Tort Liability for Mental Harm. [3 ed.] 9780455238364, 0455238367

Citation preview

Tort Liability for Mental Harm

Thomson Reuters (Professional) Australia Limited 100 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

INTERNATIONAL AGENTS & DISTRIBUTORS

NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

Tort Liability for Mental Harm

PETER HANDFORD LLB (Birm), LLM PhD (Cantab)

Emeritus Professor, Law School, University of Western Australia

Material on Psychiatric Injury and Medical Research revised by

PHILIP MITCHELL AM FASSA, MB BS (Syd), MD (NSW), FRANZCP, FRCPsych

Scientia Professor and Head of School of Psychiatry, University of New South Wales

THIRD EDITION

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 100 Harris Street, Pyrmont, NSW

First edition — 1993 Second edition — 2006

National Library of Australia Cataloguing-in-Publication entry Creator: Handford, Peter R, author. Title: Tort liability for mental harm / by Peter Handford ; material on psychiatric injury and medical research revised by Philip Mitchell. Edition: Third edition. ISBN: 9780455238364 (paperback) Notes: Includes index. Subjects: Torts—Australia. Liability for emotional distress—Australia. Liability (Law)—Australia. Stress (Psychology)—Australia. Other Creators/Contributors: Mitchell, Philip B, author. © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Editor: Corina Brooks Product Developer: Paul Gye Publisher: Anne Murphy Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

For Pauline

Foreword by

The Hon Robert French AC Chief Justice of Australia

Tort Liability for Mental Harm is the third edition of an important Australian textbook on a difficult and still evolving area of the law. The first edition was published in 1993 under the title Tort Liability for Psychiatric Damage and included a Foreword by Sir Thomas Bingham, then Master of the Rolls. The second edition published in 2006, included a Foreword by the same great English jurist, who had become Senior Law Lord in the House of Lords. Had Lord Bingham lived to see the publication of this third edition, it would have been utterly appropriate for him to have written this Foreword. His vision was large and embraced an understanding of the value of comparative law materials in the development of the common law. That large vision is matched in this edition of the book, which places the development of Australian law on tort liability for mental harm in a comprehensively examined historical and comparative law setting. It also places that development in the context of advances in psychiatric medicine. As Professor Handford observes in the Preface, the independent development of the Australian common law relating to liability for psychiatric injury had not really begun at the time of the first edition. When the second edition was published in 2006, the High Court had started to map out an approach for Australian law which necessarily had to encompass the Civil Liability Acts enacted some five years earlier and which provide an important statutory framework for the common law in most Australian jurisdictions. Development has continued apace since the second edition and divergences have emerged in approaches taken in England, Canada, New Zealand and Australia. Those divergences may be lamented by some. Nevertheless, they provide a rich source of comparative material between those jurisdictions in addition to material from Singapore and Hong Kong. For its comparative law scholarship alone, the book is a valuable resource in this area of tort law. An important feature of the book is its consideration of the relevant psychiatric science and contemporary understanding of mental harm. The term “nervous shock” persisted as a description of compensable mental harm for a time long past its use by date. Even to a layman’s ear it has a rather out-dated ring to it now. More seriously, as Professor Handford observes, out-dated terminology can only serve to confuse and may hinder the development of desirable doctrine by,

viii Foreword

for example, requiring that compensable mental harm arise by way of a sudden shock. That requirement, rejected in Australia, is retained in England and elsewhere. Chapter 5 examines relevant medical and psychiatric research and was revised for this edition of the book by Professor Philip Mitchell, a Scientia Professor and Head of the School of Psychiatry at the University of New South Wales. The use of that inter-disciplinary perspective is to be highly commended. The law in this field must have a correlation with the science. Absent such a correlation, the development of the law takes place in a virtual universe of concepts discarded in the real world and clinging to a ghostly after life as legal fictions. A fundamental question which arises out of that part of the text is whether it is still possible to suggest that for the law’s purposes there is such a thing as purely mental harm. Professor Handford notes Lord Goff’s observation1 that psychiatric injury as a particular type of personal injury may properly be differentiated from other types of injury even though scientific advances reveal that it may have a physical basis. Professor Handford offers the important normative proposition that: What is unacceptable is not this separate treatment, but rather the argument that liability for psychiatric injury, because it is psychiatric, should be much more limited than liability for physical harm.

As he notes courts in Australia have managed to rebut that argument. This book unpacks in comprehensive detail every important aspect of its topic. The way it does that is explained in a valuable overview in the author’s Preface. There is no point in replicating that exercise here. Suffice it to say, the book is and will remain for a long time a work of central importance on its topic in Australia and beyond.

1 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 475.

Preface This new edition appears after an interval of ten years, with a change of title and a new emphasis. It seeks to concentrate primarily on Australian law, and the title adopts the language now used in the Civil Liability Acts by referring to “mental harm” rather than “psychiatric damage”. Nonetheless, in the spirit of previous editions, it continues to provide detailed discussion of the law in other common law jurisdictions where it is relevant to Australian developments or when useful contrasts can be drawn. This change of direction merits a little more explanation here. In 1993, when Nicholas Mullany and I wrote the first edition, Australian law had not given any definite indication that it was going to take an independent approach to the question of liability for psychiatric injury, although there were signs that the law was moving in that direction, and this was probably encouraged by the rather restrictive approach of the House of Lords in the then-recent decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 (the first Hillsborough case). However, our aim in writing the first edition was to attempt a common-law wide survey. As we said in the Preface, in the spirit of Fleming’s Law of Torts, the book was written in the belief that no legal system had a monopoly on excellence, and courts in every country should be prepared to be receptive to developments elsewhere. The first edition was co-published by Law Book Co in Australia and Sweet & Maxwell in England, and had quite a lot of impact on courts in both countries and elsewhere, to judge by judicial citations over the next few years. The second edition, written by me alone, was published in 2006. By this time, the High Court of Australia in the Tame and Annetts cases (Tame v New South Wales (2002) 211 CLR 317) had mapped out the approach to be taken by Australian law – adopting, whether coincidentally or otherwise, many of the views advocated in the first edition — and Australian legislatures in six of the eight jurisdictions had set out the principles of liability for mental harm in statutory form. Also, by this time the House of Lords had clearly taken a different and much narrower path, as evidenced by the decisions in Page v Smith [1996] AC 155 and White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (the second Hillsborough case). The second edition nonetheless continued to follow a common-law wide approach. It reflected the expansion of the subject in the intervening 13 years by the addition of 15 new chapters, which doubled the size of the book. Over the last ten years, liability for psychiatric injury has continued to develop differently in different countries: for example, the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 has now adopted a rather different approach from England, Australia or anywhere else. Hence the decision that the third edition should be first and foremost an account of the Australian law, dealing much more fully with the Civil Liability Acts than the second edition

x

Preface

had done, and taking account of the considerable body of case law on the Acts that has appeared since the second edition was published. However, it was important not to lose the comparative focus that has been one of the strengths of the book. Accordingly, this edition is first and foremost a discussion of Australian law; however, the comparative element has been retained as a secondary theme, because Australian law cannot be properly understood without consideration of its English roots, and the further development of Australian law will be enriched if it is informed by the experience of other jurisdictions. The Hon Robert French AC, Chief Justice of Australia, kindly consented to write a Foreword to the new edition. He takes the place of the late Lord Bingham of Cornhill KG, Senior Law Lord in the House of Lords, who contributed Forewords to the first and second editions. The fact that the Foreword has been written by the chief judge of Australia’s highest court, rather than his United Kingdom equivalent, itself emphasises the changed direction of the book. Lord Bingham’s contribution lives on in the quotation with which all three editions have begun. Another change of emphasis in the present edition should also be noticed. The first edition was influenced by a conviction that the then-current state of the law was not satisfactory and that the ambit of liability could and should be extended: one reviewer called it a “crusading book”. As noted above, by the time of the second edition many of the suggested changes had been adopted by Australian law, although regrettably English law had taken, and continues to take, a much more conservative path. However, at least so far as Australian law is concerned, the present edition has become primarily an exposition of and commentary on the law as it is, although some of the criticisms and suggestions made in earlier editions remain. The passage of time allows reflection, and as a result some of the views previously expressed have been modified somewhat — to borrow a musical analogy used by the reviewer mentioned earlier, in one of his own works, I have sharpened and flattened a few of the notes, and have taken the opportunity to harmonise a few accidentals. Thanks are due not only to this reviewer (under whose supervision I took my first research steps in this area) but also to others, who have generally commented favourably, though one or two clearly wished that I had written a different book. In line with the changed emphasis of the book, there have been some important changes in the order of treatment of the subject as compared with the previous edition. 1. The first three chapters (comprising Part I of the book) are in essence new, though they draw in part on material that previously appeared in various parts of the book. After the first chapter, which explores the search for limits, Chapter 2 discusses the development of the Australian law and Chapter 3 provides contrast by summarising the law in the other major common law jurisdictions. Discussions in later chapters of the law on particular topics in particular jurisdictions need to be seen against this general background.

Preface xi

2. Chapters 4 to 6 in Part II (the equivalent of Chapters 2 to 4 of the previous edition), concentrate on the concept of mental harm. The opportunity has been taken to rewrite Chapters 4 and 6 and move some material from the former to the latter. As a general point, it should be noted that although this Part, and the book as a whole, uses the title “Mental Harm”, I have tended to retain the terms “psychiatric injury” or “psychiatric damage” when discussing the common law, reserving “mental harm” for discussions of the Australian statutory provisions. 3. Part III, dealing with the general principles of liability for mental harm, attempts to follow the logic of the mental harm provisions in the Civil Liability Acts. Chapter 7 therefore deals with the general question of duty of care, and is followed by Chapter 8 on normal fortitude, which is an important ingredient of the statutory statements of duty, and Chapters 9 to 12, which deal with the circumstances that according to the legislation are relevant to assessing whether recognised psychiatric illness is foreseeable. Chapter 13 then explores the statutory restrictions on liability now found in some jurisdictions, together with older legislative provisions that extended liability at common law. The chapters in this Part concentrate on the situation — often referred to as the “secondary victim” scenario — where A negligently kills, injures or endangers B and C suffers psychiatric injury as a result. Chapters 14 to 17 explore other themes that primarily involve this stock situation. 4. Part IV concentrates on the factor of relationship. In the typical case psychiatric injury arises from witnessing or otherwise experiencing an accident or some similar happening involving parties who were previously strangers. However, there are many cases where psychiatric injury arises in the context of a previous relationship, and these cases have been brought together in this Part. The factor of prior relationship between the parties has now been emphasised by the legislation, which mentions it as a circumstance relevant to determining whether there is a duty of care. 5. The Chapters in Part V examine various kinds of “primary victim” cases, in contrast to the “secondary victim” cases that are the main subject of Part III. Chapter 24 deals with the oldest kind of case, where the victim suffered what was then referred to as “nervous shock” through fear of immediate personal injury, and succeeding chapters discuss other kinds of cases: the debt to Lord Oliver’s classification of primary victims in Alcock v Chief Constable of South Yorkshire Police will be readily apparent. 6. Part VI rounds off the book by discussing liability for psychiatric injury resulting from intentional acts. In nearly every chapter, material has been substantially rearranged and new writing has been added, and some chapters are in essence new. These include not only Chapters 1 to 3, but also several chapters that have been fundamentally rewritten or restructured: Chapter 7, which now attempts to concentrate on aspects of the law of negligence relevant to psychiatric injury, rather than providing a general account of the elements of this tort; Chapter 13, on the statutory restrictions on liability; Chapter 18, on the general principles underlying relationship cases; Chapter 20, which discusses the major developments in

xii Preface

Australia on liability for stress at work that have taken place in the wake of the High Court decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; and Chapter 30, on Wilkinson v Downton [1897] 2 QB 57, rewritten in order to take account of the United Kingdom Supreme Court decision in O (A Child) v Rhodes [2016] AC 219. Some chapters in the second edition have disappeared: Chapters 6, 29 and 30 in the second edition have no equivalent in this edition. A preface gives the author the opportunity to thank all those who have assisted him in various ways during the writing process. For this edition, pride of place must go to the Hon Robert French AC, Chief Justice of Australia, for agreeing to write the Foreword, and Professor Philip Mitchell AM, a Scientia Professor and Head of the Department of Psychiatry of the University of New South Wales, for once again revising the material in Chapter 5 that provides a medical perspective. I am most grateful to Professor Mitchell for his continuing assistance, which means that those who use this book can know that this material has been provided by a leader in the field. Nicholas Mullany, co-author of the first edition, has not played any part in subsequent editions but was happy for this edition to be produced, and it, like its predecessor, can be traced back to our joint work in formulating the shape of what became the first book on this subject. He subsequently played a part in the development of this area as counsel in the Tame and Annetts cases. I would also like to acknowledge the assistance on particular matters of a number of friends and colleagues, including Brenda McGivern of the University of Western Australia, Barbara McDonald and Neil Foster in Sydney, Louise Bélanger-Hardy in Ottawa, Johan Potgieter in Cape Town, and Gillian Kelly in Dublin, together with others who were referred to in the Prefaces of the earlier editions. To this list I can now add my son Stephen Handford, whose knowledge of social media was most useful in relation to Chapter 11, helping to compensate for his father’s woeful ignorance of this area. Thanks are also due to all at Thomson Reuters who helped in the production process, particularly Paul Gye for his co-operation in all sorts of ways, and Corina Brooks, for her dedicated assistance as my editor. She has now acted as editor for all three versions of this book, which must be some sort of record. Lastly, but most importantly, my wife Pauline has once again cheerfully undergone the experience of sharing a project that has consumed much of my time over the past year and a half. Her support has been many-sided: encouraging me to undertake the work when Thomson Reuters proposed the writing of another edition; trawling newspapers and the internet in search of useful material; accompanying me on a research expedition to London, even though I spent most of my days buried in the Library of the Middle Temple; and putting up with the many boxes of research materials that were housed in our apartment during the writing process. The Preface to the previous edition also referred to our feline companion, and his connection with the case dealt with in [29.60] of the current edition; he even shared the same name as the plaintiffs in that case. Unhappily, he did not long survive the publication of the second edition, but his successor has been an equally constant companion during the writing process, and she has not hesitated on occasion to put paw to keyboard in an endeavour to improve the text.

Preface xiii

I have attempted to state the law as of 1 May 2016, though it has been possible to include footnote references to one or two recent cases at proof stage. As I said in the previous edition, given the book’s wide coverage of many different jurisdictions it would be unwise to assume that nothing has been missed: my only hope is that I have not missed too much.

PETER HANDFORD Perth 16 November 2016

Table of Contents Foreword ................................................................................................................................................. 7 Preface ................................................................................................................................................... ix Table of Cases .................................................................................................................................... xvii Table of Statutes ................................................................................................................................ lxxv

I INTRODUCTION .......................................................................................................................... 1 1. Introduction ................................................................................................................................ 3 2. The Australian Law ................................................................................................................ 21 3. The Law Elsewhere ................................................................................................................. 57 II

MENTAL HARM ...................................................................................................................... 115 4. Recognised Psychiatric Illness ............................................................................................. 117 5. A Medical Perspective ........................................................................................................... 135 6. Attempts to Lower the Barrier ............................................................................................ 175

III

LIABILITY FOR MENTAL HARM .................................................................................... 217 7. Duty and Other Elements of Liability ................................................................................ 219 8. Normal Fortitude ................................................................................................................... 281 9. Circumstances of the Case: Relationship to Accident Victim .......................................... 311

10. Proximity of Time and Space .............................................................................................. 351 11. Means of Communication ..................................................................................................... 391 12. Sudden Shock ......................................................................................................................... 457 13. Statutory Extensions and Restrictions ................................................................................ 497 14. Secondary Victims: Variations on the Traditional Theme ............................................... 537 15. Where the Tortfeasor is the Primary Victim ..................................................................... 545 16. Defences .................................................................................................................................. 567 17. Damages .................................................................................................................................. 591 IV

RELATIONSHIP CASES ....................................................................................................... 617

18. General Principles ................................................................................................................. 619 19. Employer and Employee ...................................................................................................... 639 20. Work Stress ............................................................................................................................ 673 21. Professional and Other Relationships ................................................................................. 735 22. Secondary Victim Cases ........................................................................................................ 773 23. Air Travel ............................................................................................................................... 827

xvi

Table of Contents

V SOME SPECIAL CASES ........................................................................................................ 853 24. Primary Victims within the Zone of Danger ..................................................................... 855 25. Rescuers .................................................................................................................................. 877 26. Involuntary Participants ....................................................................................................... 905 27. Damage to Property .............................................................................................................. 931 28. Bad News ................................................................................................................................ 943 29. Fear for the Future ............................................................................................................... 965 VI INTENTIONAL ACTS ......................................................................................................... 1015 30. Wilkinson v Downton .......................................................................................................... 1017 Appendix: Mental Harm Provisions in the Civil Liability Acts ............................................... 1083

Index .................................................................................................................. 1105

Table of Cases A A v B’s Trustees (1906) 13 SLT 830 .................................................................... 30.60, 30.70, 30.210 A v C [2007] IEHC 120 ........................................................................................................ 3.670, 8.80 A v D (unreported, ACT SC, No SC336 of 1994, 20 September 1995) ........................................ 6.80 A v Essex County Council [2004] 1 WLR 1881 ......................................................................... 21.300 A v Hoare [2008] AC 844 ............................................................................................................ 30.420 A v P & O Ferries (Dover) Ltd (The Independent, 5 May 1989) ..................................... 5.220, 6.250 A v Roman Catholic Archdiocese of Wellington [2007] 1 NZLR 536 ........................................ 3.510 A v Roman Catholic Archdiocese of Wellington [2008] 3 NZLR 289 ........................................ 3.510 A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351 ........................................ 9.500, 17.40, 25.130 A and B v Essex County Council [2003] 1 FLR 615 ..................................................................... 3.80 AA–JC Inclusive v Hickey (1996) 70 ALJR 385 ........................................................................ 21.210 AB v IJ (1991) 119 AR 210 ................................................................................ 17.30, 30.260, 30.280 AB v South West Water Services Ltd [1993] QB 507 ........................................................... 6.70, 6.90 AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 ...... 1.200, 3.200, 21.100, 28.220, 28.260 AC v Cabin Hill School [2005] NIQB 45 ..................................................................................... 3.210 AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1 ..................... 9.130, 21.270, 21.320 AD v United Kingdom (2010) 51 EHRR 8 ................................................................................. 21.320 AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619; [2001] NSWCA 186 ........ 3.230, 7.560, 7.570, 7.670, 8.70, 12.420, 11.360, 13.230, 14.110, 22.140, 24.270 APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 (judgment given 2 February 1995) ... 4.130, 7.150, 7.410, 11.110, 12.300, 12.310, 29.20, 29.50, 29.80, 29.90, 29.100, 29.110, 29.120, 29.140, 29.150, 29.190, 29.210, 29.300, 29.360, 29.440, 29.450, 29.510, 29.590, 29.600 APQ v Commonwealth Serum Laboratories Ltd (unreported, Vic SC, App Div, No 8546 of 1993, 28 April 1995) ......................................................................................................................... 29.130 AR v Kogan 964 F Supp 269 (1997) ........................................................................................... 30.630 AX v Ashfield Municipal Council [2012] NSWDC 32 ....................................................... 4.90, 8.230 AXA General Insurance Ltd, Petitioners 2011 SC 662 ............................................................... 29.380 AXA General Insurance Ltd, Petitioners [2012] 1 AC 868 ........................................................ 29.380 AZ v The Age (No 1) (2013) Aust Torts Rep 82-142; [2013] VSC 335 ....... 20.370, 20.380, 20.440, 20.450, 20.460, 20.470, 20.480, 20.520, 20.530, 20.560, 20.580 Abnett v British Airways plc 1996 SLT 529 ................................................................................. 23.60 Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 ............ 5.390, 5.400, 13.230, 22.230 Abramzik v Brenner (1965) 54 DLR (2d) 639 .............................................................................. 11.60 Abramzik v Brenner (1967) 65 DLR (2d) 651 .......... 1.20, 3.340, 7.400, 7.410, 11.60, 30.70, 30.380 Accident Compensation Corporation v E [1992] 2 NZLR 426 ............................ 3.460, 3.470, 19.460 Accident Compensation Corporation v F [1991] 1 NZLR 234 .................................................... 3.460 Accident Compensation Corporation v Monk [2013] NZAR 1 .................................................... 3.510 Accident Rehabilitation and Compensation Insurance Corporation v JM [1999] NZAR 433 .... 3.460 Accident Rehabilitation and Compensation Insurance Corporation v McHardy [1996] NZAR 289 ..................................................................................................................... 3.460 Acevedo v Essex County 504 A 2d 813 (NJ 1985) ....................................................... 10.420, 11.550 Ackers v Wigan Health Authority [1991] 2 Med LR 232 ............................................... 21.70, 22.180 Acrecrest Ltd v WS Hattrell & Partners [1983] QB 260 .............................................................. 7.140 Adams v King County 192 P 3d 891 (Wash 2008) ..................................................................... 30.630 Adams v NVR Homes Inc 135 F Supp 2d 675 (2001) ............................................................... 27.100 Adams v New York City Transit Authority 666 NE 2d 216 (NY 1996) ...................................... 18.40 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 ............................................................ 7.540

