Lawson & Lawson v Pham No. DCCIV-94-1535 Judgment No. D3386
[1996] SADC 3386
•12 March 1996
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Worthington
Hearing
30/10/95 to 01/11/95.
Catchwords
Motor accident December 1992 in which first plaintiff: (male) injured and his 5 year old son injured and 7 year old daughter killed - his action settled - second plaintiff: (wife and mother) suffered nervous shock - not present at accident scene - awoken to be told by police of the tragedy - shock caused partly by being told of the accident and partly by what she saw on the way to and at hospital - serious psychiatric disorder - held to be within aftermath - basis of liability.Wrongs Act s35a(1)(c) is not a code for the cause of action of nervous shock but limits its availability - plaintiff must fulfil common law requirements to recover damages.Assessment of Damages - mitigation - second plaintiff: nervous shock caused by daughter's death - post traumatic stress disorder and depression - major disorder resolved but with legacy - bought new family home because of association of first home with deceased - part of relocation expenses allowed - plaintiff's condition ameliorated significantly by twins born about 1 year after accident - most unlikely to have had further children if daughter not killed - mitigation of loss - damages allowed for loss of earnings during infancy of twins - non-economic loss (no deduction for "normal" grief): numerical value of 10=$13,700 - wages loss in December 1992: $526 - part relocation expenses $4,000 - on account of earnings lost during infancy $75,000:interest- $1,450:award- $94,676.
Materials Considered
• Wrongs Act 1936s35a;
• Acts Interpretation Act 1915s22, referred to.
• March v Stramare (1990-1991) 171 CLR 506;
• Jaensch v Coffey (1983-1984) 155 CLR 549;
• Devine v Solomijscuk and Todd (1983) 32 SASR 538;
• T v The State of South Australia (1992) 59 SASR 278;
• Fox v Wood (1981) 148 CLR 438;
• Tuncel v Renown Plate Co (1976) VR 501, applied.
• Carroll v Lewitzke (1991) 56 SASR 18, distinguished.
• Rogers v Resi-Statewide Corporation (1991) 101 ALR 377;
• Hinz v Berry (1970) 2 QB 40, not followed.
• Coates v GIO (1995) 36 NSWLR 1;
• Gray v Hand NSW Supreme Court-July 1995- Unreported;
• Redding v Lee (1983) 151 CLR 117, discussed.
• Alcock v Chief Constable of South Yorkshire Police (1992) 1 AC 310;
• De Franceschi v Storier (1985) 85 ACTR 1;
• Richters v Motor Tyre Service P/L (1972) Qd R 9;
• Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723;
• Montgomery v Murphy (1982) 136 DLR (3d) 525;
• Simonius Vischer &; Co v Holt &; Thompson (1979) 2 NSWLR 322;
• Emeh v Kensington Area Health Authority (1985) 1 QB 1012;
• Thake v Maurice (1986) 1 QB 644;
• Whitehouse Hotels v Lido Savoy P/L [1975] 49 ALJR 93, considered.
Representation
Plaintiff David George LAWSON:
Counsel: Mr P. W. Eriksen - Solicitors: Angela Bentley &; Assoc.
Plaintiff Tracey LAWSON:
Counsel: Mr P. W. Eriksen - Solicitors: Angela Bentley &; Assoc.
Defendant Tri Minh PHAM:
Counsel: Mr D. A. Trim with Mr M. C. Livesey - Solicitors: Ward &; Partners
DCCIV-94-1535
Judgment No. D3386
12 March 1996
(Civil)
JUDGMENT NO D3386
D.G. LAWSON and T. LAWSON v T. M. PHAM
FILE NO DCCIV-94-1535
HIS HONOUR JUDGE WORTHINGTON
David George Lawson and his wife, Tracey Lawson claim damages for personal injuries caused by a motor accident on the night of 3 December 1992.At the start of the trial, it was announced thatMr Lawson's claim had settled and consent judgment was entered in his favour. Inthe claim by Mrs Lawson, negligence is admitted but the defendant denies that she is entitled to damages for nervous shock.
THE ACCIDENT AND ITS SEQUEL
When the accident occurredon Old Port Wakefield Road, near Virginia,Mrs Lawson was at home some kilometres away.Mr Lawson was driving his car with their 7 year old daughter Ashley (born 19 April, 1985) and their nearly 5 year old son Callum (born 15 January, 1988)as passengers.The defendant's vehicle crossed the centre of the road and collidedhead-on with Mr Lawson's car.Mr Lawson and Callum were injured.Ashley was thrown out and killed.Mr Lawson and Callum were taken by ambulance to the Lyell McEwin Hospital. Mrs Lawson's claim is for nervous shock resulting from Ashley's death.
Earlier that day,Mrs Lawson decided to go with a friend and neighbour, Mrs Rita Dodds, to do some Christmas shopping at Elizabeth, especially for Ashley. The two children were left with Mr Lawson who worked as a clerk at the Elizabeth Shopping Centre Post Office and he took them home after work.Mr Lawson is also a motor mechanic by trade.He had to fix a car that night and he took the two children with him to their grandparents, so that they could be with them while he did that.Mrs Lawson said in evidence that Ashleywas tearful when she left her because she wanted to go shopping too;as Mrs Lawson put it "Of course there were tears, and so we cuddled and kissed and said goodbye." That was the last time she saw Ashley alive.
Mrs Lawson arrived home at about 9.00 p.m.Mr Lawson rang at about 10.00 p.m. to say that he had just finished working on the car, that the children were dozing, that he would finish his cup of tea and would then be on his way home. She went to bed intending to watch television while waiting for thembut she fell asleep.The next thing she knew the telephone was ringing.As she got up to answer it, she looked at the clock and saw it was 1.00 a.m.Mrs Dodds was ringing to tell her that the police were knocking on her door but could not wake her.Through the glass in the front door, she then saw a policeman standing outside.Mrs Lawson remembers two police officers coming into the house with Mrs Doddssitting very quickly beside her on the couch.One of the policemen told her about the accident and said that although her husband and son were alive, her daughter was dead.Her memory of events from that moment is patchy.She recalls that she started screaming and running around the house.The policemen offered to take her to the hospital to see Mr Lawson and Callum.She went to the bedroom to get dressed.The feelings she described in evidence could best be summarised by saying that she was numb with disbelief.
The police vehicle was a Toyota 4-wheel drive which has higher seatingthan a conventional car.To travel from the Lawson's home in Gilk's Road, Lewiston to the Lyell McEwin Hospital at Elizabeth, the most common routewould include going south along Bakers Road/Gawler Road as far as Womma Road at Virginia and then turning east into Womma Road and following it to Elizabeth.However, the Gawler River crosses Bakers Road at a ford between Gilk's Roadand Womma Road. Mrs Lawson said that she sat in the back of the police vehicle wondering which way they would go because she knew the ford was flooded.One of the two policemen who took Mrs Lawson to the hospital that night, Constable Ward, gave evidence but he was unable to remember the route taken.The other, Constable Thomas, was unable to give evidence; so the police are unable to help.An alternative route that would have avoided using the Bakers Road ford would have included travelling generally south on portion of Old Port Wakefield Road to its junction with Angle Vale Road, where one would turn east into Angle Vale Road and travel towards Elizabeth.That junction is about one kilometre north of the scene of the accident.The junction of Gawler Road and Womma Road is about one kilometre east of the accident scene.
Although Old Port Wakefield Road continues south beyondAngle Vale Road,it is not an intersection.The southern part of Old Port Wakefield Road is offset slightly to the east, so there is a dog leg in Old Port Wakefield Road.Mrs Lawson was sure the police vehicle came downOld Port Wakefield Road and turned left (east) into Angle Vale Road.She said that as the police vehicle passed the offset southernpart of Port Wakefield Road and knowing the accident had happened onOld Port Wakefield Road, she craned her neck to see if she could see anything and saw that the whole sky was lit up.She said "The sky was glowing and I knew that was where my baby had been killed."She said that she saw yellow, white, blue and red lights, "Just the tips of the lights". She also said that she could hear "a horrible droning noise of engines or whatever" and pointed out that things are usually so quiet out there at nightime, one can hear any noise.Her evidence continued: "Anyway we shot past that and I was just left - for the rest of the trip to the hospital I can't remember, I don't know where we went after (we) passed Port Wakefield Road, I just kept hearing the droning and knowing that that is where Ashley had left the world and just wishing that I had taken her shopping."
