Anna Maria De Franceschi v Patricia Maria Storrier [1988] ACTSC 10 (29 February 1988)

SUPREME COURT OF THE ACT

ANNA MARIA DE FRANCESCHI v. PATRICIA MARIA STORRIER
S.C. No. 1231 of 1983
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Negligence - nervous shock - children of plaintiff injured in motor vehicle accident - liability admitted by defendant - plaintiff suffers continuing headaches and depression - whether identifiable damage or injury to plaintiff's psychological system as distinct from mere concern and fear for welfare of children - Law Reform (Miscellaneous Provisions) Ordinance 1955 s.24(1).

Damages - nervous shock - children of plaintiff injured in motor vehicle accident - liability admitted by defendant - plaintiff suffers continuing headaches and depression - whether identifiable damage or injury to plaintiff's psychological system as distinct from mere concern and fear for welfare of children - interest on damages - (Law Reform (Miscellaneous Provisions) Ordinance 1955 s.24(1); Australian Capital Territory Supreme Court Act 1933 s.53A(b).

Law Reform (Miscellaneous Provisions) Ordinance 1955 s.24(1)

Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1970) 125 CLR 383 at p 394

Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549 at p 560

Swan v. Williams (Demolition) Pty. Ltd. (1987) Aust Torts Reports 68,656

Australian Capital Territory Supreme Court Act 1933 s.53A(b)

HEARING

CANBERRA
29:2:1988

ORDER

1. There be judgment for the plaintiff in the sum of $30,000.

2. The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for nervous shock by a mother of four children, three of whom were injured as a result of the negligent driving of the defendant on 21 June 1977. The injured children were Robert, then aged about 17, Carol, then aged about 15, and Andrew, then aged about 13. They had set off from their home in Pattinson Crescent, Flynn, at about 8 a.m. in order to catch a school bus from a bus stop about two hundred metres away in Kingsford Smith Drive. Whilst they were waiting for the bus the car driven by the defendant spun off the road into the persons collected at the bus stop. The three children mentioned suffered serious injuries. Another person was killed. The fourth child, Michael, then aged about five was at home in bed. Liability for nervous shock in the Australian Capital Territory is affected by s.24(1) of the Law Reform (Miscellaneous Provisions) Ordinance 1955 which provides as follows:

"24(1) The liability of a person in respect of

injury caused . . . . by act, neglect or default by
which another person is killed, injured or put in
peril extends 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) another member of the family of the person
so killed, injured or put in peril, where
the person was killed, injured or put in
peril within the sight or hearing of that
other member of the family."

2. As the injury to the children occurred whilst the plaintiff was at her home and the children at the bus stop, it may be questionable whether the injury to them occurred "within the sight or hearing" of the plaintiff within the meaning of the Ordinance. However, the liability of the defendant to the plaintiff for damages for nervous shock is admitted, and it is unnecessary to discuss this question further. It is also unnecessary to discuss the further question as to whether the plaintiff's rights under the Ordinance are exclusive of her right to sue at common law. The admission of liability on behalf of the defendant includes not only an admission of negligent conduct in the sense of failure to take due care for the safety of the children, but also an admission that the plaintiff has sustained compensable damages. Counsel for the defendant freely and properly conceded that the plaintiff had sustained a degree of nervous shock, for which damages would lie, but contested the extent to which the plaintiff's health and enjoyment of life has been affected by what is properly characterised as nervous shock as contrasted with what may be best described as concern and fear for the welfare of the injured children.

3. The case is a relatively simple one and it is necessary to review the evidence only briefly. In the first instance it is appropriate to say that a trial judge is used to approaching cases involving allegations of psychological injury with a measure of scepticism. However, the plaintiff appeared to me to be an unusually impressive witness, and if that were not sufficient, she was supported by unusually impressive corroborative evidence. Indeed the only area in which it was sought on behalf of the defendant to attack the plaintiff's evidence was in relation to her complaints of headaches. I shall deal with this aspect in a moment.

4. The plaintiff was born on 10 November 1938 in Italy and came to Australia in 1959. She married here. It appears that she did not engage in any employment outside the home to any significant extent and she and the witnesses described her as a happy mother and wife. Her husband was engaged, as he still is, in the building trade. She helped by keeping the books of the business.

