Susan Elizabeth Hanley; Steven James Hanley (An Infant); Jane Elizabeth Hanley (An Infant) By Their Mother and Next Friend Susan Elizabeth Hanley v Phillip Keary and Kathleen Ann Keary [1992] ACTSC 7 (28 January 1992)

SUPREME COURT OF THE ACT

SUSAN ELIZABETH HANLEY; STEVEN JAMES HANLEY (an infant); JANE ELIZABETH HANLEY
(an infant) by their mother and next friend SUSAN ELIZABETH HANLEY v. PHILLIP
KEARY and KATHLEEN ANN KEARY
S.C. No. 674 of 1989
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Negligence - Duty of Care - Nervous Shock - Motor Accident - Husband and Father Killed by Negligent Driving - Widow and Children not present at accident or aftermath - Foreseeability - Proximity - Common Law - Statutory Provisions

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ss3,4

Law Reform (Miscellaneous Provisions) Act 1955 (ACT) ss 23,24

Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1

Bourhill v Young [1942] UKHL 5; (1943) AC 92

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222

Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153

Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383

McLoughlin v O'Brien [1982] UKHL 3; (1983) 1 AC 410 at 421

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549

Alcock v Chief Constable of South Yorkshire (1991) 3 WLR 1057

HEARING

CANBERRA
28:1:1992

ORDER

Judgment be entered for the firstnamed plaintiff against both defendants in the sum of $24,500.00.

Judgment be entered for the defendants against the second and third plaintiffs.

DECISION

In this action there are three plaintiffs. Each seeks to recover damages for nervous shock arising out of the death of Robert John Hanley, ("the deceased"), who died on 30 January 1985 from injuries he received in a motor vehicle accident. It is conceded that the accident resulted from the failure of the second defendant, who was the agent of the first defendant, to take reasonable care for the safety of the deceased.

2. The first plaintiff ("the widow") had been married to the deceased since 21 December 1968. The other plaintiffs were their children, Steven, who was six years of age at the date of his father's death, and Jane, who was then three.

3. None of the plaintiffs saw or heard the accident in which the deceased was killed. He left for work riding a bicycle in the morning. The widow was informed of the death by a police officer and the headmaster of the school where she worked. Because of the extensive injuries he had suffered she was advised not to see his body, which advice she accepted.

4. At common law it had been held that the duty to take reasonable care did not extend to persons who suffered only nervous shock as the result of a defendant's carelessness. Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1; Bourhill v Young [1942] UKHL 5; (1943) AC 92, or, as it was formulated in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, damages for nervous shock alone were too remote.

5. In New South Wales the common law was altered by the Law Reform (Miscellaneous Provisions) Act 1944, ss 3 and 4, legislation which was later enacted for the Australian Capital Territory by the Law Reform (Miscellaneous Provisions) Ordinance (now Act) 1955, ss 23 and 24.

6. By s.23 (1) of the Ordinance (s.3 of the Act) it was enacted that, in an action for injury to the person, a plaintiff was "not debarred from recovering damages merely because the injury complained of arose wholly or in part from nervous shock."

7. By s.24 (1) of the Ordinance, (s.4 of the Act), so far as is relevant to this action, the liability of a defendant was extended to include liability for injury arising wholly or in part from mental or nervous shock sustained by
(a) the widow; or

(b) the children of the deceased where the deceased was
killed within the sight or hearing of that child.

8. The effect of the legislation was expounded by Taylor J. in Scala v Mammolitti [1965] HCA 63; (1965) 114 CLR 153. Barwick C.J. and Windeyer J. expressly concurred in his reasons.

9. The precise question at issue in that case was whether a verdict for the defendant in an action by the husband who was alleged to have been put in peril by the defendant's negligence was a bar to the action under the Statute by the wife for damages for nervous shock.

