Supreme Court of SA|1997-03-25|Before: Lander JJ

TRI MINH PHAM v TRACEY LAWSON No. SCGRG 96/704 Judgment No. 6086 Number of pages - 32 Torts - negligence - damages (1997) 68 SASR 124 [1997] SASC 6086 (25 March 1997)

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

Torts - negligence - essentials of action for negligence - where nervous shock or mental disorder - negligence - motor accident - negligence of the appellant caused the death of the respondent's 7 year old daughter and injury to her husband and 5 year old son - respondent suffered nervous shock due to daughter's death - not present at accident scene - awoken to be told by police of the tragedy - shock caused partly by being told of the accident and partly by what she saw on the way to and at the hospital - post traumatic stress disorder and depression. Whether a duty of care exists is a matter of common sense - court will have regard to the involvement of the person who suffered the nervous shock and whether they are sufficiently close in terms of relationship, involvement or perception - of the seven stressors operating upon the respondent in relation to the chain of events the first three were events of the kind which would qualify the plaintiff for a claim for nervous shock - discussion of leading authorities dealing with nervous shock. Wrongs Acts35A(1)(c) is not a code for the cause of action of nervous shock but limits its availability - plaintiff must fulfil common law requirements to recover damages.

Damages - measure and remoteness of damages in actions for tort - mental and nervous shock - assessment of damages - major stress disorder resolved but with legacy - bought new family home because of association of first home with deceased - allowance of part of relocation expenses by the learned trial judge upheld - plaintiff's condition ameliorated signigficantly by twins born about 1 year after accident - most unlikely to have had further children if daughter not killed - mitigation of loss - held damages allowed by learned trial judge for loss of earnings during infancy of twins appropriate

non-economic loss - distinction must be drawn between the compensable aspects of the reaction to the events and the non-compensable aspects such as grief and bereavement - award relating to non-economic loss reduced by 30 per cent. Wrongs Act 1936 s23A, 28, 35A, referred to. Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549; Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310; Petrie v Dowling [1992] 1 Qd R 284; Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383; McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410; Hinz v Berry [1970] 2 QB 40; Coates v GIO of New South WalesRCT (1995) 36 NSWLR 1; T v The State of South Australia (1992) 59 SASR 278; State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248; Hewitt v Bernhardt (1979) 21 SASR 510; Fox v Wood [1981] HCA 41; (1981) 148 CLR 438, applied. Victorian Railways Commissioners v Coultas (1888) 13 AC 222; Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1, discussed.

ADELAIDE, 6 September 1996 (hearing), 25 March 1997 (decision)

Allow the appeal only for the purpose of reducing the respondent's damages by $4,110.

This is an appeal by a defendant (appellant) to an action for damages for personal injuries brought by a female plaintiff (respondent).

Proceedings were brought by the respondent and her husband claiming damages for personal injuries which occurred on 3 December 1992. At trial judgment was entered by consent for the male plaintiff in the sum of $20,485, which sum included interest and costs and no issues remain between the male plaintiff and the appellant.

The issues are a little unusual so it would be as well for me to give some background before coming to the issues at trial and on appeal.

The respondent was born in the United Kingdom in 1961. She came to Australia in mid 1970. She married the male plaintiff when she was twenty one and he was twenty six. Whilst she had not previously been married, her husband had, but there were no children of his previous marriage.

Their daughter, Ashley was born on 19 April 1985 and a son Callum was born on 15 January 1988. The respondent and the male plaintiff agreed at that time that they would have no further children and as a result he underwent a vasectomy.

The respondent had not enjoyed a very close relationship with her own mother, and a daughter was something for which she had always yearned. The respondent described her relationship with Ashley as being 'very special'. She spent a lot of her time with Ashley sewing, knitting and communicating with the child. Ashley helped her to care for Callum after he was born and as he got older.

About two years after Callum was born, the respondent resumed work as a cleaner one night a week to earn a bit of extra money. That work increased slowly to about four or five nights a week. When Callum commenced kindergarten she took on day time work as a packer at a plant nursery.

When Ashley was about four months old the respondent and her husband bought a ten acre property at Two Wells, which they ran as a piggery, but it was unsuccessful. They then moved to another house until they built a house, at Gilks Road, Lewiston on two acres of land. It was envisaged that they would run horses on the property for Ashley. When they moved to the property they improved the garden by plantings and made provision for Ashley to have a horse yard and stables by leaving a vacant area for that purpose.

Ashley attended a baptist school, the Craigmore Christian School. The respondent and Ashley regularly attended church together.

The impression one gets from the evidence is that prior to 3 December 1992 the respondent and Ashley enjoyed a very close and loving relationship.

On 3 December 1992 the respondent, as normal, picked Ashley up from school and took Ashley and Callum to her husband, who in turn took the children to his parent's place whilst he did some repair work on a car at his parent's place.

The reason that the respondent left the children was that she wished to do some shopping, including shopping for Ashley for Christmas, with a friend. Ashley was upset at being excluded from the shopping and when she and the respondent parted she was tearful. That was the last time the respondent saw Ashley alive.

The respondent returned home at about 9:00 pm and received a telephone call from her husband at about 10:00 pm. He told her that he had just completed the work on the motor car and that he would be returning home with the children very shortly.

The respondent went to bed to watch television and dozed off. The next thing she heard was the telephone ringing. She got out of bed to answer the telephone and noticed it was 1:00 am. She answered the telephone and was told by her next door neighbour that the police were attempting to wake her. She hung up the phone, opened the door and found two policemen standing there. They came inside and told her there had been an accident on the Port Wakefield Road. The policeman said: "Your husband is fine". The respondent said: "What about Ashley". The policeman said: "Is that the little boy?" And the respondent said: "No, the little girl, what's wrong with the little girl?" The policeman said: "I am sorry, we've lost the little girl".

The respondent said that at that she started screaming and running around the house. She was not able to remember all of her behaviour or what she said or what was said, but she remembered being told by the policemen that they would take her to the hospital to see her husband and son. She remembered trying to find her clothes and even pinching herself and punching herself to wake herself, and she remembered dressing. She could not remember a lot after that but did remember driving away from the house and giving some instructions to her next door neighbour about the house.

She had been told that the accident had occurred on the Old Port Wakefield Road with which she was familiar. She said that as they headed towards the hospital and passed the Old Port Wakefield Road she made a positive effort to see if she could see anything and she saw that the whole sky was lit up and she knew that that was where her "baby had been killed". She described the lights which she had seen as yellow ones, blue hazes and all the colours. She could not make out vehicles but she could see lights and hear noise. She could hear engines and described the noise made as "a horrible droning noise of engines or whatever".

She was not able to say where they went after they passed the Port Wakefield Road but the next thing she remembered was being at the hospital. She could not actually remember walking into the hospital but remembered being in the hospital looking at David (her husband) who was on a stretcher bed with Callum beside him in a room by themselves.

Her husband was unconscious and kept waking up and drifting off to sleep. His hands and neck had blood on them but that did not concern her. She was relieved that he was alive. She remembered cuddling him and checking Callum. The next thing she remembered is that her mother was beside her, hysterical.

Her husband tried to go to the toilet but was unable to walk and staggered all over the place. She settled him in bed and sat on the chair at the end of his bed just crying all night. She could not sleep but just sat there crying. When the morning came Callum woke up without showing any evidence of any harm at all and was "as bright as a button".

She reacted to that badly. She described in her evidence her reaction this way: "I remember thinking what are you doing jumping around the bed, I just felt very violent towards him, I hated the little toad, he was the sod, he should have went, she was the good one, she should have stayed, that is how I thought at the time. Eventually David woke up but I think I had popped to the loo by this time and he had told Callum that Ashley had died and it didn't seem to bother him at all, he was still playing and I don't think he even came over and gave me a cuddle, he just continued to flit about the bedroom, play with the toys and then we were inundated with people that we had known from church and family and so I really didn't say much at all, I just sat holding onto David, popping out for the odd cigarette for escape from the crowd and just crying, it's all I could do until I could cry no more. That went on for the entire hospital stay. I just kept escaping from all the people in the room, going outside for a cigarette."

