Klug v Motor Accidents Insurance Board

[1991] TASSC 76

Serial No 59/1991
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Klug v Motor Accidents Insurance Board [1991] TASSC 76; A59/1991

PARTIES:  KLUG, Geoffrey
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO/S:  2411/1984
DELIVERED ON:  15 August 1991
JUDGMENT OF:  Zeeman J

Judgment Number:  A59/1991
Number of paragraphs:  28

Serial No 59/1991
List "A"
File No 2411/1984

GEOFFREY KLUG v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  ZEEMAN J

15 August 1991

1. The plaintiff claims damages for personal injury suffered by him as the result of the negligent driving of a motor vehicle, in which the plaintiff was a passenger, by one Lisa Frances Clifford ("the deceased"), on 6 December 1981. The vehicle was being driven by the deceased on Tea Tree Road at Brighton when she lost control and the vehicle left the road. It appears that the deceased was thrown from the vehicle. She suffered fatal injuries. The defendant is sued pursuant to the provisions of s16(1) of the Motor Accidents (Liabilities and Compensation) Act 1973. The defendant has admitted liability. Nevertheless, the defendant has pleaded, by way of defence, that the plaintiff contributed to his own injuries by his failure to wear a seat belt fitted to the motor vehicle. I can deal with that aspect of the matter briefly. I find that at the relevant time the plaintiff was seated in the front passenger seat of the vehicle being driven by the deceased and that that seat was fitted with a seat belt. The defendant carries the burden of proving on the balance of probabilities that the plaintiff was not wearing that seat belt. It has not discharged that burden. The evidence of the plaintiff as to his normal practice of wearing a seat belt and other evidence that the plaintiff remained in the front seat of the vehicle after the accident (all of which I accept) point to the plaintiff having worn the seat belt at the relevant time. Whilst the plaintiff did not claim to specifically recall wearing his seat belt at the relevant time, that is of little assistance to the defendant in the circumstances. The only piece of evidence which might be capable of supporting a finding that the plaintiff was not wearing a seat belt at the relevant time was in the course of one rather confused answer given by the plaintiff during cross–examination, as follows:

"QAgain, do you recollect fastening your seat belt at Richmond?

AWe're back only to Richmond instead of Tolosa Street. I don't know. I mean, that's just the thing, as I said, I know I drove my van, whatever I was in, I mean I did. I mean my son was in the car driving, he did. I can't recall why I didn't – if I didn't why didn't I?"

1. Having heard the plaintiff give that answer and having regard to the context in which it was given and to other answers which he gave on the same subject matter, I conclude that the statement "I can't recall why I didn't" did not constitute any form of admission or concession, but was no more than imprecise expression. I do not find that the plaintiff was not wearing the seat belt at the relevant time. I do not find the allegation of contributory negligence to be made out. I therefore turn to the assessment of the plaintiff's damages.

1. Except where otherwise indicated, the following statement of the facts represents my findings of fact. The plaintiff was born on 14 October 1942. He was educated at Cosgrove High School and was an average student. Prior to the accident, the plaintiff had had a varied employment history. Until the early 1960's he was in paid employment of various types. The last such employment was with the Hobart Fire Brigade by whom the plaintiff was employed for some seven years, latterly as a senior fire fighter. Upon leaving that employment, the plaintiff went into business, initially conducting a second–hand furniture shop in partnership with his brother. There were some personal difficulties between the plaintiff and his brother which resulted in the plaintiff leaving that business and commencing business on his own account as a rotary hoe contractor. From there he moved into trading in cheap second hand cars, initially from home. Later he opened a second hand car yard at Huonville. After about a year, he transferred that business to Glenorchy. Ultimately he sold that business and in 1980 he purchased a fishing boat. He proceeded to fish on a commercial basis. That venture was not successful. The plaintiff ceased operations, and the fishing boat was returned to the finance company which had provided funds to enable it to be acquired. At about the same time the plaintiff met the deceased. This was about Easter 1981. The plaintiff had been divorced from his wife in about 1976. His former wife moved to Adelaide, taking three of the four children of the marriage with her. The elder son, Danny, who incidentally was a passenger in the motor vehicle at the time of the accident, remained with the plaintiff intermittently. For some period of time he lived with his mother in Adelaide. In about November 1981, the plaintiff commenced to cohabit with the deceased. They resided in a unit at Glenorchy and Danny lived there with them. At the time of the accident the plaintiff was not in employment.

