S aturday 14 August 1937 in Sydney dawned clear but damp, it having rained heavily the two preceding days. People emerged from their homes; kids returned to the streets. Among them were the Chester children, fifteen-year-old Benny, twelve-year-old Rose and seven-year-old Maxie, who had resided in Waverley’s Allens Parade for a fortnight; later that afternoon, only the older two came back. Although we don’t know exactly how they separated, it is hardly difficult to imagine. Benny and Rose wanted to go to the pictures rather than look after their kid brother. But by the time the Star Theatre emptied, Maxie’s mother Golda was anxious, an anxiety that worsened when a neighbourhood search proved fruitless.
If you’ve studied torts, you know what happened next. As darkness closed in, the searchers concentrated their efforts on a ditch abandoned by council workers during the week’s rain now brimming with water. Children had been observed jumping from side to side during the day. So it was that the limp, muddy figure of Maxie was brought to the surface. Resuscitation efforts failed. The boy had drowned. The mother suffered a nervous collapse. Not long after, the law moved in. Under the antique Compensation for Relatives Act , the family had no recourse; a solicitor, Abe Landa, mounted a case instead for ‘nervous shock’. Eighty years later, along I came to try and make sense of their efforts – in particular those of H. V. Evatt.
I can trace the genealogy of The Brilliant Boy quite precisely. For the last fifteen years, I’ve been involved with judicial colleges in Australia in judgment writing seminars, one or two a year, mingling professional writers with judges and other judicial officers. The idea is that judgments are literary as well as legal exercises, and that those who craft them benefit from reminding about the tenets of lucid English expression, for the purposes of clearer thinking and more accessible reasoning.
One day, discussion turned to the intersection of the law and literature, and mention was made of Chester v the Council of the Municipality of Waverley (1939) HCA 25 ; 62 CLR 1 . Among the judges, everyone knew it; mere journalist, I did not. But I had an abiding interest in Evatt, had read the four biographies, while remaining unsatisfied by them: they’d not told me much more than that Evatt had been a judge before he was a politician, his failures at which were obviously the main game to boomer historians.
There was something missing in everything I read, which is what had made Evatt such an attractive personality in the first place; there must, I had this nagging feeling, be more to him than Bob Menzies’ punching bag.
When I read his dissent in Chester , that mystery was suddenly dispelled. It was a fascinating piece of writing and reasoning, clearly way ahead of the dismissive judgments of his colleagues. It was moving and erudite, terse and astringent; it invoked British justice, but was prepared to push on, even if it meant going it alone. I understood why Geoffrey Robertson had described it as ‘a masterly piece of jurisprudence, infused with humanity’, and ‘an example of Evatt’s profound belief that humanitarian principles could be deployed by judges to develop a common law that would meet the needs and challenges of a changing world.’ It contained a flavour of the man, or, at least, the man Evatt wished to be, striving through his countrymen’s conservatism and indifference to nurture a bigger, fairer culture, out of a mixture of high ideals and immense personal ambition.
Chester , then, offered an opportunity to look at Evatt afresh. For Evatt in 1939 was a man of colossal, seemingly unstoppable momentum. There’s a wonderful vignette in the diary of the writer Nettie Palmer, who happened to be the niece of H. B. Higgins, and was hosting the Evatts at dinner. Eight years on the bench and still only forty-four, Evatt had just returned from a year abroad, where he had surveyed the world scene, pursued his fascination with modern art, written a book, lectured at Harvard and Columbia, fraternised with the likes of Franklin Roosevelt and Felix Frankfurter. ‘The man leaves you with a sense of the fullness of life,’ wrote Palmer.
It’s partly physical, the broad, powerful shoulders of a former footballer, the gusty voice and laugh, but partly his management of energy and time. Ever since – at that fabulously early age, under forty it must have been – he accepted an appointment to the High Court Bench, he has taken for granted that, in this Olympian calm, he can do what he wants.
That was the man just about to write the dissent in Chester, and its vigour and rigour reflect both his powerful commitment to justice and his brooding dissatisfaction with the bench, which would culminate a year later in his return to politics, after an earlier spell as a state MP. More than that, I think: salient aspects of Evatt’s biography resonate with the tragedy that befell Golda Chester.
Evatt was one of eight boys from rural Maitland, two of whom died in infancy. His father died when he was six. Mother Jessie was fiercely ambitious for young Bert, and supportive of his intellectual precocity. Evatt seems to have corroborated Freud’s belief that ‘the man who has been the indisputable favourite of his mother keeps for life the feeling of a conqueror, that confidence of success that often induces real success.’ His secondary and tertiary educations are a pageant of honours; he was one of only 170 barristers in NSW when he joined the bar; he was only the university’s third doctor of law.
