Hancock v Wallace & Anor[2000] QDC 74

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an action for damages for nervous shock suffered by the plaintiff as a consequence of his being informed of the death of his son in a motor vehicle accident. Only the quantum of general damages is in issue.

2. [2]
   Dean Hancock, the plaintiff’s son was killed in a motor vehicle accident which occurred in the evening of 28 May 1995, when he was 27 years old. The plaintiff was then aged 51 and is now aged 56. For all of his adult life he has been a French polisher and more recently has also conducted a business of restoring antique furniture.

3. [3]
   The plaintiff had suffered family bereavement before. His sister died of illness when he was aged about 9. A brother was fatally electrocuted when the plaintiff was aged about 25. Recently another brother has died of an asbestos related disease. He said that he had grieved for his siblings in what he considered to be the normal way. From this I conclude that he was not abnormally sensitive to psychiatric illness resulting from the death, especially the sudden and unexpected death, of close family members.

4. [4]
   Some 6 to 12 months after Dean’s death a dispute arose between the plaintiff and his daughter, Dean’s sister, about the disposition of the proceeds of an insurance policy on Dean’s life. It reached the stage of potential litigation, with lawyers involved. Both the plaintiff and his wife said that the dispute had caused him hurt and disappointment but the plaintiff said that the relationship is now back to normal. No submission was made that this family unpleasantness complicated the plaintiff’s mental state.

5. [5]
   It is convenient to consider first the mental condition from which the plaintiff has suffered as a result of the death of his son and then whether the defendants are liable to compensate him for it.

The Plaintiff’s Condition

6. [6]
   At about 9.30 am on the morning after the accident the plaintiff’s former mother-in-law telephoned him and told him that she had some “bad news, terrible news and let me know” (that is, told him of the tragedy). When asked how he received the news he said:

“It is pretty hard to tell. Pretty lost. When she rang I thought it was the grandfather and she said it was Dean, so I was just – excuse me but – it was a shock. Still is. I felt nothing, really, but I remember screaming, that was about it, and ringing Susan.

Your current wife?--  Current wife, and – and from there on was a bit of a lousy day, you would say, from there and – but it was a case of numbness, shock, and disbelief and it still was for the whole day because they couldn’t identify the one that got killed. So it was in and out of hell until about mid-afternoon to when the dentist did it by teeth. That’s all I can remember, other than being over there and backwards and forwards.

Have you ever been to the scene where the accident occurred?--  Only that particular day after the funeral. After the funeral we drove out because someone was having people at their home and you have to go down Mount Lindsay Highway, friends of Dean’s. So we went down there and I asked to stop and I walked around there and had look at the marks on the road, you know, just tried to see what actually would have happened at that particular time.

What were you thinking whilst you were doing that?--  Thinking that he didn’t have a chance. There were four or five gum trees around the – oh, the foot, cut off ground level and obviously it was the car, to my knowledge, had gone passenger side sideways. Thinking not much really. There were bits and pieces of car still there. Nothing, really.

Have you ever returned to that site?--  No. No.

Is that as a matter of choice that you have not returned there?--  In a way, yeah. Just can’t.”

7. [7]
   As is probably apparent from that citation, he lost his composure when he began his answer. The reference to the dentist was a reference to the fact which emerged later, that the deceased occupant of the car was so badly head injured that he had to be identified from dental records. There was some initial confusion whether the person killed was Dean or the defendant Wallace.

8. [8]
   In cross-examination the receipt of the tragic news was explored thus:

“MR. WILSON:  Mr. Hancock, I have to ask you these questions. I appreciate that the death of your son was and is a distressing experience for you, but you were informed of the death of your son by telephone?--  That’s right.

That was the day after the accident?--  Well, it happened on the Sunday evening and I was informed on the morning.

On Monday morning?--  On Monday morning.

And you were informed by Dean’s grandmother, your former mother-in-law?--  That’s right.

Were you given any description as to how the accident had occurred?--  On the phone by ----

Yes?--  No, no, she was very upset.

You were simply told the news, your son has been killed in an accident?--  Mmm, that’s right, that’s all.

Were you told it was in a motor vehicle accident?--  Dean has been killed. That’s all I can remember. Dean has been killed.

So you didn’t know the circumstances?--  Not at the particular time but I – no, no, don’t think so.

You weren’t required to identify the body?--  No, no, there was no – it couldn’t have – talking to the police there was no need to come down to the morgue because we can’t identify him.