The respondent insisted upon dressing the deceased child for the funeral. She said that while she was doing that some blood came from the child's nose and she was cautioned by a lady who was present to mind the child's head.

During this dressing procedure she suffered some sort of an attack and was unable to breathe. A lady who was with her gave her some ventolin which relieved her. After she composed herself she went back inside for the purpose of putting nail polish on the child's nails but she was told by a lady present that she would do that and that she would do the child's hair and make her look lovely.

She could not remember much about the funeral although she remembered the whole school turned up and it appeared to her that there were hundreds of people present and "the whole place was packed".

At about the same time as the funeral, police came to the respondent's home and showed her some photographs of the accident scene and of the damage to both of the motor vehicles involved in the accident. None of the photographs depicted any of the injured or the deceased child.

The photographs show scenes taken at both night and day. The ones taken at night show two very badly damaged motor vehicles and a number of rescue vehicles. The scene is lit with a number of different lights of different colour. The lights appear to be of a similar description to the lights the respondent claimed to have seen on her journey to the hospital.

Shortly after the accident the respondent was told both by Callum and by police officers that Ashley had been thrown from the car. Callum told his mother that Ashley went through the air over his head and out of the car without her shoes on. The learned trial Judge determined that the conversation with Callum took place about a week or so after the accident and the conversation with the police officer was either on the night of the accident or alternatively at the time that she was shown the photographs to which I have already referred.

The respondent returned to work within a week of the accident because she could not stand being at home seeing the empty garden, the empty bedroom and the unused children's equipment.

Shortly after Christmas she, her husband and Callum moved, selling the house at Gilks Road, Lewiston and purchasing another house at Para Hills. She moved house because she wished to avoid points of reminder of her daughter.

Immediately after the accident she was unable to sleep. She had nightmares, in particular concentrating on how her daughter had died and imagining that she could hear the child's bones breaking. Those dreams included policemen coming to the door telling her that they had made a terrible mistake. She would then panic as to who was buried and imagine that Ashley would step outside from behind the policemen.

She became more and more upset until she went to see a doctor and she was prescribed anti depressants. She lost weight. She found it difficult to relate to her son and had difficulty functioning at work.

Coincidentally or even perhaps consequential upon her behaviour her son became hyperactive and became difficult at school. His behaviour became such that it was agreed that she would give up work because she thought he obviously needed her. She said she gave up work so she could be there in the morning to care for Callum. It was a little over twelve months after the accident, in February 1994, that she gave up work.

In April 1993 about four months after the accident the respondent saw Doctor Lucas, a psychiatrist, at the request of her solicitor. She recounted to him the matters to which I have referred in perhaps greater detail and with some different emphasis.

His diagnosis was that of a bereavement reaction, complicated by post traumatic symptoms. He was of the opinion that she ought to be considered as having an acute post traumatic stress disorder and he said this; (184) "Mrs Lawson is suffering from a bereavement reaction. Her grief is still marked and the picture is complicated by post-traumatic symptoms. I think she should be considered as having suffered an acute post traumatic stress disorder. The death of her daughter was a great shock and the way the news was communicated to her distressing. She has symptoms of reliving the accident through dreams and thoughts and symptoms of avoidance and increased arousal. Her symptoms are diminishing with time and I believe are likely to continue to do so. It is difficult to decide whether her depressed mood is excessive in the circumstances but certainly feelings of hopelessness are pronounced."

He went on to say; "Mrs Lawson's bereavement has been complicated by post-traumatic symptoms, almost certainly amounting to a post-traumatic stress disorder with quite remarkably depressed mood. It is only six months since the death of her daughter and further resolution of her symptoms can be expected. There has already been some movement in this direction particularly with regard to the post traumatic ones. I think she should be reviewed in a couple of months although this can be delayed if she is receiving counselling or psychiatric treatment. The psychiatric prognosis should become clearer in the next three to six months."

At the time she saw Doctor Lucas in April 1993 she told him that if it was possible she would want to have more children. She told him that she needed someone to whom she could give love. She said that whilst she still loved her son it was not the same as her love had been for Ashley who was "her right arm".

Her evidence was to the same effect. She said that in 1993 she discussed with her husband her need to have more children. She described her need this way:- (45) "I needed to have a little girl to love and to do the girly things with that I never did as a kid. I just missed it too much. I needed to have a little girl to sew with and to show how to bake cakes and do my gardening and maybe sing with again, because we were involved in the choir for a short time with the church. We were always singing together too, singing in the car and I just missed all that. I couldn't do that with Callum. I didn't want to do it with Callum, I needed to do it with my little girl and I just longed to have one all the time, although I was unsure if it was the wise thing to do".

Her husband agreed with her request and entered hospital and underwent a reversal of the vasectomy. After that operation the respondent again became unsure as to whether or not she should have more children and she delayed further. During the time of that delay the vasectomy scarred over again rendering her husband infertile. He had to undergo a further reversal. The respondent and her husband were warned, at that time, that there was a real possibility that the vasectomy would scar over again and that her husband would be rendered infertile again in the near future. With that news they decided to attempt to have more children and she became pregnant. In the result she had twin girls, Bethany and Brittany born in November 1994.

She said that her psychiatric health improved by 110 per cent following the birth of her daughters. She regained her appetite and weight. She was able to sleep much better and the nightmares which she had been experiencing regularly before the birth became infrequent. Her relationship with Callum improved markedly. So also did her relationship with her husband, which had deteriorated, probably consequential upon her mood after the accident, improve after the birth of her daughters.

She did not become absolutely well after the birth. There are certain things that continue to cause her to suffer depressive episodes, for example various songs that she might hear on the radio, hearing Barbara Streisand sing (she was a favourite of Ashley's), coming across things of Ashley's and hearing Callum giggle because he giggles in the same fashion as Ashley did. Those things make her tearful but she is able to recover from the episodes of depression much more quickly than she was able before the birth of her twin daughters.

Her attitude towards housekeeping and household duties has improved. She had completely lost interest in household matters after Ashley's death. That interest has returned since the twins' birth. Her evidence was of significant improvement but not total recovery consequent upon the birth of the twins.

Doctor Lucas gave a further opinion after the birth of the twins in September 1995. He offered the following opinion: (191) "Mrs Lawson was co-operative and straightforward throughout the interview. She related easily, showed a sense of humour and was able to discuss all topics without hesitation or distress. There was no hint of the hopeless and angry feelings she expressed at the time of her interview in April 1993. The feelings she expressed towards her dead daughter did not suggest abnormal or over-prolonged grief. She complained of only relatively minor post-traumatic symptoms and these did not amount to a post-traumatic stress disorder. Although there were some continuing worries, specifically about her son's behaviour and family finances, her outlook was optimistic. All this is reflected in her presentation. She was well dressed, carefully groomed, very pleasant and quietly spoken".

He wrote this: (192) "One could only come to the conclusion that 'twin therapy' had been remarkably successful in improving her mental state and markedly reducing problems in marriage".

He went on to say: (192) "The history she gave me indicated that the birth of the twin girls had greatly assisted her and, in her opinion, had also assisted her husband. Her mental state had benefited to the point when post-traumatic symptoms are no longer frequent or excessively distressing and her grief over Ashley's death had resolved as much as one could expect given the circumstances of her death and the time since it occurred".

Doctor Lucas was called to give evidence and essentially confirmed that which he had written. His opinion was that the twin therapy treatment seemed to have worked.

In relation to that he was asked: (111-112) A. The plaintiff herself says that she felt that her emotional condition was deteriorating continuously up until the time of becoming pregnant. If you accept that, where would have she have developed from the point of view of her mental health, had the twins not arrived. Can you offer an opinion on that."

