BULJABASIC and ORS v AH LAM [1997] NSWCA 52

BULJABASIC and ORS v AH LAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, PRIESTLEY and POWELL JJA 3 September 1997, 3 September 1997

[1997] NSWCA 52

TORTS — NERVOUS SHOCK — DAMAGES — The appellants were the wife and two daughters of a man negligently injured by the respondent. They commenced proceedings claiming to have suffered nervous shock as a result of having seen their husband/father lying in a hospital bed in the hours following the accident. The trial judge found that none of the appellants had suffered nervous shock

On appeal: it was submitted by the appellants that the trial judge should, on the evidence, have found the claims to have been proved.

Held: In making the factual findings which he did, the trial judge did not accept the plaintiff's evidence, and it was this that caused their cases to fail. On all the materials before him, and in light of his consideration of the evidence overall the trial judge was justified in making the factual findings that he did.

Priestley JA Three nervous shock cases are before the Court brought by the wife and two daughters of a man negligently injured by the respondent to the appeals.

For some time now there has been continuing debate, both in court cases and in legal writing, about various aspects of nervous shock theory. In one of the most recent texts to deal with the subject many cases were collected which make it seem at least a possibility that some of what the author calls "indefensible doctrinal restrictions" on the availability of damages in such cases will be relaxed: see Torts in the Nineties, by Adjunct Professor Mullany, LBC Information Services 1997, especially at p113 and following.

One of the restrictions of which Professor Mullany is highly critical is that damages for psychiatric illness resulting from perception of injury to another person can not be recovered unless, inter alia, "the psychiatric damage" arose "as a result of a sudden impact to the senses": at p113. In another place he says, after noting that negligence law requires that recoverable damage must flow from the negligence alleged, that "in the context of psychiatric injury law that damage must presently be shock induced" at p135. Despite his view that this restriction is "unsustainable", see p113, Professor Mullany acknowledges that it is presently supported by the authorities and so far as I can see he cites all the relevant authorities in support of that view. Those authorities demonstrate in my opinion that his statement of the current law is correct. Although Professor Mullany's reasons for thinking the law should and perhaps will change in this respect seem to me to have some force, but it is not necessary to examine either the authorities or his criticisms here both because as I have said his statement of the law although he disapproves of it, appears to be correct, and because it has not been called in question in the instant cases. These were all conducted at first instance on the conventional basis that for the plaintiffs to succeed each had to show that she had suffered psychiatric illness as a result of sudden shock. In the statement of claim of each plaintiff it was alleged that "as a result of beholding the injuries suffered by" the father, "the plaintiff...suffered...injury, loss or damage".