Lorincz v Lonardo & Fischetto No. DCCIV-97-1517

LORINCZ v LONARDO & FISCHETTO
[2000] SADC 97

Judge Allan
Civil

This case is about nervous shock.
On 5 December 1994, the plaintiff’s 20 month old son, Mitchell, suffered severe burns to his foot in the presence of the plaintiff when he stood on some coals in the backyard of the defendants’ house; the plaintiff and her son having been invited into the defendants’ home. The plaintiff claims damages for nervous shock. The issues arising for determination go to both negligence and damages.
At the relevant time, the plaintiff and the defendants lived next door to each other at Grange. The plaintiff lived with her husband, Mitchell and the two sons of her earlier marriage.
On 4 December 1994, a barbecue was held at the defendants’ premises. The defendants were not the hosts for the occasion, but had allowed their house to be used for that purpose. In the evening of that day, when the barbecue was over, the coals from the barbecue were emptied onto the ground in an area of the defendants’ backyard which was enclosed by a fence and the wall of a shed. It was a garden area. At the time, part of the area contained some tomato plants. The rest of the area seems to have been fallow. The coals were tipped onto the fallow area near the back fence, about one foot from a concrete path which ran down the side of the shed. There was a gate in the fence on the path. As best I can tell on the evidence, it was fitted with a simple latch. Neither of the defendants emptied the coals onto the area, but they each knew that it had been done. The second defendant shovelled some dirt over the coals. He said as much in his evidence, and I accept it. The barbecue from which the coals came did not belong to the defendants.
On the day of the accident, the plaintiff’s husband had been attaching some shade cloth to part of their and the defendants’ premises and, for that purpose, he had been given access by the defendants to their property. At some time after that, the plaintiff went into the defendants’ premises, having been invited in to meet some relatives who were visiting. Naturally enough, Mitchell was there too. There is some confusion on the evidence as to whether Mitchell went into the defendants’ home with his father or with the plaintiff; but, for present purposes, it does not matter; the important thing being that, at some stage prior to the accident, the plaintiff, her husband and Mitchell were present on the defendants’ property at the invitation of the defendants. It was a hot day. Mitchell was wearing a disposable nappy and nothing else. He had nothing on his feet. Included amongst the relatives visiting the defendants was a girl about the same age as Mitchell.
The adults were seated under a shade which had been erected on the lawn and the two children were moving about the yard. At some stage, not long after the plaintiff arrived, the two children made their way to the gate in the fence around the garden area. The children went through the gate. Once inside the fence, Mitchell made his way to the spot where the coals had been dumped and put his right foot on to the coals. They were still hot. He screamed. It seems he froze in a position with his foot on the coals because, as the female defendant ran towards him on hearing him scream, she observed that he was standing with his foot on the coals. The female defendant picked him up and ran with him towards the tap in the backyard. There is some dispute on the evidence as to whether it was the female defendant or the plaintiff who carried the boy to the tap, but it does not matter: the plaintiff was close by, heard the boy scream, saw him with his foot in what she initially thought was sand, saw his foot when he was picked up and was present when his foot was placed under the tap. She saw the skin blister and peel away and go down the drain.
The plaintiff then took her son into her house and placed him in a bath of cold water. She got in with him and held him. She was still dressed. The boy was screaming. An ambulance arrived. The boy, accompanied by the plaintiff, was first taken to the Queen Elizabeth Hospital where he was given something for his pain. He seemed to get some relief from this, but he was still considerably distressed. Up to the time he was given some pain relief, he had been screaming. He must have been in great pain. He was then taken to the Women’s and Children’s Hospital.
