Saad Nakleh Awad v Bebnowski, Squirrell & Noarlunga Health Service No. DCCIV-99-1517

SAAD NAKLEH AWAD & OTHERS v BEBNOWSKI & OTHERS
[2002] SADC 157
Judge Rice
Civil
Introduction

This is an action whereby damages are claimed under a number of headings by Mr Awad and his three children arising from the death of Helen Awad and, subsequently, Mrs Awad. Legally, the action gives rise, in part, to a consideration of s.35A of the Wrongs Act (as it then stood) as well as the meaning and boundaries of a claim for what is commonly called nervous shock.
From a factual viewpoint, the action requires detailed findings generally and, in particular, as to a substantial conflict between some of the plaintiffs and the second defendant and witnesses called on his behalf. All of these matters are considered below. Before outlining the causes of actions pleaded by the various plaintiffs, I summarise the facts of the case. For this purpose, I have endeavoured to be neutral in the language used. Some matters are not in issue but there are both significant legal and factual disputes.
Outline of the facts
On the 20th October, 1996, the first defendant, Bebnowski, was driving his car in a northerly direction along Blewitt Springs Road, McLaren Flat, south of Adelaide. He had three passengers one of whom was one of Mr Awad’s daughters, Helen Awad. She was seated in the back seat behind Bebnowski. Although she was wearing a seat belt that was securely fastened, one of the disputes is whether it was properly adjusted. Her seat belt was a type that required manual adjustment. Bebnowski failed to take a right-hand bend whereby he lost control of the car and it collided with a tree on the incorrect side of the road.
Ms Helen Awad died of internal injuries prior to reaching hospital. The other back seat passenger, Ms Michelle Tan, sustained very serious internal injuries but survived and gave evidence. She also had securely fastened her seat belt being of the same type as that worn by Ms Awad. The driver and his front seat passenger, Ms Monika Kasper, sustained only minor injuries. Those two in the front seat were wearing different types of seat belts, namely, self-adjusting or inertia reel seat belts of the type that are fitted to modern cars.
As mentioned, Ms Helen Awad died before the ambulance reached the hospital, namely, the Noarlunga Hospital. Whilst her body was still in the ambulance, the Deputy Director of the Emergency Department, Dr Squirrell (the second defendant) certified death. Ms Awad’s body was due to be taken to the mortuary in the city of Adelaide but the ambulance was needed for another emergency. Dr Squirrell reluctantly agreed to hold her body at the hospital. Ms Awad’s body was then taken inside the hospital.
Neither the police nor the medical staff at the hospital knew the identity of Ms Awad at that stage. Further enquiries by the police revealed a telephone number for Ms Awad but the address remained unknown despite a call to Telecom. Prior to any telephone calls, the police learned her name. There was also uncertainty as to whether Ms Awad lived at the address where the number was connected. After some discussion between a police officer and Dr Squirrell, it was decided that Dr Squirrell would telephone the number the police had ascertained. What was said over the telephone, and to whom, is the subject of substantial dispute. The detail of that dispute is examined later. Suffice it to say at this stage that the case for the plaintiffs is that Dr Squirrell told a number of people at the Awad house, particularly Mrs Awad, that Helen Awad had been killed in a car accident and someone was needed to attend at the hospital to identify her body. Dr Squirrell and witnesses called on his behalf, who were present at his end of the conversation or conversations, deny and/or provide accounts quite inconsistent with the assertions made by the plaintiffs.
The news that the plaintiffs claimed to have been conveyed over the telephone was passed on to all those in the household, even though it is not suggested all spoke with Dr Squirrell. They all became greatly distressed, particularly Mrs Awad, who was distraught, crying and screaming. She collapsed and was taken into a lounge room. It was decided that Mr Awad and his son, John, would go to the Noarlunga Hospital, but a neighbour would drive them. Mr Awad and John were to meet friends of theirs, Mr Moubarak and his son, at the hospital. Mr Awad and John left Mrs Awad in the care of two other daughters, Nicole and Nina, and another neighbour.
There is yet another dispute about what happened, what was said and by whom when Mr Awad, John and their friends arrived at the hospital. Mr Awad and John said they were there to identify Helen Awad’s body. Dr Squirrell and those involved with the group gave evidence that the questions that were asked and demeanour suggested that Mr Awad and John were concerned for Helen’s welfare but not aware of her death. According to the defendants, Mr Awad, John and the Moubaraks first became aware of her death at some time after they arrived at the hospital. At some time after that, whilst Mr Awad, John and the Moubaraks were still at the hospital, news came through that Mrs Awad had collapsed at the house and died. Mr Awad and John were then required to attend at the Flinders Medical Centre (“FMC”) to identify her body. A post-mortem examination revealed that she had died of a heart attack. She had a history of chronic heart problems and high blood pressure. The post-mortem report (exhibit P7) says this:-
“....The cause of death is attributed to cardiac arrhythmia, in the setting of myocardial scarring and coronary artery stenosis, a well documented cause of sudden death.”
In addition to the events surrounding 20th October, 1996, there was detailed examination and cross-examination relating to the claims for what is referred to as nervous shock and dependency claims by all plaintiffs.
Pleadings - plaintiffs
Claims by the plaintiffs against the first defendant
The plaintiffs raise a total of twenty causes of action against the first defendant. In respect of the death of Helen Awad, each of the four plaintiffs claims damages for nervous shock, each claims damages for dependency and Mr S. Awad claims for solatium and for funeral and testamentary expenses. In respect of the death of Mrs Awad, each of the four plaintiffs claims damages for nervous shock, each claims for dependency and Mr Awad claims for solatium and for funeral and testamentary expenses.
Claims by the plaintiffs against the second and third defendants
Under this heading it is more convenient to reproduce portions of the Statement of Claim. Paragraphs 25 and 26 are pleaded as follows:-
“25.The second defendant and the third defendant owed to the plaintiffs and each of them and the second deceased a duty of care in that the second defendant and the third defendant knew or should have known:
(a) if the second defendant and the third defendant caused injury to the second deceased that the husband and siblings of the second deceased may suffer injury upon identification of the second deceased or upon receiving news of injury or death and the plaintiffs and each of them may thereby suffer loss and damage;
(b) the matters alleged in paragraph 1, 2, 3 and 4 hereof.
26.In the alternative to the allegations against the first defendant, the death of the second deceased was caused by the negligence of the second defendant and the third defendant in advising the second deceased of the matters alleged in paragraph 18 hereof.
PARTICULARS OF NEGLIGENCE OF THE SECOND AND THIRD
DEFENDANTS
26.1 The second and third defendants were negligent in that:
(a)the second defendant informed the second deceased of the first deceased’s death by providing information by telephone;
(b)the second defendant failed to allow or require police to inform the second deceased of the death of the first deceased.
(c)the second defendant failed to act as a reasonably competent medical practitioner in advising the second deceased of the matters in paragraph 18 hereof in that he disclosed clinical information over the telephone;
(d)the second defendant failed to follow the hospital procedure manual in notifying the next of kin and in particular the second deceased in person in a private room of the hospital;”
Paragraphs 18 and 19 are pleaded as follows:-
“18.At or about 1.30 pm on the 20th October 1996 and as a consequence of the first deceased’s death the second defendant contacted the first deceased’s family by telephone and inter alia informed the first plaintiff, the third plaintiff and the second deceased words to the effect that the first deceased had died. The second defendant requested that a member of the first deceased’s family attend the hospital to identify the body.
19.As a result of the information provided by the second defendant to the second deceased as alleged in paragraph 18 hereof she thereby suffered injury as a consequence of which she died on the 20th October 1996 (the second death).”
The plaintiffs also claim damages against the second and third defendants for loss of dependency resulting from the death of Mrs Awad. Mr Awad claims for solatium and for funeral and testamentary expenses for the death of Mrs Awad. All plaintiffs claim for nervous shock consequent upon the death of Mrs Awad.
Pleadings - defendants
Response of the first defendant concerning the death of Ms Helen Awad
The first defendant admitted the driving referred to above and that Ms Helen Awad died as the result of injuries sustained in the collision. As mentioned, there is a significant dispute as to whether her seat belt was properly adjusted. For the purpose of these proceedings, the first defendant admitted his driving was negligent and caused the death. Any dependency was denied. It was admitted that Mr Awad was entitled to solatium and funeral and testamentary expenses. There was a denial that any of the plaintiffs were entitled to damages for nervous shock at common law and/or pursuant to the Wrongs Act.
Response of the first defendant concerning the death of Mrs Awad
Apart from admitting the fact of the death of Mrs Awad, the first defendant denied the allegations, particularly the existence and content of a duty of care or that the death of Mrs Awad was reasonably foreseeable. In essence, the first defendant says that the death of Mrs Awad was not causally linked to any negligence on the part of the first defendant and that there was no consequential entitlement to damages under any heading. Specifically, any entitlement by any plaintiff to solatium or funeral and testamentary expenses was denied. Further, any claim for damages by any plaintiff based on nervous shock was denied because it was not available at common law and/or pursuant to the Wrongs Act. The first defendant was not able to comment on allegations made against the second and third defendants.