5. It may be worth noting that on 3 June 1977 the plaintiff had a hysterectomy and was confined to bed for twelve days thereafter. She had been up and about for only a week or so prior to the accident and this may have predisposed her to the reaction to the children's injuries.

6. She first heard of the accident when she was having a cup of coffee, having seen the children out the door to school. A young boy knocked on the door and gave a somewhat incoherent account of an accident which suggested that the children might be involved. Concerned for what might have occurred, the plaintiff immediately rang her husband at work. As she did so she heard the sound of an ambulance. With growing apprehension she then went to the bus stop, but was prevented by police from getting through to see exactly what had happened. She noticed stretchers and an ambulance. She said she felt a fear then such as she had never felt before. The plaintiff then fainted and next remembered sitting in a lounge chair in her home surrounded by other persons. She was still apprehensive and uncertain as to what had happened and wanted to return to the scene of the accident. She was prevented from doing this by the people present. She telephoned her husband's work place and was told that he had gone to the Royal Canberra Hospital. A friend then drove her to the hospital. She saw her husband in a waiting room adjacent to the intensive care section. She was then told for the first time that all three children had been injured. This was at about 10.30 or 11.00 a.m. She saw the children each in turn in intensive care. It is unnecessary to repeat the evidence. It was obvious to her that each of the children was severely injured, and that Carol was in a critical condition on a life support system. Early in the afternoon Dr Newcombe, the neurosurgeon, advised the plaintiff and her husband that it was necessary for them to decide whether or not the child should continue on the life support system, because the prognosis as to permanent brain damage was so grave. They decided in favour of keeping the child alive. The plaintiff and her husband gave evidence on this aspect and each was noticeably distressed whilst giving that evidence.

7. Fortunately over the next six months the condition of each of the children improved. During the first few weeks the plaintiff spent most of her time at the hospital. Robert and Andrew were discharged before Carol, who remained in hospital, so it appears, until approximately the end of the year. She nevertheless continued to need operative treatment until 1982. Carol continues to suffer from a rightsided hemiplegia caused by brain damage. Her face is swollen on the left side. She walks with a pronounced limp. Her right leg is 4 centimetres shorter than her left. She has a weak right arm. She has a defect in memory or expression which causes difficulty in finding the right words in which to express herself. Fortunately, she met a caring young doctor engaged in cancer research who married her in 1986 and she lives with him in Melbourne.

8. The injuries to Andrew were predominently internal, involving a fractured pelvis, ruptured diaphragm and associated injuries. He was confined to hospital for four weeks. The aftermath of the injury as far as he is concerned was the reactivation of an asthmatic condition from which he had suffered whilst a younger child, but which had been absent in the three years prior to the accident. The plaintiff still sees him regularly and when she does he is sometimes observed with blue lips and dark eyes which leads her to the conclusion that he is still suffering from asthmatic attacks. Andrew married in mid-1985.

9. The physical injuries to Robert were the least severe but he was greatly affected psychologically. In addition he appeared to the plaintiff to become nervous and "jumping back with words" and refused to discuss the accident at all. He left home in 1980 and married in December 1983. He works with his father in the building industry.

10. When the children were discharged from hospital they continued to have treatment from a local doctor, Dr Cochrane, and according to the plaintiff, Dr Cochrane started to treat her as well. She had previously consulted her obstetrician, Dr Munroe, on one occasion who had prescribed Valium for her but the plaintiff said that she was too concerned with the children to seek continuing medical treatment for herself in the early stages. At any rate, in 1979 Dr Cochrane prescribed more tranquillizers which assisted the plaintiff's condition and she continued in this way for about two years.

11. According to the plaintiff's evidence, during this period of two years or so she suffered almost daily from headaches which she described as involving general aching throughout the head associated with crying on her part and occurring almost daily. Since 1979 the headaches have, according to the plaintiff, continued but have changed in their nature in that in addition to the generalised pain in the head associated with crying, she suffers from a throbbing or thumping type of headache when she is resting and before she goes to sleep at night. She has ceased to take the tranquillizers and now takes Panadol on a regular basis for the headaches. She has difficulty with sleeping and gets up in the middle of the night and goes to the kitchen. When she does so she looks out the window towards where the accident occurred. She has noticed that she has become cold towards her husband both sexually and in a general sense. She feels that she puts her thoughts about her children in front of those of her husband.