At the Women’s and Children’s Hospital, Mitchell was treated first in the emergency ward and then in the burns unit. His foot was bandaged and the plaintiff had to help hold him down while this was done.
The plaintiff remained at the hospital with Mitchell for about a week. She was with him constantly. He needed to be comforted by her. He was very distressed.
Surgery was performed on Mitchell’s foot on the Saturday following the accident. Prior to the surgery, the plaintiff was warned by the surgeon concerned that there existed the possibility of amputation of some of Mitchell’s toes. As it happened, that was unnecessary.
Mitchell was discharged from hospital on the Tuesday following the surgery. He was home for three days and then re-admitted. The bandage on his foot required to be changed daily. It was a painful and distressing procedure. Further surgery was performed on 23 December 1994 and again a few days later.
In January 1995, Mitchell developed a staphylococcus infection. He had been discharged after his most recent surgical procedure. The plaintiff decided not to have him re-admitted to hospital after the infection was detected, but it meant that she had to take him to the hospital every day to have the bandage on his foot changed. She had to hold him down while the bandage was changed. After a few days, she was not able to cope with that any more: it had become too distressing. Her husband then took the boy to the hospital each day.
Two further surgical procedures were performed on Mitchell’s foot in August 1995. It is likely that further surgical procedures will be carried out when he is aged about twelve. In the meantime, he has unsightly scars on his foot and from the skin donor site on his thigh.
As a result of witnessing her son’s accident and it’s aftermath on the day of the accident at the defendants’ home, her home and the hospital, the plaintiff suffered a post-traumatic stress disorder; a recognised psychiatric condition. I will say more about this in due course when I come to the matter of damages, but, for the present, it is sufficient to say that this is the opinion of Dr. Tingay, a psychiatrist who has treated the plaintiff and who gave evidence for her, and Dr. Blakemore, another psychiatrist, who has examined the plaintiff on behalf of the defendants and who was called by the defendants to give evidence. I accept their evidence on that topic. In the language of the law, as a result of witnessing her son’s accident and it’s aftermath, the plaintiff suffered nervous shock.
I entertain no doubt that the defendants owed a duty of care to the plaintiff: the circumstances meet all the requirements of proximity and foreseeability. There was a time when I wondered whether the male defendant owed a duty of care to the plaintiff and I raised my concerns about that with counsel during the trial. The Statement of Claim alleges that the male defendant invited the plaintiff and her family on to the defendants’ premises, and this allegation is admitted in the Defence. The male defendant gave evidence, which I accept, to the effect that he was not at home when the injury occurred; that he was at work; and, in those circumstances, I began to wonder about his liability. A review of the evidence makes it clear, however, that there is nothing in it contrary to the admission which is contained in the pleadings; and, that being the case, I have no doubt that the duty of care attaches to him in the same way as it does to the female defendant.
I also entertain no doubt that the defendants breached their duty of care; that they were negligent. The defendants should have taken all reasonable steps to warn of the presence of the coals and prevent the plaintiff’s son from treading on them. The plaintiff was a stranger to the premises and was unaware of the presence of the coals. Evidence was given by the plaintiff, her husband and the female defendant about things said by each of them as the boy, along with the little girl, looked to be about to enter the fenced-off area of the backyard; the area within which the coals lay. Whatever version of what was said is accepted, it is clear that the plaintiff raised some concerns about the boy going into the fenced-off area; not because of the presence of the coals, because she was not aware of their presence, but because she was concerned that he might do some damage to the plants that were in the area; and no attempt was made by anybody to prevent the children from entering the area.
