Smithwick v State of Queensland

[2001] QSC 175

SUPREME COURT OF QUEENSLAND

CITATION:                  Smithwick v State of Queensland [2001] QSC 175

PARTIES:  BARBARA JANE SMITHWICK

(Applicant/Plaintiff)

v

STATE OF QUEENSLAND

(Respondent/Defendant)

FILE NO:  s181/01

DIVISION:                   Trial Division

DELIVERED ON:       28 June 2001

DELIVERED AT:        Rockhampton

HEARING DATES:     21 June 2001

JUDGE:  Dutney J

ORDERS:  1.  The applicant have leave to amend the   statement of claim by including   paragraphs 12 – 18 (inclusive) and           paragraph 22A (save for the reference                 to loss of consortium) in terms of                exhibit “A” to the affidavit of Joanne   Louise Pennell filed 20 April 2001;

2.Leave to amend the statement of claim granted on 1 June 2001 be varied by deleting the reference to aggravated damages;

3.    Costs reserved. 

CATCHWORDS:          PRACTICE AND PROCEDURE – INTERLOCUTORY   JUDGMENT – whether a second application can be                   brought after a change in the law – whether a second                    application is an abuse of process

PRACTICE – STATEMENT OF CLAIM –                    AMENDMENT – whether arising out of the same facts

DAMAGES – NERVOUS SHOCK – whether necessary   to have an actual perception of the event or its aftermath         – whether a claim for pure economic loss can be included

Supreme Court of Queensland Act 1991

Hancock v Wallace [2001] QCA 227, discussed and followed

Da Christie Pty Ltd v Baker [1996] 2 VR 582, considered

Dick v University of Queensland [2000] 2 Qd R 476, considered

Nominal Defendant v Manning (2000) 50 NSWLR 139, considered

Spence v Percy [1992] 2 Qd R 299, cited

Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, considered

Allonnor Pty Ltd v Doran (Appeal 210 of 1998 – 5 November 1998 – unreported), considered

Draney v Barry [1999] QCA 491, cited

Perre v Apand Pty Ltd (1999) 198 CLR 180, discussed

Foodlands Assoc Ltd v Mosscrop [1985] WAR 215, distinguished

COUNSEL:Mr G. O’Driscoll for the Applicant/Plaintiff

Mr K. Holyoak for the Respondent/Defendant

SOLICITORS:             Charlton Shearman for the Applicant/Plaintiff

Hunt & Hunt for the Respondent/Defendant

1. DUTNEY J:    On 1 June 2001 I refused leave to the plaintiff to include a claim for damages for nervous shock in the existing action.  My principal reason for refusing leave is summarised in paragraph [22] of the reasons for judgment given on that day.  In essence it was refused because I concluded that the ultimate cause of the plaintiff’s claimed psychiatric injury, namely the belief that the deceased died because of the negligence of the respondent, was outside the plaintiff’s actual perception of the incident or it’s aftermath.  That conclusion recognised what I understood to be the law at that time.

1. On 8 June 2001 the Court of Appeal delivered judgement in Hancock v Wallace [2001] QCA 227. In that case at paragraph [84] Davies JA (with whom McMurdo P agreed) said:

   “In my opinion, unless there are strong policy grounds for stultifying the development of the common law in this area, the requirement of direct perception of the relevant incident or its immediate aftermath should not be accepted, at least where there are close ties of affection between the plaintiff and the person injured or killed, not withstanding its acceptance by the House of Lords and by Brennan J and, apparently by Dawson J.  The difficulty expressed by Deane J in accepting such a requirement, the reasoning of Kirby R in Coates, the rhetorical questions posed by Lee J in Reeve and the evidence in this case show that there is no logical or medical basis, in determining liability, for any distinction to be made between psychiatric injury caused by being told of an horrific accident to a loved one and one caused by seeing or hearing that accident or being present at its aftermath.”

1. In the same case, after agreeing with the reasons of Davies JA, McMurdo P at paragraph [19] observed:

   “I accept there are policy considerations which require the containing of damages for psychiatric injury but it is neither logical, just, nor in the interests of public policy to require direct perception of the tort or its immediate aftermath to establish an entitlement to damages.  Sufficient control over actions brought by secondary victims of torts for psychiatric injury can be provided by requiring the duty of care is only owed to those who have close ties of love and affection to the victim of the tort.  Additionally, damages will always be limited to those relatively uncommon cases where there is a factual finding that the psychiatric illness, rather than a normal grief reaction, has been legitimately caused by the commission of the tort.”

2. On any view this represents a significant; if incremental, development in the law relating to claims for nervous shock.

