Mrs O'Reilly's Nervous Shock Action
423In the Third Amended Consolidated Statement of Claim, at paragraph 41, Mrs O'Reilly pleads that as a result of the negligence of each of the defendants, she:
"... has suffered and continues to suffer psychiatric injury with consequent loss and damage."
424The principles of law which are applicable to this cause of action are those which arise in the United Kingdom. This law is different from that which applies domestically in Australia.
425Relevantly, the principal authority is that of the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. At 416, Lord Oliver said:
"The common features of all the reported cases of this type decided in this country prior to the decision of Hidden J in the instant case, and in which the plaintiff succeeded in establishing liability are, first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and fourthly, that the injuries suffered arose from witnessing the death of, or extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event, but a close temporal connection between the event and the plaintiff's perception of it, combined with a close relationship of affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has been added the reasonable foreseeability on the part of the defendant that in that combination of circumstances, there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim."
His Lordship went on to say:
"Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation."
426The approach in the UK to claims for nervous shock as Lord Oliver set the necessary steps out in Alcock, has been criticised as unhelpful by the UK Law Reform Commission. Lord Hoffman in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, said at 511B:
"It seems to me that in this area of the law, the search for principle was called off in [Alcock]. No one can pretend that the existing law, which your Lordships have to accept, is founded upon principle. I agree that Jane Stapleton's remark that "once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer:" see The Frontiers of Liability, vol. 2, p. 87."
427Lord Hoffman in White described the five steps which have been extracted above in Lord Oliver's speech in Alcock as being "control mechanisms". Of them he said that they were:
"... more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds."
428Although clearly unsatisfied by the intellectual basis for these conditions, Lord Hoffman in White noted at 502B:
"It is now too late to go back on the control mechanisms as stated in the Alcock case ... Until there is legislative change, the courts must live with them and any judicial developments must take them into account."
429Very recently the Court of Appeal dealt with a claim for injury by nervous shock in Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194.
430That was a case in which Ms Taylor, who witnessed her mother's death, claimed damages from her mother's employer, Novo, in effect as a "secondary victim" of what occurred.
431Her mother, Mrs Taylor, was injured in an accident at work as a result of which she sustained injuries to her head and left foot. She was injured when a fellow employee caused a stack of racking boards to tip over on top of her. Novo admitted its negligence for the accident. Mrs Taylor was making a good recovery from the injuries sustained in the accident when, about three weeks after the accident, she suddenly and unexpectedly collapsed and died at home. Her sudden collapse and death were due to deep vein thrombosis and consequent pulmonary emboli, which themselves were due to the injuries that she had sustained in her accident.
432There was no dispute that the plaintiff had suffered significant post-traumatic stress disorder, which it was accepted constituted a psychiatric injury, as a result of witnessing her mother's death. However, the entitlement of the plaintiff to damages was put in issue.
433The principal issue was whether the plaintiff was, in the words of Lord Oliver in Alcock:
"... personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards."
434In Novo, the defendant argued that the necessary proximity, namely that Mrs Taylor was either present at the scene of the accident which caused the death or must have been involved in its immediate aftermath, was lacking because she was not present at the scene of the original accident and was not involved in its immediate aftermath. She in fact suffered the shock which led to her illness at her mother's home twenty one days later.
435Lord Dyson, the Master of the Rolls, said:
"In the present case, Novo's negligence had two consequences which were separated by three weeks in time. The judge described them as two distinct events. The use of the word "event" has the tendency to distract. In reality there was a single accident or event (the falling of the stack of racking boards) which had two consequences. The first was the injuries to Mrs Taylor's head and arm; and the second (three weeks later) was her death. There was clearly a relationship of legal proximately between Novo and Mrs Taylor. Moreover, if Ms Taylor had been in physical proximity to her mother at the time of the accident and had suffered shock and psychiatric illness as a result of seeing the accident and the injuries sustained by her mother, she would have qualified as a secondary victim on established principles. But in my view, to allow Ms Taylor to recover as a secondary victim on the facts of the present case would be to go too far."
436The Master of the Rolls then set out his two reasons, which were interrelated for this. He said:
"... if the judge is right, Ms Taylor would have been able to recover damages for psychiatric illness even if her mother's death had occurred months, and possibly years, after the accident (subject, of course, to proving causation). This suggests that the concept of proximity to a secondary victim cannot reasonably be stretched this far. ...
The second reason is closely connected with the first. In Frost, the House of Lords recognised that this area of the law is to some extent arbitrary and unsatisfactory. ... It is true that the issue in Frost was very different from that with which we are concerned in the present case. But that does not detract from the force of the general point that their Lordships were making. In my view, the effect of the judge's approach is potentially to extend the scope of liability to secondary victims considerably further than has been done hitherto. The courts have been astute for the policy reasons articulated by Lord Steyn to confine the right of action of secondary victims by means of strict control mechanisms. In my view, these same policy reasons militate against any further substantial extension. This should only be done by Parliament.
... Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother's accident. She cannot recover damages for the shock and illness that such suffered as a result of seeing her mother's death three weeks after the accident."
