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

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.

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,…

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.

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Details

Case: [2001] QSC 175
Decision Date: 1/06/2001

CaseChat Overview and Summary

In Smithwick v State of Queensland, the applicant sought to amend her statement of claim to include a claim for damages for nervous shock after a change in the law by the Court of Appeal in Hancock v Wallace. The respondent opposed the application, arguing that the second application was an abuse of process. Dutney J allowed the application, finding that the change in the law was sufficient to permit the present application to be heard. The judge held that the proposed claim for nervous shock arose out of substantially the same facts as the loss of dependency claim and that the opportunity was still available to have the applicant examined in relation to the nature of the illness claimed. The judge also allowed the amendment to include a claim for pure economic loss, finding that the applicant met the criteria for such a claim. The final orders granted leave to amend the statement of claim, deleted the reference to aggravated damages, and reserved costs.
The case highlights the importance of keeping up to date with changes in the law and the potential for interlocutory applications to be reconsidered in light of new authority. It also underscores the need for flexibility in the court's approach to amendments to pleadings, particularly where the proposed amendments arise out of substantially the same facts as the existing cause of action. However, the case also serves as a reminder that not all second applications will be successful and that the court may still consider issues of prejudice and abuse of process in determining whether to grant leave to amend.

Orders