A. I prefer not - of a general opinion mentioning a couple of the ingredients shall we say. One's her own mental state, as I understand it hadn't settled down at that stage, she had ongoing problems in dealing with her son and her feelings towards him and his behaviour was causing concern to the point where she thought she should take a break from work to have more time with him. She also thought her marriage was in trouble because there were some difficulties in communication particularly about the way each of them, she and her husband felt in themselves as a result of the death of their daughter. So just how things would have panned out in terms of her son and her husband is always of course difficult to know. I think both she and her husband have got quite good, you know, emotional resources but this is a very difficult situation. So those sorts of things, one would think would have meant problems in, you know, the medium to long term, attempts to resolve them. What having the twins did I think, well it changed the structure of the family for a start, I mean two more come into it which affects everybody in it, and the important thing it did was improve her mental state, which one again

and she believes it's improved her husband, which changed the whole atmosphere in the family. I would have said that there would have been continuing problems of some sort or another for some time had she not had the twins, just on her history and the sorts of problems they were facing."

In his oral evidence Doctor Lucas described the series of events which gave rise to the psychiatric illness as a package. He said it included the visual impact of the policeman at the door, being told by the police officer that her daughter was dead and all of the series of events leading up to and including her attendance at the hospital, although his evidence tended to suggest that the visual impact of her husband and son was not such as to precipitate shock.

He said the symptoms of which she complained were consistent with grief reaction or bereavement and even depression, but the text of his evidence was that the extent of the symptoms and the strength of the symptoms allowed for a description of a mental illness, because they had reached a pathological state, which he described as post-traumatic stress disorder.

The evidence of Doctor Lucas is consistent with the respondent's evidence. She claimed that she suffered symptoms consistent with a psychiatric illness. He observed those symptoms and concluded that she was suffering a psychiatric illness. She told him as she did the Court that she wanted another child. She believed that having another child would help her and her relationship with her husband. She said she continued to suffer symptoms until the birth of the twins.

He said that that state developed over a period of time after the accident and continued with the respondent up until the time she gave birth to her twin daughters in November of 1994. Thereafter it could not be said that the symptomatology of which she suffered could be described as a psychiatric illness.

He said that she still had some symptoms of a post-traumatic type but, as at the date of the trial, they did not amount to a post-traumatic stress disorder. The symptoms were of an intermittent nature and less disruptive but they continued. So also her mood swings would not, at the time of trial, allow her to be diagnosed as suffering a psychiatric illness.

No evidence was led contrary to the opinion of Doctor Lucas and, indeed as the learned trial Judge said, the appellant, through counsel, ultimately accepted that for some period after the accident the respondent did suffer a post-traumatic stress disorder. However the respondent disputed that that psychiatric illness was such as to give rise to a right to compensation.

It was in the circumstances as I have described them that the respondent brought an action against the appellant. She claimed that the appellant was guilty of negligence in the driving and management of his motor vehicle such that a collision occurred between a motor vehicle being driven by the appellant and a motor vehicle being driven by her husband, in which her daughter and son were passengers, and that her husband suffered personal injuries and her daughter sustained fatal injuries.

She claimed to be entitled to damages for the psychiatric disorder which she suffered consequent upon the death of her daughter and the circumstances to which I have referred.

The respondent did not identify with any particularity, or at all, how the cause of action arose in her favour. She did not claim, in her pleadings that the appellant owed her a duty of care, nor did she particularise how that duty of care arose. So also she did not identify with any particularity the breaches of the duty of care in so far as those breaches were said to have caused her injury.

After referring to the facts leading up to her being advised of her daughter's death, her attendance at the hospital, the funeral of her daughter, her return to work, her 'feelings', the recurring dreams and her wishes after the accident to have more children, but without making any mention of the journey to the hospital and the lights or the episode of the dressing of the deceased child she pleaded: "6.38 The female plaintiff is suffering from a bereavement reaction. Her grief is still marked and the picture is complicated by Post Traumatic symptoms. It is considered that the female plaintiff has suffered an acute Post Traumatic Stress Disorder. The death of her daughter was a great shock and the way the news was communicated to her was distressing. She has symptoms of re-living the accident through dreams and thoughts and symptoms of avoidance and increased arousal. 6.39 Since the plaintiff's reversal of his vasectomy, the female plaintiff has fallen pregnant, giving birth to twin daughters in November 1994. 6.40 The female plaintiff had given up work in February 1994 in order to devote more time to the child Callum. 6.41 It is anticipated that as a result of the recent birth of her twins, the female plaintiff will not return to employment for at least 8 years. 6.42 The female plaintiff has therefore suffered and (sic) economic loss to the present time and will continue to suffer an economic loss in the future due in part to her injuries and to the birth of her twin daughters. 6.43 The female plaintiff's ability to engage in her normal social, domestic, employment and recreational activities has been significantly impaired as a result of the accident."

Without more she claimed (as did her husband): "7. The plaintiffs seeks a declaratory judgment and interim assessment of damages and for the final assessment of their damages to be adjourned until their injuries have stabilised and the full extent of their residual disabilities can be medically assessed.

Particulars of special damages will be made available by the plaintiff's solicitors prior to the trial of this action.

Pursuant to the provisions of the Wrongs Act 1936 Solatium, Funeral and ancillary expenses associated with the death of their daughter Ashley Brooke Lawson."

The claim for solatium is, of course, a statutory right of action given by s.23A of the Wrongs Act. That section gives a right of action for solatium to the surviving parents of a child, whose death has been caused by the wrongful act, neglect or default of the defendant and the act, neglect or default was such that if the child had not been killed would have entitled the child to maintain an action in damages but limited to such sum as does not exceed $3,000. Section 23A(2) provides that where both parents bring an action to recover any sum of money under that section, the sum recovered shall be divided between the parents in such shares as the court directs.

When judgment was entered in favour of the respondent's husband the parties did not announce whether the judgment included any award under this section. No award was made by the learned trial Judge in favour of the respondent, nor does the respondent complain about that omission, if it is an omission. It appears that the question of solatium was not further considered by the parties and no award was sought by the respondent.

It is not to overstate the matter to say that the respondent's pleadings are of almost no assistance in the determination of the issues between the parties or for identifying the matters for resolution. Notwithstanding the inadequacies in the respondent's pleadings, the appellant attempted to identify the matters in issue.

The appellant pleaded in his defence inter alia: "8. The defendant denies that he is liable to pay damages to the second named plaintiff for nervous shock as she was not sufficiently proximate to the accident or its immediate aftermath.

Further and in any event, the defendant denies that he is liable to pay damages to either plaintiff for the consequences of the vasectomy reversal of the first plaintiff or the births to the second plaintiff of twins or the change of residence.

The defendant says that the voluntary decisions by the plaintiffs to have more children and change their residence amount to:-

(a) Consequences which were too remote to sound in damages.

(b) New and intervening acts for which the defendant is not liable, and/or

(c) Failures by the plaintiffs to mitigate their losses. 11. The defendant denies that the plaintiffs or either of them are entitled to the relief sought in paragraph 7 of the Statement of Claim.

If the plaintiffs did sustain injury, loss or damage (which the defendant does not know and therefore cannot admit) the defendant says:-

(a) the plaintiffs have sufficiently recovered from their injuries such that they no longer experiences (sic) pain and suffering or loss of amenity or such pain, suffering or loss of amenity is minimal and the plaintiffs can resume their pre-accident sporting, social, domestic, recreational and other activities;

(b) the plaintiffs have sufficiently recovered from their injuries to resume their normal duties or other equivalent employment and are therefore not suffering any impairment of their working capacity;

(c) alternatively if the plaintiffs do suffer some impairment of their working capacity they have sufficient residual earning capacity to obtain alternative suitable employment and therefore to negate or reduce any loss of wages;

(d) the plaintiffs have sufficiently recovered from their injuries such that they will no longer require future medical or other treatment.

