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". 2 UNREPORTED JUDGMENTS In the course of arguing the appeals counsel sought to broaden the concept of "sudden shock" to an extent by contending that "sudden shock" could occur over a period; he relied upon the following passage, in Deane J's reasons in Jaensch v Coffey (1984) 155 CLR 549 at 607-8: "Tt has already been seen that the requirement of proximity in a case of mere psychiatric injury is satisfied where injury was sustained as a result of observation of matters involved in the aftermath of a road accident at the actual place of collision. The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post accident treatment. It would, in my view, be both arbitrary and out of accord with commonsense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken. Indeed, as has been mentioned, in some cases the true impact of the facts of the accident itself can only occur subsequently at the hospital where they are known. In the present case as in McLoughlin the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post accident treatment." However, counsel said that he could refer the Court to no authority which could take the question of the extent of the aftermath further than Deane J had taken it in the passage I have just read, and he agreed that "the aftermath" in terms of the evidence in the present case could not be contended to have been longer than a day or two after the accident. The three claims were heard together. The trial judge dismissed each one. Appeals were brought, also heard together, asserting that each claim should on the evidence have been found to be proved on the conventional sudden shock basis in the sense just explained. No argument was raised questioning this basis, nor in light of the way the cases were pleaded and conducted at trial could it have been. The accident to the father happened on 23 September 1983. His wife and daughters almost immediately went to see him in hospital. In their evidence at the trial what was said about this visit by each plaintiff in her evidence-in-chief would, if accepted, have provided a foundation for accepting the opinion of Dr Jolly tendered on their behalf that the "sudden impact" requirement had been fulfilled and that psychiatric injury was caused by it. However, it seems to me to be plain from the trial judge's reasons that he did not accept the relevant evidence of the plaintiffs and it was this that caused their cases to fail. Broadly speaking the trial judge can be seen to have had two bases for not considering any of the plaintiffs honest or reliable. The first was that there had been effective cross-examination of the plaintiffs which had produced some answers entitling the trial judge to think the accounts of all the plaintiffs were at the least exaggerated. The second basis concerned the differences between the plaintiffs' evidence given in court and what they had told the expert witnesses. In the plaintiffs' cases the reports of Dr Jolly had been tendered and also reports of Mr Taylor, a forensic URJ BULJABASIC and ORS v AH LAM (Priestley JA) 3 clinical psychologist. As the evidence of the plaintiffs in court about the effect upon them of the father's accident finally stood, it was significantly different in material respects from what they had years before told Dr Jolly and Mr Taylor. Some of these differences may have been natural enough in view of the time span involved but the trial judge was entitled both to take them into account when assessing reliability and honesty and was entitled also to consider the possibility that what was recorded about the facts as given by the plaintiffs in the expert reports tendered by the plaintiffs was more accurate than what the plaintiffs remembered in the witness box when they gave evidence at the trial in October 1996. Particularly weighty in this respect was the fact that Mr Taylor's reports contained accounts, much of them in direct speech, of what each plaintiff told him of her history after the father's accident. I come now to the argument for the appellants in the appeals. If Dr Jolly's evidence could be taken on its own, and on the assumption the judge substantially accepted the evidence of the plaintiffs, judgment in the plaintiffs favour would probably have been justified. Counsel for the appellants argued that this is what should have happened, and that the trial judge was wrong in not accepting Dr Jolly's opinion. He submitted that Dr Jolly had dealt with the position of the plaintiffs in September 1983 and no other expert had given any opinion relating to what was the critical time immediately after the accident to the father and the effect of it upon the plaintiffs. Since no other expert had dealt with this period, the argument was that their evidence must be left out of account so that Dr Jolly's account remained as the only acceptable evidence in the cases. There are problems with this argument. The most basic one is that evidence of the plaintiffs significant for the formation of Dr Jolly's opinion was not accepted by the trial judge. This either deprived his opinions of any weight at all or at least entitled the judge not to accept them. That alone meant he could not be said to be wrong in dismissing their claims. Counsel also submitted in effect that because it was clear that these plaintiffs had on any view suffered considerable distress consequential on the father's accident, and the court was not in a position to find that the distress did not amount to psychiatric illness because of the absence of any expert evidence to that effect, and because of Dr Jolly's opinions having been tendered and not having been made the subject of cross-examination, the result should have been opposite to what the judge arrived at. This is really another version of the argument that I have already dealt with. If there is more in it than in the earlier argument I do not think that it either can be sustained in view of the judge's factual findings. In my opinion the judge's view of the facts left him in the position where he could not be satisfied of the plaintiffs' case. Another aspect of the case which militates against the appellants is that although the trial judge did not rest his conclusion on this aspect of the matter, it seems clear he had in mind that whatever the right description might be of the effects upon the plaintiffs of the consequences of the accident to the father, what brought about the symptoms and distresses of the plaintiffs was not shown by the evidence which remained in the case after his factual findings are taken into account, to have been more likely to have been caused by the immediate aftermath of the accident than by the situation that came about in the home after the injured father returned home from a considerable spell in hospital. 4 UNREPORTED JUDGMENTS Particularly in Mr Taylor's recording of what the plaintiffs told him about the effects upon them of the father's accident, it seems at the least as likely but in my view probably more likely than not that the results of the accident upon the plaintiffs were caused not by any nervous shock, to use the technical legal term, occasioned by the sudden impact of the accident in its immediate aftermath, but by the continued changed behaviour of the father after his return home which brought about an unhappy family situation which had deleterious effects upon each of the plaintiffs. Not only is that view supported by Mr Taylor's reports, there are other indications in the evidence giving weight to it. However, as I have already mentioned, the trial judge did not base his eventual decision on that view of the facts, nor did he directly base on that view of the facts his conclusion that it had not been shown to his satisfaction that the distress and other adverse effects upon the plaintiffs of the father's accident should be classified as a psychiatric injury rather than distress and continuing grief of a kind not outside the normal. The conclusion was based upon his view of the facts in light of his non acceptance of the plaintiffs. In my own opinion once he arrived at his view of the facts he was entitled to come to the conclusions that he arrived at. Further in my opinion on all the materials before him and in light of what he observed of the plaintiffs at the hearing, and in light of his consideration of the evidence overall, he was justified in making the factual findings that he did. In my opinion therefore the appeal should be dismissed with costs. Mason P IJ agree. Powell JA I also agree. Appeal dismissed with costs. Counsel for the Appellant: C P Locke Solicitor for the Appellant: David Velleley Counsel for the Respondent: M Elkaim Solicitor for the Respondent: Turner Whelan