New South Wales & v Thomas; New South Wales v Welling

NEW SOUTH WALES COURT OF APPEAL

CITATION: State of New South Wales & Anor v Thomas; State of New South Wales & Anor v Welling [2004] NSWCA 52 revised - 14/04/2004

FILE NUMBER(S):
41118/02
41119/02

HEARING DATE(S): 4 February 2004

JUDGMENT DATE: 09/03/2004

PARTIES:
CA 41118/02
State of New South Wales (First Appellant)
Corrections Health Service (Second Appellant)
Leanne Nanci Thomas (Respondent)

CA41119/02
State of New South Wales (First Appellant)
Corrections Health Service (Second Appellant)
Donna Sheree Welling (Respondent)

JUDGMENT OF: Handley JA Beazley JA Stein AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2462/01
DC 644/01

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
J D Hislop QC/P R Sternberg (Appellants)
S C Campbell SC/D M Wilson (Respondents)

SOLICITORS:
I V Knight Crown Solicitor's Office (Appellants)
Marsden Law Group (Respondents)

CATCHWORDS:
APPEAL and NEW TRIAL - amendments allowable on appeal - prejudice - onus of proof - conduct of trial
PLEADING - relief available to successful party limited by pleadings - D

LEGISLATION CITED:
Law Reform (Miscellaneous Provisions) Act 1944 s 4(1)(b)
Supreme Court Act 1970

DECISION:
CA 41119/02 1. Appeal allowed with costs.
2. Direct that the statement of claim be amended by adding the words "and at common law" at the end of paragraph 3.
3. Judgment for the plaintiff in the District Court (644 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $33,835.75 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff's costs of the trial.
4. The respondent to have a certificate under the Suitors' Fund Act.
CA 41118/02 1. Appeal allowed with costs.
2. Direct that the statement of claim be amended by adding the words "and at common law" at the end of paragraph 3.
3. Judgment for the plaintiff in the District Court (2642 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $57,168.10 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff's costs of the trial.
4. The respondent to have a certificate under the Suitors' Fund Act.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41118/02
CA 41119/02
HANDLEY JA
BEAZLEY JA
STEIN AJA
9 MARCH 2004

STATE OF NEW SOUTH WALES & ANOR v LEANNE NANSI THOMAS
STATE OF NEW SOUTH WALES & ANOR v DONNA SHEREE WELLING

CATCHWORDS

APPEAL and NEW TRIAL – amendments allowable on appeal – prejudice – onus of proof – conduct of trial

PLEADING – relief available to successful party limited by pleadings

FACTS

A remand prisoner who attempted to commit suicide while in custody died in hospital from his injuries when life support was removed. When his two sisters sued the State for nervous shock in the District Court their statements of claim stated that the actions were brought pursuant to s 4 of the Law Reform (Miscellaneous Provisions) Act 1944. Section 4(1)(b) was applicable and required proof that they had suffered nervous shock as a result of their brother being “killed … within [their] sight or hearing”. At the trial the plaintiffs failed to prove causes of action under s 4(1)(b) but proved causes of action at common law. During final address counsel for the plaintiffs sought for the first time to rely on common law rights without applying for an amendment. The trial judge gave judgment for the plaintiffs. On appeal HELD: (1) The relief granted at trial is confined to that available on the pleadings: Dare v Pulham (1982) 148 CLR 658, 664; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286-7; (2) The parties had not fought the cases on the basis that common law rights were in issue; (3) The judgment therefore could not stand; (4) Under s 75A(6)(a) of the Supreme Court Act 1970 the Court of Appeal had the same powers of amendment as the District Court; (5) Since the judgments were supported by evidence and were not otherwise open to challenge amendments to raise causes of action at common law should be allowed unless the defendants would relevantly be prejudiced; (6) Under SCR Pt 51 r 23(1)(d) a new trial should not be ordered unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been occasioned; (7) The onus under this rule was on the appellants: Balenzuela v De Gail (1959) 101 CLR 226, 232-5; (8) The appellants had failed to establish that they would have conducted the trials differently if the amendments had been allowed at trial and therefore had failed to establish prejudice; (9) Amendments to plead causes of action at common law should be allowed on terms as to costs and fresh judgments entered pursuant to the amended statements of claim.