The defendant denies that the plaintiffs are entitled to the relief sought in the Particulars of Claim or at all. In the alternative, if such relief is granted, the defendant says it should be assessed and calculated according to the provisions of Section 35a of the Wrongs Act 1936 (as amended).

Notwithstanding the clear inadequacies in the respondent's pleadings, the parties were content to have the matter heard and determined on the basis of the issues raised in the appellant's pleadings.

His Honour assessed the appellant's damages as follows: - Lost Wages December 1992 $526.00Non Economic Loss $13,700.00

On Account of Wage Loss During Infancy $75,000.00

The appellant complains of a number of aspects of his Honour's judgment and it is therefore necessary to set out the grounds of appeal: "1. The Learned Trial Judge erred in that he found that the plaintiff qualified for damages for nervous shock at common law. In particular:-

1.1 The Learned Trial Judge erred in failing to find that the plaintiff's psychiatric condition was caused by distant shock and/or caused by grief.

1.2 The Learned Trial Judge erred in finding that the plaintiff's compensable psychiatric condition relevantly resulted from what was seen on the way to hospital and at the hospital.

The Learned Trial Judge erred in that he failed to exclude from the assessment grief and those things which flow from grief when assessing damages for nervous shock. In particular:-

2.1 The Learned Trial Judge failed to have due regard to the fact that grief and those things which flowed from grief were not the direct result of observations made at the scene of the accident or its aftermath.

2.2 The Learned Trial Judge failed to have any or due regard to the fact that the plaintiff had already received compensation for grief and those things which flowed from grief as a result of her receipt of damages by way of solatium pursuant to the Wrongs Act 1936 as amended.

2.3 The Learned Trial Judge failed to have due or any regard to the fact of double compensation when assessing damages in respect of nervous shock in a case where damages for solatium had already been received.

2.4 The Learned Trial Judge wrongly applied the decision of T v The State of South Australia to a case of nervous shock given that the decision of T v The State of South Australia:-

2.4.1 Was a decision applicable to an assessment under the Criminal Injuries Compensation Act rather than an assessment of damages for nervous shock at common law.

2.4.2 The assessment in T v The State of South Australia did not require consideration of the effect of a payment of damages for solatium.

The Learned Trial Judge erred in finding that the plaintiff was entitled to claim damages in respect of home relocation costs and/or wages foregone during the period the plaintiff was likely to remain at home and raise her twins. In particular:-

3.1 The Learned Trial Judge erred in finding that the relevant test of mitigation in the circumstances was merely whether the plaintiff had acted reasonably.

3.2 The Learned Trial Judge failed to find that the damages under these heads were, in any event, caused by grief rather than nervous shock.

3.3 The Learned Trial Judge failed to find that the damages under these heads were, in any event, not foreseeable and/or too remote and/or contrary to public policy.

3.4 The Learned Trial Judge failed to find, in the context of wages foregone during the period of child rearing, that these losses were losses caused by the decision to rear children.

3.5 Alternatively, in the context of the damages allowed for wages foregone during the period of child rearing, His Honour failed to have any or due regard to the fact that the "twin therapy" had, by the time of the birth of the twins, largely succeeded in resolving the plaintiff's psychiatric condition.

3.6 In the further alternative, that the cost of mitigation unreasonably exceeded the loss."

The Notice of Appeal served to identify the matters which were in issue in the trial and which remain in issue on appeal.

First the appellant contended at trial that he owed no duty of care to the respondent because in the circumstance of this case no duty of care could arise. In particular it was contended that there was not the requisite degree of proximity to erect the duty of care. In the alternative, it was put, that if a duty of care arose and if the duty of care was breached no damage was suffered because the respondent did not suffer a mental illness which would qualify as nervous shock and therefore she was not entitled to damages.

Secondly it was put that if the respondent did suffer nervous shock in circumstances where the appellant owed her a duty of care she also suffered, as it was put, a "concurrent and non compensable cause, tantamount to a supervening cause and there is no right of recovery." That concurrent and non compensable cause was said to be the grief and the bereavement which the respondent had suffered.

It was put as an alternative to that second argument that if there was a duty of care which had been breached, and the respondent had suffered nervous shock then in the assessment of damages, regard had to be had to the grief and bereavement which the respondent suffered and in the assessment of damages a deduction ought to be made for the grief and bereavement which she suffered which was not compensable.

Thirdly it was claimed as can be seen in paragraph 2.2 of the Grounds of Appeal that the learned trial Judge erred in failing to have regard to the respondent's receipt of damages by way of solatium pursuant to the Wrongs Act. As I have already noticed her husband's damages were not said to have included an amount by way of solatium. In the assessment of her damages, the learned trial Judge allowed nothing for solatium. The ground was not pressed on the hearing of the appeal and I shall say no more about it.

Fourthly it was submitted the learned trial Judge erred in allowing damages in respect of relocation costs because the cost of relocation was, in the circumstance of this case, unreasonable. Fifthly it was argued that the learned trial Judge erred in allowing any sum for wage loss during the infancy of the twin girls because the fact that the respondent became deliberately pregnant was not for the purpose of relieving herself from her psychiatric illness but for the purpose of relieving her grief and bereavement or alternatively if it was for the purpose of relieving her psychiatric condition it was in the circumstances unreasonable in that the cost of mitigation far exceeded the damage.

The remaining issue which was ventilated on appeal was raised by the respondent in her Notice of Alternative Contention which was to the effect that if the learned trial Judge was wrong in finding that the respondent was entitled to damages for nervous shock at common law then he should have found that the correct interpretation of s35A(1)(c) of the Wrongs Act was that the respondent was entitled to succeed if she was merely able to prove on the balance of probabilities that she was a parent of a child, who was killed in a motor accident and that she had suffered nervous shock. In other words the respondent argued that the respondent did not have to make out a duty of care or breach.

Before I turn to the authorities it is necessary to examine the factual basis upon which the appellant's first argument relied. It was submitted that the learned trial Judge had identified seven stressors operating upon the respondent in relation to the chain of events. The first was being woken in the circumstances mentioned and being told by the police officer that her daughter was dead and the circumstances immediately after. Secondly the drive to the hospital and her seeing the lights and the hearing of the noise of engines. Thirdly her seeing her husband on a stretcher bed with Callum beside him and the matters immediately relevant to that. Fourthly being told by Callum that during the accident Ashley had flown through the air over his head out of the car without her shoes on. Fifthly the circumstances where the respondent was dressing Ashley for the burial about a week after the accident and her observation that there was an emission of blood from Ashley's nose and the circumstances leading up to the funeral and the funeral itself. Sixthly at or about the time of the funeral the police officer visiting the family to take a statement from the respondent's husband and in the course of that, the police officer showing Mr and Mrs Lawson some photographs. Finally the respondent being told by a police officer that Ashley had been thrown from the car.

The appellant's argument had two aspects to it. First whilst all of those stressors might have collectively given rise to a psychiatric illness, most of the stressors, if not all, are not events of the kind which would qualify a plaintiff for a claim for nervous shock because they are not sufficiently proximate to qualify the respondent for such a cause of action.

Secondly it was put that if the respondent had suffered a psychiatric illness the "package" of stressors identified showed that that psychiatric illness was not occasioned by a nervous shock, but was occasioned by an accumulation of events which also would have disqualified the plaintiff in a claim for nervous shock.

In respect of the first aspect of the argument it was put that none of the fourth, fifth, sixth or seventh stressors could qualify as circumstances giving rise to proximity so as to entitle a person to claim damages for psychiatric illness arising out of nervous shock. It was put that all of those stressors were too remote in time from the accident and its aftermath to entitle a claim.

