If I Only Had a Heart!
The Australian Case
of Annetts and the Internationally Confounding Question of Compensation in
Nervous Shock Law
Dr Yega
Muthu[+], Ellen
Geraghty[#] and Dr Barbara
Hocking[*]
The
question of when to award compensation for nervous shock is one faced by many
jurisdictions across the common law world, yet approaches
to the issue have been
markedly divergent. This is particularly apparent in the context of secondary
victims (such as parents) who
bring an action for nervous shock suffered as a
result of the serious injury or death of a loved one (such as a child) in a
traumatic
event.
In this area of law a key requirement for recovery has
been that of “sudden sensory perception” of the ill-fated event
or
at least the “aftermath” of the event which caused the death or
serious injury of the loved one. This requirement
is a legal one, and one not
grounded in science. “Shock” has enabled the law to draw boundaries
around the potential
for indeterminate liability in this area, and has led to
the technical exclusion of parents who may have suffered even “agonisingly
protracted” awareness of their loved one’s fate.
This paper
examines the decisions of the Annetts and Anor v Australian Stations Pty Ltd
[1] and Tame v Morgan
[2] in the High Court of Australia
and asserts that this requirement of the law of nervous shock has long been
overdue for change. We
commend the recent decision of the High Court to
“dramatically extend the right of a plaintiff to sue for psychiatric
injury”[3] and dispense with
requirement of “sudden shock” and “direct perception”.
Instead, the High Court in Annetts, a case fully demonstrating an
“agonisingly protracted” awareness of their son’s death by the
suffering parents,
preferred the “reasonable foreseeability” test.
We also discuss the more recent High Court decision in Gifford v Strang
Patrick Stevedoring Pty Ltd [4],
where the High Court applied the test and concluded that a duty may be owed to
those persons in a close relationship with an injured
person, despite their not
directly perceiving the event. We commend the emergence at common law of what
Professor Des Butler has
termed “the new landscape for recovery for
psychiatric injury in
Australia”,[5] and as part of
that, further commend the New South Wales Parliament’s dramatic move to
codify these changes in the Civil Liability Act 2002 and its subsequent
refinement of them in the Civil Liability Amendment (Personal Responsibility)
Act 2002.
Prior to Annetts, the requisite elements for
establishing a claim in nervous shock law in Australia were that the
plaintiff:
1. suffer from a recognised psychiatric illness
2. be a
person of reasonable fortitude at the time of commission of the tort
3. be
subject to a sudden or nervous shock
4. have directly perceived the accident
or its immediate aftermath.
These criteria created significant
differentials between compensability for psychiatric as opposed to physical
injury and were inconsistently
applied and
controversial.[6] However, Tame
and Annetts dramatically reformed the Australian law of nervous
shock, significantly removing most of the technical differences between physical
and psychological injury. These reforms were then partially overturned by the
legislative reforms born of the “Insurance Crisis”
of
2002.[7]
When handing down
their decisions, their Honours all expressed their awareness of the insurance
crisis and the ramifications of their
decisions. Chief Justice Gleeson, for
example, set out his question in terms of “reasonableness”,
providing a link between
legal conceptions of responsibility, contemporary
social conditions and standards, and meanwhile setting it out so that it acted
as a limiting factor upon
recovery.[8] In Tame and
Annetts the Court abolished the “nervous/sudden shock rule”,
the “direct perception” rule and the “normal fortitude”
rule.[9]
The result was an
expansion of the range of circumstances in which a person suffering psychiatric
injury may recover as a result of
the abolition of the “direct
perception” rule and the “sudden shock”
requirement;[10] but the plaintiff
was still required to show their membership of a class of persons who should
have been within the reasonable contemplation
of the defendant as sufferers of
psychiatric injury if receiving news of the distressing event by telephone or
other medium.[11]
The old
laws governing negligently inflicted psychiatric injury are the
remnants[12] of the judiciary of the
past—“There is now, however, an indication of a change of judicial
attitude brought about by
a better understanding of mental illness and its
relationship to shock.”[13]
However, this judicial progress has arguably been curtailed by the
legislature.[14]
1. Nervous Shock Law
Defining Nervous Shock
Nervous shock is the traditional name for psychiatric illness, the best
known of which in this context is post-traumatic stress
disorder.[15] Post-traumatic stress
disorder is defined as the development of characteristic symptoms following
exposure to an extreme traumatic
event.[16]
It is important to
distinguish between the two classes of victim in nervous shock cases: those
directly affected by a negligent act,
as a result of which psychiatric injury is
suffered, are known as primary
victims.[17] Secondary victims are
those family members, rescuers, bystanders and others who suffer psychiatric
injury as a result of what has
happened to someone
else.[18] Cases involving primary
victims are relatively straightforward personal injury matters. It is with cases
involving secondary victims,
in which the plaintiff must prove the closeness of
their relational tie, that this paper is
concerned.[19] Nevertheless, this
approach was abandoned by the High court of Australia in Annetts and
Tame as arbitrary and artificial to follow.
Disparity Between Science and the Law
The common law has adopted a much narrower view of “compensable
harm” than the science of psychiatry. Its usual restrictions
include:
(i) Comparing the claimants’ reaction to trauma with the
standard of ordinary phlegm or normal disposition, unless the defendant
is aware
of the plaintiff’s inherent
susceptibilities.[20]
(ii) In the
English jurisdiction, taking proximity factors such as space and time, as a
requirement, into account and balancing these
factors against whether it is
just, fair and reasonable to impose a duty on the
defendant.[21] Whereas in Australia,
such a requirement is not a precondition for recovery for the negligent
infliction of psychiatric
illness.[22]
(iii) Determining
whether the defendant breached the standard of care, taking into account the
degree of risk, the practical precautions
taken by the defendant and the social
utility of the conduct of the defendant which resulted in
damage.[23]
Recovery of
damages for psychiatric illness has proved to be a continuing problem for the
common law. As will be seen below, numerous
ideas have passed into and out of
fashion with the courts in their struggle to resolve the underlying policy
tensions. This has not
made the situation any easier for plaintiffs. Nor has the
current medico-legal mix of restrictions, which can pose insurmountable
hurdles
for the majority of plaintiffs. So it was with the Annetts, who were
“removed” from the death of their son by
the simple fact of where
and how it occurred.[24]
2. Case in Point: Annetts v Australian Stations
Pty Ltd
In August 1986, 16 year old James Annetts was employed as a jackaroo
(farmhand) on a cattle station in a remote part of Western Australia.
His mother
had sought and obtained reassurance from the manager of the station that her son
would be appropriately supervised.
Another young man, 17 year old Simon
Amos, was employed in the same capacity at around the same time as James.
Despite their youth
and inexperience, and despite the assurances given to Mrs
Annetts by the manager of the property, both the boys were sent to work
alone at
remote locations only seven weeks after their arrival in Western Australia. Soon
after, in December 1986, the two boys went
missing. It appeared that they had
become increasingly unhappy with the work, its hardship and isolation, and had
decided to “escape”
in a vehicle which they drove into the
desert.[25] They met a tragic fate.
Their parents were far away. They had been missing for several days before the
station manager informed the
police of the boys’ absences. The police then
telephoned Mr Annetts and informed him that his son was missing. On hearing this
news, Mr Annetts collapsed and his wife took over the telephone conversation.
A number of intensive searches were undertaken to locate James and his
companion, and his parents were in telephone contact with the
police. The
missing young men became the subject of a police investigation. James’
parents travelled to the investigation scene
on a number of
occasions.[26]
In January
1987, James’ blood-stained hat was located and shown to the boy’s
parents.[27]
In April 1987,
Mr Annetts was informed by the police that they had found his son’s
vehicle, which had been bogged in the desert.
Later that same day, Mr Annetts
was told that two sets of remains had been found nearby. Mr Annetts identified a
skeleton in a photograph
shown to him as his son.
The coroner found that
James died on or about 4 December 1986 in the Gibson Desert about 133 kms south
of Balgo as a result of dehydration,
exhaustion and hypothermia. Both his
parents developed psychiatric injuries as a result of their son’s tragic
death.
Apart from the uniquely Australian setting of the tragedy, the
fact situation differs little from the range of cases that have been
considered
in England[28],
Canada[29], South
Africa[30],
Ireland[31] and New
Zealand[32] in this area of law. It
is “the classic secondary victim
case”.[33]
A Recognisable Form of Psychiatric
Illness?—The Application of the DSM Manual
As a result of the cumulative manner in which they learnt about the
tragedy which claimed the life of their son, the plaintiffs in
Annetts
were diagnosed with a grief reaction and a reaction extending beyond “mere
grief” to an entrenched and recognisable psychiatric
condition within the
ambit of the DSM Manual.[34]
Legal Issues Arising from Annetts
At trial and on appeal, the law “removed” the suffering of Mr and
Mrs Annetts from the tragedy of their son’s disappearance
by virtue of the
geographical distance between them and their son at the time. When the Annetts
sought damages for psychiatric illness
resulting from the defendant cattle
station management’s negligent treatment of their son while he was in
their employ, they
confronted the “shock” or “sudden sensory
perception” obstacle of the relevant legal doctrine, as it was
the way in
which they came to know about the disappearance and subsequent death of their
son which otherwise stymied their claim.
It was their pursuit of that claim
which challenged the Court to consider whether the facts were sufficient at law
to give rise to
an independent tortious duty of care owed by the defendant
cattle station owners to the parents to exercise reasonable care and skill
to
avoid causing them psychological injuries. The law’s history did not bode
well for the suffering parents.
3. The History of Nervous Shock Law in
Australia
Australian judges have long exercised caution in the recognition of
negligently inflicted psychiatric
illness.[35] Early Australian cases
found liability in situations of intentional infliction of emotional
distress, [36] but rejected
negligently inflicted psychiatric illness. For example, in Chester v
Waverley Municipality,[37] a
mother suffered shock after seeing her dead son being lifted out of a trench.