The defendants allege that the plaintiff was guilty of contributory negligence and that any damages awarded to her should be reduced thereby. They say that the plaintiff was negligent in that she allowed a child of Mitchell’s age to go into the fenced-off area with bare feet. It is true that, as I have just said, having initially raised concern about Mitchell entering the fenced-off area, the plaintiff did not otherwise seek to prevent him from doing so.
No general duty to exercise care in supervision for the protection of a child from harm exists in a parent: Posthuma v Campbell (1984) 37 SASR 321; Robertson v Swincer (1989) 52 SASR 356; Towart v Adler (1986) 52 SASR 373. ‘Such a duty arises where a person, be he parent or stranger, has acted in relation to the child in such a way as to create a foreseeable risk of injury to the child which apart from that action would not have existed’: Robertson v Swincer (supra) per King CJ at 359.
In the present case, the plaintiff, along with her son, was engaged in an ordinary social activity. It is true that, because the child was not wearing anything on his feet, he might have stepped on something apart from the coals which could have caused him some harm; but it was a hot day and it is the sort of thing which parents do in the normal course of things. It was not the sort of positive act which would give rise to the existence of a duty of care. Assuming I am wrong about that and a duty of care did arise, I am not satisfied, on the facts as I have found them, that the plaintiff was in breach of that duty.
It is true, as Mr. Evans, for the defendants, said, that the cases which I have cited above in relation to a parent’s duty of care, are cases where the facts are a little different to the present: they are cases where contribution or indemnity was sought from the parent as a third party where injury had been caused to the parent’s child by another; but I think the principles enunciated in those cases hold firm so far as cases like the present are concerned. I turn to the question of damages.
At the outset, I should say that I am aware that the plaintiff is to be compensated only for disability which flows from the nervous shock and not from any disability which might otherwise flow from the injury suffered by her son; for example, disability flowing from caring for him and witnessing the treatment, suffering and disabilities caused by his injury: Jaensch v Coffey (1984) 155 CLR 549; Pham v Lawson (1997) 65 SASR 124 and Davis v Scott (1998) 71 SASR 361.
The plaintiff is now aged 47 years. She and her husband have been married for about 15 years. Mitchell is the only child of the marriage. The plaintiff was previously married. There are two children of that marriage who, as I have already said, at the time of the accident the subject matter of these proceedings, were living with the plaintiff and her husband. Since then, they have grown up and moved away from the plaintiff’s home.
At the time Mitchell suffered his injury, the plaintiff was on leave of absence from her employment with Coles Supermarkets Australia Pty Ltd. She worked as a check-out operator. Mitchell was born on 22 April 1993. The plaintiff had worked until shortly before he was born and then took maternity leave. In March 1994, she applied for, and was granted, an extension of that leave. In September that year, she applied for a further extension of that leave. The application was rejected, although she was offered six months leave of absence, which she accepted. At the time of Mitchell’s accident, she intended to return to work in March 1995. Mitchell had been somewhat difficult to care for in that he had an intolerance to milk and it took some time to overcome that problem. The plaintiff was confident that she would have been able to return to work in March 1995. As it happened, she has not returned to work since Mitchell’s accident.
On her return to work in March 1995, initially, the plaintiff would have worked 14 hours per week, increasing at a later stage to 28 hours per week. Her rate of pay on her return to work would have been $10.76 per hour and rising thereafter as follows:
from 1/5/95  $10.85 per hour
                  from 6/11/95  $10.94 per hour
                  from 6/5/96  $11.21 per hour
                  from 1/11/96  $11.34 per hour
                  from 3/3/97  $11.35 per hour
                  from 4/8/97  $11.79 per hour
                  from 2/2/98  $11.81 per hour