ORDERS

CA 41119/02

Appeal allowed with costs.

Direct that the statement of claim be amended by adding the words “and at common law” at the end of paragraph 3.

Judgment for the plaintiff in the District Court (644 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $33,835.75 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff’s costs of the trial.

The respondent to have a certificate under the Suitors’ Fund Act.

CA 41118/02

Appeal allowed with costs.

Direct that the statement of claim be amended by adding the words “and at common law” at the end of paragraph 3.

Judgment for the plaintiff in the District Court (2462 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $57,168.10 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff’s costs of the trial.

The respondent to have a certificate under the Suitors’ Fund Act.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41118/02
CA 41119/02
HANDLEY JA
BEAZLEY JA
STEIN AJA
9 MARCH 2004

STATE OF NEW SOUTH WALES & ANOR v LEANNE NANSI THOMAS
STATE OF NEW SOUTH WALES & ANOR v DONNA SHEREE WELLING

Judgment

HANDLEY JA: Bradley Thomas (the deceased) was arrested on 18 April 1998 and remanded in custody. On 20 April he attempted to hang himself in his cell. His fellow prisoner alerted the authorities who released him and he was transferred to Westmead Hospital where he was put on life support. He had suffered extensive brain damage and when his family were advised of this they agreed to the withdrawal of support on 22 April. He died shortly afterwards.
The deceased’s parents, his two half-sisters (sisters) and his uncle sued the State and the Corrections Health Service claiming damages for nervous shock. The parent’s actions were pleaded under s 4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 (the Act), the uncle’s action was pleaded at common law, and the sisters’ actions were pleaded under s 4(1)(b).
The actions were heard by Williams DCJ who gave judgment in favour of the parents and sisters but against the uncle. The judgment in favour of Mrs Welling was for $33,835.75 and that in favour of Ms Thomas was for $87,691.65. The defendants obtained leave to appeal against the judgments in favour of the sisters.
Mr Hislop QC, who appeared for the appellants, submitted that the sisters’ statements of claim only pleaded causes of action under s 4(1)(b), and that the first clear indication that the sisters were attempting to rely on causes of action at common law was given during the final address of their counsel. Counsel for the defendants, who had addressed first, in reply took the point that a claim for nervous shock at common law had not been pleaded. Although the pleading issue was then clearly raised counsel for the sisters did not seek an immediate ruling from the judge and did not apply for leave to amend.
Mr Hislop’s next point was that there was no evidence that either sister had suffered injury arising wholly or in part from mental or nervous shock sustained by them as a result of the deceased dying in their presence and hence their claims were not within the statute.
He had a further point that there was no evidence that Mrs Welling had suffered a recognised psychiatric illness.
The pleading point
In each case para 3 of the statement of claim read:
“The Plaintiff was the sister of Bradley Thomas (the Deceased) and brings this action pursuant to s.4 of the Law Reform Miscellaneous Provisions Act 1944.”
Section 4(1)(b), which has now been repealed, provided:
“4(1)      The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by:
(a)          …
(b)          any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family.”
The deceased was not injured or put in peril within the sight of his sisters and their cases depend on the fact that he died in hospital in their presence. It was common ground at the trial that this established that the deceased had been “killed … within the sight or hearing” of the sisters.
Paragraph 16 of the statements of claim alleged that as a result of the death of the deceased the plaintiff had suffered injury, loss or damage. Paragraph 17 was as follows:
“The death of the Deceased and the resultant injury, loss and damage suffered by the Plaintiff, were caused by the negligence of the Defendants.”
The particulars of negligence in the pleading were directed to the management of the deceased in custody.
Paragraph 17 provided the only basis for the view that the statements of claim pleaded causes of action at common law.
Section 4(1)(b) “extends” the liability of a person in respect of an accident by which someone is killed, injured, or put in peril “to include” injury arising from shock sustained by a member of the primary victim’s family. Paragraph 16 pleaded that the sisters had suffered injury “as a result” of the death which was particularised as nervous shock and a major depressive illness (red 11, 17).