The High Court of Australia decided that a duty was
not owed to her, as her
injury could not have been reasonably anticipated by the
defendant.[38]
The Law Reform (Miscellaneous Provisions) Act
1944 (NSW)
Criticism of Chester resulted in the passing of the Law Reform
(Miscellaneous Provisions) Act 1944 (NSW). Section 3 of the Act abrogated
the Chester case and gave the court the authority to have regard to the
negligent infliction of psychiatric illness arising from shock, and to
award
damages in such cases. Section 4 defined the category of allowable claimants to
include members of a family who suffered psychiatric
injury as a result of a
loved one being negligently killed, injured or put in
peril.[39]
This legislative
reform seemed to encourage rather than discourage the Australian common law in
developing a more open stance towards
negligently inflicted psychiatric illness.
Later cases saw a relaxation of the requirements of reasonable foreseeability to
allow
close family members to claim nervous shock after witnessing the
occurrence and aftermath of accidents involving their
relatives.[40] The widening of
foreseeability to include “witnessing the aftermath” began in
Benson v Lee [41],
where the plaintiff was informed by a third party that her son had been knocked
down by a car. The plaintiff mother rushed to the
scene of the accident 100
yards away. In this case Lush J stated:
“if within the limits of
foresight something is experienced through direct and immediate perception of
the accident, or some
part of the events constituting it, which imparts shock,
that is all . . . the law
requires.”[42]
Further,
while foreseeability of shock of some kind was required, the precise nature of
the shock suffered need not be
foreseeable.[43]
Jaensch v
Coffey[44]
Similar issues were discussed by the High Court in the landmark case of
Jaensch v Coffey[45] In this
case, the plaintiff saw her injured husband in a combination of events which led
her to suffer psychiatric illness. The High
Court of Australia dealt with the
definition of the “aftermath” of an accident, the observation of
which could give rise
to a claim of nervous shock. It was found that the
“aftermath” of an accident should not be restricted to the actual
site of the injurious event.[46]
Instead, it extended to the hospital during the period of the immediate
post-accident treatment of the person physically injured
by the
tortfeasor.[47] It is important to
note that in this decision the Court was prepared to contemplate recovery where
a plaintiff was so devastated
by being told of an accident involving family
members that he or she was unable to attend the various scenes.
The
majority of the court allowed recovery in Jaensch. However, Deane J
sought to impose a new test for the establishment of a duty of care, in addition
to the test of reasonable foreseeability.
This test was the test of
proximity.
Proximity
The notion of proximity is concerned with closeness in space, time and
relationship. In Jaensch, Deane J concurred with the speech of Lord
Wilberforce in the English case of McLoughlin v
O’Brian[48], in which
closeness of time and space were identified as important elements in
establishing liability.[49]
According to Deane J, a duty of care could be established in cases of physical
proximity (closeness of space and time), circumstantial
proximity (close or
overriding relationships) or causal proximity (close or direct causal
relationships between acts and injuries
or
losses).[50] In such cases the
defendant’s negligence must be a proven primary and continuing
cause[51] of the plaintiff’s
psychiatric illness.[52]
Thus, according to Deane J, to establish a duty of care one must
prove:
(i) The reasonable foreseeability of a real risk of that harm of the kind
suffered by the plaintiff or a member of that class;
(ii)The existence of the requisite element of proximity in the relationship
between the parties and;
The absence of any statutory provision or common law rule . . . which operates
to preclude the imposition of such a duty of care
in the circumstances of the
case.[53]
Deane J’s approach was essentially an expansion and adaptation of
the existing English approach which had been adopted in that
country in Anns
v Merton London Borough
Council.[54] In Anns,
in the leading judgement of Lord Wilberforce (with which the majority of the
House of Lords concurred), it was held that a duty of
care would exist where a
relationship of sufficient proximity existed for the relevant harm to be
foreseeable by the defendant and
where there were no considerations which might
reduce or negate the duty he owed to the
plaintiff.[55]
Brennan J took
a different approach to the question of duty of care in Jaensch. Whilst
appreciating the objective aspect of the foresight test, Brennan J
“stressed that it was a question of fact whether
a set of circumstances
might induce psychiatric
illness.”[56] Time and
distance were viewed as matters going to causation and reasonable foresight,
which were not matters of policy which limited
liability.[57]
Brennan J
also drew a distinction between the sudden sensory perception of an event as
opposed to learning of an event in less confronting
circumstances during its
aftermath.[58] His suggested
approach was that it was more plausible that persons would find difficulty in
coping with, and would suffer injury
as a result of being engaged in a traumatic
event rather than hearing about the involvement of others in such an
event.[59]
Critical Analysis of Proximity in the English
and Australian Jurisdictions following Jaensch
While Deane J stood alone in Jaensch on his formulation of
proximity, subsequent decisions of the court saw a growing acceptance—and
later criticism—of the
concept.[60]
The notion of
proximity was further developed in the case of Sutherland Shire Council v
Heyman.[61] In this case, Deane
J restated the three stage approach he had first formulated in Jaensch.
In the same case, Brennan J rejected the Anns two stage approach, arguing
that it allowed for massive extensions of liability and that its vague
“considerations to the contrary”
were an inadequate limit to
liability. In his judgement, Brennan J expressed his preference for the
“incremental” approach
whose roots were essentially in the
categorical approach to law.[62]
In Hill v Van
Erp[63], the notion of proximity
was criticised for its failure to provide a discrete legal
principle.[64] In the High Court of
Australia, Dawson J expressed reservations about proximity’s role as
“a unifying theme”.[65]
He opined that the concept of proximity enbodies “the proposition that in
the law of negligence, reasonable foreseeability
of harm may not be enough to
establish a duty of care’[66]
and that a process of reasoning—which might be viewed as a formal
incorporation of policy considerations into the process of
legal
reasoning—must be gone through in order to limit
it.[67]
In the English case
of Caparo plc v Dickman,[68]
the criticisms of Anns offered by Brennan J were accepted by the House of
Lords. In this case, the House of Lords did not search for a general overarching
principle but reverted to the categories
approach.[69] However, Lord Bridge
argued that new situations should be considered in three stages, the first two
of which bore a remarkable resemblance
to the approaches in Anns and
Jaensch. The considerations at each stage are:
(i)
foreseeability;
(ii) proximity; and
(iii) Notions of fairness, justice
and reasonableness.
Lord Bridge noted that:
The concepts of proximity and fairness embodied in these additional ingredients
are not susceptible of any such precise definition
as would be necessary to give
them utility as practical tests, but amount in effect to little more than
convenient labels to attach
to the features of different specific situations
which, on a detailed examination of all the circumstances, the law recognises
pragmatically
as giving rise to a duty of care of a given
scope.[70]
In Australia, Kirby J favoured Caparo’s three stage approach
in Pyrenees Shire Council v
Day.[71] Although criticism of
proximity as the determining test was continuing to grow, the favoured approach
after Pyrenees Shire Council involved considerations of foreseeability,
proximity and policy.[72]
Subsequently, in Perre v Apand Pty
Ltd[73], McHugh J of the High
Court of Australia expressed objections to Caparo. He argued that given
the inherent uncertainty about the meaning of proximity, it should not be given
greater weight than other factors.
He further argued that the Caparo
three stage approach threatened to deprive the law of such certainty as it
already had regarding the concepts of fairness, justice
and reasonableness, and
offered little practical guidance to practitioners.
McHugh J acknowledged
that whatever formula was used, in grey areas the court would have to exercise
its discretion. In such circumstances,
he maintained justice and morality should
be employed only when principle had failed to provide an answer. This caveat
reflected
the objections which had been made earlier in regard to Anns in
England.
Ultimately, McHugh J stated that “Deane J’s concept
of proximity . . . is no longer seen as the unifying criterion of
duties of
care”[74] as “it is a
category of indeterminate reference par
excellence”.[75]
Nonetheless,
the proximity criterion remains material in determining the existence of a duty
of care. In Modbury Triangle v
Anzil,[76] Kirby J referred to
the “failed notion of proximity” but also commented that: “As
a measure of factors relevant
to the degree of physical, circumstantial and
causal closeness, proximity is the best notion yet devised by the law to
delineate
the relationship of ‘neighbour’.”
In
Sullivan v Moody[77] the High
Court of Australia categorically rejected the notion of proximity as a general
criterion for the determination of a duty
of care because it offered little
practical guidance. The High Court also rejected the three stage approach
adopted by Lord Bridge
in the House of Lords decision in Caparo Industries
plc v Dickman[78] which involved
the notions of fairness, justness and reasonableness and which the Court felt
did not represent the law in Australia.
The court stated that what was required
was the development of principles capable of general application.
The
High Court did acknowledge that “proximity” might still be relevant
as a factor when considering areas of economic
loss and psychiatric illness.
Nevertheless, in the recent decisions of the High Court of Australia in both
Annetts v Australian Stations Pty
Ltd[79] and Tame v
Morgan,[80] which will be
discussed later in this piece,[81]
the majority of the High Court of Australia stated that proximity was not a
precondition for recovery in a psychiatric illness case.