Like most Australians of their generation, the Evatts were also visited by wartime tragedy. Jessie patriotically saw two teenage sons, Ray and Frank, off to war. Neither returned. Jessie never recovered from the loss; Evatt suffered, I suspect, a species of what we would now call ‘survivor’s guilt’: thrice turned down for military service on grounds of poor eyesight, he lived with a sense of having failed to save his brothers, which was not entirely irrational, for he had petitioned unsuccessfully for Frank’s release from uniform to continue medical studies. Evatt also inherited Jessie’s morbid preoccupation with his health, which he instilled in his own family: the Evatts, Bert and his wife Mary Alice, travelled everywhere with their own bed linen, eschewed public conveniences, were obsessive hand washers and draft excluders. It’s easy to pathologise this, and biographers have had a bit of a field day with Evatt’s fears. They make more sense to me: a man who loses both parents and four of seven brothers by his mid-20s can be pardoned an acute sense of mortality, particularly in a pre-antibiotic generation.
But we do see in Evatt, I think, the interplay of a strong sense of destiny; and a highly developed dread of the external forces that might thwart its fulfilment. Perhaps a further outgrowing too.
Evatt, often deeply suspicious of adults, was entirely disarmed by the young, solicitous of their welfare, sentimental about their innocence. Having suffered fibroids, Mary Alice was unable to bear her own children; the couple raised an adopted son and daughter, with an almost obsessive protectiveness.
You can see where I’m heading here: the strong maternal bond, the drive to make a mark, the consciousness of mortality, the sense of children’s preciousness. If you wanted a sympathetic judge in the case of the accidental death of a child, Evatt J is whom you’d choose, right? One other thing too. In the Supreme Court, the Chester’s family doctor testified that Golda’s loss was magnified by the feeling ‘that this boy was a particularly brilliant boy and seemed to be the hope of her family, as she told me.’ A particular brilliant boy in his own family, Evatt would surely have understood that mantle.
After all, why was Evatt there in the first place? Evatt remains the youngest appointment ever made to the High Court: a thirty-six-year-old legal prodigy, with extensive experience as an advocate in cases of politically-motivated extraditions, and in the fertile fields of defamation and of workers’ compensation, where he and his younger brother Clive were frequently briefed by an industrious Jewish solicitor, Abe Landa. He had also been a state Labor backbencher for six years, albeit precluded from ministerial office by Jack Lang’s enmity. These qualifications endeared Evatt to a federal Labor caucus who, with the election of James Scullin in August 1929, were abruptly offered the opportunity to reverse employer inroads on workers’ pay and conditions under the Bruce-Page axis.
Post-Higgins, the High Court was perceived, not without good cause, as a bastion of conservatism, choosing as it was from a minuscule like-minded legal gene pool. Caucus’s promotion of Evatt and Edward McTiernan, slightly older and likewise left-leaning, was unmistakably designed to balance the court more congenially to the trade union movement, recently drawn into collaboration beneath the banner of the Australian Council of Trade Unions. The legal community predictably deprecated the move, to the visible unease of McTiernan, and perhaps also the latent discomfiture of Evatt. When Evatt was attorney-general in 1945, he resisted a similar caucus push to expand and reweight the High Court – doubly ironic given his subsequent appearance before the bench in the bank nationalisation case.
Anyway, had you wished to create a dysfunctional High Court in the 1930s, you could hardly have done better. The two chief justices, elderly Duffy and emollient Latham, were unequal to the task of harmonising the outsiders with their proud, priggish, mistrustful colleagues Owen Dixon, Hayden Starke and George Rich.
Evatt gave a number of influential judgments in his decade on the bench. He affirmed trial by jury in Mercer v Commissioner for Road Transport and Tramways (1936) 56 CLR 580 ; he clarified Australia’s external affairs powers in The King v Burgess, ex parte Henry (1936) 55 CLR 608 ; he provided Australia’s first liability standard for negligence in Australian Knitting Mills Ltd v Grant (1933) HCA 35 ; he adumbrated a tort for privacy in Victoria Park Raceway & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 ; he defended freedom of political speech in The King v Hush; ex Parte Devanny (1932) 48 CLR 487 . Most renownedly, he was the judge who defended the right of the anti-fascist writer Egon Kisch to remain in Australia, when the government strove repeatedly to deport him; it seems that he virtually wrote Kisch’s case in The King v Carter; ex parte Kisch (1934) 52 CLR 221 . From his an extraordinarily retentive memory, he often drew a line from Milton: 'Let truth and falsehood grapple. Whoever knew truth to be put to worse in an open encounter?' It informed, for better and worse, his later resistance of the Menzies government in Australian Communist Party v the Commonwealth and during the Petrov Affair.