As Jordan CJ said in Anderson v Liddy (1949) 49 SR (NSW) 320, 323 s 4(1)(b) requires a plaintiff to prove causation, that is, that he or she sustained shock “by reason of” the death etc of the primary victim in their sight or hearing. The allegations of causation in para 16 (“as a result of the death”) and para 17 (“the death … and the resultant injury were caused”) are consistent with a claim under s 4(1)(b) and take their colour from the express statement in para 3 that the actions are brought under the Act.
The relevant context includes the uncle’s action which was expressly based on the common law. I conclude therefore that the respondents’ statements of claim only pleaded causes of action under s 4(1)(b).
The conduct of the trial
Evidence may be led at a trial, without objection, which is outside the pleadings or the particulars. If a defendant joins issue on the plaintiff’s unpleaded case it will be too late to take any pleading objection during final address. In such circumstances it becomes the duty of the trial judge to require the pleadings to be amended to reflect the conduct of the trial and the issues litigated between the parties. However failure to amend will not be fatal: Water Board v Moustakas (1988) 180 CLR 491, 497. As the High Court there said:
“In deciding whether or not a point was raised at trial no narrow or technical view should be taken … it is necessary to look to the actual conduct of the proceedings to see whether a point was or was not taken at the trial, especially where a particular is equivocal.”
When counsel for the plaintiffs opened all five cases he said (black 1/1):
“As your Honour would know provision is made under s 4 … for an extension of liability for some plaintiffs. Four of these five plaintiffs have that standing, they come within the categories under the act. The fifth plaintiff; namely the uncle, brings his case entire (sic) at common law.
Your Honour would no doubt have heard of the High Court’s recent decision of the matter of Annetts v Australian Stations Pty Ltd which restates the common law in respect of damages for psychiatric injury.”
The use of the word “entire” in relation to the uncle’s claim is perfectly accurate and by itself would not suggest to either the trial judge or counsel for the defendants that the other actions were being brought on a dual basis. The reference to Annetts is also equivocal because the uncle, who was in Queensland when his nephew died, had to bring his case under the common law. The decision was also relevant to proof of causation under the statute because the High Court there rejected any requirement for normal fortitude.
Mr Campbell SC, for the sisters, drew the Court’s attention to passages in the transcript at black 1/7, 88-90, 98-9, 100-1, 101-3, 119-20, 122, 137, 139, 140 and 141-2 to make good his submission that the conduct of the trial made it clear that the sisters were also relying on causes of action at common law.
The statement in opening on p 7 (“these actions are all for psychiatric injury as a consequence of the negligence of the defendants”) was not apt to convey to the judge or counsel for the defendants that reliance would also be placed upon causes of action at common law. The sisters had to establish that the defendants had been negligent in their treatment of the deceased.
Evidence was given for the sisters in chief about their relationship with their brother, the receipt of the news of his injury and the events that followed leading up to his death and the impact that all of this had on them (1/83, 88, 98-9, 101-3, 122, 137, 139, 140 and 141-2). This was relevant and admissible to their cases as pleaded and did not indicate that their counsel was seeking to make out another case.
At 1/100 Mrs Welling was asked what she thought should have been done with her brother’s life support. Counsel for the defendants objected and legal argument followed. The sisters’ counsel and the judge both referred to liability for nervous shock at common law and the former said that in Annetts’ case the High Court discussed normal fortitude and how that tied in with foreseeability. Although s 4 dispensed with any requirement of foreseeability and proof of causation was sufficient, the requirement for normal fortitude had hitherto provided a threshold for all nervous shock claims. The judge’s remark (“even at common law” 101H-I) shows that he did not understand that counsel for the plaintiffs was seeking to make out a case at common law.