There was a coronial inquiry as to the circumstances ----?--  That’s right, yes.

---- of the accident. You chose not to attend that?--  No, I just couldn’t go to those sort of things, no.”

9. [9]
   The plaintiff described the effect of the news on him. He said that he had been a happy go lucky man, not an emotional one but became, after the death, emotional and tearful, a condition which has continued. He became particularly sensitive to news in the papers, on the radio or television, of death and disaster, particularly when young people were the victims and that attitude continues. He used to be motivated to work but since the death became uninterested, disorganised, aggressive and negative. The business had been called Hancock and Sons but at the suggestion of his wife he altered the name to Hancock Antiques and Restorations, to delete the reference to “sons”. He also has devoted himself more to the skilled work and less to selling so that he has less contact with customers. He feels that these moves have helped him. Although his wife’s position of a councillor with the local government require him to accompany her to social functions he did not enjoy them and simply went through the motions. He has been unable to take part properly in ordinary social contacts. About six months after Dean’s death he began to have morbid thoughts. His religious beliefs made him dismiss any idea of suicide but he used to wonder if he could just lie down and die.

10. [10]
    In cross-examination some of these aspects were explored further:

“MR. WILSON:  At the time the news was conveyed to you there was no certainty that your son had been killed?--  That’s right.

You also felt numbness and shock, you said?--  Well, I was told Dean was killed and probably we knew deep down that he was, but if you go through that experience where there is a slim hope it is the other fellow, grab it, and I lived with that probably until 2 o’clock.

Did you also feel a tremendous sense of loss?—Shocking, yes.

Did that feeling come on immediately or was it after a period of days, weeks or months?--  It would be a gradual – the loss would be – on the day would be tremendous and then it would gradually get stronger as times goes along.

So your sensation was that your loss got gradually worse as time passed?--  Yes.

Wasn’t one sudden bolt out of the blue, you fell to pieces?--  At that particular time I did, yes, naturally we were very sorrowful, miserable, weak. But as time goes along I become more and more numb to the fact that Dean is not coming back and that you relate things ‘if Dean was here’ – I often say to Sue, ‘If Dean was here I could do this, you know.’  So, yeah, you do feel a total loss.

And an incredible sense of disappointment that your son couldn’t rejoin you in the family business?--  Oh, shocking, yeah, terrible.

Would that be the greatest aspect of the loss, do you think?-- No, no, you would have to understand Dean and myself as partners, you could say, in life. We were inseparable. I used to go and sit in the classroom with him, grade 8. I was allowed to so I did. I had me own business, knocked off early and midday, go there and sit and listen. Yeah, we did those sort of things. Both of them. Tracey too, my daughter, and I always picked them up and dropped them off. I had a very – my boy never seemed to go through puberty, if you would like to say that, or through the young ones – what is that word they gave of the day, young teenagers they go through?

Adolescence, perhaps?--  Never seemed too have that, basically, because I was his best mate and we had a relationship that was pretty deep, you know.

Can I ask you, Mr Hancock, whether the symptoms that you were discussing with my learned friend in your evidence-in-chief, that is – and I can go through them one by one – were symptoms that also came on gradually over a period of time, that is symptoms of thinking of lying down and dying, becoming indecisive, lack of motivation, avoidance of television news?  You know, these symptoms you were going through were they symptoms that developed gradually over a period of time?--  One other thing that’s worrying me today is slight memory loss.

Sorry, could you just answer that question?  Were they things that gradually came on over a period of time?  -- With the jolt of the death, everything is horrific but as time goes along it becomes more and more harder to adjust.

HIS HONOUR:  But those particular symptoms that Mr Wilson was discussing with you, did they hit you immediately or did they developed slowly, the morbid thoughts, the tearfulness, indecision?--  Tearfulness was there but more with thoughts and that, that came on, yeah, sort of – I think it is anger within yourself, it grows.

But when?  It came on gradually, did it, or did it hit you?--  Gradually. It would have to be gradually.

What about the feelings of indecision and lack of motivation?--  Probably in the beginning and then it has gradually gone – levelled off. The motivation is not there, what I had. It was terrible in the beginning but I have sort of had to fight every day to get motivation.

You think it has improved somewhat, do you?--  Well, I would personally say it has improved slightly. It has to, yes.

But you recall that as being there right from the start?--  From the start it was terrible. You had no motivation but over time it becomes a little bit – you find ways to deal with it.

. . . . . . .