This was essentially a
reiteration of what the Western Australian Supreme Court stated in Annetts v
Australian Stations Pty Ltd[82]
and what the New South Wales Court of Appeal stated in Morgan v
Tame.[83] Spigelman CJ in
Tame confirmed that the concept of proximity was no longer to be regarded
as a unifying principle, however, it remained a material consideration
in
determining the existence of a duty of
care.[84]
e. The
Aftermath Principle
According to the aftermath principle, secondary
victims who have viewed only the aftermath of a traumatic event rather than the
traumatic
event itself, are permitted to recover damages. In Jaensch v
Coffey, Deane J expanded the previous definition of “aftermath”
which referred only to the “events at the scene after
an accident,
including the extraction and treatment of the injured,” noting that in a
modern society, “the aftermath
also extends to the ambulance taking the
injured person to the hospital for treatment and to the hospital itself during
the period
of immediate post-accident
treatment.”[85]
This
development of the notion of “aftermath” suggested that the
closeness of the relationship between the primary victim
and any secondary
victims played a greater part than geographical proximity in determining whether
a duty of care was owed and whether
psychiatric injury was
foreseeable.[86]
While the
question of whether a plaintiff who was merely told of an accident could recover
damages was left open by Gibbs and Deane
JJ, they commented that:
It is difficult to see why a rule based on public policy should preclude
recovery for psychiatric injury sustained by a wife and
mother who is so
devastated by being told on the telephone that her husband and children have all
been killed that she is unable
to attend the scene while permitting recovery for
the reasonably, but perhaps less readily foreseeable psychiatric injury
sustained
by a wife who attends at the scene or its aftermath at the hospital
when a husband has suffered serious but not fatal
injuries.[87]
However, the Court noted that there was no binding authority which
compelled it on this issue, neither was there an existing legal
principle which
excluded reasonably foreseeable damage to a person who suffered nervous shock
without being in sight or hearing of
the relevant event. This caution has been
reflected in post-Jaensch cases which have called on courts to consider
the aftermath test in relation to the notion of proximity.
In the New
South Wales Court of Appeal decision of Campbelltown City Council v
Mackay,[88] Kirby P, as
he then was, questioned the rule that liability in an action for nervous shock
could only arise where shock arose from
a sudden sensory perception. In his
judgement, Kirby P considered that the law was predicated upon a scientific
anachronism which
had long since ceased to be scientifically justified, and
commented: “It is artificial to imprison the legal cause of action
for
psychiatric injury in an outmoded scientific view about the nature of its
origin.”[89]
This
gentle movement away from the requirement of a plaintiff’s presence at the
scene of an accident or its immediate aftermath
was recognised by the South
Australian court in Pham v
Lawson.[90] In that case, the
Court noted that this movement should be incremental and adaptive to current
legal circumstances and that it should
not be used as a yardstick by any means.
Nonetheless, in the New South Wales case of Knight v Petterson and
Ors,[91] damages were recovered
by the child of a parent killed by a negligent act, even though the child was
out of sight and hearing when
the parent was killed.
The question of
recovery for claims for nervous shock occasioned by communication has since been
left open by the High Court. In Coates v Government Insurance Office of New
South Wales[92] Kirby P stated
that it would be artificial to restrict recovery to a direct perception of the
occurrence of the tort, or to its immediate
aftermath. In today’s world,
shock occasioned by the communication, by telephone or by oral message, of an
event after it had
taken place, should be seen as foreseeable and directly
related to the wrong sued upon as if the vulnerable observer had received
the
shocking perception by his or her own eyes or ears. In this case, Kirby P again
stated that the actual perception rule was a
product of outmoded notions of
psychology and psychiatry, which was used by the courts as the basis of a policy
shield against expanding
the liability of wrongdoers for the harm they
cause.
Appellate Court Decisions After
Jaensch
Since Jaensch v Coffey, claims have been allowed in situations
where a plaintiff has merely heard about an accident involving loved
ones.[93] For example, in Petrie
v Dowling,[94] damages were
recoverable for the plaintiff’s shock and consequent illness, which arose
after the receipt of distressing
news.[95]
In Sloss v New
South Wales,[96] the New South
Wales Supreme Court allowed recovery to a mother who suffered
“shock” as a result of hearing of the death
of her son, who had been
incarcerated. The defendant, the state of New South wales, did not contest that
it owed a duty of care to
the prisoner, but it refused to accept liability for
the nervous shock suffered by the plaintiff mother. The judge found that the
state’s duty of care extended to all persons in sufficient emotional
proximity to suffer nervous shock. However, this duty
did not extend to recovery
for economic loss which had resulted from an effect on the plaintiff’s
mental state so adverse that
she was unable to run her
business.[97]
Three other
cases followed Sloss in the superior courts. In State of New South
Wales v Seedsman,[98] a Police
Officer in charge of investigating crimes against children suffered from
post-traumatic stress disorder as a result of exposure
to the nature and brutal
reality of those crimes. No form of counselling or therapy was provided by the
Police Department to alleviate
any stress, anxiety or depression the officer may
have had. The court allowed recovery for the negligent infliction of psychiatric
illness from the Police
Department.[99]
In Tame
v Morgan,[100] the plaintiff
suffered psychotic depression[101]
upon learning that a police officer had made a report in which she was recorded
as having been drinking when in fact she had not.
The plaintiff succeeded in the
District Court, receiving damages in the sum of $115,000. However, the decision
was overturned in
the New South Wales Court of Appeal, on the basis that it was
not reasonably foreseeable that an individual in the plaintiff’s
position
would have suffered the kind of injury complained of. The plaintiff had lost
again.
Subsequently, in Annetts, having failed at first instance,
Mr and Mrs Annetts took their case to the Western Australian Supreme Court of
Appeal.[102] It was accepted in
evidence that Mr and Mrs Annetts’ son went missing from his place of
employment and that shock was sustained
by the boy’s parents as a result
of learning of their son’s disappearance and eventual
death.[103] The Court considered
the problems confronting the law of psychiatric illness in this area and found
that there was no binding Australian
authority[104] supporting recovery
for psychiatric damage caused solely by learning of a distressing event by
telephone.[105]
The Court
noted that whether any duty of care was owed by the defendant station owner to
Mr and Mrs Annetts was a matter of fact,
and commented that the finding of an
existing duty of care was always more likely where the plaintiff was at the
scene of a traumatic
event and so perceived the injury to the loved one.
Otherwise the existence of the duty of care became less likely as the criteria
for its existence became more
remote.[106] The chances of Mr and
Mrs Annettss’ case succeeding were not good.
The defendant cattle
station knew that the plaintiffs’ son was young, had had little experience
as a jackaroo and that his parents
were concerned about his safety and
wellbeing. Strong concern for the young man’s wellbeing had been
communicated to the cattle
station by the mother and assurances given by the
servants or agents of the pastoral station as to his wellbeing. While they were
not physically proximate to their son at the time of his disappearance and
death, surely it was clearly foreseeable that the parents
could suffer trauma
possibly amounting to psychiatric injury if harm befell their son as a
consequence of the defendant’s negligence.
As Lord Oliver commented in the
English case of Alcock v Chief Constable of South
Yorkshire,[107]
The
traumatic effect on a mother of the death of her child is as readily foreseeable
in a case where the circumstances are described
to her by an eye witness at the
inquest as it is in a case where she learns of it at a hospital immediately
after the event.
[108]
Nonetheless, as
suggested by its earlier comments, the Court finally took a traditional line,
noting that: “The circumstances
of the case show that the psychiatric
injury claimed was not based upon a sudden sensory perception as the parents
were not directly
involved.[109]
Similarly, Ipp J held that:
On the basis of the direct perception requirement, the appellants have not
established the requisite degree of proximity under either
of the scenarios I
have postulated. Apart from the occasion (in January 1987) when Mr Annetts saw a
blood covered hat belonging to
James, and when he identified James’
remains (from a photograph seen some five months after his death), they did not
directly
perceive the consequences of the respondent's breach of duty. I do not
consider the two instances I have mentioned as satisfying
the
requirement.[110]
It had been 18 years since the High Court of Australia last had the
opportunity to examine the law pertaining to psychiatric illness
in
Jaensch. As Des Butler observes, the triumvirate of cases recently
decided by the High Court—Tame v New South Wales; Annetts v
Australian Stations Pty Ltd and Gifford v Strang Patrick Stevedoring Pty Ltd
“provided the opportunity for the court to settle an area of common law
which for long has been bristling with contentious
issues and to provide
guidance for lower courts which have for some time struggled to divine the law
from ageing and imperfect High
Court
authorities.”[111]
f. Annetts and Tame on Appeal to the High
Court
The full court of the High Court heard the merits of
Annetts[112]
concurrently with the case of
Tame,[113]on appeal from
the New South Wales appellate
court.[114] They had to consider,
in Annetts, whether the defendant station owners owed James
Annetts’ parents a duty of care, and in Tame, whether a duty was
owed by the defendant to a person involved in a motor vehicle accident who was
wrongly named by the police as
having a blood alcohol level three times the
legal limit and who consequently suffered shock.
In determining whether
there was duty in each case, the Court reflected on existing common law in
relation to psychiatric injury.
The common law required the presence of three
factors in addition to the basic standard that psychiatric injury be a
reasonably foreseeable
result of the respondent’s actions. These factors
were:
(i) Normal fortitude: The foreseeability must be of psychiatric injury
occurring in a person “of normal fortitude” rather
than a person
with a more fragile psyche.
(ii) Presence of sudden shock: The psychiatric
injury must have been caused by a sudden shock to the senses.
(iii) Direct
perception: The injured person must have perceived directly a distressing
phenomenon or its
aftermath.[115]
These
tests, which firmly distinguish the common law surrounding psychiatric injuries
from the looser standards which prevail for
other forms of injury, have evolved
on the basis of the fact that injury to the mind is not observable. As a result,
there is a perceived
danger of encouraging exaggerated or false claims. However,
in the past these tests have proved to be inflexible and inappropriate
in
certain factual scenarios.