At 119-20 there is a discussion between counsel and the judge about the relevance of suggested disharmony in the family and counsel for the defendants said that this was not reasonably foreseeable. He then moved onto its relevance on causation. The discussion was inconclusive. Since foreseeability is not required by the statute some of the statements by counsel for the defendants were confused, but this does not establish that he understood or should have understood that the sisters were relying on causes of action at common law.
Final addresses followed immediately on the close of the evidence and both parties had prepared written outlines. Those prepared for the sisters raised questions which were only relevant if they were relying on causes of action at common law. Paragraph 5 (black 2/501) asserted that the defendants owed a duty of care to avoid foreseeable risk of psychiatric injury to members of the family. Paragraph 25 quotes Wyong Shire Council v Shirt at some length (506) to support a submission that breach of duty had been established but this had to be established in any event. On the other hand para 27 was quite unequivocal stating that all five plaintiffs fell within the class of persons who it might reasonably be foreseen would be affected by the defendants’ breach of their duty of care.
The submissions were handed up by counsel for the sisters at the start of his final address (430) after counsel for the defendants had addressed. They had been given to counsel for the defendants immediately before the latter began his address (408I-J), but he had no opportunity to read them at that stage.
The defendants’ written submissions exhibit some confusion. Paragraphs 5-7, 22 pp 512, 518 deal with foreseeability which was only an issue in the uncle’s case. The written submissions in the case of Ms Thomas assert that she had no entitlement under the statute but dealt with the reasonable foreseeability of her psychiatric illness (523), which was irrelevant under the statute. The written submissions in the case of Mrs Welling also assert that she had no entitlement under the statute (525) but do not raise any question of reasonable foreseeability.
The oral submissions of counsel for the defendants proceeded on the basis that the sisters claimed under the statute and that causes of action at common law had not been pleaded (black 2/414, 423).
Counsel for the sisters then addressed. At 433V-W he said that s 4 did not limit liability at common law and added:
“The case in relation to the immediate family members, your Honour, is put on the basis that their claim is brought at common law and they’re entitled to the benefits of s 4 as well.”
In his brief reply counsel for the defendants said that in these cases “the common law is not pleaded”. He then submitted that any nervous shock suffered by Ms Thomas was not reasonably foreseeable (although this did not arise under the statute). Although the pleading point was squarely raised, and on any view had substance, counsel for the sisters did not challenge the defendants’ submission on the pleadings and did not seek leave to amend.
Under s 75A(6)(a) of the Supreme Court Act this Court has the same power as the trial court to allow amendments. This power can properly be exercised to accommodate unpleaded issues which were litigated at the trial. However causes of action at common law were not squarely raised by counsel for the sisters until his final address. The earlier discussions about foreseeability and Annetts’ case were completely equivocal.
Those discussions did not alert counsel for the defendants to the fact that counsel for the sisters was relying on causes of action at common law and, prior to final addresses, there was nothing that should have done so. The relevant principles are stated by Mason CJ and Gaudron J in Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286-7:
“The function of pleadings is to state with sufficient clarity the case that must be met … pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.” (emphasis supplied)
It cannot be said that these parties “deliberately” chose to litigate causes of action for nervous shock at common law.
The issue of prejudice
Although causes of action at common law were not litigated they were established by the findings and supported by the evidence. This Court can properly allow the necessary amendments if the appellants relevantly would not be prejudiced.
When the question of prejudice was raised during the leave application counsel for the claimants, who had appeared at the trial, said that he had conducted it on the basis that the claims were under the statute. He had cross-examined both sisters to obtain concessions about traumatic events connected with their brother’s injuries which were not within the statute. He referred in particular to the knock on the door between 2 am and 3 am when Ms Thomas received news of her brother’s injuries and hospitalisation (red 59).