Her taxable income for the years ending 30 June 1992 and 30 June 1993 was $15,074 and $12,092 respectively.
Prior to commencing work with Coles Supermarkets, the plaintiff had worked as a secretary, clerical assistant and sales assistant. She had taken time off work when her two older children were born. She had left school at age 15, having done a commercial course. Not long before Mitchell’s accident, she had been approached by her employer to see if she was interested in taking on a supervisory role.
The plaintiff’s health leading up to Mitchell’s accident was somewhat problematic. She had suffered panic attacks from the age of 20. She had seen her general medical practitioner over a number of years for migraines, headaches and thrush. She had been taking Valium for many years. During 1994, up until Mitchell’s accident, she had consulted her general medical practitioner on 11 occasions in respect of headaches, thrush and prescriptions for Valium. It seems that, over the years before Mitchell’s accident, she was somewhat anxious and obsessive. Although she had a predisposition to an anxiety reaction to Mitchell’s accident, her reaction was not extraordinary. Notwithstanding the various problems which she had with her health pre-accident, she had led an industrious life, bringing up her children and taking on, and retaining, employment outside the home.
The plaintiff, as I have said, has not worked since Mitchell’s accident. She has been, and remains, unfit for any work. She suffers from a chronic anxiety disorder. This has manifested itself, and continues to do so, in panic attacks, migraines, tension headaches, loss of libido to the point where there has not been any sexual relationship with her husband for many years, depression and flashbacks of Mitchell’s accident. I have wondered about the causal relationship between the plaintiff’s mental condition and her symptom of a burning sensation in her vulva. I think the evidence goes no further than establishing that it is possible that a connection exists; and, on the evidence, I am not satisfied to the degree necessary about the existence of the relevant causal connection.
The plaintiff and her husband stay in or close to home and rarely socialise. The plaintiff spends a lot of her time with Mitchell. She goes to school with him each day and does volunteer work at the school. She is constantly afraid that some harm will come to him. She would like to be offered some sort of employment at the school.
The plaintiff continues to see Dr. Tingay from time to time and her general medical practitioner. She takes antidepressant medication. She also sees her gynaecologist every six to eight weeks about her vulva complaint. She has a benzodiazepine dependence. She takes four different sorts of medication; anti-depressants in the form of Kalma and Endep, Digesic for pain relief and Molvicol as an antidote to the side-effects which might be produced by the other drugs. She is currently spending about $32 per week on this medication.
The plaintiff’s anxiety disorder will persist. There might be some alleviation of it with the finalisation of legal proceedings and with the passage of time; although I am informed that Mitchell will be making a claim for damages and that this will, in all the circumstances, take some years to conclude. I doubt that the plaintiff will be fit for any form of work in the near future, although the possibility does exist that she will, at some point in time, return to some form of employment.
The plaintiff’s condition comes about because of the nervous shock she underwent, seeing her son suffer from his injury and the treatment and disabilities which followed it and the time and effort spent in caring for him. Both Dr. Tingay and Dr. Blakemore find it difficult, if not impossible, to separately assign to each of these factors a level of responsibility for the plaintiff’s present condition; Dr. Tingay regarding such a process as unrealistic and Dr. Blakemore saying it is artificial. Dr. Blakemore, at the request of the defendants’ solicitors, did engage in such an exercise, saying that 25 per cent of the plaintiff’s condition related to her witnessing her son’s accident and the balance of her symptoms resulted from the accident otherwise than her viewing it; but it struck me he was unhappy about engaging in that process, only doing so because he was asked to. Dr. Tingay declined to engage in such a process and it is not difficult to understand why; nevertheless, policy decisions taken by the courts dictate that I must engage in it. In general terms, I propose to assess the plaintiff’s damages as though her condition is entirely the result of the nervous shock and then discount them because of the matters I have mentioned. It will be a broad and somewhat arbitrary approach. I will do the best I can on the information before me. I will not rely on the percentages given by Dr. Blakemore for that purpose; not being satisfied, in all the circumstances, that they are sufficiently reliable for that purpose.
In assessing the plaintiff’s damages for past economic loss, I will take into account the possibility that, for whatever reason, the plaintiff would not have returned to work in March 1995 as she planned and that, between then and now, also for whatever reason, she would have had periods of unemployment. So far as damages for future economic loss are concerned, I will make allowance for the possibility that she would have had periods of unemployment for whatever reason.
The plaintiff claims damages for gratuitous services rendered by her husband. In March 1996, the plaintiff’s condition was such that she became unable to attend to her own domestic needs and to care for Mitchell. She spent her time in bed, wandering aimlessly about the house and crying. She was deeply distressed. After consultation with her medical advisers, her husband took long service leave; about three months. He was, and remains, a police officer. During this time, he cared for the plaintiff, attending to all the usual, domestic chores and looked after Mitchell. The plaintiff gradually recovered during this time and, as best I can tell, although the evidence on this topic is a bit sparse, by the time her husband returned to work, she was getting back to attending to herself, doing her share of the chores and caring for Mitchell. I assume that the plaintiff’s husband was paid during his long service leave, although there is no evidence about that; and there is no evidence as to the market cost of the services provided by him. Nevertheless, I think the plaintiff is entitled to an award of damages under this head, although, because of the state of the evidence, it will necessarily involve a broad-brush approach.

The quantum of special damages has been agreed at $7,295. In awarding damages under this head, in addition to the matters I have already mentioned, I have made allowance for the possibility that the plaintiff would have continued to see her medical practitioners for the reasons she saw them before Mitchell’s accident. I have taken the same approach so far as damages for future medical and pharmaceutical expenses are concerned.
So far as damages for non-economic loss are concerned, the plaintiff has undergone considerable suffering; and her capacity to enjoy the amenities of life has been severely diminished. In awarding damages under this head, I am conscious of her pre-accident condition.
So far as interest is concerned, I will allow a lump sum for interest on the damages for past economic loss and the damages for non-economic loss.
I assess the plaintiff’s damages as follows:
Non-economic loss  $     25,000.00
                  Past economic loss  $     25,000.00
                  Future economic loss  $     50,000.00
                  Special damages  $      3,000.00
                  Future medical expenses  $     10,000.00
                  Gratuitous services  $      5,000.00
                  Interest  $      5,000.00

Total $ 123,000.00

There will be judgment for the plaintiff against the defendants in the amount of $123,000.
I will hear counsel as to costs.

[2000] SADC 97

3 August 2000