The irony is that it was not Evatt’s tendency to dissent that was cause of friction on the bench so much as his tendency to agree, at least with Dixon, who also strongly influenced Rich and McTiernan. The imperious and sarcastic Starke, who in the diaries of Sir Owen Dixon and the papers of Sir John Latham emerges as possibly the most unpleasant character to have sat on the High Court, called them the ‘parrots’. Yet Starke’s complaints may not have been entirely unfounded. There does seem to have been a degree of ‘ghosting’ on the bench in the 1930s, as identified by Russell Smyth and colleagues in ‘Ghosts from the High Court’s Past’, a 2003 paper in the University of NSW Law Journal . Their conclusion, using computational software to detect echoes of Dixon in the writings of others, is that he may have written or at least contributed to almost a fifth of the judgments of the notoriously indolent Rich.
Dixon’s diaries further confirm that he not only dictated Rich’s judgment in Chester , but in a concurrent negligence case, Ruby Corben v the Commissioner of Railways of NSW .
Corben and Chester , I think, deserve to be treated as a pair. They came on a week apart. Both are appeals from the full bench of the Supreme Court of NSW. Both involve a mother seeking compensation for the accidental death of a son. In both lower court hearings the plaintiffs were represented by Evatt’s younger brother Clive. Both were given cursory treatment by the lower court judges and by Evatt’s High Court colleagues. Evatt’s dissent in the unreported Corben therefore reads like a rehearsal of the themes and the tone which so distinguish Evatt’s dissent in Chester.
Seventeen-year-old Sidney Corben was a hardworking costing clerk, and a model son, who gave his weekly wage straight to his mother, with a kiss. On 9 July 1936, he boarded the 5.43pm Bankstown train at Museum Station. There was no seat; Corben sat on the armrest of a female friend until, as he did every day, about 200m from his stop at Banksia, he adjourned to the vestibule. Rather than slow, however, evidence was that the train accelerated into a thirty-five-degree curve, lurching violently. Despite holding a stanchion eighteen inches back from the open doorway, Corben was hurled to his death.
There had been a rash of such fatalities, thanks to the custom of NSW suburban trains travelling with open doors – which they would for another twenty years. But the full bench of the Supreme Court quashed a jury’s award of damages to the family, Chief Justice Jordan pinning the blame on Corben’s own carelessness: ‘Everyone knows that the passage along the rails of a swiftly moving vehicle involves a considerable amount not only of vibration but of movements which may variously be described as jolting, lurching or swaying, of varying degrees of intensity according to speed, grade and direction.’ Starke and Rich breezily agreed when it got to the High Court.
Anticipating he would be in the minority, Evatt held nothing back. Following on his earlier conclusion in Mercer , he immediately strikes a note of frustration at the judges’ invasion of the province of the jury.
To Evatt, civil juries embodied the civic virtues of citizens; by contrast, he deploys a famous put-down of lawyers by Viscount Goschen, that the study of law is ‘not inconsistent with a dull and uncultivated imagination’ and ‘an absolute incapacity to grasp conditions which to others are immediately visible, to recognise facts which to others are a plain and patent element in their lives.’
Australian jurisprudence contains no equivalent of Evatt’s use of the aforementioned half-dozen lines of Blake and twin chunks of Furphy...
Then Evatt rolls his sleeves up, probably with a bit of help from his younger brother, in sifting the evidence the other judges had barely considered, including that the rails on the curve had recently been reported as out of position, that the engineer was unable to prove that they had been repaired, that the driver claimed not to have noticed the accident and to have destroyed relevant records. Evatt stresses uncontradicted testimony from two witnesses that Corben had been holding tightly onto the stanchion in the doorway; one said that the youth had been sent ‘flying out of the train’, the other that it was ‘as though someone had pushed him.’ He draws the solid inference that ‘the jolt must have been a very substantial one’ if it broke the grip of ‘a young and very athletic man’. He deplores again and again the ‘very dangerous practice of travelling with wide and open doors’, turning on its head Jordan’s point that ‘everyone knows’ about the jolting and lurching of trains: ‘If knowledge of the above facts may be imputed to the travelling public, it may equally be imputed to the responsible officers of the government railways.’
There are two other anticipations of Chester : he draws on precedents from two legal heroes, Lord Atkin and Benjamin Cardozo; he finishes by explaining that despite knowing that the appeal will fail, he has elaborated his reasons because ‘the case is of great importance to the travelling public’. One hears the echo of this in the opening lines of Chester: ‘This is a case of considerable general importance. It concerns a rule of the common law of England and the principles involved will greatly affect the development of the law of negligence.’