Senior counsel appearing for the opponents on the leave application was not in a position to address on the issue of prejudice because she had not been able to obtain and read the transcript (red 64).
Mr Hislop relied on the cross-examination of Mrs Welling at black 126-7 but this only repeated and emphasised evidence she had given in chief at 88-9. In the case of Ms Thomas he relied on her cross-examination at 157 but again this only repeated and emphasised her evidence in chief at 140. In each case there is no appreciable difference between the evidence in chief and that given in cross-examination and in this respect the appellants failed to establish any relevant prejudice.
Mr Campbell relied on this evidence in chief which, he submitted, would have been inadmissible if the only claims being litigated were under the statute. In his submission the defendants’ failure to object to this evidence and their cross-examination on these topics showed that both parties were proceeding on the basis that common law claims were being litigated.
In my judgment these submissions must fail because the evidence was relevant to the statutory causes of action as part of the history leading up to the brother’s death and as part of the sisters’ cases on causation.
No other basis for a claim of prejudice was advanced during the leave application but Mr Hislop relied on the defendants’ decision to call Professor Bryant and refrain from cross-examining the sisters’ doctors (T 15).
There was a further submission that the medical evidence accepted by the trial judge did not establish that the death of their brother in their presence had caused or materially contributed to any recognised psychiatric illness they suffered.
The medical evidence in Mrs Welling’s case was given by Drs Mikula, Iyer, Bardon and Morse. Dr Mikula, her general practitioner said (28/10/00, 1/178) that she was suffering from an unresolved grief reaction associated with anxiety and depression. He did not say that the death of her brother in hospital was itself causative. Dr Iyer, her first treating psychiatrist, to whom she was referred by Dr Mikula, said (29/4/99, 1/180):
“She … reveals features of Unresolved Grief Reaction with depressive symptoms. In addition to antidepressant medications she was keen to receive counselling for her grief.”
Dr Iyer did not state that the death of her brother in hospital was itself causative. Dr Bardon, another treating psychiatrist, said (17/4/01, 1/183) that Mrs Welling had described a complicated bereavement since the death of her brother. Subsequent investigations about the circumstances of his death had created uncertainty and increased the stress, and she had “a depressed affect and was tearful throughout the interview”. He did not state that the death of her brother in hospital was itself causative.
Dr Morse, a psychiatrist retained by her solicitors, provided a long report dated 13/7/2001. His statement of her history, as far as relevant, was as follows (1/184-5):
“She got a phone call earlier the following morning that he had been found hanging in his cell at Silverwater and that he had been transferred to Westmead Hospital she called her mother and father and they all went to Westmead Hospital. She said that the memory of receiving that phone call and the memory of calling her parents was the worst thing that had ever happened to her. The memory is still very very vivid and she gets upset and distressed when she thinks about it and talks about it … she said that she saw Bradley in intensive care in Westmead Hospital, he was in a coma and she described the distress and upset of seeing him there. She spoke of this distress being intensified by the continual presence of prison officers … The doctors told her that they were going to turn off the machine. She said that she would not agree to this, but when they explained what this would mean she agreed to it and she hugged her brother until he died. She was distressed when she left the intensive care room … She said her memory of what happened ‘plays over and over in her mind, like a nightmare’. She was very angry and distressed at what she regarded as a cover up … She was distressed to hear that he had slashed his wrists prior to the hanging, was put in a special cell for safety and was then taken out of that cell … She describes the terrible memory of being contacted by a friend of Bradley’s and the desperate feeling of trying to (do) something to help her brother during the day or two before she found out he was in Westmead Hospital. She keeps on going around and around in her mind ‘I could have done more’, ‘I let him down’. She says ‘I did try’, but she still has great sense of guilt.”
She was seeing a counsellor every week (186). Dr Morse’s opinion, so far as relevant, was as follows (189):
“Mrs Welling relates the sad and distressing loss of her brother, Bradley, with his death under the circumstances described above. It was devastating for her to lose her brother, with whom she had a very close relationship … it’s not only the loss of her brother, but the circumstances in which this occurred was a very devastating experience. She went for nearly two days trying to get help to him, being confused and worried about what was the right thing to do and not being able to contact him. This is a dreadful experience. To find out after all this that he had hung himself was devastating to her, made worse by a sense of guilt and feeling that she had failed him.
The sense of distress is also increased by the feeling that something has been covered up, that the correct care had not been given to her brother, that there had been some neglect and that people had lied about it. Again the presence of the prison officers at her brother’s bedside … further increased her sense of distress and anger … I feel that she is suffering from an adjustment disorder with markedly depressed mood … I see her as being profoundly affected by her depressed state.”
In his final report (22/7/2002, 1/191) Dr Morse commented on the report from Professor Bryant and said “I see the devastating effect of the death of her brother as the most important cause of her depressed state”. See also 190L. He did not state that the actual death of her brother, which Mrs Welling witnessed, was itself causative.