The judges in Annetts and Tame
differed in their opinions and delivered separate judgements. However, the High
Court effectively disposed of the requirements for
“sudden shock”
and “direct perception of a distressing
phenomenon.”[116] Annetts
itself effectively showed that psychiatric injury could arise from anxiety
or stress over a prolonged period as well as from a sudden
event, and the
majority of the court (Glesson CJ, Gaudron J, Gummow J, Kirby J and Hayne J)
recognised this, arguing that the “sudden
shock” mechanism should
not be maintained as, “Cases of protracted suffering, as opposed to
‘sudden shock’,
[could] raise difficult issues of causation and
remoteness of damage. Difficulties of that kind are more appropriately analysed
with
reference to the principles of causation and remoteness, not through an
absolute denial of
liability.”[117]
The
court differed on whether the “normal fortitude” test should be
preserved. The majority agreed that the test should
be retained: a respondent
could not be expected to foresee the consequences of his or her actions on a
person, perhaps such as Mrs
Tame, who was of less-than-normal psychological
fortitude. Despite the divergence of opinion on whether or not the test should
have
been kept, a definition of the test was agreed upon. This definition stated
that, once it had been proved that it was reasonably
foreseeable that a person
of normal fortitude would have suffered psychiatric illness in the relevant
circumstances, the defendant
would be held liable for the entire illness
suffered by the plaintiff, even if the plaintiff had an “egg shell
psyche”.[118]
The
majority also held that the injury suffered by the plaintiff must be a
recognisable psychiatric disorder as defined in the DSM Manual,
and as opposed to mere grief, sorrow or
upset.[119]
The Annetts
were granted leave to appeal. Assurances as to their son’s welfare and
supervision were relevant to the duty finding.
The Court held that Australian
Stations had breached its duty of care to Mr and Mrs Annetts by sending their 16
year old son, contrary
to those assurances, out to work alone in an isolated
area as a result of which he disappeared and subsequently died. The news that
their son had disappeared, the uncertainty about his fate, and the eventual news
of his death, caused them to suffer shock. The rationale
behind this decision
was that a person of normal disposition would have suffered the kind of illness
complained of by Mr and Mrs
Annetts.[120] By contrast, the
appeal in Tame was not allowed. The case arose from an error in a
drink-driving record, which mistake was promptly rectified. However Mrs Tame
considered
that her reputation had been harmed and suffered psychiatric injury
due to this mix up. The Court held that it could not have been
within the
relevant police officer’s reasonable contemplation that Mrs Tame would
suffer psychiatric illness as a result of
the error that he made. Thus he owed
her no duty of care inasmuch as Mrs Tame was specifically susceptible to the
illness from which
she suffered and that special susceptibility was not
reasonably foreseeable. Gleeson CJ was of the view in Tame that any
foreseeability of harm had to be reasonable, while other judges reiterated that
for the purposes of cohesion in the law
it could hardly impose a duty on a
police officer to the subject of an investigation not to cause a person such as
Mrs Tame stress
in the proper pursuit of that
investigation.[121]
f.
The Consolidation with Gifford v Strang
The final case in the
“new landscape for recovery for psychiatric injury in
Australia”[122] is
Gifford v Strang Patrick Stevedoring Pty
Ltd.[123] Here the High
Court ruled that an employer owes a duty of care to avoid psychiatric injury to
the children of its employees. Finally
we witness the demise of a rule
identified some years ago by Professor Peter Cane as unacceptable: that of
proving closeness of relationship.
The relevant New South Wales law had already
sought to remove the need for a family member to prove closeness of relationship
with
the relevant family member: it had been intended as “a beneficial
provision expanding the ability of close family members to
recover for nervous
shock.”[124] The
deficiencies in the common law position were recognised with that statutory
provision.[125] Thus it was no
longer necessary to “prove” the closeness and affection of the
relationship, and the High Court demonstrated
an understanding of parental
emotions in resolving that children-parent is a “relationship of natural
love and affection.”[126] It
will still be necessary to consider whether a duty is owed to the person
suffering psychiatric injury pursuant to the DSM diagnosis
of mental disorder,
supported by psychiatric testimony, but following Annetts, sudden shock
and direct perception of the incident are no longer
required.
Legislative Approaches
The commendable decision
of the High Court in the case of Annetts finally brought the law of
nervous shock into closer alignment with that governing claims brought over
physical injury, while simultaneously
placing nervous shock law on a footing
more firmly based upon modern scientific knowledge. The next part of this paper
discusses
whether and to what extent this expansion of psychiatric illness law
has been curtailed by the Australian legislatures. It also discusses
the
approaches taken by other jurisdictions across the common law world, as well as
briefly canvassing public policy considerations
affecting and likely to affect
the development of psychiatric illness law up to this point and into the future.
The key contention of this paper is that Annetts forced an overdue
confrontation as to the failure of medical knowledge to inform the law in this
area, as well as the need for increased
communication between the disciplines of
science and law. The paper concludes by arguing that, despite recent expansions
of liability
for nervous shock, the law has thus far failed to adequately
protect the emotional rather than the physical investments of plaintiffs
which,
when jeopardised by the injury of a loved one, result in nervous shock. It
further argues that, given recent policy concerns
about compensation and
insurance crises and the increase in litigation, whether the progress so far
evident in the High Court’s
grant of leave to appeal to the plaintiffs in
Annetts and in the Civil Liability Act and Civil
Liability Amendment (Personal Responsibility) Act of 2002, is likely to
change this in practice, has yet to be seen.
In 2002
changes[127] were made to the law
by the New South Wales Parliament in the Civil Liability Act. Several
significant measures to discourage actions for minor injuries were
introduced.[128] The most notable
included the limitation of the award of damages for legal
costs,[129] a threshold for
general damages, set at 15 per cent of the most extreme
case,[130] and a $350,000 cap on
general damages.[131]
The
New South Wales Parliament has since introduced the Civil Liability Amendment
(Personal Responsibility) Act 2002. This Act significantly extends the
provisions of the Civil Liability Act and attempts to enforce the
responsibility of individuals for their actions. Many of the provisions of this
later Act are likely
to have far-reaching consequences. The more significant
provisions are the new sections 5B and 5C which are concerned with duty of care
and sections 5D and 5E which cover the meaning of reasonable foreseeability and
causation. Sections 16 and 17 address pain and suffering for non-economic loss.
Most relevant to this paper are sections 27 and 30, which deal with mental
harm.[132]
According to the
Civil Liability Amendment (Personal Responsibility) Act, damages for
psychiatric illness are limited to persons who are victims of, or present at the
scene of, an accident.[133] Those
persons who can recover include family members who have demonstrated a
recognisable form of psychiatric disorder as opposed
to mere grief, sorrow or
being upset. “Family members” comprise those individuals listed
within that category in the
Law Reform (Miscellaneous Provisions) Act
1944 (NSW) and include the parents, spouse (or de facto), siblings or
children of a victim.
Damages may also be recovered by any individual
not related to the primary victim, who has suffered a recognisable form of
psychiatric
disorder extending beyond a normal emotional or cultural grief
reaction after witnessing a traumatic
event.[134]
No recovery
will be permitted where damages are otherwise restricted by the Act “or
any other written or unwritten
law.”[135]
These
legislative provisions confirm the majority decision of the High Court in
Annetts and Tame which insisted that a defendant is liable for a
plaintiff’s psychiatric injury if the defendant ought to have foreseen
that
a person of normal fortitude might suffer psychiatric injury if reasonable
care was not taken by them.[136]
They also confirm the High Court requirement, laid out in Annetts and
Tame, that the plaintiff suffer a recognisable form of psychiatric
illness.[137] While this
codification of the law regarding recovery for psychiatric illness is a step
forward in some ways, some argue that to
“move away from the flexibility
of the common law position and categorically define who may claim, as the
legislation does,
is
regrettable.”[138]
4. International Perspectives on Nervous Shock
Law, proximity and the Aftermath Principle
a. England
In 1983, the year before the Australian decision in Jaensch v Coffey,
the judgement in the case frequently known as its English
twin—McLoughlin v
O’Brian[139]—was
handed down. At this time, Australian courts had made up for their previous
sluggishness in expanding liability in nervous
shock cases, and the approaches
to these cases were substantially in harmony in the two jurisdictions. Since
that time, however,
the Australian courts have outstripped the English in their
recognition of liability for nervous shock cases. Faced with a number
of cases
resulting from mass disasters like the Hillsborough
tragedy,[140] the English
judiciary has stoically been holding the line against any further expansion of
liability for nervous shock.
While encouragingly considering the
closeness of relationships outside those between spouses and parents and
children, in the House
of Lords case of Alcock v Chief Constable of South
Yorkshire Police,[141] their
Lordships refused to countenance recovery by anyone who had learnt of the
disaster by any means other than direct perception
of the event, or the
aftermath within two hours of the event taking place, with their unaided
senses.[142]
In White v
Chief Constable of South
Yorkshire,[143] the
plaintiffs—secondary victims of the Hillsborough tragedy—were a
number of police officers. In this case, Lord Goff
established a number of
important criteria for determining whether an entitlement to damages for
psychiatric illness existed. These
criteria were:
(i) The plaintiff must have close ties with the victim;
(ii) The plaintiff must have been present at the accident or at its immediate
aftermath; and
(iii) The psychiatric injury must have been caused by direct perception of the
accident or its immediate aftermath and not upon hearing
about it from someone
else.[144]
Lord Hoffman qualified this summary but cautioned that it should not be
viewed as an exhaustive list.[145]
Finally, the majority held that rescuers were owed no duty unless they had been
within the area of physical danger—the police
officers’ claim was
denied, and the law had narrowed again.
In its 1995 Consultation
Paper on Liability for Psychiatric Illness, the Law Commission reviewed the
current English law on psychiatric
injury.[146] In that paper, the
Commission identified the key criteria which the court will apply,
specifically:
(i) The plaintiff must suffer a recognised psychiatric illness
such as post-traumatic stress disorder or pathological grief disorder.
As in
Australia, mental distress alone is insufficient: Hicks v Chief Constable of
the South Yorkshire
Police.[147]
(ii) Where
the plaintiff is a secondary victim, the psychiatric illness must be shock
induced (Sion v Hampstead Health
Authority[148]) and the
result of the direct perception of an event or its immediate aftermath;
(iii)
The plaintiff must also be able to prove a sufficient degree of physical and
emotional proximity.[149]
There are poignant reminders in Annetts of the “seriously
doubted” first instance decisions of the English courts in Hevican
v Ruane[150]
and Ravenscroft v Rederiaktiebolaget
Transatlantic.[151] Those
decisions allowed recovery by the suffering yet “distant” families
(one son had been working far away on an oil-rig
in the North Sea). Both cases
were overturned on appeal. Whereas, by way of contrast, the somewhat similar
case of Annetts (which involved an Australian version of vulnerable young
men at work in relevantly remote situations) failed before the two lower
courts,
with the Full Court of the Supreme Court of Western Australia particularly
restrictive in upholding the decision of the trial
judge.[152] Yet this case has now
contributed on appeal to the High Court to an emerging landscape of psychiatric
injury.
