Whayman v The Motor Accidents Insurance Board

[2003] TASSC 149

[2003] TASSC 149

CITATION:Whayman v The Motor Accidents Insurance Board  [2003] TASSC 149

PARTIES:  WHAYMAN, Conley Wescar

v
MOTOR ACCIDENTS INSURANCE BOARD, The

WHAYMAN, Carol Jill
v
MOTOR ACCIDENTS INSURANCE BOARD, The

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  867/2000

868/2000

DELIVERED ON:  24 December 2003
DELIVERED AT:  Hobart
HEARING DATE:  11-14 November 2003
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Damages – Measure and remoteness of damages in actions for tort – Mental and nervous shock – Common law – Distinction from ordinary grief – What amounts to recognised psychiatric illness.

Swan v Williams (Demolition) Pty Ltd (1987) 9 NSW LR 173, followed.
Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] 191 ALR 449, referred to.
Aust Dig Damages [26]

REPRESENTATION:

Counsel:
             Plaintiffs:  J W Avery, M A Ryan
             Defendant:  K E Read, D Cooper
             Plaintiffs:  Avery Partners
             Defendant:  Piggott Wood & Baker

Judgment  Number:  [2003] TASSC 149
Number of paragraphs:  31

Serial No 149/2003
File No 867/2000
File No 868/2000

CONLEY WESCAR WHAYMAN v THE MOTOR ACCIDENTS
INSURANCE BOARD
CAROL JILL WHAYMAN v THE MOTOR ACCIDENTS
INSURANCE BOARD

REASONS FOR JUDGMENT  COX CJ

24 December 2003

1. These two actions were heard together.  The plaintiffs are the parents of Matthew Whayman who was killed in a motor vehicle accident on the Midlands Highway near Oatlands on 26 March 1999.  He was a passenger in his own car with which another car, driven on to the wrong side of the road, collided head-on.  In addition to Matthew Whayman, another passenger in his car and the 61 year old driver of the other vehicle, were fatally injured.  The plaintiffs have sued the defendant Board pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973, s16, for damages for nervous shock sustained by each of them as a consequence of the negligent driving of the deceased driver, John Martin Hoy. It is not disputed that the latter owed the plaintiffs a duty of care, that he was negligent and that nervous shock to them was reasonably foreseeable. The sole issue is whether or not the plaintiffs have established that they have suffered compensable nervous shock.

1. Matthew Whayman was 26 years old at the time of his death.  He was the younger of the plaintiffs' two sons.   His elder brother, Michael, was about four years older and was married.  Matthew was single but had a daughter who, according to the history given to one of the psychiatrists, was born some eighteen months before his death.  He and the child's mother did not then live together.  He was a computer expert and had a great interest in radio broadcasting.  In his home at Aotea Road, Sandy Bay, which his parents had bought for him for approximately $90,000 on the understanding that he would, in due course, repay that sum, he had a licensed radio station which operated 24 hours a day, much of the transmission being the result of computerised programming.  He was a happy, well adjusted, intelligent young man with good prospects.

1. On 26 March 1999, the plaintiffs were told of his death by police officers at the home of their son, Michael.  Both plaintiffs in their evidence spoke of having premonitions of his being involved in the fatal accident when they separately heard news of the accident broadcast over their car radios.  It was described as an horrific accident with three fatalities, and one of the cars catching fire.  No details of the deceased were then released and the plaintiffs did not know that their son had travelled to Launceston that day on business.  They had no reason to suppose that he was involved in the accident and whether or not the premonition was a later unconscious reconstruction by each of them, there is no gainsaying the deep level of distress each must have experienced when told that their son had been killed in such tragic circumstances.

1. They were unable to obtain much detail on the night of the accident and did not see their son's body until the eve of the funeral.  It appears that he was not killed immediately, but died of massive internal injuries after the arrival of the ambulance.  After spending an hour with their son at the funeral parlour, they were asked to leave, but returned to spend the night in the car outside.

1. Since Matthew's death, the plaintiffs have been inconsolable.  Mr Whayman, who is 59 years old, was employed at Blundstone's Shoe Factory, cutting out patterns for shoes.  He ceased work and did not return until November 2001, when the disability allowance paid by the defendant Board had been terminated and his entitlements to sick and long service leave were exhausted.  He has continued in employment there ever since, although the workforce is presently working a reduced week of four days.  While he was off work he visited his son's grave at Kingston with his wife almost every day.  Since his return to work, he has visited it two to three times a week.

