Scala v Mammolitti [1965] HCA 63

High Court of Australia Barwick C.J. Kitto, Taylor, Menzies and Windeyer JJ. Scala v Mammolitti [1965] HCA 63

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 1 Barwick C.J.

I have had the advantage of reading the reasons for judgment to be delivered by my brother Taylor. I agree both with his conclusion and the reasons which he expresses for reaching it. In my opinion, s. 4 (1) of the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W. does give independent causes of action to each of the persons described in pars. (a) and (b) of the sub-section, and in the case of par. (b) in the circumstance there mentioned, against a person who, by an act, neglect or default causes the death, or injury of another, or who by an act, neglect or default, puts another in peril.

In my opinion, the appeal should be dismissed.

Kitto J.

This is an appeal against a judgment for the plaintiff, given by the Full Court of the Supreme Court of New South Wales, upon a demurrer to a plea in an action for damages for injury arising from nervous and mental shock caused by a negligent act of the defendant by which the plaintiff's husband was injured.

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

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