xviii Table of Cases Aetna Life Insurance Co v Burton 12 NE 2d 360 (Ind 1938) .................................................... 30.610 Agar v Hyde (2000) 201 CLR 552 ................................................................................................ 7.320 Ah Tong v Wingecarribee Council [2003] NSWCA 381 .......................... 2.170, 9.130, 10.160, 17.40 Ahn v Kim 678 A 2d 1073 (NJ 1996) ......................................................................................... 18.230 Aikens v Wisconsin 195 US 194 (1904) ........................................................................................ 30.50 Air Crash Disaster at Cove Neck, Long Island, New York on January 25, 1990, In re 885 F Supp 434 (1995) ............................................................................................................................... 23.400 Air Crash Disaster near Cerritos, California, on August 31, 1986, Re 967 F 2d 1421 (1992) .. 3.780, 10.440 Air Crash Disaster near Chicago, Re 507 F Supp 21 (1980) ....................................................... 6.180 Air Crash at Belle Harbor, New York on November 12, 2001, Re 450 F Supp 2d 432 (2006) . 3.770, 11.550, 27.110 Air Crash at Little Rock, Arkansas, Re 291 F 3d 503 (2002) ...................................................... 5.460 Air Crash at Little Rock, Arkansas on June 1, 1999, Re 118 F Supp 2d 916 (2000) ...... 5.420, 5.460 Air France v Saks 470 US 392 (1985) ........................................................................................ 23.230 Aircraft Disaster near Roselawn, Indiana, on October 31, 1994, Re 954 F Supp 175 (1997) ... 6.180, 23.150 Aircrash Disaster Near New Orleans, Re 789 F 2d 1092 (1986) ................................................. 6.180 Airedale NHS Trust v Bland [1993] AC 789 .................................................................................. 3.30 Aithal v Seychelles Breweries [2006] SCSC 26 .......................................................................... 21.170 Akpata v Minister for Immigration and Citizenship [2012] FCA 806 .......................... 16.250, 16.270 Aksentijevic v Victoria Racing Club Ltd [2011] VSC 538 ......................................................... 30.150 Al-Kandari v JR Brown & Co [1987] QB 514 .................................................................. 7.710, 17.40 Al-Kandari v JR Brown & Co [1988] QB 665 .................................................................. 17.40, 21.30 Alabama Fuel & Iron Co v Baladoni 73 So 205 (Ala 1916) ........................................................ 3.760 Alabama Power Co v Murray 751 So 2d 494 (Ala 1999) .......................................................... 27.100 Alaffe v Kennedy (1973) 40 DLR (3d) 429 .................................................................................... 4.50 Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783 ................................. 6.110 Albrecht v Patterson (1886) 12 VLR 821 ...................................................................................... 6.100 Alcan Gove Pty Ltd v Zabic (2015) 89 ALJR 845 ..................................................................... 16.260 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 ........... 1.20, 1.50, 1.70, 1.90, 1.100, 2.90, 3.30, 3.50, 3.60, 3.90, 3.100, 3.110, 3.120, 3.140, 3.240, 3.310, 3.520, 3.570, 3.620, 3.740, 4.10, 4.40, 4.70, 4.140, 5.220, 6.20, 6.50, 6.60, 7.110, 7.150, 7.190, 7.240, 7.250, 7.270, 7.350, 7.370, 7.410, 7.590, 9.50, 9.90, 9.100, 9.110, 9.170, 9.190, 9.210, 9.250, 9.260, 9.270, 9.300, 9.310, 9.320, 9.330, 9.340, 9.350, 9.360, 9.370, 9.380, 9.390, 9.400, 9.410, 9.420, 9.450, 9.460, 9.470, 9.490, 9.500, 9.510, 10.30, 10.190, 10.200, 10.220, 10.230, 10.240, 10.250, 10.260, 10.270, 10.280, 10.300, 10.340, 10.360, 10.400, 10.450, 11.50, 11.200, 11.310, 11.350, 11.490, 11.500, 11.510, 11.560, 11.580, 11.600, 11.630, 11.710, 11.720, 11.730, 11.740, 11.750, 11.770, 11.780, 11.790, 11.800, 11.810, 11.830, 11.840, 11.850, 11.870, 11.890, 12.20, 12.90, 12.100, 12.110, 12.290, 12.330, 12.530, 12.540, 12.550, 13.120, 13.130, 13.410, 13.440, 15.80, 15.100, 15.110, 15.150, 15.170, 15.200, 15.210, 16.90, 16.100, 16.120, 16.180, 17.40, 17.80, 17.190, 18.50, 18.60, 18.190, 19.250, 19.260, 21.30, 22.20, 22.290, 22.320, 22.330, 22.340, 22.450, 22.480, 22.500, 22.530, 22.560, 22.570, 22.660, 22.710, 22.740, 24.50, 24.60, 24.70, 24.210, 25.10, 25.40, 25.80, 25.230, 25.320, 25.370, 25.420, 25.430, 26.40, 26.70, 26.80, 26.110, 26.120, 26.160, 26.190, 26.280, 26.290, 27.140, 28.30, 28.140 Alcorn v Anbro Engineering Inc 468 P 2d 216 (Cal 1970) ........................................................ 30.630 Aldersea v Public Transport Corporation [2001] 3 VR 499 ......................................................... 6.100 Allen v Clemons 920 SW 2d 884 (Ky 1996) .............................................................................. 30.640 Allen v Dando [1977] CLY 738 ..................................................................................................... 17.50 Allen v Western Australia [2000] WASCA 221 ............................................................. 20.230, 20.540 Allied Finance & Investments Ltd v Haddow & Co [1983] NZLR 22 ........................................ 7.140 Allin v City and Hackney Health Authority [1996] 7 Med LR 167 .................. 21.90, 21.100, 28.120 Allison C v Advanced Education Services 28 Cal Rptr 3d 605 (2005) ..................................... 18.220 Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 ............................................. 1.150, 6.100, 30.40 Almy v Grisham 639 SE 2d 182 (Va 2007) ................................................................................ 30.630 Alsteen v Gehl 124 NW 2d 312 (Wis 1963) ............................................................................... 30.620 Amaya v Home Ice, Fuel & Supply Co 379 P 2d 513 (Cal 1963) ................................... 3.760, 3.770

Table of Cases xix Amcor Ltd v Watson [2000] NSWCA 21 .................................................................................... 13.170 American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 26 September 1996) ................................................................................................... 23.140, 23.310 American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 5 August 1998) ........................................................................................................... 23.150, 23.310 American Road Service Co v Inmon 344 So 2d 361 (Ala 1981) ............................................... 30.620 Amonoo-Quyst v McHale 2001 WL 753374 ................................................................................. 21.40 Andalon v Superior Court 208 Cal Rptr 899 (1984) ................................................................... 18.210 Anderson v Christian Salvesen plc 2006 SLT 815 ............................................... 3.580, 5.220, 26.290 Anderson v Davis [1993] PIQR Q87 ............................................................................................. 6.110 Anderson v Excel Collection Services Ltd (2005) 260 DLR (4th) 367 ......................................... 4.40 Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 .............................................. 19.130 Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78 ................................................. 19.130 Anderson v Liddy (1949) 49 SR (NSW) 320 .................................................................... 13.50, 13.80 Anderson v McCrae (1930) 47 Sh Ct Rep 287 ............................................................................. 30.70 Anderson v Smith (1990) 101 FLR 34 . 6.150, 7.360, 10.290, 10.450, 11.150, 12.160, 12.360, 17.40 Anderson v St Pierre (1987) 46 DLR (4th) 754 .................................................................. 1.20, 10.30 Anderson v Wilson (1998) 156 DLR (4th) 735 .................................................... 6.300, 6.380, 29.560 Anderson v Wilson (1999) 175 DLR (4th) 409 .............. 6.300, 6.320, 7.800, 29.310, 29.560, 29.580 Anderson-Redick v Graham (2000) 258 AR 42 .......................................................................... 22.600 Anderson Meat Packing Co Pty Ltd v Giacomantonio (1973) 47 WCR 3 .................................. 19.50 Andrewartha v Andrewartha (1987) 44 SASR 1 ............................................................ 12.170, 17.190 Andrews v Government Insurance Office of New South Wales (unreported, NSWSC, No 15992 of 1985, 2 December 1988) ......................................................................................................... 13.170 Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229 ...................................... 6.50, 11.530, 17.30 Andrews v Nominal Defendant (1965) 66 SR (NSW) 85 .......................................................... 16.220 Andrews v Secretary of State for Health (1998) 54 BMLR 111 ................................................ 29.210 Andrews v Williams [1967] VR 831 ............................. 7.740, 11.100, 11.150, 17.140, 22.160, 24.60 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 ... 2.140, 2.180, 4.70, 4.100, 7.280, 7.410, 7.710, 7.730, 8.40, 8.70, 8.170, 11.200, 11.330, 11.350, 11.360, 11.370, 11.380, 11.440, 12.40, 12.80, 12.420 Annetts v Australian Stations Pty Ltd [2000] WASC 104 ........... 2.140, 7.280, 11.340, 12.30, 12.420 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 ................ see Tame v New South Wales Annetts v Australian Stations Pty Ltd P97/2000 (1 June 2001) ................................................... 2.140 Annetts v McCann (1990) 170 CLR 596 ......................................................................... 2.140, 11.330 Anns v Merton London Borough Council [1978] AC 728 .. 3.700, 7.130, 7.140, 7.150, 7.180, 7.190, 7.200, 7.210, 7.250, 7.750, 7.770, 25.120 Anon (1971) BGHZ 56, 163 ........................................................................................... 15.210, 16.110 Anon (unreported, CICB, 19 June 1992) ..................................................................................... 30.260 Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109 ............ 2.290, 9.240, 11.420, 13.310, 16.160, 17.40, 22.140 Antonatos v Dunlop, Allsop & Transport & General Insurance Co Ltd [1968] Qd R 114 ......... 7.630 Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 ... 2.290, 2.320, 2.380, 2.390, 2.480, 8.220 Anzalone v Kragness 826 NE 2d 472 (Ill 2005) ......................................................................... 27.110 Apache Ready Mix Co v Creed 653 SW 2d 79 (Tex 1983) ....................................................... 11.100 Appleton v Garrett [1997] 8 Med LR 75 ......................................................................................... 6.80 Aragon v Speelman 491 P 2d 173 (NM 1971) .............................................................................. 3.760 Arauz v Gerhardt 137 Cal Rptr 619 (1977) ................................................................................. 10.430 Archbishop of Perth v AA to JC (unreported, NSWCA, Nos 40126–40132 of 1995, 12 October 1995) ........................................................................................................................................ 21.210 Archer v Brown [1985] QB 401 .................................................................................................... 6.100 Archibald v Braverman 79 Cal Rptr 723 (1969) ......................................................................... 10.430 Armstrong v Paoli Memorial Hospital 633 A 2d 605 (Pa 1993) ....................................... 5.60, 28.110 Armstrong v Secretary of State for the Home Office (unreported, Eng QBD, 8 October 2001) ...................................................................................................................... 20.240 Armytage v Commissioner for Government Transport [1972] 1 NSWLR 331 ................ 13.50, 13.60

xx Table of Cases Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472 . 20.30, 20.160, 20.200, 20.240, 20.380, 20.400, 20.570 Arnold v Teno [1978] 2 SCR 287 ................................................................................................ 11.530 Arrowsmith v Beeston (unreported, Eng CA, QBENF 97/0755/C, 18 June 1998) ........... 4.20, 5.220, 6.250, 8.310 Asaro v Cardinal Glennon Memorial Hospital 799 SW 2d 595 (Mo 1990) ................................ 3.770 Ashby v White (1703) 2 Ld Raym 938; 92 ER 126 ..................................................................... 1.180 Ashingdale v United Kingdom (1985) 7 EHRR 528 .................................................................... 3.290 Ashley v Chief Constable of Sussex Police [2008] AC 962 ....................................................... 19.390 Ashley Estate v Goodman [1994] OJ No 1672 .................................................... 7.410, 8.310, 10.290 Ashton v Turner [1981] QB 137 .................................................................................................. 16.220 Athey v Leonati [1996] 3 SCR 458 ............................................................................................... 8.280 Atlantic Coast Airlines v Cook 857 NE 2d 989 (Ind 2006) ......................................................... 3.760 Attia v British Gas plc [1988] QB 304 ...... 1.20, 2.30, 4.10, 4.40, 6.120, 7.410, 7.500, 7.660, 7.740, 8.140, 17.40, 27.20, 27.30, 27.40, 27.60, 27.130, 27.140 Attorney-General of Canada v Jackson [1946] 2 DLR 481 ........................................................ 16.170 Attorney General v Gilbert [2002] 2 NZLR 342 ......................................................................... 20.750 Attorney General v Prince [1998] 1 NZLR 262 ............................................................ 21.250, 21.280 Atwood v Hylan 685 So 2d 450 (La 1996) ................................................................................. 27.100 Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591 .................................................................. 30.710 Aussant v Canada (unreported, Fed Ct, Docket T-903-95, 5 May 2005) ................................... 19.460 Aussems v Commonwealth [2005] NSWSC 217 ........................................................................ 24.140 Austen v University of Wolverhampton [2005] EWHC 1635 .......................... 30.110, 30.220, 30.460 Austin v Director General of Education (unreported, NSWCA, CA 40175 of 1990, 21 July 1994) ............................................................................................................................. 20.30 Austin v Mascarin [1942] OR 165 ................................................................................................... 2.30 Austin v Regents of University of California 152 Cal Rptr 420 (1979) .................................... 22.630 Austin, City of v Davis 693 SW 2d 31 (Tex 1985) .................................................................... 10.420 Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199 ................... 30.710 Australian Consolidated Press Ltd v Uren [1969] 1 AC 590 .......................................................... 6.70 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ........................................... 7.150 Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492 ................................................................................................................... 5.220 Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1 ......................................................... 6.120 Awad v Bebnowski [2002] SADC 157 ................................................ 13.210, 14.100, 16.160, 28.200

B B v A County Council [2007] PIQR P17 .................................................................................... 21.300 B v Attorney General [2003] Lloyd’s Rep Med 527 .................................................................. 21.130 B v Attorney General [2004] 3 NZLR 145 .................................................................................. 21.310 B v Islington Health Authority [1993] QB 204 ........................................................................... 16.170 B(D) v Children’s Aid Society of Durham (Region) [1994] OJ No 643 ...................... 17.180, 17.260 Babineau v MacDonald (No 2) (1975) 59 DLR (3d) 671 ............................................................. 11.60 Backwell v AAA (1996) Aust Torts Rep 81-387 ........................................................................... 21.70 Badraie v Commonwealth (2005) 195 FLR 119 ......................................................................... 21.480 Bagley v North Herts Health Authority (1986) 136 New LJ 1014 ...... 12.390, 12.510, 17.40, 22.180 Bailey v British Transport Commission (The Times, 29 November 1953) ....................... 17.40, 17.80 Bailey v Hain Steamship Co Ltd [1956] 1 Lloyd’s Rep 641 ....................................................... 8.370 Bailey v Urban Transit Authority [2002] NSWCA 239 ................................................................ 7.560 Bain v Honeywell International Inc 257 F Supp 2d 879 (2003) .................................................. 3.350 Bain v Kings & Co Ltd 1973 SLT (Notes) 8 ........................................................ 3.560, 9.190, 10.290 Baird v The Queen in right of Canada (1983) 148 DLR (3d) 1 ................................................... 7.140 Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 ...................................................................... 15.50 Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 .................................................................... 25.20 Bale v Seltsam Pty Ltd [1996] QCA 288 ...................................................................................... 7.370 Ball v Winslett [1958] SR (NSW) 149 .......................................................................................... 13.70

Table of Cases xxi Balthazor v Little League Baseball Inc 72 Cal Rptr 2d 337 (1998) .......................................... 16.210 Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344 ..... 2.260, 6.70, 27.140 Baltruweit v Rubin 2005 CanLII 24744 .......................................................................................... 8.70 Banks v Ablex Ltd [2005] ICR 819 ............................................................................................. 20.650 Banks v Fritsch 39 SW 2d 474 (Ky 2001) .................................................................................. 30.620 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 .................................................. 20.450 Barber v Somerset County Council [2004] 1 WLR 1089; [2004] ICR 457 ......... 4.20, 20.20, 20.330, 20.340, 20.470, 20.620, 20.630, 20.640, 20.680, 20.770, 20.800, 20.810, 20.820, 20.850 Barnard v Santam Bpk 1997 (4) SA 1032 ................................................................................... 11.440 Barnard v Santam Bpk 1999 (1) SA 202 ......... 1.80, 1.100, 1.180, 3.550, 4.10, 7.410, 10.20, 10.330, 11.200, 11.440, 11.670, 12.20, 12.430, 12.470, 20.760 Barnes v Commonwealth (1937) 37 SR (NSW) 511 ........ 11.140, 21.490, 28.60, 28.70, 28.80, 28.90 Barnes v Geiger 446 NE 2d 78 (Mass 1983) ................................................................................ 9.510 Barnett v Collection Service Co 242 NW 25 (Iowa 1932) ............................................ 30.610, 30.630 Barnhill v Davis 300 NW 2d 104 (Iowa 1981) ...................................................... 3.760, 6.160, 9.220 Barratt v Corporation of North Vancouver [1980] 2 SCR 418 ..................................................... 7.140 Barrett v Danbury Hospital 654 A 2d 748 (Conn 748) ............................................................... 29.720 Barrett v Enfield London Borough Council [2001] 2 AC 550 ............ 21.260, 21.270, 21.280, 21.340 Barrett v Short (unreported, NSWSC, No 14685 of 1984, 12 April 1989) .................................. 17.40 Bartow v Smith 78 NE 2d 735 (Ohio 1948) ................................................................................. 3.760 Bashtannyk and Comcare, Re (1994) 32 ALD 581 ....................................................................... 20.30 Bass v Nooney Co 646 SW 2d 765 (Mo 1983) ........................................................ 3.760, 5.60, 6.160 Bassanese v Martin (1982) 31 SASR 461 ................... 8.300, 11.180, 12.220, 16.200, 17.190, 30.320 Batchelor v Tasmania [2005] TASSC 11 ..................................................................................... 21.420 Bateman v Middlesex (County) (1911) 19 OWR 442 ..................................................................... 1.10 Battalla v State 176 NE 2d 729 (NY 1961) ....................................................................... 3.760, 6.160 Battista v Cooper (1976) 14 SASR 225 .................... 11.110, 30.140, 30.150, 30.280, 30.290, 30.420 Batty v Metropolitan Property Realisations Ltd [1978] QB 554 ....................................... 6.120, 7.140 Bazley v Curry [1999] 2 SCR 534 ................................................................................. 21.220, 21.250 Beanland v Chicago RI & PR Co 480 F 2d 109 (1973) ................................................. 9.220, 19.470 Beasley v Commonwealth [2001] NSWSC 998 .......................................................................... 24.150 Beattie v Ulster Television plc [2005] NIQB 36 ......................................................................... 20.650 Beaudesert Shire Council v Smith (1969) 120 CLR 145 .............................................................. 30.50 Beaulieu v Sutherland (1986) 35 CCLT 237 ...................................... 4.50, 4.130, 8.310, 9.210, 16.60 Beavis v Apthorpe (1962) 80 WN (NSW) 852 ............................................................................. 8.280 Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 .... 7.360, 7.410, 8.310, 8.360, 9.460, 25.110, 25.190 Beck v Department of Transportation & Public Facilities 837 P 2d 105 (Alaska 1992) ......... 10.420, 10.440 Bednall v Wesley College [2005] WASC 101 ............................................................................. 21.310 Beecham v Hughes (1988) 52 DLR (4th) 625 ......... 4.20, 6.260, 7.150, 7.410, 7.710, 9.180, 12.180, 12.490, 15.190 Beetham v James [1937] 1 KB 527 ............................................................................................... 6.100 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 ............................................................. 1.30, 4.10 Behrooz v Commonwealth [2015] NSWSC 478 ......................................................................... 21.480 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 ........................................................................................................................... 21.480 Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 .. 2.30, 3.640, 9.40, 17.40, 18.10, 18.20, 18.50, 19.20, 22.20, 24.10, 24.30, 24.50, 24.130, 24.160, 30.60 Bell-Ginsburg v Ginsburg (1993) 14 OR (3d) 217 ................................. 29.70, 30.60, 30.170, 30.210 Benavides v County of Wilson 955 F 2d 968 (1992) ................................................................. 11.120 Benic v New South Wales [2010] NSWSC 1039 ...................................... 4.90, 5.220, 19.210, 19.220 Bennett v Allcott (1787) 2 TR 166; 100 ER 90 .............................................................................. 6.90 Bennett v Minister of Community Welfare (1992) 176 CLR 408 ................................................ 7.570 Benson v Lee [1972] VR 879 ....... 2.80, 4.40, 6.60, 7.240, 8.370, 8.380, 10.80, 11.80, 11.120, 19.50 Benyon v Montgomery Cablevision Ltd Partnership 718 A 2d 1161 (Md 1998) ........................ 6.180 Berber v Dunnes Stores Ltd [2009] IESC 10 .............................................................................. 20.730