In respect of the other three stressors identified by the learned trial Judge it was put that whilst the first stressor would of itself have been a most distressing phenomenon it was not of itself sufficient to qualify for the claim for nervous shock. As to the second and third stressors it was argued that those two matters did not allow her to perceive anything associated with her child's death which would have given rise to a shock. Indeed in relation to the third matter, when she saw her husband and surviving child in hospital she said in her evidence, which was accepted by the learned Trial Judge: "When I went in the room I just remember looking at him and his hands had blood on them and it was down his neck. It didn't bother me that it was his blood. My mind just went back to if he is alive and he's in that mess, what was she like and then I just remember just cuddling him and checking Callum and the next thing I know my mum is beside me and going hysterical."

The appellant's argument was that in those circumstances the stressors individually and collectively were not sufficient to make out a claim for nervous shock but that, in any event, as I have said, in the alternative the respondent did not suffer a shock but suffered a psychiatric illness as a result an accumulation of events some of which were far too remote from the accident's aftermath to qualify for a claim for nervous shock.

I turn to each of those issues and in doing so I shall have regard to the development of the law in relation to nervous shock not so much to explain the common law which has been recently clarified and restated in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, but so as to put the legislation, which was relied upon by the respondent for the purpose of its alternative contention, in its perspective.

The question of nervous shock was first considered by the Privy Council in Victorian Railways Commissioners v Coultas (1888) 13 AC 222 where the Privy Council said in its opinion: "The rule of English Law as to the damages which are recoverable for negligence is stated by the Master of the Rolls in The Notting Hill 9 P.D.105, a case of negligent collision. It is that the damages must be the natural and reasonable result of the defendant's act; such a consequence as in the ordinary course of things would flow from the act. The law would be the same in Victoria unless it has been otherwise enacted by the legislature, which it is not said it has been.

According to the evidence of the female plaintiff her fright was caused by seeing the train approaching and thinking they were going to be killed. Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gatekeeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury."

In Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1 the High Court disallowed a claim by a mother who had searched for her seven and a half year old son when he failed to come home. The mother became distressed. She was present when his dead body was found in and taken from a trench. She suffered a severe nervous shock which on the evidence, was more than fright and more than temporary mental disturbance and distress.

Latham CJ concluded that the damage, i.e. the nervous shock suffered by the mother could not be regarded as within the reasonable anticipation of the defendant, that is, it was not foreseeable. Rich J also believed that the shock was not reasonably within the contemplation of the defendant. Both Latham CJ and Rich J were much influenced by policy considerations and as Deane J observed in Jaensch v Coffey (supra) by "a floodgates fear of countless actions" (590). Starke J described the shock to the appellant as so remote that no reasonable person ought to or would foresee or contemplate the injury to the appellant. Evatt J, in a powerful dissenting judgment, would have allowed for recovery, but as Deane J said in Jaensch v Coffey (supra) his decision would have allowed only for a duty of care to those who were in the vicinity of the accident or who attended at the accident.

Consequent upon the decision in Chester v Waverley Corporation (supra) the Wrongs Act was amended in South Australia by including in the Wrongs Act Amendment Act 1939, s28 which is in the following terms: "28. (1) In any action for injury to the person caused after the passing of the Wrongs Act Amendment Act, 1939, the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

(2) In determining any question of liability for injury to the person caused before the passing of the Wrongs Act Amendment Act, 1939, no regard shall be paid to the fact that this section has been enacted, or to the provisions hereof."

Clearly enough s28 was passed to alleviate the rigours of the decision in Chester v Waverley Corporation. Section 28 does not by itself provide a cause of action or a remedy to anyone who has suffered nervous shock. It merely removes the potential for a court determining that a person who had suffered nervous shock was not entitled to recover, for whatever reason including presumably the absence of foreseeability, because the injury arose wholly or in part from mental or nervous shock. In a sense however s28 confuses, perhaps, the notion of nervous shock which can give rise to a mental injury with the concept that damages might arise from mental or nervous shock. However the common law has progressed since the amendment to the Wrongs Act in 1939.

In Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383 the High Court determined that where a worker, who went to the assistance of two electricians, who were severely burned by an intense electric arc and helped them from the premises where they had suffered their accident, and later learnt that they had died, developed symptoms, which indicated he was suffering from mental disturbance, that damage was reasonably foreseeable and therefore would sound in damages. In that decision the respondent was not denied a claim for damages because he was not a relative nor because he was not present when the workmen suffered the immediate injury nor indeed because the particular injury which was suffered by the respondent was extremely rare.

In Jaensch v Coffey (supra) a motor cyclist suffered very serious injuries which were caused by the negligent driving of the defendant. His wife, came to the hospital to which her husband had been admitted and saw him in obvious pain. She was told on her first attendance that her husband was "pretty bad". She was told early next morning by telephone that her husband was in intensive care. Later in the morning she was told that he had taken a turn for the worse and that she ought to come to the hospital straight away. Her husband in due course survived but the plaintiff suffered nervous shock as a result of what she had seen and had been told. She succeeded at trial and in the Full Court of this court. On appeal to the High Court it was argued that the sole criterion of liability for negligence was that of foreseeability. Brennan J accepted that argument but Gibbs CJ and Deane J rejected that proposition. Dawson J deemed it unnecessary to answer that debate for the purpose of deciding the appeal and Murphy J did not address that issue.

That aside the members of the court held different views as to when recoverability arose for proceedings for nervous shock. Gibbs CJ agreed with Lord Wilberforce in McLoughlin v O'Brian [1983] 1AC 410 that the limits on the extent of admissible claims for nervous shock are provided by a consideration of three elements. Lord Wilberforce said this (422): "It is necessary to consider three elements inherent in any claim: the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused".

Gibbs CJ was of the opinion that all three elements were relevant but the first was the most important. In dealing with the second and third of those matters Gibbs CJ said: "I would with respect reserve my opinion as to the corrections of some of Lord Wilberforce's comments on the other elements and in particular on his statements that there must be a close proximity in space as well as in time and that 'the shock must come through sight or hearing of the event or of its immediate aftermath'. The law must continue to proceed in this area step by cautious step."

Gibbs CJ went on to say at 555: "In the present case there was a very close relationship, both legal and actual, between the respondent and her husband. She was notified of the accident, and went to the hospital, as soon as practicable on the evening when it occurred. She personally perceived the aftermath of the accident, although not at the scene but at the hospital. The fact that, in addition, she was informed by those on duty at the hospital of her husband's condition cannot, in my opinion, defeat her claim. She was, in my opinion, a 'neighbour' of the appellant within Lord Atkin's principle; it was foreseeable that a person in her position would suffer nervous shock, and there is no reason of policy why her claim should not succeed."

It is clear enough from what Gibbs CJ said at 555 that it was a combination of events which qualified the plaintiff in that case as a neighbour within Lord Atkin's principle. A notification of the accident and the perception of the aftermath at the hospital even without visiting the scene were enough to qualify her. More particularly she was not disqualified by being told something about her husband's condition. The information given the plaintiff in that case about the accident was one of the matters, in the opinion of Gibbs CJ, which gave rise to the satisfaction of the requisite degree of proximity.

Brennan J after discussing the question of how a duty of care could arise and determining that the duty of care could arise out of the single criterion of reasonable foreseeability, concluded that a plaintiff who suffered a psychiatric illness induced by the perception of the physical consequences of the defendant's breach of a duty of care owed to a third person was unlikely to have any difficulty in proving the defendant's breach of any relevant duty owed to that first person.

Brennan J pointed out the limits of a claim for nervous shock at 565 where he said: "The courts have insisted on proof of a demonstrable and readily appreciable cause of psychiatric illness - the cause itself being a result of the defendant's careless conduct - before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by "shock". Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tort feasor liable to the child"

He went on to say at 566: "The notion of psychiatric illness induced by shock is a compound, not a simple, idea. It's elements are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them."

At 567 he said: "I understand 'shock' in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors."