10. Taylor J. held, (at 158-160),

"However it is of importance in the case to consider the state of
the law on this subject-matter immediately before the enactment
of s.4(1). After a number of vicissitudes the liability of a
person for injury by nervous and mental shock came to be governed
by the same principle as liability for other injuries. There was
no liability for nervous and mental shock unless it was caused by
a breach of a duty to take reasonable care. But such a duty was
owed to every person who, it could reasonably be foreseen, was
likely, as a result of a careless act, to suffer injury of the
character in question. It has been suggested that the duty to
take care extended over a somewhat wider field but that damages
could be recovered only if they were reasonably foreseeable (see
King v. Phillips). But this is of little consequence in the
discussion of the present problem for it is enough that liability
for damages for nervous and mental shock arose out of the breach
of an independent duty owed to the person suffering such injury;
it was in no way dependent upon the rights of any other person.
We are able to assert therefore, that prior to the enactment of s.4
(1) the liability of any person in respect of injury caused by a
negligent act, by which any person was killed or injured included
(i) a liability to pay damages to, or to the representatives of, the
person injured or killed, and (ii) a liability to pay damages for
nervous or mental shock sustained by any other person to whom a duty
of care was owed. What then does s.4(1) accomplish? Clearly
enough, it merely operates to extend the field in which persons
standing in a special relationship to a person killed, injured or
put in peril may recover for nervous or mental shock, and in the
case of a husband or wife, makes it unnecessary to show that an
injury to the plaintiff of this kind could reasonably have been
foreseen. But in no way does it make the right to recover damages
for nervous or mental shock dependent upon proof of a liability to
compensate the initial victim. Before the section a wife might
recover damages for nervous or mental shock where her husband had
been injured by the negligence of a third person, but only if it
could reasonably have been foreseen by the wrongdoer that injury of
that character was likely to ensue. Her action was for the breach
of an independent duty owed to her and the failure of her husband to
recover was not fatal to her claim. All that the section does it to
make it no longer necessary to prove that damage to her of that
character was reasonably foreseeable. The section may, perhaps, be
said to proceed on the basis that injury by nervous or mental shock
to a parent, husband or wife is not an unlikely consequence where a
child, wife or husband has been killed, injured or put in peril.
But it otherwise leaves the earlier law untouched.
In the course of these observations I have not touched on par.(b)
of s.4(1) which deals with liability to other members of the
family of the person so killed, injured or put in peril. But the
same notion is apparent. It operates to substitute for the test
of foreseeability a concrete test - Was the initial victim
killed, injured or put in peril within the sight or hearing of
such a member of the family? But it does not otherwise affect
the cause of action of any such member of the family."

11. It is immediately apparent that the statute does not operate to found a cause of action in the children. Their father was not killed within their sight or hearing.

12. But the common law has developed in this area of subject matter since 1944. If, according to the principles of the common law as they now are enunciated by authority, the children could recover damages, I would not construe the statute as restricting their rights in any way. I think that the words "is not debarred from recovering damages merely because" in s.23(1), and "The liability.....extends to include" in s.24(1), make it clear that the statute was intended to extend rights, not to restrict them. It would be contrary to its purpose to read it as if it enacted that persons suffering nervous shock could recover damages "if and only if" they could bring themselves within its terms.

13. The common law most relevant to this action has been declared for Australia most recently by the High Court in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549. As Dawson J. said at 611,

"Development of the law in this country and elsewhere has made it
plain that the views expressed in Victorian Railways
Commissioners v Coultas no longer represent the law and that the
decision of this Court in Chester v Waverley Corporation must be
confined to its own facts. It is now clear that damages are
recoverable in a variety of circumstances for mental injury
caused by nervous shock as a result of negligence."

14. That appeal arose out of an action in South Australia where there is no legislation corresponding to the Law Reform (Miscellaneous Provisions) Act 1955.

15. The more detailed reasons for the decision were those of Deane J. and Brennan J. The judgment of Murphy J. is mainly directed at the implications of the Welfare State for Personal Injury Law, and although he concurred in the order proposed, his reasons do not have any great relevance for the problems posed by this case.