1. The plaintiff was admitted to the Royal Hobart Hospital as a result of the accident. The plaintiff suffered a fractured left clavicle and lacerations to the left cheek, left forearm and back. He presented at the hospital in a grief–stricken state, initially refusing to be examined and expressing suicidal intentions. It appears as though his physical injuries did not require his admission as an in–patient, but that he was so admitted for observation in view of his stated intentions.

1. For some time after the accident, the plaintiff was severely affected by a combination of pain and grief. His shoulder injury resulted in very severe physical pain extending to various parts of his body. The plaintiff felt as if he had been "run over by a truck". He also suffered what he described as emotional pain. He rarely left his flat. He had few visitors. He asked his son to live elsewhere because he intended to commit suicide. He spent much of his days crying. He lost considerable weight. For the first two weeks after the accident he consumed little other than coffee and cigarettes. He consulted his general practitioner from time to time. The doctor prescribed analgesics and referred the plaintiff to a psychiatrist. The plaintiff consulted the psychiatrist on one occasion only. He found the experience distressing. He received some physiotherapy treatment to his back and shoulder, but did not continue the treatment when the defendant declined to pay the relevant fees. The plaintiff was without means to pay for such treatment himself. After some time the plaintiff endeavoured to obtain employment. He met with little success. He was briefly engaged in hop picking and as a service station attendant. He then re–commenced trading in cars. In late 1982 he met his present wife, and they married in 1984. In 1985, he and his wife moved to Devonport and shortly thereafter the plaintiff commenced the lawnmower and small engine business which he presently conducts. He described it as being a successful business. Neither the profitability of that business nor the profitability of the business dealings in which the plaintiff engaged prior to commencing that business was the subject of any evidence. It was not suggested by the plaintiff that he had suffered any loss of earnings as a result of his injuries, save and except for the period of six months immediately following the accident. The parties were agreed that the monetary amount which ought to be attributed to the plaintiff's acknowledged loss of earning capacity during that period of six months was $1,630.00, although the defendant denied that that loss of earning capacity was compensable by way of damages.

1. When the plaintiff initially commenced business in Devonport, his father–in–law assisted him therein, without remuneration, for some time. The plaintiff then employed a young man, Robert McKenzie, as an assistant. In due course McKenzie was apprenticed to the plaintiff. Upon completing his apprenticeship in small engines, McKenzie continued to be employed by the plaintiff as a tradesman. Due to a down turn in business, which the plaintiff attributed to a drought leading to a reduced level of demand for lawn mowers, the plaintiff terminated McKenzie's employment several months prior to trial. At the same time the plaintiff offered McKenzie casual employment which the plaintiff estimated would have resulted in about three days' work being available each week. McKenzie did not accept that offer and found other employment. Since then the plaintiff has worked in the business alone, except that his wife is engaged there on a part time basis attending to office work. The business has been for sale for some time. I infer that there is no impediment to the plaintiff engaging another young person as an apprentice, save and except that the plaintiff is reluctant to commit himself to an apprenticeship when his desire is to sell the business. The plaintiff did not suggest that that desire was induced by his disabilities.

