Pham v Lawson

[1998] HCATrans 69

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 1997

B e t w e e n -

TRI MINH PHAM

Applicant

and

TRACEY LAWSON

Respondent

Application for special leave to appeal

BRENNAN CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 12 MARCH 1998, AT 10.31 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned junior, MR M.C. LIVESEY for the applicant.  (instructed by Ward & Partners)

MR P.W. ERIKSON:   May it please the Court, I appear with my learned friend, MR T.R. BRYANT, for the respondent.  (instructed by Angela Bentley & Associates)

BRENNAN CJ:   Yes.

MR WHITINGTON:   If the Court pleases, when this Court decided Jaensch v Coffey in 1984 a very important question, in our submission, was left unresolved.  That question was whether a cause of action in nervous shock resulting in psychiatric illness required that the plaintiff perceive the distressing phenomenon which affronts or insults the mind of the plaintiff, or whether it was enough that the plaintiff had mere knowledge of the distressing phenomenon.

Your Honour the Chief Justice held in unequivocal terms that psychiatric illness induced by mere knowledge of a distressing fact was not compensable.  In other words, as your Honour put it, the plaintiff could not succeed in an action based upon a mere report of sad tidings.  There had to be some oral or visual perception of the shocking event.  This was consistent with the dictum of Lord Wilberforce in the leading judgment in McLoughlin v O’Brian, decided in 1982, although there was a contrary dictum in that case by Lord Bridge. 

Your Honour the Chief Justice’s position was also consistent with the dictum of Mr Justice Windeyer in Mt Isa Mines v Pusey decided in 1970.  The rule can be traced back to the decision of the Court of Appeal in Hambrook v Stokes in 1925 when it was held that the plaintiff was entitled to recover for the shock that was caused by what she saw with her own eyes as distinguished from what she was told by bystanders.

On the other hand, in Jaensch v Coffey, Justice Deane held that the question is an open one.  He also indicated in a passage at pages 608 to 609 of the Commonwealth Law Reports, which has been frequently relied on thereafter, that it was difficult to see the logical basis for the distinction between psychiatric injury sustained by communication and injury sustained by direct perception.  His Honour used this illustration at the bottom of page 608, and this is my paraphrase.  He, in effect, said this:  take the case of a wife whose is telephoned and told that her husband has suffered some injury, not so serious; she goes to the hospital and sees him and is shocked.  She can recover.  Take the other case of a woman who is telephoned and told that her husband is dead, and she immediately suffers shock, and that shock is so extreme that she cannot go and see the body.  In those circumstances, she could not recover.  His Honour considered that there was no rational basis for a distinction of that kind.

Chief Justice Gibbs, in Jaensch v Coffey, did not deal with the issue, except to say the fact that the plaintiff was, in addition, informed of her husband’s condition, in addition to her own direct observations, did not disqualify or defeat her claim.  Justice Dawson, at page 612, stated the same limitation on recovery as Justice Brennan and, finally, Justice Murphy appeared to accept that damage suffered as a result of shock caused by the learning of another person’s injuries could give rise to liability.

Now, it is important, of course, that Jaensch v Coffey was primarily a case of direct perception by the plaintiff of the distressing event, and that the real issue in that case was the degree of requisite proximity to the accident.  So, it did not directly throw up the issue of shock by report or communication.  However, against that background, if the Court pleases, there has been a growing trend in the Australian authorities to allow recovery for nervous shock suffered through mere report, and we would submit that a case under appeal is the last, or fifth case in that line.  The fourth case is - - -

BRENNAN CJ:   Mr Whitington, the problem in this case seems to be that there were a number of “stressors”, I think was the term used, some of which were regarded, as it were, as permissible factors for consideration; others fell on the other side of the line.  Does that make this case a very difficult one as a suitable vehicle for considering the question of principle that you raise, because if some of the factors were productive of some nervous shock, with its sequalae, and some were not, then there is a question of causation of the entirety of the psychiatric condition which the plaintiff suffered? 

That raises, as it were, new questions, and there are really two major policy questions for this Court to consider, I should have thought.  One is whether there has been enough experience in litigation to raise crisply the issues which your argument now seeks to raise and which are, undoubtedly, important questions.  The second is whether this case is an appropriate vehicle for doing so.

