Legal Research
Cases
The Queen v Robert James Moffat

The Queen v Robert James Moffat

Case [2000] NZCA 252 14 August 2000

Statutory Interpretation

Civil Litigation & Procedure

Tort Law

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/99

BETWEEN	WILSON OWEN AND MITSUKO OWEN
Appellants

AND	RESIDUAL HEALTH MANAGEMENT UNIT
First Respondent

AND	DAVID ADDIS
Second Respondent

AND	JOHN C THOMSON
Third Respondent

Hearing:	14 August 2000
Coram:	Blanchard J McGechan J Doogue J
Appearances:	K G Davenport for Appellant P A McCarthy for First Respondent A H Waalkens and C L Garvey for Second and Third Respondents
Judgment:	14 August 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

This is an appeal against a decision of Smellie J in the High Court to strike out a claim by the parents of a severely disabled child for compensatory and exemplary damages for what they have called nervous shock.

Background

The appellants’ child was born on 14 April 1993. During the birth he suffered brain damage and is now seriously impaired. Almost six years later, on 9 April 1999, the appellants filed a claim against the respondents in the High Court. The appellants allege that the three respondents (the hospital where the child was born, and the doctors involved in the pre-natal care and birth of the child) failed to ensure that proper advice, services, knowledge and skill to enable a safe delivery of their child were available. They claim they suffered “nervous shock” as a result of the respondents’ negligence. They have not at any time sought leave under s4(7) of the Limitation Act 1950 for the bringing of the proceeding more than two years after the cause of action accrued.
In a reserved judgment delivered on 12 October 1999, Smellie J struck out the appellants’ claim on the following grounds:
[a]That because the appellants claimed only “nervous shock” and not “a recognisable psychiatric disorder or illness”, the pleadings disclosed no reasonable cause of action; and
[b]That the claim was in any case barred by s4(7) of the Limitation Act 1950, because it was brought more than two years after the cause of action accrued.
The appellants appeal both grounds.

The decision of the High Court

Considering the first ground, that the pleadings disclosed no reasonable cause of action, Smellie J stated that the pleadings did not allege that the appellants had suffered a “recognisable psychiatric disorder or illness” as a result of the circumstances surrounding their son’s birth. In Van Soest v Residual Health Management Unit [2000] 1 NZLR 179, this Court held that an action claiming damages for psychiatric illness suffered as a result of witnessing bodily injury to another could succeed only if the illness was a “recognisable psychiatric disorder or illness”. Smellie J stated that, on his reading of this decision, “a mere pleading of ‘nervous shock’ is not sufficient to allege ‘a recognisable psychiatric disorder or illness’.” On the basis of affidavits filed, Smellie J could detect only grief, distress and anger, and considered that the father had retained all his faculties, and the mother was “mentally stable enough to take the child to Japan”. He was convinced that neither of the…

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 The Queen v Robert James Moffat

Details

AGLC: The Queen v Robert James Moffat [2000] NZCA 252
Case: [2000] NZCA 252
Decision Date: 14 August 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an appeal against a decision of the High Court to strike out a claim for compensatory and exemplary damages by the parents of a severely disabled child, who suffered brain damage during birth due to alleged negligence by the hospital and doctors involved. The parents, Wilson Owen and Mitsuko Owen, claimed they suffered "nervous shock" as a result of the respondents' negligence, and sought to recover damages for this claim. The High Court struck out the claim on the grounds that the pleadings did not allege a recognisable psychiatric disorder or illness and that the claim was barred by the Limitation Act 1950, as it was brought more than two years after the cause of action accrued. The appellants appealed both grounds.

The Court of Appeal considered whether the pleadings disclosed a reasonable cause of action, and whether the claim was barred by the Limitation Act. The Court found that the term "nervous shock" was sufficient to indicate that the appellants claimed to have suffered a recognisable psychiatric disorder or illness, and that the High Court should have assumed the facts pleaded were true. The Court also found that the appellants' claim was for their own mental injuries, and that such injuries can constitute "bodily injury" within the meaning of s4(7) of the Limitation Act. Consequently, the claim was subject to the two-year limitation period, and the appellants' failure to bring the claim within this period resulted in the claim being statute-barred. The Court dismissed the appeal with costs to the respondents.

Orders