It’s worth pointing out that this was not the family’s actual name. Golda Socachewski was a Polish Jewess who took the surname Chester when she arrived in Australia with her children from Lowicz in December 1936, and the first name Janet on the advice of her solicitor and co-religionist Landa – a precaution against any undercurrents of anti-semitism the case might stir.
Landa, as I mentioned, was tight with the Evatts. They had shared chambers. Clive had moved Landa’s joining the solicitors’ roll; Doc was godfather of Landa’s son, David Evatt Landa. Landa had unsuccessfully brought one nervous shock case to the High Court, Bunyan v Jordan (1937) 57 CLR 1 , in which Clive had acted and Doc been the lone dissenter; in this instance Landa briefed Doc’s former associate, Jack Brennan, newly gone to the bar; Doc agreed to its proceeding in f orma pauperis . Chester’s inception, one suspects, was very much a collaborative undertaking.
Evatt would have realised at once that he was in the minority – Dixon’s diary informs us that Latham, Starke and Rich made their minds up instantly on the case, albeit that Rich wasn’t sure why until, as in Corben , Dixon dictated his judgment. The High Court took its cues from the decision of Monahan J in the Supreme Court to instruct the jury to find for the council on grounds ‘that the cause of his drowning or the nature of the locality of the fatality had no effect on her [Golda’s] mind’, upheld by the full bench with Jordan CJ composing the joint judgment.
What caused the plaintiff any physical injury which she may have in fact sustained was the shock of learning, some hours after the event, and perhaps thereafter brooding upon, the fact that her child had been killed in an accident. It is true that the information which caused the shock was imparted to her by her own visual perception and not by something told to her. It is true also that she learned the fact of the child’s death at the spot at which the accident had occurred some time previously. But she was there not in the character of a wayfarer startled by a distressing sight, but of a person looking for the body of a child then believed to be dead.
Jordan was a judicial miserabilist, out of all sympathy with the nervous nellies of nervous shock. Two years earlier, he had written a scathing assessment in Bunyan about ‘people who make a fuss about nothing’: ‘Spectacles which would have been viewed with equanimity by our stronger-stomached ancestors of the eighteenth century, who took pleasure in viewing public executions and public floggings, would cause general horror in these softer times, at any rate in the community in which we live.’
I like the way this stops just short of calling for the reintroduction of public executions and floggings, as though in grudging concession of liberal ideas.
Latham, Starke and Rich all found for the council with a similar gruffness, because it was difficult to establish where the limits of a duty might end electing not to try. Latham urged that death was an ‘everyday occurrence’, its effect on others usually transient; Starke maintained that the council was bound only to consider ‘reasonable probabilities’, ‘normal persons’ and the ‘ordinary range of human experience’, all of which Golda Chester and her misfortune were outside; Rich/Dixon considered that the council’s responsibilities extended as far as looking after the roads, and since Golda was neither ‘using the road’ nor an eyewitness her shock was not ‘reasonably’ in the council’s contemplation. As Justice Deane would say in Jaensch v Coffey (1984) 155 CLR 549 , the years have not dealt kindly with any of these sternly objective and devoutly masculine sentiments: ‘The proposition upon which those judgments is based is no longer, if it ever was, acceptable.’
Everything about Evatt’s judgment in Chester is a dissent, even its length: it is six times as long as the average judgment of the 1930s. Evatt begins by laying out events, almost suspensefully. He introduces Maxie, ‘a boy of seven years’. He introduces the trench, and the allure of its ‘crude railing’, sandy mounds and watery depths – ‘the irresistible combination of sand and water’ that ‘brought the children in the neighbourhood to play at the side of the pool.’ He cites the acknowledgement of a road ganger that the workmen had been powerless to shoo youngsters away. He specifies the trench’s dimensions to accentuate the contrast with the children: ‘Thus the depth of water in the trench was for the most part in excess of the height of the small children playing there. In this way the menace of death was very great and very near.’ Then something remarkable. In the Supreme Court, Golda in her poor English had struggled to express her confusion and horror; Evatt now sought to enter her mind to understand the ‘nervous shock’ of her agitated search and horrifying discovery.
