Gifford v Strang Patrick Stevedoring Pty Ltd
  • Determined at common law

Material Facts

The respondent employed Gifford who was killed in an accident in the course of his employment. The respondent admitted negligence on its part. The appellants were the children of Gifford. They did not witness the accident, but were informed of their father’s death later that day. They were shocked and distressed at the news. The appellants commenced proceedings against the respondent seeking damages in negligence for “nervous shock”.

‘Important Paragraphs’ that were made reference to in the lecture

[8] – Issue and implicit reference to neighbour principle
[12] – Children as a class with reference to reasonableness
[51] – Gleeson CJ states the test for determining if a DOC was owed
[53] – Reasoning for why the employer owed a DOC to the children
[86] – Neighbour principle by Kirby and Gummow JJ
[87] – In the context, how do you determine when it is reasonable to find a DOC was owed? In the context of an employer/employee relationship it would appear to be when the defendant is in ‘control’ (refer to Caltex case) and the Plaintiff is consequently vulnerable
[101] – Hayne J's reasoning for why a DOC is owed to the children (with reference to the pre-existing relationships)
[103] – Further explanation in regards to the employer ‘controlling’ the matters and bound to take reasonable care
[118] – Callinan J’s nice little summary of psychiatric harm which is an extract from Tame.

  • Duty of care owed (no dissenting judges)

Does Gifford merely reinforce the reasoning in Tame and Annetts?

Somewhat. There does seem to be some consistency that limiting devices such as sudden shock etc are not a set requirement. However, there is still uncertainty in regards to ‘normal fortitude’. Only McHugh and Callinan JJ found it to be an indispensible element of a cause of action of nervous shock. The other members of the court thought that it could be of significance on the issue of foreseeability.

Gifford has relevance in Queensland and NT as it was decided on common law but has limited relevance in other jurisdictions where CLA provisions have taken over.