xxii Table of Cases Berger v Sonneland 1 P 3d 1187 (Wash 2000) ................................................................................ 5.60 Berisha v Stone Superstore Ltd 2014 WL 6862531 .................................................................... 10.400 Bernard v State Department of Transportation & Development 563 So 2d 282 (La 1990) ...... 10.420 Bernier v Board of County Road Commissioners 581 F Supp 781 (1983) ............................... 11.550 Bernier v Murchison 2014 NBQB 198 .......................................................................................... 6.130 Berrill v Road Haulage Executive [1952] 2 Lloyd’s Rep 490 ...................................................... 16.70 Best v West Morton Regional Health Authority [1997] QSC 54 ............................................... 19.130 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 .................. 3.540 Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 .... 3.540, 3.550, 8.290, 8.310, 9.150, 22.730, 24.40 Bettis v Islamic Republic of Iran 315 F 3d 325 (2003) .............................................................. 30.640 Beverley v Hill-Douglas [1998] QSC 31 ....................................................................................... 6.110 Bici v Ministry of Defence [2004] EWHC 204 .......................................................................... 30.460 Bici v Ministry of Defence [2004] EWHC 786 ............................................................................ 3.150 Bielitski v Obadiak (1922) 65 DLR 627 .................................................. 30.60, 30.70, 30.210, 30.220 Biercevicz v Liberty Mutual Insurance Co 865 A 2d 1267 (Conn 2004) .................................... 9.220 Bigeni v Finch (unreported, NSWSC, No 16165 of 1992, 8 April 1998) ....... 10.290, 13.230, 13.240 Biggs v Woodhead [1940] NZLR 108 ........................................................................................... 16.70 Biles v Barking Health Authority [1998] CLY 1103 ..................................................................... 21.70 Binns v Fredendall 513 NE 2d 278 (Ohio 1987) .......................................................................... 9.220 Bird v Saenz 51 P 3d 324 (Cal 2002) .......................................................................................... 22.630 Birrell v Providence Health Care Society (2007) 72 BCLR (4th) 126 ...................................... 16.270 Birrell v Providence Health Care Society (2009) 89 BCLR (4th) 205 ...................................... 16.270 Birti v SPI Electricity Pty Ltd [2011] VSC 566 ....................................................... 6.70, 2.170, 27.50 Birti v SPI Electricity Pty Ltd (No 2) [2012] VSC 482 ................................................................. 6.70 Bishop v Arts & Letters Club of Toronto (1978) 83 DLR (3d) 107 ............................................ 8.370 Bishop v Nova Scotia (Workers’ Compensation Appeals Tribunal) (2012) 321 NSR (2d) 106 ....................................................................................................... 20.740 Bittles v Harland and Wolff plc [2000] NIJB 209 ......................................................... 29.260, 29.370 Black v Carrollton Railroad Co 10 La Ann 33 (1855) ................................................................ 13.580 Blackmon v American Home Products Corporation 267 F Supp 2d 667 (2003) ...................... 10.440 Blackmore v Cablenet Ltd (1994) 163 AR 41 ............................................................................. 30.210 Blake v Midland Railway Co (1852) 18 QB 93; 118 ER 35 ..................................................... 17.190 Blakeley v Shortal’s Estate 20 NW 2d 28 (Iowa 1945) .............................................................. 30.620 Blakeney v Pegus (No 2) (1885) 6 NSWR 223 ................................................................. 18.40, 28.50 Blanchard v Reliable Transfer Co 32 SE 2d 420 (Ga 1944) ...................................................... 27.110 Blanyar v Pagnotti Enterprises Ltd 679 A 2d 790 (Pa 1996) ....................................................... 9.220 Blaxter v Commonwealth (2008) Aust Torts Rep 81-948 .................................... 4.20, 24.140, 24.150 Blight v Warman [1964] SASR 163 ............................................................................................... 16.70 Bliss v Allentown Public Library 497 F Supp 487 (1980) ........................................................... 10.30 Bloom v Dubois Regional Medical Center 597 A 2d 671 (Pa 1991) ......................................... 22.630 Blunden v Commonwealth (2003) 218 CLR 330 ........................................................................ 24.140 Blunden v Commonwealth [2014] ACTSC 123 .......................................................................... 16.270 Boardman v Sanderson [1964] 1 WLR 1317 .......................... 2.60, 7.360, 7.410, 10.70, 16.60, 17.40 Bogden v Purolator Courier Ltd (1996) 182 AR 216 .................................................................. 30.210 Bohemier v Storwal International Inc (1982) 142 DLR (3d) 8 .................................................. 30.160 Bondarenko v Sommers (1968) 69 SR (NSW) 269 .................................................................... 16.210 Bonham v Carrier (2000) 21 Qld Lawyer Reps 87 .......................................... 17.160, 30.380, 30.550 Bonner v Guccione 916 F Supp 271 (1996) ................................................................................ 30.630 Bonser v UK Coal Mining Ltd [2003] EWCA Civ 1296 ........................................................... 20.820 Boorman v Nevada Memorial Creation Society 236 P 3d 4 (Nev 2010) ..................................... 6.160 Boothman v Canada [1993] 3 FC 381 .............................................................. 30.170, 30.210, 30.220 Boryla v Pash 960 P 2d 123 (Col 1998) ...................................................................................... 29.740 Bosley v Andrews 142 A 2d 263 (Pa 1958) .................................................................................. 3.760 Boswell v Minister of Police 1978 (3) SA 268 ..................................... 8.310, 30.180, 30.210, 30.380 Boucher v Wal-Mart Canada Corporation (2014) 374 DLR (4th) 293 ....................................... 30.170 Boudreau v Benaiah (1998) 154 DLR (4th) 650 ................................................................ 6.290, 21.50

Table of Cases xxiii Boudreaux v Allstate Finance Corporation 217 So 2d 439 (La 1968) ....................................... 30.630 Boughton v Cotter Corporation 65 F 3d 823 (1995) ................................................................... 27.100 Bourgeois v Great Northern Nekoosa Corporation 722 A 2d 369 (Me 1999) ........................... 25.150 Bourhill v Young [1943] AC 92 .... 2.50, 2.70, 3.30, 3.130, 3.440, 3.560, 5.370, 7.340, 7.350, 7.410, 7.440, 7.480, 7.550, 7.730, 8.40, 8.80, 8.120, 8.170, 8.290, 8.310, 9.130, 9.340, 9.440, 9.450, 11.30, 11.480, 13.30, 15.110, 16.80, 22.20, 24.40, 24.80, 25.220, 25.400, 26.20 Bourhill v Young’s Executor 1941 SC 395 ............. 3.560, 7.340, 8.90, 15.20, 15.130, 15.150, 24.40 Bourque v Surrette (1978) 23 NBR (2d) 357 ................................................................... 11.60, 16.210 Bova v Locke [2005] NSWCA 226 ............................................................................................... 17.40 Bovsun v Sanperi 461 NE 2d 843 (NY 1984) .......................................................... 3.770, 5.60, 9.220 Bowbelle, The [1990] 1 WLR 1330 ............................................................................................... 25.50 Bowen v Lumbermen’s Mutual Casualty Co 517 NW 2d 432 (Wis 1994) ......... 3.790, 6.160, 9.220, 10.440 Bower v Mohawk Oil Co Ltd (1986) 48 Sask R 1 ....................................................................... 8.330 Bowler v Walker [1996] PIQR P22 ................................................................... 30.100, 30.210, 30.420 Bowman v Williams 165 A 182 (Md 1933) .................................................................................... 2.50 Box Hill Institute of TAFE v Johnson [2015] VSCA 245 .......................................................... 20.530 Boyle v Chandler 138 A 273 (Del 1927) ..................................................................................... 30.630 Boyle v Nominal Defendant [1959] SR (NSW) 413 ..................................................................... 5.400 Boyles v Kerr 855 SW 2d 593 (Tex 1993) ...................................................................... 6.160, 18.220 Brackett v Peters 11 F 3d 78 (1993) .............................................................................................. 8.310 Bradfield v British Railways Board (The Times, 10 March 1955) ............................................... 24.40 Bradford-Smart v West Sussex County Council [2002] 1 FCR 425 .......................................... 21.410 Bradford-Smart v West Sussex County Council (The Times, 5 December 2000) ..................... 21.410 Bradford Kendall Foundries Ltd v Ryder (unreported, NSWCA, No 144 of 1985, No 176 of 1986, 4 June 1987) ............................................................................................................................ 13.120 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 .......................................... 30.180, 30.190, 30.430 Bramer v Dotson 437 SE 2d 773 (WVa 1993) ................................................................. 21.70, 28.110 Branchett v Beaney [1992] 3 All ER 910 ........................................................................................ 6.90 Brandon v Commonwealth [2004] FCA 20 ................................................................................... 25.90 Brandon v Osborne, Garrett & Co Ltd [1924] 1 KB 548 ............................................................. 5.170 Braun v Craven 51 NE 657 (Ill 1898) ................................................................................ 1.150, 3.760 Bray v Marathon Corporation 553 SW 2d 477 (SC 2001) ......................................................... 26.360 Breazeal v Henry Mays Newhall Memorial Hospital 286 Cal Rptr 207 (1991) ........................ 10.440 Brennand v Hartung [2012] ACTSC 150 ..................................................................................... 21.400 Breslin v McKenna [2009] NIQB 50 .............................................................................. 30.180, 30.260 Brewer v Hillard 15 SW 3d 1 (Ky 1999) ....................................................................... 30.620, 30.630 Brice v Brown [1984] 1 All ER 997 ...... 4.10, 4.40, 7.410, 7.500, 7.660, 8.140, 8.310, 8.350, 17.50, 17.160, 24.40, 24.180 Brickhill v Cooke [1984] 3 NSWLR 396 ......................................................................... 6.120, 12.350 Bridges v P & NE Murray Ltd [1999] EWCA Civ 2280 .................................................. 3.80, 24.200 Briody v St Helens and Knowsley Health Authority (2000) 53 BMLR 108 .... 5.220, 22.160, 22.180 Briody v St Helens and Knowsley Health Authority [2002] QB 856 ........................................ 22.160 Brittain v Commonwealth [2003] NSWSC 270 .......................................................................... 24.140 Brittain v Commonwealth [2004] NSWCA 83 ............................................................................ 24.140 Brittain v Commonwealth [2005] NSWSC 641 ............................................................. 24.140, 24.150 Broadnax v Gonzalez 809 NE 2d 645 (NY 2004) ...................................................................... 22.640 Brock v Northampton General Hospital NHS Trust [2014] EWHC 4244 .................... 11.650, 22.580 Brodie v Singleton Shire Council (2001) 206 CLR 512 ........................................ 2.490, 7.170, 7.220 Broken Hill City Council v Tiziani (1997) 93 LGERA 113 ......................................................... 6.120 Brook v Cook (1961) 105 SJ 684 .................................................................................................. 5.170 Brooks v Canadian Pacific Railway Ltd (2007) 283 DLR (4th) 540 ...................... 1.170, 4.40, 4.130 Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 ............................... 21.420 Brooks v Decker 516 A 2d 1380 (Pa 1986) ................................................................................ 10.420 Broome v Cassell & Co [1972] AC 1027 ...................................................................................... 6.100 Brown v Cole (1998) 61 BCLR (3d) 1 .......................................................................................... 6.100 Brown v Commonwealth [2000] NSWSC 90 .................................................................. 14.50, 24.150

xxiv Table of Cases Brown Brown Brown Brown Brown Brown Brown

v v v v v v v

Crawford 177 SW 2d 1 (Ky 1943) ............................................................................... 30.620 Glasgow Corporation 1922 SC 527 ................................................................................ 3.560 Heathcote County Council [1986] 1 NZLR 76 .............................................................. 7.140 Hubar (1974) 45 DLR (3d) 664 ......................... 3.340, 7.360, 8.310, 10.80, 11.130, 25.100 John Watson Ltd [1915] AC 1 ............................................................................... 2.30, 19.30 Matheson (1990) 97 NSR (2d) 428 ................................................................................ 9.190 Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133 .......... 20.370, 20.380, 20.460, 20.470, 20.570 Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128 .......... 2.10, 6.200, 11.110, 22.150, 22.160, 22.190, 28.60 Brown v New South Wales [2007] NSWCA 165 ........................................................................ 21.140 Brown v Philadelphia College of Osteopathic Medicine 674 A 2d 1130 (Pa 1996) ................... 3.780 Brown v Smith (1855) 13 CB 596; 138 ER 1333 ......................................................................... 6.100 Brown v Youth Services Intern of South Dakota Inc 89 F Supp 2d 1095 (2000) ..................... 30.630 Brown (Next friend of) v University of Alberta Hospital (1997) 145 DLR (4th) 63 .. 12.110, 12.180, 22.600 Browning v Slenderella Systems of Seattle 341 P 2d 859 (Wash 1959) ...................... 30.620, 30.630 Brownlie v Good Health Wanganui Ltd [2005] NZAR 289 ......................................................... 3.500 Bruce v Rawlins (1770) 3 Wils KB 61; 95 ER 934 ........................................................................ 6.90 Bruneau v Bruneau (1997) 32 BCLR (2d) 317 ............................................. 4.40, 4.130, 5.220, 17.60 Bryan v Maloney (1995) 182 CLR 609 .................................................................. 7.150, 7.160, 27.40 Bryan v Philips New Zealand Ltd [1995] 1 NZLR 632 ......... 6.170, 29.290, 29.300, 29.310, 29.320, 29.680 Bryant v London Fire and Civil Defence Authority (1994) 22 BMLR 124 ................................. 6.110 Buchanan v Stout 108 NYS 38 (1908) ........................................................................................ 27.110 Buckley v Yates Wine Lodges Ltd [2008] EWHC 1408 ............................................................. 17.240 Budget Rent-a-Car Systems Pty Ltd v Van der Kemp (unreported, NSWCA, CA No 7 of 1984, 21 December 1984) .............................................................................................. 11.170, 13.170, 17.80 Buljabasic v Ah Lam (unreported, NSWCA, CA No 40417 of 1996, 3 September 1997) ...... 10.310, 12.40, 12.170, 13.160, 13.170 Bunyan v Jordan (1936) 36 SR (NSW) 350 ............................................................. 8.80, 11.80, 28.60 Bunyan v Jordan (1937) 57 CLR 1 .. 2.30, 7.350, 7.410, 8.340, 15.120, 19.50, 20.60, 20.80, 20.100, 20.160, 28.60, 30.80, 30.130, 30.220, 30.420, 30.460 Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992) ............. 3.790, 10.430, 11.110, 18.210, 18.220, 18.230, 22.640 Burk v Commonwealth [2008] VSCA 29 ...................................................................................... 5.220 Burk v Sage Products Inc 747 F Supp 285 (1990) ..................................................................... 29.720 Burke v New South Wales [2004] NSWSC 725 ................................................. 2.390, 13.300, 13.310 Burke v Pan American World Airways Inc 484 F Supp 850 (1980) ............................... 9.220, 11.550 Burnett v Al Baraka Investment and Development Corporation 274 F Supp 2d 86 (2003) .... 11.860, 30.650 Burnett v George [1992] 1 FLR 525 .............................................................................. 30.100, 30.120 Burnett v St Jude Medical Inc 2009 BCSC 1651 .............................................................. 5.220, 17.40 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ......................................... 7.150 Burns v Boots UK Ltd [2011] CSOH 182 ..................................................................................... 3.580 Burns v Edman [1970] 2 QB 541 ................................................................................................ 16.220 Burris v Adazani [1996] 1 FLR 266 ............................................................................................ 30.120 Burrus v Grange Mutual Companies 545 NE 2d 83 (Ohio 1989) .............................................. 11.550 Burton v Vancouver/Richmond Health [2003] BCPC 440 ............................................................ 27.80 Butchart v Home Office [2006] 1 WLR 1155 ............................................................................. 21.450 Butcher v Motor Accidents Board (1984) Victorian Motor Accidents Cases 72-026 .. 10.350, 11.130, 13.250 Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84 ... 30.170, 30.210, 30.300, 30.390 Butterfield v Forrester (1809) 11 East 60; 103 ER 926 ................................................................ 16.30 Butterworth v Butterworth [1920] P 126 ....................................................................................... 6.100 Buxbaum (Litigation guardian of) v Buxbaum [1997] OJ No 5166 ................ 30.170, 30.230, 30.270

Table of Cases xxv Byrne v Great Southern & Western Railway Co (unreported, Irish CA, February 1884) . 2.30, 3.640, 18.20

C C v D [2006] EWHC 166 ............................................................................................... 30.110, 30.190 C v Flintshire County Council [2001] PIQR Q9 ............................................................ 17.260, 21.260 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 ....................... 13.390 CBS Songs v Amstrad plc [1988] AC 1013 .................................................................................. 7.140 CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 ..... 3.220, 3.760, 4.40, 7.410, 7.440, 12.310, 29.150, 29.190, 29.200, 29.210, 29.400, 29.510, 29.660, 29.680 CLM v Accident Compensation Corporation [2006] 3 NZLR 127 .............................................. 3.510 CLT v Connon (2000) 77 SASR 449 ........................................................................................... 21.310 CSR Ltd v Della Maddalena (2006) 80 ALJR 458 ........................................................ 29.220, 29.270 CSR Ltd v Thompson (2003) 59 NSWLR 77 ............................ 4.70, 29.220, 29.260, 29.270, 29.750 CSX Transportation Inc v Hensley 129 SCt 2139 (2009) ........................................................... 29.750 Cabaness v Thomas 232 P 3d 486 (Utah 2010) .......................................................................... 30.630 Cabone v Melba Ice Cream Co 423 So 2d 739 (La 1982) ......................................................... 10.420 Cady v Anderson [1992] BCJ No 2555 .................................... 6.260, 15.170, 15.190, 15.230, 15.240 Calascione v Dixon (1993) 19 BMLR 97 ........................................................... 10.30, 10.370, 12.100 Caledonia North Sea Ltd v British Telecommunications plc [2002] 1 Lloyds Rep 553 ............. 24.70 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 ............................................................... 7.710 Calleon v Miyagi 876 P 2d 1278 (Haw 1994) .............................................................................. 6.160 Caltex Oil (Australia) Pty Ltd v Dredge “Willemstad” (1976) 136 CLR 529 ............................. 7.160 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 ............................................... 7.220 Calveley v Chief Constable of Merseyside Police [1989] AC 1228 ................................. 4.40, 21.420 Cameron v Marcaccini (1978) 87 DLR (3d) 442 ................. 3.340, 4.50, 7.410, 9.150, 12.180, 17.40 Cameron v Pepin 610 A 2d 279 (Me 1992) ................................................................................ 10.420 Cameron v Qantas Airways Ltd (1995) 55 FCR 147 ...................................................................... 6.40 Campbell v Animal Quarantine Station 632 P 2d 1066 (Haw 1981) ............................ 11.690, 27.110 Campbell v James Henderson Ltd 1915 1 SLT 419 ............................................................ 2.30, 3.560 Campbell v MGN Ltd [2004] 2 AC 457 .......................................................................... 6.140, 30.710 Campbell v Mirror Group Newspapers [2002] EWHC 499 .......................................................... 6.140 Campbell v North Lanarkshire Council [1999] ScotCS 163 ................... 3.160, 3.580, 24.250, 25.210 Campbell v State Farm Mutual Automobile Insurance Co 65 P 3d 1134 (Utah 2001) ............ 30.620, 30.630 Campbell v Wellfund Auto-Visual Ltd (1995) 14 CCEL (2d) 240 ............................... 30.210, 30.220 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 ...... 2.130, 4.10, 6.120, 6.130, 6.150, 6.160, 8.350, 12.200, 12.210, 12.220, 12.230, 12.250, 12.350, 12.360, 12.410, 17.200, 22.230, 27.40, 27.120 Camper v Minor 915 SW 2d 437 (Tenn 1996) ................................................................ 6.160, 15.270 Canada Atlantic Railway Co v Henderson (1899) 29 SCR 632 ..................................................... 2.10 Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 .................. 7.180 Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1986] AC 1 ....................... 7.140 Cant v Cant (1984) 49 OR (2d) 25 .............................................................................................. 30.160 Caparco v Lambert 402 A 2d 1180 (RI 1979) ............................................................................. 16.220 Caparo Industries plc v Dickman [1990] 2 AC 605 ............ 7.140, 7.180, 7.190, 7.200, 7.250, 7.270, 11.510, 15.170, 28.150, 29.550 Carangelo v New South Wales (2015) Aust Torts Rep 82-225 ..................................... 20.480, 20.580 Carberry v Davies [1968] 1 WLR 1103 ......................................................................................... 16.70 Carey v Lovitt 622 A 2d 1279 (NJ 1993) ...................................................................... 18.230, 22.630 Carey v United Airlines 255 F 3d 1044 (2001) ............................................................................. 5.460 Carlin v Helical Bar Ltd (1970) 9 KIR 154 ....................................................................... 17.80, 26.60 Carlson v Illinois Farmers Insurance Co 520 NW 2d 534 (Minn 1994) ...................................... 3.770 Carpenter v Land O’Lakes Inc 976 F Supp 968 (1997) ............................................................. 27.110 Carrier v Bonham [2000] QDC 226 ............................................................................................... 5.220