MR WHITINGTON:   Yes, I am indebted to your Honour.  I accept that it will be put against us that this is not an appropriate vehicle and we do have to address the issue of the other so‑called stressors.  Your Honour might remember that there were seven so‑called stressors and four were eliminated and so the relevant set was three and they were these:  the report by the police officers at the front door which caused the plaintiff to go into hysterical shock; then she said that while she was being conveyed to hospital she saw some lights in the distance about a kilometre away and that, in effect, caused her to think back on the death of her daughter.  We wish to say that that was not, in any sense, shocking.  All it did was, if you like, echo or reverberate the original shock and then she went to hospital and she saw her husband and her son.  Now again, she herself said that she did not find it particularly disturbing.

His Honour Justice Lander correctly noted that the psychiatrist said that it did not appear to him that she suffered shock as a result and, in her own words, she, in effect, said, “I looked at him and I saw his blood”, referring to her husband, “That did not particularly disturb me, but I thought that if that is how he looks how must she” meaning her daughter “look?”

Again, we say, that that is a mere echo or reverberation of the communication shock.  Moreover, if the Court pleases, there is, in fact, a special leave point in itself at that level because the court below seemed to think that shock experienced at seeing one victim could be transposed into shock in connection with another victim and that that transposition could be a qualifying shock.  In our respectful submission, there is no authority at all for that proposition.  It has never been held that by seeing one person in one condition it can precipitate a qualifying shock in relation, say, to the death of another person.  So there is a special leave point there in itself.

We would wish to say, in relation to the observation of the lights, that the facts are on a very small compass.  That event was purely peripheral or incidental to the knock on the door and the report by the police officers.  The plaintiff, in her words, said, “The sky was glowing and I knew that was where my baby had been killed.”  She then said, “I just kept hearing the droning and knowing that is where Ashley had left the world and just wishing I had taken her shopping.”

We would submit that while there might be some residual factual question, properly characterised, that event amounts to no more than a mere reflection on the original shock.  There was no evidence from the psychiatrist on this topic.  He was not told, either in court or out of court, about this episode but the primary judge sought to make an inference about that, based on commonsense.  He said that it was a matter of commonsense, that if the psychiatrist had been informed of this incident, his opinion would be reinforced when, as his Honour put it, within the relevant time frame there is another traumatic sensation.

It is our submission that that does not follow, as a matter of inference, by common sense and it also depends on the false assumption that seeing the lights a kilometre away is traumatic or inherently shocking.  It is our submission on the law that the authorities establish that the shock must be caused by some inherently shocking or horrifying event.

BRENNAN CJ:   Were the lights in fact lights which were shining at the place where the accident took place?

MR WHITINGTON:   His Honour was prepared to accept that they must have been - that is the primary judge.  The plaintiff also said she heard the droning of engines at the scene.  The police officers gave evidence that the windows of the car were up and that no noise could have been heard.  His Honour was not prepared to make any finding about that as between whether she actually heard a noise or whether she simply imagined it.  We say two things, essentially, in response to your Honour’s question about the obstacle we must meet as to whether this is an appropriate vehicle.  The first is that, seen in their proper light, these other incidents fall away and this does expose a pure case of communication. 

In any event, even if we are not absolutely correct in that, the facts are in a relatively small compass and it would still be an appropriate case for the Court to pronounce upon the principles in connection with injury by report.  In saying that, could I also remind the Court that in 1992 the House of Lords had before it the case of Alcock, which was the case involving the melee and the overcrowding at the Hillsborough Soccer Stadium and whether or not shock could be induced by what people saw on television.  This Court has not considered the issue since Alcock in 1992, and in that case the House of Lords were unanimous that there could be no compensable shock caused by mere report or communication.

In our respectful submission, there is a very important policy issue here and that is this, and the judgment of the President, Justice Kirby, in Coates really highlights this.  Coates was a case in New South Wales decided in 1995 involving nervous shock and two members of the court, the Chief Justice and Justice Clarke, decided that they did not need to deal with the nervous shock issue which was raised solely on appeal as to communication, because they found that the primary judge was correct in saying that there was no proper psychiatric injury.

Justice Kirby, on the other hand, held that that was taking too narrow a view of psychiatric injury and that an expansive view should be taken and he went on to hold that there could be compensable shock through mere communication.  In so saying, he also made the remark that the variety of human relationships is infinite and, of course, one must accept that.  But that has the implication that an almost infinite variety of relationships can give rise to shock through communication and when one combines that with the increasingly expansive view taken of psychiatric injury, then if this trend is allowed to continue, liability will be enormously expanded.