437Moore-Bick and Kitchin LJJ agreed with Lord Dyson MR.
438The plaintiff here puts her claim on the basis that the relevant event giving rise to her psychiatric illness is the collapse of the late Dr O'Reilly at home on 26 July 2006. In one of her statements, the plaintiff said this about the morning of 26 July 2006:
"7. I was in the bedroom getting ready for the day when David came in. He looked really terrible. He started to tell me about the vomiting he had had that morning and then he suddenly wrapped his arms around his stomach and he had a terrible look of pain on his face. He was terribly distressed and I could not really understand what he was saying. He was obviously in terrible pain. He was bent over double and then he collapsed to the floor.
8. It was a shocking event. I had no idea what the cause of his collapse was. I was very agitated and I felt clammy. My heart was racing and I was shaking. David was making moaning noises and his face was grimacing with the pain. He could not stand up.
9. I just panicked. I had never seen anything like this before and I was really frightened. I was out of breath and just felt completely out of control."
439Having sought advice from her father in Australia, a medical practitioner, Mrs O'Reilly telephoned an ambulance which arrived quickly. Dr O'Reilly was taken straight to hospital. Mrs O'Reilly could not immediately follow because of the need to care for her son, Shane. She later learned in the course of the afternoon in a phone call from her husband, that he required emergency exploratory surgery to address his problem and find out what was causing his bowel obstruction. Later that evening she was again telephoned by her husband, who informed her that the doctors had found cancer.
440Of the events of 26 July 2006, Mrs O'Reilly says:
"I can still picture David collapsing as if it was yesterday. I tried to get it out of my mind and sometimes I can. However, often the memory of it just comes back and I feel as if I am in the same situation again."
441She was informed of the need for her husband to go back into surgery during the course of the evening. She was able to obtain some assistance with Shane and she went to the hospital - arriving there in the course of the morning on 27 June 2006, whilst Dr O'Reilly was in the recovery ward recovering from his third operation. There, in a small anteroom, she spoke to the senior surgeon, Mr Bowyer. Mr Bowyer informed her of the extent of the cancer which had been found at the first operation and the existence of extensive secondaries throughout the bowel and liver of Dr O'Reilly. Mr Bowyer informed Mrs O'Reilly that her husband had only two to three months to live, but said that if he was well enough to obtain chemotherapy and perhaps liver resection, he had a chance of surviving for another two to three years.
442Mrs O'Reilly describes her reaction to that news in this way:
"As soon as Dr Bowyer left the room I doubled over in pain clutching my stomach and then I heard someone screaming which turned out to be me. Physically, I felt as though I had been kicked in the stomach by an elephant, a physical sensation which remained with me for many months."
443It is apparent from Mrs O'Reilly's statement that she continued to find the subsequent deterioration in the health of Dr O'Reilly a difficult experience. She described it as a "totally horrific nightmare experience". On the one hand, she found that she had to act calmly for her children, but on the other, she found she could not eat properly and rapidly lost significant weight during that period. She found observing the deterioration in her husband, the fact that he was in constant and increasing pain, and that he was clearly unwell, continued to have an effect upon her. When he needed to be readmitted to hospital in September 2006, Mrs O'Reilly was "enormously distressed ... in a state of panic". She says that she was "completely devastated when he had to go off to hospital again".
444She was alone with her husband when he died. As his death approached, in the few days during which Dr O'Reilly was in St Catherine's Hospice, Mrs O'Reilly records that:
"When I was sitting with him, I would keep having this sequence of thoughts of his being fit and healthy and then his collapsing and everything that happened since July at my then being with him whilst he was dying."
445There is no doubt that since the death of Dr O'Reilly, Mrs O'Reilly has encountered a number of events which have caused significant difficulty to her and which have exacerbated her psychiatric state, including the unexpected death of her son, Shane, and as well, her need to return to Australia to be near her family for support with looking after Shane, which did not ensure a smooth relationship with her other two children, Laura and Jordan. As well, she has been troubled by her financial circumstances.
446In assessing the nature and extend of the psychiatric injury suffered by Mrs O'Reilly, it will be necessary to keep carefully in mind, these other factors which were not directly caused by the defendants' negligence, but which may nevertheless have been foreseeable as aggravating the consequences of their negligence, namely Mrs O'Reilly's psychiatric condition.
447In light of comments made by Dr Lee, the psychiatrist retained by the defendants, it is convenient for me to here record, that having seen Mrs O'Reilly give evidence about this subject matter, and having thereby gained some insight into the effect which it had upon her, I accept all of her evidence on this issue. Specifically, I reject the proposition that she was in any way malingering, seeking to exaggerate the stress which she felt and which she was under, or in any way seeking to maximise the true effect of the events surrounding her husband's death upon her.