16. All the other judges agreed that the question to be resolved was whether the defendant owed a duty of care to the plaintiff. The divergence of opinion arose on the question whether, in order to raise that duty, it was sufficient for the plaintiff to show that in the circumstances of the case the wrongdoer could have reasonably foreseen that his act of negligent driving might cause some sort of psychiatric illness to persons of a class of which she was one, or whether there was another condition to be fulfilled, imposed by considerations of public policy, such as what is referred to by Deane J. as "the proximity test," and as was suggested by Lord Wilberforce in McLoughlin v O'Brien [1982] UKHL 3; (1983) 1 AC 410 at 421.

17. Murphy J. did not comment on that question. Dawson J. (at 613) did not think it was necessary to settle the controversy in order to decide the appeal. He agreed that the events which caused nervous shock to Mrs Coffey were part of the aftermath of the accident resulting from the defendant's negligence. The fact that those events were a combination of the plaintiff's own observations and what she was told by others did not preclude the recovery of damages. Brennan J. (at 577) thought that, in nervous shock cases, the limitations suggested by Lord Wilberforce are appropriately taken into account by the general principles of causation and reasonable foreseeability.

18. Deane J. (at p 591) posed two questions as arising on the facts, both of which are, it seems to me, relevant to this present case.

19. The first was, did the fact that the plaintiff was not at the scene of the accident have the consequence that the risk of injury to her was not reasonably foreseeable. He held that it did not. In that finding Gibbs C.J. and Dawson J. agreed, and, as I read his judgment at 567, 568, so did Brennan J. The second question posed by Deane J. in Coffey's Case at 591 was whether the requirement of proximity or some other operative limitation or control upon the ordinary test of reasonable foreseeability could preclude recovery. In that case both he and Gibbs C.J. were of the opinion that this test also must be satisfied.

20. At the end of his reasons Deane J. added (at 611),

"Brief mention should be made of two other matters. First, what
has been written above in relation to the class of case on the
part of a user of a public road to avoid mere psychiatric injury
by use of the road for conventional purposes may prove to be
inapplicable to, or may require modification in its application
to, other situations in which a more or less extensive duty of
care may be recognised: cf. Mount Isa Mines Ltd. v Pusey (26);
Brown v Mount Barker Soldiers' Hospital Incorporated (27);
Wilkinson v Downton (28); and Bunyan v Jordan (29). Second, there
is no provision in the statute law of South Australia
corresponding to s.4(1) of the Law Reform (Miscellaneous
Provisions) Act 1944 (N.S.W.) (see above) and it is unnecessary
to consider the question whether such legislative provisions,
where they are to be found, should be construed as being intended
to have a limiting, as well as an ameliorating, effect on the
common law: cf. Scala v Mammolitti (30); Pusey (31)."

21. The passage to which he referred in Scala v Mammolitti is the passage from the reasons of Taylor J. that I set out above.

22. The reference to Pusey is to a passage in the judgment of Windeyer J. (at p 408) in Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, where, after referring to the New South Wales Legislation, he continued,

"That statute was passed after the decision, in 1942, of Bourhill
v Young (1). It modifies the effect of that case. It means
that in New South Wales a right of action for nervous shock
resulting from a happening, tortiously caused, in which a member
of the plaintiff's family was killed, injured or put in peril can
be founded on the fact of the relationship of the plaintiff to
the person so killed, injured or put in peril. If the plaintiff
who suffered the shock is a parent, as defined, or husband or
wife of such person, that is enough. If the plaintiff is some
other "member of the family", as defined, that is enough if the
event which caused the shock happened within his sight or
hearing. The operation of the statutory provisions has been
considered in New South Wales in several cases, including
Anderson v Liddy and Smee v Tibbetts. It may be that in that
State, by reason of an expressio unius, it is only a member of
the family who can sue for nervous shock by the sight of a
tortious injury to someone else. However that may be, it is of
no importance in this case. This case turns on the common law
and I am unable to see that any guidance as to the operation of
the common law in Queensland today is to be had from considering
the operation in New South Wales of a statutory modification of
what the common law was in 1944; for in this field the common
law has been and is being continuously developed by the courts.
There is, however, one thing to be read in Scala v Mammolitti in
which the statute accords I think with the common law. That is that
liability for nervous shock, resulting from the sight of another
person's injury or peril negligently caused, is not a by-product as
it were of liability to that other person. The shock-producing
event is a tort to the plaintiff."