For the moment, however, the English common law in regard to nervous
shock has “all the hallmarks of a legal system learning
from experience
and trying to adjust to the changing demands of a more litigious society. Courts
are in fact making it up as they
go
along.”[153]
South Africa
Pertinent to the subject matter of this piece is the South African
decision of Barnard v Santam
Bpk.[154] In this case, a 13
year old boy was killed in a bus accident; the appellant mother suffered
psychiatric injury upon being informed
by her husband (who had himself received
the information over the telephone) of the death of her son. Deputy Chief
Justice Van Heerden
cited the comments of Kirby J in Coates in a
judgement which rejected the notion that all hearsay victims of psychiatric
illness should be excluded from seeking damages.
It was further held that
notions of reasonableness and fairness did not preclude the court from finding
that the respondent’s
negligence was the legal cause of the
appellant’s shock. The remaining four members of the court
concurred.
This decision provides “Confirmation that negligence law
can provide redress against some forms of carelessly communicated bad
news.”[155] The decision
relied heavily on Australian authorities and was consistent with developments in
the rest of the common law world. Nonetheless,
the decision was downplayed by
Ipp J in Annetts on the grounds that South African civil law was based on
the law of delict, rather than tort, and was limited only by causation and
public policy— proximity had no
role.[156]
b. Canada
Canada has generally also taken a cautious approach to the expansion of
liability for nervous shock. An example of this cautious approach
is the 1999
decision of the British Colombia Court of Appeal in Devji v District of
Burnaby,[157] in which the
Court had regard to a duty of care that required “not merely
foreseeability but also proximity and something
more”.[158] In this case the
Court was not able to conclude that the psychiatric injury suffered by the
plaintiff parents was reasonably foreseeable
when they attended a hospital to
identify the body of their daughter. The Court refused to expand the aftermath
principle beyond
its previous limits, or to contemplate the award of damages
where direct perception was lacking, emphasising the need to maintain
existing
limits on liability in such cases.
d. Ireland
It was an Irish judge who first repudiated the old rule of non-recovery
for nervous shock.[159] In keeping
with this avant garde individual, later judgements in Ireland have shown a
similar recognition of the need to develop
the law in this area.
Generally speaking, the Irish judiciary has taken a more rational
approach to the aftermath principle than
England’s.[160] They have
granted recovery to a “hearsay”
victim,[161] and recognised that
employers owe their employees a duty to protect them from psychiatric
injury.[162]
e. New Zealand
Also pertinent to the subject matter of this paper is the dissenting
judgement of Thomas J in the recent New Zealand Court of Appeal
case of Van
Soest v Residual Health Management
Unit.[163] While the majority
held that reasonable foreseeability was insufficient to establish liability
where other proximity requirements
were absent, Thomas J was in favour of
adopting reasonable foreseeability as the sole test of liability for psychiatric
injury and
abandoning the rules involving geographical, temporal and relational
proximity.
5. Public Policy Considerations
In his decision in Chester v Waverley Municipal
Council,[164] Rich J noted
that “The law must fix a point where its remedies stop short of complete
reparation for the world at large, which
might appear just to a logician who
neglected all social consequences which ought to be weighed on the other
side.”[165]
This
“point” is the great bone of contention for judges in nervous shock
cases, who are torn between the utopian ideal
of fully compensating plaintiffs
for their injuries and the reality of a world in which the “consequences
of such lack of restraint
for the rest of the community” would be
dire.[166] The tension these
conflicting pressures create is borne out by the numerous ideas which have come
into and gone out of fashion with
judges in an attempt to resolve the dilemma
that they have created.
Past policy considerations which were employed
to limit liability in nervous shock cases have been, and continue to be,
debunked.
Notions such as the lesser severity of psychiatric injury by
comparison with physical injury, the fear of fraudulent claims, concern
about
compensationitis, a wider class of people as potential claimants, and concerns
about placing disproportionate burdens on defendants
have all been cited in the
past in attempts to hold the line against a rising tide of nervous shock
claims.[167] Increasingly, these
and similar notions are refuted or recognised as being without foundation, and
so are being left to the past.
Justice Kirby has sought on many
occasions to elevate the approach in Caparo which allows for policy
articulations to come to the forefront of negligence reasoning in the High
Court, but recently accepted that
his view had not gained currency. Nor has the
High Court been “plaintiff friendly” during the extensive statutory
reform
period that has followed the Ipp Report in 2002. In fact, just as some
argued that the pendulum of judicial opinion had swung far
too strongly in
favour of the plaintiff,[168] so
others argued that recent cases have simply been “continuing a trend that
has been apparent since the end of 1999 [and]
. . . distinctly favoured
defendants.”[169] Indeed,
Professor Luntz wrote of this trend in both
2001[170] and 2003,
[171]and then again in
2004.[172]
The Civil
Liability Act 2002 (discussed earlier in this piece, and accompanying
concerns about a “compensation crisis” and increasing litigation
within
Australia), while not dealing specifically with nervous shock law, will
presumably have an effect on the mentality of the judiciary
in nervous shock
cases. It has only limped from its narrow boundaries since the 1939 decision in
Chester v Waverley Council where only Justice Evatt was capable of
understanding that a reasonable mother in the shoes of that grieving mother
would suffer
shock. For those states where the Ipp recommendations have been
adopted or considered, it is worth noting this observation by Boyd:
“It is
arguable that s75AE of the TPA is wider in scope than the Ipp Report’s
proposed doctrine of mental harm as contained
in Recommendations 33, 34 and 35 .
. . However, it may be a reason for a plaintiff suffering from mental harm to
commence proceedings
under the TPA as opposed to
negligence.”[173]
6. CONCLUSION
A range of events are said to have prompted recent statutory attempts to
roll back the “juggernaut” of negligence in Australia,
including the
decision of the High Court of Australia in Annetts. A more widely
recognised cause is the world-wide collapse in the insurance industry. Whatever
the cause, the result was a New South
Wales Parliamentary review of the law
pertaining to compensation and the introduction of changes to physical and
psychological injury
law in the shape of the Civil Liability Act (NSW) 2002
and the Civil Liability Amendment (Personal Responsibility) Act
2002.
The consequences of the Civil Liability Act and the
Civil Liability Amendment (Personal Responsibility) Act and
Annetts on the law of nervous shock in Australia are likely to be
far-reaching, but whether in practice they result in an expansion of liability
for nervous shock remains to be seen.
An examination of other common law
jurisdictions around the world indicates that Australia is at the vanguard of
the incremental expansion
of liability for nervous shock. First instance and
supreme court appeal decisions in Annetts were more in keeping with
restrictive English nervous shock law than the recent radical legislative
changes in New South Wales and
other states in Australia. However, increasing
refutation of many of the traditional policy reasons for limiting recovery bodes
well
for the Annetts” last chance to recover in the High Court of
Australia, as does that Court’s decision in granting the
Annetts leave to
appeal, and the subsequent codification of the rules laid out in that case in
the Civil Liability and Civil Liability Amendment (Personal
Responsibility) Acts of 2002. It is only to be hoped that the recent
concerns about compensation and insurance crises and increasing litigation will
not
act as a brake on the necessary continued expansion of liability in this
area of the law.
[+] LLB(Hons), LLM (Staffordshire),
PhD (Macquarie), Lecturer, Faculty of Law,
UTS.
[#] BSc, currently completing
LLB (Macquarie).
[∗] BA, LLB (Monash), DipGrad
LegStuds (Sthlm), LLM (Lond), PhD (QLD), Senior Lecturer, Faculty of Law, QUT,
[1] [2002] HCA 35; (2002) 211 CLR
317.
[2] [2002] HCA 35; (2002) 211 CLR
317.
[3] P Hunt, “Liability
for Psychiatric Injury Extended” (2002) 40 (November) Law Society
Journal 62.
[4] (2003) 214 CLR
269.
[5] D Butler, “Gifford v
Strang and the New Landscape for Recovery for Psychiatric Injury in
Australia” (2004) 12 Torts Law Journal
108–127
[6] I Freckelton,
“New Directions in Compensability for Psychiatric Injuries” (2002)
9(2) Psychiatry, Psychology and Law 271–283, at
271.
[7] Ibid
272.
[8] Ibid
273.
[9] David Davies,
“Pure Psychiatric Injury—Recovery for Compensation” (2003)
Proctor 24.
[10] Ibid
23.
[11]
Ibid.
[12] Peter Semmler QC,
“Testing the Limits of Liability for Psychiatric Injury” (2002) 51
Plaintiff 37.
[13] L
Dunford and V Pickford, “Is There a Qualitative Difference Between
Physical and Psychiatric Harm in English Law?”
(1999) 7 Journal of Law
and Medicine
39–40.
[14] As Seeto notes,
“[t]o move away from the flexibility of the common law position and
categorically define who may claim, as
the legislation does, is
regrettable.” Nicole Seeto, “Shock Rebounds: Tort Reform and
Negligently Inflicted Psychiatric
Injury” [2004] SydLawRw 14; (2004) 26 Sydney Law
Review 293, 300.
[15] L
Dombek and A Fisher, above n 9,
6.
[16] According to the revised
fourth edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV-TR), there are five major identifiers of post-traumatic stress
disorder: a stressor event, re-experiencing symptoms, avoidance
behaviour, a
numbing of general responsiveness and arousal. The individual must experience a
disturbance and impairment of their
life as a result of exposure to the stressor
event. American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders (Text Revision) (4th ed, 2000)
463.