The point we wish to make here is that in the case of most ordinary people, the fact of death of serious injury to someone they love, or with whom they have a close relationship, will be shocking.  But if they are allowed to recover in the event they suffer psychiatric illness as a result, in effect, a new cause of action will be created of causing shock through wrongful death or injury because in practice it is impossible to distinguish between the reaction to death or injury and the reaction to the news and most people are liable to be shocked by the death, particularly by misadventure, of a loved one or close associate.

So, the critical question, we would submit, for the law in its development is whether the law is prepared to go so far as to allow what we submit would be a cause of action for shock through wrongful death or wrongful injury and, as I say, bearing in mind the infinite variety of relationships within which that shock might be precipitated and the expanding definition of psychiatric illness, that cause of action could have very wide and serious ramifications.  It is our submission that for those reasons this Court ought to give consideration to it and, with great respect, earlier rather than later.

We have one other point which we wish to agitate on the application; that is a minor point dealing with mitigation.  The primary judge found that the plaintiff would have kept working, but for her pregnancy ‑ ‑ ‑

BRENNAN CJ:   Could I just say this, Mr Whitington:  obviously if this point stood by itself it would not be a grant of special leave.  The question that you seek to raise has got to be a crisp question, capable of determination.

MR WHITINGTON:   Yes.

BRENNAN CJ:   Is this question either necessary to the argument of the principal question or is it likely to affect the resolution of the principal question in any way?

MR WHITINGTON:   No, your Honour, it is quite independent of it.  It is an issue of mitigation and it raises quite a separate issue.

BRENNAN CJ:   Well, let me put this to you:  it relates to the cost of bringing up the twins.

MR WHITINGTON:   And the wages foregone.

BRENNAN CJ:   And the wages foregone.  Well now, does that mean that you would want to, as it were, link that in some way to the question of whether her true psychiatric injury was by reason of the knowledge that she had lost Ashley and, if that is so, does that raise any question that either complicates or makes clearer the principal question that you wish to raise?

MR WHITINGTON:   No, we would seek to run it concurrently with the principal question, your Honour, and we do not think it would complicate it, we think it could stand on its own, but it is a very important question which I think I could encapsulate this way:  in assessing damages, should the court have regard solely to what is reasonable by the plaintiff’s own.....or should the court assess what is reasonable in monetary terms or compensation terms, as between the plaintiff and the defendant?  In this case there is no doubt that what the plaintiff did was reasonable by her own......  She became pregnant and she had twins and it affected a resolution of her unfortunate psychiatric illness but, as his Honour Justice Lander noted on appeal, had she continued in that condition, her claim for damages for non-economic loss would have been much less than the claim she ultimately propounded and succeeded on for economic loss as a result of the pregnancy.

Nonetheless, the court said that her conduct was reasonable, therefore she could recover for the wages foregone following pregnancy, without more.  The court did not weigh the financial or compensation effect upon the defendant.  If the court had done this, then it would have been clear, on our submission, that the defendant should not have to pay the wages foregone because, from his point of view, that was unreasonable.  It is also important that the primary judge found that the plaintiff would have kept working but for her pregnancy and not lost any pay.  And, indeed, that was part of the plaintiff’s case for trial, as his Honour the primary judge noted.  However, Justice Lander appeared to contradict the trial judge on that without pointing to any evidence for his proposition and said it is probable that if she continued to suffer the stress disorder with marked depressed mood, that, of itself, would have interfered with her earning capacity, causing loss of earning capacity of the order of the kind for which she sought damages.

Of course his Honour does, in that sentence, use the expression “capacity” or “earning capacity”, but he tied it to the period when she was bringing up the twins.  So, in fact, it was a realised loss.  It was not so much a loss of earning capacity as a loss of earning capacity which was productive of a loss of earnings.  For those reasons, we say, that the court was wrong to go on and find that the conduct of the plaintiff was reasonable.  By her own ....., the court failed to do the requisite balancing of the interest of the defendant and that, as a result, there is an issue here of the proper standard

of reasonableness in such a case.  We respectfully submit, although that is a subsidiary point, that also is an appropriate matter.  This Court has never directly dealt with that, although there is a dictum in Medlin’s Case several years ago, which supports our position, that it was very much obiter.

As I say, this Court has not directly dealt with that particular issue of mitigation.  So, we accept, your Honour, that it is independent, it will not complicate the primary question.  It may not justify special leave by itself but in conjunction with the other matter, in our respectful submission, it should.  If the Court pleases.

BRENNAN CJ:   Mr Erikson.