She arrived at the hospital but she cannot remember walking inside.Her next recollection is seeing her husbandon a stretcher bed with Callum beside him and she described her first observations and feelings as follows: "Callum was asleep but David (Mr Lawson) was unconscious or he was asleep.When I went in the room I just remember looking at him and his hands had blood on them and it was down his neck.It didn't bother me that it was his blood.My mind just went back to if he is alive and he's in that mess, what was she like and then I just remember just cuddling him and checking Callum and the next thing I know my mum is beside me and going hysterical."From time to time Mr Lawson regained consciousness temporarily but she is not sure if he realised she was there.She helped him to go to the toilet and after he was settled back in bed, she sat in a chair at the end of his bed where she remained for the rest of the night.She said that she cried all night and did not sleep at all.She described it as: "Yes, just sitting at the end of his bed just waiting for I don't know what to happen, just sitting there."When daylight came, a number of friends arrived.Mrs Lawson said: "I just sat holding on to David, popping out for the odd cigarette for (sic) escape from the crowd and just crying, it's all I could do till I could cry no more."
The route taken was an issue.The evidence of Constable Ward indicates that although the junctionof Gawler Road and Womma Road is about the same distance from the scene of the accident as the junction of Old Port Wakefield Road and Angle Vale Road, it would not be possible to see lights at the scene of the accident from the junction of Gawler Road and Womma Road.However, it was Mr Ward's opinion that it would be possible to see lights at the accident scene from the Angle Vale Road junction.As he described it, when travelling generally south along Old Port Wakefield Road, one turns left into Angle Vale Road and travels east for about 50 metres or so before turning right to continue south alongOld Port Wakefield Road.He considered that for part of that distance of about 50 metres, it would have been possible to see emergency lights on the police vehicles.Mr Trim for the defendant, queried whether she actually saw these lights or whether it was merelya glow from lights.Given Mrs Lawson's clear recollection that she saw lights when she was at a dog leg in the road, that the colours of the lightsshe saw were consistent with those that were present at the scene of the accident, that it is possible to see that scene (albeit briefly) from near the junction of Old Port Wakefield Road and Angle Vale Road and that it is not possible to see it from the junction of Gawler Road and Womma Road, I am satisfied on the balance of probabilities that the police vehicle travelled along portion of Old Port Wakefield Road before turning left into Angle Vale Road to travel to Elizabeth, the reason being that the ford at Bakers Road was flooded.In my opinion also, the plaintiff has established that she did not simply see a glow in the sky.I accept that from Angle Vale Road, she was able to see lights - yellow, blue, red and white - and that they were lights on police and emergency vehicles at the accident scene where by then, she knew that her daughter had been killed.As to whether she could actually hear engine noise from things such as generators,tow trucks or cutting equipment, or whether in her distress, she imagined it, I cannot say. Mr Ward felt sure that the windows on the police vehicle were closed and that with its engine noise,it would not have been possible to hear noises coming from an accident scene about one kilometre away.
At some stage, Callum told his mother that during the accident, Ashley went through the air over his head and out of the car without her shoes on.It is not possible to say exactly when he said this but it seems likely that it was not until a week or so after the accident.
It is necessary to say something about the make-up of the family and in particular, the relationship between Mrs Lawson and Ashley.It is clear that it was a loving mother and daughter relationship;they were extremely close. Mrs Lawson explained that she had never been close to her own mother,that Ashley was just what she wanted and that she wanted to give her the thingsshe herself had never had.
Mrs Lawson worked initially as a checkout operator and then became merchandising manager for Coles at Salisbury.She stopped work when the children came along and did not resume until Callum attended kindergartenwhen she commenced work with Lewis Nurseries at Virginia.She began as a packer and worked her way up over about six months to be a leading hand.She enjoyed her work and the atmosphere of the place.She made all of Ashley's clothes and while she was doing so, Ashley would sit with her watching and generally fiddling as young children do.Mr and Mrs Lawson decided they wanted to give the children a good home and a private school education and that therefore they could not afford to have anymore children.As a result, Mr Lawson had a vasectomy.Both Mr and Mrs Lawson described the relationship between Ashley and Callum as being very happy, with Ashley mothering Callum somewhat.Once Ashley started school,Mrs Lawson would take her each morning and collect her after school.One of the main reasons they built the house at Lewiston on a two acre property was because Ashleywanteda horse and they thought this would be a suitable place.They had started with a vacant block and when they planned the garden and the trees, they chose an area for Ashley to have a stable and small horse yard, once she was old enough.The children attended Craigmore Christian School.Outside school hours, Mrs Lawson and Ashley spent most of the time together doing various things such as gardening, sewing, cooking and playing.Mr Lawson confirmed that the relationship between them was extremely close.
The funeral was about a week after the accident.Mrs Lawson and afriend dressed Ashley for burial.Someone at the funeral parlourwarned her to be careful of Ashley's head and in particular that she should not "touch that soft spot on her head."In the course of dressing her, there was an emission of blood from Ashley's nose.Mrs Lawson said in evidence that she has a vivid imagination and she could picture the mess inside Ashley's head.It took quite a while to prepare Ashley and while doing so,Mrs Lawson had what she now believes wasan anxiety attack.She did not know then what it was but she found she could not breathe.She got some relief from a ventolin spray that her friend had.The funeral was well attended, particularly by Ashley's school friends but Mrs Lawson does not remember much of it.
On a day around the time of the funeral, a policeman visited the family home to take a statement from Mr Lawson.In the course of that, the policeman showed Mr and Mrs Lawson some photographs.There are 22 photographs, some showing the accident scene on the night and others takenduringdaylight, showingyellow road markings made by the Accident Investigation Squad. Fourteen were taken on the night of the accident. Theyshow the scene lit up and a number of them are close-ups showing the horrific damage to both cars. There are no photographs showing the deceased or the injured.Apart from what she was told by Callum, Mrs Lawson was also told by a police officer that Ashley had been thrown from the car.However, it is not clear whether she was told that when the policemen came that day to see her husband or whether it was on the night of the accident.
Dr W. E. Lucas, psychiatrist, first saw Mrs Lawson in April 1993 and he diagnosed her as suffering from a psychiatric condition namely, acute post traumatic stress disorder with markedly depressed mood.Both Mr Lawson and Mrs Lawson were impressive witnesses.I believe they were honest and gave their evidenceas accurately as they could.Given the enormity of the tragedy,it is not surprising that there are some areas where their memories are vague and some matters about which, one or other of them has no memory at all.That is particularly so in Mrs Lawson's case and she was very frank in acknowledging that there are some blank spots in her memory.
After the accident, Mrs Lawsoncould not sleep at all.She lay awake in bed every night thinking about it.As I have said, it is not possible to determine exactly when she learned that Ashley had been thrown from the car and whether it was from Callum or from a police officer but from a fairly early stage,she was acutely aware of that and she would often imagineAshley hitting the ground.She would visualise her becoming airborne, going through the glass and then see and hear her hit the ground.She knew that Ashley's jaw had been broken and in her mind she could hear the bones being broken.She blamed herself, thinking that if onlyshe had taken her shopping,Ashley would still be alive.She was haunted by this vision while she was awake and sometimes it would invade her dreams.
Another recurring nightmare involved a policeman who was the father of a boyfriend she had before she met Mr Lawson.Her nightmare wasthat policeman coming to the door, telling her there had been a terrible mistake and then Ashley would step out from behind him, bruised and battered and grin at her. In her dream she would panic, wondering who it was that she had buried.It got to the point that she could stand this no longer and she went to her general practitioner who gave her some tablets that she described as anti-depressants, telling her they would help her sleep.