1. There has been little change in the plaintiff's physical condition from the time that he returned to the work force on a permanent basis. The plaintiff has a continuing dull ache in his injured shoulder. He frequently suffers from severe pain to the neck which radiates into the head. He said that he suffers from constant headaches. In particular he complained of headaches and pain in the arm and neck whilst driving. He described taking pain–killers several times each day, although I conclude that that was somewhat of an exaggeration. His description of his daily intake of pain–killers was not consistent with the evidence as to the quantities of those forms of medication which were in fact purchased by or for the plaintiff. Whilst I accept that the plaintiff has frequent pain to the shoulder, neck and head, and that such pain is often severe, I conclude that the plaintiff's description involved some degree of exaggeration, albeit possibly unconsciously. The plaintiff also complained of a constant dull pain in the lower back, extending into his legs, which was of more recent onset, and of a ringing in the ears. Particular tasks required to be performed in the business involving lifting, pulling and bending over tend to increase the level of pain. Until several months ago the plaintiff was able to avoid much of such work as it was performed by an employee.

1. The plaintiff was seen by an orthopaedic surgeon, Mr Morgan, on a number of occasions. The first occasion on which he examined the plaintiff was in April 1987. Mr Morgan gave evidence that on that occasion the plaintiff gave him a history of intermittent aching in the shoulder, particularly in cold weather, or after particular use of the shoulder, but that the main complaint was of aching in the back of the lower neck associated with aching in the upper thoracic spine and with intermittent headaches. I find that that history accurately stated the extent of the plaintiff's then physical disabilities, and that those physical disabilities continued up until the time of trial. That history indicates a more moderate degree of pain than that suggested by the plaintiff when he gave evidence. Mr Morgan described his findings on the occasion of his first examination of the plaintiff. He described movement of the cervical spine as moderately restricted, particularly rotation and extension. He found no actual neurological abnormality. He found a slight restriction of shoulder movement, which he described as being between 20 or 30 degrees of full abduction in the shoulder. He found a slight lateral tenderness over what he later established, by reference to an examination of an x–ray photograph, to be an un–united clavicle. Mr Morgan accepted that on the basis of what he found, that the plaintiff would be left with some permanent weakness in the shoulder, and a tendency to ache. He assumed that the most likely clinical cause of the neck pain was damage to one or more cervical discs, and he expected that the plaintiff would continue to be troubled by neck ache and stiffness virtually indefinitely. He did not consider that surgery was called for or likely to be called for in the future.

1. Mr Morgan saw the plaintiff again in January 1988 when there was some suggestion that the degree of pain and stiffness in the neck had increased, but otherwise there was no change. As a result of his discussions with the plaintiff, a discogram was performed. That procedure occasions considerable discomfort. The circumstances in which it was performed upon the plaintiff made it particularly distressing. As a result of that procedure the plaintiff obtained an increased range of neck movement, although only temporarily. In April 1989, when Mr Morgan next saw the plaintiff, the degree of restriction in neck movement had returned to that existing prior to the procedure having been carried out. Mr Morgan's view was that the aching and stiffness in the neck, the headaches (which, he said, are a very frequent accompaniment of cervical disc injury) and the aching down the thoracic spine, were mostly or entirely caused by the accident in which the plaintiff was involved. He expressed the view that largely as a result of the intermittent pain and weakness, and also the lack of full abduction, the plaintiff suffered from a disability of something in the order of 10% of the arm as a whole. Asked to explain that, he said that the plaintiff was left with a permanent tendency to ache and with some restriction of movement which would leave him without full function of the arm. I accept Mr Morgan's opinions. Mr Morgan was unable to suggest the cause of the ringing in the ears described by the plaintiff, and I heard no evidence suggesting that it was causally related to the injuries suffered by the plaintiff in the accident. I am not satisfied that that condition is a product of the accident.