1. Mr Whayman described his life in the first six months after his son's death as "terrible, there was nothing going for it at all and we blamed one another for Matt's death.  We couldn't do something about it; we existed and that's about it."  About a month after the accident he was visited by a police officer from the Accident Investigation Squad who gave him information which led him to believe that the driver of the other vehicle had been reckless and not merely negligent.  He attended the inquest and was dissatisfied with the lack of censure of the other driver's conduct.  He believed him to be a selfish, self-centred person who should not have been driving because his medical problems prevented him from doing so safely.  This caused Mr Whayman a great sense of anger and made him, in his own words, "as hard as a rock".  He said, "It cost me my heritage.  My children was my heritage.  Like any parents their (sic) children were my heritage and, you know, to have somebody murder them is not of a very nice feeling.  That's why I'm as hard as a rock."

1. The plaintiffs' home is at Sandfly, where they have a five acre block of land.  They alternate between living there and at Matthew's apartment in Sandy Bay, spending approximately 25 per cent of their time at Sandfly and the rest in Sandy Bay.  There is no pattern to their movements between the two residences.  The radio station continues to operate 24 hours a day, Mr Whayman now being the licensee.  For some time, friends of Matthew acted as announcers, but nowadays, with the assistance of one of them, virtually all the transmission is done automatically, thanks to the computer.  None of Matthew's clothing and personal possessions have been removed.  Both plaintiffs appear to treat the Sandy Bay apartment as a shrine to their son and have no plans for dismantling or vacating it.

1. The plaintiffs and their two sons were a very close-knit family.  Mr Whayman took an active interest in his sons' sporting activities and although both moved into their own establishments on reaching adulthood, close contact was maintained with their parents.  They and their partners or girlfriends would join their parents regularly at least once per week for a meal.  Though not particularly sociable, Mr Whayman played in veteran indoor cricket and became a close friend of a Mr Arnold who described him, prior to the accident, as a very strong character who enjoyed life and was always looking for a laugh or a joke.  Since the accident Mr Arnold found him a very sad, angry man who was totally shattered.  Mr Arnold found himself powerless to cheer him up and despite wanting to help, gradually ceased contact with Mr Whayman.

1. Mr Whayman's present day is made up of attending work at Blundstone's from 7.50am.  On his return home at about 5pm, he cooks his own meal.  He switches the television on automatically, but takes no interest in the programmes and has lost interest in reading, describing himself as formerly an avid reader.  His relationship with his wife is distant.  They engage in no intimacy and he does his own washing and ironing.  Occasionally he procures some provisions at her request.  On the week-end, he cuts the half acre lawn at Sandfly with a ride-on mower if it needs cutting and does a little tidying up in the garden.  At Sandy Bay, the small garden is shared with the owner of another apartment and occasionally he does a little work in that garden.  Prior to the accident, he and his wife used to travel to Launceston for a week-end away and attend shows and cabarets every six weeks or so.  They have not done so since, nor have they passed the scene of the accident since the one occasion on which Mr Whayman visited it shortly after the accident.

1. Mrs Whayman was described by her niece, a hairdresser from Margate, as a very caring, outgoing, energetic person not prone to staying at home.  She was a frequent, chatty customer and often went to family gatherings.  The family unit was described as a "very close caring loving family".  Since Matthew's death, the niece said Mrs Whayman had become withdrawn.  She did not attend family functions, nor attend her salon.  Another family friend, Mr Grace, described both plaintiffs as previously active, happy people who spent a lot of time with their sons.  Now, he said, they had just withdrawn from life.  He tried to persuade them to transfer the radio station to the Kingborough Council for the benefit of the community, but they would not part with it.  None of these family friends was cross-examined.

1. Mrs Whayman is 57 years old and like her husband, was brought up in the Channel area.  Prior to Matthew's death, she enjoyed good health, had handled the family's finances for many years and had profitably bought and sold several properties, enabling her husband and her to save for their retirement and to finance the acquisition of the property for Matthew in Aotea Road.  Prior to her son Michael's marriage, he came home for tea every night and until Matthew's death, she cooked his evening meal and either she or her husband would drop it into him.  She also assisted him in some secretarial work.  Their sons had a meal with them each Sunday night.  She took pride in her appearance and dressed well.