xxvi Table of Cases Carrier v Bonham [2002] 1 Qd R 474 . 2.30, 15.70, 17.160, 30.140, 30.230, 30.550, 30.560, 30.570, 30.580 Carroll v Folpp (unreported, NSWSC, No 225 of 1996, 10 February 1998) ............... 30.340, 30.540 Carroll v Sisters of Saint Francis Health Service Inc 868 SW 2d 585 (Tenn 1993) ................. 29.720 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 ............................................................... 6.100 Carter v Lake Wales Hospital Association 213 So 2d 898 (Fla 1968) .......................... 11.610, 22.740 Carter v Walker (2010) 32 VR 1 .......................................................... 30.150, 30.210, 30.290, 30.460 Cartledge v E Jopling & Sons [1963] AC 758 ............................................................................ 16.260 Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 .. 5.460, 5.470, 5.480, 5.490, 5.500, 23.70, 23.300, 23.310 Casley-Smith v FS Evans (1989) Aust Torts Rep 80-227 ............................................................. 7.140 Castellucci v Battista 847 A 2d 243 ............................................................................................. 30.630 Castro v New York Life Insurance Co 588 NYS 2d 695 (1991) ............................................... 29.740 Catron v Lewis 712 NW 2d 245 (Neb 2006) ................................................................................ 9.490 Cattanach v Abbott’s Packaging Ltd (unreported, Eng CA, 8 May 1989) ..................... 17.50, 25.150 Cauchi v Air Fiji & Air Pacific Ltd [2005] TOSC 8 ................................................................... 23.370 Cauman v George Washington University 630 A 2d 1104 (DC 1993) ......................... 18.220, 22.630 Cavenett v Commonwealth [2005] VSC 333 ................................................................. 24.140, 24.150 Central Trust Co v Rafuse [1986] 2 SCR 147 ............................................................................... 21.30 Cerebos (Australia) Ltd v Koehler [2003] WASCA 322 ....................... 8.200, 20.270, 20.280, 20.460 Chadwick v British Railways Board [1967] 1 WLR 912 ........ 2.50, 2.60, 3.100, 7.410, 7.500, 8.120, 8.370, 10.70, 11.120, 12.60, 17.40, 17.50, 17.150, 25.30, 25.50, 25.60, 25.130, 25.160, 25.210, 25.360, 25.390, 25.400, 25.420, 25.430, 25.460, 25.480 Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185 . 2.290, 2.410, 4.90, 9.240, 11.420, 17.40, 17.230, 22.780 Chamberlain v Chandler 5 Fed Cas No 2,575 (1823) ....................................................... 3.760, 18.40 Chamberlain v State through Department of Transport and Development 624 So 2d 874 (La 1993) ................................................................................................................................. 11.550 Champion v Gray 478 So 2d 17 (Fla 1985) ..................................................................... 3.760, 10.420 Chaparro v Carnival Corporation 693 F 3d 1333 (2012) .............................................................. 3.770 Chapleyn of Greye’s Inn’s Case (1400) YB 2 Hen IV f 8, pl 40 .................................................. 6.80 Chaplin v Hawes (1828) 3 C & P 554; 172 ER 543 .................................................................... 16.70 Chapman v Hearse (1961) 106 CLR 112 ....................................... 7.320, 7.600, 15.90, 16.170, 25.20 Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988) ... 4.40, 5.220, 8.140, 8.300, 10.450, 11.120, 12.220, 17.40 Chapman v Lord Advocate 2006 SLT 186 .................................................................................. 20.710 Chappel v Hart (1998) 195 CLR 232 ............................................................................................ 7.570 Chappetta v Bowman Transport Inc 415 So 2d 1019 (La 1982) .................................................. 6.160 Charlie Stuart Oldsmobile Inc v Smith 357 NE 2d 247 (Ind 1976) ........................................... 27.110 Chase, Re [1989] 1 NZLR 325 ...................................................................................................... 3.460 Chau v Delta Air Lines Inc 2003 CanLII 41999 ......................................................................... 23.270 Chaychuk v Best Cleaners & Contractors Ltd [1995] BCJ No 1203 ......................................... 30.210 Chedester v Stecker 643 P 2d 532 (Haw 1982) ............................................................................ 6.160 Chelini v Nieri 196 P 2d 915 (Cal 1948) ...................................................................................... 6.160 Chen v Superior Court (Prudential Homes Corporation) 62 Cal Rptr 2d 526 (1997) ............... 10.440 Cherry (Guardian) v Borsmann (1991) 75 DLR (4th) 668 ............................................ 11.110, 22.600 Chester v Mustang Manufacturing Co 998 F Supp 1039 (1998) ................................................ 10.440 Chester v Waverley Corporation (1939) 62 CLR 1 .......... 1.20, 2.30, 2.50, 2.370, 2.430, 3.90, 7.350, 7.410, 7.630, 8.280, 8.310, 10.40, 11.80, 11.610, 12.30, 13.30, 13.100, 16.60, 19.50, 20.100, 25.220 Chiaverini v Hockey (1993) Aust Torts Rep 81-223 ....... 10.310, 11.120, 12.40, 12.50, 13.30, 13.50, 13.80, 13.150, 13.160, 22.270 Chief Adjudication Officer v Faulds [2000] 1 WLR 1035 ............................................................ 20.30 Chief Constable of Northumbria v Costello [1998] EWCA Civ 4700 ....................................... 19.330 Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28 ........ 3.80, 3.170, 5.220, 19.330, 24.240 Childs v Lewis (1924) 40 TLR 870 ................................................................................................. 6.80 Chiles v Chiles 779 SW 2d 127 (Tex 1989) ................................................................................ 30.650

Table of Cases xxvii Chiuchiolo v New England Wholesale Tailors 150 A 540 (NH 1930) ......................................... 3.760 Chizmar v Mackie 896 P 2d 196 (Alaska 1995) ..................................... 6.160, 21.70, 28.110, 29.480 Chouinard v Health Ventures 39 P 3d 951 (Ore 2002) ................................................................. 3.760 Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991) . 6.160, 11.880, 18.230, 30.620, 30.630, 30.640 Christian v Shelft (Cal SC, No C57 4153, 17 February 1989) ................................................... 29.720 Christians v Christians 637 NW 2d 377 (SD 2001) .................................................................... 30.650 Christie v Davey [1893] 1 Ch 316 ................................................................................................... 6.90 Christos v Curtin University of Technology (No 2) [2015] WASC 72 ......................... 19.220, 20.420 Christy Bros Circus v Turnage 144 SE 680 (Ga 1928) ................................................................ 3.760 Chu Siu Kuk Yuen v Apple Daily Ltd [2001] HKCFI 1382 ........................................................ 6.100 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Rep 80-101 ................................................................................... 30.140, 30.230 Churchill v Motor Accidents Insurance Board (unreported, Tas SC, No M 166 of 1993, 2 December 1993) ........................................................................................................................... 15.100, 15.140 Cipri v Famelli (unreported, NSWSC, No 13802 of 1989, 16 December 1993) .......... 10.350, 13.50, 13.170 Citizen Publishing Co v Miller 115 P 3d 107 (Ariz 2005) ......................................................... 30.620 City of Austin v Davis 693 SW 2d 31 (Tex 1985) ..................................................................... 10.420 City of Kamloops v Nielsen [1984] 2 SCR 2 ................................................................................ 7.180 City of Tucson v Wondergem 466 P 2d 383 (Ariz 1970) ............................................................. 3.760 Clark v Associated Retail Credit Men 105 F 2d 62 (1939) ........................................................ 30.620 Clark v Canada (TD) [1994] 3 FC 323 .......................................................................... 30.170, 30.210 Clark v Chief Constable of Essex Police [2006] EWHC 2290 ..................................... 20.800, 20.830 Clark v Choctawhatchee Electric Co-op 107 So 2d 609 (Fla 1958) ............................................ 3.760 Clark v Commonwealth (1992) Aust Torts Rep 81-171 .................................................... 1.190, 5.220 Clark v Commonwealth [1994] 2 VR 333 ................................................................................... 24.140 Clark v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R 26 ............................................................................................................................................. 21.200 Clark v Rice 653 NW 2d 166 (Iowa 2002) ................................................................................. 15.310 Clark v Rocky View No 44 (Municipal District) (1996) 183 AR 321 .......................... 30.170, 30.210 Clark v Scotiabank 2004 CanLII 34338 ...................................................................................... 21.160 Clark v Scottish Power plc 1994 SCLR 202 .................................................................. 17.170, 21.490 Clarke v McFadyen 1989 SCLR 792 .................................................................................... 4.40, 7.670 Clarke v Shire of Gisborne [1984] VR 971 ....................................................................... 6.120, 7.140 Clavel v Savage [2004] NSWSC 292 .......................................................................................... 30.270 Clavel v Savage (No 2) [2014] NSWSC 463 .............................................................................. 30.150 Clay v A J Crump & Sons Ltd [1964] 1 QB 533 ......................................................................... 7.120 Cleary v Congregation of the Sisters of the Holy Family at Nazareth (unreported, Qld SC, No 1066 of 1995, 23 December 1996) ................................................................ 3.230, 5.220, 7.570, 19.120 Clemance v Hollis [1987] 2 NZLR 471 ........................................................................................ 3.460 Cleveland CC & St L Rail Co v Stewart 56 NE 917 (Ind 1899) ................................................. 3.760 Clifford v Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 ..................... 6.100 Clifford v Dove [2006] NSWSC 314 ............................................................................................... 6.90 Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 .......... 3.550, 3.760, 8.270, 11.610, 21.10, 22.720, 22.740 Clohessy v Bachelor 675 A 2d 852 (Conn 1996) ............................................... 3.790, 10.440, 22.630 Clomon v Monroe City School Board 572 So 2d 571 (La 1990) .................... 13.580, 13.610, 18.220 Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 ........ 2.130, 4.20, 4.40, 4.50, 4.130, 4.140, 6.220, 11.200, 11.250, 11.260, 11.270, 11.290, 11.310, 11.650, 11.660, 11.680, 12.420, 13.50, 13.80, 13.110, 13.130, 13.170, 22.260 Coca-Cola Bottling Co v Hagan 813 So 2d 167 (Fla 2002) ....................................................... 29.740 Cochrane v Accident Compensation Corporation [1994] NZAR 6 .............................................. 3.460 Cockatoo Dockyard Pty Ltd v Gifford [2008] NSWCA 162 ........................................................ 6.110 Cogan v Accident Compensation Corporation [1990] NZAR 145 ............................................... 3.460 Cohen v City of Perth [2000] WASC 306 ....................................................................................... 6.90 Cohen v McDonnell Douglas Corporation 450 NE 2d 581 (Mass 1983) .................................. 11.680

xxviii

Table of Cases

Cohen v Nu-Vasive Inc 79 Cal Rptr 3d 759 (2008) ........................................................ 6.160, 18.230 Cohen v Wilder [1996] BCJ No 856 .............................................................................. 30.170, 30.210 Cohn v Ansonia Realty Co 148 NYS 39 (1914) ........................................................................... 5.170 Colbert v Moomba Sports Inc 176 P 3d 497 (Wash 2008) ......................................................... 10.440 Cole v Prairie Centre Credit Union Ltd 2007 SKQB 330 .......................................................... 21.160 Cole v Turner (1704) Holt KB 108; 90 ER 958 .............................................................................. 6.80 Coleson v City of New York 24 NE 3d 1074 (NY 2014) ............................................................ 3.770 Collins v First Quench Retailing Ltd 2003 SLT 1220 ................................................... 19.400, 19.410 Collins v Star Ferry Co Ltd [2001] HKEC 487 .......................................................................... 24.250 Columbia Picture Industries Inc v Robinson [1987] Ch 38 ............................................................ 6.90 Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 19 AAR 1 .......................................................................................................... 20.30 Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274 ............................................. 7.120 Commissioner of Railways v Stewart (1936) 56 CLR 520 ........................................................ 16.260 Commissioners for Public Works v Swaine [2003] 1 IR 521 ..................................................... 29.320 Commissioners of Public Works v Brewer [2003] IESC 51 ....................................................... 29.320 Commonwealth v Dinnison (1995) 56 FCR 389 ................................... 13.50, 16.290, 24.130, 29.620 Commonwealth v McLean (1996) 41 NSWLR 389 .............................. 8.280, 24.140, 24.180, 24.270 Commonwealth v Mewett (1997) 191 CLR 471 ............................................................ 19.140, 24.140 Commonwealth v Mewett (2003) 200 ALR 679 ........................................................................... 8.200 Commonwealth v Ryan [2002] NSWCA 372 ................................................................. 24.140, 24.150 Commonwealth v Shaw (2006) 66 NSWLR 325 ........................................................................ 24.150 Commonwealth v Smith [2005] NSWCA 478 ............................................................... 16.290, 24.140 Commonwealth v Smith [2007] NSWCA 168 ............................................................................. 24.140 Commonwealth v Stankowski [2005] NSWCA 106 .................................................................... 24.140 Commonwealth v Verwayen (1990) 170 CLR 394 ..................................................................... 24.140 Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 ............................................ 20.390 Comstock v Wilson 177 NE 431 (NY 1931) ................................................................................. 3.760 Conley v Roman Catholic Archbishop of San Francisco 102 Cal Rptr 2d 679 (2000) ............. 30.650 Conley v Romeri 806 NE 2d 933 (Mass 2004) ............................................................................... 5.60 Conlin v William Denny & Bros Ltd 1959 SLT (Notes) 36 ......................................................... 24.40 Connelly v Tasker [2001] QB 272 ................................................................................................. 6.110 Connor v Castle Cement [2016] EWHC 300 .................................................................................. 4.40 Connor v Surrey County Council [2011] QB 429 ......................................................... 20.660, 20.830 Consolidated Rail Corporation v Gottshall 129 L Ed 2d 427 (1994) ........................................... 3.770 Consolidated Rail Corporation v Gottshall 512 US 532 (1994) .......................... 3.770, 7.710, 29.750 Consolidated Traction Co v Lambertson 36 A 100 (NJ 1896) ...................................................... 3.760 Constantino ex rel Constantino v Avery Center for Obstetrics and Gynecology PC 32 F Supp 2d 506 (1998) ............................................................................................................................... 18.230 Consumers’ Gas v Peterborough (1979) 104 DLR (3d) 174 ........................................... 10.80, 25.100 Consumers’ Gas v Peterborough [1981] 2 SCR 613 ....................................................... 10.80, 25.100 Conway v Dalziel (1901) 3 F 918 ................................................................................................ 30.720 Cook v Cook (1986) 162 CLR 376 ................................................................................................ 7.150 Cook v General Cable Corporation 728 F Supp 38 (1989) ........................................................ 11.180 Cook v Swinfen [1967] 1 WLR 457 .................................................................................. 8.120, 21.30 Cooper v Caledonian Railway Co (1902) 4 F 880 .............................................................. 2.30, 3.560 Cooper v Hobart [2001] 3 SCR 537 .............................................................................................. 7.180 Corbett v Ireland (Attorney General) [2008] 1 IR 495 ............................................................... 20.720 Corgan v Muehling 574 NE 2d 602 (Ill 1991) .......................................... 6.160, 8.80, 18.240, 21.140 Corporation of the City of Woodville v Balassone [1968] SASR 147 ......................................... 8.330 Corr v Harrods Ltd [1999] EWCA Civ 2381 .................................................................................. 6.80 Corr v IBC Vehicles Ltd [2006] PIQR P11 ................................................................................... 3.220 Corr v IBC Vehicles Ltd [2007] QB 46 .................................................................... 3.80, 3.220, 7.710 Corr v IBC Vehicles Ltd [2008] AC 884 .......................................................................... 3.220, 19.380 Correia v Canac Kitchens (2008) 294 DLR (4th) 525 ..................................... 30.170, 30.210, 30.380 Costi v Minister of Education (1973) 5 SASR 328 ........................................................................ 6.80 Cote v Litawa 71 A 2d 792 (NH 1950) ....................................................................................... 10.290

Table of Cases xxix Coultas v Victorian Railways Commissioners (1886) 12 VLR 895 .................................... 2.10, 17.40 Courtney v Our Lady’s Hospital Ltd [2011] 2 IR 786 .................................................... 12.120, 17.40 Cousins v Nimvale Pty Ltd [2013] WADC 175 .......................................................................... 23.340 Covello v Weis Markets Inc 610 A 2d 50 (Pa 1992) .................................................................... 9.450 Covington-Thomas v Commonwealth [2007] NSWSC 779 ........ 5.220, 17.40, 24.140, 24.150, 25.90 Cowie v London, Midland & Scottish Railway Co 1934 SC 433 ................................................ 3.560 Cowley v Mersey Regional Ambulance NHS Trust [2001] 9 CL 161 ....................................... 20.130 Cox v Delaware Electric Cooperative Inc 823 F Supp 241 (Del 1993) ..................................... 10.440 Cox v Fleming (1993) 13 CCLT (2d) 305 ............................................................ 6.270, 7.560, 10.310 Cox v Fleming (1995) 15 BCLR (3d) 201 ....................................................................... 6.270, 10.310 Cox v McIntosh [1992] CLY 1523 ....................................................................................... 6.90, 27.10 Cox v Moore 805 So 2d 277 (La 2001) ......................................................................... 11.100, 13.600 Cox v New South Wales (2007) 71 NSWLR 225; (2007) Aust Torts Rep 81-888 ........... 2.290, 4.90, 17.40, 21.400 Coyle v John Watson Ltd [1915] AC 1 ......................................................................................... 5.370 Coyne v Commercial Equity Corporation Ltd (1998) 20 WAR 109 .......................................... 30.140 Craig v Driscoll 781 A 2d 440 (Conn 2001) ............................................................................... 10.440 Cran v New South Wales (2004) 62 NSWLR 95 ........................................................................ 21.420 Crenshaw v Sarasota County Public Hospital Board 466 So 2d 427 (Fla 1985) ......... 10.420, 22.630 Creydt-Ridgeway v Hoppent 1930 TPD 664 ................................................................................... 1.30 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ........... 7.170, 7.210, 7.220 Crocker v British Coal Corporation (1995) 29 BMLR 159 ................................................. 3.20, 9.210 Crocker v P & O European Ferries (Dover) Ltd (unreported, Eng QBD, 3 December 1990) . 10.130, 11.500 Crockett v Cardona 713 So 2d 802 (La 1998) ............................................................................ 13.600 Croft by Croft v Wicker 737 P 2d 789 (Alaska 1987) ................................................................ 30.640 Crombie v Uniting Church in Australia Property Trust (WA) (1996) 17 WAR 291 ................... 20.30 Cross v Highlands and Islands Enterprise 2001 SLT 1060 ........ 3.580, 12.290, 17.40, 19.340, 20.690 Crowley v North American Telecommunications Association 691 A 2d 1169 (DC 1997) ........ 30.630 Crump v Equine Nutrition Systems Pty Ltd [2006] NSWSC 512 ................................................ 27.40 Crump v Sharah [1999] NSWSC 884 .......................................................................................... 17.200 Cubbon v Roads and Traffic Authority of New South Wales (2004) Aust Torts Rep 81-761 .... 9.380, 11.390 Cubillo v Commonwealth (1999) 89 FCR 528 ............................................................................ 21.350 Cubillo v Commonwealth (2000) 103 FCR 1 .............................................................................. 21.350 Cubillo v Commonwealth (2001) 112 FCR 455 .......................................................................... 21.350 Cuddy v Mays [2003] IEHC 103 ................................................................................................... 9.160 Culbert v Sampson’s Supermarkets Inc 444 A 2d 433 (Me 1982) ...................................... 6.160, 8.70 Cullin v London Fire and Civil Defence Authority [1999] PIQR P314 ..................................... 25.460 Cumming v New South Wales [2008] NSWSC 690 ................................................................... 21.420 Cummings v Croydon Health Authority (unreported, Eng QBD, 24 March 1998) ................... 22.180 Curbean v Kibel 784 NYS 2d 518 (2004) ................................................................................... 27.110 Curcio v Chinn Enterprises Inc 887 F Supp 190 (1995) ............................................................ 30.630 Curll v Robin Hood Multifoods Ltd (1974) 56 DLR (3d) 129 .................................................. 21.170 Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 ............ 1.180, 3.650, 3.680, 4.70, 4.130, 7.410, 12.290, 19.440, 20.720, 26.320, 26.330 Curran v Greater Taree City Council (1992) Aust Torts Rep 81-152 ........................................... 7.140 Curran v Northern Ireland Housing Co-ownership Association Ltd [1987] AC 718 ................... 7.140 Curran v Young (1965) 112 CLR 99 ............................................................................................ 16.170 Currie v Wardrop 1927 SC 538 ........................................................ 3.560, 9.190, 9.290, 9.460, 17.40 Curry v Secretary of State [1991] 11 NIJB 12 ............................................................................ 11.580 Cusack v Stayt (2000) 31 MVR 517 .............................................................................. 30.340, 30.540 Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 ................................. 7.200 Cutler v Bank of America National Trust and Savings Association 441 F Supp 863 (1977) ... 30.660 Czatyrko v Edith Cowan University (2005) 79 ALJR 839 ............................................ 19.210, 20.380