1. The plaintiff's physical disabilities have resulted in the plaintiff being restricted in the conduct his business, at least as to those tasks which require physical exertion. Whilst he employed an assistant, he was largely able to avoid work involving physical exertion. Presently he cannot avoid that, although to some extent that is the result of his decision not to engage another junior employee by reason of his desire to sell the business. The plaintiff's physical disabilities have other consequences. He finds it difficult to drive long distances. He no longer drives for pleasure as he did prior to the accident. He no longer engages in fishing and golf, both of which were pursuits in which he engaged prior to the accident. He finds that when he returns home at the end of a day's work, he can do little more than sit or lay down. He says that he cannot mow the lawn or perform other tasks around the house and I am satisfied that having physically exerted himself in his business he is unable to cope with further significant physical exertion at home although in part that is the product of a disinclination brought on by his psychological condition. He now rarely has a social drink, as the consumption of intoxicating liquor accentuates the pain in his neck. He is disinclined to go out socially or have other social contacts. He rarely engages in sexual intercourse or any other form of sexual activity with his wife. I accept that the plaintiff's amenity of life has been adversely affected in these ways but not quite to the extent claimed. The plaintiff exaggerated to some degree. The plaintiff presented as a rather sad person who derives little pleasure from life. Frequent pain is an undoubted contributor to that condition. His pathological grief reaction, to which I will refer shortly, is another contributor. To some extent the latter has had the effect of making the plaintiff less able to cope with his pain and made him more conscious of it.

1. The plaintiff is preoccupied with a constant sense of loss, in that it was his girlfriend who was killed in the accident. He irrationally continues to blame himself for letting the deceased drive the car. She was aged 19 years at the time of her death, and it is plain that his relationship with her offered him very real emotional fulfilment. He described his life as "a living hell" by reason of his physical injuries and his mental anguish. In my view there was an element of exaggeration in that description. To the extent that his life may be so categorized it is largely as the result of his continuing deep sense of loss. Apart from the evidence of the plaintiff on this aspect of the matter, I heard from two psychiatrists, Dr Kerr who was called by the plaintiff, and Dr Sale who was called by the defendant. During the course of the evidence given by the psychiatrists, some attention was given to the distinction between normal grieving and pathological grief. Dr Sale described the distinction as being "between grief which is a normal process and where it goes beyond the bounds of what we would expect for grief". Dr Sale said that grief might go beyond normal bounds in duration or intensity, or both. He then described pathological grief as being "more savage than would be normal given the cultural norms." Dr Sale's written report, which went into evidence, expressed the following opinion:

"Mr Klug clearly remains much perturbed by the accident of 1981, becoming distressed when describing it, and repeatedly returning to this incident. His description of problems such as feelings of guilt are consistent with intense grief. I can thus understand Dr Kerr reaching the conclusion that there is a pathological grief reaction present.

However, I have some reluctance to uncritically accept this diagnosis. While it is possible for pathological grief to persist for several years, it is uncommon. Typically, the more severe manifestations of grief are well on the way to settling within six months of the loss. Nine years of unremitting grief, after a relationship which had only lasted a few months, is distinctly unusual.

It is also puzzling that, given that he complains of continual preoccupation, that he believes 'there's no future', and that there are no moments of happiness, he has nonetheless remarried and established a successful small business.

I am thus inclined to the view that, while the accident remains a very painful memory, and still has the capacity to evoke distress, the extent of his grief reaction is not as severe as he depicts. His descriptions at times did border on the extravagant. Like Mr Morgan, I believe that there is an element of exaggeration to his complaints, and that his symptoms are not as troublesome as he describes."

1. The conclusion on the part of Dr Kerr referred to by Dr Sale was expressed in the former's report of 9 May 1986, which was also in evidence. In that report, Dr Kerr expressed the following opinions:

   "I felt that this man was suffering from a pathological grief reaction. I did not think he was likely to respond to any kind of psychopharmacological approach and I doubt very much if he will respond to any kind of psychotherapy. It is not unusual for pathological grief responses to go on for five years and even longer. He is fortunate in having a wife who appears to understand him and I think as time passes and the legal complications associated with the accident are settled he may gradually recover, but it could well be another four or five years before he is back to a normal outlook on life.

   I think this pathological grief reaction with its associated depression and tension is probably also contributing to whatever physical discomfort he also has."