448The defendants resist the claim for nervous shock brought by Mrs O'Reilly. Whilst they accept that it is open to the Court to find that she has suffered, and continues to suffer from, psychiatric injury, they deny that they are liable to compensate her in respect of that injury. They deny owing her a duty of care. They deny that the relevant event for the purpose of determining whether a duty of care was owed is the collapse of the late Dr O'Reilly at home in July 2006, and they plead that in any event this claim is statute barred because it was brought more than three years after the cause of action accrued and hence the limitation period had expired.
449It is convenient to address the limitation question first. The limitation period, and the consequences of it, are fixed by the Limitation Act 1980 (UK). The parties agreed that this was the applicable legislation.
450Section 11 of that Act makes provision for the limitation period, and the time within which proceedings are to be commenced with respect to actions for damages for negligence where such claims include damages in respect of personal injury to a plaintiff or any other person. This action by Mrs O'Reilly for her personal injuries by way of psychiatric harm falls within that section.
451Relevantly, the terms of s 11 are as follows:
"11. Special time limit for actions in respect of personal injuries
...
(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the period applicable is three years from -
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(5) ..."
452The defendant submits that whether by reference to the date upon which Dr O'Reilly collapsed at home, namely 26 July 2006, or else by reference to the date of his death, namely 2 November 2006, the three year period allowed would have expired either on 27 July 2009 or else 3 November 2009. They submit that since the proceedings for damages for nervous shock were first commenced on 7 June 2011, the limitation period had by that time expired, and the claim was statute barred.
453The provisions of s 14 of the Limitation Act (UK) are relevant with respect to the definition of the date of knowledge, a phrase used in s 11. Section 14 is in the following form:
"14. Definition of date of knowledge for purposes of sections 11 and 12
(1) Subject to subsection (1A) below, and sections 11 and 12 of this Act, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -
that the injury in question was significant; and
that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
the identity of the defendant; and
if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant."
(1A) ...
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire -
from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
454It might be expected that if the time was to date from either of the events to which earlier reference has been made, then the defendants' submission about the expiry of the limitation period calculated by reference to s 11(4)(a) of the Limitation Act, prior to the commencement of the action for nervous shock on 7 June 2011, is unarguably correct.
455The question then arises as to the date of knowledge of Mrs O'Reilly, in accordance with s11(4)(b) of the Limitation Act, as the person injured, with respect to how that is to be assessed pursuant to s 14 of the Limitation Act (UK).
456It was in issue between the plaintiff and defendants as to who bore the onus of proof of the limitation defence and hence proof of whether Mrs O'Reilly's date of knowledge was later than 7 June 2008, which was three years before the proceedings were commenced.
457The limitation defence was pleaded by the defendants in their Defence. The Limitation Act imposes a bar to proceedings rather than extinguishing the cause of action. The relevant operative words in s 11(3) are:
"An action ... shall not be brought after the expiration of the period ..."
In those circumstances, it is thus necessary for a defendant to plead the expiration of the limitation period. The terms of the statute do not extinguish the right of action which a person has.
458Not only do I derive that from the terms of s 11, but such an interpretation is consistent with the provisions of s 33 of the Limitation Act (UK). This section provides for a discretionary exclusion of the relevant time limit in actions for personal injury.
459It says:
"33. Discretionary exclusion of time limit for actions in respect of personal injuries or death.
(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
(a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."
460The section goes on to identify matters to which the Court is obliged to have regard in considering whether to exercise its discretionary power. It is convenient to note here that the plaintiff did not make any application to the Court, pursuant to s 33, to direct that the limitation period should not apply to her nervous shock action. Accordingly, no occasion arises for the consideration of the section in a substantive sense, that is to say, whether the pre-conditions for the exercise of the Court's discretion have been established and whether in the exercise of its discretion, the Court would grant any relief. Nevertheless, its provisions assist in understanding the scheme of the Limitation Act as it applies to personal injury actions.
461If the true effect of s 11 was to extinguish a cause of action by reason of the effluxion of time, then there would be no basis upon which the Court could act under s 33 to resurrect that cause of action. Rather, the words used in s 33 reflect the fact that a court may disallow reliance on a time bar if "...it would be equitable to allow an action to proceed". In those circumstances, I am satisfied that the true effect of s 11 of the Limitation Act is to provide a bar. The bar to an action needs to be specifically pleaded and relied upon by a defendant who wishes to argue it, and it may be waived by the conduct of a defendant.
462As I have earlier mentioned, that is what the defendants did in this case. I should also record that this judgment deals with a single consolidated Further Amended Statement of Claim which incorporates all of the causes of action. However, that consolidation came about by reason of orders made by the Common Law Registrar in the course of case management. It was made plain at that time that the relevant date for the commencement of the nervous shock proceedings remained the date when that claim was first commenced. The consolidation was not intended to, nor did it, subsume this cause of action into the compensation to relatives cause of action which had been commenced in 2009, thereby allowing the plaintiff to rely on the earlier date of commencement which was within time.
463The plaintiff submitted that in order to substantiate the limitation defence, it was incumbent upon the defendants to establish either the date on which the cause of action accrued, or else the date of knowledge of Mrs O'Reilly, if that is a later date. The plaintiff reasoned that, as the defendants pleaded the limitation period as a defence, then they bore the onus of proving the facts necessary to establish it.