xxx Table of Cases

D D D D D

v v v v

East Berkshire Community Health NHS Trust [2005] 2 AC 373 ............... 7.180, 21.270, 21.320 East Berkshire Community NHS Trust [2003] Lloyd’s Rep Med 9 ................................... 21.270 East Berkshire Community NHS Trust [2004] QB 558 ............................ 21.270, 21.320, 21.380 National Society for the Prevention of Cruelty to Children [1978] AC 171 ............ 28.20, 28.90, 30.100, 30.420 D(B) v Halton Region Children’s Aid Society [2007] 3 SCR 83 .............................................. 21.310 D & F Estates Ltd v Church Commissioners for England [1989] AC 177 ...................... 7.140, 27.40 DJ v Trustees of the Christian Brothers (unreported, NSWSC, No 17814 of 1993, 15 December 1994) ........................................................................................................................................ 21.210 DPP v Smith [1961] AC 290 ........................................................................................... 30.490, 30.520 Daddon v Air France (1984) 1 S & B Av R VII/141 .............. 23.40, 23.130, 23.140, 23.250, 23.260 Dahlin v Evangelical Child & Family Agency 2002 WL 31557625 .......................................... 18.230 Daigrepont v Louisiana State Racing Commission 663 So 2d 840 (La 1994) ............. 11.880, 13.600 Dalton v Wright Hassall (a firm) 2000 WL 33281258 .................................................................. 21.40 Daly v Commissioner of Railways (1906) 8 WALR 125 ....................................... 2.10, 18.30, 18.250 Daly v La Croix 179 NW 2d 390 (Mich 1970) ............................................................................ 3.760 Daly v Mulhern [2008] 2 IR 1 ..................................................................................................... 17.210 Danchilla v McNeill Sunset Service Ltd [1988] BCJ No 2093 .................................................. 21.190 Dandashli v Dandashli [2000] NSWCA 273 ............................................................................... 13.230 Daniel v Secretary of State for the Department of Health [2014] EWHC 2578 ....................... 20.660 Danovic v Wagner 2014 ONSC 2664 ............................................................................. 30.170, 30.210 Darley Main Colliery Co v Mitchell (1886) 11 App Case 127 .................................................. 29.230 Davie v New Merton Board Mills Ltd [1959] AC 604 ............................................................... 16.260 Davies v Bennison (1927) 22 Tas LR 52 ....................................................................................... 27.10 Davies v Mann (1842) 10 M & W 546; 152 ER 588 ................................................................... 16.30 Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 ......................................................... 16.40 Davis v Jacobs [1999] EWCA Civ 911 ......................................................................................... 21.70 Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606 ......................................................... 6.100 Davis v Radcliffe [1990] 1 WLR 821 ............................................................................................ 7.140 Davis v Scott (1998) 76 SASR 361 ........................................................... 10.30, 12.40, 12.170, 17.90 Davis v Tacoma R & P Co 77 P 209 (Wash 1904) ....................................................................... 18.40 Davis (Litigation guardian of) v McFarlane [1997] OJ No 6137 ................................................. 9.150 Daw v Intel Corporation UK Ltd [2007] 2 All ER 126; [2007] EWCA Civ 70 ........... 17.40, 20.680, 20.790 Dawe v BC Children’s Hospital [2003] BCSC 443 .................................................................... 28.240 Dawson v Garcia 666 SW 2d 254 (Tex 1984) .............................................................................. 16.90 De Franceschi v Storrier (1988) 85 ACTR 1 .......... 4.10, 4.40, 10.450, 11.120, 12.370, 13.50, 17.40, 17.100 De Freville v Dill (1927) 96 LJKB 1056 ...................................................................................... 28.20 De Los Santos v Saddlehill Inc 511 A 2d 721 (NJ 1986) ........................................................... 11.550 De Reus v Gray (2003) 9 VR 432 ............................................................................................... 21.430 De Wolf v Ford 86 NE 527 (NY 1908) ......................................................................................... 18.40 DeBoyrie v Drenth [1982] OJ No 869 ........................................................................................... 9.130 Deadman v Bristol City Council [2007] EWCA Civ 822 ........................................................... 20.660 Deboe v Horn 94 Cal Rptr 77 (1971) .......................................................................................... 10.430 Dechant v Law Society of Alberta (2010) 406 AR 4 .................................................................. 30.170 Deep Vein Thrombosis and Air Travel Group Litigation, Re [2006] 1 AC 495 ............. 23.70, 23.230 Delaney v FS Evans & Sons Pty Ltd (1984) 58 LGRA 395 ........................................................ 6.120 Delaney v Leighton Interlink [2000] NSWCA 151 ..................................................................... 13.170 Delfino v Agilent Technologies Inc 52 Cal Rptr 3d 376 (2006) ................................... 30.620, 30.630 Department of Education v Unsworth [2010] VSCA 77 ............................................................... 20.30 Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217 ................................... 7.540 Department of the Environment v Thomas Bates & Son Ltd [1991] 1 AC 499 .............. 7.140, 27.40 Deros v McCauley (2011) 84 CCLT (3d) 324 ..................................................................... 3.430, 8.70 Destefano v Grabrian 763 P 2d 275 (Col 1988) .......................................................................... 30.640

Table of Cases xxxi Detroit Automobile Inter-Insurance Exchange v McMillan 406 NW 2d 232 (Mich 1987) ....... 10.420 Deutsch v Schein 597 SW 2d 141 (Ky 1980) ............................................................................... 3.760 Devereux v Allstate Insurance Co 557 So 2d 1091 (La 1990) ...................................... 15.280, 15.290 Devine v Colvilles Ltd 1969 SC 67 ............................................................................................... 5.170 Devji v Burnaby (District) (1998) 158 DLR (4th) 747 ............................................................... 11.520 Devji v Burnaby (District) (1999) 180 DLR (4th) 205 .. 1.80, 1.170, 1.180, 3.350, 4.10, 4.40, 5.220, 7.410, 8.70, 10.350, 11.520, 11.530, 15.240, 24.280, 25.130 Devji v Burnaby (District) (2000) 260 NR 393 ............................................................................ 3.350 Devlin v National Maternity Hospital [2008] 2 IR 222 ................................................... 3.670, 12.120 Deyong v Shenburn [1946] KB 227 .............................................................................................. 7.120 Dhillon v Jaffer 2014 BCCA 215 ................................................................................................... 6.410 Diakogiorgic v Anastasas (unreported, Qld SC, No 179 of 1972, 4 November 1974) ..... 4.50, 10.30, 11.110 Dickens v Puryear 276 SE 2d 325 (NC 1981) ............................................................................ 30.630 Dickie v Flexcon Glenrothes Ltd [2009] Scot CS 143 ................................................................. 17.40 Dickins v O2 plc [2008] EWCA Civ 1144 ....................................................... 20.680, 20.790, 20.820 Dickinson v Jones, Alexander & Co [1993] 2 FLR 521 ..................................................... 8.80, 21.30 Dickson v Creevey [2001] QSC 340 ............................................................................................ 20.410 Dickson v Waldron 34 NE 506 (Ind 1893) .................................................................................... 18.40 Dierker v Gypsum Transport Ltd 606 F Supp 566 (1985) .......................................................... 19.470 Dietelbach v Public Trustee (1973) 37 DLR (3d) 621 .................................................................. 11.60 Dillon v British Railways Board (unreported, Outer House, 1995 GWD 12-689, 18 January 1995) ....................................................................................................................... 26.60 Dillon v Legg 441 P 2d 912 (Cal 1968) .. 1.220, 3.780, 3.790, 7.250, 9.220, 10.420, 10.430, 10.440, 11.550, 16.90, 16.100, 16.120, 16.180, 18.180, 18.200, 22.700 Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) .............. 5.220, 12.320, 24.130, 29.50, 29.630, 29.640, 29.650 Dingwall v Walter Alexander & Sons (Midland) Ltd 1981 SLT 313 ......................................... 17.190 Dinnison v Commonwealth (unreported, Fed Ct, No NG572 of 1991, 4 March 1994) ............. 12.50, 24.130, 29.50, 29.620, 29.650 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 .................................................. 16.170 District of Columbia v Tulin 994 A 2d 788 (DC 2010) .............................................................. 30.630 Diversified Holdings Ltd v The Queen in right of British Columbia (1982) 143 DLR (3d) 529 ......................................................................................................... 7.140 Dixon v Nova Scotia (Criminal Injuries Compensation Board) (1988) 52 DLR (4th) 335 ..... 11.590, 11.900 Dixon v Smith (1860) 5 H & N 450; 157 ER 1257 ..................................................................... 6.100 Dobler v Halvorsen [2006] NSWSC 1307 ................................................................................... 10.160 Dobler v Halvorsen [2007] NSWCA 335 .................................................................................... 22.280 Dobran v Franciscan Medical Center 806 NE 2d 537 (Ohio 2004) ........................................... 29.720 Doe v Arts 823 A 2d 855 (NJ 2003) ............................................................................................ 28.110 Doe v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints 167 P 3d 1193 (Wash 2007) ...................................................................................................... 30.630, 30.650 Doe v Cuomo 649 A 2d 266 (Conn 1994) .................................................................................. 21.300 Doe v Roe 598 NYS 2d 678 (1993) ............................................................................................ 30.650 Doe v Surgicare of Joliet Inc 643 NE 2d 1200 (Ill 1994) .......................................................... 29.720 Doe v United Airlines Inc 73 Cal Rptr 3d 541 (2008) ................................................................. 5.460 Doe v Woodbridge Nursing Pavillion (unreported, Cook County Circuit, Ill, 15 January 1992) ..................................................................................................................... 21.220 Doe Parents No 1 v State Department of Education 58 P 3d 545 (Haw 2002) ......................... 18.240 Doherty v New South Wales [2010] NSWSC 450 ...... 5.220, 8.300, 17.230, 20.380, 20.520, 20.550, 20.580 Donachie v Chief Constable of the Greater Manchester Police [2004] EWCA Civ 405 ............ 3.180 Donald v Amoco Production Co 735 So 2d 161 (Miss 1999) .................................................... 30.650 Donaldson v Scottish Ministers 2009 SLT 240 .............................................................. 20.710, 20.830 Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 .................. 8.330, 8.360 Donnelly v Joyce [1974] QB 454 ................................................................................................ 12.150

xxxii

Table of Cases

Donoghue v Stevenson [1932] AC 562 ........ 2.190, 3.370, 3.420, 7.110, 7.120, 7.750, 9.110, 11.380, 21.170, 28.90, 28.210 Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 ........ 2.50, 2.60, 3.100, 7.240, 7.360, 7.410, 8.120, 12.60, 14.60, 17.160, 19.250, 19.260, 25.60, 26.10, 26.20, 26.30, 26.40, 26.50, 26.60, 26.80, 26.90, 26.100, 26.120, 26.190, 26.220, 26.280, 26.290, 26.340, 26.370 Dorset Yacht Co Ltd v Home Office [1969] 2 QB 412 ................................................................ 7.160 Doucette v Eastern Region Integrated Health Authority 2007 NLTD 138 ................................. 29.580 Doughty v North Staffordshire Health Authority [1992] 3 Med LR 81 ....................................... 21.70 Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518 ........................................................ 7.600 Douglas v Hello! Ltd [2001] QB 967 .......................................................................................... 30.710 Douglas v Hello (No 3) [2008] AC 1 ............................................................................................ 6.140 Douglas v Tasmania [2004] TASSC 131 ..................................................................................... 22.770 Doulis v Victoria (2014) Aust Torts Rep 82-177 ....... 17.40, 17.270, 20.370, 20.390, 20.440, 20.470, 20.480, 20.540, 20.790 Doyle v Pick [1965] WAR 95 ........................................................................................................ 16.70 Drane v Evangelou [1978] 1 WLR 455 ........................................................................................... 6.90 Drew v Drake 168 Cal Rptr 65 (1980) .......................................................................................... 9.220 Drinkwater v Kimber [1952] 2 QB 281 ......................................................................................... 16.70 Dube (Litigation guardian of) v Penlon (1994) 21 CCLT (2d) 268 ...................................................... Ducharme v Davies [1984] 1 WWR 699 ....................................................................................... 16.70 Duddin v Home Office [2004] EWCA Civ 181 .......................................................................... 22.760 Dulieu v White & Sons [1901] 2 KB 669 . 2.30, 2.40, 3.100, 3.770, 4.60, 6.450, 7.400, 7.730, 8.70, 8.280, 9.40, 9.190, 10.30, 12.60, 12.300, 13.70, 15.110, 16.50, 16.200, 18.10, 18.50, 18.180, 19.20, 24.10, 24.30, 24.40, 24.50, 24.60, 24.80, 24.120, 24.130, 24.160, 24.200, 24.210, 24.220, 24.230, 26.70, 27.10, 28.90, 29.20, 29.90, 30.60, 30.370, 30.410, 30.500 Duncan v British Coal Corporation [1997] 1 All ER 540 .................. 10.290, 19.310, 22.140, 25.400 Duncan v Donnell 12 SW 2d 811 (Tex 1928) ............................................................................. 30.320 Dunlop v Woollahra Municipal Council [1982] AC 158 .............................................................. 30.50 Dunn v Commonwealth (unreported, NSWSC, Nos 13409, 13393 and 13395 of 1993, 15 December 1994) ............................................................................................................................. 12.40, 24.140 Dunn v Gentry 653 So 2d 783 (La 1995) .................................................................................... 10.440 Dunn v Western Union Telegraph Co 59 SE 189 (Ga 1907) ........................................................ 18.40 Dunnett v Railtrack plc [2002] EWCA Civ 302 ............................................................................ 27.30 Dunphy v Gregor 642 A 2d 372 (NJ 1994) ................................................................................... 9.220 Duplessis v Canada (unreported, Fed Ct, Docket T-294-00, 17 November 2000) ..................... 20.720 Duran v Detroit News Inc 504 NW 2d 715 (Mich 1993) ........................................................... 28.110 Durban v Guajardo 79 SW 3d 198 (Tex 2002) ........................................................................... 30.650 Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 .................................... 7.140, 7.160 Duty v General Finance Co 273 SW 2d 64 (Tex 1954) ............................................................. 30.630 Duval v Seguin (1972) 26 DLR (3d) 418 .................................................................................... 16.170 Duval v Seguin (1973) 40 DLR (3d) 666 ........................................................................ 7.370, 16.170 Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 105 ........................................... 6.130, 21.40 Duvall v Godfrey Virtue & Co (a firm) (unreported, WASC, CIV 1758 of 1996, 18 September 1996) ............................................................................................................................... 6.130, 21.40 Duwyn v Kaprielian (1978) 94 DLR (3d) 424 .. 3.340, 4.40, 4.50, 6.380, 7.360, 7.410, 7.630, 8.120, 8.130, 9.130, 10.80, 15.60 Dwyer v Dwyer (1969) 90 WN (Pt 2) (NSW) 86 ........................................................... 15.30, 15.170 Dziokonski v Babineau 380 NE 2d 1295 (Mass 1978) ................................................................. 3.760

E E v Accident Compensation Corporation [1991] NZAR 116 ....................................................... 3.460 E v K [1995] 2 NZLR 239 .............................................................................................. 21.120, 21.250 Eagle-Picher Industries Inc v Cox 481 So 2d 517 (Fla 1985) .................................................... 29.690 Eastern Airlines Inc v Floyd 111 S Ct 1489 (1991) ............................................... 5.420, 5.450, 6.180 Eastern Airlines Inc v Floyd 499 US 530 (1991) ...... 23.40, 23.130, 23.140, 23.150, 23.160, 23.170, 23.190, 23.210, 23.220, 23.230, 23.250, 23.270, 23.280

Table of Cases xxxiii Eastern Airlines Inc, Engine Failure, Miami International Airport on May 5, 1983, Re 629 F Supp 307 (1986) ................................................................................................................................. 6.180 Eaton v Pitman (1991) 55 SASR 386 ............................................................................................ 8.300 Eaton v Tricare (Country) Pty Ltd [2016] QCA 139 .................................................................. 20.470 Eaves v Blaenclydach Colliery Co Ltd [1909] 2 KB 73 .............................................................. 19.30 Ebarb v Woodbridge Park Association 210 Cal Rptr 751 (1985) ................................... 9.220, 10.430 Eddy v Brown 715 P 2d 74 (Okl 1986) ....................................................................................... 30.620 Edmonds v Armstrong Funeral Home Ltd [1931] 1 DLR 676 ................................................... 30.720 Education, Department of v Unsworth [2010] VSCA 77 .............................................................. 20.30 Edwards v Endeavour Energy (No 4) [2013] NSWSC 1899 ...................................................... 23.340 Edwards v Hourigan [1968] Qd R 202 .......................................................................................... 8.380 Edwards v Law Society of Upper Canada [2001] 3 SCR 562 ..................................................... 7.180 Ehrlich v American Airlines Inc 360 F 3d 366 (2004) ................................................................. 23.80 Eisten v North British Railway Co (1870) 8 M 980 ................................................................... 17.190 El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999) ................................................. 23.80 Elden v Sheldon 758 P 2d 582 (Cal 1988) .................................................................................... 9.220 Electricity Trust of South Australia v Carver (unreported, SASC, No SCGRG 90 976, 2 July 1993) ................................................................................................................. 27.50, 27.120 Electricity Trust of South Australia v Renault (unreported, SASC, No SCGRG 89 910, 1 July 1993) ............................................................................................................................... 27.50 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 ............................ 21.420 Ellington v Coca Cola Bottling Co of Tulsa Inc 717 P 2d 109 (Okl 1986) .............................. 21.170 Elliott v Andrew [2009] SADC 31 ...................................................................... 10.160, 17.90, 17.230 Elliott v Bali Bungy Co [2002] NSWSC 906 ....................................................... 9.170, 11.380, 13.50 Els v Bruce 1922 EDL 295 .................................................................... 30.70, 30.180, 30.210, 30.220 Emden v Vitz 198 P 2d 696 (Cal 1948) ......................................................................... 30.620, 30.630 Enge v Trerise (1960) 26 DLR (2d) 529 ....................................................................................... 8.330 England v Van Donk (1997) 26 MVR 289 ...................................................................................... 4.40 English v Cory Sand & Ballast Co (unreported, QBD, 21 March 1985) ..................................... 14.70 English v Rogers [2005] NSWCA 327 ........................................................................................ 19.210 Enridge v Copp (1966) 57 DLR (2d) 239 ................................................................................... 16.170 Entergy Mississippi Inc v Acey 153 So 3d 670 (Miss 2014) ........................................ 10.440, 11.550 Entex Inc v McGuire 414 So 2d 437 (Miss 1982) ...................................................................... 25.150 Environment, Department of the v Thomas Bates & Son Ltd [1991] 1 AC 499 ............. 7.140, 27.40 Ericsson (Australia) Pty Ltd v Popovski [2000] VSCA 52 ........................................................... 19.50 Erlich v Menezes 71 Cal Rptr 2d 131 (1998) ............................................................................. 27.100 Erwin v Milligan 67 SW 2d 592 (Ark 1934) .............................................................................. 30.610 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 ................ 7.170 Eskin v Bartee 262 SW 3d 727 ...................................................................................................... 9.220 Espinosa v Beverley Hospital 249 P 2d 843 (Cal 1952) ............................................... 11.610, 22.740 Ess v Eskaton Properties Inc 118 Cal Rptr 2d 240 (2002) .............................. 18.220, 18.230, 30.620 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 .......... 1.130 Estate of Trentadue ex re Aquilar v United States 397 F 2d 840 (2005) ................................... 30.620 Etchart v Bank One, Columbus NA 773 F Supp 239 (1991) ..................................................... 30.630 Evan F v Hughson United Methodist Church 10 Cal Rptr 2d 748 (1992) ................................ 10.440 Evans v Finn (1904) 4 SR (NSW) 297 ............................................................................................ 1.30 Evans v Rivett Arboricultural & Waste Equipment Hire Pty Ltd [2005] SADC 172 .... 10.160, 17.40 Everett Associates Inc v Transcontinental Insurance Co 159 F Supp 2d 1196 (2001) .............. 18.220 Ewing v Pittsburgh CC & St L Railway Co 23 A 340 (Pa 1892) ..................................... 1.150, 3.760 Exxon Mobil Corporation v Albright 71 A 3d 30 (Md 2013) ....................................... 27.110, 29.710 Eyrich for Eyrich v Dam 473 A 2d 539 (NJ 1984) ......................................................... 9.450, 25.140

F FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 ... 3.230, 5.220, 7.150, 7.410, 12.40, 17.160, 24.260, 24.270

xxxiv

Table of Cases

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 .......... 9.480, 13.80, 15.120, 15.140, 15.220, 15.260, 19.350, 25.470, 26.110, 26.120, 26.140, 26.350 FG v MacDonell 696 A 2d 697 (NJ 1997) .................................................................................. 21.210 Fackler v Genetzky 595 NW 2d 884 (Neb 1999) ....................................................................... 27.100 Fagan v Crimes Compensation Tribunal [1981] VR 887 ............................................................ 30.290 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 ..................................... 11.160, 30.320 Fagan v Goodman (unreported, Eng QBD, 30 November 2001) ................................................. 9.490 Fakhri v Wild Oats Markets Canada Inc [2004] BCCA 549 ........................................................ 6.300 Falbo v Coutts [2000] BCSC 434 ........................................................................ 9.500, 15.250, 24.280 Falwell v Flynt 797 F 2d 1270 (1986) ......................................................................................... 30.650 Falzone v Busch 214 A 2d 12 (NJ 1965) ...................................................................................... 3.760 Farr v Butters Bros & Co [1932] 2 KB 606 .................................................................................. 7.120 Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 ....... 3.80, 3.200, 3.710, 5.220, 7.410, 7.430, 7.440, 22.510, 22.570, 28.130, 28.140, 28.150, 28.160 Farrell v CLS Ltd [2004] VSC 308 ............................................................................................. 29.140 Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 ......... 3.200, 4.70, 5.220, 7.560, 10.380, 17.40, 22.490, 22.500, 22.510, 22.530, 22.540, 22.560, 22.570, 22.640 Farrugia v Great Western Railway Co [1947] 2 All ER 565 ........................................................ 7.320 Faya v Almaraz 620 A 2d 327 (Md 1993) ..................................................................... 29.720, 29.740 Feng v Metropolitan Transportation Authority 727 NYS 2d 470 (NY 2001) .............................. 3.770 Fenn v City of Peterborough (1976) 73 DLR (3d) 177 ..... 4.130, 7.410, 10.80, 17.50, 17.60, 25.100, 25.180 Fernandez v Walgreen Hastings Co 968 P 2d 774 (NM 1998) .................................................. 12.130 Ferrara v Bernstein 582 NYS 2d 673 (1992) .............................................................................. 22.630 Ferrara v Galluchio 152 NE 2d 249 (NY 1958) ............................................................ 29.300, 29.690 Ferretti v Weber 513 So 2d 1333 (Fla 1987) ................................................................................. 9.220 Ferriter v Daniel O’Connell’s Sons Inc 413 NE 2d 690 (Mass 1980) ....................................... 10.420 Fielding v Variety Inc [1967] 2 QB 841 ........................................................................................ 6.100 Fife v Astenius 284 Cal Rptr 16 (1991) ...................................................................................... 10.440 Filion v 689543 Ontario Ltd [1993] OJ No 1659 .......................................................... 30.170, 30.210 Findlay v Victoria [2009] VSCA 294 ........................................................................................... 20.560 Finn v Queensland Ambulance Service [2000] QSC 472 ....................... 8.70, 13.270, 20.230, 20.470 Finnegan ex rel Skoglind v Wisconsin Patients Compensation Fund 666 NW 2d 797 (Wis 2003) ............................................................................................................................... 12.130 Firmstone, Re (1983) 4 NZAR 62 ................................................................................................. 3.460 First National Bank v Langley 314 So 2d 324 (Miss 1975) ........................................... 3.760, 21.160 First National Bank in Sioux Falls v Drier 574 NW 2d 597 .......................................................... 5.60 Fisher v Department of School Education Western Region [2000] NSWSC 268 ..................... 17.160 Fisher v San Pedro Peninsula Hospital 262 Cal Rptr 842 (1989) .............................................. 30.630 Fitter v Veal (1701) 12 Mod 542; 88 ER 1506 ........................................................................... 29.230 Fitzgerald v Tin 2003 BCSC 151 ................................................................................................. 29.720 Fitzgibbons v Westpres Publications Ltd (1983) 50 BCLR 219 ................................................. 30.160 Fitzpatrick v Copeland 80 SW 3d 297 (Tex 2002) ....................................................................... 9.220 Flamm v Van Nierop 291 NYS 2d 189 (1968) ........................................................................... 30.630 Flax v DaimlerChrysler Corporation 272 SW 2d 521 (Tenn 2008) ............................................... 5.60 Fleming v Strathclyde Regional Council 1992 SLT 161 ...................................... 5.400, 16.250, 27.40 Fleming v Toltz [2000] NSWSC 606 ................................................................................... 8.80, 21.70 Fletcher v Argyll and Bute Council [2007] CSOH 174 ................................................. 20.700, 20.830 Fletcher v Commissioners of Public Works [2003] 1 IR 465 .......... 1.180, 3.670, 3.680, 4.20, 4.130, 7.410, 8.70, 29.50, 29.280, 29.320, 29.330, 29.340, 29.350, 29.360, 29.370, 29.410, 29.550,29.660, 29.680, 29.710, 29.740 Fletcher v Western National Life Insurance Co 89 Cal Rptr 78 (1970) ....................... 30.620, 30.630 Flett v Maxwell [1996] BCJ No 1455 ................................................................. 6.270, 22.610, 22.620 Flight Centre v Louw (2012) 78 NSWLR 656 .............................................................................. 2.260 Flizack v Good News Home for Women Inc 787 A 2d 228 (NJ 2001) ..................................... 30.630 Flood v University of Glasgow [2008] CSOH 98 ....................................................................... 20.710 Flood v University of Glasgow 2010 SLT 167 ............................................................................ 20.710

Table of Cases xxxv Floyd v Eastern Airlines Inc 872 F 2d 1462 (1989) ..................................................................... 23.40 Fogg v McKnight [1968] NZLR 330 ............................................................................................... 6.80 Folz v State 797 P 2d 246 (NM 1990) .......................................................................................... 6.160 Ford v ALDI Inc 832 SW 2d 1 (Mo 1992) ................................................................................. 21.170 Ford v NCNB Corporation 408 SE 2d 738 (NC 1991) .............................................................. 21.160 Forde v Skinner (1830) 4 C & P 239; 172 ER 687 ........................................................................ 6.80 Forey v RHI Refractories (UK) Ltd [2004] ScotCS 59 ................................................................ 3.580 Fothergill v Monarch Airlines Ltd [1981] AC 251 ........................................................................ 23.70 49 Prospect Street Tenants Association v Sheva Gardens Inc 547 A 2d 1134 (NJ 1998) ........ 30.620, 30.630 Fournell v Usher Pest Control Co 305 NW 2d 605 (Neb 1981) ................................................ 27.100 Fowler v North British Railway Co 1914 SC 866 ............................................................... 2.30, 3.560 Fox v Hayes 600 F 3d 819 (2010) ............................................................................................... 30.630 Frame v Kothari 560 A 2d 675 (NJ 1989) ................................................................................... 22.640 Frame v Smith [1987] 2 SCR 99 .................................................................................... 30.160, 30.210 France v Parkinson [1954] 1 WLR 581 ......................................................................................... 16.70 Frank v Cox (1988) 84 NSR (2d) 370 ................................................................................ 10.30, 17.60 Fraser v Marsden [2000] NSWSC 416 ........................................................................................ 21.400 Fraser v Morrison 39 Haw 370 (1952) ........................................................................................ 30.620 Fraser v State Hospitals Board for Scotland 2001 SLT 1051 ............................ 3.580, 12.290, 20.690 Frazer v Haukioja (2010) 317 DLR (4th) 688 .......................................................... 3.430, 8.70, 21.70 Freeman v City of Pasadena 744 SW 2d 923 (Tex 1988) ............................................... 9.220, 10.420 French v Sussex County Council [2005] PIQR P18 ..................................................................... 20.20 French v Sussex Police [2006] EWCA Civ 312 ........................................ 1.90, 19.390, 19.410, 20.20 French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132 .............................. 6.70 Freyou v Iberia Parish School Board 657 So 2d 161 (La 1995) ................................................ 27.100 Friedman v Merck & Co Inc 131 Cal Rptr 2d 885 (2003) ......................................................... 21.170 Fripp, Re (1996) 125 FLR 456 ..................................................................................................... 11.160 Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995) .......................................................... 12.320, 29.50, 29.440, 29.450, 29.510, 29.590, 29.600 Froese v Canada Safeway Ltd [1994] AJ No 1215 ....................................................................... 6.100 Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] All ER (D) 218 .............................................................................................. 22.290, 28.140 Froom v Butcher [1976] QB 286 ................................................................................................... 16.40 Frost v Chief Constable of South Yorkshire [1995] TLR 379 ............................... 3.40, 3.160, 19.290 Frost v Chief Constable of South Yorkshire Police [1997] 1 All ER 540 ................................. 22.140 Frost v Chief Constable of South Yorkshire Police [1998] QB 254 ............ 1.180, 3.40, 3.160, 7.270, 10.270, 10.290, 12.240, 12.540, 18.190, 19.60, 19.280, 19.290, 19.300, 19.320, 19.330, 19.350, 22.140, 22.470, 25.160, 25.170, 25.220, 25.380, 25.400, 25.410, 26.90, 26.120, 26.160, 26.220, 29.30 Frost v Chief Constable of South Yorkshire Police (The Times, 3 July 1995) .......................... 25.390 Fryers v Belfast Health and Social Care Trust [2009] LS Law Med 345 .................................. 29.520 Fryers v Belfast Health and Social Care Trust [2010] NI 133 ..................................................... 3.580 Fulco v Norwich Roman Catholic Diocesan Corporation 609 A 2d 1034 (Conn 1992) ........... 19.470 Fullowka v Pinkerton’s of Canada Ltd [2010] 1 SCR 132 ............................................. 9.210, 22.140 Fullowka v Royal Oak [2004] NWTSC 66 ...................................................................... 9.210, 10.310 Furlan v Rayan Photo Works Inc 12 NYS 2d 921 (1939) .......................................................... 27.110 Furniss v Fitchett [1958] NZLR 396 ............................. 3.440, 21.100, 28.40, 28.210, 28.220, 28.260

G G v Attorney General [1994] 1 NZLR 714 ......................................................... 3.460, 21.490, 28.210 G v North Tees Health Authority [1989] FCR 53 ................................... 9.130, 17.180, 21.90, 22.290 Gabaldon v Jay-Bi Property Management Inc 925 P 2d 510 (NM 1996) .................................. 10.440 Gabolinscy v Hamilton City Corporation [1975] 1 NZLR 150 .................................................... 6.120 Gadbury v Bleitz 233 P 2d 299 (Wash 1925) .............................................................................. 30.630

xxxvi

Table of Cases

Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd (2004) Aust Torts Rep 81-740 ........ 7.570, 25.60 Gain v Carroll Mill Co Inc 787 P 2d 553 (Wash 1990) ............................................................. 11.880 Gala v Preston (1991) 172 CLR 243 ......................................................... 7.140, 7.150, 7.160, 16.220 Galaske v O’Donnell [1994] 1 SCR 670 ....................................................................................... 16.40 Galella v Onassis 487 F 2d 986 (1973) ....................................................................................... 30.650 Gallagher v Queensland Corrective Services [1998] QSC 150 .......................... 20.30, 20.180, 20.540 Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285 .......................... 3.290, 3.320, 10.390, 10.400 Galt v British Railways Board (1983) 133 New LJ 870 ... 8.310, 14.60, 16.60, 19.240, 26.40, 26.50, 26.60, 26.70, 26.190 Gamble v Dollar General Corporation 852 So 2d 5 (Miss 2003) .............................................. 30.630 Gannon v Gray [1973] Qd R 411 .......................................................................... 8.370, 8.380, 11.100 Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997) ....... 9.170, 11.300, 12.50, 13.250 Garcia v San Antonio Housing Authority 859 SW 2d 78 (Tex 1993) .......................................... 9.220 Garrett v City of New Berlin 362 NW 2d 137 (Wis 1985) ............................................. 9.220, 18.220 Garrod v North Devon NHS Primary Care Trust [2007] PIQR Q1 ..... 17.40, 20.780, 20.790, 20.820 Gartside v Sheffield, Young & Ellis [1983] NZLR 37 .................................................................. 7.140 Gaspard v Beadle 36 SW 3d 229 (Tex 2001) .............................................................................. 30.630 Gaston v Flowers Transportation 675 F Supp 1036 (1987) .......................................................... 9.220 Gates v Richardson 719 P 2d 193 (Wyo 1986) ...................................................... 3.760, 6.160, 9.220 Gaynor v State Farm Mutual Auto Insurance Co 727 So 2d 1279 (La 1999) ................ 3.780, 27.100 Geiger v Grand Trunk Railway Co (1905) 10 OLR 511 ..................................................... 2.10, 18.40 Gendek v Poblete 654 A 2d 970 (NJ 1995) ................................................................................. 22.640 General Motors Corporation v Grizzle 642 SW 2d 837 (Tex 1982) .......................................... 10.420 Gent-Diver v Neville [1953] St R Qd 1 ........................................................................................ 16.40 Genzer v City of Mission 666 SW 2d 116 (Tex 1983) ................................................................. 9.220 Gesah v Ross [2013] VSC 165 .................................................................................................... 21.420 Gett v Tabet (2009) 254 ALR 504 ................................................................................................. 7.710 Geyer v Downs (1977) 138 CLR 91 ................................................................................ 7.290, 21.400 Giannarelli v Wraith (1988) 165 CLR 543 .................................................................................... 7.160 Gibson v Berkowitz 1996 (4) SA 1029 ................................................................... 3.550, 7.410, 7.500 Gibson v Trueba (unreported, NSWSC, No 19749 of 1986, 2 November 1990) ...................... 11.120 Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 ....... 2.140, 2.180, 4.50, 5.220, 11.360, 12.70, 13.50, 13.120, 13.130, 13.160 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 ......... 2.170, 2.180, 2.190, 3.600, 4.10, 4.20, 7.60, 7.280, 7.410, 8.200, 9.110, 9.240, 9.400, 9.480, 11.200, 11.390, 11.400, 11.440, 13.30, 13.50, 13.90, 13.100, 13.110, 13.130, 13.270, 13.280, 17.140, 22.40, 22.90, 22.100, 22.110, 22.120, 22.130, 22.280 Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50 ...................... 2.180, 4.130, 11.390 Gilbert v Castagna [2000] NSWSC 461 .............................................................. 16.290, 21.70, 22.180 Gilbert v Illawarra Area Health Service [2001] NSWSC 323 .................................................... 22.180 Gilbert (now Chalk) v Illawarra Area Health Service [2000] NSWSC 508 .............................. 22.180 Gill v Commonwealth [1999] ACTSC 64 .................................................................................... 19.140 Giller v Procopets [2004] VSC 113 ............................................................................................. 30.660 Giller v Procopets (2008) 24 VR 1 ........ 4.10, 5.220, 6.140, 30.150, 30.190, 30.460, 30.590, 30.690, 30.740 Gillespie v Commonwealth (1991) 104 ACTR 1 ..... 7.660, 7.740, 20.30, 20.50, 20.60, 20.80, 20.90, 20.150, 20.160, 20.170, 20.200, 20.220, 20.430, 20.470, 20.540 Gillespie v Commonwealth (1993) Aust Torts Rep 81-217 ............................................. 20.50, 20.470 Gilliam v Roche Biomedical Laboratories Inc 989 F 2d 278 (1993) ......................................... 29.700 Gilligan v Robb 1910 SC 856 ................................................................................... 2.30, 3.560, 8.310 Gillman v Burlington Northern Rail Co 878 F 2d 1020 (1989) ................................................. 19.470 Gilmont v Queensland [2000] QSC 95 ............................................................................... 4.60, 16.290 Gilvarry v Commonwealth (1994) 127 ALR 721 ........................................................................ 24.140 Gimson v Victorian Workcover Authority [1995] 1 VR 209 ............................. 30.60, 30.140, 30.660 Gindis v Brisbourne (1997) 39 BCLR (3d) 64 .............................................................................. 8.370

Table of Cases xxxvii Girvan v Inverness Farmers Dairy (No 2) 1998 SC (HL) 1 ........................................................... 6.70 Gittens v O’Brien (1986) 4 MVR 27 ............................................................................................. 16.40 Giualdo v Allen 567 NYS 2d 255 (1991) .................................................................................... 22.630 Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 .................................................. 10.380 Glen v Korean Airlines Co Ltd [2003] QB 1386 .................................... 5.420, 10.30, 23.380, 23.400 Glencar Exploration plc v Mayo County Council [2002] 1 IR 84 ............................................... 7.180 Goddard v Central Coast Health Network [2013] NSWSC 1932 .............. 2.290, 4.90, 9.240, 10.180, 11.130, 22.280 Goddard v Grand Truck Railway Co 57 Me 202 (1869) ................................................... 3.760, 18.40 Goddard v Watters 82 SE 304 (Ga 1914) .................................................................................... 30.600 Gogay v Hertfordshire County Council [2000] IRLR 703 .......................................................... 19.370 Golden v Dungan 97 Cal Rptr 577 (1971) .................................................................................. 30.630 Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62 .............................. 20.390 Goldsmith v SPC Ardmona Operations Ltd [2009] VSC 445 .................................................... 19.210 Golstein v Superior Court 273 Cal Rptr 270 (1990) ...................................................... 10.440, 22.630 Gomez v Hug 645 P 2d 916 (Kan 1982) ..................................................................................... 30.630 Goncalvez v Patuto 458 A 2d 146 (NJ 1983) ................................................................................ 9.220 Gonzalez v New York City Housing Authority 580 NYS 2d 760 (1992) .................................... 10.30 Goodwin v Becker 2013 BCSC 2148 ............................................................................................ 21.40 Goorkani v Tayside Health Board [1991] 3 Med LR 33 ................................................... 6.110, 21.70 Goslin v Corry (1844) 7 Man & G 342; 135 ER 143 .................................................................. 6.100 Gosling v Lorne Foreshore Committee of Management Inc [2009] VSCA 228 ........................ 11.400 Gould v New South Wales [2005] NSWSC 1121 ....................................................................... 20.550 Gould v New South Wales [2006] NSWSC 858 ......................................................................... 20.470 Government Insurance Office v Best (1993) Aust Torts Rep 81-210 ........................................... 6.210 Government Insurance Office of New South Wales v Aboushadi (1999) Aust Torts Rep 81-531 ................................................................................................ 13.230 Government Insurance Office of New South Wales v Maroulis (unreported, NSWCA, CA Nos 274 and 275 of 1988, 6 April 1990) ....................................................................... 7.630, 10.70, 12.370 Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 . 7.120, 7.140 Gracey v Eaker 837 So 2d 348 (Fla 2002) .................................................................................. 18.240 Grager v Schudar 770 NW 2d 692 (ND 2009) ........................................................................... 30.630 Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994) . 29.50, 29.470, 29.490, 29.510 Graham v Australian Red Cross Society (unreported, Tas SC, No M334 of 1993, 31 January 1994) ..................................................................................................................... 29.470 Graham v MacMillan (2003) 10 BCLR (4th) 397 ............................................................. 6.320, 6.380 Graham v Paterson 1938 SC 119 ................................................................................................... 8.310 Graham v Robinson [1992] 1 VR 278 ........................................................................................... 5.400 Graham v Voight (1989) 89 ACTR 11 ............................................................................................. 6.90 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 ............................ 7.170, 7.210, 7.220 Grandstaff v Borger 767 F 2d 161 (1985) ..................................................................................... 9.220 Granger v Ottawa General Hospital (1996) 7 OTC 81 ............................................................... 22.610 Graves v Estabrook 818 A 2d 1255 (NH 2003) ............................................................................ 9.220 Gray v Motor Accident Commission (1998) 196 CLR 1 ....................................... 6.70, 6.240, 30.540 Gray v Thames Trains Ltd [2009] AC 1339 ................................................................................ 16.220 Great Atlantic & Pacific Tea Co v Roch 153 A 22 (Md 1930) .................................................. 30.600 Greater Nottingham Co-operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71 ............................................................................................................................................... 7.140 Greatorex v Greatorex [2000] 1 WLR 1970 ..... 1.210, 7.190, 10.30, 10.290, 15.160, 15.170, 15.210, 15.220, 15.230, 15.240, 15.320, 16.110, 16.120, 19.360, 25.440, 26.230 Greco v Arvind (unreported, NSWSC, No 14595 of 1990, 24 February 1995) ............ 11.120, 12.50, 22.200 Green v Argyll & Bute Council [2002] Scot CS 56 ................................................................... 20.690 Green v Berry [2000] QCA 133 ........................................................................ 20.410, 20.550, 26.110 Green v Chicago Tribune Co 675 NE 2d 249 (Ill 1996) ............................................................ 30.650

xxxviii

Table of Cases

Green v DB Group Services (UK) Ltd [2006] IRLR 764 ............................................. 17.160, 20.830 Green v Matheson [1989] 3 NZLR 564 ......................................................................................... 3.460 Green v TA Shoemaker & Co 73 A 688 (Md 1909) ..................................................................... 3.760 Greene v Young 54 P 3d 734 (Wash 2002) ................................................................................. 10.440 Greenhorn v Marriott Intern Inc 258 F Supp 2d 1249 (2003) .................................................... 30.630 Greenland v Chaplin (1850) 5 Exch 243; 155 ER 104 ................................................................. 7.600 Gregg v Ashbrae Ltd [2005] NIQB 37 .......................... 9.210, 24.200, 25.180, 25.440, 26.70, 26.300 Gregg v Scott [2005] 2 AC 176 ....................................................................................................... 1.80 Gregory v Government Insurance Office of New South Wales (unreported, NSWSC, No 13756 of 1985, 1 March 1991) ..................................................................................................... 9.260, 10.70 Gregory v New South Wales [2009] NSWSC 559 ............................................. 17.40, 17.270, 21.400 Greig v Greig [1966] VR 376 .......................................................................................................... 6.90 Grieve v Salford Health Authority [1991] 2 Med LR 295 .......................................................... 22.180 Griffiths v Canadian Pacific Railways (1978) 6 BCLR 115 ................................................ 4.50, 7.560 Griffiths v Kerkemeyer (1977) 139 CLR 161 .............................................................................. 12.150 Griffiths v R & H Green & Silley Weir Ltd (1948) 81 LLLR 378 ................................... 1.190, 17.40 Grimsby v Samson 530 P 2d 291 (Wash 1975) .......................................................................... 30.640 Grotts v Zahner 963 P 2d 480 (Nev 1999) .................................................................................... 9.220 Grotts v Zahner 989 P 2d 415 (Nev 1999) .................................................................................... 9.220 Groves v Taylor 729 NE 2d 569 (Ind 2000) .................................................................... 3.760, 10.440 Gruber v Backhouse [2003] ACTSC 18 ...................................................................................... 21.420 Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 ...................... 3.360, 28.10, 28.90, 28.100, 28.110 Guillory v Arceneaux 580 So 2d 990 (La 1991) ................................. 13.580, 13.610, 15.290, 18.220 Guillory v Godfrey 286 P 2d 474 (Cal 1955) ............................................................................. 30.630 Guorgi v Pipemakers Australia Ltd [2013] QSC 198 .................................................................. 19.210 Guth v Freeland 28 P 3d 982 (Haw 2001) .................................................................................... 6.160