23. Despite the reservations expressed by such eminent authorities, I consider myself at liberty, indeed, required, to proceed on the basis that the Statute did not restrict the rights of the children.

24. Since this case was argued there have been published the decisions of the Court of Appeal and the House of Lords in Alcock v Chief Constable of South Yorkshire (1991) 3 WLR 1057, a case which arose out of the disaster at the Hillsborough Football Stadium on the occasion of the F.A. Cup semi-final between Liverpool and Nottingham Forest on 15 April 1989.

25. As did Gibbs C.J. and Deane J. in Jaensch v Coffey, the House of Lords in Alcock applied the dicta of Lord Wilberforce in McLoughlin v O'Brien [1982] UKHL 3; (1983) 1 AC 410 at 421, 423.

26. The speeches in the House of Lords cite passages from the reasons of Deane J. with approval on a number of occasions. The effect of the decision is summarised in the headnote as follows:

"Held, (1) that in order to establish a claim in respect of
psychiatric illness resulting from shock it was necessary to show
not only that such injury was reasonably foreseeable, but also
that the relationship between the plaintiff and the defendant was
sufficiently proximate; that the class of persons to whom a duty
of care was owed as being sufficiently proximate was not limited
by reference to particular relationships such as husband and wife
or parent and child, but was based on ties of love and affection,
the closeness of which would need to be proved in each case; that
remoter relationships would require careful scrutiny; and that a
plaintiff also had to show propinquity in time and space to the
accident or its immediate aftermath."

27. A constant theme in these authorities is that in deciding whether the requisite duty of care existed, there are three elements to be considered, namely; the class of persons whose claims should be recognised; the proximity in time and space of those persons to the accident; and the means by which the shock is caused.

28. See McLoughlin v O'Brien per Lord Wilberforce at 422; Jaensch v Coffey per Gibbs C.J. at 555, per Deane J. at 599, 606 and per Dawson J. at 612; Alcock v Chief Constable of South Yorkshire per Lord Keith of Kinkel at 1099, 1101, Lord Ackner at 1105, Lord Oliver of Aylmerton at 1118, 1119.

29. There are thus a number of reasons why the claims of the two children can not succeed.

30. The first is that I am not satisfied on the evidence that either child sustained what could be described as psychiatric illness.

31. The younger child, Jane, aged 3, had episodes of bedwetting, and what were described by Dr Hill, her general practitioner, as behavioural problems. Dr Knox, consultant psychiatrist, described in more detail some of the behaviours that Jane's mother described to him over three years later. Of course the loss of her father had an effect upon her. But, as he sets out in his report, "While these expressions of loss by Jane Hanley express her sadness they are also healthy ventilations in a psychological sense, allowing her to clear the grief she has felt concerning the sudden loss of her father." He added, "This little girl has the intelligence and emotional security to have dealt as satisfactorily as any child can with the death of her father, although there will remain a psychological scar resulting from this tragic early loss of her father."

32. Despite the emphasis he placed in his oral evidence on the physical symptoms as evidence of psychological trauma, I am still left with the view that she did not suffer anything beyond the normal grief reaction to be expected from a child of that age.

33. The elder child, Steven, was six. He had obtained bowel control only months before his father's death. He suffered from encoporesis for some considerable time thereafter, together with bedwetting for a few weeks. He had a more reserved and less robust personality than his sister. He needed counselling and some treatment as a result of his distress.

34. Dr Knox commented in his 1988 report, "Although Steven does not now present any clearly established psychiatric illness, I have no doubt that the death of his father has aggravated the vulnerabilities already referred to in his personality."

35. Neither in his later report nor in his oral evidence did I understand him to say explicitly that he had at any time suffered an established psychiatric illness.

