By Malcolm Brown
December 18, 2004
Children's $150,000 for trauma of lost dad

Three children of a man crushed to death by a forklift have been awarded damages of about $150,000 in the first civil case since the High Court ruled that close relatives could sue for nervous shock even if they did not witness a fatal accident.

The decision yesterday by Judge Anthony Puckeridge to award damages to the children of Barry Gifford, a wharf worker who was killed at Darling Harbour in 1990, opens the way for what may become a flood of similar actions.

David Baran, the barrister who represented Darren Gifford, his brother, Matthew, and sister, Kelly, at yesterday's District Court hearing, said the High Court decision in September 2002 had been "a significant victory" and yesterday's decision set a precedent.

Previously, close family members had been able to sue for nervous shock only if they had actually witnessed the incident.

Under the NSW Civil Liability Act (2002), close family members not present at the incident can sue for nervous shock but must demonstrate a recognisable mental illness. Grief alone is insufficient.

The Giffords' case had been through the NSW Supreme Court, the Appeal Court and the High Court before being referred back to the NSW District Court.

Strang Patrick Stevedoring, which employed Mr Gifford and whose forklift was involved, had admitted it was in breach of its duty of care, and yesterday's hearing was for the awarding of damages. Judge Puckeridge said that each of the children, Darren, now 33, Matthew, 29, and Kelly, 34, had suffered stress-related psychiatric conditions.

Darren Gifford, who had epilepsy, had begun drinking heavily six to 12 months after his father's death and had smoked marijuana. His drinking had affected his discipline with his medication and he had shifted between jobs, continually plagued by memories of his father.

He had been diagnosed in 1999 as having depression and other symptoms consistent with a "pathological grief reaction".

Other assessments included post-traumatic stress disorder and an unresolved grief reaction.

He was awarded $46,504.36, which rose to $51,384.36 with addition of out-of-pocket costs for medical treatment.

Matthew Gifford, who had had a similar close relationship with his father, had begun drinking heavily and had lost interest in many things, including football training. He had been diagnosed in March 1998 as suffering from a long-term depressive illness.

A skin condition had troubled him and there was evidence that it had been exacerbated by the stress caused by his father's death.

The judge said Matthew Gifford had made a conscious decision to ignore warnings about his heavy drinking. But he found there was "an abnormal continuing grief ... attributable to psychological depressive illness".

He calculated his general damages at $49,504.36, which rose to $59,132.22 with the addition of medical expenses.

Kelly Gifford had suffered bouts of bulimia and showed symptoms of serious long-term stress. "I find that she suffered an abnormal grief reaction following the death of her father," the judge said. He awarded her $39,504.36.

Judge Puckeridge adjourned the hearing until next year to decide on whether costs should be awarded against Strang Patrick Stevedoring and whether interest should be added to the amounts.

Outside the court, Darren Gifford said he was disappointed by the amount. Mr Baran said there was a strong likelihood his clients would appeal against the size of the award.