1. Before me, on 21 June 2001 the applicant again applied for leave to amend to include the claim for nervous shock.  The application is based on the same material as the earlier application.  The only change pointed to is the Court of Appeal decision.

1. The present application is opposed on a number of grounds.

1. The application disposed of by the judgement of 1 June 2001 was interlocutory.  Neither party contends otherwise.  Mr Holyoak for the respondent submits, however, that although it may be technically possible to make a second application in the same terms (and even on the same material) as an earlier unsuccessful interlocutory application (there being no res judicata) such an application ordinarily will be an abuse of process even if new material is sought to be introduced if the new material could have been put forward at the first application.  A fortiori it is submitted, where, as here, no new material is introduced and all that is sought to be done is to reagitate a point of law, the second application is an abuse of process.

1. The above submission is based primarily upon three appellate decisions in Victoria, DA Christie Pty Ltd v Baker [1996] 2 VR 582, Queensland, Dick v University of Queensland [2000] 2 Qd R 476 and New South Wales, Nominal Defendant v Manning (2000) 50 NSWLR 139. I cannot accept that those cases establish the broad proposition upon which the respondent relies or otherwise preclude reconsideration of this matter.

1. Dick v University of Queensland has in reality nothing to say on this issue.  At p481 in paragraph [8] Pincus JA merely observes:

“The respondent could, if the appeal were simply allowed without an order for a re-hearing, begin again… But there exists a possibility that a second application would be dismissed as an abuse of process; it does not appear to be a sound or proper course to subject the respondent to that risk.”

1. Thomas JA at p489, paragraph [40] went no further.

1. The best case for the respondent on this issue is DA Christie Pty Ltd v Baker where Hayne JA at pp 602-606 disposed of the second application on the basis that it was an abuse of process to bring the second application on additional evidence which could have been available on the first application in circumstances where the first application was not attended by fraud on the part of the respondent. Brooking JA disposed of the second application on the basis of an issue estoppel, a basis rejected by Hayne JA at p 602. Charles JA who dissented in the result rejected both the issue estoppel and abuse of process grounds. On the latter at 611 Charles JA said:

“For these reasons I conclude that it is not possible for the Court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence.  Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is already apparent.”

1. This passage was adopted by Foster A-JA in Nominal Defendant v Manning at p167, paragraph [122].

1. Heydon JA at p156, paragraph [72] also rejected the approach of Hayne JA saying:

   “The Nominal Defendant’s proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion.”

1. Mason P dissented in Nominal Defendant v Manning preferring to adopt the approach of Hayne JA in DA Christie Pty Ltd.   In doing so, however, he did not in anyway preclude the bringing of a second application in the circumstances that exist here.  At p134-144, paragraph [17] he said:

   “One can also conceive of situations where the revisiting of a legal proposition adopted or assumed in an earlier interlocutory hearing would not constitute an abuse of process.  For example, new and unexpected appellate authority may have arrived on the scene.”

1. While readily acknowledging that successful second attempts at interlocutory applications may be rare this seems to me to be such a case.  I can see no logical reason why the applicant should be put to the cost and delay of an appeal if a decision of the Court of Appeal has, in truth, resulted in a change in the understanding of the common law which renders the first decision obsolete.  I therefore consider that there has been sufficient material change in circumstances to permit the present application to be heard.

1. On the merits of the application I allowed Mr Holyoak to reargue any point he wished whether arising out of the Court of Appeal decision or otherwise.  As this is a fresh application he is entitled to do so.  In the result I am not persuaded that I should change any other conclusion to which I came in the earlier hearing.

1. The application is only to amend the pleading.  It was opposed primarily on grounds of futility.  I consider that subject to whether the claim arises from facts already pleaded so as to enliven rule 376 I need only be satisfied that the case is arguable.

1. My relevant conclusions from the first application were as follows:

   (a)The claimed psychiatric illness arises from 4 discrete events ([10]).

   (b)The applicant arguably has a psychiatric illness ([12]).

   (c)The psychiatric illness does not necessarily have to emanate from a single shock ([18]).

   (d)The illness and the shock do not necessarily have to correspond in time ([17]; Spence v Percy [1992] 2 Qd R 299 at 320-321).

   (e)The illness has to arise from the direct perception of the event or its aftermath ([22]).

   (f)The illness in this case did not arise from direct perception of the event or its aftermath. ([22]).

2. But for the two last findings leave would have been granted.  It is the last two finding to which Hancock v Wallace [2001] QCA 227 is now contrary authority.

