Spence v Percy

This matter concerns an application for special leave to appeal to the High Court of Australia. The applicant, Dirk Arthur Klynsmith, sought to have the Court define the legal parameters for claims of damages for nervous shock. The respondent was represented by counsel.

The central legal issue before the High Court was the extent to which the law recognizes a claim for damages for nervous shock, particularly in light of the High Court's previous decision in *Jaensch v Coffey*. The applicant argued that the trial judge, Derrington J, had correctly identified the plaintiff's condition as foreseeable and within the requisite proximity, despite drawing an arbitrary line based on policy considerations. The applicant contended that the trial judge's reasoning, which focused on the directness of causation rather than the passage of time, was intellectually sound.

The applicant's submission highlighted Derrington J's analysis, which sought to exclude illness caused by the long-term wear and tear of nursing a victim or distress arising from the victim's condition, while still accommodating the requirement of shock. Dawson J questioned whether the trial judge had restricted damages to psychiatric illness incurred after the victim's death, which the applicant conceded but argued was not the core problem. The applicant maintained that the nervous shock was caused at the time of the daughter's death, and any difficulty lay solely in the temporal aspect, not in causal directness. The Full Court had subsequently upheld an appeal against Derrington J's decision, with two judges reversing his findings.