During the course of the trial, the first defendant was permitted to plead the same matters referred to in paras.19.1 and 19.2 of the Defence of the Second and Third Defendants. Those paragraphs are referred to below.
Response of the second and third defendants to the death of Mrs Awad
The second and third defendants deny any liability in respect of the death of Mrs Awad. Particularly, the second and third defendants, as mentioned above, have put forward an account of the relevant telephone calls substantially different from that of the plaintiffs. Apart from admitting the fact of Mrs Awad’s death, these defendants denied any causal connection between any of their actions and the death. Further, they specifically pleaded additional facts that may have been the cause of her death.
Paras.19.1 and 19.2 are as follows:-
“19.1the second deceased had for a period of approximately 10 years prior to her death sought medical treatment for high blood pressure;
19.2immediately prior to her death the second deceased exhibited signs of coronary atherosclerosis in both the left and right coronary arteries and 60-70% stenosis of the left coronary artery.”
Response of the second and third defendants to the death of Ms Helen Awad
It is not pleaded, and there is no suggestion, that the second and third defendants have any liability concerning Ms Helen Awad’s death.
Claims for injury in the form of mental and nervous shock - operation of s.35A Wrongs Act, 1936
It is convenient at this stage to consider the claims of the plaintiffs, at least from a legal perspective initially, in as much as they claim damages for mental and nervous shock arising from the deaths of both Ms Helen Awad and Mrs Awad.
There are a number of portions of s.35A Wrongs Act, 1936, as it then stood, that apply. I commence by reproducing the opening words of sub-sec.(1):-
“35A. (1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:”
Obviously that applies here because the plaintiffs are seeking damages for an injury arising from a motor accident in relation to both deaths. The accident in which Bebnowski, the first defendant, was driving is the only motor accident in this case. Injury is defined to include death and mental and nervous shock. S.35A clearly has operation in respect of the group of claims founded on the deaths of Ms Helen Awad and Mrs Awad. S.35A(5) provides, in part, that an injury shall be regarded as arising from a motor accident if it is consequent upon the driving of a motor vehicle. Importantly, s.35A(1)(c) provides as follows:-
“(c)no damages shall be awarded for mental or nervous shock except in favour of -
(i) a person who was physically injured in the accident, who was the driver of or a passenger in or on a motor vehicle involved in the accident or who was, when the accident occurred, present at the scene of the accident; or
(ii) a parent, spouse or child of a person killed, injured or endangered in the accident;”
It is clear from (c)(i) that there is a limitation imposed in the form of a temporal and geographic connection with the accident. That connection to one side, those persons who may claim damages for mental or nervous shock are limited to certain family members only, namely a “parent, spouse or child” of a person killed or injured. By definition, siblings of a person killed or injured are excluded.
As is clear from the limited narration of the facts referred to earlier, there is no plaintiff who was present at the accident scene when the accident occurred. Only Mr Awad comes within the second limb of inclusion relating to the death of Ms Helen Awad. Mr Awad is a parent of a person killed in the accident.
As to the claim relating to Mrs Awad, there are no plaintiffs that come within s.35A(1)(c). Siblings are not included and Mrs Awad is not a person killed, injured or endangered in the accident.
I conclude that of the eight claims (two groups of four) for damages for mental or nervous shock, s.35A precludes all claims other than that of Mr Awad relating to the death of Ms Helen Awad. At this stage I refer to the Full Court case of Pham v Lawson (1997) 68 SASR 124, particularly the judgment of Lander J (Cox and Bollen JJ agreeing), at 145:-
“Section 35A is a code relating to the assessment of damages for personal injuries arising out of motor vehicle accidents. It is not intended to give causes of actions to parties not presently entitled to causes of actions. It is not intended to extend the circumstances in which a claim for personal injuries for mental or nervous shock might be brought. It is not to be compared to s 28 of the Wrongs Act.
Indeed the section has been included for the purpose of limiting persons who might be entitled to particular heads of damages in motor vehicle accidents. With mental or nervous shock it limits the persons who might bring such an action to drivers and passengers involved in an accident or a person who was present at the scene of the accident. Only parents, spouses or children are entitled to damages under this head if they were not drivers or passengers or present at the scene of the accident.
The section has no impact upon circumstances in which a duty of care would arise for claims of this kind but merely limits the persons who may recover damages for any breach of a duty of care, but only in motor vehicle accidents.
In my opinion s 35A, except in so far as it defines the persons who might bring claims for mental or nervous shock, is not relevant to the matters in issue in this case. The alternative contention is rejected. The respondent is only entitled to succeed if she can bring herself within the common law rules relating to actions of this kind.”
S.35A was then in the form as it is for present purposes. Not only is that case binding upon me, it accords, with respect, with my own view of the section. The purpose of the section was to limit the persons who could claim for mental or nervous shock. Even for such persons it is still necessary for he or she to bring themselves within the common law rules relating to a claim for damages of this type.
Operation of s.35A(1)(i) and s.27A of the Wrongs Act and s.162AB of the Road Traffic Act upon remaining claims
At this stage I give consideration to the legal effect of s.35A(1)(i) of the Wrongs Act and s.162AB of the Road Traffic Act upon the remaining claims. By way of shorthand, I am referring to the seat belt issue. At this stage I do not propose to give detailed consideration to the facts. That is undertaken below.
The operation of those sections has the potential to affect all of the remaining claims. As mentioned above, there is no doubt that Ms Awad was wearing a securely fastened seat belt at the time of the accident. The factual question with which I deal later is whether the seat belt was properly adjusted. The basis for these considerations arises from the sections which provide as follows:-
“35A. (1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
(i) if the injured person (not being a person under the age of 16 years) was, contrary to the requirements of the Road Traffic Act 1961, not wearing a seat belt at the time of the accident, the damages to be awarded shall, on account of that contravention, be reduced by 15 per cent or such greater percentage as the court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury:”
“162AB. (1) A person of or above the age of sixteen years who is in a motor vehicle that is in motion must not -
(a)occupy a seating position that is equipped with a seat belt, unless he or she is wearing a seat belt and it is properly adjusted and securely fastened;”
S.35A applied because this action involves an assessment of damages for a death arising from a motor accident. At the time of her death Ms Awad was aged 16 years. The plaintiffs contend that s.35A(1)(i) has no application because Ms Awad was wearing a seat belt at the time of the accident. However, that section necessarily imports the additional requirements of s.162AB of the Road Traffic Act. Hence, in my view, it was necessary that Ms Awad’s seat belt be both “securely fastened” and “properly adjusted”. In this regard I agree, with respect, with the judgment of Supreme Court Master Burley in Collings v Radloff (1996) 189 LSJS 259 at 260. As to the legal effect of s.35A(1)(i), I refer to Barnard v Towill and Others (1998) 72 SASR 27. Lander J (with whom the other members of the Court agreed) said (at 41):-
“Section 35A(1)(i) deals with a plaintiff who was not wearing a seat belt at the time of the accident. It requires the court if satisfied that a seat belt was not being worn contrary to s 162ab of the Road Traffic Act to reduce the damages to be awarded by 15 per cent or such greater percentage as the court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury.
The section makes it mandatory to reduce the damages by 15 per cent if the court concludes that there was a breach of s 162ab. The court shall also reduce the damages by a greater percentage as it thinks just and equitable having regard to the extent that a seat belt would have reduced or lessened the severity of the injury. It is therefore mandatory to reduce damages by 15 per cent even in circumstances where the failure to wear the seat belt did not contribute to the injury or even contribute to the severity of the injury which was suffered.”
And further (at 42):-
“The scheme of the Act in relation to seat belts is to oblige the court to reduce a person’s damages by 15 per cent in all circumstances where a person, who has suffered injuries, brings a claim for damages and it is established that that person was not wearing a seat belt in contravention of s 162ab. If in fact it is established that the wearing of a seat belt would have reduced or lessened the severity of the injury, then a court can reduce the damages by some greater amount but that will depend upon the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury.”
And finally (also at 42):-
“....it seems to me that s 35A(1)(i) is in its form so that the court, after determining that a seat belt was not worn, must next inquire into whether the proper use of the seat belt would have reduced or lessened the severity of the injury. If so satisfied then that would be the culpability that must be examined in a consideration of contributory negligence in an inquiry under s 27A(3). In other words, satisfaction of the matters in s 35A(1)(i) would give rise, in my opinion, to a particular of contributory negligence which would then be examined under s 27A(3). That is, in my opinion, consistent with the approach before the enactment of s 35A: see Ferrett v Worsely (1993) 61 SASR 234.”