464The cause of action accrued when Mrs O'Reilly suffered nervous shock. On the case mounted by the plaintiff, this was in July 2006 when Dr O'Reilly collapsed. To that extent, the plaintiff accepted that the defendants had demonstrated when the cause of action accrued (i.e. the existence of a duty, the fact of a breach of that duty, and the happening of damage). But, so the plaintiff submitted, the defendants needed to do more to successfully rely upon the expiration of the time limit fixed by s 11. They needed to prove that the date of knowledge of Mrs O'Reilly had been acquired at a time prior to 7 June 2008, which was the date three years prior to when the nervous shock proceedings were commenced.
465The defendants submitted that they bore no onus of proof and that the onus of proof fell onto the plaintiff, and drew the Court's attention to a number of judgments, which they submitted the Court ought apply.
466In Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682, the House of Lords was dealing with the application of the concept of knowledge in the context of s 14A of the Limitation Act. The speech of Lord Nicholls of Birkenhead makes it plain that the observations which were made were equally applicable to the provisions of s 14 of the Limitation Act.
467Although each of the members of the House of Lords made separate speeches, they were all agreed as to the applicable principles. It will be sufficient for my purposes to set out how Lord Nicholls dealt with them. He said:
"8. Two aspects of these "knowledge" provisions are comparatively straightforward. They concern the degree of certainty required before knowledge can be said to exist, and the degree of detail required before a person can be said to have knowledge of a particular matter. On both these questions courts have had no difficulty in adopting interpretations which give effect to the underlying statutory purpose.
9. Thus, as to the degree of certainty required, Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence: "Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice." In other words, the claimant must know enough for it to be reasonable to begin to investigate further.
10. Questions about the degree of detail required have mostly arisen in the context of the need for a claimant to know "the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence": section 14A(8)(a). Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. ... In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117-118, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates "in general terms" that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren, Purchas LJ said that what was required was knowledge of the "essence" of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. ... To the same effect Hoffmann LJ said section 14(1)(b) requires that "one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based": Broadley v Guy Clapham & Co [1994] 4 All ER 439, 448.
11. A similar approach is applicable to the expression "attributable" in section 14A(8)(a). The statutory provisions do not require merely knowledge of the acts or omissions alleged to constitute negligence. They require knowledge that the damage was "attributable" in whole or in part to those acts or omissions. Consistently with the underlying statutory purpose, "attributable" has been interpreted by the courts to mean a real possibility, and not a fanciful one, a possible cause of the damage as opposed to a probable one: see Nash v Eli Lilly & Co [1993] 1 WLR 782, 797-798. Thus, paraphrasing, time does not begin to run against a claimant until he knows there is a real possibility his damage was caused by the act or omission in question."
468Against this identification of the applicable principles and what is required to be proved to enable application of ss 11(4)(b), and 14(1), it is next appropriate to consider which party bears the onus of proving these matters on the facts of this case.
469In 1995, Mance J (as his Lordship then was), in a claim brought over ten years after the limitation period would ordinarily have expired, held that it was not for the defendants to prove that the plaintiff had the required knowledge more than three years before the commencement of the action. He held that the onus of proof was on the plaintiff: see Crocker v British Coal Corporation (1995) 29 BMLR 159.
470The Supreme Court of the United Kingdom considered this issue recently in AB & Ors v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78. These appeals dealt with nine of a large number of claims which had been commenced in the period between 2004 and 2008, by former servicemen who claimed injury, disability, or death allegedly sustained by them as a consequence of being exposed to radiation during, and in the aftermath of, experimental explosions of nuclear devices between 1952 and 1958 in Australia and the South Pacific. The Court was divided on the ultimate question of whether the appeals ought to be allowed.
471However, three of the justices specifically addressed the issue of which party bore the onus of proof in respect to the expiration of the limitation period. There was no disagreement on this issue. Lord Wilson at [4] referred, with approval, to the decision of Lord Mance in Haward where at [106] Lord Mance said that the onus fell onto a claimant to " ...plead and prove that he first had the knowledge required for bringing his action within a period of three years prior to its bringing."
472In AB, Lord Mance adhered to his earlier view, and at [84] said:
"It is of course for a claimant to put his case as he thinks fit. No one is bound to commence proceedings, ... . But, if a claimant elects to issue and is pursuing proceedings, he must identify the case made and stand by it. Among the allegations which must, either explicitly or implicitly, be made, is that the case is not time-barred. Once an issue of knowledge is identified as arising under sections 11(4)(b) and 14(1), the onus lies upon the claimant to make good his case on knowledge, ... . A claimant bringing proceedings necessarily asserts that he or she has a properly arguable claim. ... Once proceedings are begun, it is by reference to the facts asserted as giving rise to the claim that the question of knowledge must be tested. The claimant cannot avoid this. Indeed, it is difficult in normal circumstances to think of a claimant trying to do so."