Mrs Lawson could not bear to be at home during the day, surrounded by reminders of Ashley and within a week of the funeral, she went back to work at Lewis Nurseries.Evidence from herself and Mrs Rita Dodds who also worked with her, shows that she immersed herself in her work in an effort to overcome her preoccupation with thoughts of Ashley andthe way she died.She found that the tablets given to her by her doctor,made her feel very dopey in the morning and she stopped taking them.She continued to havenightmares every night.Shewas unable to eat and she lost a lot of weight.As she described it, her life became "very much a robotic existence". She found that she could not talk to her husband and she got to the point of hating Callum, because he didn't seem to care that his sister had been killed.She knows now that this was wrong thinking but she had no insight at the time.She went to work to escape from the house but once there, she foundshe still could not escape from her thoughts.She found it hard to relate to anyone and nothing seemed worthwhile.At work she would take herself off to the toilets and cry.Mrs Dodds confirmed that this happened frequently in the early stages.There were times when she had suicidal thoughts.Mr Lawson said that on a number of occasions, she spoke of doing away with herself by driving into the path of one of the many large trucks on Port Wakefield Road.Her obsession with work provided one benefit, in that she became quite expert in using a computer and in due course, she was promoted to be the dispatch manager at the firm's Beverley office.Her condition became worse over Christmas 1992.
In his report of 7 June 1993, Dr Lucas describes her condition when he first saw her on 7 April 1993.She was then having the dream of Ashley flying through the car window, every night and the dream about the policeman, weekly or fortnightly.He found symptoms of avoidance;for example, she would not drive onOld Port Wakefield Road and was unable to sew or bake because she associated these things with Ashley.Thoughts of the accident would intrude when she was awake.She had lessened concentration and loss of interest in things generally.At times she was restless, tense and anxious and, as was confirmed by Mr Lawson, extremely irritable and angry at Callum.She had always been concerned about safety and somewhat anxious but was much more so at that time.There was evidence of increased arousal;for example, if she heard a noise at night time, she would assume there had been a road accident.
Dr Lucas noted that her grief was still marked but it was complicated by what he described as an acute psychiatric disorder.He was concerned about her condition and wrote to her general practitioner.He said that the symptoms she described following the accident, were those of an acute post traumatic stress disorder with a clinically definable mood of depression.He considered that the mood disturbance was so marked that it constituted a separate disorder although itdid not qualify for the description of a major depressive episode. In his opinion,these disorders were over and above her grief.He agreed in evidence that depression can sometimes be part of the bereavement process and that various of the symptoms are also consistent with grief.He said however, that it was a matter of clinical judgment in each case as to whether the symptomsamounted to grief or whether they amounted to more and if so, what that was.Notwithstanding close cross-examination by Mr Trim, Dr Lucas was firm in his view that Mrs Lawson suffered from these disorders when he saw her in April 1993 and having considered his reasons for forming that opinion, I accept it.
Dr Lucas was questioned about the cause of her post traumatic stress disorder. He said that the circumstances affecting Mrs Lawson that night must be taken together as a set, constituting in his opinion, a very traumatic event starting when she is woken and extending to include her experience at the hospital.He described that as "the whole package"which was made up of a number of things. It began with a surprise awakening and was followed by the sight of a policeman at the door and the bad news of the accident, involving her husband, son and dead daughter.She then went with the policeman to the hospital, where she saw her injured husband and son.He said this event must be seen against the background of having left her children with her husband to goshopping and not taking her daughter with her.In other words he said, this was a safe setting in which she would expect nothing to happen.If something adverse and unexpected occurs in these circumstances,it can lead to a person being particularly shocked.In his opinion this is what happened to her and it was the genesis of the post traumatic stress disorder.
In determining causation, it is incumbent on a court to have regard to all the evidence, including the expert evidence but also to apply common sense (March v Stramare (1990-1991) 171 CLR 506).Dr Lucas's opinion about the effect of the events that occurred at home and at the hospital accord with common sense, in that she was woken with a fright and there was a fairly rapid and gradually worsening insult to Mrs Lawson's senses caused by what she saw and what she was told.I have already referred to her description of the feeling of numb disbelief and shock she felt on the way to and at the hospital.Dr Lucas was not aware that Mrs Lawson sawlights at the accident scene on the way to hospital and thus, he did not take it into account as part of the traumatic event.He formed the opinion that the insults of which he was aware,were sufficient to be the genesis of a post traumatic stress disorder.Common sense dictates that his opinion would be reinforced when within the relevant time frame, there is another traumatic sensation, namely seeing the lights of emergency vehicles at the place where she knows her daughter was killed a short time before.
Although he challenged it during evidence, Mr Trim ultimately acceptedthat for some period, there was a post traumatic stress disorder but as a matter of law, he disputed that it was compensable.That raises some nice issues. However before referring to them, it would be useful to deal with the progress of Mrs Lawson's condition because that has some bearing on the arguments about compensability.
It became evident to both Mr and Mrs Lawson that her condition was not improving and it seemed to be aggravated by the memories of Ashley which surrounded her at the Lewiston home.They finally decided they would have to move.They sold that house and moved to Para Hills.Both houses have been owned by them in fee simple as joint tenants.Mr Lawson thought that this move brought a slight improvement but that there was still a massive void in her life.They discussed at length the possibility of having another child and eventually it was decided to do so.In particular, she felt the need to be able to focus her love on a daughter. In the meantime, it had become clear to them that Callum had become hyperactive with personality problems that were causing difficulties at home and at school.Mrs Lawson thought she should spendmore time with him and so in February 1994, she stopped work.Mr Lawson needed to have his vasectomy reversed.This operation had to be done twice, because the vas did not remain patent the first time.
Twin girls were born on 18 November 1994.From the time Mrs Lawson knew she was pregnant, she began to improve, slowly at first.Althoughshe became aware that she was expecting twins,she was still anxious that she may not have a daughter.About half way through her pregnancy, she had an ultrasound andwas told that it was thought that one was a girl.From that time on, there was a marked improvement in her condition.After the birth in November 1994, she continued to improve rapidly.It is her assessment in retrospect, that she was slowly getting emotionally worse and more desperate before she became pregnant but that was the turning point.She is now happy with her weight and sleeps fairly well, with only very rare nightmares.She has not yet been able to take up sewing because of its association with Ashley.She said that she tried to make some maternity clothes at one stage but could not finish them.Gardening was another past-timeshe enjoyed with Ashley and she has not yet tried doing it.Thisis partly because she does not like gardening on her own (Mr Lawson is not interested) and partly because of its association with Ashley.
As mentioned, she has always been safety conscious but she is over-protective of the twins and Callum, not letting the girls in particular, travel in anyone else's car.She intends to stay at home with them and not return to work at alluntil they start kindergarten.She would then seek part-time work but would wait until they are at school before she works an ordinary day. There are striking physical resemblances between the twins and Ashley but as Mrs Lawson put it, they have their own personalities.Her feelings can best be summed up in her own words: "It's like I've been given another chance with them."The memories of the accident and Ashley's death can still be triggered bythings such as seeing a report of a motor vehicle accident or road safety advertisements on television.Occasionally she has feelings of depression but she is able to master them now.They may last for some hours but it would be rare for such a feeling to be carried over to the next day.Callum's behaviour is still causing some concern but he too, has settled considerably.