S.27A(3) relevantly provides as follows:-
“(3) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage....”
Barnard v Towill and Others also emphasises that s.27A of the Wrongs Act (before its repeal) is of general application, namely it applies to “....all claims for negligence, breach of statutory duty or any other act or omission which gives rise to a liability in tort” (at 35). S.27A(9), which has particular application here, provides as follows:-
“(9)        Where -
(a)     a person (in this subsection called ‘the injured person’) suffers damage as a result partly of his own fault and partly of the fault of any other person or persons; and
(b)    by reason of the damage to the injured person a third person suffers damage (whether by way of the loss of the society or services of the injured person or otherwise)
then, in any claim by the third party for the damage so suffered by him the fault of the injured person shall be taken into account under subsection (3) of this section for the purpose of reducing the damages recoverable by the third party as if the said fault were the fault of the third party.”
I accept the submission that any reduction of damages as required by s.35A(1)(i) operates in respect of each cause of action pleaded by the plaintiffs. I return to this aspect of the case later in these reasons.
Was Ms Helen Awad’s seat belt “properly adjusted”
The first point I consider is the nature of the seat belt being worn by Ms Awad. Three of the four seat belts from the Datsun 200B (Bebnowski’s car) were tendered in evidence (P125). The driver’s seat belt was not available for examination.
The seat belts at the front were of the type to be found in modern cars. They were variously described as the retractable or inertia reel type but, essentially, were of the type that adjust automatically to fit the occupant of the seat. They lock automatically under heavy braking or in an accident. As already mentioned, Bebnowski and Ms Kasper, both occupants of the front seat, sustained relatively minor injuries in the accident.
Two of the three rear seat belts were lap/sash belts of the static type that had to be manually adjusted to achieve a suitable fit for each occupant (D(1)110 Report of Mr Hall dated 10/4/2001). There was a seat belt in the middle of the rear seat that was for the lap only. There was no occupant of the middle seat.
Concentrating upon the belt worn by Ms Awad, there were three anchor points overall; one into the sub-frame over her right shoulder, one into the sub-frame down below her right hip and one down below her left hip. That portion of the seat belt attached to the anchor point below her left hip was of a fixed length and was unable to be adjusted. It gives the appearance of being manufactured to that fixed length. It is into that portion of the seat belt that the other fits and is released upon depressing a red button with the word “press”. The remaining portion of the seat belt is in one piece and completes the lap and sash when being worn correctly. There is only one point for adjustment of the length of that portion of the belt and that is over the right shoulder. The webbing of the seat belt is able to feed between the lap and sash through what was referred to as a “D ring” or “tongue slider”.
Before moving to a consideration of the examination of the seat belt undertaken by Mr Hall, I refer to the evidence of the other back seat passenger, Ms Michelle Tan. As mentioned, she was in the left hand back seat and there was no-one in the middle. There are a number of important aspects to her evidence, particularly the wearing of her seat belt, what she saw of the positioning of Ms Awad’s seat belt, the movements of the car just prior to the accident and the injuries sustained by her.
Ms Tan said she was wearing a non-retractable seat belt and assumed Ms Awad was also because the two looked the same. Ms Tan did not adjust her seat belt in any way that day. When Ms Tan saw her general practitioner, Dr Wong, on 13th November, 1996 in relation to her injuries she told him that she had been flung forward and then restrained by the seat belt. When she gave evidence in Bebnowski’s criminal trial, she was questioned whether her seat belt was loose and she asserted that it was “not very loose” (TP1375.10) and “slightly loose” (TP1376.32). She maintained that it was not very loose to the point where she could “jump out of the seat belt”, but was loose enough for her to move slightly forward (TP1375.24-26).
As to her observations about Ms Awad’s seat belt, Ms Tan was unable to say how Ms Awad was sitting or how the seat belt was on her. She did not notice whether Ms Awad made any adjustment to the length of the seat belt (TP1382.10). Further, she did not notice whether the sash portion of Ms Awad’s belt came across the middle of her (Ms Awad’s) right upper arm, under the line of her breasts and across the stomach (TP1382). Ms Awad was still sitting behind Bebnowski after the collision.
Just prior to the impact, Ms Tan moved slightly towards the centre of the back seat to see through the front windscreen. She was able to see the tree that was eventually hit, the car yawing to the left at that stage. Upon impact, Ms Tan was flung forward and then restrained by the seat belt (TP1374.24). Ms Tan’s injuries consisted of internal injuries to the kidney and liver, mainly on the right side, and a fracture of two ribs on the right side (TP1340.14).
Concerning the examination of Ms Awad’s seat belt by Mr Hall, he confirmed that Ms Awad was wearing the seat belt at the time of the collision. After some modification he concluded the likely impact speed was 65-70 kilometres per hour (Report 16th May, 2002, part D(1)110). Mr Hall’s examination of Ms Awad’s seat belt led him to conclude that her seat belt was not correctly adjusted at the time of the collision. There were two main methods adopted by him to reach that conclusion. The first involved an examination of the seat belt with the aid of a stereo microscope, the other was to use those findings in conjunction with a person about the same size and stature of Ms Awad positioned in a comparable vehicle.
As to the first, the examination revealed there to be heavy abrasion at the tongue slider and the webbing showed distinct plastic transfer from the tongue slider. The position of that transfer indicated where the maximum load was applied to the belt. The location of the plastic on the webbing was used to determine the adjustment of Ms Awad’s belt and how far the belt was extended when the maximum load was applied. Taking the position of the plastic and knowing the lengths to the upper and lower mounting positions (or anchorage points), indicated the overall length of webbing was too long for her stature. Put another way, for someone of her size, there was a significant “slack” or “looseness” in the seat belt when it was securely fastened. In addition, Mr Hall performed tests using an exemplar vehicle and passenger, namely a 1978 Datsun 200B and a female of the same weight and height as Ms Awad. The distance between the model’s chest and the seat belt was found to be 388 mm (see photograph marked P9 as part of a report of 4th July, 2001, itself part of exhibit D(1)110). Mr Hall explained that a properly adjusted non-retractable seat belt will be firm across the lap and chest, and static. Ideally, to provide the best protection, the belt should be very firm against a person to minimise the load level that will be applied in the event of a frontal collision. However, this can be uncomfortable so it is accepted that to be able to place a hand’s width between the chest and the belt (about 75-100 mm) is to have the belt “properly adjusted”.
In addition to his own examination and tests, Mr Hall was provided with the post-mortem report of Dr Gilbert (exhibit P6). Mr Hall expressed his conclusion in this fashion in his report of 4th July, 2001:-
“It can be concluded from the location of the load markings on the webbing of Ms Awad’s seat-belt that it was very poorly adjusted.
As a result of the ‘slack’ in the adjustment of Ms Awad’s seat-belt, she would have moved significantly forward on her seat before the belt became tensioned (see [photographs] P6 - P8). In addition, the looseness of the belt may well have resulted in the sash section slipping from her shoulder in the manner depicted in P6 & P7. That belt orientation across the model’s chest was chosen to illustrate how loads (forces) consistent with markings presented in the autopsy report may have occurred.”
Support for Mr Hall’s opinion is to be found in the evidence of Dr Ryan, also called by the first defendant. (His report is dated 14th January, 2002 - exhibit D(1)109.) Dr Ryan was shown, amongst other things, to have a great deal of experience and interest in the area of road safety, particularly the use of seat belts and injuries sustained in car accidents when a seat belt is being worn. He confirmed that, for a non-retractable seat belt, it should have no more than 75-100 mm of slack for it to be regarded as “properly adjusted”; one should be able to fit their fist between their chest and their belt, the slack allowing for some movement. This “rule of thumb” was part of a public education campaign during the 1970’s prior to the introduction of retractable seat belts (TP1712-3). Some of Dr Ryan’s evidence on this point moves between the meaning of “properly adjusted” and the consequences of Ms Awad’s failure to properly adjust her seat belt. His evidence is considered further below.
In my view, accepting, as I do, the substance of the opinions expressed by Mr Hall and Dr Ryan, Ms Awad’s seat belt was not “properly adjusted”.
Quite apart from their final opinions, I accept the accuracy and interpretation of the observations made by Mr Hall concerning the examination of Ms Awad’s seat belt. The effects of that examination are illustrated in the photographs that form part of the report of 4th July, 2001. Relying upon those observations and their interpretation, my own assessment is that there is no doubt that the seat belt was not properly adjusted. My own assessment is made quite independent of the “rule of thumb” referred to earlier, although I do regard that as a useful practical guide as to what amounts to properly adjusted.
A little needs to be said about whether the sash portion of the seat belt was off Ms Awad’s shoulder before the collision or came off the shoulder while the car was yawing or came off in the collision. Dealing with the last of those, in my view there was insufficient time after impact for the sash to fall off the shoulder but before the rapid deceleration takes place. If the sash was off the shoulder, it was being worn that way during the journey or came to be that way consequent upon the yawing course of the car. I do not find it necessary to decide which of the three possibilities took place here. With the amount of slack found by Mr Hall, there was a failure to wear a properly adjusted seat belt no matter how the sash was positioned. Whether it was off the shoulder or over the shoulder but with the capability of coming off the shoulder, such a seat belt is not properly adjusted.
Consequences of Ms Awad’s failure to properly adjust her seat belt
In accord with the interpretation given to s.35A(a)(i) of the Wrongs Act in Barnard v Towill and Others (supra), per Lander J (particularly at 41-42), any damages awarded must be reduced by 15 per cent as a minimum “....or such greater percentage as the court thinks just and equitable having regard to the extent to which the proper use of a seat belt would have reduced or lessened the severity of the injury.”
As mentioned, this aspect of the matter was the subject of evidence from Mr Hall and Dr Ryan. Mr Hall said that, as a result of the looseness of the seat belt, Ms Awad would have moved considerably forward before the belt became tensioned. An additional consequence of this slack may have been that the sash of the belt slipped from her shoulder.
The maximum load applied to the belt in this accident would have been at least 30 times Ms Awad’s body weight [the equivalent of almost 1500 kg]. The extent of the load on the belt would have been dependent on the degree of adjustment. In the case of a seat belt that is not properly adjusted, the speed of the car starts to reduce immediately it hits the fixed object but the occupant continues along at the same speed until the belt causes deceleration of that person 100 or so milliseconds later. The force that is then applied is directly proportional to the speed difference between the car and the occupant at the time. There is a direct relationship between the slackness of the belt and the length of time between impact and the point when the person is restrained by the belt. I again quote from the report of 4th July, 2001:-
“During a frontal collision, the vehicle begins to decelerate rapidly, which causes occupants to move forward into their seat-belts, which then act to decelerate the occupants down to the speed of the vehicle. Ideally, seat-belts are designed to begin the occupant deceleration process as soon as possible after the onset of vehicle deceleration. The greater the lag period between the onset of the collision and the beginning of deceleration of the occupants, the greater the velocity difference between the vehicle and the occupant. That in turn leads to greater deceleration of the occupant, which results in higher belt loadings on the occupant.
It is well accepted that a poorly adjusted seat-belt results in greater belts loads applied to an occupant than would be experienced if the seat-belt had been correctly adjusted. That will directly influence the relative injury potential.”
Dr Ryan said that the oblique bruising across the lower right chest and upper part of the abdomen in the autopsy photograph of Helen Awad marked “A” (exhibit D(1)104) is highly suggestive of seat belt injury. The bruising is consistent with the relevant comments contained in the autopsy report of Dr Gilbert. The bruising is also consistent with Mr Hall’s reports concluding that there had been considerable slack in the seat belt at the time of the crash which may have caused it to fall off Ms Awad’s shoulder during the impact. Dr Ryan said the angle of the bruise and abrasion indicates the relationship between the body and the belt at the point of impact, namely that the seat belt was not properly adjusted because if it had been the markings on the body should be around the shoulder or the collarbone. He said the fact of the yawing in this case should not make any difference to the expected position of the marks because the point of impact was essentially in the middle of the vehicle’s front end. It is unlikely that a properly adjusted seat belt would fall off the shoulder, although Dr Ryan did not suggest that it was impossible - he said he would require more information about the movement of the vehicle prior to collision. Dr Ryan said the bruising shown in photograph “B” of D(1)104 suggests that the belt was relatively loose because if it had been properly adjusted the buckle bruise would have been located closer to the hip, as seat belt buckles are designed to sit near the hip bone. The abrasion injury to the left hip correlated with the internal injuries to the left kidney, spleen and a tear in the diaphragm. These would have occurred on colliding with the tree (such injuries requiring an extremely severe impact), not during the subsequent rotation. Due to the seat belt slack, and assuming the sash belt had fallen off her shoulder, the internal injuries were caused because of the organs being compressed between the spine and the seat belt. Importantly, the velocity of the body moving forward would have been greater than if the seat belt was properly fitted. A properly fitted seat belt should sit over the bony parts of the chest (sternum) and shoulder, avoiding injuries to internal organs. To be worn safely, the seat belt should be positioned over certain bones in the body - collarbone, sternum and ribs - closest to the centre of mass. The further off the shoulder the belt is positioned at impact, the further from the hard parts it is and the more movement of the upper body occurs.Dr Ryan’s opinion about the effect of a properly adjusted seat belt was partly formed by comparison to the injuries the other passengers suffered. Dr Ryan has found in his experience that back seat passengers get fewer and less severe injuries than front seat passengers. It logically follows that the force experienced by back seat passengers is less. However, he did not agree at all with the contention put to him during cross-examination by Mr Frayne that there is inherently a higher risk of injury being a back seat passenger. Dr Ryan was questioned about a variety of factors potentially affecting the severity of crash victims’ injuries. He indicated body mass was only a minor factor. The design of the seat belt can be a factor. However, an optimally adjusted manual seat belt should provide as good protection as a retractable one.
The plaintiffs submitted that, if I took the view that Ms Awad’s seat belt was not properly adjusted, any damages awarded to the plaintiffs should be limited to 15 per cent having regard to the serious injuries suffered by Ms Tan, the other back seat passenger. There is no doubt that Ms Tan also sustained very serious injuries from which she would probably have died without surgical intervention (TP1372-3 and the reports forming D(1)80 and P81). The argument of the plaintiffs in this regard is predicated on the basis that Ms Tan’s seat belt was properly adjusted and that she sustained injuries that mirrored Ms Awad’s, except that death did not ensue. In other words, a proper use of the seat belt would not have reduced or lessened the severity of the injury and that therefore it would not be just and equitable to reduce any damages any more than the 15 per cent minimum.
Quite apart from any expert opinions, my view of the evidence of Ms Tan referred to earlier demonstrates that, in all likelihood, she also was not wearing a properly adjusted seat belt. She does not appear to have performed any adjustment to her seat belt. Whilst she may have been a little taller than average, her build at the time was no more than average. She was certainly not a big person. However, in addition to those matters, there is expert evidence suggestive that her seat belt was not properly adjusted either, although the strength of that expert opinion is not as strong as that for Ms Awad (see Mr Hall’s report of 31st May, 2002, D(1)123 and his evidence at TP2062-3; Dr Ryan at TP1737).
On a consideration of all the evidence, in my view Ms Tan’s seat belt was also not properly adjusted. The primary injuries were similar to those sustained by Ms Awad, although those sustained by Ms Awad were sufficiently more serious that she died at the scene or soon after. I am not in a position to be able to say with any degree of precision why one died and the other almost did. Ms Tan’s seat belt may have been positioned differently at the moment of impact and her movement to the right to look through the front windscreen may explain it. In any event, I do not think it would profit to endeavour to take that further.
Under this heading, it remains to decide whether the reduction in any damages should exceed the statutory minimum of 15 per cent. I find that the proper use of the seat belt by Ms Awad would have reduced or lessened the severity of the injury. Further, I find that a properly adjusted seat belt would have prevented death or serious bodily injury. On the evidence, a properly adjusted static or manually adjusted seat belt provides virtually the same protection as a retractable seat belt. As already noted, the driver (Bebnowski) and front passenger (Kasper) used retractable (inertia reel) seat belts. Both sustained comparatively minor injuries.

