plaintiff to take reasonable care to avoid causing psychiatric injury. They are the reasonable foreseeability of the injury and the relationship between the parties. Foreseeability of injury does not of itself give rise to a duty of care. See Tame per Gleeson CJ at [12] and [13] and at [32], Gaudron J at [46], Gummow and Kirby JJ at [201], Hayne J at [249]; Gifford per Gleeson CJ at [10] – [12], McHugh J at [47] – [48] Hayne J at [98] – [100]. There is a sufficient relationship to give rise to a duty of care between the wrongdoer and the plaintiff where the wrongdoer has a duty of care to a person and negligently causes death or severe personal injury to that person which in turn causes nervous shock to the plaintiff who is in a close and intimate relationship with that person. In that respect, the decisions in Tame and in Gifford affirm the remarks of Gibbs CJ and Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 555 and 591 – 592.
2.Liability for damages for psychiatric injury is not limited to cases where the injury is caused by a sudden shock or to cases where a plaintiff has directly perceived a distressing phenomenon or its aftermath: Tame per Gleeson CJ at [18], Gaudron J at [66], Gummow and Kirby JJ at [207] – [213], Hayne J at [267]; Gifford per Gleeson CJ at [5], McHugh J at [45], Gummow and Kirby JJ at [65].
3.The law expects a normal degree of fortitude but the concept of normal fortitude should not distract attention from the central enquiry as stated in the first proposition: Tame per Gleeson CJ at [16], per Gaudron J at [62], Gummow and Kirby JJ at [199] to [201]; Gifford, Gummow and Kirby JJ at [88]. Damages are recoverable in negligence only for a recognisable psychiatric injury and not for emotional distress: Tame per Gleeson CJ at [4] and [7], Gaudron J at [44], Gummow and Kirby JJ at [192] – [196], Hayne J at [285]; Gifford per Gummow and Kirby JJ at [88] and [90].
As Gleeson CJ said in Gifford at [8], when determining whether a duty of care exists, the central issue is whether it was reasonable to require the defendant to have in contemplation the risk of psychiatric injury to the plaintiff and to take reasonable care to guard against that injury. Relevant to that issue is the burden that would be placed upon those in the position of the defendant by requiring them to anticipate and guard against harm of the kind allegedly suffered by the plaintiff. The essential concept is reasonableness: Tame per Gleeson CJ at [8], Gummow and Kirby JJ at [185]; Gifford per Gleeson CJ at [9], McHugh J at [51]. It is the reasonableness of a requirement that a defendant should have certain persons, and certain interests, in contemplation that determines the existence of a duty of care. Reasonableness is to be judged in the light of current community standards: Tame per Gleeson CJ at [14], Gummow and Kirby JJ at [200] - [201].
In Gifford, the court had to determine whether an employer owed a duty of care to the children of an employee who had been killed in an accident at work. The court held that a duty of care existed. The court also affirmed that it was not a necessary criterion of liability that the psychiatric injury was caused by a sudden shock in circumstances where the plaintiff has directly perceived a distressing phenomenon or its aftermath: per Gleeson CJ at [5], McHugh J at [45], Gummow and Kirby JJ at [65]. In Gifford, it was clear that the employer had a duty of care to its employee. On the question of the duty of care of the employer to the employee’s children, Gleeson CJ said at [10]:
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 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’… 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.
On the same question McHugh J at [47]:
[F]or the purpose of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin’s sense includes all those who have a close or loving relationship with the person harmed. They are among the persons who are likely to be so closely and directly affected by the wrongdoer’s conduct that that person ought reasonably to have them in mind when considering if it is exposing the victim to a risk of harm.
Later at [49] and [50] he said:
Ordinarily, the love and affection between a parent and 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 the wrongdoer’s negligence.
Nor can the wrongdoer reasonably disregard some other close and loving relationships. Husband and wife, sibling and sibling, de facto partners and engaged couples, for example, almost invariably have close and loving relationships. No doubt the parties to such relationships may sometimes be estranged. Despite this possibility, however, so commonly are these relationships close and loving that a wrongdoer must always have such persons in mind as neighbours in Lord Atkin’s sense whenever the person harmed is a neighbour in that sense. To require persons in such relationships to prove the closeness and loving nature of the relationship would be a waste of curial resources in the vast majority of cases. The administration of justice is better served by a fixed rule that persons in such relationships are ‘neighbours’ for the purposes of the law of nervous shock and the defendant must always have them in mind. Similarly, the wrongdoer must always have in mind any person who can establish a close and loving relationship with the person harmed.
As Gummow and Kirby JJ said at [89]
It was not disputed in Annetts that, if the ordinary principles of negligence otherwise applied, the relationship of parent and child would be sufficient to import a duty of care on the part of the respondent to avoid causing psychiatric illness to the appellants as a consequence of the wrongful death of their child. In Hancock v Nominal Defendant, the Queensland Court of Appeal dismissed an appeal against an award of damages for psychiatric illness sustained by the respondent upon learning of the death of his adult son caused by the negligent driving of the appellant.