2. However the condition may be appropriately described in clinical terms, I am satisfied that the plaintiff continues to constantly grieve for the deceased, and that the extent of that grief is such that it may adequately be described as pathological grief in the terms defined by Dr Sale during the course of his evidence. The plaintiff's pathological grief reaction constitutes a recognisable psychiatric illness or psychological disorder. That is in accordance with the evidence given by Dr Sale. That illness or disorder affects the plaintiff in various ways but those ways all result in the plaintiff having become a sad, withdrawn and unsociable person who sees little point in living and who does not enjoy the normal pleasures of life. His state of mind makes him more conscious of his pain and exaggerates its effect upon him. The threshold question to be determined is whether the plaintiff is entitled to be compensated for his psychiatric illness or psychological condition.

1. The defendant relied on the decision of the Court of Appeal of the Supreme Court of New South Wales in Rowe v McCartney [1976] 2 NSWLR 72. The plaintiff relied upon another decision of the Court of Appeal in Nader v Urban Transit Authority of New South Wales [1985] 2 NSWLR 501, and in particular on the judgment of McHugh JA However it is unnecessary to consider those cases, if, as counsel for the defendant submitted, there is a fundamental impediment to the plaintiff recovering damages for the impairment suffered by him by reason of his psychiatric illness or psychological condition, no matter how it is described. Such illness or condition is largely the result of the plaintiff's continuing grief resulting from a very deep sense of loss. To a lesser extent, it is, or at least has been in the past, the result of an irrational sense of guilt at having permitted the deceased to drive and nervous shock as a result of the immediate aftermath of the accident and the finding of the deceased's body. In so far as the plaintiff's condition is the result of his irrational feeling of guilt, it is not on any view compensable. So much was held in Rowe v McCartney (supra) and nothing in Nader v Urban Transit Authority of New South Wales (supra) derogates from that. If the dictum of Deane J in Jaensch v Coffey (1983–1984) 155 CLR 549, at p604, that a relevant duty of care "will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury" correctly states the law, then the plaintiff cannot recover damages for his psychiatric injury. The only relevant negligence in the present case was the negligence of the deceased. Such psychiatric injury as has been sustained by the plaintiff has been sustained by him as a result of either his irrational guilt feeling (which is not compensable) or as a result of the death of the deceased whose carelessness caused the injury.

