10 April 2019

Negligent Driver Fails in Claim to Recover Damages for His Own Nervous Shock

Kevin Barratt
Kevin Barratt Compensation Lawyer

The case of Bryant v Competitive Foods Australia Pty Ltd trading as Hungry Jack’s Annerley (‘Hungry Jack’s’), Brisbane City Council (‘BCC’) and Wayne Blow and Associates Pty Ltd (‘the architects’) involved an unsuccessful attempt by Mr Bryant to recover damages for his nervous shock following the tragic death of a 3 year old child at Hungry Jack’s Annerley on 26 April 2012.

Mr Bryant was the driver of the vehicle which struck and killed the child as he drove through the Hungry Jack’s car park towards the drive-through.  Mr Bryant did not see the child on the pedestrian crossing.  Various witness accounts suggested that Mr Bryant was distracted by music and/or his phone.

Mr Bryant was charged with dangerous operation of a motor vehicle causing death.  He was found not guilty following a District Court trial.

Undoubtedly the incident and subsequent trial caused considerable distress to Mr Bryant.  He rather bravely initiated a claim for damages for nervous shock.

His claim came on for trial in the District Court at Brisbane before His Honour Judge Jarro.

In a carefully considered judgement, Judge Jarro found in favour of the defendants.

Hungry Jack’s was the occupier of the premises.  In 1999 they carried out some extensions and modifications to the store to include a covered outdoor play area and a second drive-through service window.  Hungry Jack’s commissioned the architects to draw plans. The architects also submitted a development application to BCC.  The application was approved on 11 January 2000.  There were subsequently some minor amendments to the driveway and the final plans were approved on 8 May 2000.  The development works were carried out in accordance with those plans.

Hungry Jack’s, as the occupier, admitted it owed a duty to entrants such as Mr Bryant to take reasonable care for their safety upon its premises, including in the car park area.  They conceded they had a duty to take care to minimise the risk of foreseeable injury to persons who entered the property.

Both BCC and the architects denied they owed Mr Bryant a duty of care.

His Honour Judge Jarro held that BCC did not owe Mr Bryant a duty of care in respect of its planning approval role.  It had no role in the construction or maintenance of the pedestrian crossing.  It had no control over the area.

Similarly, the architects had no control over the circumstances giving rise to the accident.  It was not reasonably foreseeable when the architects provided their services that Mr Bryant would suffer psychiatric injury due to his manner of driving.  The duty owed by the architects was confined to exercising reasonable care and skill in the provision of architectural services.  The scope of the duty of care did not extend to avoiding pure psychiatric injury.

Although it was conceded that Hungry Jack’s owed Mr Bryant a duty of care it was held that they did not breach that duty of care.  Mr Bryant’s case focused on the design of the driveway and car park. His Honour held that Hungry Jack’s discharged their duty of care in relation to the design of the car park by engaging appropriately skilled contractors to carry out the work.

His Honour also separately held that there was no breach of the duty of care by BCC or the architects.

The operative cause of the accident was Mr Bryant’s negligent driving rather than any particular design feature.

His Honour went on to observe that even if Mr Bryant succeeded in establishing liability he would have reduced his damages by 90% for contributory negligence.

Mr Bryant’s claim was dismissed with costs.

 

 


Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).

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