473The President, Lord Phillips of Worth Matravers, who dissented as to the result, said of the onus issue, at [144]:
"Where a personal injury action is commenced more than three years after the cause of action arose and the defendant raises a challenge on the ground that it is time-barred, the onus is on the claimant to prove that the action was started less than three years from the date on which he acquired knowledge, as defined by section 14: see the comprehensive analysis of burden of proof in the context of limitation of Mance J in Crocker v British Coal Corporation (1995) 29 BMLR 159, 169 -173."
474The law binding upon me has the result that, in this case, where, the defendants have pleaded that the limitation period has expired, it is for the plaintiff to satisfy the Court that the requisite date of knowledge, as that term is used in s 11(4)(b) of the Limitation Act, fell within a period of three years before she commenced her nervous shock action.
475Although Mrs O'Reilly gave evidence, both by written statement and orally in Court on a number of occasions, and on the latter of those occasions specifically with respect to her nervous shock claim, and in some detail, the question of her state of knowledge of the matters set out in s 14 of the Limitation Act, and when that state of knowledge was reached, was never specifically addressed.
476As the terms of s 14, which I have set out above, demonstrate, what needed to be established was when Mrs O'Reilly first had knowledge that her psychiatric injury was significant; that the injury was attributable in whole or in part to the act or omission which was alleged to constitute negligence or a breach of duty by the defendants, and the identities of the defendants. Or putting it differently, in the words of Lord Hoffman, having looked at how she put her case, and distilled what she was complaining about, whether she " ... had, in broad terms, knowledge of the facts on which that complaint is based."
477In one of her statements which became an exhibit (Ex P), Mrs O'Reilly gave some quite detailed evidence about how she felt and what she did after her husband's death. It is clear that it was a struggle for her to carry on her life, look after her son Shane, who required 24 hour care because of his disability, attempt to stabilise her and her family's financial affairs, provide support for other children and to look after herself. She was clearly suffering from a depressive condition during this time because, in 2007, she was prescribed anti-depressants after a visit to a general practitioner. It would be entirely understandable if during this period she had not turned her mind to the question of how her husband's death had come about.
478She returned to Australia in February 2008 in the hope of obtaining greater family support in caring for Shane. She continued to provide ongoing care for Shane until he died in July 2011. Throughout this period of time she was very busy in continuing his care. And as well, her evidence suggests that she continued to struggle with her own mental state.
479The earliest expert written report, which is referred to in the evidence, was obtained from Dr Terry Gavaghan, an expert based in the Australian Capital Territory, and is dated 1 July 2010. Dr Gavaghan said in evidence that he was in England in 2007 when either by Mrs O'Reilly or perhaps one of her siblings, he was first presented with several hundred pages of medical notes and asked to provide some advice to Mrs O'Reilly as to what could be made from the documents, and seemingly, how Dr O'Reilly had come, completely unexpectedly, to die.
480It was also clear from Dr Gavaghan's evidence that he was provided with further material through Mrs O'Reilly's lawyers from when he was first asked for help in 2007 through to the time of his first report, and then ultimately, the time of giving evidence.
481He was not asked, and gave no evidence, about when he provided any advice, either oral or in writing, to Mrs O'Reilly as to what had happened, in his view, prior to his written report dated 1 July 2010.
482Of course, it is entirely possible given the informal and familiar nature upon which he was earlier asked in 2007 to provide advice, that he could have given advice informally. However, there was no exploration of that fact with him in his evidence. The provision of such advice in 2007 by Dr Gavaghan to Mrs O'Reilly, particularly if it had been only in tentative terms, would, if it had been given, have been one way to have established a date of knowledge within the meaning of that phrase in the Limitation Act (UK). No attempt was undertaken to do so with Dr Gavaghan.
483The evidence established that prior to February 2008, when Mrs O'Reilly returned to live in Australia, that she had consulted a firm of lawyers in London, Kingsley Napley who were very experienced in personal injury claims, including medical negligence claims. Mrs O'Reilly when being cross-examined gave this answer:
" ... I actually commenced legal action one month after David's death. I went to see a firm of solicitors in London called Kingsley Napley. I first went to see them in December 2007."
She added to that description of her attendance by a statement of her purpose in consulting those lawyers. She said:
"So one of the outcomes I was hoping for in taking legal action would be compensation for lost earnings so I could pay for the care that David otherwise would have provided to Shane if David hadn't died."
484The apparent inconsistency in the date stated as December 2007 rather than December 2006 which would be one month after Dr O'Reilly died, was not further explored in either cross-examination or re-examination. The likelihood is that Mrs O'Reilly meant December 2006, and mistakenly said December 2007. I am of his view because of Mrs O'Reilly's statement about the proximity of the consultation to Dr O'Reilly's death, and the necessitous financial circumstances in which she found herself after his death and the financial outcome.
485Somewhat confusingly, during later evidence, Mrs O'Reilly described her consultation with Kingsley Napley, as seeing them "... in a preliminary way. They were doing the preliminary work on the medical investigation". However, this evidence was given on a voir dire which was being conducted to determine an application for leave to rely upon a statement of Mrs O'Reilly which was served late. No party tendered this voir dire evidence on the trial, and accordingly, it must be ignored.