12. Despite the improvement in the condition of each of the children and the fact that each of them is married, they continue to provide a source of worry to the plaintiff. Carol is in constant contact with her over the telephone, but her problems in verbal expression are a continual reminder to the plaintiff of the events surrounding the injury. Robert's marriage has broken down and he is a frequent visitor to the plaintiff's home. She continually worries about further accidents. She worries about whether Michael will be involved in an accident. She watches him when he leaves home in the morning until she sees the bus go downhill. She is reminded of the accident each time she goes down to Kingsford Smith Drive. The plaintiff herself was involved in a motor accident in 1985 in which she received a knee injury which required six stitches.

13. In 1982 the plaintiff was referred to a number of doctors and in particular Dr Danta, a neurologist, who recommended a series of tests which involved hospitalization and what the plaintiff understood to be "a slight heart attack". The plaintiff has declined to submit to that sort of treatment. I do not think that that constitutes unreasonable failure to mitigate her damage. The prospects of success are doubtful and the risk appears to be disproportionately high.

14. The evidence of the plaintiff was corroborated by three witnesses. Mrs. Teri Lessels, a trained nurse and voluntary social worker, has known the plaintiff since 1973. She saw the plaintiff daily for the first eight weeks after the accident and described her as shocked, depressed and, most significantly, "almost mentally deranged". The plaintiff complained to her of diarrhoea and headaches during this period and Mrs. Lessels observed the plaintiff vomiting during that period. Mrs. Lessels said that the plaintiff, whom she still sees regularly, continues with some improvement but as a changed woman. The plaintiff is virtually obsessed about the children and insists upon speaking about them and their difficulties and she usually ends up crying. Similar evidence was given by Mrs. Sarina Cardone, a neighbour of the plaintiff for some fourteen years. She was present with the plaintiff in the lounge room after the plaintiff fell unconscious at the scene of the accident. She observed the plaintiff to be confused, "continuously crying and complaining of headaches". She said that the plaintiff is continually talking about her children's problems, and that "she never have something else to say". The plaintiff now has very little social life.

15. The plaintiff's husband, Mr. Ceasar de Franceschi, gave evidence along similar lines, although he made no mention of any complaints of headaches on the part of the plaintiff. He also mentioned, as did the plaintiff, that in the months after the accident the plaintiff was unable to attend to the bookwork of the business and indeed that resulted in a failure to file an income tax return with a consequent fine.

16. The medical evidence in the case consisted of reports from Dr Tennant, a psychiatrist, who saw the plaintiff on a number of occasions and initially in association with treatment of the daughter, and Dr Dyball, a consultant psychiatrist, who saw the patient on one occasion on 15 October 1987 on behalf of the defendant. It is unnecessary to set out or discuss the reports in detail. They confirm what I have already said. The situation was, I think, accurately summarised by Dr Tennant in the first of her reports of 3 May 1984 when she said as follows:

"There is no question Mrs. De Franceschi suffered
a severe shock at the time her children were
injured.

She has continued to suffer greatly in her
concern for her daughter. It has been for her, a
type of bereavement and she has reacted as if
bereft of her healthy daughter.

She has been unable to deal with this bereavement
and has developed a chronic state of depression."

17. When she next reported in July 1985, Dr Tennant thought that the plaintiff remained chronically mildly depressed but was at risk of becoming more severely depressed, particularly because of her extreme sensitivity to the problems of the daughter. When she last reported on 3 August 1987, Dr Tennant thought that the plaintiff was not then "actively depressed" but there was a deeply entrenched fear regarding the children's health and welfare. Dr Tennant felt that the plaintiff was not likely to improve and that she had been left "permanently emotionally scarred".

