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

The case involved appeals by New South Wales against judgments entered in the District Court in favour of Mrs Welling and Mr Thomas. The dispute concerned claims for nervous shock. The appeals were heard by the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the plaintiffs had proven the causes of action for nervous shock as pleaded, and if not, whether the statements of claim could be amended on appeal to reflect causes of action that were supported by the evidence. A further issue concerned the existence of a single, amalgamating cause of action for nervous shock in New South Wales, or separate statutory and common law causes of action.

The Court of Appeal determined that the statutory cause of action for nervous shock, while it was in force, constituted a separate cause of action from the common law action. It held that a plaintiff must prove all constituent elements of the cause of action relied upon, and that a third cause of action could not be fashioned by combining elements of both. The Court found that the causes of action pleaded by the plaintiffs had not been proven, and conversely, the causes of action that were proven had not been pleaded. Citing principles from *Leotta v Public Transport Commission of New South Wales* and *Dare v Pulham*, the Court emphasised that relief granted must be founded on the pleadings, unless the parties choose to disregard them and fight the case on issues chosen at trial. However, the Court also noted its power, and the District Court's power, to amend documents to determine the real questions raised by proceedings.

The Court of Appeal allowed the appeals, set aside the District Court judgments, and substituted new judgments for the plaintiffs. This was contingent upon the statements of claim being amended to include claims "and at common law" at the end of paragraph 3. The Court ordered that the plaintiffs were to have judgment for specific amounts, with costs of the trial, and were to receive a certificate under the Suitors' Fund Act.