His Honour then dealt with those persons who had attended at the scene of an accident before moving to the class of persons who perceived some later phenomenon. He said at 570/571: "When the scene of an accident is left behind, and the perception of some later phenomenon induces a psychiatric illness in a plaintiff, the factual difficulties in the way of establishing negligence occasioning nervous shock are greatly increased though the principles are unchanged. The occurrence or existence of the later phenomenon, its sudden perception by the plaintiff and the inducing of the plaintiff's psychiatric illness must be proved to be the results, and the reasonably foreseeable results, of the defendant's conduct. But the separation in time and distance of the later phenomenon from the immediate consequences of the defendant's conduct may make it difficult to prove the elements of causation and reasonable foreseeability as they apply in cases of nervous shock. The cry of distress which summons a rescuer, spouse or parent to the scene of an accident may lose some of its urgency as time passes after the initial injury; later visits by a spouse or parent to the injured person in hospital may not be so distressing as to induce psychiatric illness in a spouse or parent of a normal standard of susceptibility - especially if the injured person's condition and treatment proceed without dramatic fluctuations. It may not be reasonably foreseeable that the perception of the injured spouse or child in hospital might induce a psychiatric illness. Of course, what is too remote to be treated as a consequence in one case may be clearly within the chain of causation in another; what is not reasonably foreseeable in one case may be reasonably foreseeable in another.

These are all questions of fact, but they are questions of impression and degree which cannot be directly proved by evidence of what is too remote and what is not, of what is reasonably foreseeable and what is not. They are matters of judgment for the jury or, where there is no jury, for the judge. Hence Lord Wright, in Bourhill v Young (24), in answer to the question where the thing is to stop, replied that 'it should stop where in the particular case the good sense of the jury or of the judge decides.'

The stopping point is not to be defined as a proposition of law, nor are new principles to be invented to stop the thing going too far."

Lastly, when his Honour came to consider the application of the principles to the facts his Honour said this at 577; "No special principle governs the cases where the relevant phenomenon is set in a hospital rather than on a roadway, nor is there a special principle applicable when the relevant phenomenon is perceived hours rather than minutes after the careless act or omission produces its first consequences. Allan's movement by ambulance to the hospital and the lapse of time before Ms Coffey saw him might have provided an opportunity for other people to intervene so that his appearance in the hospital would not fairly be regarded as the result of the defendant's carelessness or the reasonably foreseeable result of it. But Allan was taken from the scene of the accident directly to a hospital for treatment of his injuries, Mrs Coffey was quickly summoned to him there, and nothing untoward was shown to have intervened to exacerbate Allan's distressing appearance.

In those circumstances, there is no reason why the resolution of the case should be governed by considerations different from those which would apply if she had been summoned to the scene of the accident. Liability cannot rationally be made to depend upon a race between a spouse and an ambulance; it must depend upon what the spouse perceives, its effect upon her, and whether her perceptions and their effect are the reasonably foreseeable results of the defendant's careless conduct."

Deane J, having concluded that proximity was an overriding limitation confining the class of persons to whom a duty of care is owed, dealt specifically with mere psychiatric injury. He said there were two limitations which could be stated in their negative form. The first being that the duty of care would not arise unless the risk of injury in a particular form i.e. of a psychiatric illness, was reasonably foreseeable and the second was that the duty of care would not exist unless a reasonably foreseeable injury was sustained as a result of trauma to some person other than the defendant. He then went on to consider whether there were any other forms of limitation. He was not prepared to conclude that the relationship of the plaintiff with the injured person was of itself a limitation although acknowledged that it was a matter of critical importance to the determination of reasonable foreseeability depending on the facts of the case. He also could not agree that the plaintiff had to be within "the area of physical risk". He said: (606) "Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident; both common sense and authority support the conclusion that the requirement or proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the aftermath of the accident at the scene; Benson v Lee [1972] VR at 880; Storm v Geeves; Chadwick v British Railways Board."

However he went on to say again at 606: "On the other hand, it would seem reasonably clear that the requisite duty relationship will not, on the present state of the law, exist in a case where mere psychiatric injury results from subsequent contact, away from the scene of the accident and its aftermath with a person suffering the effects of the accident. An example of psychiatric injury suffered as a result of such post accident contact is that which may result from the contact involved in the nursing or care of a close relative during a period subsequent to immediate post accident treatment; e.g. Pratt (Pratt and Goldsmith v Pratt [1975] VicRp 37; [1975] VR 378)."

His Honour then went on to describe aftermath in the following terms at 607: "It has already been said that the requirement of proximity in a case of mere psychiatric injury is satisfied where injury was sustained as a result of observation of matters involved in the aftermath of a road accident at the actual place of collision. The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. It would, in my view, be both arbitrary and out of accord with common sense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken."

He went on to say at 608: "Mrs Coffey sustained her psychiatric injury by reason of what she saw and heard at the hospital while her husband was under such treatment. Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital. That being so, she was not, in my view precluded from recovering damages for those injuries by reason of the fact that she did not attend at the actual scene of the collision. What, then, is the effect of the fact that her nervous shock was caused by what she was told as well as by what she observed, at the hospital?"

He then went on to discuss previous authority and said: "A requirement that the plaintiff must have perceived the peril or injury by her or his "own unaided senses" (Hambrook v Stokes Bros [1925] 1 KB 152) has not, however, enjoyed unqualified support either in the United Kingdom or Australia (see, e.g. Schneider v Eisovitch [1960] 2 QB 430; Andrews v Williams [1967] VR 831) and the question whether the requirement of proximity precludes recovery in a case where reasonably, foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one. It is somewhat difficult to discern an acceptable reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a wife and a mother who was so devastated by being told on the telephone that her husband and children have all just been killed that she is unable to attend at the scene while permitting recovery for the reasonably but perhaps less readily, foreseeable psychiatric injuries sustained by a wife who attends at the scene of the accident or its aftermath at the hospital when her husband has suffered serious but not fatal injuries. It is unnecessary to pursue the question here however since the authorities plainly indicate that the overriding limitation upon the test of reasonable foreseeability does not preclude recovery in a case, such as the present, where the psychiatric injury was sustained as a result of the combined effect of what a plaintiff himself or herself observed and what he or she was told while at the scene of the accident or its aftermath."

Dawson J after reserving the question of proximity said in relation to nervous shock: (612) "It is now established that it is no bar to liability that the nervous shock is caused not by the plaintiff's fear for her or his own safety but by the apprehension of some danger or harm to another, at least where that other is a member of the plaintiff's family: Hambrook v Stokes Bros. Nor is it any longer necessary that the plaintiff should be present at the accident which results in the nervous shock. It is sufficient if the plaintiff observes the consequences: Storm v Geeves; Mount Isa Mines Ltd v Pusey. Moreover, those consequences need not be observed at the scene of the accident. They may be observed as part of the aftermath and the aftermath may extend to the journey by ambulance to a hospital and to the scene at the hospital itself: Benson v Lee; McLoughlin v O'Brian."

He agreed with Deane J that the combination of her own observations and what she was told by others did not preclude her recovering damages.

For the purposes of a consideration of the facts of this case those judgments establish that a duty of care will be owed by a tortfeasor to the spouse of an injured person where that spouse has suffered nervous shock and consequent psychiatric illness in circumstances where the spouse was not present at the time of the accident and did not attend the scene of the accident but was later told of the consequences of the accident in relation to her spouse and attended at the hospital and perceived for herself some of the consequences.

Whether in any particular case a duty of care is owed is a matter of fact. The finding that a duty of care exists is more likely when the person is a relative who attended at the scene of the accident and perceived himself or herself the injury to the loved one.

The existence of the duty of care becomes less likely as all of the matters which are important for its existence become more remote. So that if the relative was not at the scene or does not attend at the scene then there is less likelihood of the determination of a duty of care as that person has less direct involvement in space and time and therefore less direct perception of the injuries suffered by the person for whom that relative cares.