1. In discussing inter alia that limitation, his Honour said, at pp602–604:

"If liability in negligence for nervous shock caused by the death, injury or peril or another in a road accident fell to be determined by reference to an unqualified test of reasonable foreseeability, there would be no proper basis for excluding liability on the part of the injured person, her or his estate or her or his compulsory third party insurer for mere psychiatric injury which was sustained by another as a result of the self–inflicted death, injury or peril of the negligent person in circumstances where the risk of such psychiatric injury was reasonably foreseeable: cf Bourhill v Young's Executor 1941 SC 395, at p 399. Nor, on an unqualified test of reasonable foreseeability, would there be any rational basis for excluding liability to a close relative or friend who has no contact with the accident or its immediate aftermath but who suffers reasonably foreseeable nervous shock by reason of constant social contact, as loyal nurse or companion, with the injured victim. It is conceivable that, if left to develop by analogy and logical necessity on a case by case basis, the common law in Australia may eventually change to the extent that it comes to recognize liability in some or all of such cases. It has not, however, recognized any such liability up to now. These are but two examples of types of case in which judicial abrogation of the operation of a proximity requirement or any other special control to limit liability for nervous shock would, unless the law were to revert to strict and rigid general notions of causation and remoteness of damage which were discarded in the wake of the Wagon Mound Cases [No 1] [1961] AC 388; [No 2] [1967] AC 617 or to the narrow approach to reasonable foreseeability which, apparently, enjoys some lingering support in at least some United States jurisdictions (see, e.g., Dillon v Legg (1968) 29 ALR (3d) 1316, at p 1326: 'excluding the remote and unexpected'; Hathaway v Superior Court of Fresno County (1981) 169 Cal Rptr 435; Yandrich v Radic (1981) 433 A (2d) 459, involve the peremptory imposition of liability where the law, up to now, has recognized none. What, one is led to ask, is the pressing demand of principle or policy which necessitates the unqualified destruction of any such overriding limitation upon reasonable foreseeability? The answer, for this country, is that there is none. In so far as principle is concerned, both general principle and the general framework of the law of negligence allow, as has been seen, room for the operation of special overriding rules to exclude, in certain areas, the implication of a duty of care by reference to the ordinary test of reasonable foreseeability and recognize the requirement of proximity as a general overriding requirement of the law of negligence which may operate, in an appropriate case, to preclude or confine the prima facie duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. In so far as policy is concerned, the arguments for and against the removal of any overriding control of the test of reasonable foreseeability in cases of mere psychiatric injury are finely balanced and, as Lord Scarman pointed out in McLoughlin [1983] 1 AC, at pp430–431, more appropriate for legislative than judicial consideration. While the present case does call for a reassessment of the effect of the operation of the requirement of proximity and any other overriding control upon the test of reasonable foreseeability in cases of mere nervous shock, neither principle nor considerations of public policy require or justify the conclusion that no such requirement or control is operative in such cases. In that regard, it is relevant to note that Lord Scarman and Lord Bridge of Harwich appear, in their speeches in McLoughlin, not to have excluded completely the possibility that some overriding limitation on reasonable foreseeability might be appropriate in addition to the general refinement that, in cases of mere psychiatric injury, risk of injury in that particular form must have been reasonably foreseeable. Lord Scarman in McLoughlin at p 431 confined his statement that 'common law principle requires the judges' to apply an 'untrammelled' reasonable foreseeability test to 'circumstances where it is appropriate'. Lord Bridge in McLoughlin at p 441 appears to have restricted his acceptance of an unqualified foreseeability test in cases of mere psychiatric injury to cases where such injury is caused by the death, injury or apprehended injury of someone other than the person whose negligence was responsible for the accident, that is to say, of someone who was, in any event, a 'negligent tortfeasor'. Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere psychiatric injury is an independent and primary duty owed to the person at risk of such injury: see, per Barwick CJ and Taylor J, Scala v Mammolitti (1965) 114 CLR 153, at pp 155–156, 159 and per Windeyer J, Pusey (1970) 125 CLR, at p 408. That being so, that function performed by any rule confining the existence of a duty of care to avoid such injury to the case where there has been some breach of a duty of care owed to some other person to avoid ordinary bodily injury is that of an overriding control of the test of reasonable foreseeability."

1. Gibbs CJ expressed general agreement with the reasons given by Deane J and in particular expressed agreement with the proposition that whilst foreseeability is necessary to establish the existence of a duty of care, the existence of foreseeability does not necessarily establish the existence of such a duty. Brennan J appears to have taken a contrary view. The other two members of the Court did not express an opinion on this question, and in particular Dawson J, at pp611–612, expressly declined to express a view. However, his Honour appears to have at least tentatively acknowledged the existence of the relevant limitation referred to by Deane J when he said, at pp612–613:

   "On the other hand, there appear to be strictures upon liability for the infliction of nervous shock which are not readily explicable in terms of foreseeability and which may be seen to be the result of the application of policy considerations.

   For example, if no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability. Similarly, the test of foreseeability may be thought to have a limited application if, as appears to be accepted, there is no liability for shock brought about by communication by a third party and not by the sight or sound of an accident or its consequences.

   It is the existence of strictures of this kind that lend support to the view that, in order to be compensable, nervous shock must not only be reasonably foreseeable; it must also fall within bounds set as a matter of policy: see McLoughlin v O'Brian [1983] 1 AC, at pp420–422, per Lord Wilberforce."