36. Later episodes demonstrated that he did go through a healing process, though it started later and took longer than would normally be expected. However, that does not amount to my mind to a recognisable psychiatric disorder such as must be demonstrated in order to attract compensation for nervous shock.

37. Next, even if it were accepted that the syndrome that each suffered, as described by Dr Knox, was a recognisable psychiatric injury, it was not induced by shock. See, for example, per Brennan J. Jaensch v Coffey, at 569 and per Dawson J. at 612 and Alcock per Lord Ackner at 1103.

38. In considering whether the requisite duty of care existed, the first element to be considered is the class of persons into which they came.

39. It is not sufficient that there existed a relationship of parent and child. The effect upon a parent of the traumatic death of a three year old daughter or a six year old son is obviously greater than that of the death of a parent upon children of such an age. I take into account their age and lack of the capacity to comprehend what had happened.

40. Added to that is the fact that they did not see or perceive the accident, or any physical aftermath of it.

41. Lastly, the only means by which it could be suggested that shock could be caused to them was the fact that their mother had told them that their father had been killed, and they came to realise that fact from the funeral and his continued absence.

42. In those circumstances there does not seem to me to exist either the considerations of physical proximity that Deane J. talks of at 606 or the causal proximity that he discussed at 607.

43. I therefore am not able to find that the defendants owed to the children in this case the duty of care that must be shown in order to make them liable.

44. There must therefore be judgment for the defendants in the claims by each of the two children.

45. Because of the express terms of the Statute, however, there is no need to apply any such proximity test to the claim by the widow in this case.

46. Counsel for the defendant did submit that the plaintiff widow in this case did not demonstrate that the defendant's negligence which caused her husband's death did in fact cause her psychiatric illness, or, that if it did, it did so through shock. He stressed that the plaintiff did not see the accident, or its aftermath, she was simply told of it by others.

47. In Jaensch v Coffey Mrs Coffey did at least go to the hospital. There she saw her husband in obvious distress. The next morning she was told he was in intensive care. Later that morning she was told there had been a change for the worse, and she hurried to the hospital. The husband survived, but, on the facts as found, the plaintiff suffered nervous shock as a result of the combination of what she had seen and what she had been told.

48. In the case that I must now decide the widow did not go to the hospital. She was told that to see his injuries was not advisable. I do not think that on the evidence in this case that is a relevant distinction.

49. I accept the uncontradicted evidence of Dr Knox, a consultant psychiatrist, that in the hours immediately following the news of her husband's death she was clearly emotionally shocked. He said, and I accept, that the very fact that she never saw her husband again after he left for work that morning in fact added to the intensity of her prolonged grief reaction. I am aware of the factual difficulties of proof referred to by Brennan J. at p 570, but having seen her and Dr Knox I have no doubt about the causal connection between her husband's death and her condition, and I think that when a car driver, by carelessness, so mangles the body of the victim that the victim's spouse is cautioned against viewing the remains and accepts that advice, it is reasonably foreseeable that the spouse may well suffer psychiatric illness as a result.

50. In coming to that view I am encouraged by the dicta of Deane J. in Jaensch v Coffey at 608, 609, where he commented,

"One can point to a number of judicial statements to the effect
that a person "who suffers shock on being told of an accident to
a loved one cannot recover damages from the negligent party on
that account": per Denning L.J., King v Phillips and see
Hambrook v Stokes Bros. A requirement that the plaintiff must
have perceived the peril or injury by her or his "own unaided senses"
(Hambrook) has not, however, enjoyed unqualified
support either in the United Kingdom or Australia (see, e.g.,
Schneider v Eisovitch; Andrews v Williams) 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
mother who is 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
injury sustained by a wife who attends at the scene of the
accident or at its aftermath at the hospital when her husband has
suffered serious but not fatal injuries."

51. But whether I be correct in that view or not, I think that it is still accurate to say, as Windeyer J. did in the passage cited above from Pusey's case, that the statutory right of action is founded on the mere fact of the relationship.