H H v Home Office (The Times, 7 May 1992) ............................................................................... 11.490 H v Ministry of Defence [1991] 2 QB 103 ..................................................................................... 6.70 H v R [1996] 1 NZLR 299 ................................................................................................... 5.400, 6.80 H(R) v Hunter (1996) 32 CCLT (2d) 44 ...................................................................................... 22.600 H West & Son Ltd v Shephard [1964] AC 326 ................................................................... 6.50, 17.30 HK v South Australia (unreported, SAFC, No SCGRG 96/1511, 7 March 1997) ..................... 11.160 HLO ex rel LEO v Hossle 381 NW 2d 641 (Iowa 1986) ............................................. 11.550, 30.640 Habib v Commonwealth (2010) 183 FCR 62 .............................................................................. 30.150 Habib v Commonwealth (No 2) (2009) 175 FCR 350 ............................ 4.20, 30.150, 30.190, 30.240 Hac v University of Hawaii 73 P 3d 46 (Haw 2003) ................................................................. 30.620 Hackshaw v Shaw (1984) 155 CLR 614 ............................................................................ 7.140, 7.150 Hagan v Coca-Cola Bottling Co 804 So 2d 1234 (2001) ............................................................. 3.760 Hagan v Dalkon Shield Claimants Trust (1998) 231 AR 153 ......................................... 17.40, 21.180 Haggarty v McCullogh (2002) 309 AR 315 ................................................................... 30.190, 30.700 Hair v County of Monterey 119 Cal Rptr 639 (1975) ...................................... 10.430, 12.480, 22.630 Hale v London Underground Ltd [1993] PIQR Q30 .................................................................... 25.50 Halech v South Australia (2006) 93 SASR 427 .......................................... 2.170, 4.70, 5.220, 21.420 Haley v London Electricity Board [1965] AC 778 .............................................................. 7.320, 8.90 Halio v Lurie 222 NYS 2d 759 (1961) .......................................................................... 30.620, 30.630 Hall v Hebert [1993] 2 SCR 159 ................................................................................................. 16.220 Hall v New South Wales [2014] NSWCA 154 ............................................................................ 17.230 Halliday v Beltz 514 A 2d 906 (Pa 1986) ................................................................................... 22.630 Halligua v Mohanasundaram AIR 1951 Mad 1056 ......................................................................... 2.30 Halvorsen v Dobler [2006] NSWSC 1307 ............................................................ 9.140, 17.40, 22.280 Hambrook v Stokes Bros [1925] 1 KB 141 ........ 2.30, 2.50, 2.90, 2.140, 2.290, 3.560, 7.400, 7.410, 7.480, 7.730, 9.40, 9.60, 9.470, 10.10, 10.30, 10.40, 10.260, 11.30, 11.110, 11.120, 15.20, 18.50, 22.10, 22.20, 22.150, 24.40, 24.220, 26.20, 26.30, 28.90, 30.60, 30.250 Hamlyn v Hann [1967] SASR 387 ................................................................................. 11.100, 17.190

Table of Cases xxxix Hammond v Bristow Helicopters Ltd [1998] ScotCS 80 ............................................................ 23.190 Hammond v Bristow Helicopters Ltd 1999 SLT 919 .................................................................... 5.410 Hancock v Nominal Defendant [2002] 1 Qd R 578 .......... 1.180, 3.760, 4.130, 8.70, 10.150, 11.200, 11.300, 11.310, 11.440, 12.410, 19.150 Hanford v Omaha & CB Street Railway Co 203 NW 643 (Neb 1925) ....................................... 3.760 Hanford Nuclear Reservation Litigation, Re 780 F Supp 1551 (1991) ...................................... 30.650 Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992) ............ 9.130, 10.350, 11.150, 12.40, 13.80, 13.120, 13.130, 13.160 Hanlon v Hanlon [2006] TASSC 1 ............................................... 4.40, 9.130, 10.160, 13.470, 16.120 Harabes v Barkery Inc 791 A 2d 1142 (NJ 2001) ....................................................................... 27.110 Harding v Pub Estate Co Ltd [2005] EWCA Civ 553 ................................................... 20.660, 20.670 Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 ........... 20.370, 20.440, 20.470, 20.480, 20.510, 20.530 Hardy v Poydras Properties 737 So 2d 793 (La 1999) ............................................................... 27.100 Hardy v Queensland Corrective Services Commission [2000] QSC 10 ..................................... 20.180 Hare v State of New York 570 NYS 2d 125 (1991) ...................................................... 29.720, 29.740 Harrhy v Thames Trains Ltd [2003] EWHC 2120 ......................................................... 19.400, 19.410 Harris v Commissioner for Social Housing [2013] ACTSC 186 ...................................... 2.390, 4.100 Harris v Jones 380 A 2d 611 (Md 1977) ........................................................................ 30.620, 30.630 Harrison v British Railways Board [1981] 3 All ER 679 ............................................................. 15.90 Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723 ... 7.410, 7.500, 15.40, 15.50, 15.170, 17.100 Harrison v Suncorp Insurance and Finance [1995] QSC 303 .......................................... 15.70, 17.160 Harriton v Macquarie Pathology Services Pty Ltd (1998) Aust Torts Rep 81-489 ...... 11.110, 22.180 Harriton v Stephens (2006) 226 CLR 52 ........................................................................ 11.110, 22.180 Hart v Child’s Nursing Home Co Inc 749 NYS 2d 297 (2002) ................................................. 28.110 Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 .... 20.650, 20.700, 20.830, 21.450 Hartmann v Nominal Defendant (unreported, NSWSC, No CLD 15634 of 1985, 20 February 1987) ................................................................................................................... 10.290 Hartwig v Oregon Trail Eye Clinic 580 NW 2d 86 (Neb 1998) ................................................ 29.720 Harvey v Cairns 1989 SLT 107 ........................................................ 3.560, 4.40, 9.150, 9.190, 16.130 Harvey v Porter (1998) 170 Nfld & PEIR 333 ............................................................................ 10.280 Haselhorst v State 485 NW 2d 180 (Neb 1992) .......................................................................... 11.180 Hasenclever v Hoskins (1988) 47 CCLT 225 .............................................................................. 30.160 Hastie v Rodriguez 716 SW 2d 675 (Tex 1986) ........................................................................... 9.220 Hathaway v Superior Court of Fresno County 169 Cal Rptr 435 (1980) .................................. 10.430 Hatton v Sutherland [2002] ICR 613 ....... 3.180, 3.200, 4.70, 5.220, 18.160, 18.170, 19.200, 19.410, 20.20, 20.30, 20.230, 20.270, 20.290, 20.330, 20.390, 20.470, 20.480, 20.550, 20.600, 20.610, 20.620, 20.630, 20.640, 20.650, 20.660, 20.680, 20.700, 20.710, 20.730, 20.770, 20.780, 20.790, 20.810, 20.830, 20.850, 29.410, 29.420, 29.550 Hauman v Malmesbury District Council 1916 CPD 216 ................................................................ 2.30 Havenaar v Havenaaar [1982] 1 NSWLR 626 .............................................................................. 8.290 Hawkins v Clayton (1988) 164 CLR 539 ........................................................................... 7.150, 21.30 Hawkins v Scituate Oil Co Inc 723 A 2d 771 (RI 1999) ............................................................ 27.100 Hayes v Southern Sydney Area Health Service (unreported, DCNSW, Nos 7071, 17540 of 1990, 13 August 1996) .............................................................................................................. 11.620, 13.120 Haynes v G Harwood & Sons [1935] 1 KB 146 ............................................................... 7.120, 25.20 Hayward v Cleveland Clinic Foundation 759 F 3d 601 (2014) .................................... 30.620, 30.630 Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 ........ 3.410, 3.430, 6.350, 6.360, 6.370, 6.380, 6.390, 6.400, 6.410, 7.770, 7.780, 7.800, 17.40 Healey v Lakeridge Health Corporation 2010 ONSC 725 .... 4.20, 6.360, 6.370, 6.380, 6.390, 7.770, 7.780 Heaven v Pender (1883) 11 QBD 503 ........................................................................................... 7.110 Hedgepeth v Whitman Walker Clinic 22 A 3d 789 (DC 2011) ....................................... 3.770, 18.240 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 .......... 7.120, 7.160, 28.10, 28.100, 30.410

xl

Table of Cases

Hegarty v EE Caledonia Ltd [1996] 1 Lloyd’s Rep 413 ............................................................ 24.100 Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 . 3.20, 3.190, 8.260, 24.100, 24.110, 24.120, 24.200, 26.250 Hegarty v Mercy University Hospital Cork Ltd [2016] IECA 24 .................................................. 4.50 Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919; [2007] QCA 366 . 20.370, 20.430, 20.470, 20.480, 20.490, 20.500, 20.530, 20.580 Hegel v McMahon 960 P 2d 424 (Wash 1998) ................................................................ 6.160, 10.440 Heighington v Ontario (1989) 61 DLR (4th) 190 ....................................................................... 11.180 Heighington v The Queen in Right of Ontario (1987) 41 DLR (4th) 208 ...................... 11.180, 27.80 Heil v Rankin [2001] QB 272 ............................................................................................... 3.80, 6.110 Heiner v Moretuzzo 652 NE 2d 664 (Ohio 1995) ....................................................................... 28.110 Heldreth v Marrs 425 SE 2d 157 (WVa 1992) ......................................................... 3.790, 5.60, 6.160 Hele v Sheffield 2003 CarswellOnt 6465 ..................................................................................... 15.260 Hele v Sheffield 2005 CanLII 3321 ............................................................................................. 15.260 Henderson v Canada Atlantic Railway Co (1898) 25 OAR 437 .................................................... 2.10 Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 ................................................................ 21.30 Henley v Department of State Highways & Transportation 340 NW 2d 72 (Mich 1983) ........ 10.420 Henricksen v State 84 P 3d 38 (Mont 2004) ................................................................................... 5.60 Henwood v Metropolitan Transport Trust (1938) 60 CLR 438 .................................................. 16.220 Herd v Clyde Helicopters 1997 SC (HL) 86 ................................................................................. 23.70 Hermann Hospital v Martinez 990 SW 2d 476 (Tex 1990) ........................................................ 16.130 Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126 ............................................................... 6.80 Hetherington v Insurance Corporation of British Columbia (1994) 2 BCLR (3d) 396 ............... 27.70 Hevican v Ruane [1991] 3 All ER 65 ........ 2.90, 3.30, 7.270, 7.590, 10.230, 11.120, 11.200, 11.470, 11.500, 11.620, 12.520, 17.40 Hewett v Alf Brown’s Transport Ltd [1992] ICR 530 .................................................................. 7.370 Hewitt v Chadwick 760 SW 2d 333 (Tex 1988) ......................................................................... 11.120 Heyward v Plymouth Hospital NHS Trust [2005] EWCA Civ 939 ........................................... 20.660 Hickey v National League of Professional Baseball Clubs 565 NYS 2d 65 (1991) ................. 11.700 Hickey v Welch 91 Mo App 4 (1901) ............................................................................ 30.600, 30.630 Hickman By and Through Womble v McKain 446 SE 2d 80 (NC 1994) ................................. 11.130 Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690 ................... 3.30, 6.180 Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 ..................... 3.30, 6.180 Hicks v Chief Constable of the South Yorkshire Police (unreported, Eng QBD, 31 July 1990) . 3.30, 6.180 Hicks v Edser (unreported, NSWCA, No 40698/92, 23 April 1996) ......................................... 13.170 High Parklane Consulting Inc v Royal Group Technologies Ltd 2007 CanLII 410 .................. 30.170 Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 ............ 20.650, 20.670, 20.790 Hill v Chief Constable of West Yorkshire [1988] QB 60 ............................................................. 7.140 Hill v Chief Constable of West Yorkshire [1989] AC 53 ............. 1.70, 7.140, 7.190, 11.510, 20.250, 21.260, 21.420 Hill v Kimball 13 SW 59 (Tex 1890) ............................................................................... 3.760, 30.320 Hill v Van Erp (1997) 188 CLR 159 ............................................................................................. 7.170 Hillman v Black (1996) 67 SASR 490 ........................................................................................ 21.310 Hind v Tasmania [1999] TASSC 133 ............................................................................. 20.180, 20.550 Hing v Road Accident Fund [2014] 2 All SA 186 ........................................................... 3.550, 11.440 Hinkley v Baker 122 F Supp 2d 48 (2000) ................................................................................. 21.300 Hinojosa v South Texas & Drilling Exploration Inc 787 SW 2d 320 (Tex 1987) ..................... 19.470 Hinz v Berry [1970] 2 QB 40 .. 2.30, 2.50, 2.60, 4.20, 4.30, 4.70, 4.100, 4.130, 6.240, 6.260, 6.340, 6.370, 6.380, 6.400, 9.170, 11.40, 11.600, 12.390, 17.30, 17.50, 17.60, 17.70, 17.80, 17.90, 17.110, 17.140, 17.250 Hislop v Salt River Project Agricultural Improvement and Power District 5 P 3d 267 (Ariz 2000) ................................................................................................................... 9.220, 25.150 Hoard v Shawnee Mission Medical Center 662 P 2d 1214 (Kan 1983) .......... 12.480, 22.630, 28.110 Hoare v Arding & Hobbs (1911) 5 Butt WCC 36 ........................................................................ 27.10 Hobbs v Lopez 645 NE 2d 1261 (Ohio 1994) .............................................................................. 21.90

Table of Cases xli Hobson v Attorney General [2005] 2 NZLR 220 ........................................................................ 21.470 Hobson v Attorney General [2007] 1 NZLR 374 .......................................................................... 3.520 Hodder (Guardian ad litem of) v Waddleton (1993) 110 Nfld & PEIR 222 .................................. 4.50 Hodgkinson v Government Insurance Office of New South Wales (unreported, NSWSC, No 17181 of 1987, 23 July 1996) ..................................................................................... 7.670, 15.110, 17.40 Hoffmueller v Commonwealth (1981) 54 FLR 48 ............................................................. 8.330, 8.360 Hogg v Keane [1956] IR 155 ......................................................................................................... 5.170 Hoinville-Wiggins v Connelly [1999] NSWCA 263 .............. 10.290, 13.230, 13.240, 13.510, 13.530 Holdich v Lothian Health Board [2013] CSOH 197 ...................... 3.580, 4.40, 22.550, 27.20, 27.140 Holian v United Grain Growers Ltd (1980) 112 DLR (3d) 611 ................................................... 8.310 Holladay v East Kent Hospitals NHS Trust [2003] EWCA Civ 1696 ....................................... 19.370 Hollier v Sutcliffe [2010] NSWSC 279 ................................. 2.290, 2.320, 7.660, 8.230, 17.40, 21.80 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 ....................................................... 6.90 Homans v Boston Elevated Railway Co 62 NE 737 (Mass 1902) ............................................... 3.760 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 ......... 7.120, 7.130, 7.160, 7.240, 7.320, 7.710 Homer v Long 599 A 2d 1193 (Md 1992) ................................................................................... 11.610 Homsi v Homsi [2016] VSC 354 ........................................................................................ 1.70, 15.170 Honaker v Smith 256 F 3d 477 (2001) ........................................................................................ 30.620 Hone v Six Continents Retail Ltd [2005] EWCA Civ 922 ......................................................... 20.660 Hone v Six Continents Retail Ltd [2006] IRLR 49 ....................................................... 20.790, 20.800 Hook v Cunard SS Co Ltd [1953] 1 WLR 682 .............................................................................. 6.80 Hookey v Paterno (2009) 22 VR 362 .......................................................................................... 20.530 Hoover v Recreation Equipment Corporation 792 F Supp 1484 (1991) ....................... 11.550, 11.680 Hopper v United States 244 F Supp 314 (1965) ........................................................................... 9.220 Horak v Biris 474 NE 2d 13 (Ill 1985) ....................................................................................... 30.640 Horne v New Glasgow [1954] 1 DLR 832 .......................................................................... 2.30, 27.70 Horne v Wilson [1998] TASSC 17 ................................................................................... 6.240, 16.270 Horne v Wilson (No 2) [1998] TASSC 44 ....................................................................... 6.240, 16.270 Horning v Sycamore [1935] NZLR 581 ........................................................................................ 16.70 Horsley v MacLaren [1972] SCR 441 ................................................................................ 15.90, 25.20 Hosking v Runting [2003] 3 NZLR 385 ...................................................................................... 30.180 Hosking v Runting [2005] 1 NZLR 1 .......................................................................................... 30.710 Housing and Works, Department of v Smith (No 2) (2010) 41 WAR 217 .................................. 7.540 Howard v Crowther (1841) 8 M & W 601; 151 ER 1179 ............................................................ 6.100 Howe v South Australia (1992) 58 SASR 310 .............................................................................. 20.30 Howell v Enterprise Publishing Co LLC 920 NE 2d 1 (Mass 2010) ......................................... 30.620 Howell v State Rail Authority of New South Wales (unreported, NSWSC, No 400071 of 1993, 7 June 1996) ...................................................................................................................... 1.200, 17.30 Howell v State Rail Authority of New South Wales (unreported, NSWSC, No 400071 of 1993, 7 May 1998) ................................................................................................................................. 1.200 Howes v Crosby (1984) 6 DLR (4th) 698 ............................................... 9.150, 10.290, 16.50, 25.180 Hoyem v Manhattan Beach City School District 585 P 2d 851 (Cal 1978) .............................. 10.430 Hubley v Hubley Estate (2010) 324 DLR (4th) 69 ..................................................................... 15.240 Huddleston v Infertility Center of America Inc 700 A 2d 453 (Pa 1997) .................................. 11.550 Hudson v Mutual of Omaha Insurance Co (1974) 51 DLR (3d) 115 .......................................... 5.150 Hudson’s Bay Co v Wyrzykowski [1938] 3 DLR 1 ..................................................................... 16.70 Huggins v Longs Drug Stores California 862 P 2d 148 (Cal 1993) .......................................... 18.230 Hughes v Lord Advocate [1963] AC 837 ...................................................................................... 7.600 Hughes v Moore 197 SE 2d 214 (Va 1973) .................................................................................. 3.760 Hughes v Robertson 1913 SC 394 ............................................................................................... 30.720 Hunter v British Coal Corporation [1999] QB 140 ......... 3.170, 3.580, 7.650, 7.670, 11.510, 13.550, 19.330, 19.350, 26.50, 26.180, 26.190, 26.200, 26.210 Hunter v Canary Wharf Ltd [1997] AC 655 .............................. 6.90, 30.120, 30.450, 30.670, 30.720 Hunter & New England Local Health District v McKenna (2014) 253 CLR 270 .......... 7.220, 7.300, 9.240, 11.420 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 ....... 6.70, 12.50, 17.40, 17.160, 22.200

xlii Table of Cases Huntley v Thornton [1957] 1 WLR 321 ........................................................................................ 6.100 Hurlbut v Sonora Community Hospital 254 Cal Rptr 840 (1989) ................................ 10.430, 22.630 Hurley v Sault Star Ltd [1973] OJ No 577 ................................................................................. 28.100 Hurst v Picture Theatres Ltd [1915] 1 KB 1 ................................................................................... 6.80 Hussack v Chilliwack School District No 33 2011 BCCA 258 .......................................... 3.430, 8.70 Hussack v School District No 33 (Chilliwack) (2009) 97 BCLR (4th) 330 ......... 8.70, 17.40, 17.160 Hustler Magazines Inc v Falwell 108 S Ct 876 (1987) .............................................................. 30.650 Huston v Borough of Freemansburg 61 A 1022 (Pa 1905) .......................................................... 1.150 Hutchinson v Saskatoon Funeral Home Co (1985) 41 Sask R 119 ............................................ 21.230 Hutt v Piggott, Wood & Baker (unreported, Tas SC, No B20 of 1993, 28 May 1993) .............. 21.30 Huxley v Berg (1815) 1 Stark 98; 171 ER 413 .............................................................................. 6.90

