FAI GENERAL INSURANCE & ANOR v LUCRE [2000] NSWCA 346

Reported Decision : [2000] 50 NSWLR 261 [2000] 32 MVR 540

New South Wales Court of Appeal

CITATION : FAI GENERAL INSURANCE & ANOR v LUCRE [2000] NSWCA 346 FILE NUMBER(S) : CA 40469/99 HEARING DATE(S) : 14 November 2000 JUDGMENT DATE : 29 November 2000

PARTIES : FAI GENERAL INSURANCE CO LTD & ANOR v ALBERT LUCRE JUDGMENT OF : Mason P at 1; Meagher JA at 35; Giles JA at 36

LOWER COURT JURISDICTION : District Court LOWER COURT DC 5610/98 FILE NUMBER(S) : LOWER COURT Garling DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: J D Hislop QC/ R Tonner Respondent: S Galitsky SOLICITORS : Appellant: Moray & Agnew Respondent: Papanicolaou & Antoniou CATCHWORDS : Duty of care - nervous shock - respondent involved in head on collision due solely to the negligence of the deceased - respondent suffers post-traumatic stress disorder blaming himself for his role in crash - discussion of dictum of Deane J in Jaensch v Coffey that duty of care negated where psychiatric illness sustained as a result of death or injury of tortfeasor - Deane J's dictum not followed - s4(1) Law Reform (Miscellaneous Provisions) Act 1944 does not entrench Deane J's dictum - discussion of Deane J's dictum in light of cases following Jaensch v Coffey - liability established - s141 Motor Accidents Compensation Act 1999 - respondent not characterised as a rescuer - respondent distinguished from the "mere bystander" by immediacy of his involvement in crash that caused death - respondent's reaction foreseeable in circumstances of the crash - appeal dismissed with costs - D. DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40469/99 DC 5610/98 MASON P MEAGHER JA GILES JA Wednesday 29 November 2000