2. The existence of a limitation of the type referred to by Deane J was assumed by Bray CJ in Kohn v State Government Insurance Commission (1976) 15 SASR 255 at p256 when his Honour said that "a man or his representatives can hardly be legally responsible for the injurious effect of his own death". That was a case of an assessment of damages against the statutory insurers of each of two deceased tortfeasors, the death of one of whom caused shock to the plaintiff. In addition to such shock the plaintiff suffered physical injuries. In the circumstances of that case his Honour was not asked to make any distinction between the defendants as to the quantum of damages recoverable so that what his Honour said was obiter.

1. In Harrison v State Government Insurance Office (Qld) 1985 Aust Torts Reporter 80–723, the plaintiff was a passenger in a vehicle negligently driven by her husband. As a result of that negligence the vehicle left the road and collided with a guard rail. Both the plaintiff and her husband suffered physical injuries as a result of the collision. The husband subsequently died from his injuries. In addition to her physical injuries, the plaintiff suffered nervous shock. She brought her action against her deceased husband's statutory insurer. Whilst the judgment is not entirely clear on this point, I construe it as distinguishing between shock caused by the accident itself and shock caused by becoming aware of the injuries to the negligent tortfeasor and as holding that the former was, and the latter was not, compensable. It was only because the damage caused by shock could not be apportioned between the two causes that the plaintiff recovered damages for nervous shock generally. I am not concerned with the former in the present case as I am not satisfied that the psychiatric illness or psychological condition said to have been suffered in the present case finds its origin not in the occurrence of the accident itself, but in the death of the deceased.

1. As a matter of principle it might be thought that the plaintiff ought not to be denied damages for his psychiatric injury merely because of the fact that it is the product of the death of the tortfeasor. A possible basis for denying relief is that there existed no duty of care on the part of the tortfeasor not to injure herself and that the damages are the product of such injury (cf Dwyer v Dwyer (1969) 90 WN (NSW) 86 at p88). I do not find that persuasive. There appears to be no reported case where a plaintiff was permitted to recover or denied damages for psychiatric injury solely resulting from the death of, or injury to, the tortfeasor. Certainly I was not referred to any such case. Uninstructed by authority I would have thought such a claim to be maintainable if otherwise it satisfied the legal prerequisites for liability to exist. However I must accept that this area of the law is governed by policy considerations which limit the availability of a remedy. The dictum of Deane J in Jaensch v Coffey (supra) to which I have referred, whilst acknowledging that the common law in Australia may change to recognize liability in a case such as the present, ought to be followed by me, sitting at first instance. It requires the plaintiff's claim for damages for his psychiatric injury to be denied upon the basis that it falls into a category which is not compensable by reason of policy considerations.

1. I turn to the assessment of the plaintiff's damages. Those damages fall to be assessed solely by reference to the physical injuries suffered by the plaintiff. That is not to say that psychiatric injury is to be ignored in its entirety. To the extent that the effect of the physical injuries is greater than it might have been if suffered by a person not also suffering from such a psychiatric injury, such greater effect is to be taken into account in assessing the plaintiff's damages. The plaintiff's physical injuries were the direct result of the deceased's negligence. The defendant must take the plaintiff as the tortfeasor found him. This includes the domestic circumstances of the plaintiff at the time of the accident and his proneness to psychiatric injury having its origin in those domestic circumstances. If the physical injuries result in more serious consequences to the plaintiff because of the psychiatric injury then the defendant is nevertheless liable in damages for the whole of those consequences. The plaintiff's emotional reaction has increased his perception of pain and has rendered it more likely that that pain will persist. He is entitled to be compensated upon the basis that he has suffered pain as perceived by him and that he will continue to suffer such pain. From this must be distinguished damage directly flowing from the psychiatric injury for which the defendant is not liable.

