…negligence admitted – whether plaintiff suffered physical injury and mental harm – post-traumatic stress disorder – causation
A car – driven by the defendant – entered a property in which the plaintiff and his family lived.
The car collided with another – belonging to the plaintiff’s friend – which was parked in the driveway of the property. The friend’s car, in turn, struck a vehicle of the plaintiff’s, and also collided with the property itself.
The plaintiff sought damages for personal injuries, alleging that the accident caused him to sustain injury, both physical and psychological in nature. The physical injuries were said to have been sustained when bricks – which had fallen from a collapsing pillar – struck the plaintiff’s left elbow.
The psychological injuries were alleged to have been sustained consequent upon the plaintiff – from his seating position on the front verandah – being unable to see his (and his friend’s) children immediately after the accident. He had observed a large amount of red-coloured liquid on the concrete of the driveway, thinking his children had been injured or killed in the accident.
The defendant, whilst denying negligence in the pleadings, at trial accepted that he drove his vehicle negligently. He denied, however, that the plaintiff was sitting on the front porch at the time of the accident. The defendant asserted that the plaintiff, his wife, friends and children were all inside the house when the collision occurred, and submitted that, in the absence of any evidence sufficiently connecting his negligence with the plaintiff’s loss, the plaintiff must fail in the action.
Specifically, if the court was not satisfied that the plaintiff was struck by a falling brick, there could be no basis for finding that the defendant’s negligence caused the physical injury. Similarly, the defendant asserted that the plaintiff must establish a factual base leading to a conclusion that the defendant’s negligence caused the psychiatric injury.
The basis for the defendant’s position was consequent upon inconsistencies in items of evidence, as to whether the plaintiff was on the front porch at the time of the accident.
Judgment for the plaintiff. Plaintiff’s damages assessed at $42,045.88
The judge considered the plaintiff to be a truthful witness and accepted his evidence in its entirety, outlining that any inconsistencies in the evidence were slight and were explainable by the fact that English was not his first language, and evidence was being given through, and with the assistance of, an interpreter. Similarly, the evidence of the plaintiff’s wife, daughter, and friend (who was sitting with the plaintiff on the porch at the time of the incident) was accepted.
The assessed physical injury was considered causally related to the accident. The defendant conceded that he drove his motor vehicle negligently. The court made findings, based on the plaintiff’s evidence and that of three lay witnesses, that the plaintiff was sitting on a milk crate on the front verandah of the property when the accident occurred, and that he was struck on his left elbow by a falling brick.
In considering the claim for mental harm, the judge did not consider it necessary for there to be a finding as to where the children were located at the time of the accident. The judge found that the plaintiff believed his children were at the front of the property, that the liquid he saw was blood, and that his children had been injured or killed.
It was necessary to apply provisions of the Civil Liability Act 2002 (WA), which imposed restrictions on the circumstances in which a person has a duty of care to another in relation to mental harm. The relevant statutory condition for establishment of a duty of care was that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken.
The concept of ‘shocking event’ and the existence and nature of any connection between the plaintiff and victim, and between plaintiff and defendant, are considerations relevant to foreseeability – although not necessary – to find a duty of care.
As it was necessary to assess whether a person of normal fortitude would suffer a recognised psychiatric illness in the circumstances of the case (s5S of the Civil Liability Act 2002 (WA)), it was necessary to specify the critical event with a degree of precision. The nature of the risk which may give rise to mental harm must be identified.
It was, however, not a pre-condition of the existence of a duty of care not to cause mental harm, that the plaintiff be a person of normal fortitude. The legislation only required that the defendant ought to have foreseen a person of normal fortitude might, in the circumstances of the case, suffer a recognised illness if reasonable care was not taken. The test did not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care.
In the court’s view, it ought to have been foreseeable to the defendant, in the circumstances of the case, that a person of normal fortitude might suffer a recognised psychiatric illness as a result of a sudden shock, if the defendant drove his vehicle in the manner alleged.
In considering the expert medical evidence, the court supported a finding that the plaintiff had – and continued to suffer – a recognised psychiatric illness, namely post-traumatic stress disorder, which was directly caused by the accident.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Michael Callow, is a Special Counsel. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.