[17] An example of such a
primary victim is where an individual is run down by a car and suffers
post-traumatic stress disorder as a result.
See also B A Hocking and A Smith,
“From Coultas to Alcock and beyond. Will Tort Law Fail Women?”
[1995] QUTLawJl 8; (1995) 11 Queensland University of Technology Law Journal
120.
[18] L Dombek and A
Fisher, “Post Disaster Management” (Paper presented at Exeter
College, Oxford, 10 September 1997) 6. (Copy
on file with
authors)
[19] Previously as
demonstrated in McLoughlin v O’Brien [1982] UKHL 3; (1983) 1 AC 410, once
relational proximity has been established, plaintiffs must face the often
greater hurdle of proving physical proximity to the
accident in time and space.
In a legal sense this has meant that the plaintiff must either have experienced
the accident or witnessed
its immediate aftermath. This requirement of physical,
temporal and relational proximity to a traumatic event has strictly limited
the
success of numerous nervous shock cases in the past and continues to do
so.
[20] Jaensch v Coffey
[1984] HCA 52; (1984) 155 CLR 549 (hereinafter
Jaensch).
[21] Alcock v Chief
Constable of South Yorkshire Police [1991] UKHL 5; (1992) 1 AC
310.
[22] Annetts v Australian
Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR
317.
[23] Paris v Stepney
Borough Council [1950] UKHL 3; (1951) AC
367.
[24] J Dietrich,
“Nervous Shock: Tame v New South Wales and Annetts v Australian Stations
Pty Ltd” (2003) 11 Torts Law Journal 11.
[25] See S Muirhead and B
Hocking, “A Uniquely Australian Tragedy? (The Law of Nervous Shock Limps
On)” (2001) 6 Tolley’s Communications Law 111.
[26] Ibid
112–113.
[27] Ibid
113.
[28] White v Chief
Constable of South Yorkshire (1999) 1 AII ER
1.
[29] Devji v District of
Burnaby (1999) BCCA 599.
[30]
Barnard v Satnam Bank Bpk [1998] ZASCA 84; (1999) SA
202.
[31] Bell v Great
Northern Railway Co of Ireland (1890) 26 LR Ir
428.
[32] Van Soest v Residual
Health Management Unit [1999] NZCA 206; (2000) 1 NZLR
179.
[33] P Handford, “When
the Telephone Rings: Restating Negligent Liability for Psychiatric Illness:
Tame v Morgan and Annetts v Australian Stations Pty Ltd”
(2001) 23 Sydney Law Review
598.
[34] American
Psychiatric Association, above n 17,
463.
[35] D Butler, “Media
Negligence in the Information Age: A New Frontier for a New Century”
(2000) 8 Torts Law Journal 159, 162.
[36] For example, in Bunyan v
Jordan [1937] HCA 5; (1937) 57 CLR 1, the defendant’s threats threw the plaintiff
into an emotional state which caused a neurasthenic breakdown. It was said that
the defendant, “in the course of socially worthless conduct, failed to
exercise care to avoid causing nervous shock to the
plaintiff” (16). It
was recognised that damages may be recovered for the intentional infliction of
psychiatric illness. See
also H Luntz and D Hambly, Torts: Cases and
Commentary (2002) 497. Further, in Levi v Colgate [1941] NSWStRp 6; (1941) 41 SR (NSW)
48, the defendant, the manufacturer of a washing product, owed no duty to take
precautions to a consumer sensitive to dermatitis, but
only the same duty owed
to a normal consumer. According to Luntz and Hambly, again at 360,
“although the defendant was under
no duty to take special precautions to
protect the abnormal, if an abnormal plaintiff suffered loss in circumstances in
which a normal
plaintiff would also have suffered loss, the fact that the
abnormal plaintiff suffered more loss than the normal plaintiff would
not
prevent the plaintiff recovering for all the losses. This argument has been
applied to nervous shock as well as to physical damage”.
[37][1939] HCA 25; (1939) 62 CLR 1; C J Miller,
“Mental Shock and the Aftermath of a Train Disaster” (1968) 31
Modern Law Review 92, 94; A L G, “Case Note: An Australian Shock
Case” (1939) CCXX Law Quarterly Review
495.
[38]G L Fricke,
“Nervous Shock—the Opening of the Floodgates” [1981] UTasLawRw 7; (1981) 7
University of Tasmania Law Review 113, 115. See Abramzik v Brenner
(1967) 65 DLR (2nd) 651 (Abramzik). The Court of Appeal denied recovery
to a mother who suffered “nervous shock” on being informed by her
husband that two
of her children had been killed in a road accident.
Abramzik may have been decided differently today: current legal
developments would be taken into account, in particular the notion that for
a
mother to witnesses the immediate aftermath of an accident and suffer shock as a
result would be a common experience of mankind
which would therefore be
compensable.
[39] Similar
legislation is in force in the Australian Capital Territory (Law Reform
(Miscellaneous Provisions) Act 1955, ss 17, 22, 23, 24(1)(5), 32 clarifies
the requirements for post-traumatic stress disorder and categories of claimants;
D Butler,
“Nervous Shock at common law and third party communications: are
Australian nervous shock statutes at risk of being outflanked?”
(1996) 4
Torts Law Journal 120 and the Northern Territory (Law Reform
(Miscellaneous Provisions) Act 1956, s 23, 24, 25(5) clarify the
requirements for post-traumatic stress disorder and categories of
claimants).
[40]For example, both a brother
who watched his infant sibling involved in a terrible accident and their mother,
who was summoned to the
aftermath, recovered damages in Storm v Geeves
[1965] TASStRp 22; (1965) Tas SR 252.
[41] (1972) VR
789.
[42] Ibid.
[43] Mount Isa Mines Ltd v
Pusey (1970) 12 CLR 383. In this case, the plaintiff attempted to rescue
workmates who had been badly burnt by an electric arc while working on a
switchboard.
As a result of this incident, the plaintiff suffered schizophrenia.
The plaintiff was awarded damages on the basis that, “what
the defendant
had to foresee was the occurrence of the class of injury, mental disorder,
rather than the particular illness.”
N J Mullany and P R Handford,
“Moving the Boundary Stone by Statute: the Law Commission on Psychiatric
Illness” [1999] UNSWLawJl 2; (1999) 22 University of New South Wales Law Journal
350.
[44] [1984] HCA 52; (1984) 155 CLR
549.
[45] Ibid; Y Muthu,
“Negligent Infliction of Psychiatric Illness: An Area which Remains to be
Clarified?” (1999) 4 Malayan Law Journal
clxxvii.
[46] D Mendelson,
“The Defendant’s Liability for Negligently Caused Nervous Shock in
Australia—Quo Vadis?” (1992) 18 Melbourne University Law
Review 16, 37; R Atkinson, “. . . of the Tort of Negligence”
(1987) Queensland Law Society Journal
237.
[47] D Mendelson, above
n46. The High Court noted that, in view of today’s fast and efficient
ambulance services, it would be anomalous
to allow recovery only to those
plaintiffs who could “beat the ambulance to the scene of the
accident,” per Deane J [1984] HCA 52; (1984) 58 ALJR 426, 462; F A Trindade, “The
Principles Governing the Recovery of Damages for Negligently Caused Nervous
Shock” (1986) 45 Cambridge Law Journal 476,
498–499.
[48] [1982] UKHL 3; (1983) 1 AC
410 (McLoughlin).
[49]C Witting, “A Primer on
the Modern Law of “‘Nervous Shock’” [1998] MelbULawRw 4; (1998) 22
Melbourne University Law Review 62, 72.
[50][1984] HCA 52; (1984) 155 CLR 549,
584–585; D Butler, “Proximity as a Determinant of Duty: the Nervous
Shock Litmus Test” [1995] MonashULawRw 8; (1995) 21 Monash University Law Review 159,
161.
[51] In other words, was it the
predominant causal factor that led to the illness?
[52] Deane J acknowledged that
arbitrary lines of demarcation often need to be drawn with respect to time and
space which are otherwise
infinite.
[53] J Keeler,
“The Proximity of Past and Future: Australian and British Approaches to
Analysing the Duty of Care” [1989] AdelLawRw 8; (1989) 12 Adelaide Law Review 93,
97.
[54] [1977] UKHL 4; (1978) AC 728
(Anns).
[55] [1977] UKHL 4; (1978) AC
728. 751–52, per Lord
Wilberforce.
[56] D Gardiner,
“Jaensch v Coffey, Foresight, Proximity and Policy in the Duty of
Care for Nervous Shock” (1985) 1 Queensland University of Technology
Law Journal 69, 75.
[57] Ibid
75. This approach was also taken in Brice v Brown (1984) 1 AII ER 997,
per J Stuart-Smith, 1007.
[58] C
Witting, “A Primer on the Modern Law of ‘Nervous Shock’”
[1998] MelbULawRw 4; (1998) 22 Melbourne University Law Review 62,
72.
[59] Similarly in Nader v
Urban Transit Authority (1985) 2 NSWLR 501, the defendant was held liable
for the psychiatric injury suffered because it was of a kind that was
foreseeable, though foresight
of the extent of the injury was not
required.
[60] D Butler,
“Mass Media Liability for Nervous Shock: a Novel Test for Proximity”
(1995) 3 Torts Law Journal 75, 76. In Sutherland SC v Heyman
(1985) 157 CLR 1124, Deane J restated the approach he had first formulated
in Jaensch v Coffey. It is really a three stage approach, namely,
reasonable foreseeability, proximity and policy. Emphasis typically falls on the
second
stage,
“proximity”.
[61]
(1985) 157 CLR 1124; J Allen and M Dixon, “Notes: Foreseeability Sinks and
Duty of Care Drifts: the High Court visits Rottnest”
(1993) 23 Western
Australian Law Review 320,
324.
[62] The categorical
approach allows modest extensions to the law by analogy with established
categories.
[63] (1997) 188 CLR
159; B Feldthusen, “Liability for Pure Economic Loss: Yes, but Why?”