18. Dr Dyball's view was very similar to that of Dr Tennant, although not quite as pessimistic. He saw the plaintiff as having suffered a "post-traumatic stress reaction which turned into a mood of mild depression, which in degree has been ongoing". Dr Dyball thought that the depression had not interfered with the plaintiff's life "in the practical sense" because she had been able to get on with running her home, looking after the children and helping her husband in his business. However, my own view, having heard the corroborative witnesses as well as the plaintiff herself, is that the plaintiff's condition is a little more serious than assessed by Dr Dyball, but I think that there is the possibility, which Dr Dyball seems to envisage as a probability, that in the future the plaintiff's symptoms will become intermittent rather than continuous.

19. Reviewing this evidence in a general way, I have come to the conclusion that there have been three stages in the development of the plaintiff's condition up until the present time. From the time of the accident until some time in 1979 which approximates to one year from the accident, the plaintiff's condition was at its worst, improving somewhat until some time in 1982 when she no longer believed that the life of Carol was threatened. Thereafter she continued much as she is now. There is no doubt in my mind that the effect on the plaintiff of the knowledge that the children had been injured, and very severely injured, positively confirmed the initial inchoate fears of the plaintiff when she fainted at the scene of the accident on the morning of 21 June 1977. There is also no doubt in my mind that from that time until some time in 1982 the preoccupation with the health of the children was in the nature of an obsession such that it had a serious and deleterious effect on her health. I am convinced on the balance of probabilities that she has suffered the headaches which she has described in her evidence and it is simply because of the concern for her children that she had failed to seek continuous treatment for herself. The headaches cannot be dissociated from the depression which I also find on the balance of probabilities as being continuous (although fluctuating in intensity) since the date of the accident. Although there is no record of any complaint of headaches to Dr Dyball or to Dr Tennant, whose reports furnished the only medical evidence in the case, I do not think that this deficiency in the plaintiff's case outweighs the evidence of the plaintiff herself and that of supporting witnesses who, as I have already said, were unusually impressive.

20. It is clear that as a matter of law the plaintiff is not entitled to be compensated for mere concern and fear for the welfare of her children. Many claims for nervous shock are brought by plaintiffs who have suffered the death of a relative. It has frequently been said that damages may not be awarded for "mere grief" as distinct from nervous shock, that there has to be evidence of something that goes beyond the normal reaction of a human being to the death of a loved one and which results in some sort of identifiable damage or injury to the plaintiff's psychological system. In this respect the term "nervous shock" has fallen out of fashion and lawyers have been accused of lacking sophistication in the areas of psychiatric and psychological science.

21. In Mount Isa Mines Limited v. Pusey [1970] HCA 60; (1970) 125 CLR 383 at p 394, Windeyer J. said as follows:

"Sorrow does not sound in damages. A plaintiff
in an action of negligence cannot recover damages
for a "shock", however grievous, which was no
more than an immediate emotional response to a
distressing experience sudden, severe and
saddening. It is, however, today a known medical
fact that severe emotional distress can be the
starting point of a lasting disorder of mind or
body, some form of psychoneurosis or a
psychosomatic
illness. For that, if it be the result
of a tortious act, damages may be had. It is in
that consequential sense that the term "nervous
shock" has come into the law."

Later on p.395 his Honour went on to say:

Law, marching with medicine but in the rear and
limping a little, has today come a long way since
the decision in Victorian Railways Commissioners
v. Coultas (1888) 13 App Cas 222, which in
recent times has been regularly by-passed by
courts. An illness of the mind set off by shock
is not the less an injury because it is
functional, not organic, and its progress is
psychogenic. I need say no more on that aspect.
I merely venture to refer to what, in a different
connexion, I wrote in Federal Broom Co. Pty.
Ltd. v. Semlitch [1964] HCA 34; (1964) 110 CLR 626 at pp 635-637
about mental ailments. The plaintiff has
suffered harm of a kind that can sound in damages
in some cases. Is this case one?"

22. The defendant in the present case has already answered the question posed by Windeyer J. by admitting liability. The problem in this case is not whether what happened to the plaintiff sounds in damages but to what extent.

23. In Jaensch v. Coffey [1984] HCA 52; (1984) 155 CLR 549 at p 560 Brennan J. said:

"Compensation is awarded for the disability from
which the plaintiff suffers, not for its
conformity with a label of dubious medical
acceptability. The term "nervous shock" is
useful nevertheless as a term of art to indicate
the aetiology of a psychiatric illness for which
damages are recoverable in an action on the case
when the other elements of the cause of action
are present."

