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Mr Masri gave up his job to look after his wife but, at the time, refused to apply to the administrator of his wife’s fund for payment for his services. He sued Dr Marinko for negligently occasioned pure psychiatric injury (nervous shock) in the form of “pathological grief”. This phrase sometimes used to describe an emotional reaction to bereavement, which is considered more marked t h a n a n u n c o m p l i c a t e d b e r e a v e m e n t ; h o w e v e r n e i t h e r p a t h o l o g i c a l g r i e f n o r u n c o m p l i c a t e d a n y d i a g n o s a b l e m e n t a l d i s o r d e r ) . 5 3 D e p r e s s i v e D i s o r d e r 5 4 b u t m a n i f e s t e d services for his injured wife. Rolfe J Mr Masri’s itself in an assessed Mr bereavement meet the diagnostic criteria for pathological grief did not present as a Major obsessional insistence on performing voluntary

damages at $455,170, comprising $93,335 for general damages including interest, $299,998 w a g e l o s s i n c l u d i n g i n t e r e s t , a n d $ 6 1 , 8 3 7 f o r l o s t e a r n i n g c a p a c i t y . A l t h o u g h t h e N e w S o u t h Masri’s for past o f A p p e a l 5 5 i n M a r i n k o v M a s r i [ 1 9 9 9 ] N S W C A 3 6 4 r e d u c e d t h e q u a n t u m f o r g e n e r a l damages for past wages, it affirmed Rolfe J’s reasoning that Mr Masri’s entitlement to Wales Court damages and

recover his loss of wages flowed from the psychiatric injury he suffered in consequence defendant’s tortious conduct, and as such was independent of Mrs Masri’s right to recover relevant loss. Handley JA (with whom Priestley JA and Sheppard AJA agreed) stated (at [32]):

of for

the her

The two claims [Mrs Masri’s and Mr Masri’s] are separate and distinct, and there is no necessary overlap. The position would have been different if the husband had not been disabled, but gave up paid employment to look after the wife where there would be only one cause of action. In this case there are two causes of action and two losses and I have not been persuaded that there is any double dipping or overlap in the two awards.

The question whether damages for loss of capacity to provide gratuitous care, known as Sullivan v Gordon damages56, are recoverable in law, will be considered by the High Court in CSR Ltd v Thompson.57 Should the High Court hold that they are recoverable, then if Mrs Masri also had children, the defendant would have to pay damages for her inability to provide gratuitous care for her children, and they in turn would have an independent action against the defendant for pure psychiatric disorder occasioned by their mother’s injury.58 Moreover, since it is the plaintiff, not her or his carers, who receives common law compensation for the need for gratuitous care, the carers may be able to obtain statutory carers’ benefits.

Conclusion

The law should acknowledge that wrongful injury or death constitutes an infringement of the interest in unimpaired family relations. Those in a loving relationship with the injured or killed person often suffer intense emotional distress, which sometimes can lead to a diagnosable psychiatric disorder. In many instances, wrongfully inflicted injury or death of a loved person also occasions economic loss to his or her relatives. However, the present system of awarding plaintiffs (or their estates)59 damages for gratuitous care by reference to the carer’s loss but leaving it to the plaintiff (or the estate administrator) to determine whether or not to hand over the money to the altruistic carer is absurd. Moreover, the assessment of damages - which tend to involve tens of thousand of dollars - is impressionistic. For, as Windeyer J observed in Teubner v Humble (1963) 108 CLR 491 at 507:

53 Volkan V, “Typical Findings in Pathological Grief” (1970) 44 Psychiatric Quarterly 231-50; Zisook S & DeVaul R, “Unresolved Grief” (1985) 45 The American Journal of Psychoanalysis 370-79; Zisook S & Shuchter SR, “Time Course of Spousal Bereavement” (1985) 7 General Hospital Psychiatry 95-100; Engel GL, “Is Grief a Disease?” (1961) 23(1) Psychosomatic Medicine 18-22; Maddison D & Raphael B, “Normal Bereavenent as an Illness Requiring Care: Psychopharmacological Approaches” (1972) 2 Journal of Pharmacology 785-98.

Bloch s & Singh BS (Eds), Foundations of Clinical Psychiatry 2nd ed Melbourne: Melbourne University Press 2001 at 178- 79; se also: DSM IV TR, Additional Conditions that may Be a Focus of Clinical Attention (Not Mental Disorders): “V62.82 Bereavement” Washington DC: American Psychiatric Association 2000 at 740; 54

56 57 Sullivan v Gordon (1999) 47 NSWLR 319; [1999] NSWCA 338. High Court of Australia Bulletin, No 2 (2005) (as at 24 March 2005): see http://www.austlii.edu.au/au/other /hca/bulletin/hcab0502.html viewed 28 March 2005. Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; Cubbon, Cubbon & Bates v Roads and Traffic Authority (NSW) [2004] NSWCA 326. Subject to statutory thresholds and caps, damages for the value of voluntary services for the period between injury and death are generally available. 58 59

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