Scala v Mammolitti

The plea alleges that the husband sued the defendant for damages for the injury sustained by him and that judgment was given against him. It concludes with some irrelevant words which ought to have been struck out, but the parties agree that they may be ignored.

The plea is not a plea of estoppel by judgment, for it does not allege a judgment in proceedings between the parties to this action. The effect of what it alleges is that the defendant is not liable to the husband for the injury done to him. The plea is evidently intended to reflect two contentions. The first is that the declaration must be taken to allege a cause of action under s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W., which is in these terms: "The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by - (a) a parent or the husband or wife of the person so killed, injured or put in peril; or (b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."

The second contention is that on the true construction of that sub-section a cause of action is given only where the act, neglect or default gave rise to a liability on the part of the defendant apart from the sub-section.

The plaintiff agrees that the first contention is correct. If the second is correct also, one of two consequences must follow. Either the declaration alleges enough to show that the injury done to the husband gave rise to a liability on the part of the defendant, in which case the plea is intended as an argumentative traverse of the implied allegation to that effect; or the declaration does not allege enough to imply that allegation, in which case it should have been demurred to. The plea is in any case open to objection as pleading evidence instead of the constituent facts of the intended defence. Moreover, the evidence that is alleged would fail to establish the intended defence, because all that would be established as against the plaintiff by proof of the judgment that was given in the husband's action against the defendant is that since the date of the judgment it has not been and is not now possible for the husband to set up a liability of the defendant to him in respect of the injury to him upon which the plaintiff here relies. Proof of the judgment would not establish as against the plaintiff here that the injury to the husband did not, when it occurred, give rise to a liability in the defendant, for it creates no estoppel as against the present plaintiff. Consequently the plea is bad, even if s. 4 (1) should be construed in the manner for which the defendant contends.

But it is bad, in my opinion, for the further reason that the construction of s. 4 (1) upon which it depends is wrong. It places upon the expression "The liability" a concrete signification which in my opinion it does not bear in this context. The sub-section, as I read it, does not address itself to the concrete case and postulate a liability existing in fact. It lays down a general rule of liability as an addition to existing rules of liability, implying, of course, that the act, neglect or default was wrongful because in breach of a duty that was owed to the person killed, injured or put in peril, whether the duty arose from "neighbourhood", from contract, or from statute. If the expression "The liability" referred only to an existing liability, the provision that "The liability of any person shall extend to include liability" to persons other than those in whose favour liability would exist apart from this enactment would be absurdly inept, to say the least. But it has a clear and sensible meaning if it refers to the liability of a person in a general sense - his amenability to claims, or (to describe it from the opposite point of view) the range of the claims to the possibility of which the general principles of the law expose him - in respect of injury caused by conduct of the specified character. His amenability to claims in respect of such an injury is rightly said to be extended, when a new ground is added to the grounds already existing upon which damages may be recovered against him in respect of injury caused by the wrongful act, neglect or omission so that the category of persons who may be entitled to recover such damages is enlarged.

Accordingly I agree in the view of s. 4 (1) which Owen J. took when he said in Smee v. Tibbetts [1] , that the sub-section alters the common law to the extent only of giving to the persons it mentions a right to sue the person who has caused them injury arising from mental or nervous shock, whenever he had done so by a breach of duty owed to the person killed, injured or put in peril.

In my opinion the demurrer was rightly upheld and the appeal should be dismissed.

In an action instituted by the respondent's husband for damages for personal injuries alleged to have been caused by the negligence of the defendant a verdict was returned for the defendant. Thereafter the respondent sued pursuant to s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 for damages for nervous and mental shock which she was said to have suffered as the result of the same incident. The question is whether the verdict in the first action is a complete answer to the second. The answer to this question depends upon the meaning to be given to the provisions of s. 4 (1) which is in the following terms: "4 (1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by - (a) a parent or the husband or wife of the person so killed, injured or put in peril; or (b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."

