Jaensch v Coffey

155 CLR 549
54 ALR 417

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(Judgment by: MURPHY J)

Jaensch
v Coffey

Court:

Judges: GIBBS CJ
MURPHY J
BRENNAN J
DEANE J
DAWSON J

Subject References:
Negligence

Judgment date: 20 August 1984

Adelaide

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Judgment by:
MURPHY J

Where a person suffers personal injury through the defendant's negligence, and the spouse of that person, who was not a witness to the occurrence of the injury, suffers damage as a result of shock caused by learning of or witnessing the person's injuries or treatment, should the defendant be liable for the damage to the spouse? The general development of the law, both common law and statute, suggests liability (see Storm v. Geeves (1965) Tas SR 252; Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 ; Benson v. Lee (1972) VR 879 and McLoughlin v. O'Brian [1983] AC 410 ). In Caltex Oil (Australia) Pty Ltd v. The Dredge "Willemstad" (1976) 136 CLR 529 , 606, I observed that persons causing damage by breach of duty should be liable for all the loss unless there are acceptable reasons of public policy for limiting recovery. In South Australia the old common law rule that damages are not recoverable for nervous shock (Victorian Railways Commissioners v. Coultas (1888) 13 AC 222) has been superseded (see Wrongs Act 1936-1975 (SA) s 28).

In New South Wales, the Law Reform (Miscellaneous Provisions) Act 1944 extends liability to cover injury arising from nervous or mental shock caused to other persons where a person is killed, injured or put in peril, but limits it to members of the person's family and further limits it, except in the case of a parent or spouse, to cases where the person is killed, injured or put in peril within the sight or hearing of the family member. Similar laws apply in the Australian Capital Territory and the Northern Territory. There is no such limitation in South Australia. If there were, the plaintiff would be able to recover in these circumstances. The Court should not adopt a view of public policy more restrictive of recovery than has been adopted by those Australian legislatures which have dealt with the subject.

Abnormal predisposition to shock or "nervous injury"

The accident to her husband was only a contributing factor to the condition for which the plaintiff seeks damages. Mrs Coffey was already in an extremely vulnerable state because of circumstances having nothing to do with the defendant. It is not a rational distribution of social costs to place the whole burden on the defendant, which really means on his insurers and therefore on the motoring public. Nevertheless, if liability extends to "normal" persons, it must also extend to predisposed persons, who at least should be able to recover where a "normal" person would have recovered and to the same extent. Should their recovery be limited to the damage which would have been suffered by a person not predisposed, or should recovery be for all the damage suffered? Or should liability arise only where a person not predisposed would have suffered injury, but the damages not be limited to what such a person would have suffered, but extend to what the plaintiff suffered?

Implications of welfare State on personal injury law

Early negligence law evolved when there was practically no social welfare, but in Australia it should now be developed consistently with the existence of a fairly comprehensive national medical and hospital scheme and social security benefits. Federal social welfare legislation provides for invalid pensions and various benefits for those unemployed or sick. Medical and hospital costs, at least to the extent that they might be payable or recoverable under the national scheme, should not continue to be a head of damages in personal injury claims. Alteration of the common law to allow for orders for those costs as they arise (as occurs in some jurisdictions) may be an advance on the present system, which requires estimation at the trial of all those costs. In an efficient system, operating against the background of a National Health Scheme, they should not be claimable (either at common law or under statutory compensation schemes).

A coherent system to deal with assistance to personal injury victims will not be advanced by a proliferation of further remedies under schemes which aim at providing for medical and hospital costs which would otherwise be covered under the National Health Scheme, and which displace, in whole or part, provisions for invalid pensions and other national social security benefits. Regrettably this case of aftermath nervous shock falls to be determined as if those social welfare laws and the national health scheme did not exist.

In the absence of legislation limiting recovery, I am not satisfied that there are acceptable reasons of public policy for limiting recovery here.

The appeal should be dismissed.