In my view, had Ms Awad been wearing a properly adjusted seat belt, the severity of her injuries would have been reduced to about the level of the two in the front seat. I readily acknowledge, however, that it is a judgment about which it is difficult to be precise. I also note that the severity of injuries for back seat passengers tends to be less than for occupants of the front seats. Viewed overall, it is just and equitable to reduce any awards to the plaintiffs by 70 per cent, applying a combination of s.27A(3) and (9). I have already found that the reduction required by s.35A(1)(i) operates in respect of each of the causes of action pleaded against all defendants. (I have also had regard to the recent Full Court case of Short v Wenham [2002] SASC 369 delivered on 13th December, 2002.)
Legal considerations concerning the claim by Mr Awad for mental and nervous shock arising from the death of Ms Helen Awad
As discussed earlier, Pham v Lawson (supra) is authority for the proposition, inter alia, that Mr Awad is only entitled to succeed if he can bring himself within the common law rules relating to actions of this kind.
At the time this judgment was reserved, the High Court had heard argument in two cases involving psychiatric injury in what have been called “nervous shock” cases, but had not delivered judgments. Those judgments were delivered on 5th September, 2002. The two cases are Tame v The State of New South Wales and Annetts & Anor v Australian Stations Pty Limited [2002] HCA 35; 191 ALR 449. The principles discussed in those cases had a direct bearing upon this case and were the subject of further submissions on 8th November, 2002.
I commence with a summary of the facts and the decision in each case. Concerning Tame, it is convenient to reproduce the summary from the judgment of Gleeson CJ (paras.21 and 22):-
“[21]         The alleged tortfeasor is Acting Sergeant Beardsley. In February 1991, he completed a report concerning a motor traffic accident which took place in January 1991. Mrs Tame was the driver of a car involved in a collision with a car driven by Mr Lavender. The accident was clearly the fault of Mr Lavender. Both drivers were subjected to blood testing. Mr Lavender’s blood alcohol level was 0.14. Mrs Tame’s was nil. Mr Lavender was charged with an offence; and Mrs Tame later sued for, and obtained, damages for physical injury. When Acting Sergeant Beardsley filled in the report form in February 1991, he erroneously attributed to both Mrs Tame and Mr Lavender a blood alcohol reading of 0.14. (It would have been a surprising coincidence if they both had precisely the same level.) He noted the mistake later in February or March 1991, and corrected it. In the meantime, however, a copy in the uncorrected form had been obtained by an insurer. Neither the police nor anybody else acted on the erroneous information. The insurer admitted liability in June 1991. During 1992, Mrs Tame heard of the mistake from her solicitor. Mrs Tame became obsessed about the error. She was also emotionally disturbed about other matters. Ultimately, in 1995, her condition was diagnosed as psychotic depression.
[22]           Mrs Tame had a history which predisposed her to such illness. That history included mistreatment in early childhood, the recent loss of a parent and marital difficulties. Recovery from the physical injuries she suffered in the accident was slow and frustrating. Her husband attempted suicide in December 1992, and was subsequently treated for psychiatric illness.”
The trial judge held that the State of New South Wales was vicariously liable for Acting Sergeant Beardsley’s negligence and awarded the appellant damages. The Court of Appeal allowed the appeal. Although some of the members of the High Court gave differing reasons, all took the view that Mrs Tame’s appeal should be dismissed. The majority view was that the State simply did not owe a duty of care to Mrs Tame. It was expressed by Gleeson CJ in this manner (para.29):-
“He [Acting Sergeant Beardsley] could not reasonably have been expected to foresee that his mistake carried a risk of harm to Mrs Tame of the kind that resulted. It was not reasonable to require him to have her mental health in contemplation when he recorded the results of the blood tests.”
Gummow and Kirby JJ, in their joint judgment, expressed it in this way (para.232):-
“[232]       No case in negligence can be made out against the respondent in respect of the conduct of Acting Sergeant Beardsley. This is because a reasonable person in Acting Sergeant Beardsley’s position would not have foreseen that his conduct in carelessly completing the traffic collision report involved a risk of causing a recognisable psychiatric illness to the appellant.”
And further (para.233):-
“[233]       But it was not reasonably foreseeable that a person in the position of Mrs Tame would sustain a recognisable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she received a formal apology. The appellant’s reaction was extreme and idiosyncratic. The risk of such a reaction was far-fetched or fanciful and, in the manner indicated in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8; 29 ALR 217 at 221, was not one which the law of negligence required a reasonable person to avoid.”
As to Annetts, again it is convenient to refer to the summary from the judgment of Gleeson CJ (para.34):-
“[34] The applicants’ son, aged 16, had gone to work for the respondent as a jackaroo in August 1986. Seven weeks later, allegedly contrary to assurances that had earlier been given to the applicants, he was sent to work alone as caretaker of a remote property. In December 1986, he went missing in circumstances where it was clear that he was in grave danger. When Mr Annetts was informed of this by the police, over the telephone, he collapsed. There was a prolonged search for the boy, in which the applicants took some part. His bloodstained hat was found in January 1987. In April 1987 the body of the boy was found in the desert. He had died of dehydration, exhaustion and hypothermia. The applicants were informed by telephone. Subsequently Mr Annetts was shown a photograph of the skeleton which he identified as that of his son.”
Mr and Mrs Annetts failed in a claim for psychiatric injury based on negligence. The trial judge held that Australian Stations Pty Ltd did not owe Mr and Mrs Annetts a duty of care because they did not directly perceive their son’s death or its aftermath and the psychiatric injury was not the result of a sudden sensory perception. The Full Court in Western Australia dismissed the appeals by Mr and Mrs Annetts. The High Court granted leave and allowed the appeals on the basis that Australian Stations Pty Ltd owed a duty of care to Mr and Mrs Annetts. Gleeson CJ said (para.37):-
“[37]         Here there was a relationship between the applicants and the respondent sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care, though the applicants did not directly witness their son’s death, and suffer a sudden shock in consequence. The applicants, on the assumed facts, who themselves had responsibilities for the care of their son, only agreed to permit him to go to work for the respondent after having made inquiries of the respondent as to the arrangements that would be made for his safety and, in particular, after being assured that he would be under constant supervision. Contrary to those assurances, he was sent to work alone, in a remote location. In those circumstances there was a relationship between the applicants and the respondent of such a nature that it was reasonable to require the respondent to have in contemplation the kind of injury to the applicants that they suffered.”
A little later (para.38):-
“[38]         ....No one would doubt the foreseeability of psychiatric injury to the applicants if they had seen their son being run over by a car, or trampled by a stock horse. The circumstances of his disappearance and death were such that injury of that kind was more, rather than less, foreseeable.”
And finally (para.41):-
“[41]         The respondent’s breach of duty consisted in failing properly to care for and supervise the applicants’ son, by sending him to work alone, in a remote area. He left his post, became lost in the desert, and died. For reasons already mentioned, this may not have been likely to result in a sudden sensory perception of anything by the applicants. But it was clearly likely to result in mental anguish of a kind that could give rise to a recognised psychiatric illness.”
Prior to Tame and Annetts, the law had developed what have been referred to as “control mechanisms” that needed to be overcome before there could be damages awarded for negligently inflicted psychiatric injury. Gaudron J (at para.45) referred to them as the three “rules”, namely, the “sudden shock rule”, the “normal fortitude rule” and the “direct perception rule”. The effect of Tame and Annetts is that a plaintiff now no longer has to overcome these three rules to succeed. Much of the evidence and the original submissions before me in this case were devoted to these rules and whether the plaintiff had overcome them. Although it is no longer a prerequisite to success to overcome those rules, they are still relevant factors in the determination of liability. They are relevant to whether a duty of care exists; where such a duty does exist, whether it has been breached; whether the defendant’s tort has caused the injury in question, and whether the injury was too remote a consequence of the defendant’s tort.
By way of example, using the rule or guideline of “normal fortitude” or “normal standard of susceptibility”, Gleeson CJ (at para.16) said this:-
“[16] ....there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though “normal fortitude” cannot be regarded as a separate and definitive test of liability.”
I refer again to Gleeson CJ (at para.18):-
“[18] I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. It does not follow, however, that such factual considerations are never relevant to the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury. In particular, they may be relevant to the nature of the relationship between plaintiff and defendant, and to the making of a judgment as to whether the relationship is such as to import such a requirement.”
Those quotations and others serve to emphasise that the three rules or control mechanisms are relevant to the determination of liability but are not pre-conditions to it.
The High Court emphasised two other matters. The first was the qualification of reasonableness that must play a part at each stage of the determination of liability. The second was that of the nature of the relationship between the plaintiff, defendant and injured person (or deceased), particularly in Annetts. Such a relationship could be contractual or familial or both.
Having regard to the judgments in Tame and Annetts, and particularly the matters referred to above, the test for whether there is a duty of care imposed upon the first defendant concerning any psychiatric injury of Mr Awad (that being the only claim that survives the exclusions in the Wrongs Act) is as follows:-
“A duty of care is imposed upon the first defendant to take reasonable care to avoid the possibility of psychiatric injury in Mr Awad by his negligent driving only if it could be said that a reasonable person in the shoes of the first defendant would reasonably have foreseen that a person of normal fortitude may possibly suffer a psychiatric illness in the event of a want of care by him causing death.”
Quite apart from what was said in Pham v Lawson at 148 on this topic, I have no hesitation in finding that an injury of that kind was reasonably foreseeable. In my view, Bebnowski owed a duty of care to Mr Awad. It was reasonably foreseeable that a person of normal fortitude in Mr Awad’s position might suffer mental harm. The relationship of father and daughter is obviously a close one. Bebnowski should undoubtedly have had the father in contemplation as someone who could be affected by his negligent driving if her death ensued.
Has there been a breach of that duty of care?
This aspect of the matter does not require detailed consideration. Because the first defendant (Bebnowski) owed a duty of care to Mr Awad, it was the responsibility of the first defendant to take reasonable steps to avoid a risk of that kind. It is reasonable to impose a duty to take reasonable care to avoid that risk because a person of normal fortitude might suffer psychiatric injury. On the facts this he clearly failed to do. I find that there was a breach of that duty of care.
Has Mr Awad suffered an injury in the form of mental harm or injury arising from a breach of that duty of care?
It must be acknowledged at the outset that damages for psychiatric injury are awarded only for the psychiatric illness that is proved to be attributable to the breach of duty of care. Damages are not awarded for grief and bereavement which was suffered: Pham v Lawson (supra) at 151-153. (Also Tame and Annetts per Gleeson CJ (para.7); per Gaudron J (para.44); per Gummow and Kirby JJ (para.193); per Hayne J (para.285); per Callinan J (para.328)). I have no hesitation in finding that all plaintiffs suffered intense grief, sorrow and bereavement.
Mr Awad has pleaded particulars of his injury, loss and damage in paragraph 37 of the Statement of Claim. It is also acknowledged that these conditions are said to have been suffered as a result of the deaths of both Ms Helen Awad and Mrs Awad. The particularised psychological or psychiatric conditions in the nature of nervous shock are “an anxiety depressive illness”, “major depression” and “pathological grief reaction”. Those alleged conditions are alleged to have been caused by one or a number of the following events:-
1.being informed by telephone by the second defendant (Dr Squirrell) that his daughter Helen had died;
2.being requested by the second defendant to attend at the Noarlunga Hospital to identify her body;
3.having the death of his daughter Helen confirmed (at the Noarlunga Hospital) by the second defendant;
4.being required or permitted to identify the body of his daughter.
An alternative formulation is available to Mr Awad, namely that he suffered a mental and nervous shock upon being informed, for the first time, at the Noarlunga Hospital in the afternoon of the 20th October, 1996 of the death of his daughter and the subsequent viewing of her body. As to the first limb of that alternative formulation, if Mr Awad was informed, for the first time, at the Noarlunga Hospital of her death, it is difficult to see how that is relevantly different from being informed over the telephone. Leaving to one side a telephone call of an exceptional nature, perhaps callous (which I find was not the case here on any version), it is the fact of the information that is all-important. This is an aspect of the case to which I will return later.
Much depends in this case upon the content of the conversations over the telephone between Dr Squirrell and Mrs Awad and some of the plaintiffs at the Awad home in the early afternoon of 20th October, 1996. Later in this judgment I give detailed consideration to those conversations when considering the case against the second and third defendants. As can be seen, I am not satisfied that any of the plaintiffs or Mrs Awad were told over the telephone of Helen’s death or that it was necessary for someone from the family to attend at the hospital to identify her body. In my view, Mr Awad and John Awad were told of Helen’s death, for the first time, at the Noarlunga Hospital. Concerning the identification of her body, this arose from a combination of them wanting to see her body and the police needing a formal identification for coronial purposes.
To the extent that the case for the plaintiffs against the first defendant depends upon the alleged communication of the devastating news over the telephone, then it should be rejected. However, as I have already indicated, it is the fact of that devastating news that was crucial, not the mode of its communication. Although I have reached a conclusion about the mode of communication, in my view that is not determinative of the matter.
As I have already acknowledged, although the three rules to which reference has been made are not pre-conditions to the existence of a duty of care, they are, nonetheless, relevant at all stages in the determination of liability (if any). Although Mr Awad was never at the scene of the collision that led to his daughter’s death, he saw her body at the Noarlunga Hospital some hours later. Consistently with the High Court’s decision in Jaensch v Coffey (1983-4) 155 CLR 549, the aftermath extends to the hospital where a dead person is taken.
In my view, in this case, the occasion giving rise to the sudden shock (see Brennan J in Jaensch v Coffey at 567) was the devastating news conveyed at the hospital, combined with a viewing of his dead daughter’s body. (Different considerations will apply when it comes to discussing the position of the second and third defendants.) Although those two factors were both operating, the finality of the information that she was dead would have been sufficient in itself. Viewing her body was additional and confirmatory. There was then no scope for doubt or hope. This approach is, in my view, also consistent with Annetts.
There were a number of psychiatric reports tendered at trial. The reports came from Dr Lashchuk, Dr Scurrah, Dr Jarvis, Dr Sellars and Dr Hundertmark (all called by the plaintiffs) and Professor Goldney (called on behalf of the second and third defendants). The reports and evidence of Dr Hundertmark and Professor Goldney make one matter plain, namely, that Mr Awad is certainly suffering from a recognised psychiatric illness or injury in the form of a chronic post-traumatic stress disorder (PTSD) which is synonymous with nervous shock (Dr Hundertmark TP675, 677; Professor Goldney TP2198). He is also suffering from an adjustment disorder. Mr Awad is also suffering prolonged grief and mourning.
The more difficult question to answer is how much of that psychiatric illness is attributable to the death of his daughter and how much to the death of his wife, minus the component for prolonged grief and mourning arising from the deaths of both. Relying principally upon the evidence of Professor Goldney (and I include his reports), I find that Mr Awad suffered a psychiatric illness arising following the breach of a duty of care by the first defendant to him that led to the death of Ms Awad (see, for example, Professor Goldney’s reports of 5th April, 2002 (D(2&3)135) and 4th June, 2002 (D(2&3)136). Disentangling the various stressors is undertaken below.
Is there a sufficient causal link between the mental harm or injury and the breach of the duty of care?
In answering this question, I have had regard to a number of authorities. First, I refer to the judgment of Glass JA in Minister Administering the Environmental Planning and Assessment Act, 1979 v San Sebastian Pty Ltd and Others [1983] 2 NSWLR 268 at 269 where His Honour said:-
“The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, at 390.”

