Chester+v.+The+Council+of+the+Municipality+of+Waverley


 * 1939, High Court of Australia**


 * Facts:** The town of Waverley excavated a 7-feet-deep trench on a road, surrounding it with a not-child-proof railing. Ms. Chester's 7-year-old son fell into the trench and drowned. Ms. Chester searched for hours for her son, saw his dead body in the trench, and suffered a severe nervous shock as a result. She is suing Waverley for negligence.

YES (Dissent: Evatt J.)
 * Issue:** Was there a breach by the town of Waverley of a duty of care owed to Ms. Chester?
 * Held:** NO (Majority: Latham C.J., Rich J. Starke J.)


 * IN MAJORITY:**

To whom did Waverley owe a duty of care? (Who qualifies under Donoghue v. Stevenson as a "neighbour"?) - Ms. Chester suggests Waverley had the duty not to injury her child so as to cause her a nervous shock when she saw his body. If this duty exists, it is hard to state its limits. Does it apply to all mothers of injured children? To all relatives of injured children? And even to mothers who suffer shock believing their child injured, and who then find the child well? - Nervous shock resulting from a mother seeing the dead body of her child should not be regarded as "within the reasonable anticipation of the defendant." "A reasonable person would not foresee" that the negligence of the defendant towards the child would "so affect" a mother.
 * Latham C.J.:**
 * Waverley owed a duty to persons using the highway to prevent them from injury due to the open trench.
 * Waverley may have owed a duty of care to playing children, but this question need not be answered unless it were the child himself or his heirs suing for the child's injury.
 * In this case, Ms. Chester must establish that Waverley owed //her// //personally// a duty of care.

- Waverley breached its duty towards the child. - But the //mother'//s shock falls outside the duty of Waverley. She was not using the road nor a witness of the accident. Her shock is not reasonably within the contemplation of the defendant as a consequence of the condition of the road. - A train of events following an injury almost always includes consequential suffering. Tort law cannot completely repair the world at large. - Rich J. believes tort law is moving in favour of plaintiffs, "defendants appear to have fallen entirely out of favour." (CB, 38)
 * Rich J.:**

- The trench itself did not cause the shock. Ms. Chester did not witness the accident. The failure to guard the trench was but indirectly connected with the shock; the shock is but remotely connected to the act or omission of Waverley. No reasonable person would foresee the shock.
 * Starke J.:**

(The judge painstakingly goes through the facts of the case, and cites poet William Blake and author Tom Collins on how painful it is to be a mother who loses a child.) - A reasonable town would foresee that: - Physical injury includes nervous shock. Waverley could have foreseen injury being suffered by a parent, perhaps not in this precise way, but in some such way. Waverley owed a duty of care to a parent. - But maybe Ms. Chester was a "susceptible and emotional mother" and Waverley should only owe a duty of care to "ordinary normal human beings"? The case of "frightening an old lady at Charing Cross": A owes no duty of care towards unreasonably nervous old ladies, who are upset by trivial accidents.
 * DISSENT - Evatt J.:**
 * Water and sand in a trench would attract young children to play;
 * Children might fall through the inadequate barrier;
 * The child's parents might come looking for the child in the trench (maybe after hearing his cries);
 * In trying to rescue the child from the trench, the parents might sustain physical injury.
 * FALSE - It is not that A has no duty of care towards the old lady, he does. But, if A takes reasonable care (ie: acts in a way so as not to frighten reasonable people), he has not breached his duty.
 * In this case, Waverley could not have known that the parent of an injured child would be emotional or non-emotional. It had a duty towards all parents and took the injured parents as they came (cf. thin-skull rule).

Anja's favourite quote: "It may be that the plaintiffs [people in a funeral procession who saw the coffin fly out of the hearse] are of that class which is peculiarly susceptible to the luxury of woe at a funeral so as to be disastrously disturbed by any untoward accident to the trappings of mourning."