486Whether there was one or more than one consultation between Mrs O'Reilly and her UK lawyers has not been made explicit. The task which those lawyers were briefed to undertake was not clearly identified. When dealing with her nervous shock claim, Mrs O'Reilly said of Kingsley Napley, that "we never went into this - I never went into this aspect of it - before I returned to Australia". However, that statement which I am prepared to accept, does not of itself and without more mean that Mrs O'Reilly's consultation, or consultations with the firm did not provide her with sufficient material to demonstrate that her state of knowledge was sufficient to start time running. After all, it had always been clear to Mrs O'Reilly from 2006 that she had been completely shocked by the sight of her husband collapsing in front of her at home, and that she had been profoundly affected by his death later that year. Her knowledge in July 2006 was relevantly deficient because she did not know at that time whether her injury was significant, and how her injury could be attributed to any act or omission on the part of the defendants.
487In drawing attention to the briefing of lawyers, and consultations with them as forming part of the factual matrix relevant to the date of knowledge of Mrs O'Reilly, I do not ignore what Judge LJ said in Sniezek v Bundy (Letchworth) Ltd [2000] EWCA Civ 212, [2000] PIQR P213 that it does not automatically follow that the first date upon which a claimant took legal advice, necessarily equates with the claimant's date of knowledge, although such an inference may be justified in one case or another. See also Lord Wilson in AB at [5].
488Mr Finlay, the consultant colorectal surgeon retained to give evidence in support of Mrs O'Reilly's case, was first retained by a letter of instruction dated 15 January 2009, sent to him by a solicitor at Kingsley Napley. His report was dated March 2009. Of all the UK expert reports tendered in Court, this seems to be the earliest. Mr Finlay's report also lists the documents with which he was provided for the purpose of his report. There is nothing in the description of those documents which, by reference to the date of their creation, enables a finding to be made as to when they came into existence, nor when any of the documents, or their contents, would have come to Mrs O'Reilly's attention.
489The evidence which was adduced, which I have reviewed above, does not permit me to conclude, without more, that the date of knowledge of Mrs O'Reilly was within the three year period before the commencement of proceedings for nervous shock. In circumstances where the onus of proof of the relevant date of knowledge falls upon plaintiff, I am not prepared to supplement that evidence by drawing any inference, assuming one was available, which remedies such an evidentiary deficiency. In this respect, I follow and apply the principle identified by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-F, and, with respect, adopt his reasoning. His Honour said:
"In my opinion the Court should not draw inferences favourable to the insured on these matters when no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of [a relevant witness]. Rather it seems appropriate to apply the principles of Jones v Dunkel (1959) 101 CLR 298.
There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing Marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions."
490In all of those circumstances, I cannot be, and I am not, satisfied that the plaintiff's date of knowledge was relevantly after 7 June 2008 being a date within a period of three years prior to the commencement of the nervous shock proceedings. I am therefore satisfied that Mrs O'Reilly's claim for damages for nervous shock is statute barred, and the defendants, for that reason alone, are entitled to judgment with respect to it.
491In case I am in error on this issue, it is appropriate for me to consider the remaining disputed issues about whether, leaving aside the statutory bar, Mrs O'Reilly would otherwise have succeeded on her claim.
492The issue to which I next turn is one which can conveniently be termed the proximity issue. In order for there to be a duty of care in a claim for nervous shock by a secondary victim, a term which can conveniently be used to describe Mrs O'Reilly's position, there needs to be proximity between the event which led to her shock and the negligence of the defendants. In secondary victim cases, the term "proximity" is used " ... to mean physical proximity in time and space to an event": Novo at [27] per Lord Dyson MR.
493The defendants draw attention to the considerable period of time which elapsed between the tortious conduct of the defendants in 2003 and the collapse of Dr O'Reilly and also his death, both of which occurred in 2006.
494The defendants commence their analysis of the law relevant to this issue by drawing attention to the approach of the common law in nervous shock cases where the claimant is a secondary victim. They first cite the decision of the Court of Appeal of England and Wales in Sion v Hampstead Authority (1994) 5 Med LR 170, where Staughton LJ said, with respect to claims by secondary victims:
"It is I think recognised almost universally that the common law ought to impose some limit on the circumstances in which a person can recover damages for the negligence of another."
495The defendants next draw attention to the decision of the Court of Appeal in Taylor v Somerset Health Authority (1993) 4 Med LR 34. In that case, staff employed by the defendant hospital had negligently failed to diagnose and treat the plaintiff's husband's serious heart disease. The plaintiff claimed that she suffered nervous shock as a consequence of arriving at the hospital after learning that her husband had suffered a heart attack, some months later, at work and that he had died. The primary judge held that the death was the final consequence of negligence by the defendants many months earlier. The primary judge held, and was upheld in the Court of Appeal, that there was not sufficient proximity or propinquity between the defendants' negligence and the occurrence of the shock upon which the claim was based.