It is a matter of degree. It is a matter of common sense when the stage is reached that a court must say there can be no duty of care in a given case because the involvement of the person who suffered the nervous shock is not sufficiently close in terms of relationship, involvement or perception. That stage is reached when the facts of the case demonstrate that it is not appropriate to erect a duty of care.

In 1987 the Wrongs Act was amended for the purpose of including Section 35A. The heading to that section is. "Principles governing assessment of damages in relation to injuries arising from motor accidents". The section deals comprehensively with the assessment of damages in respect of any injury arising out of a motor accident. A motor accident is defined as being an incident in which injury is caused by or arises out of the use of a motor vehicle. Injury is defined to include mental and nervous shock The section provides a code for the assessment of damages for personal injuries but only in respect of claims arising out of motor vehicle accidents. It deals with claims for non-economic and economic loss and addresses all of the heads of damage which might arise in personal injury claims. Relevantly it provides:- "35A (1) Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:

(i) a person who was physically injured in the accident, who was the driver of or a passenger in or on a motor vehicle involved in the accident or who was, when the accident occurred, present at the scene of the accident;

(ii) a parent, spouse or child of a person killed, injured or endangered in the accident;"

The respondent contended that upon the proper construction of s35A all that the respondent had to establish, on the balance of probabilities, in order to be entitled to an award of damages for nervous shock was that she was the parent of a child who was killed in a motor accident and that she suffered nervous shock. The argument was put to the learned Trial Judge and rejected and it was advanced in this Court by way of alternative contention.

I do not agree with the respondent's contention. Section 35A is a code relating to the assessment of damages for personal injuries arising out of motor vehicle accidents. It is not intended to give causes of actions to parties not presently entitled to causes of actions. It is not intended to extend the circumstances in which a claim for personal injuries for mental or nervous shock might be brought. It is not to be compared to section 28 of the Wrongs Act.

Indeed the section has been included for the purpose of limiting persons who might be entitled to particular heads of damages in motor vehicle accidents. With mental or nervous shock it limits the persons who might bring such an action to drivers and passengers involved in an accident or a person who was present at the scene of the accident. Only parents, spouses or children are entitled to damages under this head if they were not drivers or passengers or present at the scene of the accident.

The section has no impact upon circumstances in which a duty of care would arise for claims of this kind but merely limits the persons who may recover damages for any breach of a duty of care, but only in motor vehicle accidents.

In my opinion Section 35A, except in so far as it defines the persons who might bring claims for mental or nervous shock is not relevant to the matters in issue in this case. The alternative contention is rejected. The respondent is only entitled to succeed if she can bring herself within the common law rules relating to actions of this kind.

I turn then to consider the appellant's arguments which I have already identified.

In examining the appellant's first argument it is necessary to first determine whether all or any of the seven stressors are circumstances of the kind which would support the erection of a duty of care in favour of the respondent.

I think it is clear enough from Jaensch v Coffey that the fourth, fifth, sixth and seventh stressors do not qualify as matters relevant for the determination of whether a duty of care was owed to the respondent or in the alternative whether the breach of duty of care was causative of the nervous shock. That is so because each of those circumstances are so remote in time as not to be able to be included in the aftermath. All of the matters would have been distressing to any mother but they are not matters which are proximate in time.

It seems to me therefore that the respondent was only entitled to succeed before the learned trial Judge if what she was told by the police officer, what she observed on the way to the hospital and what she observed at the hospital brought her into a class of persons to whom a duty of care was owed and were factors sufficient of themselves to cause her a nervous shock and in fact did so.

I believe that the combination of the first three stressors namely the communication to the respondent in the circumstances identified and the drive to the hospital and her seeing the lights and the noise of the engine and her seeing her husband on a stretcher bed with Callum beside him and the matters immediately relevant to that are sufficient to establish proximity and therefore a duty of care.

It is not irrelevant that she saw her husband with blood on him and Callum in hospital. It is not only the circumstances giving rise to the death of her daughter which operates to erect the duty of care, but also the injury to her husband.

The appellant argued that Jaensch v Coffey would not support the respondent's claim in this action, because it was submitted that Jaensch v Coffey does not support a claim which is based upon circumstances where the person who has claimed to have suffered nervous shock and the psychiatric illness was merely made aware of the fact of injury to some other party to whom the defendant owed a duty of care. It was put that knowledge would not of itself, upon current authority, be sufficient to qualify the respondent for a claim for nervous shock, assuming of course that she had suffered a nervous shock, a matter about which I shall say some more.

It was argued by the appellant that there was only one stressor operating upon the respondent and that was being told by the police of the death of her daughter. It was said that in those circumstances the respondent could not succeed because a communication of the death of a child or spouse could not be of itself sufficient to give rise to a duty of care to the recipient of the information.

In a sense this argument does not need to be answered because I believe that the first three stressors operated to cause the nervous shock. Therefore this case is not one where the nervous shock was occasioned only by receipt of the communication as to death. Indeed upon that view this case plainly comes within the type of case contemplated in Jaensch v Coffey (Deane J at 608/609). However in case this matter goes further and it is otherwise thought that I am wrong about the three stressors operating and the only matter which induced the nervous shock was the communication of the information of death I shall state my views.

The appellant argued that the diction of Brennan J in Jaensch v Coffey determined the question. Brennan J said at 566 that "mere knowledge of a distressing fact is not compensable." The appellant also relied upon Alcock v Chief Constable of South Yorkshire [1991] UKHL 5; [1992] 1 AC 310 where the communication to those claiming to have suffered nervous shock was by television.

In Petrie v Dowling [1992] 1 Qd R 284 Kneipp J allowed a plaintiff to recover who suffered shock and consequent illness on the receipt of distressing news, although it must be admitted that she received that information at the hospital where her daughter had been admitted.

The question as to whether or not the communication of the death could of itself be sufficient to allow the plaintiff to succeed in a claim for nervous shock was considered in Coates v GIO of New South Wales (1995) 36 NSWLR 1 in Gleeson CJ said at 4: "The respondent, by a notice of contention, raised a point of law not argued in the District Court. The appellants learned of the death of their father as a result of information communicated to them by a third party. There was no direct visual or aural perception by them of the accident which resulted in the death of their father, nor did they witness or attend what some authorities have described as the aftermath of the accident. There was no sudden sensory perception, by seeing, hearing, or touching, of a person, thing or event, of the kind referred to by Brennan J in Jaensch v Coffey (at 567). If the Australian law on this subject is the same as the modern English law, as expounded by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310, then the appellants could not succeed in their action, quite apart from their failure to establish nervous shock.

It is, however, not clear that, in relation to this question, the law of Australia is the same as the law of England. The question that was decided by the House of Lords in Alcock was left open by the majority of the members of the High Court of Australia in Jaensch v Coffey (at 555), per Gibbs CJ (at 556), per Murphy J and (at 608-609), per Deane J. Gibbs CJ said (at 555):

'The law must continue to proceed in this area step by cautious step.'"

Gleeson C J concluded that it was not necessary for him, on the facts of the case, to decide whether or not the communication of information of the kind described in the court could of itself give rise to a claim for nervous shock. So also did Clarke JA who said at 23: "On the other hand the courts in Australia have not taken the firm stand of denying recovery where the plaintiff did not see the accident or events within its aftermath but suffered shock as a result of being informed of the death of, for instance, her mother. Indeed there are decisions of Australian courts which permitted recovery where there was no sighting of the accident, or its aftermath: Petrie v Dowling [1992] 1 Qd R 284; Hanley v Keary & Kearey; Melor v Moran (1985) 2 MVR 461; Andrews v Williams [1967] VR 831. In Jaensch the question was adverted to by Gibbs CJ (at 555) and Deane J (at 608,609) and left open. In Alcock, Lord Oliver could not accept that the basis of the English law was some "arbitrary but unenunciated rule of 'policy'". Nor did he think it rested on foreseeability. In his opinion it flowed from the fact that in contemplation of the law persons who simply heard of the death were not in a relationship of sufficient proximity to give rise to a duty of care (at 410). In Australia, as I have pointed out, there is support for the view that a different answer should be given on the proximity question in circumstances where the deceased was a close relative of the plaintiff and, possibly, in other circumstances."