According to the mother's evidence, the child left his home after lunch at about 2 p.m. The family lived at Allen's Parade, Waverley, in the street where the trench was being excavated. At about 3 p.m. his mother became concerned and commenced to look for her child. Upon her husband's returning from work, both parents called in the aid of nearby relatives, who all helped in the search. The plaintiff had resided in Allen's Parade for only 14 days, and at first was unaware of the special menace of the deep trench. As a result it did not occur to her or her fellow searchers for some time that the child might have fallen into the trench. Late in the afternoon, however, it was suggested by someone, perhaps by the mother of the little boy who was called as a witness, that Maxie, the plaintiff's child, might have fallen in the water. Coming with her husband to the side of the trench the plaintiff was at once beset with fear at the sinister significance of the trench, especially when one of the searchers was unable to plumb the depth of its water.
The plaintiff was a woman of Polish extraction, and found special difficulty in narrating the precise nature of her feelings, her fears, her hopes and her sufferings. But it is quite easy, I think, to perceive the order of events. It is abundantly clear that until the recovery of the body she did not know that her child had been drowned in the trench. Like most mothers placed in a similar situation, she was tortured between the fear that he had been drowned and the hope that either he was not in the trench at all, or that, if he was, a quick recovery of his body and the immediate application of artificial respiration might still save him from death. In this agonised and distracted state of mind and body she remained for about half an hour, when the police arrived and the child's body was discovered and removed.
During this crucial period the plaintiff's condition of mind and nerve can be completely understood only by parents who have been placed in a similar agony of hope and fear with hope gradually decreasing. In the present case the half hour of waiting was the culmination of a long and almost frantic searching which had already reduced her to a state of nerve exhaustion. Even after the finding of the body, an attempt at artificial respiration was made and abandoned only after expert lifesavers had worked on the child's body for some time.
There have been few paragraphs so infused with the sense of a judge stepping down from the bench to commune with a suffering plaintiff. Evatt offers Golda Chester the voice she was denied by needing to speak in an unfamiliar tongue; he unites her with other mothers, perhaps even Evatt’s own, in the experience of the ‘agony of hope and fear’ occasioned by a child in peril. Twice Jeanie Evatt watched sons disappear into danger; twice she endured the long wait for dreadful news that was always a possible outcome. Evatt’s claim it is ‘not remarkable that there was evidence of some permanent injury to the plaintiff's nervous system’ almost certainly derives from personal experience.
To universalise Golda’s predicament, Evatt next did something still bolder, elaborating his point, as he was wont to in conversation, with literary citations. ‘William Blake's imaginative genius has well portrayed suffering and anxiety of this kind,’ Evatt noted, deploying lines from two stanzas of the poet:
Tired and woe-begone
Hoarse with making moan ...
Rising from unrest
The trembling woman prest
With feet of weary woe:
She could no further go.
The selection is slightly ironic. The lines are from ‘Little Girl Found’, part of Blake’s Songs of Experience , reprising ‘Little Girl Lost’ in Songs of Innocence : the poem culminates in her parents finding their wandering daughter Lyca, who had disappeared in the earlier poem, beguiled by nature. The end, then, is hopeful, although perhaps that is the point: the anxious parent’s prayer for deliverance is no less urgent for being answered. His other source was nearer and bleaker.
The Beaumonts, Azaria Chamberlain, Graeme Thorne: the innocent child lost in a harsh land is a ubiquitous Australian motif. Poets such as Henry Lawson, Banjo Paterson, Will Ogilvie and Barcroft Boake helped build the mythology; likewise artists as diverse as S. T. Gill, William Strut, William McLeod and Frederick McCubbin. There are literary echoes in Henry Kingsley’s The Lost Child , Ethel Pedley’s Dot and the Kangaroo and James Vance Marshall’s The Children , the latter famously adapted in Nicolas Roeg’s Walkabout.
These lost children of lore had real life counterparts. One classic tale involved the three Duff children in 1866, found by black trackers after losing their bearings while cutting brush for brooms west of Natimuk, spawning decades worth of books, journalism, paintings and engravings. Ending less happily were three boys who disappeared near Daylesford the following June, their bodies undiscovered until September – inspiration for Marcus Clarke’s short story ‘Pretty Dick.’ Among the hundreds involved in the fruitless search was twenty-three-year-old Joseph Furphy, a smallholder with literary aspirations. His 1903 masterpiece Such is Life is haunted by lost children.
Early on, Furphy’s alter ego Tom Collins falls in with a boundary rider and his wife, coming to regard their five-year-old daughter Mary as ‘the perfect Young-Australian’ and ‘a child of the wilderness’. But camping some months later, Collins hears of Mary’s death from one of his companions, Thompson. Mary had wandered into the scrub in search of her father, away mustering; Thompson had taken part in the panic-stricken search.