Dr Lucas is of the opinion that she no longer has a post traumatic stress disorder andhas been left with only relatively minor post traumatic symptoms. He said"the twin therapy" has been "remarkably successful in improving her mental state and markedly reducing problems in marriage.To some extent, it had a beneficial effect on her son but major problems with him appeared to continue."Dr Lucas considered that her desire to have another daughter was not so much as a replacement for Ashley but because of the way she wanted to relate to a daughter, especially given the background of the relationship with her own mother.In his opinion, she turned out to be right in terms of what she needed.He said that most post traumatic stress disorders resolve although theycan become chronic and remain severe for decades but in his opinion, she has come out of an acute disorder fairly rapidly.He said it is very difficult to say when she became no longer diagnosable as having a post traumatic stress disorder.There appeared to be some indications of improvement after conception and then further improvements in the course of pregnancy.Given that she had virtually no post-partum blues, he felt that certainly by the time of the birth, she no longer had a post traumatic stress disorder.He thought that by then the disorder would have largely resolved, although there were some continuing symptoms.It was not possible for him to fix an exact time but all things considered, he thought it reasonable to say that she no longer had the disorder as such at about the time of the birthor a little earlier.
Dr Lucas was asked to express an opinion on what may have happened with Mrs Lawson if the twins had not eventuated.He said that it was very difficult to offer a firm opinion because one is dealing with a dynamic situation in which there are a number of variables.These include the strengths and weaknesses in the personalities of both Mr and Mrs Lawson, their relationship with each other, the problems associated with Callum and his behaviour, etc.He did say however that the twins changed the structure of the family and most importantly, improved her mental state which in turn eased the problems for Mr Lawson and changed the whole atmosphere in the family.It was his opinion that there would have been continuing problems of some sort for a time had she not had the twins.Not surprisingly, he was unable to be more specific but as has already been noted, it can become a long term chronic problem.
WRONGS ACT - S35a
The common law applicable to a nervous shock claim has been set outby the High Court in Jaensch v Coffey (1983-1984) 155 CLR 549.Mr Eriksen for the plaintiffs, submitted that s35a of the Wrongs Act 1936 codifies the law relating to the assessment of damages for injuries caused in motor accidents, with the result that Mrs Lawson may recover damages for her psychiatric condition, notwithstanding that she may not comply with the requirements set out in Jaensch.I should make it clear that Mr Eriksen did not concede that Mrs Lawson did not qualify under Jaensch but simply that it was not necessary for her to do so.
The relevant part, s35a(1)(c), is as follows:
35a (1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
(c) no damages shall be awarded for mental or nervous shock except in favour of -
(i) a person who was physically injured in the accident, who was the driver of or a passenger in or on a motor vehicle involved in the accident or who was, when the accident occurred, present at the scene of the accident; or
(ii) a parent, spouse or child of a person killed, injured or endangered in the accident;
Mr Trim argued that s35a did not affect the common law requirements and merely limited the classes of persons who could bring an action for nervous shock.He also submitted that s35a was enacted to remedy a mischief and that therefore, following the decision of von Doussa J. inRogers v Resi-Statewide Corporation (1991) 101 ALR 377 and the authorities referred to by His Honour, I was at liberty to have regard to the second reading speech in the South Australian Parliament in relation to s35a, to ascertain the mischief which the amendment was intended to remedy.Further, Mr Trimsubmitted that if there were two constructions open, I could use s22 of the Acts Interpretation Act1915 for the same purpose.
In my opinion, I am unable to follow that course.Assuming without deciding, that s35a is intended to remedy a mischief, I do not believe I am able to have regard to the second reading speech because of the decision of the Full Court in Devine v Solomijczuk and Todd (1983) 32 SASR 538.Von Doussa J. sitting in the Federal Court, was not bound by that decision.In Devine,Mitchelland Zelling JJ. said that a court may not resort to Hansard even for the limited purpose of ascertaining the mischief which the enactment sought to rectify. Cox J. agreed that as a general rule this could not be done for the purposes of construing a statute but he also said that there was some authority for the view that an exceptionmay be made to enable resort to a statement in Parliament by the Minister who had carriage of the Bill to identify a mischief that the Bill was designed to remedy.Although Cox J. recognised that there was such a possibility, he found in the circumstances that it was not necessary for him to decide the question.In my opinion the judgments of Mitchell and Zelling JJ.prevent this court from having regard to the second reading speech.
It was put by Mr Trim that s22 of the Acts Interpretation Act which came into force after Devine, enabled the court to have regard to the second reading speech notwithstanding that decision.I do not agree.Section 22 reads as follows:
22 (1) Subject to subsection (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
(2) This section does not operate to create or extend any criminal liability.
In my opinion there is nothing in s22 thatchanges the effect of the decision in Devine.The fact that the section recognises that the purpose or object may not be expressly stated in the Act, does not, on the present state of the law, enable me to hold that the court may use a second reading speech as an aid to construction.So that these arguments could proceed, by consent I received de bene essea copy of the second reading speech by the Attorney-General in moving s35a. I therefore now rule that the copy of the second reading speech of the Attorney-General introducing the Bill to enact s35a of the Wrongs Act is inadmissible.
I turn to s35a(1)(c).In my opinion this subsection does not interfere with the common law requirements necessary to qualify for damages for nervous shock. I do not consider that the provision affects the common law, except insofar as it limits the right to damages to certain classes of persons or to circumstances of geographical proximity.
The phrase "mental or nervous shock" appears in the Wrongs Act in both s28 and s35a.Section 28 removes the bar to recovery merely because an injury results wholly or partly from mental or nervous shock.The phrase is not defined and the only reference to its meaning is in s35a(6) where for the purposes of s35a, "injury" includes "mental and nervous shock".The phrase has no meaning other than that which the common law has given it.InJaensch, Gibbs CJ. referred to the cause of action in the following way at p.552:
"As the law relating to damages for what is somewhat crudely called 'nervous shock' has limped on with cautious steps, to use the metaphor suggested by Windeyer J. in Mount Isa Mines Ltd v Pusey, the old and irrational limitations on the right to recover damages for an injury of this kind have one by one been removed."
Brennan J. said at pp.559-560:
"A century ago psychiatric illness, without more, was not a form of harm or damage for which damages for negligence could be recovered: Victorian Railways Commissioners v Coultas. But at least for the last half-century 'neurasthenic breakdown amounting to (psychiatric) illness' has been held to be 'without more ... a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, ... supposing that the other ingredients of the cause of action are present':per Dixon J. in Bunyan v Jordan.The term 'nervous shock' has been used to describe that form of damage, although the term may not be an accurate medical description of the range of psychiatric illnesses which it is intended to cover - 'any recognisable psychiatric illness' was the description used by Lord Denning MR in Hinze v Berry and cited by Windeyer J. in Mount Isa Mines Ltd v Pusey, and that description must be right.Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability.The term 'nervous shock' is useful nevertheless as a term of art to indicate the aetiology of a psychiatric illness for which damages are recoverable in an action on the case when the other elements of the cause of action are present."
Deane J. said at p.587:
"It is now the settled law in this country that there is a distinction, for the purposes of the law of negligence, between mere grief or sorrow which does not sound in damages and forms of psychoneurosis and mental illness (which lawyers have imprecisely termed 'nervous shock') which may ..........Any doubt in that regard would, in any event,have been removed for the purposes of the present case by the provisions of s.28(1) of the Wrongs Act 1936-1975 (SA) ..."
As there isnothing in the Wrongs Act to indicate otherwise, it is my opinion that the term "nervous shock" and for that matter the whole phrase "mental or nervous shock" must be read as referring to the compensable cause of action referred to in the authorities and for it to be compensable, that mental or nervous shock must comply with the requirements and limitations imposed by the common law.I therefore do not accept Mr Eriksen's submission, that it would be enough for Mrs Lawson as the mother of a childkilled in a motor accident, to have suffered a recognisable psychiatric illness following Ashley's death, notwithstanding that she might not otherwise qualify at common law.