496A similar result was reached in Novo where the period between the negligence of the defendants which caused the claimant's mother to be injured, and the mother's collapse at home in the presence of the claimant, as a consequence of which she suffered the nervous shock, was about three weeks.
497Accordingly, the defendants submit that the claim which the plaintiff brings involves an extension to, or an expansion of, the ambit of liability in respect of claims for nervous shock by secondary victims contrary to the control mechanisms propounded first by Lord Oliver in Alcock. As is apparent from Alcock and subsequent authorities these control mechanisms cannot be justified by principle, but are essentially the consequence of judicial policy making, which are nevertheless well entrenched.
498The plaintiff submits that Novo, and all that it encompasses, is readily distinguishable upon the facts from the present case. The plaintiff submits that the relevant event here, which was directly caused by the negligence of the defendants, was the collapse at home of Dr O'Reilly and that the necessary degree of proximity or propinquity existed between Mrs O'Reilly and the event caused by the breach of duty of the defendants to Dr O'Reilly.
499There is no doubt that Mrs O'Reilly was present and saw Dr O'Reilly collapse. There is little doubt that on her evidence the event was sudden, it was entirely unexpected from her perspective, and that she reacted in a way consistent with what is required to establish nervous shock.
500The plaintiff submits that what followed thereafter, namely, her psychological and psychiatric reaction to the events which followed, including the death of Dr O'Reilly, were reasonably foreseeable consequences of the psychiatric injury which she suffered, which was itself the consequence of the negligence of the defendants.
501The plaintiff goes on to submit that the earlier failure of the defendants to diagnose, and appropriately treat, Dr O'Reilly's tumour:
"... merely created the conditions for the occurrence of [the collapse] just as a failure properly to construct a building at a much earlier point in time, leading to its collapse at a much later time and the death of its occupants, creates the conditions for the happening of that later event."
502The plaintiff submits that there is no principled distinction to be drawn between the case at hand and the example given.
503The plaintiff in particular draws attention to the remarks of Peter Gibson LJ in Sion which, she submits, although obiter dictum, are highly persuasive, correct in principle and which I ought to follow. Peter Gibson LJ said:
"I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system."
504The difficulty with this submission is that the obiter remarks of Peter Gibson LJ have not commanded broad assent as guiding principles in the UK. To accept the plaintiff's submissions would be to extend one of the control mechanisms determined to be applicable by Alcock beyond " ... what the ordinary person would be regard as reasonable.": Novo at [30] per Lord Dyson MR.
505Accordingly, Mrs O'Reilly has not established that she would have succeeded in her claim for nervous shock, even if it was not statute barred.
506It is appropriate to note that the result in this respect would in all probability have been different if the tort had arisen in Australia and I was applying Australian law, but I am not. The result which I have reached is that determined by the application of UK law although the proceedings are being heard in this Court.
507The defendants also submitted, in response to Mrs O'Reilly's nervous shock claim, that such was the disconformity between her pleadings which articulated a claim for nervous shock based upon her reaction to the death of her husband, and her final submissions which articulated a cause of action based upon her nervous shock arising upon seeing her husband collapse in June 2006 which was some months before he died, that the Court would not entertain the claim based upon the latter formulation of it, but would hold Mrs O'Reilly to the originally pleaded basis of the cause of action.
508I am not prepared to accept this submission thereby precluding Mrs O'Reilly from mounting her nervous shock claim based upon the collapse of her husband at home. I agree that the pleading upon which Mrs O'Reilly relies does articulate her nervous shock action on the basis of her husband's death. But this was a case, in so far as Mrs O'Reilly's nervous shock was concerned, which was conducted by the parties without regard to that specific form of pleading.
509I allowed a statement of Mrs O'Reilly to be tendered which comprehensively described her nervous shock as being related to the collapse of her husband. That statement was provided to the psychiatrist retained by the defendants. After it was provided, the psychiatrist re-examined Mrs O'Reilly, and prepared a report based on that re-examination and the history contained in the written statement. Mrs O'Reilly was cross-examined after the statement was tendered.
510Having regard to the way in which her nervous shock claim was allowed to proceed, the interests of the defendants in ensuring that they could meet and deal forensically with that case were well catered for. There is simply no merit in this submission. I reject it.
511I have considered whether, lest I be wrong in my analysis of the issues above, it is nevertheless appropriate for me to assess the damages which I would otherwise have awarded to Mrs O'Reilly for her nervous shock claim. The award of damages was not without its complexities.
512The two expert psychiatrists who had examined Mrs O'Reilly were not of one opinion. The essence of their difference was not so much as to whether Mrs O'Reilly was presently suffering from a recognised psychiatric injury, namely, post-traumatic stress disorder, but rather its aetiology, and the causes of her present condition and the manifestations of it.
513I have concluded that I should deal with an assessment of her damages, but with only brief reasons.
514Dr Thomas Oldtree Clark examined Mrs O'Reilly in August 2013. He concluded in his report that Mrs O'Reilly had a major depressive disorder. He also concluded that she had initially suffered from an acute bereavement reaction which had continued over the years to become a pathological bereavement reaction. He noted that both the major depressive disorder and the pathological bereavement reaction could be a response to trauma.