Longest night I ever passed, though it was one of the shortest in the year. Eyes burning for want of sleep, and couldn't bear to lie down for a minute. Wandering about for miles; listening; hearing something in the scrub; and finding it was only one of the other chaps, or some sheep. Thunder and lightning, on and off, all night; even two or three drops of rain, toward morning. Once I heard the howl of a dingo, and I thought of the little girl, lying worn-out, half-asleep and half-fainting—far more helpless than a sheep—and I made up my mind that if she came out safe I would lead a better life for the future.
The denouement, with Mary being found dead in a bilby hole, starts a cycle of similar campfire yarns. Another storyteller, Saunders, tries lifting the gloom with a happier tale, of a lost boy found in a hollow log. A last companion, Stevenson, narrates a grim tale of his childhood on the Upper Campapse: ‘Bad enough to lose a youngster for a day or two, and find him alive and well. Worse, beyond comparison, when he’s found dead; but the most fearful thing of all is for a youngster to be lost in the bush, and never found, alive or dead.’ The story concerns his own younger brother, who had wandered off after a quarrel between them never to be seen again. The consequences, Stevenson explains, were fearful: their father succumbed to drink; their mother took a lethal dose of laudanum; the family dissolved; such remains his burden of guilt that he feels ‘thankful to remember that every day brings me nearer to the end’.
Australian jurisprudence contains no equivalent of Evatt’s use of the aforementioned half-dozen lines of Blake and twin chunks of Furphy – from the foregoing, he chose Thompson’s recollection of his night of searching, and Stevenson’s observation of the horror of a child disappearing completely. Evatt’s claim for the utility of his countryman Furphy was especially ambitious. Michael Meehan has called Evatt’s ‘the one brave instance of the quotation of an Australian writer, and the integration of literature as 'local knowledge', in an Australian legal judgment.’ Yet it was perfectly consistent with Evatt’s patriotism that he should place an Australian novelist on par with an English romantic poet. His friend Vance Palmer had just coaxed the publisher Jonathan Cape into a new edition of Such Is Life , claiming Furphy as Australia’s Mark Twain. The selection of passages in Chester certainly brought delight to Furphy’s biographer Miles Franklin. Who better to adorn a judgment, she wrote Evatt, than ‘one of our own authors, and such a truly Australian one’? And which better judge to do so? ‘It is because you are high among the literati as well as high among the jurists that you have applied the passages, native and imported, with such effect,’ Franklin wrote.
Some remain critical of Evatt’s approach, finding the references obtrusive and unnecessary. As a non-lawyer, I’d argue for them: they bring Golda Chester’s suffering into the range of normal human Australian responses, and seek to bridge a gap in the reasoning of judges as they explore this inchoate area – which, Evatt quickly advises, they are: ‘Not only its poets and novelists, but, at any rate in recent years, those engaged in the administration of the common law of England have recognised that shock of the most grievous character can be sustained in circumstances analogous to those of the present case.’
The judgments he has in mind in particular are two by Lord Atkin: those in Donoghue v Stevenson , the immortal snail in the bottle case with its timeless duty-of-care question: ‘Who is my neighbour?’, and Hambrook v Stokes Brothers , which established the category of secondary victims who could recover for nervous injury. Evatt had been conducting a lively correspondence with the Anglo-Australian; he now set about using the tools Atkin offered for assailing the orthodoxies of Monahan and Jordan. He starts from the position that the question of the cause of Golda’s injury had been a matter for a jury. Monahan, argues Evatt, had no evidence for instructing jurors that the shock was unrelated to the ‘sight of his [Maxie’s] body’ and the ‘nature of the locality of the fatality’. He responds with irony and acuity:
The suggestion is, I suppose, that the plaintiff's suffering was no different in essentials from that of any other mother to whom someone had delivered a message that her child had been drowned although she had no first hand knowledge of any of the attendant circumstances. But it is impossible to abstract from the totality of events any factor which during the critical waiting period contributed to her distress and shock. In particular it is not possible to ignore the outstanding impression operating on the plaintiff's mind—that within the apparently small area of the trench situated so close to his own home her child might be lying dead or in desperate danger of death; within such close reach in one sense, but in circumstances preventing immediate action by way of rescue or assistance.
Monahan, he explains, unduly laboured the elapsure of hours between Maxie’s probable time of death and its revelation to Golda ‘some appreciable time after’. Relying on a superficial reading of Atkin in Hambrook , Monahan had ruled that the council ‘could not be under any liability to the plaintiff unless she witnessed the actual fall of her child into the trench’ – this, Evatt insists, is ‘too nice a psychological analysis of the nature and time of the first onset of the fear and shock suffered by a mother in circumstances analogous.’ The fact should ‘no more defeat her case than if, searching for her child throughout the afternoon, she finally came upon his dead and disfigured body left lying in some lane by a 'hit and run' motorist who had negligently caused his death’.