MR. WILSON:  What about avoidance of distressing news – or the television news, I think you gave as an example?--  It’s a gradual thing – becoming more violent, towards the action, of actually still going on – still going to  come on.

. . . . . . . .

HIS HONOUR:  We’re interested in the onset?--  The onset. Yes, I – shocking. And as I said, it was more sorrow to think ----

But was the onset immediately after Dean’s death or is it something that came on ----?--  Immediately after.”

11. [11]
    As can be seen the plaintiff tended to ramble a little, some of his answers were not responsible and he sometimes seemed to contradict earlier answers. In general however, I am satisfied that he described as feelings which he experienced immediately on hearing of Dean’s death immense shock combined with some hope that Dean had not been killed, a sense of loss, indecision, lack of motivation and the extreme sensitivity to distressing news on the T.V.

12. [12]
    He did not seek any psychiatric or psychological help for the initial 12 months, being unaware that it could help him. He then saw Dr. Dodds, a psychiatrist, three times beginning on 1 May 1998. He felt that this assisted him to cope but he stopped having the consultations, considering that he should get the litigation out of the way first. He seems to have been concerned that his innermost thoughts could be aired in court.

13. [13]
    It is instructive to set out the following extract from notes (attached to exhibit 2) made by Dr. Dodds on the occasion of the first consultation on 1 May:-

“Feels it is unfair that he died, but driver of car, who was jailed for 3 years. He wasn’t injured and skipped bail. Question of marijuana use by driver, never proved, as it was found on floor of hospital.”

14. [14]
    The plaintiff’s wife gave evidence that when he phoned her, he was sobbing. She said that before Dean’s death the plaintiff was a capable, organised, motivated, experienced tradesman with a happy, warm, positive personality. Upon Dean’s death her husband became morbid, aggressive and negative. For the first 3 or 4 months she said he was like a zombie, making little sense. He and Dean had been “like two peas in a pod”. She feels that the aggression and negativity has not improved but that he seems to be coping better with his work. Thus she broadly corroborates the description which the plaintiff gave of himself.

15. [15]
    The courts have often been faced with the difficult task of deciding whether a particular set of signs and symptoms are properly classified as a psychiatric illness precipitated by nervous shock or a normal, albeit severe, manifestation of grief. See, for example Coates v. GIO of NSW (1995) 36 NSWLR 1 at 19, per Clarke JA. The former is compensable, the latter is not, ibid.  It is, of course, a question of fact which must be determined on the evidence.

16. [16]
    I was given the assistance of reports and oral evidence from three psychiatrists, Doctors Dodds, Curtis and Reddan. Unfortunately their opinions differ, Doctors Dodds and Curtis being of the view that a psychiatric illness exists and Dr. Redden that it does not.

17. [17]
    Dr. Dodds records in his report, exhibit 2, that he was consulted by the plaintiff on 1, 15 May and 12 June 1998. The symptoms he reported to Dr. Dodds, while not identical in all respects with those he gave in court, were consistent with them. Dr. Dodds diagnosed a chronic post-traumatic stress disorder. He commenced therapy with some, but incomplete, response. Dr. Dodds recommended more therapy but the plaintiff (as I have said in paragraph [12]) did not take it up. The prognosis was said to be fair, slow improvement being expected over the next few years. However he would not be made completely symptom free.

18. [18]
    In oral evidence Dr. Dodds said that post-traumatic stress disorder can develop almost immediately (within a month) after the trauma but sometimes can be delayed quite some time. He could not say when the plaintiff began to experience the disorder, but it clearly had been present for some time before the first consultation in May 1998. He said that a recognised psychiatric test allows that the disorder can be caused by the learning of unexpected or violent death experienced by a family member, and not exclusively by personally witnessing it. He considered the condition to be treatable, the treatment extending over a period which could be as short as a few months or as long as a couple of years.

19. [19]
    Dr. Curtis supplied a report dated 5 November 1997 (exhibit 1) in which the history supplied by the plaintiff was consistent with his evidence. He also interviewed Mrs. Hancock. He diagnosed a dysfunctional chronic grief reaction of pathological bereavement. He also diagnosed an:

“Acute stress disorder, including post-traumatic stress disorder, amounting to a severe nervous shock of psychological trauma reactive to the road trauma death of a son and Mr. Hancock’s experiences thereof. An abnormal internal state has emerged from the shock and bereavement amounting to a major depressive disorder which is now a chronic depressed state which is untreated.”