In deference to the argument put by Mr Eriksen, I refer to his submission that the court could hold that s35a(1)(c) is a self contained code in relation to claims for nervous shock arising out of motor accidents because of the decision of the Full Court in Carroll v Lewitzke (1991) 56 SASR 18 where the majority (Mohr and Bollen JJ.) held that s35a(1)(i) provides a code for determining whether damages are to be reduced for failure to wear a seatbelt and that the previously applied law relevant to contributory negligence, cannot coexist with that subsection and was therefore inapplicable.In my opinion, different considerations apply to the wording of s35a(1)(i) because it defines the elements to be taken into account by way of reduction of damages if a plaintiff over the age of 16 years is not wearing a seatbelt as required.The Full Court held that those elements do not includecommon law negligence.By contrast, for the reasons I have given, s35a(1)(c) does not define the elements of the cause of action of nervous shock but only confines its reach.I do not read Carrollas authority for the wider proposition that all of s35a has the same effect as s35a(1)(i).It seems to me that eachsubsection of s35a has effect according to its own wording andthe head of damage in question, with some provisions having more radical consequences than others.
COMMON LAW
Mr Trim submitted that Mrs Lawson does not qualify for damages for nervous shock because her condition was not caused by "shock" in the sense that the law requires.He referred to Brennan J. in Jaensch where he said at p.565:
"The courts have insisted on proof of a demonstrable and readily-appreciable cause of psychiatric illness - the cause itself being a result of the defendant's careless conduct - before damages for negligence occasioning psychiatric illness are awarded.A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by 'shock'.Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness."
Brennan J. expanded on the meaning of "shock" at pp.567-568:
"I understand 'shock' in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness.A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential.If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tort feasors.
The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenonmay have for the person who perceives it....No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it.The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries.There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident ...It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness."
In Jaensch, the claim was for nervous shock induced not by what the plaintiff saw at the scene of the accident but by what she saw of her injured husband at the hospital.Dawson J. said at pp.612-613:
" ........ the test of foreseability 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. ......... I am content to express my agreement that the events which caused nervous shock to the plaintiff were part of the aftermath of the accident resulting from the defendant's negligence.I agree with the view expressed by Deane J. that the fact that those events were a combination of the plaintiff's own observations and what she was told by others does not preclude the recovery of damages."
Mr Trim submitted that Mrs Lawsonwas not subjected to a sudden sensory perception of the type referred to in Jaensch.It was put that what she saw was a policemanthrough the glass door but that I should regard that as no more than part and parcel of the delivery of a message, particularly in circumstances such as this.He submitted that by itself this was not sufficiently distressing for the sequelae that followed, albeit that it was the start of a chain of accumulating events.He further submitted that there was no suggestion in Mrs Lawson's evidence that she was traumatised by what she saw at the hospital and there is no evidence to say that her perception of the lights at the scene of the accident from some distance away was a sufficient stressor, particularly as she did not see any of the vehicles themselves.He pointed to the fact that Mrs Lawson had not mentioned seeing the lights to Dr Lucas, as being indicative of its lack of importance to her as a stressor.In that respect it was also submitted that seeing the lights was not a perception of a direct sensory nature but that at best, it had an effect on her ruminations about what by then she already knew had happened to her daughter.
Mr Trim referred to a number of decisions of superior courts where it has been held consistently that although variously expressed, there must be a "shock" in the senseit is described in Jaensch and that the accumulation of information over time does not qualify as the type of sensory perception required by law. In particular, he said that the information she obtained from the policeman who visited near the date of the funeral and by seeing the photographs he had,was well outside the time frame contemplated by Jaensch.It is unnecessary to refer to the various decisions except to say that in the United Kingdom, the principles have been reinforced by the House of Lords in Alcock v Chief Constable of South Yorkshire Police (1992) 1AC 310 to the effect that there must be shock in the sense of some "sudden assault on the nervous system" (per Lord Keith at p.398), "sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind" (per Lord Ackner at p.401) and "the elements of immediacy, closeness of time and space, and direct visual or aural perception" (per Lord Oliver of Aylmerton at p.416-417).Alcock concerned claims for nervous shock by relatives and friends of spectators involved in the Hillsborough Stadium disaster in April 1989.Some plaintiffs were at the ground, others saw it on television and others heard about it on the radio or from friends.
Mr Eriksen submitted that Mrs Lawson fulfilled the requirements set out by the High Court but that if I was against that submission, it was open to me to find that the fact of her learning of Ashley's death from the policeman at the house was, by itself, sufficient to enable her to claim damages.He referred to Deane J. in Jaensch at p.608 where he said:
"One can point to a number of judicial statements to the effect that a person 'who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account' ....... A requirement that the plaintiff must have perceived the peril or injury by her or his 'own unaided senses' has not, however, enjoyed unqualified support either in the United Kingdom or Australia ......... and the question whether the requirement of proximity precludes recovery in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one."
I should deal with that point first.The issue of whether simply learning of the death of a loved one may suffice in certain circumstances,has recently been discussed with particular reference to the dictum of Deane J. but not finally decided by the NSW Court of Appeal in Coates v GIO of NSW (1995) 36 NSWLR 1.Kirby P. favoured imposing liability for communication-induced shock and related psychiatric harm.Clarke JA referred to two first instance decisions in the United Kingdom where damages have been allowed for shock resulting from being informed of the death of a close relative.He also pointed out that courts in Australia have not been totally consistent but said it was unnecessary to resolve the issue in the present case anddid not think it appropriate to offer a tentative view by way of obiter dictum.Gleeson CJ similarly declined to express an opinion obiter, although he acknowledged that questions had been consciously left open by the High Court.On the view I take of the facts, it is not necessary to decide the point.
In my opinion, Mrs Lawson qualifies for damages for nervous shock.She was subjected to the sort of sensory perception referred to in Jaensch during the aftermath of the accident.The "aftermath" of an accident has been variously described and was held in Jaensch to include events at the scene after the occurrence of the accident, taking an injured person to hospital for treatment and to persist for so long as the relevant persons remain in the state produced by the accident, including immediate post accident treatment.
There is no doubt that Mrs Lawson sufferedrecognisable psychiatric injury in the form of a post traumatic stress disorder and clinical depression.It is common ground that for at least some period, she suffered a post traumatic stress disorder.I shall return to that.In my opinion, the evidence shows that the events which caused her nervous shockwere part of the aftermath of the accident, being made up partly of what she was told by the police officer at her home and partly by what she saw for herself on the way to hospital and at the hospital.Jaensch makes it clear that the aftermath of the accident extends to include what is observed at the hospital and I see no reason to exclude it even though it was her injured husband and son that she saw there and not the body of her daughter.Applyingwhat was said by Dawson and Deane JJ.,the fact that the events during the aftermath giving rise to the shock, were a combination of what she was told and what she saw for herself, does not preclude her from recovering damages.That this perception and the resultant shock may have been aggravated by events occurring after what could fairly be regarded as the aftermath of the accident,does not affect that entitlement. As mentioned earlier, Dr Lucas defined the parameters of the period during which the damage giving rise to her psychiatric condition was done, as being from when she was woken by the telephone until and including her experience after arrival at the hospital.
It is a question of fact whether it is reasonably foreseeable that the sudden perception of a particular phenomenonmight induce psychiatric illness.The phenomenon may be described as a sudden assault on the nervous system, a psychological insult or similar.But it is clear from Jaensch, that the phenomenon does not need to be a single event.It may consist of more than one element, as it does here.Ordinarily, the duty of care is predicated on the assumption that the plaintiff has a normal susceptibility to psychiatric illness but - "if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance - for example, the parent of a child injured in a road accident who comes upon the scene - the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce" (per Brennan J. at 568-569).
In my opinion it was reasonably foreseeable that the events constituting the perception by Mrs Lawson on that night, could induce a psychiatric illness, given that she was the mother of both the seven year old girl who was killed and the five year old boy who was injured and the wife of the husband who was injured.That relationship is relevant.She went to bed confident of the safety of her family and was woken to devastating news.She thenpassed close enough to the scene of the accident to identify what it was and to be aware that she was looking at lights marking the place where her child had just been killed.She then saw her husband and son at the hospital, particularly Mr Lawson with blood on him and was faced with the immediate and perfectly understandable thought that if he looked like that, how much worse must her daughter be to look at.In my opinion, it is reasonably foreseeable that a mother and wife faced with those sensory perceptions could suffer a psychiatric illness as a result.I am satisfied on the evidence of Dr Lucas that these perceptions did induce that illness.It may well be that this illness was made worse by reason of matters learned later and the trauma of preparing her daughter for burial. But that does not detract from Mrs Lawson's right to damages.I do not accept the submission that the onset of the psychiatric illness was caused by a prolonged series of events extending beyond the aftermath of the accident.There is a difference between saying on the one hand, that to account for the post traumatic stress disorder it would have been necessary to have suffered greater insults to the mind and the emotions than occurred on the night of the accident and saying on the other, that it took some time for the damage done by the events of that night to blossom into the fully fledged condition known as a post traumatic stress disorder.I accept that the traumatic perceptions of that night account for the disorder.