Secondly, I have had regard to March v E & M H Stramare Pty Limited and Another [1990-1991] 171 CLR 506 to the effect that, where negligence is in issue, causation is essentially a question of fact to be answered by reference to common sense and experience (at 515).
In the context of this type of negligence claim and the facts that I have found, applying those tests, I have no doubt that there is a substantial causal link between Mr Awad’s mental injury and the breach of the duty of care. That is not to say that there were not other causes also.
I refer back to Pham v Lawson (supra) where the Full Court decided that s.35A Wrongs Act defines the persons who might bring claims for mental or nervous shock and that a claimant such as Mr Awad is only entitled to succeed if he can bring himself within the common law rules relating to actions of this kind. In my view, Mr Awad has brought himself within the common law rules relating to actions of this type relating to the death of Ms H. Awad. (See also the discussion under the next heading.)
To what extent is Mr Awad’s mental injury attributable to the death of Ms H. Awad?
The reports of Dr Sellars (P31), Dr Scurrah (P32) and Dr Jarvis (P33) do not help in this regard. Those reports do not attempt to deal with this question as the respective doctors were more concerned with the treatment of Mr Awad’s mental health in the early stages flowing from all the stressors. Similarly, Dr Lashchuk’s reports (P23, P24 and P25), although supporting the diagnosis of a psychiatric illness in the form of major depression, do not assist in this regard.
In Dr Hundertmark’s reports comprising P34, he talked of Mr Awad’s treatment in Psychiatry Outpatients at Flinders Medical Centre concerning “....the loss of his wife and daughter in such tragic circumstances.” Dr Hundertmark’s report of 28th February, 2000 (P30), although in much greater detail than his earlier letters of report, again refers to the death of Mr Awad’s wife and daughter as giving rise to “a very significant degree of disability” and that he has “....a severe and treatment-resistant type of Post-Traumatic Stress Disorder”. It is a global approach with no differentiation between the deaths and other stressors: (see also TP679, 716 where he was treating the combination of circumstances as a “package”). He was concerned to endeavour to provide adequate treatment for Mr Awad, particularly working his way through his grief in appropriate supportive psycho-therapy (TP691). Importantly, for the purpose of diagnosing Mr Awad’s post-traumatic stress disorder, Dr Hundertmark did not distinguish between conscious and unconscious anger (TP701). Dr Hundertmark thought it a very difficult question and exercise to attempt to isolate the causal effect of the events at Mr Awad’s home, at the Noarlunga Hospital and at Flinders Medical Centre. He also said at one stage that he considered Mr Awad was mourning the loss of his wife more than the loss of his daughter (TP706-7, but see also TP718). (See also report of Dr Scurrah, P32.)
The most comprehensive and impressive psychiatric evidence came from Professor Goldney. Professor Goldney provided a number of reports relevant to Mr Awad, 17th August, 2000 (P47), 5th April, 2002 (D(2&3)135) and 4th June, 2002 (D(2&3)136). To the extent that Dr Hundertmark differs from Professor Goldney, I prefer the evidence of Professor Goldney. I have had regard to his very detailed reports and do not attempt to summarise them.
In his reports and in his evidence, Professor Goldney distinguished between conscious anger, unconsciously determined syndromes (such as chronic PTSD) and prolonged grief and mourning. As I understood his evidence, factors going to his conscious anger are separate from the psychiatric disorder (TP2193-2199). To assist in disentangling the various stressors, Professor Goldney prepared a chart to explain his opinions. Relative to Mr Award, the chart provided as follows:-