20. [20]
    According to Dr. Curtis post traumatic stress disorder is the outcome of an acute stress disorder that lasts for more than a month. In cross-examination Dr. Curtis said that an acute stress disorder, as opposed to mere bereavement, can be triggered by such things as the death occurring “because of the negligence of another or when the circumstances of the death are particularly traumatic or unusual. He said there would be circumstances where anger and the problems of anger management would be an early feature of an acute stress disorder as a psychological trauma”. On this aspect I note the circumstances related to Dr. Dodds which suggests resentment of Wallace whom the plaintiff apparently saw as a negligent driver, a drug user and a bail breaker, yet unfairly a survivor of the fatal crash which killed Dean. I also note the fact that for some hours he held the hope that Dean had survived and the fact that Dean’s head injuries were such as to render him unrecognisable. Then there is the important fact that the evidence of the plaintiff is that his new aggression (for example to news of tragic events) began immediately after Dean’s death.

21. [21]
    In my view the signs and symptoms of which Dr. Curtis spoke as indicating the presence of an acute stress disorder, within the first month or so, are attested to by the evidence of the plaintiff and given some support by Dr. Dodds’ notes appended to exhibit 2. Once the early presence of an acute stress disorder is accepted then one can accept the final diagnosis made by Dr. Curtis and by Dr. Dodds.

22. [22]
    Dr. Curtis shares Dr. Dodds’ opinion that a post-traumatic stress disorder can be caused by the hearing of, as opposed to the witnessing of, a traumatic event. That event was, in the plaintiff’s eyes, particularly violent, and unusual, and of course it was quite unexpected.

23. [23]
    Dr. Reddan was of the view that the plaintiff’s condition is merely a form of bereavement rather than a psychiatric illness. However I have to say that the man described by her in her report, exhibit 3, is simply not the man I saw in the box nor, obviously, the man described by Dr. Dodds or by Dr. Curtis. Nor is he the man described by Mrs. Hancock, an honest historian on my assessment of her. Perhaps when he saw Dr. Reddan he was having a particularly good day (Dr. Dodds says there can be good days for a sufferer of post traumatic stress disorder). Perhaps he had his guard well and truly up when he saw Dr. Reddan. He told her he has done that since realising that doctors can be called to disclose what he has told them. Whatever the reason I consider the evidence of Dr. Reddan is not helpful to me.

24. [24]
    Thus I accept that the receipt of the news of Dean’s death caused the plaintiff an acute stress disorder, giving way to a post traumatic stress disorder from which he still suffers. When he undertakes psychiatric therapy (as he should and as he intends) there will probably be improvement. According to Dr. Dodds the treatment could last from a few months to a couple of years and should leave him much improved but with the likelihood of some permanent unhappiness. No estimate has been put before me of the cost of that but I infer that while it could be relatively small, equally it could be substantial.

25. [25]
    So the death of Dean caused the plaintiff to suffer a compensable psychiatric illness. Are the defendants liable to pay that compensation?

Defendants’ liability

26. [26]
    It is well accepted that damages for nervous shock can be recovered by a plaintiff who experiences the shock through seeing or hearing of the event or its immediate aftermath, McLoughlin v. O'Brian (1983) 1 AC 410 at 423 per Lord Wilberforce. The “aftermath” has been interpreted to encompass a plaintiff who has been nearby and comes quickly to the scene (Benson v. Lee (1972) VR 879) or who goes to the hospital and there sees the dead or injured victim (McLoughlin; Jaensch v. Coffey (1983-4) 155 CLR 549). The question in this case is, of course, whether damages are recoverable by a plaintiff who neither sees or hears the road accident or its aftermath but who suffers the nervous shock as a result of being told of the occurrence of the accident.

27. [27]
    Jaensch contains a division between the sitting judges on the question whether reasonable foreseeability of injury is the sole test to be applied in determining whether a duty of care is established. Brennan J held it was (at 560). Gibbs CJ (at 554) and Deane J (at 583) held that to the reasonable foreseeability of injury one must add the further requirement that the plaintiff is in sufficient proximity to the tortfeasor, emphasising the seminal statement of neighbourhood by Lord Atkin in Donahue v. Stevenson (1932) AC 562 at 580. Gibbs CJ said at 553:-

“The statement of basic principle by Lord Atkin in Donahue v. Stevenson does not make liability for negligence depend solely on a failure to take reasonable care to avoid acts or omissions which it can reasonably be foreseen will be likely to injure someone. The duty is owed not to the world, but to one’s neighbour, i.e., to ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’. The principle, which is one of proximity as well as of foreseeability, was stated in the following words by Lord Wilberforce in Anns v. Merton London Borough Council:

‘First one has to ask whether, as between the alleged wrong-doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prime facie duty of care arises.’”