MR ERIKSON:   If the Court pleases, the respondent, in its first question that it raises regarding special leave, poses the question in a manner, “Does a plaintiff who sustains shock and psychiatric illness on being told of the death or injury of another have a claim in damages for nervous shock at common law?”  Now, the court has already referred to the fact that there are a number of stressors which the trial judge found and the Full Court endorsed, that operated on the plaintiff on the night in question.  Three of those were found by the trial judge in the Court of Appeal to have been within the concept of aftermath.

It is submitted on behalf of the respondent that the principles regarding recovery for nervous shock and, in particular, the aftermath principle, were set out in detail in this Court’s judgments in Jaensch v Coffey.  There is a statement in that judgment by Justice Deane, at pages 608 to 609 - and I will paraphrase it - the question is left open as to whether a plaintiff suffering psychiatric injury as a result of being informed of the death or serious injury of a victim has a claim for nervous shock.

Now, the respondent’s contention is that the applicant in this case has sought to surgically excise and craft the findings of the trial judge in the Court of Appeal in such a manner as to leave open that one issue which was posed by Justice Deane so as to be able to argue before this Court that it constitutes a basis for special leave.  Now, an analysis of what the findings were, it is submitted with respect, show that there was a combination of stressors which gave rise to the post‑traumatic stress disorder and the depressive mood disorder which were classed by Dr Lucas, the only psychiatrist called to give evidence, and the trial judge and the Court of Appeal accepted - he said that there were - the following matters, in his opinion, contributed to and caused the psychiatric injury.  At page 20 of the application book, Judge Worthington says:

As mentioned earlier, Dr Lucas defined the parameters of the period during which the damage giving rise to her psychiatric condition was done -

So, it was addressed by the psychiatrist and Judge Worthington picked up on the psychiatrist’s evidence, where he said that these parameters were as being from when she was awoken by the telephone until and including her experience after arriving at the hospital.  So, the relevant findings of fact, which later on appear on page 20 of the application book also, which I will address in a moment, are really that she was awoken from a dead sleep in an environment where she felt safe and comfortable in that she had just, some few hours before, kissed her little girl goodbye because she was going Christmas shopping and she did not want Ashley to see the presents she was buying for Christmas, the husband had taken the children to his parents’ place - he was a motor mechanic, he was fixing up their car.

He rang the plaintiff at 10 o’clock saying, “I’m having a cup of tea, I’ll be home in a moment.”  She dozed off.  She was awoken by the phone, where a neighbour was ringing her to advise her that there was a policeman at the door.  Two policemen came in and they told her that her daughter was fatally injured.  They told her, also, that her husband and son were in hospital.  They took her by police vehicle to the relevant hospital.

On the way to the hospital, she passed within a kilometre of the accident scene, and it was mentioned earlier on in argument as to what she saw.  At page 6 of the application book, line 3, Judge Worthington said this:

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. 

She then goes to the hospital.  She sees her husband, who was injured, going in and out of unconsciousness.  He had blood on his hands and blood on his neck, and my friend has referred to the fact that any shock that she may have perceived from observing his condition cannot be transferred to Ashley.  But the plaintiff’s case was that the shock could be a combination of the injuries sustained by any of the victims, all of whom sustained their injuries as a result of the negligence of the defendant.  Then his Honour reviewed all the evidence, and at page 20 he makes his finding of fact after a very extensive analysis of the law, including the case of Jaensch v Coffey, the English authorities and the Australian authorities since Jaensch v Coffey.  He said, at page 20:

It is 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 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 then passed 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 the child had 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 is submitted that the judge at first instance, after reviewing the relevant authorities and distilling out the correct principles, did an analysis of the facts and then came up with that conclusion, and what the applicant seeks to do in this case is to excise out of those findings of facts the involvement of the plaintiff going past the accident scene, and a reflection in respect of that scene being where her daughter died, and the effect of seeing her husband and child in the casualty department of the Lyell McEwin Hospital.

Now, if those factual findings stand, it is submitted, with respect, that this is not the correct vehicle to decide whether or not verbally communicated views of death or tragedy giving rise to psychiatric injury can sound in damages for nervous shock because this case has a combination of stressors and, in fact, when looked at in comparison with the facts that were apparent in the case of Jaensch v Coffey, there is one significantly different stressor, namely, that she saw the accident scene.  It will be remembered that in the case of Jaensch v Coffey, the plaintiff in that case never ever visited the accident scene.

So, it is submitted that in order for this case to be elevated to a special leave point on the issue of verbally communicated news of tragedy or death resulting in nervous shock, one would have to rewrite the judgment to excise those findings of fact in respect of, at least, two of the stressors found by the judges of the Full Court and the trial judge.  That is all I wish to say on special leave point No 1.  Does the Court wish me to proceed with and deal with the matter of mitigation?