Family

Member

Contribution

Relative Significance

of Deaths

Psychiatric Disability

“Nervous

Shock”
*

Grief and

Mourning

Other

Stressors
**
Mrs. J.
Awad
Ms.Helen

Awad

When

assessed

Long

term
prognosis

Mr. Saad
Awad

1/6

1/3

1/2

60%

40%
30%, but
only 25%
due to
October
1996
10-15%

* Incorporates Post-Traumatic Stress Disorder and Adjustment Disorder
** Incorporates anger to driver, Dr. Squirrell, Cemetery, “The System”

Professor Goldney said that he used the words “nervous shock” as synonymous or interchangeable with the diagnosis of PTSD (TP2197-8). In Professor Goldney’s opinion, the cause of the nervous shock and therefore the PTSD suffered by Mr Awad (and two of the other plaintiffs) was the shock of the deaths of Mrs Awad and of Helen (TP2208). However, under cross-examination, it became clear that Professor Goldney was using the words “nervous shock” “....to refer to the shock itself which is defined in one of the cases as being the sudden sensory perception of some event so shocking that if affronts the mind....” (TP2229). He was not using the expression “....to refer to the psychiatric illness or physical condition which may result from that sudden sensory perception (TP2229-30).
As I interpret what Professor Goldney was saying (at TP2229 ff), Mr Awad suffered a nervous shock leading on to the PTSD, although, from a psychiatric point of view, each can be present without the other. He also said, “I don’t see the nervous shock as causing the PTSD.” For the purposes of the diagnosis of PTSD, the traumatic event or events was the fact of the losses. Irrespective of how he was told of the losses, Mr Awad would have reacted in the same way, including likely to have had a PTSD (TP2233). Professor Goldney also expressed the view that Mr Awad would have been worse off psychiatrically if he had not seen his daughter’s body.
As I have indicated earlier, in my view, the breach of the duty of care owed to Mr Awad is causally linked to his PTSD. I do not regard the totality of Professor Goldney’s evidence and reports as being inconsistent with that. He said a number of times that he was using nervous shock and PTSD interchangeably. Relying upon all of his material, particularly the chart reproduced above, the PTSD suffered by Mr Awad that can be attributable to Ms Awad’s death is 40 per cent.
Damages for nervous shock in respect of the death of Ms H. Awad
This assessment must take into account a number of matters for which Mr Awad is not entitled to be compensated. As Professor Goldney’s reports and chart reproduced above illustrate, much of Mr Awad’s symptomatology is caused by other stressors and conscious anger (to the driver, Dr Squirrell, cemetery situation and “The System”). Prolonged grief and mourning are not compensable under this heading.
To the extent the death of Mrs Awad contributed to his PTSD and adjustment disorder, that is not compensable. In Professor Goldney’s opinion, Mr Awad would have between 75-80 per cent of his present symptoms if Mrs Awad had not died (but Helen had). The result of that estimate is that Mr Awad is entitled to be compensated for 75-80 per cent of the one-sixth which is attributable to the PTSD and adjustment disorder.
Just as with physical injury, when a psychiatric injury is suffered, the defendant takes the plaintiff as he finds him (applying an “eggshell psyche” rule). Mr Awad is not entitled to be compensated for any pre-existing psychiatric or psychological conditions brought about by stresses in his life to the time of the accident on 20th October, 1996 (see, for example, Dr Michail’s evidence at TP1241-2).
As to the future, finalisation of the litigation will eventually reduce his psychiatric disability from the current approximate 25 per cent to 10-15 per cent. I have also had some regard to the contingency that Mrs Awad was at some risk from dying at any time due to cardiac arrhythmia which itself would produce severe grief and mourning.
The assessment also must be made in the manner required by s.35A(1)(b) of the Wrongs Act. In this regard, I have applied the principles referred to in Percario v Kordysz (1989) 54 SASR 259 per King CJ at 260 whereby the assignment of the numerical value involves a comparison between the non-economic effects of the particular injury and the non-economic consequences which might be thought to follow from the most serious possible injury to anyone.
Having regard to all matters, I assign a numerical value of 8. The prescribed amount for the purposes of the section is $1,520 and I therefore assess the damages for non-economic loss at $12,160. However, the matter does not end there. The actual damages to be awarded must take into account the operation of s.35A(1)(i). I gave that detailed consideration earlier. By virtue of that analysis, I concluded that any damages should be reduced by 70 per cent. I therefore reduce the assessment by 70 per cent to $3,648.00. Mr Award is awarded $3,648 for his injury arising from the death of Ms H. Awad.
Mr Awad’s claim for solatium in respect of the death of Ms H. Awad
There has not been any doubt that Mr Awad is entitled to an award for solatium pursuant to s.23A Wrongs Act. In my view, it would be just to allow the full amount of $3,000. As I have found Ms Awad was not wearing a “properly adjusted” seat belt, there must be a reduction on account of her contributory negligence (pursuant to s.27A(8) Wrongs Act). The amount for solatium is reduced to $900 and that amount is awarded.
Mr Awad’s claim for funeral and testamentary expenses in respect of the death of Ms H. Awad
This part of the claim is made pursuant to s.20 Wrongs Act. Mr Awad’s entitlement to those expenses has not been in dispute. As I understood the discussion during the trial (TP1505-1507), the first defendant has paid the funeral and testamentary expenses incurred in respect of Ms H. Awad. There is no additional entitlement claimed and therefore no further amount awarded.
Dependency claim by all plaintiffs in respect of Ms H. Awad’s death
These claims are made pursuant to s.19 Wrongs Act. Further, s.27A(9) of the Wrongs Act, as interpreted in Barnard v Towill and Others (supra) (at 35), means that an award to any plaintiff for dependency must also be reduced by 70 per cent.
In considering their claim, I have had particular regard to the principles referred to in Nguyen v Nguyen (1989-90) 169 CLR 245 and Public Trustee v Zoanetti (1945) 70 CLR 266. Essentially, damages are to be awarded for the lost receipt of a pecuniary benefit from Ms Awad. Such a loss may include loss of services. There must be a reasonable probability of pecuniary advantage (Public Trustee v Zoanetti (supra) at 280). Regard must also be had to gains as well as losses because, while it may be that the household loses the pecuniary benefits from a deceased teenager, the household also does not have to keep and provide services to that person.
The evidence relating to Helen’s contribution to the family finances is tenuous and imprecise. She was still at school and had a casual job at a local chicken shop known as the Golden Wishbone. She commenced there on 19th March, 1995. For the financial year to 30th June, 1996, her average weekly earnings (AWE) were $80.15. In the following year, to the date of her death, her AWE were $92.20. Nicole Awad, the fourth plaintiff and twin sister of Helen, gave evidence concerning the employment of both of them at the Golden Wishbone. They both attended there together on pay day and were paid in cash. What each did with their pay depended on the situation in the household. If there were bills to be paid then the majority of it went to the parents. If there were no bills to be paid then, at least as far as Nicole was concerned, she would try to save about half of it in the bank. Although it was suggested by Nicole (TP104) that Helen did the same as her so far as saving was concerned, no banking records were produced for either to support that position. Such records would be available.
Mr Awad said in evidence that some of the money earned by the twins was paid to Mrs Awad. There is no doubt that Mrs Awad controlled the finances of the household. There is also no doubt that she was a loving and devoted wife and mother; the household functioned because of her. Mr Awad had not worked for many years and both he and Mrs Awad were on pensions. Nina is also on a pension and does not work outside the home. John had a part-time job at McDonalds. Leaving to one side the Austudy allowances paid to Helen and Nicole, the household had an income of a little over $700 per week. Whilst I have no doubt that some of Helen’s earnings were contributed to the family’s finances, I simply cannot make any precise finding as to how much. There is simply not enough evidence to make a safe finding in that regard. Further, even if it was the case that half of it went to the household, common sense and experience of life tells me that it would cost much more than that to keep her.
Any contributions that she would have made in the future had she not died I regard as being even more speculative. For example, it was uncertain about how long she would remain at school; if and when she left school would she do more study or go to work; if she was able to find full-time work, how much would it pay; would she continue to live at home or was she more adventurous and independent than the others such that she would leave home; if she left home, would she make any contribution to the family finances. Those types of uncertainties prevent me from making any findings about the future.
In my view, the dependency claims of all plaintiffs should be dismissed on the basis that there is no reasonable probability of pecuniary advantage (including loss of services).
Nervous shock claims in respect of the death of Mrs Awad
Although this was considered earlier, I re-state my view about the operation of the Wrongs Act and, further, assuming that is a wrong interpretation, deal with the position at common law.
The claims for nervous shock in relation to Mrs Awad are made pursuant to s.35A(1)(c) of the Wrongs Act. As already discussed, potential claimants are limited to “a parent, spouse or child of a person killed.” All plaintiffs are precluded because Mrs Awad was not “a person killed, injured or endangered in the accident.” Even in the absence of those provisions, in my view there is no duty of care on the first defendant because it was not reasonably foreseeable that Mrs Awad would die, let alone that members of her family would themselves suffer shock upon her death. In any event, any psychiatric illness caused by the shock of Mrs Awad’s death is simply too remote a consequence to be attributable to any want of care by the first defendant.
In my view, the nervous shock claims in respect of the death of Mrs Awad should be dismissed.
Dependency claim in respect of the death of Mrs Awad
Again the claim is made pursuant to s.19 Wrongs Act. For any of the plaintiffs to succeed in such a claim it would have to be established that, if Mrs Awad’s death had not ensued, she would have been entitled, in her own right, to maintain an action and recover damages. It is not claimed that, in the period between receipt of the telephone call and her death, she suffered any psychiatric illness. She did not suffer any physical injury independent of her death. Assuming she was able to prove an injury, her ability to maintain a cause of action and recover damages would depend upon whether it was reasonable foreseeable that, upon being told things by Dr Squirrell that I have later found, she would suffer a lethal arrhythmia. In my view, it was reasonably foreseeable.
In my view, the plaintiffs have not established a legal entitlement to maintain a dependency claim in respect of Mrs Awad’s death.
Funeral and testamentary expenses and solatium in respect of the death of Mrs Awad
The ability of Mr Awad to maintain this claim depends upon the same factors as the dependency claim. For the same reasons these claims also fail.
That deals with all claims by all plaintiffs against the first defendant.
Claims against the second and third defendants
The claims by the plaintiffs against the second and third defendants, particularly paras.25 and 26 of the Statement of Claim, have been referred to earlier. It is not pleaded that these defendants have any liability concerning Ms H. Awad’s death. The claims against these defendants concentrate upon the death of Mrs Awad. Arising out of the death of Mrs Awad, the plaintiffs seek damages for nervous shock and loss of dependency.
As Mr Stratford, counsel for the second and third defendants, rightly points out, the duty of care alleged is that these defendants knew, or should have known, that if they caused injury to Mrs Awad, the plaintiffs may suffer injury upon identification of her or upon receiving news of injury or death. That allegation gives rise to the question as to what is the “event” for the purposes of a nervous shock claim.
The particulars of negligence alleged against these defendants are that:-
(a)Dr Squirrell informed Mrs Awad over the telephone of the death of Helen;
(b)Dr Squirrell failed to allow or require the police to inform Mrs Awad of Helen’s death;
(c)Dr Squirrell failed to act as a reasonably competent medical practitioner because he disclosed clinical information concerning Helen over the telephone;
(d)Dr Squirrell failed to follow the hospital procedure manual, particularly that Mrs Awad was not given the news of Helen’s death in a private room at the hospital.
As to point (d), the relevant part of the hospital procedure manual was not tendered and there is no evidence that Dr Squirrell disregarded it. I note that those particulars make no mention of identification of her body, although earlier paragraphs did. The allegations do not make clear what is the “injury”, whether it is a nervous shock type injury, or physical injury, or perhaps a combination of both. Importantly, concerning the nervous shock claim, the plaintiffs claim that the telephone calls from Dr Squirrell, particularly the first, caused the death of Mrs Awad and that that, in its turn, caused them to suffer nervous shock.
Clearly, the second and third defendants deny any duty of care to the plaintiffs and, even assuming a duty of care, whether it has been breached, whether a relevant injury was caused by that breach and whether it is too remote. The case for the plaintiffs was fought on the basis of the accuracy of the telephone calls had with Dr Squirrell. In that situation, I propose to deal with that aspect of the case first.
Conversations between Dr Squirrell and the Awad home on 20th October, 1996
All four plaintiffs gave evidence relating to these telephone conversations. Dr Squirrell and a number of other witnesses gave evidence as to the content of those conversations which I refer to as “the Noarlunga Hospital end”. As is demonstrated below, the content of those conversations cannot be completely reconciled. As is also plain, portions of some of the evidence of the plaintiffs as to the content of those conversations is hearsay if tendered to prove the content of a conversation in which that plaintiff did not participate. Generally speaking, when one plaintiff has told one or more of the other plaintiffs of the content of a conversation had over the telephone, what was told is only relevant to explain reactions and subsequent actions. Importantly, what any plaintiff has said was the content of any conversation over the telephone had by Mrs Awad, as recounted by Mrs Awad, is not proof of the content of the telephone conversation had by Mrs Awad.
Obviously, if any plaintiff overheard any conversation while it was taking place, the content as overheard is admissible in proof of the content of the conversation overheard. In that regard, the same can be said of witnesses who overheard conversations or portions of them from the Noarlunga Hospital end.
Awad home - Sunday, 20th October, 1996

