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Phan v Lawson

Phan v Lawson

Case [1997] SASC 6086 25 March 1997

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IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

COX, BOLLEN AND LANDER JJ

Torts - negligence - essentials of action for negligence - where nervous shock or mental disorder - negligence - motor accident - negligence of the appellant caused the death of the respondent's 7 year old daughter and injury to her husband and 5 year old son - respondent suffered nervous shock due to daughter's death - not present at accident scene - awoken to be told by police of the tragedy - shock caused partly by being told of the accident and partly by what she saw on the way to and at the hospital - post traumatic stress disorder and depression. Whether a duty of care exists is a matter of common sense - court will have regard to the involvement of the person who suffered the nervous shock and whether they are sufficiently close in terms of relationship, involvement or perception - of the seven stressors operating upon the respondent in relation to the chain of events the first three were events of the kind which would qualify the plaintiff for a claim for nervous shock - discussion of leading authorities dealing with nervous shock. Wrongs Acts35A(1)(c) is not a code for the cause of action of nervous shock but limits its availability - plaintiff must fulfil common law requirements to recover damages.

Damages - measure and remoteness of damages in actions for tort - mental and nervous shock - assessment of damages - major stress disorder resolved but with legacy - bought new family home because of association of first home with deceased - allowance of part of relocation expenses by the learned trial judge upheld - plaintiff's condition ameliorated signigficantly by twins born about 1 year after accident - most unlikely to have had further children if daughter not killed - mitigation of loss - held damages allowed by learned trial judge for loss of earnings during infancy of twins appropriate - non-economic loss - distinction must be drawn between the compensable aspects of the reaction to the events and the non-compensable aspects such as grief and bereavement - award relating to non-economic loss reduced by 30 per cent. Wrongs Act 1936 s23A, 28, 35A, referred to. Jaensch v Coffey (1984) 155 CLR 549; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Petrie v Dowling [1992] 1 Qd R 284; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383; McLoughlin v O'Brian [1983] 1 AC 410; Hinz v Berry [1970] 2 QB 40; Coates v GIO of New South WalesRCT (1995) 36 NSWLR 1; T v The State of South Australia
(1992) 59 SASR 278; State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248; Hewitt v Bernhardt (1979) 21 SASR 510; Fox v Wood (1981) 148 CLR 438, applied. Victorian Railways Commissioners…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phan v Lawson

Details

AGLC: Phan v Lawson [1997] SASC 6086
Case: [1997] SASC 6086
Decision Date: 25 March 1997

CaseChat Overview and Summary

Phan v Lawson was a case heard in the Full Court of the Supreme Court of South Australia. The respondent, Tracey Lawson, brought an action against the appellant, Tri Minh Pham, claiming damages for personal injuries which occurred on 3 December 1992, when the appellant's vehicle collided with a vehicle driven by the respondent's husband, causing the death of their daughter, Ashley, and injuries to the husband and another child. The respondent claimed damages for psychiatric disorder which she suffered as a result of her daughter's death. The court considered whether a duty of care existed, whether the respondent suffered a nervous shock, and if so, the assessment of damages. The court found that a duty of care did exist, the respondent suffered a nervous shock, and allowed damages for loss of earning capacity and relocation expenses but reduced the award for non-economic loss by 30 per cent to account for non-compensable grief and bereavement. The court allowed the appeal only to reduce the respondent's damages by $4,110.

Orders