Janelle Ratcliffe v Kyriacoula Mareney [2006] NSWDC 41

New South Wales District Court

CITATION: Janelle Ratcliffe v Kyriacoula Mareney [2006] NSWDC 41

HEARING DATE(S): 27/07/2006 EX TEMPORE JUDGMENT DATE : 07/27/2006

JURISDICTION: Civil

JUDGMENT OF: Neilson DCJ at 1

DECISION: Verdict and Judgment for the plaintiff against the defendant; Defendant pay plaintiff's costs on the ordinary basis

CATCHWORDS: "Nervous shock" claim by daughter of pedestrian killed whilst crossing street in pedestrian crossing - Motor Accidents Compensation Act 1999 - Civil Liability Act 2002 - Construction of s 61 of MACA - Whether plaintiff a person of normal fortitude

LEGISLATION CITED: Motor Accidents Compensation Act 1999 Civil Liability Act 2002

CASES CITED: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100

PARTIES: Janelle Ratcliffe (Plaintiff) Kyriacoula Mareney (Defendant)

FILE NUMBER(S): 5020/05

COUNSEL: Mr S Dixon (Plaintiff) Mr K Kelleher (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Ms Janelle Ratcliffe, brings an action for damages for "nervous shock" arising out of the death of her late mother on 5 June 2002.

2 On 3 June 2002, the plaintiff's mother was crossing Darling Street, Balmain near its intersection with Elliott Street on a marked pedestrian crossing. The defendant drove her vehicle in such a fashion as to collide with the plaintiff's mother whilst the plaintiff's mother was in the pedestrian crossing, knocking her down and causing her serious injury. The plaintiff's mother was transported to the Royal Prince Alfred Hospital by ambulance. She died on 5 June 2002.

3 There is no dispute that the defendant was a tortfeasor in that she tortiously injured the plaintiff's mother. There is no allegation of any contributory negligence on the part of the plaintiff's mother. The plaintiff was advised of the accident which had befallen her mother by a telephone call from her sister. The plaintiff was quite unaware of the extent of the injury that her mother had sustained. She thought that her mother had broken her leg or something like that when she was advised of her mother's being hit in the pedestriancrossing. When the plaintiff and her sister arrived at the Royal Prince Alfred Hospital they were taken by the doctor to a "quiet room" where the plaintiff and her sister were told that their mother would be unlikely to survive the injuries she sustained. They were joined by a priest who, one would infer, had been called to minister to the plaintiff's mother. The priest conferred with the plaintiff and her sister and gave them a blessing. The plaintiff and her sister were then asked whether they would like to see their mother and the inference to be drawn is that they were advised that it may not be a pleasant sight. The plaintiff wished to see her mother. She told me that she sustained "major shock" when she saw her mother. She said that she was unrecognisable. Her face was severely swollen and bruised. It had been bandaged. There was blood seeping from the plaintiff's mother's eyes and ears. It is clear from the medical histories that the plaintiff's mother was comatose. She clearly had sustained a major brain injury. The medical histories suggest that the plaintiff's mother was taken to the operating theatre where surgery was practised to try to relieve intracranial pressure due to brain haemorrhage. The plaintiff's mother was put on a life support unit. On the morning of 5 June, the second day after the motor vehicle accident, the plaintiff's mother's blood pressure was dropping alarmingly, and the plaintiff and her siblings were advised that their mother would not survive and that it was necessary for the life support system to be turned off. The plaintiff had to make that excruciating decision with her siblings and then was present when the life support machine was turned off and their mother died. The plaintiff told me that she was, to say the least, very upset.