QUANTUM - GENERAL MATTERS
I turn then to assess the damages.Two issues of general application were raised by Mr Trim.There is ample authority for the proposition that grief, sorrow and general deprivation of a loved one, do not sound in damages.His first submission, relying onHinz v Berry (1970) 2 QB 40,wasthat although it must be a fairly arbitrary exercise, I shoulddeduct from the award, that which could fairly be regarded as normal grief reaction to a very distressing event.Mrs Hinz saw her husband killed and her children injured by a runaway motor car.At trial she was awarded damages for, inter alia, nervous shock. The question before the Court of Appeal was whether her damages were excessive. In dismissing the appeal, their Lordships said that some types of mental suffering were not compensable and in particular, sorrow and grief.This case was decided at a time when damages for nervous shock could beawarded only if the plaintiff was present at the accident scene and to illustrate a method by which the court could distinguish the non-compensable components of a plaintiff's anguish, Lord Denning M.R. proposed the following test at p 43:
"Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable, and nervous shock and psychiatric illness for which damages are recoverable.The way to do this is to estimate how much Mrs. Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident."
Finding that Mrs Hinz had suffered much more by being present, His Lordship considered the grief and sorrow she would have suffered if she had not been presentand agreed with the trial judge, that she would have stood up to that even though sorrowful and in mourning but would not have been reduced to a state of morbid depression.On the facts, it was found that her witnessing the accident was the sole cause of the added morbidity.
Lord Pearson acknowledged that it can be a complex exercise to separate the factors contributing to mental dysfunction but in holding that a court must essay that task to fix an award, he said at p 45:
"It should not be for the whole of the mental anguish and suffering which she has been enduring during the last five or six years.It should be only for that additional element which has been contributed by the shock of witnessing the accident, and which would not have occurred if she had not suffered that shock."
Given the present state of the law, it is of course, necessary to modify their Lordships' reference to the need for geographical proximity, when considering the application of these principles.
In my opinion the course suggested by Mr Trim is not open to me.Although concerned with an assessment of damages under the Criminal InjuriesCompensation Act 1978, the Full Court held in T v The State of South Australia
(1992) 59 SASR 278 that it would be wrong to undertake this exercise.At that time, damages for non-financial loss under that Act were assessed on the ordinary common law principles applicable to non-economic damages but subject to a statutory ceiling. The applicant sought compensation for psychological injuries she suffered as the result of an act of sexual intercourse on her 11 year old sonby her defacto husband.It was found that she suffered a recognisable psychiatric illness.In assessing damages, the trial judge deducted from the totality of the applicant's suffering, "normal" grief and distress to determine the extent of the compensable injury.Their Honours held that although mere sorrow and grief which cause emotional distress and no more, are insufficient when taken alone to establish a compensable injury, the whole of the sequelae, including those components, was compensableand the trial judge was in error in making the deduction.Legoe J. with whom Millhouse J. agreed said at p.282:
"In my opinion the assessment in this case on common law principles miscarried, and the learned judge was in error in deducting 'normal' grief and distress from the totality of the applicant's suffering to arrive at what he found constituted the injury.Injury as defined in the Act, unless the contrary intention appears means 'physical or mental injury sustained by any person, and includes pregnancy, mental shock and nervous shock'.In my judgment the learned trial judge should have proceeded to the assessment of the totality of the mental or emotional stress which resulted in the injury."
Olsson J.,having accepted the finding that there was a recognisable psychological disorder and having repeated the trial judge's reference to the likely reaction of most mothers to such an offence, said at p.289:
"It seems to me that, on such a basis of reasoning, he then went on to discount what would otherwise be a usual assessment of damages, to allow for the element of 'normal' grief and distress.
If this is indeed the process upon which he embarked then it is, in my view, patently in discord with both the intendment of the legislation and the well-established basis upon which common law damages are assessed.
Once it be established that a relevant injury as defined has been sustained by a claimant in compensable circumstances, then the court is required, as a first step, to make a monetary assessment of the damages which ought properly to flow, in recognition of the total relevant deleterious change in the condition of a claimant which has been brought by the wrongful conduct of an offender.
What is necessarily in contemplation is the actual condition to which a claimant has been reduced by virtue of the relevant injury, by way of contrast with that which pre-existed the conduct under contemplation. I know of no common law principle which requires some discount to be applied by way of allowance, for that component of the sequelae of wrongful conduct which can be attributed to what might loosely be described as normal mere grief or sorrow. In any event an attempt to do so would, in most circumstances, be a pointless and impossible exercise."
It does not appear from the report of T v State of South Australia that their Honours' attention was directed to Hinz v Berry or to a number of authorities in Australia and other common law jurisdictions.In the circumstances I need only be brief.As recently as in Alcock v Chief Constable supra, Lord Oliver at p 413 referred to Hinz v Berry as a useful illustration of the extreme difficulty of separating compensable injury from non-compensable consequences flowing from the simple fact that the accident has occurred.In De Franceschi v Storrier (1985) 85 ACTR 1, Miles CJ., when assessing damages for nervous shock for a mother whose children were injured in a road accident, said (at p 8) that although it was a highly artificial exercise to try to separate those elements which related to nervous shock from those related to natural concern for her children, the exercise had to be undertaken.Examples of other cases where the courts have wrestled with this problem are Richters v Motor Tyre Service Pty Ltd (1972) Qd R 9, Harrison v State Government Insurance Office
(1985) Aust. Torts Rep. 80-723 and Montgomery v Murphy (1982) 136 DLR (3d) 525.
In my view it would be reading T v State of South Australia too narrowly to say that it only applies to assessments under the Criminal InjuriesCompensation Act.The principles enunciated by the Full Court are indistinguishable from those to be applied in this case and I hold that I am bound to disregard the submission that I should make some estimate of the so-called normal grief or sorrow which Mrs Lawson would have suffered and treat it as a non-compensable element in her overall mental anguish and suffering. However, in the event that I am held to have erred in refusing to accept this submission,I should discuss briefly the approach I would have taken if I had upheld it.
Common sense dictates that even without a psychiatric reaction, Mrs Lawson's grief, sorrow and general feelings of distress and loss would have been significant.The evidence of Dr Lucas shows that a number of her reactions are also elements of the normal grieving/bereavement process. However, he expected that these symptoms would have been transient and compared to what she suffered, short lived and much less intense.For that reason I do not think "normal grief" would have lasted long enough to cause any of the economic loss to which I shall refer in due course other than two weeks loss of wages in December 1992 amounting to $526.However, admittedly using a broad axe,I would think it reasonable to have reduced her award for non-economic loss by one-third to account for the non-compensable consequences.
The second issue raised by Mr Trimwas that the evidence did not justify finding a compensable matter other than for at best, a closed period of approximately 20-23 months - ie from the time of the accident until either a short time before or at the latest, when the twins were born.Dr Lucas said that by that time,there was no longer a diagnosable psychiatric condition but merely evidence of post traumatic stress with the major disorder having resolved.