BRENNAN CJ:   Yes, you may as well deal with that while you are on your feet, I think, Mr Erikson.

MR ERIKSON:   Regarding the matter of mitigation, your Honour, you will remember the factual findings of the trial judge that there were a combination of features which emanated from her psychiatric illness and if I can just remind you of those; they are in fact recorded in the summary of argument.  She found it difficult to sleep and was having nightmares about what she had been told at the accident.  She could not bear to be home during the day surrounded by reminders of her daughter, and you will remember that she in fact went to work at a fairly early stage in an endeavour to immerse herself in her work to try and forget the loss of her daughter.  She was unable to eat appropriately and lost weight accordingly; she could not talk to her husband and came to hate the son because he did not seem to care about his sister who had been killed and there was evidence from the plaintiff and the husband to the effect that the marriage was drifting towards a very serious condition. 

She suffered avoidance symptoms being unable to sew and bake, because she associated these activities with her daughter and she could not drive in the vicinity of the road where the accident occurred.  She experienced lessened concentration and, more particularly, she had suicidal thoughts and expressed the intention to her husband that suicide had been contemplated by her.

At page 8 of the application book, his Honour Judge Worthington recites at line 35:

At work she would take herself off to the toilets and cry.  Mrs Dodds‑

that is the next door neighbour -

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 -

Now the evidence is that she went to a general practitioner and she obtained some antidepressant medication.   That did not work.  Just going back to the time frame:  the accident occurred on 3/12/92.  Because of her symptomatology she and her husband decided to sell and relocate their house, which they did, in mid-1993.  Her evidence being that she tried to get over the grief but was unable to do so and her evidence was that she was, in fact, in her belief, getting worse.

She left work in February 1994.  She became pregnant soon after leaving work and the twins were born in November 1994.  The twin therapy, as it is referred to in the judgments and by the psychiatrist, Dr Lucas, was extremely successful.  During the latter part of the pregnancy and to the time of the birth of the children her psychiatric illness abated.  She has, from time to time, relapses but they are far less in intensity and frequency than what she had prior to the birth of the children.

The finding of the trial judge was that her and her husband made the informed decision to reverse his vasectomy and to have a family and that this was done in a last ditch effort, so to speak, to try and pull the plaintiff from this spiralling set of symptoms that she had which, as the trial judge found, constituted a psychiatric illness.

At page 30 of the application book his Honour said:

Applying the principles.....to which I have referred -

and he referred to the mitigation principles set out in McGregor on Damages and the High Court decision of Fox v Wood.  Judge Worthington said:

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.

It is submitted that had she not reversed the downward spiral of her many symptoms, that further depressive episodes, injury to herself, hospitalisation in a private hospital for psychiatric patients, significant medication and psychiatric treatment could have been how it developed but the twin therapy, fortunately, worked and the plaintiff sought loss of earnings up to the time that the children started kindergarten, part time during kindergarten and no loss of damages after they went to school at age five.  The judge discounted the past loss which, from the date of the accident to the date of the trial, spanned a period of approximately two and a bit years.  He discounted that substantially on the basis that she had taken time off work initially to try and straighten out the behavioural problems that Callum, the surviving son, had developed.  It is submitted that there is no ambiguity regarding the principle.  It is really a finding of fact that his Honour made on the evidence and applied to the relevant principle.

BRENNAN CJ:   Thank you, Mr Erikson.  Mr Whitington.

MR WHITINGTON:   Can I briefly address the first issue of communication shock?  Firstly, can I make it clear that if there is an outstanding factual issue, it would only be a question of inference from established facts.  There was no dispute with the found facts.

BRENNAN CJ:   Is that quite correct?  There are three stressors that we are concerned with.  Two of those are, to use the term, sensory.  That is the last two.  The first one is the only one which was by way of a communication distinct from the plaintiff’s own sensation of what she saw.

MR WHITINGTON:   That is correct.

BRENNAN CJ:   The question is whether there is an issue as to whether the psychiatric damage which she suffered was caused or contributed to by those last two of the three sensory experiences.

MR WHITINGTON:   Yes.  There is uncontroverted evidence about that.  It is simply a question of the proper characterisation and the inferences one would draw from that evidence.

BRENNAN CJ:   Can you draw an inference different from that which Judge Worthington drew at page 20?