On p.565 his Honour 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 may 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 tortfeasor liable to child."

24. What his Honour has had to say in these concluding words is, in my respectful opinion, of particular relevance in the present case. The worry and anxiety on the part of the plaintiff that has resulted from, for instance, the condition of her brain-damaged daughter, even if that worry and anxiety attract the label of a psychiatric illness, is not compensable. Nevertheless, in my view, such a condition on the part of the child may contribute to the continuing effect of the "shock" which the plaintiff suffered as a result of her reaction to the injuries to the child at the time of those injuries, or within a sufficiently short time thereafter.

25. A distinction of this nature was drawn by Priestly J.A. with whom McHugh J.A. agreed in the decision of the New South Wales Court of Appeal in Swan v. Williams (Demolition) Pty. Ltd. (1987) Aust. Torts Reports 68,656. The distinction is a fine one and will inevitably turn on the evidence in each particular case. In Swan's case Samuels J.A. dissented, taking the view that the evidence did not establish a medical disorder capable of amounting to mental or nervous shock as the law understands that term. In the view of the majority judges, however, the evidence established that the plaintiff underwent "more than ordinary grief" as the result of his wife's death and that what happened to him amounted to an injury resulting from shock although that injury itself was not of a permanent kind and had healed before the date of trial and after about two years from the time of the death of the deceased wife.

26. As I have already stated, there is no doubt in my mind that the plaintiff originally sustained what must, according to any proper standard, fall within the concept of nervous shock. To use an analogy with Swan's case, it went well beyond ordinary concern or fear for the injured children. Viewing the situation since then in a broad way I do not think that it could be said that the plaintiff has ever quite recovered from the shock. There was no suggestion in the evidence, or indeed in submissions on behalf of the defendant, that this is the sort of case in which the prolonged litigation has contributed to the plaintiff's condition, and I make no finding that it has so contributed. Conversely, it is not the sort of case, in my view, in which it could be said that the plaintiff's condition is likely to improve once she receives an award of damages. On the other hand, however, the future of each of the children in the present circumstances appears to be as well-assured as can be expected. At least there does not appear to be any prospect of deterioration. There is then, I think, some likelihood that over a period of time the plaintiff will learn to live more easily with the consequences of what has happened to the children. Put another way, I am not convinced on the probabilities that the plaintiff's headaches and depression will continue forever. It is a highly artificial exercise to try and separate out those elements in her condition which relate to the nervous shock and those which relate merely to a natural concern for the children, particularly Carol, but the exercise has to be undertaken. I think that uncompensable natural concern will at some stage displace the effects of nervous shock, if it has not already begun to do so, so that eventually the effect of the nervous shock will be minimal. That is not to say that the plaintiff will regain her pre-accident health and disposition, but simply to take the view that her condition will be due to normal and natural concern for the welfare of the children.

27. The assessment of damages is a difficult task. The plaintiff has not sought to inflate her claim. There is no claim for loss of earnings or earning capacity. The out-of-pocket expenses have been paid by medical funds and the plaintiff sensibly has not included those in her claim. She makes no claim under Griffiths v. Kerkemeyer. I was asked on behalf of the defendant to have regard to the fact that the children have all successfully pursued claims. I am unable to see how that should affect the award in favour of their mother.

28. In all the circumstances, I think that an appropriate total award for the plaintiff is $25,000.

29. Interest is claimed. In order to assess interest in the normal way it is necessary to separate damages for the past and damages for the future. Again because this is such an unusual case, it seems to be inappropriate to approach the assessment of damages that way. It seems to me more desirable to assess a global sum for past, present and future and this I have done. On the other hand it would, I think, be unfair to deprive the plaintiff of a sum in the way of interest. I do not know the explanation for the extraordinary delay in prosecuting the case and hence I am not convinced that the defendant should shoulder the total cost of the delay. I therefore propose to award in lieu of interest the sum of $5,000 pursuant to s.53A(b) of the Australian Capital Territory Supreme Court Act 1933. There will therefore be judgment for the plaintiff in the sum of $30,000 and unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.