1. Since her son's death, she has visited his grave most days.  At times she has been there at midnight and other times outside normal hours.  On a typical day, she stays in bed until anywhere between 1pm and 5pm.  She lies in bed awake and listens to talk-back radio to distract her.  There is a help line for the bereaved called "Compassionate Friends", to which the funeral director introduced her, and she speaks on the telephone to members of this organisation three or four times a week.  At times she can speak to one of these friends for up to three hours.  She feels they comfort one another.  She has no interest in outside affairs, and her activities are largely confined to doing a little shopping and the odd errand for Michael, ferrying him around occasionally and visiting the cemetery.  She does not cook for her husband, save for a few vegetables from time to time, and she eats frugally herself.  She says she does not want to get back to normality because she would feel guilty "because what right have I got.  It should have been me that died.  You're not meant to bury your children – they're meant to bury you."  There is little rapport and no intimacy with her husband.  They went to the movies once because that was recommended by her counsellor and they reluctantly accepted an invitation to visit an old friend of her husband, but that was a disaster as she was upset by a reference to someone who had been killed in a car accident and she "just lost it in front of these people".

1. Mrs Whayman sees her general practitioner, Dr Shaw, about once a month for prescriptions for Serepax, Tamazapam, Panadeine Forte and antihistamines to make her sleep.  She sees a counsellor once a fortnight for about 1½ hours.  She says she gets some benefit from these visits in that they help her to survive.

1. Dr Barry Shaw was consulted by both plaintiffs about a week after Matthew's death and has continued to see them on average about once a month.  He diagnosed both of them as suffering from a depressive illness.  He based his diagnosis on the symptoms they told him they were experiencing, namely lack of appetite, very poor sleeping pattern, particularly insomnia, a feeling of guilt, increased fighting between themselves, a feeling of poor or low self-esteem and a feeling of withdrawal from the community.  He prescribed anti-depressant therapy, and counselling was organised for both of them.

1. Dr Ian Sale, psychiatrist, saw both plaintiffs in about April 2000.  On 1 May he wrote:

"… both have experienced an extremely intense grief following the death of their son in a vehicle accident 13 months ago.  With the passage of time both of them, and perhaps their surviving son also, have developed features of a Major Depressive Illness, which is above and beyond the normal grief process."

He has seen them both frequently since.  He gave evidence that in his opinion both plaintiffs were suffering chronic major depression.  This is a condition recognised as a psychiatric illness in the Diagnostic and Statistical Manual, 4th version, or DSM4, as it is commonly called.  This American publication provides a classificatory system of mental disorders.  It is not the only one, others being favoured in other countries,, but Dr Sale said most Australian psychiatrists preferred to use DSM and I accept that this is so.  The manual has a preface in which it is stated:

"The purpose of DSM4 is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose, communicate about study and treat people with various mental disorders.  It is to be understood that inclusion here for clinical and research purposes of a diagnostic category such as pathological gambling or paedophilia does not imply that the condition meets legal or other non-medical criteria for what constitutes mental disease, mental disorder or mental disability."

Other conditions not included as illnesses in DSM appear in an annex called the V codes and include a condition called bereavement, together with criteria for its diagnosis.  The criteria for major depressive illness set out in DSM4 are as follows:

"AFive (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations.

1depressed mood most of the day, nearly every day, as indicated by either subjective report (eg, feels sad or empty) or observation made by others (eg, appears tearful). Note: In children and adolescents, can be irritable mood.

2markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others)

3significant weight loss when not dieting or weight gain (eg, a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains.

4insomnia or hypersomnia nearly every day

5psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)

6fatigue or loss of energy nearly every day

7feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self‑reproach or guilt about being sick)

8diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)

9recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide

B The symptoms do not meet criteria for a Mixed Episode

C The symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

D The symptoms are not due to the direct physiological effects of a substance (eg, a drug of abuse, a medication) or a general medical condition (eg, hypothyroidism).

E The symptoms are not better accounted for by Bereavement, ie, after the loss of a loved one, the symptoms persist for longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation."

1. Dr Sale opined that in the case of Mr Whayman, the following symptoms were present:

"Ÿ   depressed mood most of the day, nearly every day

·markedly diminished interest or pleasure in almost all activities

·significant weight loss

·insomnia

·diminished ability to think or concentrate, or indecisiveness

·recurrent thoughts of death, recurrent suicidal ideation".

