KR THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES NV THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES [1989] NSWCA 210

KR THOMAS v CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES NV THOMAS v_ CORRECTIVE SERVICES COMMISSION OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY JJA,and Hope AJA 16,17 November 1989, 20 December 1989

[1989] NSWCA 210

NEGLIGENCE — murder of one prisoner by another in Parramatta Gaol — callous notification of death by authorities to parents death causes nervous shock to parents — proceedings for damages for nervous shock by parents against Corrective Services Commission — whether negligence of Corrective Services Commission causing death proved — no evidence of system by which gaol conducted — negligence not established.

Samuels JA I agree with Priestley JA.

Priestley JA On 4 January 1982, a prisoner named Peter Thomas ("T") who was serving a term of imprisonment in Parramatta Gaol was killed by another prisoner named Hewitt ("H''). H was later convicted of T's murder. T's parents lived in Orange. The way in which the Corrective Services Commission ("the Commission") caused the parents to be notified of their son's death was later described by Hunt J as having been done in "an extraordinarily callous and uncaring and wholly reprehensible manner".

Hunt J said this when awarding each of the parents compensation for injury under s437 of the Crimes Act, following conviction of H. He awarded them $10,000, the maximum possible under the section. That happened on 10 May 1984. Afterwards, Mr and Mrs Thomas began proceedings in the District Court against the Commission. Each claimed to have suffered injury from mental and nervous shock because of negligence by the defendant because of which their son was murdered. Hunt J had indicated when granting the applications under s437 that both Mr and Mrs Thomas had suffered nervous shock in the sense relevant to the claims against the Commission. When those claims were heard before his Honour Judge Hosking, there was ample evidence to show that both parents had been markedly affected by their son's death and that the effect upon them could be rightly classified as injury from nervous shock. Judge Hosking said that clearly both plaintiffs had suffered greatly and would continue to suffer as a result of their son's death. There appears to have been little doubt about the damages aspects of the claims of the parents. On the question of the Commission's liability, Judge Hosking was not satisfied that the facts proved supported a finding that it was the Commission's negligence which caused the plaintiffs' damage. He dismissed the proceedings. The plaintiffs appealed to this Court.