1. In the circumstances it follows that I can not in light of Hancock v Wallace be satisfied to the requisite degree that the proposed claim is necessarily futile.  I should add that in paragraph 51 of his judgement in Hancock Davies JA expressly left open the question whether a shock was a necessary element of the claim.  In light of that it seems to me to be even less appropriate that the issue in this case be foreclosed on an interlocutory application before trial.

2. On the basis that I concluded that the law had changed in favour of the applicant, My Holyoak submitted that the claim does not arise substantially out of the facts already pleaded.

1. In Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, the facts out of which a cause of action arose were those giving rise to the duty of care, those which constituted a breach of that duty and the fact of injury. Whether facts are substantially the same is a question of degree. Here the new facts which the applicant seeks leave to plead are the nature of the injury, nervous shock,and the consequences of it. The facts giving rise to the duty of care and which constitute the breach of that duty are the same. Consistently with the approach of McPherson JA in Allonnor Pty Ltd v Doran (Appeal 210 of 1998 – 5 November 1998 – unreported) at paragraph [8] the amendments sought here “merely add a ground of recovery…. arising out of…. an occurrence already in suit”.  Even though the injury is different I consider the claim for nervous shock arises out of substantially the same facts as the loss of dependency claim.

1. In any event, the power to amend existing proceedings to include a cause of action which would otherwise be statute barred is conferred by s81 of the Supreme Court of Queensland Act 1991. Even if rule 376 (4) (b) is inapplicable s81 confers a general discretion. Having regard to the fact that the only new feature is the nature of the illness claimed by the plaintiff and the opportunity is still available to have her examined in relation to it, I can see no material prejudice to the respondent by reason of delay in the new cause of action being added: see Draney v Barry [1999] QCA 491 at paragraph [23]. I would thus grant leave to amend under this section if it was thought the facts relied on were not sufficiently close to be considered substantially the same.

1. In giving judgement in favour of the applicant in relation to some of the amendments in the first application I overlooked two points; aggravated damages and the claim proposed to be raised by paragraph 27 of the further amended pleading.

1. In relation to aggravated damages, Mr O’Driscoll for the applicant had in fact conceded on the earlier application that they were not available.

1. Both parties agree that I can consider these matters under the slip rule. 

1. Since the concession in relation to aggravated damages is renewed I exclude from the leave to amend already given leave to include a claim for aggravated damages.

1. The claim in paragraph 27 requires some close security.

1. The applicant says that as a result of the financial pressure consequent upon the loss of her husband she was forced to sell land she owned at an undervalue and sustained a loss of $11,500.  This seems to me to be a claim for pure economic loss separate from the loss covered by the dependency claim.

1. The loss claimed is a personal loss by the applicant.  It is not consequential upon the applicant’s alleged psychiatric illness.

1. The law in relation to pure economic loss was recently considered by the High Court in Perre v Apand Pty Ltd (1999) 198 CLR 180. Relevant to such a claim is that the loss is foreseeable, the claimant is one of a defined and limited class and that the claimant be in a position of special vulnerability. The plaintiff here at least arguably meets those criteria. The respondent knew of the applicant and that she was the wife of the deceased. It seems to me that even in this day and age it is foreseeable that by injuring the husband, the wife might suffer economic loss. The class to which the applicant belongs is small and closely defined. It comprises the dependants of the deceased. As regards the hospital the applicant is arguably in a position of special vulnerability in that, as a lay person, she has no control over the treatment given by the hospital. In stating the position in this way I am not intending to underestimate the difficulties faced by the applicant in establishing this claim. I have found no relevant precedent for it. I was referred to Foodlands Assoc Ltd v Mosscrop [1985] WAR 215 but that seems to me to be a factually different case to the one pleaded in paragraph 27 of the proposed further amended statement of claim. It is also not insignificant that it preceded Perre v Apand Pty Ltd.  I am not prepared to conclude that the claim in paragraph 27 is unarguable although the description of it in the prayer of relief in paragraph 28 (iv) where it is referred to as an estate claim is wrong.  I would give leave to amend paragraph 28 (iv) (which is not subject to either the original or the subsequent application for leave to amend in this respect) to delete the reference to the estate.

1. The orders I make are as follows:

   (a)         The applicant have leave to amend the statement of claim by            including paragraphs 12 – 18 (inclusive) and paragraph 22A   (save for he reference to loss of consortium) in terms of   exhibit “A” to the affidavit of Joanne Louise Pennell filed 20   April 2001;

   (b)That the leave to amend the statement of claim granted on 1           June 2001 be varied by deleting the reference to aggravated         damages;

   (c)That costs be reserved.