In the case of Mrs Whayman, he noted the following symptoms:

"Ÿ    depressed mood most of the day, nearly every day

·markedly diminished interest or pleasure in almost all activities, most of the day, nearly every day

·sleeps poorly, even with medication

·fatigue and lack of energy nearly every day

·excessive or inappropriate guilt

·diminished ability to think or concentrate".

1. Counsel for the defendant Board submitted that the evidence did not support the existence of the minimum five criteria requisite for a diagnosis of major depressive illness and called two psychiatrists whose opinion was that the condition of both defendants was one of bereavement.  Dr Colm Moore saw both of them in January 2002 and October 2003 for a total of four hours each.  In respect of Mr Whayman, he was of the opinion that he did not demonstrate any disturbance of higher mental function and apart from the first week after his son's death, he had not experienced suicidal or homicidal thoughts.  His continued grief was, in Dr Moore's view, appropriate even after this length of time, given the very close nature of their relationship.  He noted that Mr Whayman did not show features of psychomotor retardation or agitation, uselessness or worthlessness, though he did have anger and some degree of guilt.  He found no evidence of any unrelated psychiatric disorder.  He observed that in some cases bereavement merges seamlessly into a picture of major depression, but said that that was not so in the case of Mr Whayman because the following key features of major depression were absent:

(a)       psychomotor retardation or agitation;

(b)       inappropriate guilt or worthlessness;

(c)       suicidal ideation; and

(d)       disorganisation of higher mental function.

He said that although there were features of sadness, difficulty with sleep and reduced energy, these features did not constitute a depressive disorder.  At the time of the first consultation, Dr Moore considered that Mr Whayman's situation would be assisted by his returning to work, which he thought would distract him from recurring thoughts of his dead son and, after the second consultation, was of the view that his condition had improved as the result of the return to work.

1. In the case of Mrs Whayman, Dr Moore found on psychiatric examination that she was tearful, particularly in the initial part of the interview, but towards the second part of the interview she was less tearful and more organised in her thinking.  There was no evidence of any delusional thinking or hallucinations.  She had thoughts of being reunited in life with her son, and thought that miracles were possible, but realised on a deeper intellectual level that this would not occur.  He described this form of wishful thinking as different from delusional thoughts.  He said that Mrs Whayman's lack of interest in activities and lack of pleasure from them was associated with a constant preoccupation with her son and a constant sense of loss and grieving for Matthew, not only for his present company, but also for what he could have achieved in life.  She does not have any interest in food, but is not anorexic.  Although she spends a lot of time in bed, she did not describe the severe features of retardation seen in persons with severe major depression.  She denied suicidal ideation and while she ruminated about what she could have done possibly to have prevented his death, for example by ringing him and urging him to stay in Launceston, there was no sense of inappropriate guilt.  Dr Moore diagnosed Mrs Whayman as suffering from severe bereavement or grief reaction.  Although the bereavement is a severe one, he said it has not merged into features of the most common psychiatric disorder seen in association, that is major depression with or without psychotic features. 

1. Dr Moore maintained his contention that the condition of both defendants did not amount to a psychiatric illness.  He said in evidence:

"Bereavement is a normal process.  It's very sad.  It's sorrowful.  It's a matter of great distress for the person going through it.  But it is the view of the profession that bereavement, or grieving, is just that, a normal process.  It is not an illness or a disorder.  Major depression, on the other hand, is regarded as a dysfunction of the brain involving brain chemicals, with or without genetic basis, and hence fulfils the criteria for a disorder or a disease."

Later he said that an American author, Horowitz, had been pressing for the inclusion of pathological grief or severe bereavement as a psychiatric illness.  This exchange with me then followed:

"A  These people have severe bereavement.  They have a severe form of grief.

Q   But you say that it's not a psychiatric disorder or illness because it's a natural phenomenon which can take different extremes.  And you said this morning:

'Major depression on the other hand is regarded as a dysfunction of the brain involving brain chemicals with or without genetic basis and hence fulfils the criteria for a disorder or a disease'. 

Now is that the distinction you're making between psychiatric illness opposed to some form of natural unpleasantness or condition which might even become extreme?

A   Yes, your Honour.

Q   So you're saying that although Mr Horowitz might be pressing for an extreme form of bereavement to be regarded as a psychiatric disorder or illness you wouldn't regard it as such because it's still in that realm of natural – a natural condition, although an extreme form of it, and it hasn't reached the stage of being a dysfunction of the brain involving brain chemicals, etc?