[1999] UWALawRw 4; (1999) 28 University of Western Australia Law Review 84,
118.
[64] See also San
Sebastian Pty Ltd v The Minister [1986] HCA 68; (1986) 162 CLR 340, Burnie Port
Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 and Bryan v
Maloney (1994) BCL 279, in which further erosion of the proximity criterion
took place.
[65] Hill v Van
Erp (1997) 188 CLR 159,
160.
[66] (1997) 188 CLR 159. See
also D G Gardiner, above n 63, 69; D Ipp, “Negligence—Where Lies the
Future?” (2003) 23 Australian Bar Review
5.
[67] (1997) 188 CLR 159, 206,
220. In Gala v Preston [1991] HCA 18; (1991) 172 CLR 243, Brennan, Dawson and Toohey JJ
concentrated specifically on policy considerations instead of principle to deny
relief to a drunken
teenager who was injured when the driver of a car in which
the teenager was joyriding lost control of the car which then collided
with a
tree.
[68] [1990] UKHL 2; (1990) 2 AC
605.
[69] (1990)2 AC 605,
617–618 per Lord
Bridge.
[70] [1990] UKHL 2; (1990) 2 AC 605,
618.
[71] [1998] HCA 3; (1998) 192 CLR 330.
Kirby J considered competing approaches and argued that the three stage approach
in Caparo, while not perfect, was better than any of the others. This
preference was reiterated in Perre v Apand [1999] HCA 36; (1999) 73 ALJR 1190 and was
applied again in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999)
167 ALR 1.
[72] C Phegan,
“The Tort of Negligence into the New Millennium” (1999) 73
Australian Law Journal 885, 886,
891.
[73] [1999] HCA 36; (1999) 73 ALJR 1190; B
McDonald and J Swanton, “Foreseeability in Relation to Negligent
Infliction of Nervous Shock” (1995) 69 Australian Law Journal
945.
[74] [1999] HCA 36; (1999) 73 ALJR 1190,
1202. Similarly, in Spence v Perry (1990) ATR 81, J Derrington attempted
to apply the test of causal proximity but the Full Court rejected the proximity
criterion. The judge in question
tried to hold the defendant liable for
psychiatric illness suffered by a mother three years after the relevant
accident.
[75] [1999] HCA 36; (1999) 73 ALJR
1190, 1202–1203.
[76]
(2000) 205 CLR 254.
[77] [2001] HCA 59; (2001)
75 ALJR 1570.
[78] [1990] UKHL 2; (1990) 2 AC
605.
[79] (2002) HCA
35.
[80] (2002) HCA 35.
[81] (2000) NSWCA 121 <http://www.lawlink.nsw.gov.au>
at 25 August 2000 (Copy on file with author). In another case, AMP v RTA and
Anor (2001) NSWCA 186 (2 August 2001), the issue was whether an employer was
liable to a deceased employee’s widow for psychiatric
illness suffered by
her as a result of the employee’s depression and suicide. The plaintiff
was awarded $101,895 in damages
for nervous shock. The defendant and insurer
appealed. The appeal was allowed. On appeal, it was held that considerations of
policy
and value judgements indicated that deliberate self infliction of harm
should generally be seen to break the causal link. Thus no
duty was owed to the
plaintiff to prevent her from suffering mental trauma. It was held that there
was no causation as the injury
was too remote in law.
[82] [2000] WASCA 357; (2000) 23 WAR
35
[83] (2000) NSWCA 121
<http://www.lawlink.nsw.gov.au>
at 25 August 2000 (Copy on file with
author). See also Dandashli v Dandashli (2000) NSWCA
273.
[84] (2000) NSWCA 121
<http://www.lawlink.nsw.gov.au>
at 25 August 2000 (Copy on file with
author).
[85] Jaensch v
Coffey [1984] HCA 52; (1984) 155 CLR 549,
607.
[86] P Handford, “When
the Telephone Rings: Restating Negligent Liability for Psychiatric Illness: Tame
v Morgan and Annetts v Australian
Stations Pty Ltd” (2001) 23
Sydney Law Review 600.
[87] (2000) WASC 104
<http://www.asutlii.edu.au/cgi-bin/disp.pl/cases/wa/WASC>
at 17 July 2001 (Copy on file with author)
13.
[88] (1989) 15 NSWLR
501.
[89] (2000) WASC 104
<http://www.asutlii.edu.au/cgi-bin/disp.pl/cases/wa/WASC>
at 17 July 2001 (Copy on file with author)
13.
[90] [1997] SASC 6086; (1997) 68 SASR
124.
[91] (1999) NSWCA
3333.
[92] (1995) 36 NSWLR 1
(Coates).
[93] D Partlett,
“Negligence—Limits of Liability for Nervous Shock Negligently
Caused—Reasonable Foreseeability and
Proximity as Criteria for Duty of
Care” (1985) 59 Australian Law Journal
44.
[94] (1989) Aust Torts Rep
80–263. See also D Butler, “Identifying the compensable damage in
‘Nervous Shock’ Cases”
(1997) 5 Torts Law Journal 67,
where the author cites Coates v Government Insurance Office of New South
Wales (1995) 36 NSWLR 1. In this case, Kirby P rejected the submission of
the defendant that an individual who was not present at the scene or aftermath
of
an accident and was informed about the accident by telephone or a later
message should not be entitled to recover. Kirby P opined
that the relevant rule
was in part a product of 19th century notions of psychology and psychiatry.
“The suggested rule is hopelessly
out of contact with the modern world of
telecommunication. If any judge has doubts about this, he or she should wander
around the
city streets and see the large number of persons linked by mobile
telephones to the world about them. Inevitably such telephones
may bring, on
occasion, shocking news, as immediate to the senses of the recipient as actual
sight and sound of a catastrophe would
be. This is the reality of the world in
which the law of nervous shock must operate.” Similar to this case is
Reeve v Brisbane City Council (1995) 2 Qd R 661. Although it is
acknowledged that not every novel claim succeeds, the law with regards to
psychiatric illness is cautiously being
assimilated into the law on injury
generally, as stated in Pham v Lawson [1997] SASC 6086; (1997) 68 SASR 124. D Butler,
“Case Notes: Pham v Lawson: Widening the Sphere for Bystander
Recovery for Nervous Shock” (1998) 6 Torts Law Journal
195.
[95](1989) Australian Torts
Reports 80–263. The Supreme Court of Queensland applied the obiter
comments of Deane J in Jaensch v Coffey (1984) Aust Torts Rep
80–300. In Quayle v State of New South Wales (1995) Aust Torts Rep
81-367, the plaintiff suffered psychiatric trauma on receipt of the news that
his wife had suffered irreversible brain damage whilst in
an abortion operation.
The plaintiff succeeded on the grounds of suffering shock and providing care for
his wife thereafter. N J
Mullany, “Recovery for Psychiatric Injury by
Report: Another Small Step Forward” (1996) 4 Tort Law Review 96. In
Gifford v Strang Patrick Stevedoring Pty. Ltd. (2001) NSWCA 175 (14 June
2001), a widow and her children failed in their claim for nervous shock pursuant
to Workers Compensation Act 1987 s151and Law Reform (Miscellaneous
Provisions) Act 1944 s4 because they could not sustain evidence of a
demonstrable psychological condition resulting from learning about the
father’s
death. Also see Stergiou v Citibank (1999) FCA 1321 (24
September 1999) and Kavanagh v Akhtar
(1998).
[96] (1999) NSWSC 995,
<http://www.lawlink.nsw.gov.au>
at 6 October 1999 (Copy on file with
author).
[97] Y Muthu,
“Sloss v State of New South Wales: Pathological Grief Disorder”
(2000) 4 Malaysian Journal of Law and Society 169,
172.
[98] (2000) NSWCA
119,
<http://www.lawlink.nsw.gov.au>
at 25
August 2000 (Copy on file with author). Previously in Gillespie v
Commonwealth (1991) 104 ACTR 1, an employer was required to prepare an
employee who was transferred from one embassy to another embassy in a foreign
country to a less stressful post. In this case, the plaintiff suffered from
post-traumatic stress disorder as result of being transferred
to a foreign
embassy, however, the employer had complied with the required
formalities.
[99] D Butler,
“Voyages in Uncertain Seas with Dated Maps: Recent Developments in
Liability for Psychiatric Injury in Australia”
(2000) 9 Torts Law
Journal 4.
[100] [2000] WASCA 357; (2000) 23
WAR 35.
[101] The illness
suffered by the plaintiff, designated psychotic depression, included paranoia
and anxiety.
[102] (2000) WASCA
357
<http://www.austlii.edu.au>
at
22 August 2001; I Freckelton, “Compensability for Psychiatric Injury: An
Opportunity for Modernisation and Reconceptualisation”
(2001) 9 Journal
of Law and Medicine
137.
[103] (2000) WASCA 357,
(21 November 2000)
<http://www.austlii.edu.au>
at 22 August
2001 (Copy on file with
author).
[104] at para [23] Ipp
J stated, “On the basis of the direct perception requirement, the
appellants have not established the requisite
degree of proximity under either
of the scenarios I have postulated. Apart from the occasion (in January 1987)
when Mr Annetts saw
a blood covered hat belonging to James, and when he
identified James’ remains (from a photograph seen some five months after
his death), they did not directly perceive the consequences of the
respondent’s breach of duty. I do not consider the two instances
I have
mentioned as satisfying the
requirement.”
[105] M
Stauch M, “Risk and Remoteness of Damage in Negligence” (2001) 64
Modern Law Review 191, 192. The court considered proximity in terms of
time and space and concluded that learning about the death, which led to the
shock
sustained, was outside the temporal and geographical aftermath of the
accident.
[106] [2000] WASCA 357; (2000) 23 WAR
35, 61.
[107] [1991] UKHL 5; (1992) 1 AC
310.
[108] (2000) WASC 104
<http://www.asutlii.edu.au/cgi-bin/disp.pl/cases/wa/WASC>
at 17 July 2001
(Copy on file with author) 13.