52. Although Taylor J. in Scala v Mammolitti spoke in terms only of foreseeability, whereas McLoughlin v O'Brien, Jaensch v Coffey and Alcock's case now import additional notions of proximity, I do not think that the later development of the common law in those cases has altered the meaning of the Statute.

53. In other words, once the relationship in s24 (1)(a) is shown to exist, there is no need to investigate separately the three elements of class of person, proximity to the accident, or means by which the shock is caused. In the case of children s24 (1)(b) substitutes the relationship together with the requirement that the deceased be killed within sight or hearing.

54. There still must be proved, of course, the causing of shock and the consequent psychiatric illness. But, as I have already stated, in this case the uncontradicted evidence of the plaintiff and of Dr Knox has satisfied me on both those issues.

55. There will therefore be judgment for the plaintiff widow.

56. The plaintiff had been happily married. She was called to the principal's office at 11 am on the morning of the accident, and was told of her husband's death by a police officer. The principal and a friend drove her home. She was stunned, wandering around in a daze and compulsively cleaning. Her children were brought home by a friend in the afternoon, and she went through the trauma of telling them that their father was dead.

57. Dr Knox described her as a reserved, controlled person, not inclined to display emotion to any large extent. She agreed in evidence with this basic picture, saying that she had really only discussed her emotions with her husband.

58. Friends arranged the funeral. There was the need for her to deal with seeing the coffin, when she had accepted the well meant advice not to view the body of her husband. As Dr Knox commented the funeral was not a satisfactory exercise in parting and grief.

59. She cried periodically, especially when alone, her appetite was disturbed, and she lost half a stone in weight over a couple of weeks.

60. She did not, however, seek any specific medical attention for her grief reaction. She returned to work as a teacher after about a week. She did not lose any time off work throughout the rest of 1985 and 1986.

61. During 1987 she took a year off work on leave without pay. I accept her evidence that she did so because she felt she had still not properly come to terms with her husband's death, and thought also that she could not cope both with teaching and the need to care for the children who needed more attention. I do not agree with the submission of counsel for the defendant that in the circumstances that period off work was not a consequence of the accident. Despite the fact that she was not medically advised for her own sole benefit to do so, I think that it was her emotional condition, in the light of the need for her to care properly for her children, that led her to make the decision, and that it was a reasonable one in the circumstances.

62. In 1988 she returned to work at Phillip College. In about April 1988 she was seen by Dr William Knox, consultant psychiatrist, at the request of the defendant's solicitors. Dr Knox saw her again in June 1991. His reports on both consultations are in evidence, and he gave oral evidence and was cross-examined.

63. When he saw her in 1988, more than three years after her husband's death, she was, in his opinion, still suffering a recognisable depression, which he described as "not a depression in the most severe sense that one sees in psychiatry, but nonetheless an intermediately severe degree of depression." He thought the depression had been quite severe for about 15 months, and then for about 18 months less severe but still present. By the time she saw him in June 1991 he felt that she had progressed to the stage when it was no longer appropriate to make a diagnosis of any psychiatric condition. The evidence does not enable me to fix with any precision the point at which her condition passed from being pathological to normal grief reaction, but I do not think it is necessary to do so. She had not sought treatment, because she was not the sort of person who wanted help from others, or who liked to take medication. But, though it took an extended period of time to do so, she did, through her own resources, come to a state of health. I think, however, that it took beyond April of 1988 for her to do so.

64. There is no claim made for out-of-pocket expenses.

65. In the light of my findings I think that her loss of income during 1987 is attributable to the accident, and I assess that loss at $4,500. For her pain and suffering I award the sum of $20,000. There will therefore be judgment for the firstnamed plaintiff against bothnamed defendants in the sum of $24,500.00.

66. I will hear counsel on the question of costs. What I have in mind as a possibility is an order that the defendants pay the costs of the action of the firstnamed plaintiff, which order would carry the general costs of the action, and the second and thirdnamed plaintiffs pay the defendant's costs referable solely to their claims.