Jordan, meanwhile, had downplayed Golda’s shock on grounds that she was in the capacity of ‘a person looking for the body of a child then believed to be dead’ rather than as ‘wayfarer startled by a distressing sight’. And this, Evatt clearly thinks, is ridiculous – the stubbornness of hope, which he has described, tells us otherwise.
It seems indisputable that the jury could have found that the onset of the plaintiff's nervous shock took place at a point of time when the plaintiff, although at the side of the trench, did not know or even believe that her child had been drowned. Equally she was not 'looking for the body of a child.' She was looking for her child. She was terrified lest he should have been drowned, was taking notice of little except what her own senses were telling her, was hoping against hope that her very worst fear would not be realised.
Golda was not ‘ looking for the body of a child’ ; she was ‘looking for her child.’ These are devastating lines. Evatt explains that Jordan has misread Atkin’s use in Hambrook of the word ‘wayfarer’ as placing shocked passers-by in a superior position to recover damages for seeing a horrifying sight than blood relatives. This makes no sense in the light of Atkin’s neighbour test in Donoghue: ‘I think that the law is at once more civilised and more humane. Behind the illustration provided by Hambrook v Stokes Brothers lies the broader principle enunciated by Lord Atkin in Donoghue v Stevenson in order to help in determining whether the common law has established a relationship of duty between a defendant on the one hand and a plaintiff, or the class to which a plaintiff belongs, on the other:— ‘Who, then, in law is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ Evatt clarifies further with some sociological observation.
Let us apply this criterion to a reasonable person in the situation of the defendant council. Such a person would foresee that, by leaving the trench inadequately guarded, it would probably become, especially when filled with water and provided with sand, a very attractive place to children in the neighbourhood of the trench.
He would also foresee that, having regard to the unfortunate but notorious fact that children of workpeople are frequently compelled to play in the streets and also to the fact that the water was in the trench, the special menace of the place would be that small children might fall in and be drowned. He would also foresee when 'directing his mind' to the dangers that, if a child got into the zone of the special danger, his parents (and others) would resort to the spot either to seek for the child or, upon hearing his cries, to rescue him from danger; and that, in so doing, they might themselves sustain physical injury or illness caused by nervous shock and distress.
Evatt next moves to the implication of Latham’s comment that death was ‘an everyday event’ which normal people quickly got over – thereby relegating Golda, who hadn’t, to the category of ‘exceptionally susceptible’ individuals falling short of ‘normal fortitude.’ Basically everything we know of human nature, Evatt counters, tells us otherwise: ‘So far as the argument rests upon the contention that no other parents would have suffered shock and illness from the ordeal undergone by Mrs. Chester, I think this is a mere assertion and is contradicted by all human experience.’ Furthermore, ‘every reasonable person is aware that all sorts and conditions of men and women may be found among the eye witnesses of an accident’. He quotes a dictum from Professor Arthur Goodhart, the revered editor of Law Quarterly Review: ‘We all know that the average man in the street is not necessarily the average man.’ He notes that no judge in Hambrook worried whether the mother was ‘a normal person of ordinary firmness and mental stability.’
Above all, Evatt has it in for Jordan. He even has a joke at his expense: ‘If the theory advanced by the Full Court were sound, it might equally have been applied to exonerate drivers from a duty to drive with reasonable care in cases where the person injured was 'peculiarly susceptible' to fractures.’ Such arbitrariness in the name of securing ‘floodgates’ against frivolous nervous shock claims clearly exasperated Evatt, for he next detours to the aforementioned ‘zone of special danger’ invented by the Wisconsin Supreme Court in 1935’s Waube v Warrington . A woman in ‘frail health’, Susie Waube, was looking out her window as her daughter Dolores was crossing the road, and saw her killed by a careless driver, Amber Rose Warrington. The shock was so severe that Susie Waube died soon after. Her husband was denied damages, however, on the basis that his wife had been outside ‘the area of physical danger’.
Evatt’s retort is again to invoke universal understandings of the modern world and human behaviour: ‘One cannot measure with mathematical precision the relative probability of the contingencies referred to, but I do not think it matters. With roads closely flanked by houses, there must always be a fair probability or possibility that if a small child is found on a road, his mother or father will be found in the vicinity keeping some sort of lookout on the child's movements.’