Kirby P in his judgment stated the question as being:(8) "The second point, raised in resistance to the appellant's claim, presents greater difficulties. It concerns the entitlement of persons such as the appellants, who were children of the person killed, to recover damages for nervous shock although they did not witness the relevant wrong and were not within the immediate 'aftermath in' such a way as to warrant imposing liability on the respondent as representative of the tortfeasor."

His Honour after discussing Alcock v Chief Constable of South Yorkshire Police suggested that it was clearly foreseeable that a particular person might be advised of the death of their loved children and might in certain cases suffer a serious incidence of nervous shock as to warrant the tortfeasor liable. He described the restricting of recovery to perceptions derived from seeing, hearing or touching as being an artificial restriction on recovery.

He went on to say:(11) "The law should now recognise that, at least from a medical understanding of the outdated legal denomination of 'nervous shock', it is as much the direct emotional involvement of a plaintiff in an accident or perilous situation, as his or her physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage: see, eg, Mendelson (at 40-44)."

He concluded:(11) "There is no binding Australian authority to control the decision of this Court on this point. There is no reason of legal principle or policy to exclude reasonably foreseeable damage to persons such as the appellant children of the deceased person. I would therefore not be prepared to exclude them from recovery for proved 'nervous shock' simply because they were not in the sight or hearing of the event which lead to their father's death or its 'immediate aftermath', whatever that phrase may precisely mean."

In this case, if I am wrong and the only factor which induced the nervous shock and psychiatric illness was the communication of the information, the respondent cannot be said to be a person who was in sight or hearing of the event or its immediate aftermath.

There is no doubt that it is foreseeable that if a tortfeasor injures or kills a child that child's mother might suffer injury in receiving the information of the injury or death. There is no reason in logic to exclude those persons from claims for nervous shock. The reason to deny them a right to claim lies in policy in restricting the liability of a tortfeasor to the direct consequences of his or her tort and to those who were in some way close in relationship to the person injured or killed, or were at the aftermath, which includes the hospital.

In South Australia in claims for personal injuries arising out of motor vehicle accidents, the only persons who could recover, if recovery was allowed for the receipt of information only, are those identified in s35A (1) (c) (ii). They are the only persons who were not at the scene of the accident who can recover. Therefore they are the only people to whom this argument is addressed. That being so the class of persons who might recover is quite limited. There is therefore no reason in policy to deny a parent, spouse or child of a person killed or injured or endangered in an accident a right to recover for nervous shock caused only by the receipt of information.

It must be recognised of course that it might be necessary to also allow at least that class to recover in the same circumstances in claims arising other than in motor vehicle accidents.

I would therefore agree with the reasons of Kirby P in Coates v GIO of New South Wales.

Therefore if it was the fact that the only stressor which was operating on the respondent was the communication of information that would still not preclude the respondent from recovery.

It follows that I reject the first argument put by the appellant that in the circumstances of this case no duty of care arose.

The duty of care has been admittedly breached by the negligence of the appellant. Therefore a claim would lie if the combination of those three stressors gave rise to a nervous shock.

The appellant argued, however, that the psychiatric illness which the respondent has suffered over the period identified by Doctor Lucas was caused not only by those three stressors but by a combination of those three stressors and the four stressors to which I have already referred.

It was put, in those circumstances, that there were matters not proximate in time which operated upon the appellant and this was not an event where the appellant suffered a nervous shock but that her psychiatric illness was as a result of a combination of matters over a period of time.

It seems to me that the essence of a claim for nervous shock is that there is a sudden event which gives rise to the nervous shock. There seems to be no logical reason to require it but the authorities seem to suggest the necessity of the sudden onset of a psychiatric illness caused by something amounting to a shock. The reason is not founded on logic but policy so as to limit the class of persons for whom an action would lie. Otherwise the class of persons to whom Brennan J referred to in Jaensch v Coffey, i.e. the worn down spouse or the distraught parent, would be entitled to recover.

In this case of course the evidence would appear to suggest that the first diagnosis of any psychiatric illness by Doctor Lucas occurred by reason of a medical examination arranged by a solicitor. There is no evidence of the diagnosis of any psychiatric illness prior to that time, nor any suggestion that any medical assistance was sought.

Of course the psychiatric illness, it may be assumed, did not arise upon the day when she first saw the psychiatrist but arose prior to that time. On the other hand it is not clear when it arose and in particular how soon after the accident itself.

I think however 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. She continued to suffer that nervous shock during the conveyance to the hospital and at the hospital.

I think there was sufficient evidence to say that the three stressors, which in law were capable of erecting a duty of care did so and these three stressors by themselves caused a nervous shock.

Doctor Lucas said in his report of 7 June 1993 that "the main psychosocial stressor was the accident, the death of her daughter and the affects this has had on her and her husband".

He described her illness as a bereavement reaction and her having suffered "an acute post traumatic stress disorder". In arriving at that diagnosis he said that the death of the respondent's daughter was a great shock and "the way the news was communicated to her distressing".

I think his report supports the view that the communication of the information was the most important factor in the shock and consequent psychiatric illness. Whilst, the other four stressors no doubt exacerbated her condition it was the three events on the night, particularly but not only the first which operated to give rise to the nervous shock and illness.

The appellant is not disqualified from her claim because neither she nor anyone else diagnosed her condition before seeing Doctor Lucas. She would only be disqualified if in fact the three stressors did not of themselves cause the nervous shock precipitating the psychiatric illness. In my opinion she is not so disqualified.

The second argument put by the appellant was that no claim for damages arose in this case because at the same time as the respondent suffered the psychiatric illness consequent upon the nervous shock she also suffered, as it was put, a "concurrent and non-compensable cause, tantamount to a supervening cause and there is no right of recovery".

The argument went that as the respondent had also suffered grief and bereavement which was a non-compensable cause that amounted to a supervening cause and there was no right of recovery.

A party cannot recover, if that party suffered only grief and bereavement and no psychiatric illness. Mount Isa Mines v Pusey per Windeyer J at 394; Hinz v Berry [1970] 2 QB 40 at 42; Alcock v Chief Constable of South Yorkshire per Lord Oliver at 416; Hewitt v Bernhandt (1979) 21 SASR 510; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248; State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202 at 217.

It is probable that a party cannot recover even if the grief and bereavement cause a psychiatric illness unless the party has proved, as is required, a nervous shock.

However the fact that a party has suffered grief and bereavement does not disentitle that party from a claim for damages for nervous shock causing psychiatric illness.

If the argument was right, everyone who suffered nervous shock, together with grief and bereavement, would be disqualified from obtaining damages. It would mean only those persons who were disassociated from the deceased person would be entitled to qualify for a claim for damages for nervous shock. That would appear to limit the class to the unrelated passenger or driver or onlooker or an unrelated person who comes across the scene of the accident. The argument simply cannot be right. It also cannot be right because it would mean the closer a person is to a deceased or injured person and the more that the person has thereby suffered the less likely that person will be able to recover in a claim for nervous shock.

TRI MINH PHAM v TRACEY LAWSON No. SCGRG 96/704 Judgment No. 6086 Number of pages - 32 Torts - negligence - damages

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TRI MINH PHAM v TRACEY LAWSON No. SCGRG 96/704 Judgment No. 6086 Number of pages - 32 Torts - negligence - damages (1997) 68 SASR 124 [1997] SASC 6086 (25 March 1997)

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Legislation Cited (4)

Cases Cited (11)