State of New South Wales & Anor v Thomas; State of New South Wales & Anor v Welling [2004] NSWCA 52

State of New South Wales & Anor v Thomas; State of New South Wales & Anor v Welling [2004] NSWCA 52

The sisters' pleadings alleged only statutory claims under s 4(1)(b), and the parties had not deliberately litigated common law claims at trial, so the District Court judgments could not stand on the original pleadings. The statutory causes of action failed because the evidence did not show that injury by mental or nervous shock was sustained by reason of the deceased being killed within the sisters' sight or hearing. However, the evidence and findings supported common law causes of action, the Court had power to amend the pleadings on appeal, and the appellants did not establish that they would have conducted the trials differently or that a substantial wrong or miscarriage would result....

Jurisdiction
Australia
Judgment Date
09 March 2004
Procedural Posture
Appeal From District Court Judgments in Nervous Shock Claims / Court of Appeal Judgment
Outcome
Appeals allowed with costs; statements of claim amended to plead common law claims; District Court judgments set aside and substitute judgments entered for the respondents.
Legal Topics
['nervous Shock' 'psychiatric Injury' 'pleadings' 'amendment on Appeal' 'prejudice' 'new Trial' 'statutory Cause of Action Under Law Reform (miscellaneous Provisions) Act 1944 S 4(1)(b)' 'common Law Cause of Action']
['torts' 'civil Procedure' 'appellate Procedure'] ['nervous Shock' 'psychiatric Injury' 'pleadings' 'amendment on Appeal' 'prejudice' 'new Trial' 'statutory Cause of Action Under Law Reform (miscellaneous Provisions) Act 1944 S 4(1)(b)' 'common Law Cause of Action']

Case Brief

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Procedural Posture

Appeal From District Court Judgments in Nervous Shock Claims / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether the respondents' statements of claim pleaded only causes of action under s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 or also pleaded common law causes of action." 'Whether the parties conducted the trials on the basis that common law nervous shock claims were in issue.' 'Whether the respondents proved causes of action under s 4(1)(b).' 'Whether the Court of Appeal should allow amendments to plead common law causes of action and whether the appellants would suffer relevant prejudice.' 'Whether a new trial should be ordered.' 'Whether there was evidence that Mrs Welling suffered from a recognised psychiatric illness.']

Ratio Decidendi

The sisters' pleadings alleged only statutory claims under s 4(1)(b), and the parties had not deliberately litigated common law claims at trial, so the District Court judgments could not stand on the original pleadings. The statutory causes of action failed because the evidence did not show that injury by mental or nervous shock was sustained by reason of the deceased being killed within the sisters' sight or hearing. However, the evidence and findings supported common law causes of action, the Court had power to amend the pleadings on appeal, and the appellants did not establish that they would have conducted the trials differently or that a substantial wrong or miscarriage would result....

Court Disposition

Appeals allowed with costs; statements of claim amended to plead common law claims; District Court judgments set aside and substitute judgments entered for the respondents.

Orders

  • ['CA 41119/02: Appeal allowed with costs.' 'CA 41119/02: Direct that the statement of claim be amended by adding the words "and at common law" at the end of paragraph 3.' "CA 41119/02: Judgment for the plaintiff in the District Court (644 of 2001) set aside and in lieu thereof substitute judgment for the plaintiff...