1. I deal firstly with the plaintiff's loss of earning capacity. In so far as the past is concerned, the only relevant period is the period of six months immediately following the date of the accident. It is not suggested that for any subsequent period up until the date of trial the plaintiff has suffered any loss of earning capacity. Whilst the plaintiff's grief by reason of the death of the deceased undoubtedly played a part in his general condition during that period of six months, I am satisfied that such small loss of earning capacity as it is agreed the plaintiff suffered during this period may fairly be said to have been occasioned by his physical injuries. For most of this period, he was in receipt of unemployment benefit. I accept that he was in considerable pain during this period. He looked for work capable of being performed by him and did find employment for a brief period hop picking. He performed that work with great difficulty. His shoulder injury caused him considerable pain and made it difficult for him to carry out his duties. Whilst it appears that his mental state was a substantial contributor to the plaintiff giving up later employment as a service station attendant, he did not commence that employment until 14 July 1982, which was after the expiration of the period of six months to which the plaintiff's claim for past loss of earning capacity was limited.

1. Insofar as the future is concerned, the plaintiff's employment opportunities are limited by his suffering frequent pain exacerbated by physical exertion. To some extent that pain has an obvious cause, namely his broken clavicle. It has not united and will not unite. Whilst so far that disability has not been productive of economic loss, except for the initial period after the accident, the plaintiff is entitled to be compensated to some modest extent for his loss of earning capacity resulting from his reduced employability. For most of his working life, he has been engaged in pursuits requiring some form of physical exertion. His attractiveness on the labour market and his ability to perform tasks requiring physical exertion have both been reduced. At the same time, I must bear in mind a number of other factors. The plaintiff has the capacity to continue conducting his business, there being no real impediment to his employing a suitable employee to assist him in carrying out the more strenuous physical tasks. I accept that for financial reasons, in present circumstances such an employee ought to be an apprentice or a part time adult employee. There appears to be no impediment to the plaintiff engaging a first year apprentice. I reject the plaintiff's evidence that Technical College training is no longer available and find that it is available in Launceston. There appears to be no compelling need for him to dispose of his business for any reasons associated with his physical injuries. A decision to sell (if a buyer became available) would put the plaintiff on the labour market with a substantial disability, but at the same time it might be thought that any man of limited education, aged 49 years, would necessarily find it difficult to obtain employment. The plaintiff said that he wished to sell the business because "This thing is killing me". In so far as that observation related to the time that McKenzie was employed I do not accept that the plaintiff's physical pain was such that it could have been described as "killing" him. The plaintiff was not asked to explain what was the "thing" to which he referred but I infer that it referred to his emotional pain resulting from the loss of the deceased.

1. The plaintiff's physical disabilities have resulted in him suffering significant pain and losing some of the amenities of life. I have already referred to those in greater detail. In particular, his persistent pain, which is likely to be with him for the rest of his life, substantially reduces his ability to enjoy life generally. Surgery is not called for. As a result of his injuries the plaintiff is more likely to suffer from premature osteoarthritis. The plaintiff takes medication to assist in managing his pain, and the parties are agreed that the cost on a weekly basis at the time of trial was $8.00. I am satisfied that that expenditure will continue to be incurred indefinitely. He will need to see his general practitioner from time to time, at least for the purpose of obtaining prescriptions.

1. The tentative figures which I attribute to heads of general damage are as follows:

Past loss of earning capacity  $ 1,630.00

Future loss of earning capacity  10,000.00

Pain, suffering and loss of amenity of life  25,000.00

Future medical and pharmaceutical expenses  __,500.00

$44,130.00

1. Rounding off the total of those items, I assess the plaintiff's general damages in the sum of $45,000.00.

1. I assess special damages as follows:

Items of special damage paid by the

Motor Accidents Insurance Board  $ 1,058.50

Other medical and hospital expenses incurred  1,723.00

Pharmaceutical expense incurred  300.00

Travelling expenses incurred in travelling

to and from treatment  __250.00

$ 3,331.50

1. Accordingly, I assess the plaintiff's damages as follows:

General damages  $45,000.00

Special damages  _3,331.50

$48,331.50

Less sums paid by the Motor Accidents

Insurance Board  _1,058.50

$47,273.00

1. There will be judgment for the plaintiff accordingly.