28. [28]
    In discussing the necessary proximity Gibbs CJ said at 554-5:

“In McLoughlin v. O'Brian, although all of their Lordships agreed in the result, there was a difference of opinion as to the part played by policy in the formulation of the rule governing the recovery of damages for nervous shock. With all respect I consider that the view of Lord Wilberforce is realistic and correct. He said that ‘foreseeability must be accompanied and limited by the law’s judgment as to persons who ought, according to its standards of value or justice, to have been in contemplation’. In forming its judgment on such a matter the court is not at large, or free to indulge its own individual notions, but must be guided by existing legal principles and by analogies that may be drawn from decided cases. On the other hand, the court is not necessarily constrained to follow earlier decisions when they appear to be out of accord with contemporary principles. For example, the decision in Chester v. Waverley Corporation, which cannot be justified either on the ground that shock in that case was not reasonably foreseeable or on the ground that the requisite proximity was lacking, should not longer be followed.

Lord Wilberforce pointed out in McLoughlin v. O'Brian, that in deciding on the limits that should be placed upon the extent of admissible claims for nervous shock it is necessary to consider three elements:  ‘the class of person whose claims should be recognized; the proximity [in time and space] of such persons to the accident; and the means by which the shock is caused’. I would agree that these are the relevant elements, and I incline to think that the first is of the greatest importance. Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recover. There are cases in which persons who do not stand in any such relationship have been held entitled to recover, including the case of rescuers (Chadwick v. British Railways Board) and that of fellow employees (Mount Isa Mines Ltd v. Pusey but they do not now fall for consideration. I would with respect reserve my opinion as to the correctness of some of Lord Wiberforce’s comments on the other elements and in particular on his statements that there must be a close proximity in space as well as in time and that ‘the shock must come through sight or hearing of the event or of its immediate aftermath’. The law must continue to proceed in this area step by cautious step.”

29. [29]
    In Jaensch the Court accepted that the relationship of husband and wife fell readily within the class of people to be recognised. The relationship of parent and child has similarly been frequently accepted in, for example, Coates v. GIO of NSW (1995) 36 NSWLR 1; Petrie v. Dowling (1992) 1 Qd.R. 284. Vernon v. Bosley (No 1) (1997) 1 All ER 577. The evidence discloses in this case a very close personal relationship between the plaintiff and Dean. The vexed question which remains is whether there is sufficient proximity in time and place, the plaintiff having been told of the death rather than witnessing the traffic accident or its aftermath, for example, by seeing Dean’s injured or dead body. There is no decision of any court by which I am bound which answers that question authoritatively.

30. [30]
    In Reeve v. Brisbane City Council (1995) 2 Qd.R. 661, Lee J exhaustively examined the leading cases on the point and the principles which they disclose. He concluded that there was sufficient proximity in that case to give rise to a duty of care notwithstanding that the plaintiff was merely informed of the accident. I see no point in re-hashing what Lee J wrote and am content to acknowledge the assistance it has given me.

31. [31]
    In Petrie v. Dowling (1992) 1 Qd.R. 284 Kneipp J also found a duty of care existed although the plaintiff had merely been informed of her daughter’s death. It must be said, however, that the point of proximity was apparently not argued.

32. [32]
    The most recent English authority of note to which I was referred is that of Alcock v. Chief Constable of South Yorkshire Police (1992) 1 AC 310 where the House of Lords rejected the claim of those plaintiffs whose psychiatric illness were caused by viewing on television the tragedy (the death by crowd pressure of 95 spectators at the Hillsborough Football Stadium). It was held to be too remote because the plaintiffs were not present at the disaster or its aftermath.

33. [33]
    In Coates, supra, at p. 5, Gleeson CJ said:

“It is, however, not clear that, in relation to this question, the law of Australia is the same as the law of England. The question that was decided by the House of Lords in Alcock was left open by the majority of the members of the High Court of Australia in Jaensch v. Coffey (at 555), per Gibbs CJ (at 556), per Murphy J and (at 608-609), per Deane J. Gibbs CJ said (at 555):  ‘The law must continue to proceed in this area step by cautious step.’”

and he himself, as did Clarke J.A., also left the question open. Kirby P. however, did not.