A   Correct."

1. Dr Moore considered that the condition of both plaintiffs was unlikely to change, that they had a chronic form of grief and that it was beyond his control to make any difference to their grief.  There was nothing, including medication, he could recommend to change their condition.

1. Dr Rose, another psychiatrist, on 17 August 2001, examined Mr Whayman only and found him more irritable, angry and hurt than depressed.  He said that he appeared to be unable to forgive or accept the death of his son and was preoccupied with feelings of vindictive anger about it.  He blamed the other driver, who he believed to be an ex-Catholic Brother who was suffering from depression and had been receiving medication from a doctor friend.  He now felt vindictive towards the other driver's ex-partner and the Roman Catholic Church.  He considered Mr Whayman to be suffering from an abnormal grief reaction, the correct diagnosis being one of bereavement.  However, he said "bereavement is not a psychiatric illness.  It is difficult to say that Mr Whayman is suffering from a recognisable psychiatric illness despite the presence of abnormal grief and vindictive rage".  In cross-examination he described Mr Whayman's condition as abnormally arrested grief.  He said this was not recognised as an illness, although he had heard of it as far back as 1962 in student days.  It was regarded as an abnormal process or an abnormal variant, but it was not regarded as an illness as such.  He said that those who suffered from pathological grief had not gone through the normal stages of grief ¾ "They're arrested in one of those stages and they need help to proceed through it."  He said, "it's a variance of human behaviour but I would not regard it as a psychiatric illness and neither would most of my colleagues".   Asked how he would treat the condition, he said:

"… in the first instance I would attempt some form of counselling or psychotherapy.  If they were as rigid as Mr Whayman I might, in desperation, think that maybe an anti-depressant might help. … I might prescribe the anti-depressants to target the symptoms of sadness.  There is no doubt that Mr Whayman has had some symptoms of sadness.  Unfortunately when one does give these medications to someone like Mr Whayman, the chances of them being successful are not very good. … I think that Mr Whayman has gone beyond what is a normal grief reaction.  He's got pathologically arrested grief.  He's arrested in the stage of anger."

Asked if it was not most unusual for a person to be exhibiting Mr Whayman's symptoms 4½ years after the death of his son, he agreed that it was unusual and abnormal.

1. I prefer the evidence of Drs Moore and Rose that neither of the plaintiffs has demonstrated the requisite criteria for a diagnosis of major depressive illness.  Specifically, although both plaintiffs appear to suffer a depressed mood most of the day nearly every day and markedly diminished interest or pleasure in many activities (criteria 1 and 2), neither has suffered significant weight loss (criterion 3).  Mr Whayman lost two stone after the death of Matthew, but has stabilised and remained the same weight for several years now.  Mrs Whayman was always of slight build and any further weight loss has not been significant.  There is evidence of disturbed sleep on the part of both plaintiffs and they take medication to help them sleep.  Criterion 4 is marginally established.  However, there is no evidence of psychomotor agitation or retardation (criterion 5), nor of any feelings of worthlessness or excessive or inappropriate guilt (criterion 7).  There is no evidence of recurrent thoughts of death or recurrent suicidal ideation (criterion 9).  In the case of Mrs Whayman, I find that she suffers fatigue and loss of energy nearly every day (criterion 6); but I am not satisfied that this characteristic is clinically significant in the case of Mr Whayman.  Dr Moore dismissed it because of the level of activity he understood that Mr Whayman engaged in.  However, the latter's activities, though occupying a considerable amount of his daily life, are routine and not as extensive as the doctor thought.  Nevertheless, I have difficulty in accepting that the symptom has been demonstrated in his case.  Criterion 8, diminished ability to think or concentrate or indecisiveness nearly every day, has not been made out in the case of either plaintiff.  I am not satisfied that the occasional lapses of concentration on the part of Mr Whayman at work are clinically significant.  Both plaintiffs seem to be capable of living their limited lives as they have now chosen to do without any diminution in thinking or concentration.  However, I am satisfied that they suffer an extreme form of bereavement which is abnormal in its intensity and duration and has profoundly affected their lives.  The question is whether or not this condition is a recognised psychiatric illness for which damages may be awarded.

1. The need to demonstrate a recognised psychiatric illness is clearly established.  In Hinz v Berry [1970] 2 QB 40 at 42 – 43, Lord Denning MR said:

"In English law no damages are awarded for grief and sorrow caused by a person's death.  No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life.  Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant."