It was contended that the liability for nervous and mental shock with which the section purports to create is dependent upon the existence of a liability to the initial victim so that if, in the present case, there be no liability to the husband there is, likewise no liability to the wife. It was, it was asserted, merely the liability of a tortfeasor with respect to the husband that was so extended and, consequently, liability to him was a condition precedent to liability to his wife. I confess I do not quite understand this contention. Quite obviously the section creates a liability to pay damages to a wife in some cases where there is no liability to her husband. Such would be the case where the husband is "put in peril" by the carelessness of a third party and, though he suffers no injury, his wife suffers nervous and mental shock.

However it is of importance in the case to consider the state of the law on this subject-matter immediately before the enactment of s. 4 (1). After a number of vicissitudes the liability of a person for injury by nervous and mental shock came to be governed by the same principle as liability for other injuries. There was no liability for nervous and mental shock unless it was caused by breach of a duty to take reasonable care. But such a duty was owed to every person who, it could reasonably be foreseen, was likely, as a result of a careless act, to suffer injury of the character in question. It has been suggested that the duty to take care extended over a somewhat wider field but that damages could be recovered only if they were reasonably foreseeable (see King v. Phillips [1] ). But this is of little consequence in the discussion of the present problem for it is enough that liability for damages for nervous and mental shock arose out of the breach of an independent duty owed to the person suffering such injury; it was in no way dependent upon the rights of any other person.

We are able to assert, therefore, that prior to the enactment of s. 4 (1) the liability of any person in respect of injury caused by a negligent act, by which any person was killed or injured included (i) a liability to pay damages to, or to the representatives of, the person injured or killed, and (ii) a liability to pay damages for nervous or mental shock sustained by any other person to whom a duty of care was owed. What then does s. 4 (1) accomplish? Clearly enough, it merely operates to extend the field in which persons standing in a special relationship to a person killed, injured or put in peril may recover for nervous or mental shock, and, in the case of a husband or wife, makes it unnecessary to show that an injury to the plaintiff of this kind could reasonably have been foreseen. But in no way does it make the right to recover damages for nervous or mental shock dependent upon proof of a liability to compensate the initial victim. Before the section a wife might recover damages for nervous or mental shock where her husband had been injured by the negligence of a third person, but only if it could reasonably have been foreseen by the wrongdoer that injury of that character was likely to ensue. Her action was for the breach of an independent duty owed to her and the failure of her husband to recover was not fatal to her claim. All that the section does is to make it no longer necessary to prove that damage to her of that character was reasonably foreseeable. The section may, perhaps, be said to proceed on the basis that injury by nervous or mental shock to a parent, husband or wife is not an unlikely consequence where a child, wife or husband has been killed, injured or put in peril. But it otherwise leaves the earlier law untouched.

In the course of these observations I have not touched on par. (b) of s. 4 (1) which deals with liability to other members of the family of the person so killed, injured or put in peril. But the same notion is apparent. It operates to substitute for the test of forseeability a concrete test - Was the initial victim killed, injured or put in peril within the sight or hearing of such member of the family? But it does not otherwise affect the cause of action of any such member of the family.

The respondent's husband, Salvatore Mammolitti, having been injured in a road accident, sued the appellant for damages for negligence in the driving of the car concerned in the collision. The defendant pleaded not guilty and, after trial, there was a verdict for the defendant followed by judgment in his favour. The respondent then sued the appellant for damages, alleging against him that he had, by negligence, seriously injured her husband whereby she had suffered nervous and mental shock. Her action is based upon s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W., which, so far as relevant, is as follows: "The liability of any person in respect of injury caused by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by - (a) wife of the person so killed, injured or put in peril". To the respondent's declaration, the appellant pleaded the verdict and judgment in the earlier action by the husband and alleged that the negligence now alleged against him was the same as the negligence alleged in the earlier action, and that the injury now alleged to have been suffered by Salvatore Mammolitti was the same as the injury alleged in his action. To this plea the respondent demurred, and the demurrer was upheld by the Full Court of the Supreme Court of New South Wales. Special leave to appeal to this Court was granted.

The question is therefore whether, the husband having failed in his action against the appellant alleging injury caused to him by the negligence of the appellant, the wife can succeed in an action in which it is necessary for her to establish that her husband was injured by the negligence of the appellant.