The pith of Mr Trim's submission is that there was a short periodof non-compensable grief leading up to the onset of the post traumatic stress disorder and that once she ceased to be diagnosable as having the full-blown disorder, there should be no further compensation becausehercondition could thenbe attributed to an ongoing normal grief reaction.I do not accept the submission.In my opinion, a fair reading of the evidence of Dr Lucas is that in the early stages, there was an immediate compounding of what might otherwise have been a normal grief reaction by the burgeoning post traumatic stress disorder.I accept that by about the time the twins were born, Mrs Lawson no longer had the disorder.However, I am also satisfied that the evidence shows that what she was left with was not, as it were, a resumed grief reaction but the legacy of an acute post traumatic stress disorder.Over time this has largely resolved but she will never be free from some of those remnants - e.g. susceptibility to recurrence,occasional bouts of short-lived depression, etc. Although this legacy is comparativelyminor, it is compensable and must be taken into account.
ASSESSMENT
The plaintiff's damages for non-economic loss are to be assessed on the scale of 0-60, it being well established that the numerical value must be assigned according to the severity of the loss, with 60 representing the worst possible loss overall.For the purposes of s35a in this case, non-economic loss includes pain, suffering and loss of amenities of life.It is not necessary to repeat the details of the detriments suffered by Mrs Lawson and the consequences.In short she had a period of acute psychiatric disorder but fortunately thathas resolved and largely due to the twins, the legacy is small.In my opinion the appropriate numerical value to be assigned is 10. The relevant multiplier is $1,370, producing a figure of $13,700.
Mrs Lawson also claims $526 for net wages lost during the two weeks she was off work immediately following the accident.She must recover that.
A payment has already been made to the plaintiffs for solatium and there has been no claim made in Mrs Lawson's action for funeral expenses or other special damages.However, it is submitted that there are some costs which are recoverable as a result of stepssaid to have been taken by way of mitigation. First, there should be recompense for the costs incurred in selling the home at Lewiston and relocating in the new home at Para Hills.The settlement of Mr Lawson's action did not include any allowance for these expenses.The second is that in relation to the twins, there should be an allowance for her loss of earning capacity during the period they need full time care from their mother.
These two matters are put forward, not on the basis that they are items of damage caused by the tort but rather, as loss incurred in mitigating the loss inflicted by the defendant.Therefore,foreseeability and remoteness are not the criteria but rather, whether the expense or loss incurred in mitigation is reasonable.I refer toBrennan J. in Fox v Wood (1981) 148 CLR 438 at p.446 where he said:
"In principle, a tortfeasor's liability for the cost of mitigation of damage is not to be tested in the same way as his liability for an item of damage which is said to have been caused by the tort.Where particular steps in mitigation are a commonplace, it is natural to think of their costs as items of damage which are foreseeable by the tortfeasor and not too remote to be excluded from the items for which he is liable:for example, the cost of a surgical operation to ameliorate personal injury ....But foreseeability and remoteness are not the criteria of a tortfeasor defendant's liability for a cost incurred by the plaintiff in mitigating or attempting to mitigate damage for which the defendant is liable or for which he would have been liable but for the plaintiff's ability to avoid the damage by taking a step in mitigation. The criterion is whether the plaintiff has reasonably incurred the costs in mitigating or in reasonably attempting to mitigate that damage and it is a question of fact whether the plaintiff has acted reasonably ......"
Three principles concerning mitigation set out in McGregor on Damages were approved and in particular, the second rule was applied, by the Victorian Full Court in Tuncel v Renown Plate Co (1976) VR 501 at pp. 503-504.The court said as follows:
"The word 'mitigation' is used in various ways as the author of Mayne and McGregor on Damages 12th ed. (1963), at par. 144, was at pains to point out. He, however, formulated in three rules the result of the authorities on 'mitigation' as that word should be used in the context of the facts of this case and, in our opinion, those rules accurately state the relevant law in a convenient form, viz.:-
'The three rules are these: -
(1) The first and most important rule is that the plaintiff must take all reasonable steps to mitigate the loss to him consequent upon the defendant's wrong and cannot recover damages for any such loss which he could thus have avoided but has failed, through unreasonable action or inaction, to avoid.Put shortly, the plaintiff cannot recover for avoidable loss.
(2) The second rule is the corollary of the first and is that where the plaintiff does take reasonable steps to mitigate the loss to him consequent upon the defendant's wrong he can recover for loss incurred in so doing;this is so even although the resulting damage is in the event greater than it would have been had the mitigating steps not been taken.Put shortly, the plaintiff can recover for loss incurred in reasonable attempts to avoid loss.
(3) The third rule is that where the plaintiff does take steps to mitigate the loss to him consequent upon the defendant's wrong and these steps are successful, the defendant is entitled to the benefit accruing from the plaintiff's action and is liable only for the loss as lessened;this is so even although the plaintiff would not have been debarred under the first rule from recovering the whole loss, which would have accrued in the absence of his successful mitigating steps, by reason of these steps not being ones which were required of him under the first rule.Put shortly, the plaintiff cannot recover for avoided loss. ' "
Applying these principles, the Full Court held that a claim for lost wages required credit to the extent that the wages were replaced by unemployment benefits.The same principles were applied by the NSW Court of Appeal in an action against a firm of chartered accountants for damages for professional negligence in Simonius Vischer and Co v Holt and Thompson (1979) 2 NSWLR 322 and in particular at p.356 et seq.The fact that action taken by way of attempted mitigation is not successful, does not of itself bar recovery (Whitehouse Hotels v Lido Savoy Pty Ltd [1975] 49 ALJR 93).
I shall consider the two claims separately.
The costs involved in moving home such as government fees, bank fees, agents' fees etc. total $12,003 (rounded off).There is no submission that any individual item should be excluded.It is the defendant's case that no allowance should be made at all, because the cost of relocating was not a product of the post traumatic stress disorder but was caused by the need for the family members as a whole, to adjust to the circumstances in which they found themselves.On the other hand,Mr Eriksen argued that the evidence showed that the primary reason was Mrs Lawson's condition,such that she found it intolerable to live in the Lewiston house among the constant reminders of her daughter.When she and her husband decided to move house,she was suffering from an acute stage of the disorder.That psychiatric condition was inextricably involved with reminders of Ashley and the accident.It is unnecessary to repeat the evidence.It is not to the point that if Mrs Lawson had not suffered the psychiatric disorder,they may have chosen to move in any event.The answer to that is not known and would require speculation.Having regard to the evidence of the Lawsons and Dr Lucas, I consider that the action taken to relocate in mid 1993was reasonable as an act of mitigation even though it was only marginally beneficial in the immediate term and that there is a right of recovery.
Mr Trim argued in the alternative, that if the cost of moving was ordinarily allowable, in this case there should be no award or, if I was against him on that, at most, only part recovery.He argued that there should be no award at all because the plaintiffs were no worse off as a result of the move. He said that after accounting for the monies received for the Lewiston home against the cost of the Para Hills home and incidental expenses, there was a cash benefit to the plaintiff and her husband, in that not all the proceeds from the sale were needed to buy the new home.In the absence of evidence to show that there was a windfall on the sale of the first home, I must assume that the monies received for that home and the cost of purchasing the new home were respectively governed by and relative to their true values.The fact that the expenses incurred in moving home were met from the proceeds of sale of the Lewiston home, does not show that the plaintiffs were financially better off but rather, that indicates it was necessary for them to resort to capital to pay those expenses.
The second argument was that because both homes have been owned jointly by the plaintiffs, Mrs Lawson could not recover the whole of the expenses but only a portion.Against that it was submitted by Mr Eriksen,there was a joint and several liability,therefore there was no reason to reduce those expenses and thus, the whole was recoverable by Mrs Lawson.As a matter of commonsense, one can regard the purchase of a home as a longterm investment even if it happens that for one reason or another, the owners decide to sell.I agree that there is a joint and several liability attaching to a joint tenancy but equally, there is ordinarily an expectation that on the death of one,the surviving tenant will become sole owner of the property.I think it would be unreasonable to ignore the fact that Mr Lawson has obtained at least an equal benefit from the expenditure and that in certain future circumstances, he could obtain the whole benefit.Moreover, althougha family home may be regarded as a longterm investment, it is likely that there will come a time when after a family has grown up, the parents or surviving parent will find that the house is too large and will buy something smaller.That would involve expense. Thus, although I accept that in the ordinary course,Mr and Mrs Lawson would have remained at the Lewiston property for some years,the probabilities are that they would have been obliged to meet some expenses in the course of buying down once the family grew up.Taking all these matters into account, I agree that Mrs Lawson can only recover part of the expenses incurred in moving home and in my opinion,the defendant should not be called on to contribute more than $4,000.
