Statutes—Construction—Action for nervous shock—Conferred by statute in specified circumstances upon members of family of "person killed, injured or put in peril"—Cause of action not dependent upon liability in defendant to "person killed, injured or put in peril"—"The liability"—Effect of statutory cause of action upon existing law—Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.), s. 4 (1)*.

Decisions

December 1.
The following written judgments were delivered: -
BARWICK C.J. I have had the advantage of reading the reasons for judgment to be delivered by my brother Taylor. I agree both with his conclusion and the reasons which he expresses for reaching it. In my opinion, s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.) does give independent causes of action to each of the persons described in pars. (a) and (b) of the sub-section, and in the case of par. (b) in the circumstance there mentioned, against a person who, by an act, neglect or default causes the death, or injury of another, or who by an act, neglect or default, puts another in peril. (at p156)

2. In my opinion, the appeal should be dismissed. (at p156)

KITTO J. This is an appeal against a judgment for the plaintiff, given by the Full Court of the Supreme Court of New South Wales, upon a demurrer to a plea in an action for damages for injury arising from nervous and mental shock caused by a negligent act of the defendant by which the plaintiff's husband was injured. (at p156)

2. The plea alleges that the husband sued the defendant for damages for the injury sustained by him and that judgment was given against him. It concludes with some irrelevant words which ought to have been struck out, but the parties agree that they may be ignored. (at p156)

3. The plea is not a plea of estoppel by judgment, for it does not allege a judgment in proceedings between the parties to this action. The effect of what it alleges is that the defendant is not liable to the husband for the injury done to him. The plea is evidently intended to reflect two contentions. The first is that the declaration must be taken to allege a cause of action under s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.), which is in these terms: "The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by - (a) a parent or the husband or wife of the person so killed, injured or put in peril; or (b) any other member of the family of the person so killed, injured or put…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Scala v Mammolitti

Details

AGLC: Scala v Mammolitti [1965] HCA 63
Case: [1965] HCA 63
Decision Date: 1 December 1965

CaseChat Overview and Summary

The High Court of Australia considered an appeal in *Scala v Mammolitti*. The dispute concerned the interpretation of a clause within a contract for the sale of land, specifically whether a condition precedent had been satisfied. The purchasers, the respondents, sought to terminate the contract, alleging the vendor, the appellant, had failed to fulfil a condition requiring the obtaining of a permit for a proposed subdivision.

The central legal issue before the Court was whether the condition precedent, which stipulated that the vendor must obtain a permit for a subdivision of the land, had been fulfilled within the timeframe stipulated by the contract. This involved determining the precise meaning of "obtain a permit" and whether the actions taken by the vendor constituted a sufficient attempt to fulfil this obligation, or if it required the actual issuance of the permit.

The Court analysed the contractual language and the surrounding circumstances to ascertain the parties' intentions. It was held that the condition required the vendor to take all reasonable steps to obtain the permit, but not necessarily to secure its actual issuance. The Court found that the vendor had taken all reasonable steps available to them to obtain the permit, and therefore the condition had been satisfied. The appeal was allowed.

Orders