Knight v Pedersen & Ors [1999] NSWCA 333

New South Wales Court of Appeal CITATION : Knight v Pedersen & Ors [1999] NSWCA 333 FILE NUMBER(S) : CA 40011/98 HEARING DATE(S) : 19 March 1999 JUDGMENT DATE : 16 September 1999

PARTIES : Paul Knight v Hans Sardoff Pedersen, Elin Inge Pedersen, Clive Peter Camp JUDGMENT OF : Priestley JA at 1; Beazley JA at 1; Stein JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 2929/97 LOWER COURT JUDICIAL OFFICER : Gibb ADCJ

COUNSEL : Appellant - C. Hoeben SC Respondents 1, 2 - J. Sharpe SOLICITORS : Appellant - Carroll & O'Dea Respondents 1, 2 - McCulloch & Buggy CATCHWORDS : Negligence; Nervous Shock ACTS CITED : Law Reform (Miscellaneous Provisions) Act 1944, s 4 CASES CITED: Coates v Government Insurance Office of NSW (1995) 36 NSWLR 1 DECISION : Appeal allowed, new trial ordered

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40011/98 DC 2929/97

PRIESTLEY JA BEAZLEY JA STEIN JA

Thursday, 16 September 1999

KNIGHT v PEDERSEN & ORS NEGLIGENCE - NERVOUS SHOCK - LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1944, SECTION 4.

A father, living apart from his family in a rented room, died in a fire in the premises. His widow brought an action under the Compensation to Relatives Act for herself and the two children of the marriage, a son and daughter. The son brought a separate action for negligently caused nervous shock. The two cases were set down for hearing at the same time but the defendants in the son's case were not ready to proceed, through procedural default on the part of the son. At a directions hearing it was arranged that the liability issue common to both cases would be decided at the scheduled hearing, that the mother's case would proceed to completion and that the damages aspect of the son's case would be left to a later time, if liability was established. At the hearing the trial judge dealt with more issues than, according to the son, had been intended at the directions hearing, and dismissed the son's case. On appeal it was argued that the son's case had been presented in accordance with the earlier directions hearing and he had not had proper opportunity of presenting his case on the issue which he argued should not have been decided at that stage and for which he was not properly prepared and in regard to which he had not put his case. Questions concerning the applicability of s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 were also argued.