In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394, Windeyer J did not use the expression "recognised psychiatric illness" but said:

"Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a 'shock', however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had."

In the recent decision in the cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 191 ALR 449, the High Court broke new ground in respect of nervous shock cases; but neither case turned on what was embraced by the expression "recognised psychiatric illness". Gleeson CJ noted that:

"It was common ground in argument that, save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness." (at 453)

He footnoted Frost v Chief Constable of South Yorkshire [1999] 2 AC 455 where Lord Goff of Chieveley at 469 said of the principle that the plaintiff must have suffered psychiatric injury in the form of a recognised psychiatric injury:

"The function of this principle is to exclude claims in respect of normal emotions such as grief or distress."

Earlier, Lord Keith of Kilkel in Page v Smith [1996] 1 AC 155 at 167 said of the same expression:

"There must be some serious mental disturbance outside the range of normal human experience, not merely the ordinary emotions of anxiety, grief or fear."

1. In Australia, the distinction has been recognised in a number of cases.  In Macpherson v Commissioner for Government Transport (1959) 76 WN (NSW) 352, the Full Court (Owen, Herron and Ferguson JJ) endorsed the trial judge's directions to the effect:

"… ordinary grief, anguish or anything like that which is the ordinary result of sudden death, and of end of life and all those things, is not compensatable. … he (the plaintiff) is not entitled to have you consider at all the fact that he is suffering from ordinary grief, ordinary anguish, ordinary shock, even though anguish is far beyond that of the ordinary man." (At 252 – 253)

1. In Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 173, the Court of Appeal by majority upheld an appeal by a husband bereaved by the death of his wife. The medical evidence on which Priestley JA relied, in particular, was to the effect that after 18 months the plaintiff's grieving had been partly completed but not fully and it was difficult to predict how much further improvement he might achieve in time. The psychiatrist concluded:

"In summary, it can be said that this is an unresolved and atypical bereavement reaction following upon the sudden death of his wife." ( At 197)

At 198, Priestley JA said:

"In dealing with the evidence about nervous shock Lusher J said that Dr Woodforde's report referred in substance to grief and specifically stated there was no evidence of any anxiety or severe depression.  Taking this together with Mr Swan's own evidence he was satisfied that he did not suffer nervous shock within the concept of the decided cases.  He was fortified in this finding by the reports of Dr Robbie.  On this basis Lusher J concluded that Mr Swan did not suffer more than normal grief and sense of loss.  In reaching this conclusion I do not think that he gave sufficient weight to the sequence of the medical reports and Dr Woodforde's opinion that at February 1983 he was suffering from the unresolved and atypical bereavement reaction which that doctor spoke of.  Nor does it seem to me that he gave sufficient weight to what really amounted to agreement with that opinion by Dr Robbie in July 1983 in the sense that at that time that doctor recognised that a mourning reaction was still occurring which it seems clear enough he thought should have ended an appreciable time earlier."

McHugh JA agreed with the reasons of Priestley JA.

1. In Tame v New South Wales (supra), Hayne J made a number of observations on the distinction between psychological injury and emotional distress.  At 522 he said:

   "That psychiatry and psychology advanced great distances during the twentieth century may readily be accepted. It may also be accepted, with equal readiness, that there may be a radical difference between emotional responses to untoward events that are properly regarded as falling within the range of normal responses to the event, and a psychiatric illness that is brought on by that event. But if there is a difficulty it does not lie in distinguishing between cases at opposite edges of the field that is being considered. The important question is whether a satisfactory criterion can be identified which will distinguish cases that lie in the middle of that field.

   The fact that psychiatry distinguishes between mere mental distress and psychiatric illness is an important first step in the inquiry. Recognising (see van Soest v Residential Health Management Unit [2000] 1 NZLR 179 at 197) that psychiatry sees that distinction as being one of degree, not kind, and accepts that the distinction may change as medical knowledge expands, presents difficulty.

   First, there is the fundamental problem of identifying the basis on which the distinction is to be made. If mental distress and psychiatric illness are the opposite ends of a continuous spectrum of consequences of an untoward event that are consequences not having an identifiable physical manifestation, how big is the middle band of that spectrum? How is that middle band to be divided?