515In his oral evidence, Dr Clark made it clear that he thought that Mrs O'Reilly had suffered from post-traumatic stress disorder as a consequence of observing the collapse of her husband, and also his death. He said that from a clinical point of view, her major depressive disorder derived from that initial psychiatric state.
516The thrust of the cross-examination of Dr Clark was that his diagnosis which attributed Mrs O'Reilly's psychiatric condition to the collapse of Dr O'Reilly, did not make any, let alone any adequate, allowance for the fact that Mrs O'Reilly's condition when Dr Clark saw her in 2013, had been either caused or at least contributed to, by a number of other stressors which were not tortiously caused by the defendants. These stressors included the facts, matters and circumstances surrounding the death in 2011 of her son, Shane; the facts, matters and circumstances surrounding the stress and strain which fell upon Mrs O'Reilly because after her husband's death she became the principal carer for Shane - which was both emotionally and physically exhausting work and her inability to obtain full-time employment after Shane's death in 2011. In addition, it was suggested that Mrs O'Reilly may have had a genetic predisposition to depression.
517Finally, it was suggested that a major stressor which was causing or else contributing to her condition was her difficult financial state.
518Putting it briefly, Dr Clark accepted that the stressors to which reference has just been made were generally present to some degree and may have contributed to the clinical condition which he observed in 2013. However, Dr Clark attributed the effects of those stressors to the original incident because, in his mind, they all derived from that incident.
519Of interest in re-examination, Dr Clark attributed the trauma, and the effects of it, to the death of Mrs O'Reilly's husband. He said:
"The trauma in this context was the death of her husband. It can be interpreted as either part of the pathological bereavement reaction or could be interpreted as part of a beginning of a major depressive disorder. Or it can be interpreted as post-traumatic stress disorder. So it is acute and chronic in both categories but I chose bereavement seeing as it seems obvious, I chose her present clinical condition as being the most important."
520Dr Leonard Howard Lee provided a number of reports in the proceedings to the defendants and also gave evidence. For the purpose of giving evidence, Dr Lee consulted with Mrs O'Reilly on 14 November 2013. He gave evidence the following day. His report of that day records his opinion that Mrs O'Reilly is:
"... currently reporting symptoms sufficient to meet DSM-5 criteria for post-traumatic stress disorder ('PTSD')."
521However, for reasons which he expressed, Dr Lee did not accept that Mrs O'Reilly's overall situation was consistent with PTSD. Rather, he opined it was consistent with grief reaction. He formed this view because the results of psychometric tests provided to him indicated that there was a likelihood of exaggeration by Mrs O'Reilly. He said that her presentation was inconsistent with PTSD and that she had not reported intrusive memories or flashbacks until recently. He also noted that Mrs O'Reilly's records indicated pre-existing psychological disturbance and/or vulnerability:
"... which she does not acknowledge, and difficulties coping with Shane and I understand there is financial incentive for the intentional production of nervous shock symptoms".
522Dr Lee's principal reason, so it seemed to me, for discounting the psychiatric injuries claimed by Mrs O'Reilly, was that he simply did not find her complaints credible. The other matters to which he referred by way of historic material do not advance this question.
523Mrs O'Reilly was clearly psychologically vulnerable before the events of 2006. Her evidence, which as I have said, I accept, demonstrates that she suffered a profound shock when seeing her husband collapse in front of her. The subsequent assaults to her psychiatric well-being, namely when her husband died, her having to emotionally and physically manage as the primary carer for Shane, the difficulties of stabilising the financial circumstances of her family including obtaining employment in Australia, and her general bereavement and loss at her husband's death, are all foreseeable consequences of the original event giving rise to her nervous shock and post-traumatic stress disorder.
524To the extent that the stressor involved in finding her son Shane dead, and coping and managing with that, added to her psychological well-being, it was an inter-current illness.
525The evidentiary burden falls on the defendants to separate out the effects of such inter-current illness if the Court is not to award damages in respect of them. The defendant did not do so. In accordance with the principles discussed in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 as further elaborated on in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the defendants must bear the consequences of that. The principles in this respect in Watts were cited with approval by Potter LJ (with whom Henry and Wall LJJ agreed) in Standard Chartered Bank v Pakistan National Shipping Corporation [2001] EWCA Civ 55; [2001] 1 All ER 822.
526I am satisfied that Mrs O'Reilly is significantly psychiatrically disabled as a consequence of post-traumatic stress disorder, and a major depressive disorder. She is entitled to be compensated by way of general damages for that and her lost income.
527I would assess her damages as follows:
- General Damages: £75,000 (AUS $ 143,750)
- Past Out of Pocket Expenses: $2,500
- Past Economic Loss: $161,040
- Future Out of Pocket Expenses: $5,000
- Future Economic Loss: $125,000
528Mrs O'Reilly would be entitled to interest with respect to some of these sums, and if a judgment was to be entered in her favour, this would need to be calculated.