Citation: Sloss v NSW [1999] NSWSC 995
Court: Supreme Court of New South Wales, Common Law Division
Date: 6 October 1999
Judge(s): Hidden J
Background
The plaintiff was the mother of a man who died in 1983 while held on remand at the Long Bay prison complex in Sydney. Another prisoner administered a heroin overdose to him, and that prisoner was subsequently convicted of his murder. The plaintiff had visited her son on the day he died and learned of his death through a hospital phone call shortly after she returned home.
The State of New South Wales conceded both that it owed a duty of care to the plaintiff and that it had breached that duty. The sole question on liability was therefore damage: whether the plaintiff had suffered a compensable psychiatric injury, rather than a normal grief reaction.
The plaintiff claimed general damages for a psychiatric condition she said arose from the circumstances of her son's death, and also sought to recover economic loss on the basis that her condition had impaired her ability to run her business.
Legal Issues
- Whether the plaintiff had established a recognisable psychiatric injury (nervous shock) as distinct from ordinary grief, following the death of her son
- Whether any such psychiatric condition was caused, or materially contributed to, by the death rather than by other significant life stressors, including a large tax liability and the terminal illness of her estranged second husband
- Whether the plaintiff's established psychiatric condition had caused or materially contributed to a decline in her business income
Decision
Hidden J accepted the evidence of two psychiatrists, Dr Robert Lewin (treating psychiatrist) and Dr Rod Milton (forensic examiner), both of whom diagnosed a pathological grief reaction leading to depression. Lay witnesses, including the plaintiff's daughter and a long-standing friend, corroborated a marked personality change from an outgoing, gregarious woman to someone who was introverted, persistently distressed, and preoccupied with her son's death. The court was satisfied the plaintiff had established more than a normal grief reaction and had proved a recognisable psychiatric injury.
The complicating factor was causation. An earlier report from Dr Lewin had described the plaintiff's interaction with the Australian Taxation Office as the "major trigger or precipitant" of her clinical depression. However, in a later 1995 report, Dr Lewin revised his view and identified the death of her son as "the main source of distress throughout." Hidden J accepted the later formulation, finding that the pathological grief reaction flowing from the son's death was the primary cause of the plaintiff's psychiatric injury, notwithstanding the additional stressors in her life.
On economic loss, the court rejected the claim. The plaintiff's businesses, a brothel and a fantasy phone sex enterprise, had declined from around 1990 to 1992 onwards. However, the court identified multiple competing explanations for that decline: increasing market competition in the phone sex industry, the plaintiff's own preoccupation with her tax dispute, difficulties with a landlord and local council, and her treating general practitioner's evidence that her physical health alone should have prevented her from working beyond early 1993. The court accepted that her depression made her working life more difficult and took that into account in the general damages award, but was not satisfied the psychiatric condition contributed in any significant way to the business decline.
Orders Made
• Plaintiff is entitled to damages assessed in accordance with the court's conclusion in paragraph 26
• Agreed out of pocket expenses of $6,210 (rounded off) are awarded
• No interest is claimed on the out of pocket expenses
• Parties to bring in short minutes to give effect to the reasons
• Court to hear argument on costs if necessary
Key Takeaways
- A plaintiff claiming nervous shock must establish a recognisable psychiatric or psychological injury beyond a normal grief reaction; ordinary bereavement, however profound, is not sufficient to ground a claim (applying Coates v GIO (1995) 36 NSWLR 1).
- Where a treating psychiatrist's opinion evolves across multiple reports, the court will examine the full body of evidence to determine which formulation best reflects the causal picture, rather than treating an earlier report as determinative.
- The presence of concurrent stressors, such as a significant tax liability or a spouse's terminal illness, does not automatically defeat a nervous shock claim; the court must assess whether the defendant's breach was the primary or a material cause of the psychiatric injury.
- Economic loss flowing from a psychiatric condition requires proof that the condition, rather than other independent factors, materially contributed to the financial decline alleged.
- A concession of duty of care and breach by the defendant narrows the trial to the issue of damage alone, making the quality of psychiatric and lay evidence on causation and injury central to the outcome.
Legislation and Cases Referenced
Cases:
- Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1
Legislation: No legislation was cited in the judgment.