   Is it to be divided according to psychiatric opinion? That is, is the law to provide a remedy for any injury which prevailing psychiatric opinion would classify as a psychiatric illness? Or is the law to prescribe the criteria by which the distinction is to be made (no doubt leaving it to the expert evidence of psychiatrists or other suitably qualified witnesses to reveal whether those criteria are met in a particular case)? Psychiatric illness cannot yet be correlated, in every case, with abnormality of physiological or biochemical brain function."

2. I do not accept Dr Moore's view that psychiatric illness is to be limited to those cases where there is a dysfunction of the brain involving brain chemicals; nor do I accept the submission of counsel for the defendant Board that if the plaintiffs' condition is not tabulated as an illness in DSM4, it cannot be so regarded.  As Hayne J says, "the dividing line is difficult to determine and as yet there is no satisfactory criterion which will distinguish cases which lie in the middle of the field".  Nevertheless I regard the condition of both plaintiffs as atypical and abnormal.  They obsessively cling to reminders of their son, preserving his apartment as a shrine, continuing his broadcasting activities (admittedly in a more limited way) and spending a majority of their time at it rather than at their own home.  The frequency of their visits to his grave is also abnormal and in Mrs Whayman's case, so is her entire lifestyle.  There seems no prospect of successful treatment and all three psychiatrists are pessimistic concerning the prospects of either plaintiff working through his or her grief so as to achieve any degree of normal closure on this unhappy episode in their lives.  On any view their grief is so intense and their inability to adjust to it so unusual as to indicate an abnormality of their minds such as can fairly be described as indicative of disease.  Notwithstanding that it does not fall within any of the criteria for diagnosis as a mental disease within the meaning of DSM4, I am of the view that both plaintiffs can be said to have a psychiatric illness which is recognisable as such and transcends mere grief, however intense.  Both, in my view, are entitled to damages for this condition.

1. Damages for an injury of this nature are extremely difficult to assess.  No amount of money can compensate the plaintiffs for the loss of a loved son.  The value of that loved son can in no way be measured in financial terms and an award of damages is not intended to place a value on the person lost.  At best, it represents an acknowledgment that the plaintiffs have lost something beyond price and a finite sum is determined by the Court as some form of solace to those wronged by the tortious acts of the driver of the other car.  Both have suffered grievously, but Mrs Whayman more so than her husband.  She has incurred expenditure to date of psychiatric and counselling consultations amounting to $6,390, and $3,800 in remedial massage consequent upon her psychological injury, together with $109 in medications not reimbursed by the defendant.  Her present cost of medication is of the order of $42 per month or approximately $10 per week.  This will continue indefinitely.  I allow $4,850 using a multiplier of 647 and a reduction for contingencies of 25 per cent.  The cost of visits to a doctor is of the order of $35 per month.  Using a similar broad-brush approach, I allow $4,350 under this head.  For general damages I allow Mrs Whayman a sum of $30,000.

1. In respect of Mr Whayman, I do not make an allowance for continued counselling.  He did not continue with counselling because he said he could not afford it; but in any event, it seems to have been of little assistance to him and I do not anticipate that he will continue to avail himself of it.  He, like his wife, will need to consult a general practitioner approximately once per month for the rest of his life.  I allow $4,000 under this head.  He will also need medication indefinitely.  I allow $4,400 in respect of future pharmacological needs.  I make no allowance for past loss of wages which were covered by the disability allowance.  There is no reason to suppose he cannot continue in work to the end of his normal working life.  It is of benefit to him to do so.  By way of general damages I award him $20,000.

1. Under the Motor Accidents (Liabilities and Compensation) Act, s27(1), it is provided that:

"… where a liability has been incurred for the payment of damages to a person in respect of a personal injury the payment to that person of a scheduled benefit in respect of that personal injury shall, so far as it extends, be taken to be a payment in or towards the discharge of that liability, and the amount of those damages shall be reduced accordingly."

It was submitted by counsel for the defendant that the disability allowance paid to Mr Whayman should be deducted from any award of damages made to him.  I do not accept that this is appropriate.  The payment of scheduled benefits to him was made in respect of his alleged inability to work in consequence of his son's death.  Any sum in discharge of the liability of the defendant to reimburse him for that loss should be reduced by the amount paid in that respect, but as no sum has been awarded in respect of that liability, no question of reduction arises.

1. There will be judgment for the plaintiff Conley Wescar Whayman in the sum of $28,400 and for the plaintiff Carol Jill Whayman in the sum of $49,500.