Nurse Brooks was near to Dr Squirrell and Constable Maddern when there was a discussion about the means whereby the telephone number had been obtained. They discussed calling the family. She gave evidence that Dr Squirrell dialled a number, did not speak and looked at the telephone quite dumbfounded. He rang again and told someone to the effect that “....the girl had been involved in a car accident and that her condition couldn’t be discussed over the phone” (TP1949-50). She could not remember anything further of the telephone call, although there was a later call that came into the department that was taken by Dr Squirrell. The conversation, presumably with Mr M. Moubarak, was much the same as the conversation she overheard to the effect “that Helen had been brought into the hospital and that we needed someone from the family to come down to discuss her condition” (TP1951-2). There was nothing said in either telephone call that Helen was deceased or a need for someone to come to the hospital to make a positive identification (TP1950, 1952).
Dr Hamish Black
Dr Black was unable to be called as a witness but two documents went in without objection relative to what he could say about the matter (exhibit D(2 & 3)143). The first document was of an interview with him on 28th August, 1997 and the second was a transcript of his evidence in the Coroner’s Court. The effect of those documents is that Dr Black remembers Dr Squirrell being involved in two telephone conversations. As to the first, Dr Squirrell asked whether that was the residence of the Awad family and then asked could someone from the family attend the hospital because Helen Awad had been brought to the hospital by ambulance. The first call came to an end, so it appeared, because the receiver hung up on Dr Squirrell. Dr Squirrell called again and said much the same thing as in the first conversation. Dr Black had no recollection of anything being said about Helen Awad being deceased (exhibit D(2 & 3)143).
Nurse/Constable Twigg
Ms Twigg has been a police constable since 1999. Previously, she was a registered nurse and completed her training in November, 1996. In October, 1996, she was doing work experience at the Noarlunga Hospital. As part of her work that day, she had been present when Dr Squirrell certified life extinct from the body of Ms Awad. Later, she overheard Dr Squirrell and Constable Maddern discussing ascertaining the identity of the body and the telephone number that had been obtained. She was close to Dr Squirrell when he made two calls in fairly quick succession. The effect of the first conversation was to ask if that was the Awad family or the home of the family and could he speak with a parent. There was a pause, Dr Squirrell said, “Hello”, and then that he was Dr Squirrell at Noarlunga Hospital, that there had been a car accident, he believed their daughter had been involved and could they attend at the hospital. The telephone then went dead. Dr Squirrell redialled but the number gave the engaged signal. Dr Squirrell waited a few moments and dialled again, again saying it was Dr Squirrell at Noarlunga Hospital and asked if they could attend the hospital. Nothing was said about Helen being dead or the need to identify her body (TP 2354-5).
Senior Constable Duke
Mr Duke retired as a police officer in 1999. He had been in the police force for 33 years and in the Major Crash Investigation Section for 23 years. He was in Major Crash on 20th October, 1996.
Mr Duke did not attend the scene of the accident where Helen Awad was killed, but he attended subsequently at the Noarlunga Hospital. He arrived at approximately 2.20 p.m. His duties that day were to speak to the doctor in order to establish that it was in fact a fatal accident and to obtain certification of death, to go to the home of the relatives in order to inform them of the death and, if necessary, to convey them to the hospital to perform an identification, and to arrange for the Coroner’s office to collect the body. During his tasking he was told it was a young female and there was a possibility that she would be dead on arrival. He was not given her name, address or phone number.
When he arrived at the hospital, he went to the casualty section to speak to the doctor, who turned out to be Dr Squirrell, and who was on the telephone at the desk marked “1” on exhibit D(2 & 3)119. At the time, Mr Duke was not aware to whom the doctor was speaking. Mr Duke spoke briefly to the police officer, Constable Maddern. He was informed of the name of the deceased and of the fact that they had no address but just a telephone number.
The only thing from Dr Squirrell’s telephone call that he could remember was, “I can’t give clinical details over the phone. I need to get in contact with the relatives of this girl as soon as possible.” He did not hear Dr Squirrell say, “Helen is deceased/dead” or anything like, “I need someone to come down to Noarlunga Hospital to make a positive identification of the body” (TP2414).
Mr Duke specifically queried with Dr Squirrell whether he had disclosed to the family that Ms Awad was dead. Dr Squirrell said he had not and that to do so would be unprofessional. Mr Duke wanted to know that because once an address had been obtained it was his duty to inform the relatives (TP2415).
Preliminary discussion as to first/second telephone call from the Noarlunga Hospital end
In drawing together the evidence of these witnesses, I have not traversed their evidence in cross-examination. Although some minor concessions may have been made, the substance of this evidence remained intact. Importantly, no witness said that Dr Squirrell disclosed over the telephone that Ms Awad had died and/or that it was necessary for a member of the family to go to the hospital to provide positive identification. I also observe at this stage that the witnesses who gave evidence of the calls as made or overheard at the hospital end were detached, professional and impressive. Although some of them had a personal and professional association with other witnesses and the hospital itself, that did not, in my view, detract from their evidence. In the presentation of these witnesses and the content of their evidence, I did not detect any collusion or conscious or unconscious tailoring of evidence in favour of the hospital or Dr Squirrell. Further, although the task of establishing contact with Ms Awad’s family was a sombre and necessary one, their evidence was unaffected by the understandable high emotion that characterised some of the evidence of the plaintiffs.
Later events and conversations at the Noarlunga Hospital
The assessment of the competing accounts of these conversations, that is, the account of the plaintiffs on the one hand and Dr Squirrell and others at the Noarlunga Hospital on the other hand, cannot be confined to the calls themselves. It is trite to say that actions speak louder than words, or, at least, they may do so. It is therefore necessary to consider what was said and done by Mr Awad and John Awad, including their reactions, after they arrived at the hospital.
Again, a number of witnesses gave evidence about these topics. Both Mr Awad and John Awad said they knew Helen was dead and that they were attending to view and identify her body.
Nurse Ward
Nurse Ward was working at the triage desk when a group of four men came in, three younger and one older gentleman. She described their demeanour in this way:-
“A.Well, three of them looked worried, particularly the older gentleman. He was sort of standing there. He had a smile, sort of smile on his face but a sort of anxious look on his face. It was a very anxious smile looking at me. Two younger men came in behind. One looked anxious. One was actually eating. He had something in a white paper and he was laughing, and one of the others spoke to him and he sort of pulled it away from his mouth and then looked very worried.” (TP2322-3)
A younger man said, “We are here for Helen Awad. Where is she?” Nurse Ward asked them to wait. She spoke with Dr Squirrell and he said he would talk with the family. Nurse Ward then took them to a room variously referred to as the counselling or bereavement or relatives room. She had nothing further to do with them.
Dr Squirrell - conveying news of the death of Ms Awad
Dr Squirrell is uncertain which room he was in when he spoke with the Awads and Moubaraks. He thought it may have been the holding room adjacent to which was another room with the body of Ms Awad (see exhibit D(2 & 3)121). As to the content of the conversation, it is obvious that it was the same occasion to which the witnesses refer (TP1802). Dr Squirrell said he introduced himself, shook Mr Awad’s hand and said, “Thank you for coming. I’m the doctor who phoned you up.” Mr Awad replied by asking, “How is she? Can we see her? What’s wrong?” Dr Squirrell and Nurse Twigg asked them to be seated. Dr Squirrell explained “....that there was a young lady who was involved in a vehicular accident who was brought to our hospital and, unfortunately, she was no longer living” (TP1802-3).
Dr Squirrell described that the news was met with disbelief and non-belief. Mr Awad dropped to the floor in a very distraught and hysterical manner. “John started shouting, screaming, fisting, kicking. He left the room.” John caused a commotion in the nearby areas. Mr Awad was comforted and Senior Constable Duke, who was also present, requested, “We would like you to see your daughter” (TP1804). Mr Awad said he wanted to see his daughter. Mr Awad asked how it was known that it was Helen, and Senior Constable Duke answered that she had been involved in a vehicular accident and that the friends she had been with were able to clarify that it was Helen Awad (TP1804). When Mr Awad and John were composed, they were taken to the holding room where Ms Awad’s body was being kept. Both reacted in much the same way when they viewed her body.
Nurse Twigg
Nurse Twigg’s account is that she first encountered the Awads and Moubaraks when they were walking down the corridor towards the holding room as shown in exhibit D(2 & 3)121. Dr Squirrell was with them (but this was before, on her account, any information had been conveyed to them). Several of the group were asking, “Where is she? Can we see her?” (TP2358). When they were walking down the corridor they were not crying, they were concerned, but apparently not knowing what had happened (TP2359). Nurse Twigg said that once everyone was in the room marked with a 5 (adjacent room), Dr Squirrell told the family of the accident and that Helen was dead. Mr Awad and John became “very upset, distressed, distraught” (TP2359). On her account, John and Mr Awad asked to see her body and were taken to the holding room next door. Mr Awad could not understand that she was dead when there were no marks on her body. It was explained to him that she died of internal injuries.
After that, Senior Constable Duke explained what had happened. It emerged from the discussion that followed that the “....family were led to believe that Helen was at a friend’s place and didn’t know that she had gone with other friends down south to do abseiling and that she was on her way back” (TP2362). John wanted to know the name of the driver and was making threats about him.
Mr/Senior Constable Duke
On Mr Duke’s account, he was with Dr Squirrell in an area he described as the treatment area when the Awads and Moubaraks came in. Initially, the group asked, “Where is she, how is she, can we see her?” or words to that effect (TP2417). Mr Duke said that he had previously discussed with Dr Squirrell who would give them the news and it was decided that Dr Squirrell would do that and Mr Duke would then take over, including obtaining a formal identification for the purposes of the Coroner’s Act. When they came into the hospital “....they appeared to be a little distressed, a little excited, as if they didn’t know the situation....” (TP2418). Dr Squirrell said “I’m sorry to say that she has died as a result of the accident and was, I believe, dead on arrival when she arrived at the hospital” (TP2418).
In relation to the response of the group upon being given that information, Mr Duke said:-
“A.Yes, the response was it was as if they’d heard for the first time. I guess over the many years I’ve been in the squad I had on many occasions been present or told relatives of someone having died in an accident, and the reaction was pretty much the same, it was like as if they knew for the first time.” (TP2418)
They then became very distressed and Mr Awad wanted to see her (TP2419). They were taken to the room where her body was being kept. He said John became verbally aggressive and was talking about killing the driver (TP2421).
Nurse Brooks
Nurse Brooks was not present when Dr Squirrell spoke with the Awads and Moubaraks, but she saw Dr Squirrell and Nurse Twigg leaving the relatives/bereavement room with two visitors heading towards the holding room (which was some distance away) where the body was being kept. She said the father was a little upset and John was very upset because he was hitting the walls and lockers on his way through (TP1954).
Constable Maddern
Constable Maddern was in the room adjacent to which the body was kept. Constable Maddern was introduced to Mr Awad and John. He believes that, in accord with his usual practice, he explained he needed an identification. Mr Awad made the identification (TP2147-8).
Further discussion as to the content of the telephone calls
As I observed earlier, the various versions cannot be reconciled, no matter whether from the plaintiffs or the defendants. To some degree the passage of time would account for a loss or variation in memory, but the substance or core would be intact. There is no doubt that, from the perspective of the plaintiffs, the events of that afternoon were devastating and occasioned extreme distress, grief and loss. The double loss of daughter and mother was very emotional, some of which emotion carried through, quite understandably, to their evidence. Those matters could obviously cause an imperfect memory. The plaintiffs also have an undoubted interest in the successful outcome of these proceedings, not only from a financial point of view but from a great desire to be believed and vindicated. Such matters may have coloured their evidence. Dr Squirrell and the Noarlunga Hospital have a professional and business interest in the outcome of these proceedings. I am sure that Dr Squirrell also has a personal interest in the result. As I have also already observed, the witnesses called on behalf of the second and third defendants gave evidence in a very professional and detached manner.
It should be remembered that on the case presented on behalf of the plaintiffs, Mrs Awad spoke first to the caller on any matter of significance even though the telephone was answered by John.
Bearing in mind the onus of proof, I am not satisfied, on the balance of probabilities, that:-
1.Mrs Awad, Mr Awad or John were told or informed that Helen was dead (or any words to that effect);
2.Mrs Awad, Mr Awad or John were requested to attend at the Noarlunga Hospital to identify her body (or any words to that effect).
In not being satisfied as I have indicated, I do not go so far as to say that the plaintiffs, or any of them, were being deliberately untruthful. I am simply not satisfied about the accuracy of Mr Awad’s and John’s accounts of those conversations, having regard to the emotions and distress generated by all of the events of the day and since; and also having regard to the passage of time and their interest in the outcome of the proceedings. Further, on the other side, Dr Squirrell and those called on his behalf were impressive, detached and professional. My overall assessment is that the evidence of Dr Squirrell and those called on his behalf is to be preferred to that of the plaintiffs, particularly Mr Awad and John Awad.
Although I have not been satisfied as to the factual basis for liability as pleaded and presented by the plaintiffs, I consider that I should express some findings on the evidence. This I am able to do. Not only do I prefer the evidence of Dr Squirrell and those called on his behalf, I find that, generally speaking, the conversations or words spoken by him over the telephone were as he said in evidence. In making that finding, I am conscious of the fact that his account of those conversations is not entirely consistent with the evidence of others at the hospital. Despite those differences, I am able to make the general finding that I have. Specifically, I find that no-one at the Awad house was told over the telephone that Helen was dead (or words to that effect) or that someone should attend at the Noarlunga Hospital to identify her body (or words to that effect). No clinical information was provided to them over the telephone.
In my view, Mrs Awad, who was undoubtedly a loving and devoted mother, upon being told that her daughter had been involved in a car accident and was in hospital, and the caller refusing to say anything about her condition, jumped to the correct (but unconfirmed) conclusion that her daughter had been killed. Her repeated exclamations to that effect understandably coloured the response and memory of those about her from that point forward. Notwithstanding the belief that Helen had possibly been killed, the plaintiffs, particularly Mr Awad and John, did not completely believe and accept that situation. Their earlier non-acceptance of that situation accounts for their behaviour once at the hospital. Initially, when at the hospital, Mr Awad and John represented as very concerned but not convinced that Helen was dead or that it was not a mistake. Their reactions, once told of her death by Dr Squirrell at the hospital, had the hallmarks of them learning that fact for the first time or having their worst fears confirmed.
In making these findings, I have not lost sight of the evidence of Mr Moubarak. As mentioned earlier, Mr Awad’s account of this conversation is one of informing Mr Moubarak of the fact that Helen had been in an accident and was in the Noarlunga Hospital, and could he meet Mr Moubarak there. Mr Moubarak’s account is also referred to in detail earlier. Importantly, he says that Dr Squirrell confirmed that Helen was dead. Having heard all the evidence, particularly the evidence of Dr Squirrell, I do not accept that he confirmed to Mr Moubarak that Helen was dead. Dr Squirrell was a concerned professional whose practice was not to inform family or friends about the clinical situation. Although that was not a universal practice of his for reasons he gave, he would not do that in this situation. I find that he did not do so here. In any event, even if that was said because of the implorings of Mr Moubarak, there is no evidence from Mr Moubarak that that was conveyed to Mr Awad.
Conveying the news of Ms Awad’s death - findings
As I detailed earlier, there is a difference on all the evidence as to where the Awads and Moubaraks were taken initially and by whom. However, I do not consider resolution of those differences is necessary. I have already found that Mr Awad and John were told by Dr Squirrell of Helen’s death, for the first time, at the hospital. Their worst fears were confirmed. I find that the manner of conveying that devastating news was caring, sympathetic, compassionate and professional. There was nothing in Dr Squirrell’s manner or words that excites criticism. He had a painful but necessary duty to perform. He did so in accord with his own standards and was very supportive of Mr Awad and John, as were other members of the staff and police, in their grief.
Viewing of the body of Ms Awad by Mr Awad and John Awad
To this point, I have not dealt with all the evidence concerning the circumstances whereby Mr Awad and John came to view Helen’s body. After Dr Squirrell told them that Helen had died in the accident (as I have found), Mr Awad said that Dr Squirrell asked him to look at the body (TP208-9). Mr Awad said she was in a small room and there was an investigation officer there by the name of “Barry” (Senior Constable Barry Duke).