Evatt thereby groups Chester with a special category of negligence claims: ‘search and rescue’ cases, involving trauma to those rushing to assist the killed and maimed. This gave Evatt scope to invoke another hero: the American Benjamin Cardozo in his classic Wagner v International Railway. Returning to Buffalo in the dark from an outing in August 1916, cousins Arthur and Herbert Wagner were on the open platform of an overcrowded trolley car crossing a narrow trestle bridge when Herbert was dislodged by a lurch and fell onto railway tracks below, dislocating his shoulder; in the course of the search Arthur then fell, leaving him paraplegic. Lower courts were unsympathetic. Cardozo’s riposte is classical: ‘Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer.’
Evatt’s summary alludes to Corben in opining that ‘the railroad company should have foreseen that if it carelessly allowed train doors to remain open while the train was rounding a curve, a passenger might be thrown out’, but his point remains the same. The duty owed to rescuers for physical injury should be extended to nervous shock; it should cover a mother attempting ‘to find and aid her child’, and not be precluded ‘merely because of the fact that, when she discovered the dead body some appreciable time after the accident, life was already extinct.’ If rescuers in accidents were owed a duty of care by the negligent, then surely family members, a highly foreseeable category of rescuers, were owed it too.
Evatt lastly brushes aside Victorian Railways Commissioners v Coultas (1888), 13 AC 222 , a fifty-year-old decision in theory still binding on the Dominions in which the Privy Council had disdained ‘damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock’, now clearly overtaken by the march of medical science:
It must always be a question of fact whether shock to the nerves causes 'actual physical injury. Today it is known that it does. In 1888 it was widely assumed that it did not….It is on this basis that Coultas’ Case is to be understood, and if so understood it has no application to cases like the present where ‘shock to the nerves’ is another name for actual physical disturbance to the nervous system.
And so he concludes, with a comment on his setting out his reasons ‘at length’ because of ‘the great importance of the present case’ – perhaps the only sentiment in the judgment it is unnecessary to state.
Evatt’s 14,000 densely-packed words court our admiration still. Despite its long sentences and sometimes complex constructions, the dissent is muscular and direct; you can feel the fury through the patina of judicial restraint. He finds ways at each point to relate them to everyday understandings. Where the other judges maintain cool indifference to the Chesters’ circumstances, Evatt displays interest in daily life among the urban poor – of ‘roads closely flanked by houses’ where ‘children of workpeople are frequently compelled to play in the streets’ and there is ‘fair probability that…his mother or father will be found in the vicinity’. It is the use of literature, of course, that affords the judgment such accessibility and reach. You can read Evatt’s judgment in Chester not just as dissenting a majority view in this case, but dissenting a majority view of judicial writing and legal thinking casting only backwards and inwards. Law insisting that harm required lesions and lacerations ignored the march of science. Law incapable of acknowledging something so fundamental as maternal love was at odds with the humanity it purported to serve.
Why did Chester so call to Evatt? Firstly, it offered fresh ground with scope for innovation. This was only the second time such a case had come before the High Court, with no way of knowing when the next might bubble up – in fact, it would be thirty-one years. After his travels the previous year, Evatt assuredly had an eye on the audience of legal scholars, which he duly attracted. Later that year, Law Quarterly Review gave Chester plush treatment in ‘An Australian Shock Case’, breezily disposing of the propositions of Latham, Rich and Starke before making a far-sighted prophecy. ‘Evatt J’s dissenting judgment puts the contrary view in a powerful and eloquent manner,’ wrote Proessfor Arthur Goodhart. ‘As this branch of the law is still unsettled it would not be surprising to find that in the long run Dr Evatt’s opinion will prevail.’ This far-sighted prophecy would be fulfilled in Jaensch v Coffey (1984) 155 CLR 549 , where Justice Deane concluded: ‘It must now be accepted that the conclusion of Evatt J is, on the facts in Chester , plainly to be preferred to that of the majority.’
At the same time, the combination of his judgments in Corben and Chester express Evatt’s frustrations with the law’s tendency to the status quo. Every day the world inched a little closer to war. Yet here he was, a comparatively young man, outnumbered by those who would never advance anything they did not absolutely have to. It can be read as a note to self – that if he wished for liberal and humane policies, he might need to play a part in their actual formulation.
Lastly are we left with Chester ’s personal resonances. Maxie was the same age as Evatt’s daughter Rosalind, who had herself been unwell, and a similar age to himself on the death of his father. Thanks to their wartime tragedies, the shock of loss and the tragedy of unfulfilled promise still loomed large in his family: Evatt could hardly endorse a legal view that the ‘sudden and distressing death of a child’ produced consequences of only a ‘temporary nature’ when he knew it so untrue in life. Deeply compassionate, unfailingly rigorous, it is, to my mind, the great Australian dissent.
Gideon Haigh is a journalist, author of more than 40 books, contributor to more than 100 newspapers and magazines.