The medical evidence in Ms Thomas’ case was given by Dr Visvalingam, Mr Shine a drug counsellor, and Dr Morse. Dr Visvalingam (3/7/00, 1/204) said that since her brother’s death Ms Thomas was suffering from depression, feelings of anxiety, grief and guilt and he said that she “suffering from acute grief and feelings of guilt due to her brother’s death”. Dr Morse recorded the following relevant history (11/9/01, 1/209-10):
“… a few days before his death he came to her place as he had done many times before and asked could he stay. She told him that someone was coming over, he was upset about this and he appealed to her and when she was adamant he said he would steal a car and kill himself. She was tearful and distressed when talking about it. The day after his death early in the morning his ex-fiancée knocked at the door and told her that her brother had hanged himself in gaol (Ms Thomas’ own evidence was that this happened between 2am and 3am) … She is devastated by his death and feels guilty and to blame. She knows this is not rational but that’s the feeling she has with a continued feeling of distress and upset … She is very angry at the gaol authorities. She said he had cut his wrists and they knew this and he was under observation for a period but then they let him not be under observation. He was taken from a safe cell where he was for a reason she said. She felt there has been neglect. She feels there has been a cover up by authorities.”
His opinion was as follows (212-3):
“she described quite serious on-going major depressive state (sic), despair and quite marked distress associated with the death of her brother and the circumstances, with very strong feelings of guilt and responsibility for his death and although she knows rationally this is not her fault, emotionally it is understandable she has those feelings. The closeness to her brother, the events just prior to his death when she felt she had rejected him and the unclear circumstances of his time in gaol and what she and other family members regard as a cover up are the causes of the psychobiological change which is a major depressive illness … I see the death of her brother and the attendant traumatic circumstances as the cause of her currently depressed state.”
Mr Shine whose diagnosis of post traumatic stress disorder was not accepted by Dr Morse, Professor Bryant or the trial judge said (16/5/01, 1/206, 208) that Ms Thomas appeared to carry an enormous amount of personal blame and guilt regarding her brother’s death and the way in which the news was conveyed to her still caused her emotional pain.
None of these witnesses stated that the death of the brother in hospital which Ms Thomas witnessed was itself causative.
It was therefore argued that there was no evidence that any event which fell within s 4(1)(b) (“where such person was killed … within the sight or hearing of such member of the family”) itself caused the mental problems suffered by the sisters. The Court would have to consider not only the “killing” itself but its immediate context. This would include the family’s decision to consent to the withdrawal of life support and the switching off of the machine or machines.
This is not a matter where the Court can act without expert evidence and find, as a matter of commonsense, that the brother’s death in its context without more caused these mental problems.
In these circumstances counsel for the defendants at the trial acted rationally in not requiring the sisters’ doctors for cross-examination and in not questioning Professor Bryant on the causation issue under the statute. However that in itself does not establish relevant prejudice. This will depend on whether counsel for the defendants would have acted differently if he had known that causes of action at common law were being relied on.
These were not large claims and, as the Court well knows, defendants rarely require a plaintiff’s medical experts to attend for cross-examination. This is not just for reasons of expense. The oral evidence of such witnesses may turn out to be more damaging than their reports. The position could be otherwise if evidence was available, for example from the records of general practitioners, which undermined the opinions of the experts, that could be put to them in cross-examination. It was not suggested that the appellants had such evidence.
In the normal course questions of prejudice such as this arise during the trial, and are decided by the trial judge. He or she is far better able to determine where the merits lie in such matters than any appellate court. In many cases the trial judge is also in a position to cure any prejudice by imposing terms such as an adjournment, the re-opening of the evidence, the calling or re-calling of witnesses, and costs. None of these options are available to this Court.
We do not know what the defendants’ legal advisers would have done if the trial judge, having considered their claim of prejudice, dealt with it by offering them an adjournment to enable the relevant medical experts, or some of them, to be called for cross-examination. We do know that alleged prejudice on this ground was not raised during the leave application by counsel who had appeared for the defendants at the trial.
The ultimate responsibility for this unfortunate position lies with the sisters’ legal advisers who did not seek an immediate ruling from the trial judge on the scope of the pleadings or apply for amendments. Nevertheless the appellants must still persuade this Court that they would suffer relevant prejudice if the respondents were now permitted to amend. Before deciding this question this Court should decide whether the evidence supported causes of action under the statute, and whether there was evidence that Mrs Welling suffered from a recognised psychiatric illness.
Liability under the statute
When the statute was drafted liability for nervous shock at common law was thought to depend on the existence of psychiatric injury suffered as a result of a sudden affront to the psyche. Section 4(1)(b) was framed on this basis because liability depends on the primary victim being killed, injured or put in peril within the sight or hearing of the family member. The receipt of shocking news is not covered by the section. Both sisters were traumatised by news of their brother’s attempted suicide, particularly Ms Thomas who received the news at her front door between 2am and 3am. The guilt feelings each felt are also outside the section. Mrs Welling had these because after her brother’s arrest she had been unable to communicate with him or raise bail. Ms Thomas had them because she had turned him away when he sought accommodation. Their travel to the hospital, the sight of their brother in a coma and on life support, the wait and the presence of the prison officers which both found so distressing are also outside the section. So are the distressing events after their brother’s death, including his funeral, the inquest, the information received about his management in custody, and their suspicions about an official cover up.