Notwithstanding that s. 4 provides that "the liability" of the negligent person "shall extend to include" liability for mental or nervous shock sustained by a third person within the category there described, it is clear that the section does create a new cause of action in favour of the third person against the person alleged to have been negligent. In a strict sense, liability to one person cannot extend to include liability to another person. Furthermore, although the section is far from clear, it seems that the third person can maintain an action without establishing that the defendant is under a liability to the person "killed, injured or put in peril". The simplest instance of such a case where the third person may maintain an action is where some pre-existing liability to the person injured has been satisfied by the time the third person brings an action. It does seem, however, that the section requires that the third person should establish an act, neglect or default which was, when it occurred, wrongful in the sense that it was in breach of a duty owed to the person "killed, injured or put in peril": Anderson v. Liddy [1] ; Smee v. Tibbetts [2] and Ball v. Winslett [3] . Such a construction does give meaning to the words of the section that "the liability shall extend " to the third person, although there may be some difficulty in applying the section as so construed to a case where the person primarily concerned was merely "put in peril". My own disposition in such a case would be to treat the section as applicable when a person was put in peril by an act which, for instance, was in breach of a duty of care.

1. (1949) 49 S.R. (N.S.W.) 320; 66 W.N. 167. 2. (1953) 53 S.R. (N.S.W.) 391; 70 W.N. 261. 3. [1958] S.R. (N.S.W.) 149; 75 W.N. 65.

Had I thought the section required that a plaintiff such as the respondent here must establish that the person injured could maintain an action and recover damages from the defendant, I would have been disposed to think that the respondent could, in the action, have disproved that liability by proving a judgment in his favour in the proceedings brought by that person to establish that very liability. The case would then have been like a Lord Campbell's Act claim by a dependant after the death of the person injured who, in his lifetime, had failed to recover damages for injuries sustained: see Noall v. Middleton [4] . If in such a case the question of liability were to be reopened in the second action, no different conclusion upon the matter could possibly be arrived at in such a way as to establish liability to a person injured. If in an action it is determined that the defendant is not liable to the plaintiff, that defendant cannot be made liable to that plaintiff even for the purposes of a second action between different parties merely by a decision in the second action that the defendant was negligent and his negligence caused injury to the earlier plaintiff. When, however, as here the question is merely whether the injury to the husband was caused by the negligence of the appellant, I do not consider that the issue can be disposed of by proof of the judgment in the earlier action.

The question of the proper mode of determining several claims for damages arising out of a particular breach of duty is one that has been the subject of some discussion in legal periodicals: for example, Marquette Law Review 41456 and 73 Law Quarterly Review 358.

Upon the construction of the statute which I have adopted, the appellant can, I think, succeed only if the respondent is in some way estopped by the earlier verdict and judgment. I agree with the judgment of the Full Court that she is not so estopped.

Accordingly, I think this appeal should be dismissed.

I agree that this appeal should be dismissed. I agree in what has been said by Taylor J. for that conclusion. The language of s. 4 (1) of the Act is not without difficulty. There seems to be an ellipsis. So far as it is necessary to construe it for the decision of this case I can summarize my view of its effect as follows. It assures to a member (as described) of the family of a person killed, injured or put in peril a right of action, against the person whose conduct caused such death, injury or peril, for injury arising from mental or nervous shock sustained by the member as a result of such death, injury or peril. It makes it unnecessary for such member of the family to establish, as the foundation of his or her action, that there was a foreseeable risk of harm to him or her; and it makes it impossible to say that such harm, if it results from the death, injury or peril, was too remote a consequence to sound in damages. It is, I consider, implicit that the act, neglect or default that caused death, injury or peril was in some sense wrongful. But that does not mean that, if a member of the family, who has suffered mental or nervous shock, brings an action, the defendant in that action can only be found liable to the plaintiff if he has been found to be liable or is liable in damages to the representatives of the person that he killed, or to the person whom he injured or put in peril. An action brought by the representatives, or by the injured man himself, might fail for a variety of reasons - such as release, satisfaction, the statute of limitations, contributory negligence - that would not mean that the conduct complained of was not wrongful. Or that action might fail simply because the plaintiff in it failed to prove his case. That apparently is what happened here. But that the husband did not prove his case does not mean that the wife is to be prevented from seeking to prove hers. The demurrer to the third plea was rightly upheld by the Supreme Court and the appeal should be dismissed.