The relationship of a parent to a child or of a sibling to that same child is, therefore, of such a close kind that it is reasonable to require the wrongdoer to have it in contemplation that wrongful death of the child might cause psychiatric injury. Not all parents have a close and intimate relationship with their children. Similarly, not all siblings have a close relationship. It will, therefore, be a question of fact in each case whether the nature of the relationship is so close that it caused psychiatric injury. However, that last consideration does not deny the existence of the duty of care: see Gleeson CJ at [12] and McHugh J at [49].

Shortly stated, the decision in Gifford established that an employer owed a duty to children to take reasonable care to avoid causing them a recognised psychiatric illness as a consequence of their father’s death in the course of his employment. It also establishes that it was not only foreseeable that an employee’s children might suffer psychiatric injury on learning of the employee’s accidental death or serious injury at work, but also that the relationships between employer and employee and between the employee and children was so close as to require the conclusion that the duty was owed. The fact that the children did not actually see the incident or its aftermath but were only informed about an horrific accident is no bar to liability for damages for psychiatric injury. That decision applied the reasoning in Tame and was entirely consistent with the conclusion in Annetts v Australian Stations Pty Ltd where it was held that an employer owed a duty to parents to take reasonable care to avoid causing them a recognised psychiatric injury as a consequence of learning of the death of their son in the course of his employment. In that case, there were other facts which established a relationship between the plaintiffs and the employer, the plaintiffs having made inquiries about arrangements to be made for the care of their son and the employer having given assurances that he would be supervised.
When those principles are applied to the facts of this case, it is apparent that the Lyell McEwin Hospital owed a duty of care to each of the plaintiffs. Each of the plaintiffs alleges:
●that he or she has suffered a mental injury which is a recognisable psychiatric disorder;
●that he or she suffered that mental injury as a result of the direct perception of events leading to the death of Duane Kemp or on being informed of his death;
●that he or she is either a parent or brother of Duane Kemp.
As this is an application to strike out the statement of claim, those facts must be assumed to be true.
Because Duane Kemp was a young man, it was reasonably foreseeable that, if he died as a result of the negligence of the Hospital, his parents and siblings, on being informed of that fact, might suffer such a sense of sudden loss that they would suffer a recognised psychiatric disorder. That was especially so in the case of both parents who had witnessed the distressing events leading to Duane Kemp’s death. Although Duane Kemp’s brothers did not witness his death, they are so close in relationship to him that it was reasonably foreseeable that they too would suffer a recognised psychiatric disorder on being informed of his death and the circumstances leading to it. They would have known that he had been successfully treated for his condition in the past and would, therefore, have been shocked to have learned of his death. As the reasoning in Tame and in Gifford demonstrates, the parents and the brothers of Duane Kemp are persons so close in relationship to Duane Kemp that it is reasonable to require the Hospital to have in contemplation the risk of psychiatric injury to them and to take care to guard against that injury. The Hospital therefore owed the parents and the siblings of Duane Kemp a duty of care. There is no inconsistency between the existence of a duty of care to each of the plaintiffs and the administration of appropriate medical treatment of Duane Kemp, that is to say, the duty of care to the plaintiffs was entirely consistent with the duty of care that the Hospital owed to Duane Kemp: c.f. Gifford per Gummow and Kirby JJ at [90].
The magistrate erred in his statement of the relevant principles. He did not have regard to the principles expressed in Tame and in Gifford. He misunderstood the effect of the decision in Gifford and the nature of the relationship which, with foreseeability of injury, gives rise to the duty of care. He placed inappropriate reliance on cases such as Sullivan v Moody and Halech v State of South Australia. He erred in concluding that to allow a duty of care would expose the Hospital to a massive obligation and liability to an indeterminate class of persons. It is not necessary to set out his reasons.
Mr Mills contended that each statement of claim pleaded only foreseeability of injury and was silent on the required relationship between the plaintiffs and the Hospital. That contention is answered by an examination of paragraph 7 of each statement of claim which pleads a relationship in a manner consistent with the principles stated in Gifford.
For these reasons the Hospital owed a duty of care to each of the plaintiffs. The magistrate therefore erred in striking out each action. The appeal will, therefore, be allowed.
The appellants apply for an order that the respondent pay their costs on an indemnity basis. The application is grounded on the manner in which the Hospital has prosecuted the issues as to the existence of a cause of action. The solicitors for the Hospital consented to the plaintiffs amending the statement of claim as initially filed on the footing that the plaintiffs paid the costs occasioned by the amendment. Having consented to an amendment, they later applied to strike out the statement of claim in each action. Given that the issues to whether a duty of care existed fell clearly within the principles established in Tame and in Gifford and given that the Hospital had to discharge the heavy onus established in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 and given that the Hospital had to demonstrate that the plaintiffs could not succeed on any view of the facts or law (see Rule 24 of the Magistrates Court Rules and Rule 25.04 of the Supreme Court Rules 1987), and given that the solicitors for the plaintiffs had given notice to the solicitors for the Hospital that if the plaintiffs succeeded they would seek costs on a solicitor and client basis, it is appropriate to order that the Hospital pay both the plaintiffs’ costs of and incidental to the strike out application in the Magistrates Court and the costs of this appeal on a solicitor and client basis. I make that order notwithstanding that the magistrate upheld the Hospital’s application to strike out the statements of claim as the solicitors for the Hospital clearly had notice of the risk as to costs and because they had consented to the amendment, the subject of the challenge in this appeal.