These cases are not like Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1 HL where the failure of employers to perform specific statutory duties for the protection of their employees was held to attract liability. In the first case a material contribution by the “wrongful” dust was held to establish causation. In the second causation was found based on the mere co-existence of a duty to take precautions against a risk, breach of that duty and the occurrence of that risk. See also Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420.
Since guilt and “normal” grief are not compensable at all (see Marinko v Masri [2000] Australian Tort Reports 64201 at 64208-9), and so many of the stressors experienced by the sisters do not attract liability, proof of a statutory cause of action must, in my judgment, depend on proof that the stressors within the statute were either sufficient by themselves to cause a recognised psychiatric illness, or were necessary causes because without them the other stressors would not have done so.
If the stressors within the statute were neither necessary nor sufficient in themselves to cause “mental or nervous shock” the fact that they aggravated the affects of mental or nervous shock caused by other stressors would not establish a statutory cause of action. Proof is required of “injury arising … from mental or nervous shock sustained” and of the causal link which Jordan CJ said in Anderson v Liddy was required in such cases. He said (49 SR at 323):
“in these special cases, it is necessary to prove that it was the wrongdoing on the part of the person sought to be made liable that caused the death, injury or peril of another person, but if this is proved all that is necessary … is to establish … in case (b) that the plaintiff is some other member of the family, that the killing etc occurred within his sight or hearing, and that by reason thereof he sustained injury by shock.” (emphasis supplied)
In the light of the sisters’ medical evidence, which has been reviewed, this analysis establishes that there was no evidence that “by reason of” the “killing” of their brother in their sight and hearing either of the sisters sustained injury from mental or nervous shock. The defendants were therefore entitled to judgment on the existing pleadings.
Mr Hislop’s final point, confined to the case of Mrs Welling, was that there was no evidence that she had suffered from a recognised psychiatric illness. There may have been room for doubt on this issue on the medical reports alone, but it was resolved in her favour by evidence from Professor Bryant in cross-examination (2/397) when he accepted Dr Morse’s diagnosis of an adjustment disorder.
Conclusions
Mr Campbell submitted that there was only a single cause of action for nervous shock in this State constituted by an amalgam of statute and common law but I cannot accept this submission. Although the statute, while it was in force, was always speaking and some elements, such as the reference to mental or nervous shock, had an ambulatory operation which could adjust to developments in the common law, it defined a separate cause of action. If the statutory cause of action is relied on all its constituent elements must be proved. If a common law cause of action is relied upon all its constituent elements must be proved. The Court cannot fashion a third cause of action by combining elements of both.
There is nothing in Leotta v Public Transport Commission of New South Wales (1976) 50 ALJR 666 which entitles a plaintiff to judgment on an unpleaded cause of action. In their joint reasons Stephen, Mason and Jacobs JJ said at 668:
“… the duty of the trial judge was clear. If in the cause of action upon which the plaintiff sued there had emerged at the conclusion of the evidence facts which, if accepted, established that cause of action, then it was the duty of the trial judge to leave the issue of negligence to the jury. The pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence which had emerged. Part 20, r 1(2) of the New South Wales Supreme Court Rules provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings. Now, and for many years past, a plaintiff does not fail by being refused leave to amend or through failure formally to apply for amendment, where the evidence has disclosed a case in the cause of action fit to be determined by the tribunal of fact. Particularly is this so when the action finally determines the rights of the parties in the cause of action.” (emphasis supplied)
Dare v Pulham (1982) 148 CLR 658, 664 is to the same effect as the Court, in a joint judgment which referred to both Mummery v Irvings Pty Ltd (1956) 96 CLR 99 and Leotta, said:
“Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings.” (emphasis supplied)
See also para 31.
The causes of action pleaded were not proved and the causes of action that were proved were not pleaded. Accordingly the sisters can only succeed if their statements of claim can be amended to plead causes of action for nervous shock at common law. In his written submissions lodged after the Court reserved its decision Mr Campbell applied for leave to amend, but this Court, which is entitled to exercise the powers of the District Court, can also act of its own motion under DCR Pt 17 r 1(1) to direct the necessary amendments. The rule provides:
“The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.”
The necessary amendments would be of the simplest kind as it is only necessary to add “and at common law” at the end of each paragraph 3. The Court should direct these amendments unless the appellants would be prejudiced. I am not persuaded that they would be prejudiced because I have not been persuaded that they would have conducted their cases differently if common law causes of action had been pleaded originally or by timely amendment. On the other hand I have not been persuaded that they would not have done so.