John Awad said that when he attended at the hospital he yelled a number of times “Where is she?” and they were taken to a room where his sister’s body was, being one of two connecting rooms (TP811-2). John Awad’s evidence, of course, was to the effect that they were there to identify her body.
Mr M. Moubarak gave evidence that Dr Squirrell told them about the way she would appear when they looked at her, but did not say precisely how the viewing came about (TP1121).
Dr Squirrell said that, after he told them that Helen was dead, the police officer who was present said to Mr Awad, “We would like you to see your daughter”. Mr Awad, according to Dr Squirrell, wanted to see his daughter (TP1804) and checked that he was prepared for it just before they went into the room (TP1806). When Mr Awad saw her body, he became emotionally distraught again (TP1807).
I have already touched on Nurse Twigg’s account of these events. She said that Mr Awad and John asked to see Helen’s body (TP2361). Mr Duke said that Mr Awad wanted to see her body (TP2419) and that he (Duke) needed some details for the purpose of an identification.
From all of this evidence it is difficult to spell out whether Mr Awad and John wanted to see Helen’s body in any event or they were being required to do so or perhaps a combination of the two. There can, however, be no doubt on the evidence that both found that process very distressing in itself.
Conclusion
By virtue of my findings in this case, the plaintiffs fail in as much as the claim was based on the nervous shock claim following the death of Mrs Awad. The particulars of negligence are not made out on the facts.
Did the second and third defendants owe the plaintiffs a duty of care in respect of Mrs Awad
As observed earlier, it was convenient to deal with the factual issues on the basis that a duty of care existed between these defendants and the plaintiffs concerning Mrs Awad. I now give that question separate consideration.
A little needs to be reiterated about the factual setting. Ms Awad was not a patient at the hospital. Her parents were unaware that she was dead or that her body was at the hospital. On my findings, the purpose of the telephone call was to have a parent or the parents attend at the hospital because their daughter had been involved in a car accident. At some stage Mr and Mrs Awad needed to be told of the death of their daughter but that did not happen over the telephone. They were going to be told once they attended at the hospital, either by the police or Dr Squirrell, by both of them together. As events transpired, it was Dr Squirrell. There was no relationship between these defendants and Mr and Mrs Awad.
What duty lies upon the conveyor of bad or devastating news? The authorities have touched on this a number of times.
In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, Windeyer J (at 407) had this to say (obiter):-
“...If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news. That, however, seems to me remote from this case, and not to avail the appellant. No doubt the plaintiff’s learning that the man who had been burnt had died added to his distress of mind : but it was not the sole or prime cause of it.”
In Jaensch v Coffey (supra), Brennan J (at 567) said this:-
“....A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors.”
In Pham v Lawson (supra), Lander J (at 148) (with whom Cox and Bollen JJ concurred)) said, after reviewing a number of English and Australian authorities:-
“In this case, if I am wrong and the only factor which induced the nervous shock and psychiatric illness was the communication of the information, the respondent cannot be said to be a person who was in sight or hearing of the event or its immediate aftermath.
There is no doubt that it is foreseeable that if a tortfeasor injures or kills a child that child’s mother might suffer injury in receiving the information of the injury or death. There is no reason in logic to exclude those persons from claims for nervous shock. The reason to deny them a right to claim lies in policy in restricting the liability of a tortfeasor to the direct consequences of his or her tort and to those who were in some way close in relationship to the person injured or killed, or were at the aftermath, which includes the hospital.
In South Australia in claims for personal injuries arising out of motor vehicle accidents, the only persons who could recover, if recovery was allowed for the receipt of information only, are those identified in s 35A(1)(c)(ii). They are the only persons who were not at the scene of the accident who can recover. Therefore they are the only people to whom this argument is addressed. That being so the class of persons who might recover is quite limited. There is therefore no reason in policy to deny a parent, spouse or child of a person killed or injured or endangered in an accident a right to recover for nervous shock caused only by the receipt of information.
It must be recognised of course that it might be necessary to also allow at least that class to recover in the same circumstances in claims arising other than in motor vehicle accidents.
I would therefore agree with the reasons of Kirby P in Coates v Government Insurance Office (NSW).
Therefore if it was the fact that the only stressor which was operating on the respondent was the communication of information that would still not preclude the respondent from recovery.”
Most recently in Tame and Annetts (supra), Gummow and Kirby JJ said this (at para.228):-
“....On the other hand, the loved ones of a person who has been killed, injured or put in peril ordinarily have an interest in being told promptly of that circumstance and the law encourages the free and prompt supply of the relevant information to those persons. It is for this reason that, in the absence of a malign intention, no action lies against the bearer of bad news for psychiatric harm caused by the manner in which the news is conveyed or, if the news be true, for psychiatric harm caused by the fact of its conveyance[251]. The discharge of the responsibility to impart bad news fully and frankly would be inhibited by the imposition in those circumstances of a duty of care to avoid causing distress to the recipient of the news. There can be no legal duty to break bad news gently. This is so even if degrees of tact and diplomacy were capable of objective identification and assessment, which manifestly they are not. Neither carelessness nor insensitivity in presentation will found an action in negligence against the messenger.”
Their Honours did, however, (at para.230) make the point that it may be necessary to reconsider the breadth of Windeyer J’s comments in Mount Isa Mines Limited v Pusey (supra) referred to earlier because liability may attach to the primary causer of an event but not to the communication of its consequences. And, in the same case, Callinan J said (at para.366):-
“....There must have occurred a shocking event. The claimant must have actually witnessed it, or observed its immediate aftermath or have had the fact of it communicated to him or her, as soon as reasonably practicable, and before he or she has or should reasonably have reached a settled state of mind about it. The communicator will not be liable unless he or she had the intention to cause psychiatric injury, and was not otherwise legally liable for the shocking event. A person making the communication in the performance of a legal or moral duty will not be liable for making the communication.”
For my purposes, it is not necessary to reconcile all of those authorities. Where, as I have found it to be, the conveyor of the news has not been responsible for the primary or originating event, then, absent malice or callousness, as a matter of policy the conveyor of bad news owes no duty of care to the person to whom it is conveyed, less so to those to whom that information is then conveyed. In such a situation the method of communication is not important. (See also Professor Goldney, exhibit D(2&3)135 question 3).
If I am wrong as to the duty of care, the injury, which was death, was not a reasonably foreseeable consequence of the breach. Applying the principles of remoteness referred to when considering the case against the first defendant, the death of Mrs Awad was simply too remote a consequence.
Dependency claim - solatium - funeral and testamentary claim based upon the death of Mrs Awad
These claims are brought pursuant to the Wrongs Act and depend upon a negligent act. In my view, there has been no negligence by the second and third defendants and these claims must therefore fail.
Award
In the result, Mr Awad has been partially successful against the first defendant only. Mr Awad will receive an award relating to Ms Helen Awad’s death as follows:-
Psychiatric injury $3,648.00
Solatium 900.00
$4,548.00
Mr Awad is awarded $4,548.00
The remaining claims by all plaintiffs against all defendants arising from the death of Ms Helen Awad are dismissed.
All claims made by all plaintiffs against the second and third defendants arising from the death of Mrs Awad are dismissed.

[2002] SADC 157

23 December 2002