MR WHITINGTON:   Yes; can I explain why.  Would the Court, perhaps, go to the application book at page 51, first of all.  At line 7 there is a sentence starting, “He said”.  Then, if the Court would turn to page 77, again in the reasons of Justice Lander on appeal, the first paragraph on that page, we stress particularly the last sentence and the expression, “that nervous shock”.

BRENNAN CJ:   That is not quite the relevant part, though, is it?  This is the Court of Appeal speaking here, or a judge in the Court of Appeal.  The finding of fact that was made by the trial judge is that the condition for which compensation was awarded was a condition caused or contributed to by three concurrent factors, two of which are sensory.  Does that not present a difficulty to your argument?  You can take some additional time to answer these questions, Mr Whitington.

MR WHITINGTON:   Thank you, your Honour.  I accept that it has to be considered but it has to be considered in light of the evidence and there are two important features.  One is that Dr Lucas knew nothing about the incident involving the lights.  His Honour Justice Worthington had to, if you like, fill in the gap by reference to what he said his opinion would have been, had he been told.  Secondly, he was told of nothing untoward at the hospital.  If the Court would go to page 118 of the application book, we set out the relevant references.  There is footnote 12, first of all, and footnote 15.  Now, can we also submit, if the Court pleases, that on top of that we have an overriding legal submission that, however you characterise these sensory events, neither of them was inherently shocking so as to qualify for the purposes of the doctrine of nervous shock.

BRENNAN CJ:   That depends, does it not, upon another aspect, and that is that these events took place in respect of a woman who had just been told that her daughter had been killed?

MR WHITINGTON:   Yes, it does, but it raises, with great respect, an issue as to the objective nature of the event.  It is our submission that the event must be objectively shocking and not simply have a shocking effect on the plaintiff.  For instance, one sees that most clearly in the judgment of Lord Ackner in McLoughlin v O’Brian, where he talks about the event having to be a horrifying event, and your Honour Justice Brennan alluded to this in Jaensch v Coffey, in a passage dealing with shock and how shock was to be defined or considered and we would wish to submit ‑ ‑ ‑

BRENNAN CJ:   The problem, if I might say so, from my point of view, is that the plaintiff in this case goes to hospital and sees her husband and her son in a condition which did not, in itself, cause her distress on their behalf.  But it was, nonetheless, an event which she saw which was an aftermath and immediate and foreseeable aftermath of an accident in which her daughter had been killed.  So that that event to her, at all events, might well have been a truly shocking event.  At all events, that seems to be the way in which, at page 20, the judge addressed it.

MR WHITINGTON:   Yes, I agree with your Honour.  The difficulty with that is that there was no evidence that it was shocking.  In fact, her evidence was to the effect that she did not find it disturbing.  The Court will see that at page 5 of the application book, at line 10, this passage of evidence appears in the primary judge’s reasons.  At page 10, at about line 8 down to 15.

BRENNAN CJ:   Yes.

MR WHITINGTON:   The only other submission we wanted to make, if the Court pleases, was that this Court had before it an application for special leave in the matter of Coates from the Court of Appeal on 13 October 1995.  On that occasion special leave was rejected and your Honour the Chief Justice said this:

The evidence or nervous shock in the case of either plaintiff was tenuous.  This is not a suitable case in which to canvass the question of the psychological conditions which might attract an award of damages consequent on nervous shock or the question of liability for nervous shock created when a plaintiff hears of an accident befalling a third party.

And if I could just remind the Court, that was against the background of a decision at first instance, and in the Court of Appeal, that the plaintiffs did not, in fact, suffer a psychiatric illness.  They are our submissions in reply, if the Court pleases.

BRENNAN CJ:   Yes, thank you.  First, we should like to thank counsel for their assistance in this matter. 

The question which the applicant seeks to raise can be successfully argued only if the psychiatric condition for which the plaintiff was compensated was not caused by sensory perceptions the occurrence of which the trial judge was entitled to treat as causative of compensable nervous shock.  The applicant cannot demonstrate that such sensory perceptions were not causative of the condition for which the plaintiff was compensated without seeking to amend or place a particular complexion on the findings of the trial judge.  For that reason, special leave will be refused.  That being so, we need say nothing as to the correctness of the assessment of damages relating to mitigation of loss.  Special leave is refused.

MR ERIKSON:   If the Court pleases, I apply for costs?

BRENNAN CJ:   You have nothing to say about that, Mr Whitington?

MR WHITINGTON:   No, your Honour.

BRENNAN CJ:   Special leave will be refused, with costs.

AT 11.19 AM THE MATTER WAS CONCLUDED