34. [34]
    Kirby P. at p.10 quoted the following passage from the judgment of Deane J in Jaensch at 608:

“’It is somewhat difficult to discern an acceptable reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a  wife and mother who is so devastated by being told on the telephone that her husband and children have all just been killed that she is unable to attend at the scene while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a  wife who attends at the scene of the accident or at its aftermath at the hospital when her husband has suffered serious but not fatal injuries.’”

and he went on:

“The facts before the Court in the present case do not present the same policy problems of vastly increasing the categories of possible litigants such as are created by the countless witnesses of disasters portrayed by means of mass telecommunications:  see Alcock v. Chief Constable of South Yorkshire Police where the English courts were confronted with such a case.

Rather, I suggest it is clearly foreseeable that, the young, loving children, at least, of a particular person seriously injured or killed will shortly be informed of the injuries or death and may, in certain cases, then suffer such a serious instance of ‘nervous shock’ as to warrant holding the tortfeasor liable. Damage to such persons is certainly foreseeable in the ordinary course of human experience. In some cases that damage may take the form of nervous shock. The artificiality of restricting recovery to perceptions derived directly from active, physical proximity to the happening of the tort, or to its immediate aftermath, has been pointed out in numerous cases and academic commentary;  see, eg. Danuta Mendelson, ‘The Defendant’s Liability for Negligently caused Nervous Shock in Australia; Quo Vadis?’ (1992) 18 Monash Uni LR 16 at 45; Jane Swanton, ‘Issues in Tort Liability for Nervous Shock’ (1992) 66 ALJ 495 at 500; FA Trindade, ‘The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock’ [1986] CLJ 476 at 478-480. In Schneider v. Eisovitch [1960] 2 QB 430 at 441, Paull J pointed out:  ‘... once a breach of duty is established the difference between seeing and hearing is immaterial. Hearing can be just as direct a consequence as seeing.’

One could add to this proposition that hearing by telephone, or by later oral message, can, in today’s world, be just as foreseeable and just as directly related to the wrong sued upon as if the vulnerable observer had received the shocking perception by his or her own eyes and ears at the moment of the relevant wrong. The rule of actual perception is in part a product of nineteenth century notions of psychology and psychiatry. In part, it was intended as a shield of policy against expanding the liability of wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century modes of communicating information.”

35. [35]
    Kirby P. was thus quite prepared to take the next cautious step. Lee J took it in Reeve and Kneipp J too it in Petrie. Gleeson CJ and Clarke JA did not deny the possibility of taking it in Coates and nor did Gibbs CJ in Jaensch. Gibbs J. accepted that change should occur in the law as the perceptions of society change. Deane J in Jaensch,  it seems to me, implicitly argued that the next step should be taken.

36. [36]
    I think it is possible to detect a modern trend in the law to find sufficient proximity (the other prerequisites having been satisfied) although the trauma is suffered by hearing the shocking news rather than by witnessing the event or its aftermath. I therefore find that there was a duty of care here, there being the necessary proximity, and that Wallace’s admitted negligence breached that duty. The plaintiff is thus entitled to damages.

Quantum of damages

37. [37]
    The main aspect of the plaintiff’s damages is that of pain and suffering and loss of amenities. I have fully set out the effects of the psychiatric illness on him and the prognosis. He has now suffered it for nearly 5 years. Assuming he undertakes the therapy Dr Dodds recommends (which he said he would) those effects will diminish greatly over the period of treatment (a few months to a couple of years) but he will never be completely free of them. I assess damages for this head in the sum of $40,000, a sum which includes a small component (say $2,000) to encompass the cost of psychotherapy. I allow interest at 2% on $20,000 for 5 years, that is $2,000.

38. [38]
    There is a claim for economic loss, limited, according the plaintiff’s statement of loss and damage, to the period of about 2 years after the date of Dean’s death. The financial records of the plaintiff and his company show no discernible pattern which would indicate any actual loss. But I accept that during the period in question his motivation to work was greatly reduced. From that I conclude on the balance of probability that he undertook less work than he would otherwise have done and that he worked less efficiently and that therefore the company earned less and consequently so did he. I therefore allow a global sum of $5,000 for lost income which I consider to be suitably conservative given the lack of concrete evidence. I allow interest on that at 10% for 3 years, that is $1,500.

Conclusion

39. [39]
    Thus, there will be judgment for the plaintiff for: