Decision
59 In my opinion, for the widow to succeed in her claim under s.4 of the Law Reform (Miscellaneous Provisions) Act 1944 for damages for mental injury, it was necessary for her to prove that it was caused by shock, in the sense of a sudden sensory perception of something which was so distressing that the perception affronted or insulted her mind: this was the view of this Court in Chiaverini, and I see no reason to depart from it. The trial judge's decision on this question was correct.
60 In my opinion, no error is shown by way of inconsistency between a finding that the widow was shocked and distressed by news of the accident, and a failure to find mental or nervous shock in this sense. In my opinion, the factual finding to which I have referred was simply a factual finding as to a natural reaction on hearing news of this kind, and not a finding of mental or nervous shock as that expression is explained in cases such as Chiaverini.
61 There was more substance in the submissions concerning Dr. Shand. Dr. Shand did give evidence that the widow's grief reaction was abnormal, was abnormal from the start, and did amount to a psychiatric disorder. However, although the trial judge said he accepted Dr. Shand's evidence, I do not think that this means that he accepted every element of Dr. Shand's evidence; and the trial judge also said he accepted Dr. Dyball's evidence, which was to the effect that there was no abnormal grief reaction. The trial judge did advert to the respect in which Dr. Shand said the reaction was abnormal, so it does not appear that he misunderstood Dr. Shand's evidence or overlooked or ignored it. One might have expected that this element of conflict between Dr. Shand and Dr. Dyball would have been addressed explicitly; but it is not necessary that reasons be given for every detail of a decision.
62 Mr. Gross's submission concerning no demonstrable psychological or psychiatric illness is associated with the submissions concerning Dr. Canaris, and I will turn now to those submissions.
63 In my opinion, there was no error in the trial judge's comment about inconsistency concerning Dr. Canaris. In setting out the history given by the widow, Dr. Canaris noted "Over the last few years they have become less frequent and now recollections of Barry might manifest themselves every six months or so", and also "Even now 'I don't think a day goes by without my thinking about him'". In my opinion, there is some inconsistency in that history, and it should not have passed without comment: I think Dr. Canaris should have attempted to reconcile the two statements, or else given his opinion as to the significance of the two apparently conflicting statements. I think there is more force in the submission about the trial judge's reliance on DSM-III-R: that was not in evidence in such a way as to give it evidentiary force, and in any event, I do not think on its true construction it is inconsistent with an abnormal grief reaction being a demonstrable psychological or psychiatric illness, even though it is not given a more specific classification.
64 In my opinion, the trial judge's reasoning and findings can fairly be understood as consistent with the following analysis:
(a) Prior to the accident, the widow had guilt feelings concerning her relationship with the deceased.
(b) News of the accident caused a grieving response in a normal way; but the grieving continued well beyond a normal time, because of the complication of the guilt feelings and other factors, such as not viewing the body and not having counselling, as well as the drawn-out litigation.
(c) That explains Dr. Shand's view that the grief reaction was abnormal; though not his oral evidence in cross-examination that it was abnormal from the start, and amounted to a psychiatric disorder.
(d) However, Dr. Dyball's evidence was to the contrary, and Dr. Shand was clearly of the view that the abnormal grief reaction was not caused by shock.
(e) The normal causation of a grieving response, which then fails to resolve in a normal way because of other factors, is not an injury caused by sudden sensory perception of something so distressing that the mind is affronted or distressed.
(f) Such a grieving response is in any event more reasonably regarded as a normal response extended and enhanced by these factors, rather than a demonstrable psychological or psychiatric illness.
Such an analysis is plainly supportable on the evidence.
65 I do not think errors have been shown which vitiate the trial judge's ultimate conclusions. The trial judge was entitled to accept Dr. Dyball. The trial judge was also entitled to accept Dr. Shand, in so far as his evidence was that the abnormal grief reaction of the widow was not caused by shock, but rather was caused by grieving exacerbated by other factors. In my opinion, that is a distinction which can be validly drawn in at least some cases, and could validly be drawn in this case.
66 I do not think a ground is made out to interfere with the trial judge's decision, and in my opinion the widow's appeal should also be dismissed.
67 Although the circumstances of the present case do not require me to do so, I would like to make some additional observations about s.4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944, in particular concerning the question of whether s.4(1)(a) allows a person to recover for psychiatric injury associated with the death, injury or perilous situation of their child or spouse, in circumstances where the common law would not allow recovery.
68 Recovery under s.4(1)(a) is possible where injury is caused by "mental or nervous shock", or in other words, by "a sudden sensory perception of something so distressing that the perception affronts or assaults the mind": see Campbelltown City Council v. Mackay (1989) 15 NSWLR 501 at 503, 507 and Chiaverini v. Hockey [1993] Aust. Torts Reports 81-223. To determine the range of circumstances in which s.4(1)(a) would permit recovery, it is therefore necessary to consider what is meant by a "sudden sensory perception …". It is well accepted that "the accumulation over a period of time of more gradual assaults on the nervous system" is a phenomenon which falls outside the scope of the expression "sudden sensory perception …": see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400, 401, Campbelltown City Council v. Mackay (1989) 15 NSWLR 501 at 503, 507 and Chiaverini v. Hockey [1993] Aust. Torts Reports 81-223. What is not clear from the authorities, however, is whether a "sudden sensory perception …" is something which can be experienced by a person in respect of a loved one's injury or death or perilous situation, in circumstances where the person is neither directly exposed to, nor involved in the immediate aftermath of, their loved one's injury or death or perilous situation.
69 Where a claim is brought under s.4(1)(a), and the circumstances are such that the claimant parent or spouse perceived neither their loved one's situation nor its immediate aftermath, the question of whether direct perception of the situation or its immediate aftermath is a necessary requirement of the expression "sudden sensory perception … " becomes critical. If it is a necessary requirement, then it is difficult to see how s.4(1)(a) could provide any avenue for recovery beyond what the common law already offers: although s.4(1)(a) does not specifically require that the parent or spouse perceive the situation or its immediate aftermath, such a precondition would in any event be imposed through the requirement that injury be caused by "mental or nervous shock".
70 The view that direct perception of the situation or its immediate aftermath is necessary for "mental or nervous shock" draws some support from Brennan, J's judgment in Jaensch v Coffey (1984) 155 CLR 549. There, Brennan, J (at 567) drew a distinction between psychiatric injury induced by 'shock' on one hand, and that induced by 'mere knowledge of a distressing fact', on the other. Subsequent statements which might support this first approach are for the most part based on Brennan, J's comment, and are unnecessary to cite here.
71 However, in my opinion the better view is that there can be mental or nervous shock without direct perception of the situation itself or its immediate aftermath. This view draws some support in pronouncements about the limits of common law compensation. For example, implicit in Windeyer J's statement in Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 407, that "I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events" (at 407) is the acknowledgment that "shock" can occur in the absence of direct perception of a loved one's situation or its immediate aftermath. Similarly, in Jaensch v Coffey, Deane, J (at 608-609) pointed out that although the injury would not be compensable at common law, it was possible that a mother, on being told on the telephone that her husband and children had all just been killed, might suffer shock.
72 More explicitly, in Coates v Government Insurance Office (NSW) (1995) 36 NSWLR 1, Kirby, P suggested (at 10) that it was foreseeable that "young, loving children, at least, of a particular person seriously injured or killed will shortly be informed of the injuries or death and may … suffer … a serious instance of 'nervous shock'"; and in Pham v Lawson (1997) 68 SASR 124, Lander, J with whom Bollen, J agreed (at 125) said at 149 ,"I think it is sufficiently clear enough that the appellant suffered a nervous shock. She did so when she was told of the death of her daughter. She started screaming and running around the house". Kneipp, J in Petrie v Dowling [1992] 1 Qd. R. 284 stated (at 286) that " … the plaintiff's shock was caused solely by something said to her and not by things seen or by a combination of things seen and heard."
73 In my opinion, the preferable view of "shock" or "sudden sensory perception …" is one which does not categorically exclude the reaction experienced by somebody who merely hears the news of a loved ones' death, injury or peril. Earlier in my judgment (at para 44) I expressed the view that … "(i)t may be the case that substantial mental injury can be caused to a person by that person merely hearing of a loved one being killed, injured or put in peril, without having perceived the incident or its aftermath." It is also conceivable, in my opinion, that such mental injury might be caused by "mental or nervous shock" within the meaning of s.4(1)(a). Accordingly, a spouse or parent who suffers mental injury in this way, who will have no recourse at common law, may nevertheless be able to recover under s.4(1)(a).
74 However, for reasons I have given, no error is shown in the trial judge's decision that the widow did not suffer injury from mental or nervous shock in this case.