[109] (2000) WASC 104
<http://www.asutlii.edu.au/cgi-bin/disp.pl/cases/wa/WASC>
at 17 July 2001
(Copy on file with author) 13 6,
7.
[110] (2000) WASCA 357 (21
November 2000)
<http://www.austlii.edu.au>
at 22 August
2001 (Copy on file with author).
[111] Butler, above n.5
(2004), p. 108, citing Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 and Mount
Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383.
[112] Ibid s
1.
[113] Ibid s
1.
[114] Both cases were heard
on 4 and 5 December 2001 and judgement was handed down on 5 September
2002.
[115] P Handford, above n
33, 610.
[116] per J Brennan in
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549,
567.
[117] (2002) HCA 35, para
211.
[118] (2002) HCA 35, para
335.
[119] (2002) HCA 35, para
208.
[120] P Hunt,
“Liability for Psychiatric Injury Extended” (2002) 40 Law Society
Journal 62, 65.
[121]
Butler, above n 5, 110.
[122]
Butler, above n 5.
[123] (2003)
HCA 33.
[124] Butler, op. cit.
(2004) 113.
[125] Ibid, citing
Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1 and Bourhill v Young
[1942] UKHL 5; (1943) AC 92.
[126] (2003)
198 ALR 100, 104.
[127] On 2 October 2002, the
Federal Assistant Treasurer Senator Helen Coonan released the final report of
the Review of the Law of Negligence
(the Review). The report was authored
by a panel chaired by the Honourable Justice David Ipp of the New South Wales
Supreme Court and also comprising
Professor Peter Cane, Associate Professor
Donald Sheldon and Mr Ian Macintosh. The panel was asked to inquire into the law
of negligence
and to develop a series of proposals to provide a principled
approach to reforming the law of negligence. The basis for these far-sighted
reforms was recommendations contained in the Review of the Law of Negligence
authored by another panel, similarly chaired by Justice
Ipp. The Review was
commissioned to provide a principled evaluation of the existing law as a
blueprint to assist governments to achieve
comprehensive reforms. The panel
appointed to undertake the Review sought to strike a balance between the
interests of injured people
and those of the community at large and to impose a
reasonable burden of responsibility on individuals to take care of others and
to
take care of themselves. The panel made 61 recommendations on specific changes
that could be made to the law of negligence.
[128] Spigelman C J,
“Negligence: The Last Outpost of the Welfare State” (paper presented
at the Judicial Conference of Australia
Colloquium, Launceston, 27 April 2002)
http://www.agd.nsw.gov.au at 10 Sep 2002
(copy on file with
author).
[129] E.g. no order
for legal costs should be made where the award of damages is less than $30,000.
Where the award is between $30,000
and $50,000, the plaintiff may recover no
more than $2,500 in legal costs.
[130] Civil Liability Act
2002, s16(1).
[131]
Civil Liability Act 2002,
s16(2).
[132]
<http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/civil_bill_2002>
at 20 November 2002 (copy on file with author). The limitation is listed on page
22 of the Report: the victim, a bystander or
a close relative may
recover.
[133] Civil
Liability (Personal Responsibility) Act 2002,
s30.
[134] Civil Liability
(Personal Responsibility) Act 2002,
s30(2)(a).
[135] Civil
Liability (Personal Responsibility) Act 2002,
s30(4).
[136] Civil
Liability (Personal Responsibility) Act 2002,
s32(1).
[137] Civil
Liability (Personal Responsibility) Act 2002,
s31.
[138] (Dyanah) Nicole
Seeto, “Shock Rebounds: Tort Reform and Negligently Inflicted Psychiatric
Injury” [2004] SydLawRw 14; (2004) 26 Sydney Law Review 293,
300.
[139] [1982] UKHL 3; (1983) 1 AC
410.
[140] The
“Hillsborough tragedy” was the death by crushing of 95 people in
1989 and the injury of several hundred at the FA
Cup semi-final held in
Hillsborough. The tragedy resulted from a decision by the police to open up a
barrier to speed admission to
the
semi-final.
[141] [1991] UKHL 5; (1992) 1 AC
310.
[142] [1991] UKHL 5; (1992) 1 AC
310.
[143] [1998] UKHL 45; (1999) 2 AC 455,
472, discussed in [2000] WASCA 357; (2000) 23 WAR 35,
56.
[144] [2000] WASCA 357; (2000) 23 WAR 35,
36.
[145] (1999) 1 AII ER
1.
[146] English Law Commission,
London, Consultation Paper No 137 (1995) on Liability for Psychiatric Illness
No 137, 1995.
[147] [1991] UKHL 9; (1992) 2 All ER 65. This
case involved a claim for damages which arose from the Hillsborough
disaster.
[148] Unreported, 27
May 1994.
[149] L Dombek and A
Fisher, above n 11,
6–7.
[150] (1991) 3 All
ER 65.
[151] (1991) 3 All ER
73.
[152] Butler, above n 5,
111
[153] L Dombek and A
Fisher, above n 11,
6–7.
[154] [1998] ZASCA 84; (1999) 1 SA
202.
[155] Graeme Orr,
“Book Review of Barbara Hocking, Liability for Negligent
Words” 16 Professional Negligence 1,
60.
[156] [2000] WASCA 357; (2000) 23 WAR 35,
60.
[157] (1999) BCCA
599.
[158] (1999) BCCA 599,
(2003) 23 WAR 60, para 67.
[159] Bell v Great Northern
Railway Co of Ireland (1890) 26 LR Ir
428.
[160] Mullally v Bus
Eireann (1992) ILRM
722.
[161] Kelly v
Hennessy [1995] IESC 8; (1995) 3 IR 253. In this case recovery was permitted to a mother
who was informed by telephone of an accident involving her children. The mother
had
later attended the
hospital.
[162] Curran v
Cadbury (Ireland) Ltd (2000) 2 ILRM 343. The duty of employers to avoid
psychiatric harm to their employees had previously been denied by the House of
Lords in White.
[163]
[1999] NZCA 206; (2000) 1 NZLR 179.
[164] [1939] HCA 25; (1939)
62 CLR 1, 11.
[165] [1939] HCA 25; (1939) 62
CLR 1,11. Cited in D Ipp, “Negligence—Where Does the Future
Lie?” a paper given in January 2003 at the Supreme Court
and Federal Court
Judges” Conference. (Copy on file with author).
[166] Ibid. In Chester
Rich J commented: “The attempt on the part of the appellant to extend
the law of tort to cover this hitherto unknown cause of
action has, perhaps,
been encouraged by the tendencies plainly discernible in the development which
the law of tort has undergone
in its process towards its present amorphous
condition. For the so-called development seems to consist in a departure from
the settled
standards for the purpose of giving to plaintiffs causes of action
unbelievable to a previous generation of lawyers. Defendants appear
to have
fallen completely out of favour.” Chester v Waverley Corporation
[1939] HCA 25; (1939) 62 CLR 1, 11.
[167]
These policy considerations have been refuted (respectively) as follows: as
mental attitude becomes more important, the seriousness
of psychiatric injury
similarly gains in importance (per Harvey Teff). See
H Teff,
“Psychiatric Injury in the Course of Policing: a Special Case?”
(1997) 5 Tort Law Review 184; H Teff, “The Hillsborough Football
Disaster and Claims for “Nervous Shock’” (1992) 32
Medicine, Science and Law 251; H Teff, “The Requirement of
“Sudden Shock” in Liability for Negligently Inflicted Psychiatric
Damage”
(1996) 4 Tort Law Review 44; H Teff, “Tort Liability
for Psychiatric Damage: The Law of ‘Nervous Shock’” (1994) 10
Professional Negligence 108. While concerns about fraudulent claims for
psychiatric illness are difficult for the layman (including the judiciary) to
debunk,
it has been argued that a psychiatrist will be just as likely to pick up
a fraudulent psychiatric illness claim as a physician would
be to pick up a
claim for damages for a fraudulent back injury (English Law Commission, above n
150). Concerns about compensation
have been the main concern (Lord Steyn).
However, the Law Commission points out that claims for damages for physical
injury are just
as likely to produce compensationitis, if not more likely, as
sufferers of psychiatric conditions are more likely to be dissuaded
from
bringing actions because of the stigma associated with their conditions, the
prospect of psychological assessment and the condition
itself (Teff). Teff also
dismisses concerns about the “wider class of claimants”, arguing
that psychiatric illness from
accidents to other people is not that common, and
less so where involvement is only with the aftermath or through the
communication
of a third party. In addition, the “wider class of
claimants” concern suggests that those suffering psychiatric illness
are
not as worthy of protection as those suffering physical injury. It has been
noted that “we would not refuse compensation
for physical injuries just
because the train was full.” See H Teff, “Involuntary Participation
and Survivor’s Guilt”
(1998) Tort Law Review 190; H Teff,
“Liability for Negligently Inflicted Nervous Shock” (1983) 99 Law
Quarterly Review 100; H Teff, “Liability For Negligently Inflicted
Psychiatric Harm: Justifications And Boundaries” (1998) 57 Cambridge
Law Journal 91.
[168] Ipp’s opinion is
unsurprisingly in line with the report of the panel which undertook the Review
of the Law of Negligence—which
he chaired—and which lead to the
introduction of the Civil Liability Act (NSW)
2002.
[169] Harold
Luntz, “Editorial Comment: Round-up of Cases in the High Court of
Australia in 2003” (2004) 12 Torts Law Journal 1,
1.
[170] Harold Luntz,
“Torts Turnaround Downunder” (2001) 1 OUCLJ
95
[171] Harold Luntz,
“Turning Points in the Law of Torts in the Last 30 Years” (2003) 15
ILJ 1, 22
[172] Luntz, above n
169.
[173] Guy Boyd,
“Personal Injuries Law Reform: An Unintended Effect on Product Liability
Claims?” (2003) II TLJ 262, 277.
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