Mrs Lawson also claims loss of wages for the time spent looking after the twins until they start school.It is her case that she acted reasonably in mitigation in having the twins and that had the present circumstances not arisen,she would have been working throughout that time.The plaintiff left work in February 1994, not because she was pregnant but as I have said, because of Callum's problems. The twins were born on 18 November 1994. One cannotbe definite about how long Mrs Lawson would have remained away from work because of Callum if she had not had the twins but I am satisfiedthat were it not for the twins, the probabilities are that as soon as she was satisfied that Callum's difficulties were reasonably under control, she would have returned to her work with Lewis Nurseries.This job or one like it, would probably have been available and barring emergencies or misfortunes, there is no reason to think she would not have been able to do it.
Having regard to the whole of the evidence, it is reasonable to infer that she will not be able to confidently leave the twins in the care of others while they are small.However,once the twins are at kindergarten I accept that she will look for part-time work and once they are settled into school, shewill seek full time work,much the same as she did prior to February 1994.There are of course, risks and there may be some delay. But I accept that she will basically fulfil these ambitions.
Evidence about her wages during the period of some 31 weeks prior to ceasing work in February 1994, shows that if she were working at present, she would be earning about $19,000 per annum net after tax and if she had been working, her net income from February 1994 to trial would have been $36,000.In short, it was submitted that after making some allowance for a couple of months or so to attend to Callum, it would be reasonable to allow the plaintiff approximately $30,000 loss of earnings to trial and a further four years into the future, making $76,000.In all, the claim for this item of damage was suggested as being in the order of $106,000.
Although arising in a different context, namelyan unplanned pregnancy as a consequence of a negligently performed sterilisation operation,there is ample authority for the proposition that it is not contrary to public policy to award damages for expenses associated with the birth of a child and I cite in particular, the decisions of the Court of Appeal in Emeh v Kensington Area Health Authority (1985) 1 QB 1012 and Thake v Maurice (1986) 1 QB 644.Part of the cost of adopting a baby was allowed to a plaintiff whosuffered such serious injuries in a motor vehicle accident, that she lost her33 week old baby in utero and had to have a hysterectomy.These damages were awardedon the basis that the adoption had substantially mitigated the psychiatric condition she had sufferedas a result of that loss. (Gray v Hand - Wood J. Supreme Court of NSW, 18 July 1985 - Unreported).
I need not repeat evidence to which I have referred already or findings I have made.I am satisfied that were it not for Ashley's death, it is most unlikely that the plaintiffs would have had more children.I have no reason to conclude that the mere fact of Ashley's death would by itself, havelead to their having another child, although it must be regarded as a possibility.I do not accept the defendant's submission that the decision to have another child was not in mitigation of a compensable loss.Overall, the evidence shows that it was her severe psychiatric disorder that led them to plan another child in the hope that it would ameliorate her condition.As Mrs Lawson put it, she was slowly becoming more desperate at the time she became pregnant.For reasons I have already given, I accept that the "twin therapy" was beneficial.
Applying the principles set out in the authorities to which I have referred, I am satisfied that the plaintiffs' action which resulted in the birth of the twins was reasonable in that apart from bringing them the happiness of two healthy daughters,it avoided further loss and detriment to Mrs Lawson which would have been recoverable from the defendant.The twins can therefore attract compensation.The question is whether it is reasonable to claim in respect of them during the period of greatest dependency, before they start school.I consider that it is.Mr Trim pointed out that the birth of the twins has given the family a far better long term legacy than simply assisting Mrs Lawson overcome her psychological disorder which may have been transient in any event.I agree.However, that does not persuade me that it is therefore something that should not attract damages.Mrs Lawson makes no claim for costs associated with pregnancy, confinement, delivery or generally rearing the children.Although the defendant disputes the entitlement to any award under this head, it wasnot suggested that if there is to be an award, reference to the loss of her wages is an inappropriate method of addressing the loss in this case.
Unless there is a special reason, it is not unusual for expectant mothers to work until a few weeks before giving birth.Even though Mrs Lawson was psychiatrically unwell, there is no evidence to suggest that were it not for Callum's problems, she would not have been able to continue in her work for as long as that.In these circumstances, I do not consider that she should recover any lost wages on this account prior to October 1994.
In considering the award to be made, I start with a period of one year prior to trial, which is a net figure of $19,000.For that period, as well as the future, I bear in mind the contingency that Mrs Lawson's employment may have been interrupted by Callum's needs and, if she had lived, by Ashley.Other family matters may have intruded.I think that in her case the risks of retrenchment and the like are offset by the prospects of improvement.The probabilities are that although Mrs Lawson will not work at all until the twins begin kindergarten,she will be likely to work in the order of about one-thirdtime during that final year before they start school.Thus the starting point for the post-trial period is three years at $19,000=$57,000 and the final year at say $12,000, making $69,000.No actuarial evidence was tendered but there must be some discount for the present receipt of the lump sum.I therefore reduce that figure to $62,000.When added to the pre-trial figure of $19,000, that totals $81,000.
Account must now be taken of the contingencies I have mentioned and this raises the question of whether account should also be taken of the significant long term benefits that enure to Mrs Lawson and her family from the infants, other than the improvement of her mental and emotional condition.There are competing interests here.On the one hand, if she had not had the twins which in turn involves lost wages, there would have been no mitigation and the defendant would have probably been liable for a greater, although unspecifiable, award.On the other hand, if the defendant is called on to pay the whole of that loss of wages, he is to that extent, not only meeting the cost of mitigation but in doing so, providing Mrs Lawson with a collateral benefit.It is of course, only a partial contribution because other expenses associated with the children are not claimed.Although the third rule on mitigation referred to in Tuncel v Renown Plate (supra) is that where the steps taken in mitigation are successful, the defendant is entitled to the benefit of that, it does not assist.The defendant has received that benefit because Mrs Lawson'sentitlement has been reduced by successful mitigation and the rule does not contemplate collateral benefits.It is aimed atpreventing a plaintiff recovering for loss that has been avoided.
Although there is a betterment factor, I do not consider that there should be a reduction on account of it.The collateral benefit to Mrs Lawson is non-pecuniary.Even when considering whether a pecuniary collateral benefit is to be taken into account, a court must determine the character of the benefit to establish whether it is intended to meet the particular type of loss in questionbefore it can operate in relief of the wrongdoer (Redding v Lee
(1983) 151 CLR 117).In mitigating her loss, Mrs Lawson has had to, and will have to, forego earnings.If the quantum is otherwise reasonable, I do not see any basis on which the refund of that loss should be reducedbecause of a collateral non-pecuniary benefit.To the extent that she has received a benefit from the children in her general state of well-being, it is reflected in the award for non-economic damages.To take account of the other contingencies I reduce the figure of $81,000 to $75,000.For the purposes of allowing interest, I attribute $25,000 for the period prior to judgment.
Interest is payable on the items of past economic loss namely $526 (wages lost in December 1992), $4,000 (relocation expenses in mid 1993) and $25,000 (on account of wage loss between October 1994 - March 1996).A reasonable interest rate for that period is 5%.Interest should run on the whole of $526 and $4,000 from the respective times they were incurred and in my opinion, should run on 50% of $25,000 during the relevant time to reflect the fact that it has been gradually accruing.Rounded off, interestcalculates to $1,450.
In summary therefore the items of damages are:
Non-economic loss:$13,700
Lost wages December 1992:$526
Relocation expenses:$ 4,000
On account of wage loss during infancy: $75,000
Interest$ 1,450
$94,676
The plaintiff Tracey Lawson will have judgment for $94,676.
0
7
0