Where, as here, judgments for the plaintiffs are supported by evidence and are not otherwise challenged, I am not prepared to enter judgment for the defendants on a mere pleading point. In this most unusual situation the Court must consider whether it should order a new trial on issues other than the negligence of the prison authorities in their management of Bradley. SCR Pt 51 r 23(1) (which is based on the Judicature Act rule) relevantly provides:
“The Court of Appeal shall not order a new trial:
   (a) …
   (b) …
   (c) …
   (d) on any other ground,
unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.”
The principles which must guide this Court in considering issues arising under this rule were considered by Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226, 232-5:
“The difference between the common law rule and the effect of [the judicature rule] can easily be exaggerated by over-estimating the operation of the judicature provision in widening the discretion of the court and by underestimating the effect of the common law rule in allowing a discretion to the court. … One might suppose that upon a question depending not upon proof of an issue by evidence but upon reasoning as to the effect of what from a record appears to have occurred at a trial, it would not matter much upon which side the duty lay of persuading the court that a given error involved a substantial wrong or miscarriage. … If the question really be of any importance … the true view, it may be suggested, is that at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial … was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued, while under the judicature rule the burden is the other way. The form in which the judicature rule is cast seems to indicate an intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error.”
Accordingly the Court can only order a new trial in these cases if it is persuaded that a substantial wrong or miscarriage would result if these amendments are allowed which can only be met by ordering new trials. Since I have not been persuaded that the appellants would have conducted the trials differently I have not been persuaded that they will suffer prejudice which, without a new trial, would occasion a substantial wrong or miscarriage. New trials should not be ordered.
Since the sisters only retain their judgments because of amendments appropriate terms must be imposed. The judgments in the District Court must be set aside and, following the amendments new judgments should be entered, but it is not appropriate for these to be backdated or for pre-judgment interest to be recalculated.
The issues of negligence were common to all five actions but presumably the costs of those issues would be apportioned between the actions and the successful plaintiffs would each recover only one-fifth. The evidence solely referrable to each action was that relating to the plaintiff. If the legal advisors for the sisters had applied for amendments in the District Court, as they should have, on my findings they would have been allowed. In my judgment this should not affect the costs up to that point which should follow the event. However their failure to apply to amend led to this appeal which would otherwise have been avoided. Thus although the appellants have won the battle and lost the war they should have their costs of the appeal. The following orders should be made:
CA 41119/02
1.Appeal allowed with costs.
2.Direct that the statement of claim be amended by adding the words “and at common law” at the end of paragraph 3.
3.Judgment for the plaintiff in the District Court (644 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $33,835.75 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff’s costs of the trial.
4.The respondent to have a certificate under the Suitors’ Fund Act.
CA 41118/02
1.Appeal allowed with costs.
2.Direct that the statement of claim be amended by adding the words “and at common law” at the end of paragraph 3.
3.Judgment for the plaintiff in the District Court (2462 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff for $57,168.10 with effect from the date of judgment in this Court. The defendants are to pay the plaintiff’s costs of the trial.
4.The respondent to have a certificate under the Suitors’ Fund Act.
BEAZLEY JA: I agree with Handley JA.
STEIN AJA: I agree with Handley JA.

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LAST UPDATED: 14/04/2004

[2004] NSWCA 52

9 March 2004