I I de S et ux v W de S (1348) YB 22 Edw III f 99, pl 60 .............................................................. 6.80 Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984) ........... 7.360, 8.110, 8.310, 8.320, 9.270, 22.170 Imbree v McNeilly (2008) 236 CLR 510 ...................................................................................... 7.170 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 ....................................... 16.190, 16.210 Inflight Explosion on Trans World Airlines Inc Aircraft Approaching Athens, Greece on April 2, 1986, Re 778 F Supp 625 (1991) ............................................................................................. 6.180 Informer v Chief Constable [2012] EWCA Civ 197 ................................................................... 21.420 Inland Revenue Commissioners v Hoogstraten [1985] QB 1077 ................................................. 7.140 Interstate Life & Accident Co v Brewer 193 SE 459 (Ga 1937) ............................................... 30.610 Investors in Industry Commercial Properties Ltd v South Bedfordshire District Council [1986] QB 1034 ........................................................................................................................................... 7.140 Ireland v Garry Denson Metal Roofing Pty Ltd [2009] NSWSC 999 ............................ 2.420, 22.140 Ireland v Wightman [2013] SASC 139 .......................................................................................... 7.700 Irvine v Balmoral Hotel Edinburgh Ltd [1998] ScotCS 63 ........................................... 21.190, 22.790 Irvine v Smith 2008 CanLII 5586 ................................................................................................ 26.350 Irwin v Queensland [2011] VSC 291 ........................................................................................... 22.840 Ishaque v Metropolitan Corporation of Lahore 19 NLR 1996 ................................................... 21.490 Iwanski v Gomes 611 NW 2d 607 (Neb 2000) ........................................................................... 30.630

J JMD v GJH [2012] WADC 124 ................................................................................................... 30.150 Jablonowska v Suther 948 A 2d 610 (NJ 2008) ............................................................................ 3.790 Jack v Trans World Airlines Inc 854 F Supp 654 (1994) ............................................................... 5.60 Jackson v Harrison (1978) 138 CLR 438 .................................................................................... 16.220 Jackson (unreported, Eng CICB, 18 May 1989) .......................................................................... 30.260 Jacobi v Griffiths [1999] 2 SCR 570 ............................................................................................ 21.220 Jacobs v Horton Memorial Hospital 515 NYS 2d 281 (1987) ................................................... 28.110 Jaensch v Coffey (1984) 155 CLR 549 .... 2.50, 2.80, 2.90, 2.100, 2.120, 2.200, 3.340, 3.350, 3.700, 4.10, 4.20, 4.40, 4.130, 6.150, 7.10, 7.150, 7.240, 7.260, 7.270, 7.280, 7.340, 7.360, 7.410, 7.480, 7.500, 7.660, 8.50, 8.80, 8.100, 8.140, 8.300, 8.350, 8.380, 9.50, 9.70, 9.340, 9.460, 10.100, 10.110, 10.120, 10.130, 10.240, 10.300, 10.310, 10.450, 11.120, 11.150, 11.180, 11.210, 11.230, 11.240, 11.270, 11.310, 11.350, 11.380, 11.480, 11.600, 12.30, 12.40, 12.70, 12.80, 12.90, 12.140, 12.150, 12.170, 12.190, 12.200, 12.260, 12.280, 12.360, 12.410, 12.430, 12.490, 12.500, 12.550, 13.80, 13.150, 13.210, 13.290, 13.470, 15.10, 15.20, 15.40, 15.80, 15.100, 15.110, 15.170, 16.190, 16.200, 17.160, 19.50, 19.90, 20.100, 20.200, 22.20, 22.320, 22.820, 28.270, 29.40, 29.100, 29.240, 29.450, 29.600, 29.620, 29.650 James v Lieb 375 NW 2d 109 (Neb 1985) ........................................................... 6.160, 9.220, 30.640 James v Woodall Duckham Construction Co Ltd [1969] 1 WLR 903 ......................................... 8.330 James-Bowen v Commissioner of Police for the Metropolis [2015] EWHC 1249 ................... 19.410 Janicki v Hospital of St Raphael 744 A 2d 963 (Conn 1999) ......................................... 3.790, 22.640 Jansen v Children’s Hospital Medical Center of East Bay 106 Cal Rptr 883 (1973) .. 12.480, 22.630

Table of Cases xliii Janvier v Sweeney [1919] 2 KB 316 .......................................... 30.60, 30.70, 30.210, 30.430, 30.440 Jarka v Yellow Cab Co 637 NE 2d 1096 (Ill 1994) .................................................................... 18.240 Jarrett v Jones 258 SW 3d 442 (Mo 2008) .................................................................................. 18.240 Jarvie v Sharp 1992 SLT 350 ....................................................................................................... 17.190 Jarvis v Swan’s Tours Ltd [1973] QB 233 .................................................................................. 27.140 Jennison v Baker [1972] 2 QB 52 ................................................................................................ 30.720 Jeppsen v Jensen 155 P 429 (Utah 1916) .................................................................................... 30.320 Jessamy v Ehren 153 F Supp 2d 398 (2001) ................................................................................... 5.60 Jinks v Abraham (unreported, Ont CA, Doc Nos CA 181/87, 195/87, 23 June 1989) .. 7.630, 11.130 Jinks v Cardwell (1987) 39 CCLT 168 ....................................... 7.630, 11.130, 17.40, 21.100, 28.110 Jobling v Associated Dairies Ltd [1982] AC 794 ........................................................................ 17.150 John Mill & Co Ltd v Public Trustee [1945] NZLR 347 ............................................................. 7.340 Johnson v American National Red Cross 578 SE 2d 106 (Ga 2003) ......................................... 29.720 Johnson v Berry Street Victoria Inc [2015] VSC 428 ................................................................. 20.530 Johnson v Blue Cross/Blue Shield of Texas 375 F Supp 2d 545 (2005) ................................... 30.620 Johnson v Box Hill Institute of TAFE [2014] VSC 626 ................................................ 20.370, 20.570 Johnson v Commonwealth (1927) 27 SR (NSW) 133 ........................................ 30.80, 30.270, 30.310 Johnson v Department of Community Services [1999] NSWSC 641 ........................................ 21.360 Johnson v Department of Community Services (2000) Aust Torts Rep 81-540 ........... 21.360, 21.370 Johnson v Jamaica Hospital 467 NE 2d 502 (NY 1984) ............................................... 11.610, 22.740 Johnson v Rogers 763 P 2d 771 (Utah 1988) .................................................................... 3.760, 3.770 Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990) ... 3.790, 5.60, 6.160, 14.70, 22.630 Johnson v Sampson 208 NW 814 (Minn 1926) ............................................................. 30.600, 30.630 Johnson v State 334 NE 2d 590 (NY 1975) ................................................................................ 28.110 Johnson v Unisys Ltd [2003] 1 AC 518 ........................................................................................ 20.20 Johnson v West Virginia University Hospitals Inc 413 SE 2d 889 (W Va 1991) ...................... 29.720 Johnstone v Bloomsbury Health Authority [1992] 1 QB 333 ............. 20.110, 20.130, 20.330, 20.810 Jolley v Sutton London Borough Council [2000] 1 WLR 1082 ................................................... 7.600 Jones v Boyce (1816) 1 Stark 493; 171 ER 540 ........................................................................... 5.170 Jones v Clinton 997 F Supp 657 (1998) ...................................................................................... 30.630 Jones v Department of Employment [1989] QB 1 ........................................................................ 7.140 Jones v Griffiths [1969] 1 WLR 795 .............................................................................................. 29.60 Jones v Livox Quarries Ltd [1952] 2 QB 608 ............................................................................... 16.40 Jones v Stroud District Council [1986] 1 WLR 1141 ................................................................... 7.140 Jones v Wabigwan (1969) 8 DLR (3d) 421 ................................................................................... 7.320 Jones v Wright [1991] 1 All ER 353 ............................................................................................... 3.30 Jones v Wright [1991] 3 All ER 88 ................................................................................................. 3.30 Jordan v City of Philadelphia 66 F Supp 2d 638 (1999) ............................................................ 30.630 Jorgensen v BF Yenney Construction Co Inc 679 NYS 2d 775 (1998) ....................................... 9.450 Joslyn v Berryman (2003) 214 CLR 552 ....................................................................................... 7.170 Joudrey v Swissair Transport Co (2004) 225 NSR (2d) 156 ........................................................ 3.380 Joudrey v Swissair Transport Co (2004) 713 APR 156 ...................................... 24.40, 25.120, 25.220 Joyce v Sengupta [1993] 1 WLR 337 ............................................................................................ 6.100 Joynson v Queensland [2004] QSC 154 ...................................................................................... 20.290 Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 ................................................................... 7.140 Justus v Atchison 565 P 2d 122 (Cal 1977) ........................................................ 10.30, 12.480, 22.630

K Kahn v Hip Hospital Inc 487 NYS 2d 700 (1985) ..................................................................... 22.630 Kallstrom v United States 43 P 2d 162 (Alaska 2002) ............................................................... 26.360 Kamloops, City of v Nielsen [1984] 2 SCR 2 ............................................................................... 7.180 Kanzler v Renner 937 P 2d 1337 (Wyo 1997) ............................................................... 30.620, 30.630 Kaplan v Canada Safeway Ltd (1968) 68 DLR (2d) 627 ............................................................. 16.70 Karamanolis (Next friend of) v McAllister [1980] OJ No 219 ......................................... 10.30, 17.60 Kardan v Bartholdt (1995) 83 OAC 158 ................................................................. 4.130, 6.450, 17.60

xliv Table of Cases Kars v Kars (1996) 187 CLR 354 ................................................................................................ 12.150 Kately v Wilkinson 195 Cal Rptr 902 (1983) ................................................................................ 9.220 Kaufman v Miller 414 SW 2d 164 (Tex 1967) .................................................................... 8.70, 14.70 Kaufman v Physical Measurements Inc 615 NYS 2d 508 (1994) .............................................. 29.720 Kavanagh v Akhtar (1998) 45 NSWLR 588 ........................................................... 6.110, 7.410, 8.320 Kaye v Robertson [1991] FSR 62 ................................................................................................ 30.710 Keck v Jackson 593 P 2d 668 (Ariz 1979) .................................................................................... 3.770 Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 .......... 17.230, 20.460, 20.470, 20.480, 20.540, 20.570 Keeley v Pashen [2005] RTR 139 ................................................................................................ 11.510 Keen v Louisiana Farm Bureau Insurance Co 583 So 2d 835 (La 1991) .................................... 9.220 Keen v Tayside Contracts 2003 SLT 500 ............................................... 3.580, 19.400, 19.410, 25.210 Keeys v Queensland [1998] 2 Qd R 36 ......................................................................................... 7.570 Kelley v Kokua Sales & Supply Ltd 532 P 2d 673 (Haw 1975) .................................. 11.680, 11.690 Kelly v Attorney General of Canada (2007) 266 Nfld & PEIR 112 ............................... 6.310, 21.420 Kelly v Bon Secours Health System Ltd [2012] IEHC 21 ......................................................... 20.720 Kelly v Brigham & Women’s Hospital 745 NE 2d 969 (Mass 2001) ............... 3.790, 18.190, 18.230 Kelly v Hennessy [1993] ILRM 530 .............................................................................................. 3.670 Kelly v Hennessy [1995] 3 IR 253 ... 3.670, 3.680, 4.10, 4.40, 7.410, 7.440, 10.320, 11.540, 11.670, 12.120, 12.180, 12.290, 15.150, 19.450, 20.730, 26.320, 29.330, 29.360 Kelly v Northern Meat Holdings Pty Ltd [2001] QSC 14 ............................................ 20.230, 20.540 Kelly and Criminal Code of Queensland, Re (unreported, Qld SC, No 363 of 1991, 26 February 1992) ........................................................................................................................................ 30.260 Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 ... 2.170, 9.140, 10.160, 11.400, 22.280 Kemppainen (Litigation guardian of) v Winter (1997) 143 DLR (4th) 760 .............................. 13.630 Kemppainen (Litigation guardian of) v Winter [1997] OJ No 632 .............................................. 10.30 Kendrew v McDonald’s Restaurants of Canada Ltd 2008 SKQB 50 ............................................ 4.50 Kennedy v Accident Compensation Corporation [1992] NZAR 107 .............................. 3.460, 19.460 Kenney v Wong Len 128 A 343 (NH 1925) .................................................................................. 3.760 Kent v Mullally (No 2) [2016] WADC 37 .................................................................................... 2.320 Kentucky Traction Terminal Co v Roman’s Guardian 23 SW 2d 272 (Ky 1929) ....................... 3.760 Kerby v Redbridge Health Authority [1993] 4 Med LR 178 ...................................................... 22.180 Kerins v Hartley 21 Cal Rptr 2d 621 (1993) ............................................................................... 29.740 Kerins v Hartley 33 Cal Rptr 2d 172 (1994) ............................................................................... 29.740 Kernested v Desorcy [1978] 3 WWR 623 ....................................................................................... 4.50 Keys v British Gas plc (unreported, Eng CA, 10 July 1991) ....................................................... 7.600 Keys v Mistahia Regional Health Authority [2001] 320 AR 87 ................................................. 22.610 Khaze v Routledge [1996] OJ No 1855 ......................................................................... 10.310, 13.630 Khodaparast v Shad [2000] 1 WLR 618 ........................................................................................ 6.100 Khorasandjian v Bush [1993] QB 727 ...................... 30.100, 30.120, 30.190, 30.210, 30.670, 30.720 Kimberly-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264 ........................................ 13.270 Kindret v Cutrozzolo (1986) 72 AR 126 ..................................................................................... 30.230 King v Accident Compensation Corporation [1992] NZAR 65 .................................................... 3.460 King v Bristow Helicopters Ltd [2002] 2 AC 628 ............................................................... 4.60, 5.410 King v Bristow Helicopters Ltd 2001 SC 54 ... 5.410, 23.20, 23.70, 23.190, 23.200, 23.210, 23.230, 23.240, 23.260 King v Liverpool City Council [1986] 1 WLR 890 ...................................................................... 7.710 King v Philcox (2015) 89 ALJR 582 ...... 1.110, 2.200, 2.290, 2.360, 2.390, 2.480, 4.90, 7.60, 7.410, 9.140, 9.240, 10.170, 10.180, 11.430, 12.460, 13.210, 13.490, 13.500, 13.520, 13.530, 13.540, 13.550, 17.40 King v Phillips [1953] 1 QB 429; [1952] 2 All ER 459 ......... 1.20, 2.50, 6.450, 7.350, 7.400, 7.410, 7.480, 7.550, 7.730, 10.40, 11.40, 12.60, 12.550, 14.60, 17.40 King v Queensland Corrective Services Commission [2000] QSC 342 ....................... 19.140, 20.550 Kingi v Partridge (unreported, NZHC, CP 16/93, 2 August 1993) .............................................. 3.480 Kipps v Caillier 197 F 3d 765 (1999) .......................................................................................... 13.610 Kirby v Jules Chain Stores Corporation 188 SE 625 (NC 1936) ............................................... 30.620 Kirk v Nominal Defendant (Qld) [1984] 1 Qd R 592 .................................................................. 16.40

Table of Cases xlv Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283 ..................... 16.220 Kirkland-Veenstra v Stuart (2008) 23 VR 1 ........................................................ 18.70, 22.810, 22.820 Kirkpatrick v Canadian Pacific Railway (1902) 35 NBR 598 ........................................................ 2.10 Klein v New South Wales [2004] NSWSC 837 .......................................................................... 11.870 Klein v New South Wales [2005] NSWSC 1341 ............................................................. 2.170, 11.870 Klein v New South Wales (2006) Aust Torts Rep 81-862 .......................................................... 11.870 Kleincke v Farmers Cooperative, Supply and Shipping 549 NW 2d 714 (Wis 1996) .............. 27.110 Kline v Kline 64 NE 9 (Ind 1902) ................................................................................................. 5.100 Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 ........... 9.180, 15.30, 15.50, 15.80, 15.100, 15.140, 15.150, 15.170, 16.60 Knierim v Izzo 174 NE 2d 157 (Ill 1961) ................................................................................... 30.640 Knight v Pedersen [1999] NSWCA 333 ........................................................................... 13.80, 13.130 Knightley v Johns [1982] 1 WLR 349 ......................................................................................... 19.290 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 ........... 7.300, 8.200, 18.170, 19.190, 19.200, 19.210, 19.220, 20.20, 20.30, 20.260, 20.280, 20.290, 20.300, 20.310, 20.320, 20.340, 20.350, 20.360, 20.370, 20.380, 20.390, 20.420, 20.430, 20.440, 20.450, 20.460, 20.470, 20.480, 20.490, 20.510, 20.570, 20.590, 20.620, 20.770, 20.780, 20.790, 20.800, 20.810, 20.820, 20.850 Koester v VCA Animal Hospital 624 NW 2d 209 (Mich 2000) ................................................ 27.110 Kohan v Stanbridge (1916) 16 SR (NSW) 576 ............................................................................... 6.80 Kohn v State Government Insurance Commission (1976) 15 SASR 255 ......... 9.200, 11.100, 11.110, 15.30, 15.170, 17.140, 22.160 Kolegas v Heftel Broadcasting Co 607 NE 2d 201 (Ill 1992) .................................................... 30.650 Kotai v Queen of the North (Ship) (2009) 70 CCLT (3d) 21 ................................ 3.380, 6.400, 17.40 Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 .......... 23.70, 23.130, 23.140, 23.150, 23.170, 23.190, 23.250, 23.280, 23.310 Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350 ...................................................... 7.600 Kralj v McGrath [1986] 1 All ER 54 ........ 4.130, 6.70, 6.250, 8.310, 10.30, 10.230, 10.300, 11.120, 12.380, 12.510, 17.150, 17.210, 22.300, 22.310 Kramer v Downey 680 SW 2d 554 (Tex 1989) .......................................................................... 30.650 Krishna v Loustos [2000] NSWCA 272 .............................................................. 7.560, 22.170, 22.200 Kriventsov v San Rafael Taxicabs Inc 229 Cal Rptr 768 (1986) ................................................. 9.220 Krouse v Graham 562 P 2d 1022 (Cal 1977) ................................................................... 10.30, 10.430 Kruger v Commonwealth (unreported, Aust HC, M21 of 1995, D5 of 1995, 31 July 1997) ... 21.370 Kuehne v Warren Shire Council (2011) 180 LGERA 383 ............... 2.290, 4.90, 8.230, 9.240, 10.180 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 ... 7.220, 7.290, 20.430, 20.590 Kunsler ex rel Kunsler v International House of Pancakes Inc 799 NYS 2d 863 (2005) ......... 30.640 Kurpgeweit v Kirby 129 NW 177 (Neb 1910) ............................................................... 30.600, 30.610 Kush v Lloyd 616 So 2d 415 (Fla 1992) ..................................................................................... 18.240 Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318 ........ 4.130, 11.100, 12.370, 16.50, 17.40

L L v Commonwealth (1976) 10 ALR 269 ......................................................................................... 6.80 L(D) v Children’s Aid Society of the District of Thunder Bay [1987] OJ No 1461 ..... 7.410, 21.300 L (A Child) v Reading Borough Council [2001] 1 WLR 1575 ..................................... 21.260, 21.420 L Shaddock & Associates Pty Ltd v Parramatta City Council (1978) 38 LGRA 23 ................... 7.140 LR v British Columbia (unreported, BCSC, Docket C980463, 30 October 1998) .................... 12.180 La Salle Extension University v Fogarty 253 NW 424 (Neb 1934) ............................. 30.610, 30.630 Labouisse v Orleans Parish School Board 757 So 2d 866 (La 2000) ........................................ 13.600 Lady Archer v Williams [2003] EWHC 1670 ............................................................................... 6.140 Lafferty v Manhasset Medical Center Hospital 429 NE 2d 789 (NY 1981) ..... 9.220, 22.630, 25.150 Laing Ltd v Essa [2004] EWCA Civ 2 ............................................................................................ 3.60 Lakatos v Republic Waste Services of Ohio 2004 WL 229517 .................................................. 26.360 Lamb v Brandt [1982] BCJ No 1151 ................................................................................. 17.60, 17.70 Lamb v Brandt (1984) 56 BCLR 74 .............................................................................................. 17.70 Lamb v Cotogno (1987) 164 CLR 1 ................................................................................................ 6.70

xlvi Table of Cases Lambert v Brewster 125 SE 244 (WVa 1924) ............................................................................. 30.640 Lambert v Cardiff County Council [2007] EWHC 869 .............................................................. 21.300 Lampert v Eastern National Omnibus Co [1954] 1 WLR 647 ..................................................... 16.70 Lancaster v Birmingham City Council (unreported, Birmingham County Court, 5 July 1999) . 20.600 Landreneau v Fruge 676 So 2d 701 (La 1996) ........................................................................... 13.610 Landreth v Reed 570 SW 2d 486 (Tex 1978) .................................................................. 9.220, 10.420 Landry v Florida Power & Light Corporation 799 F Supp 94 (1992) ......................................... 3.760 Lane v Cole 88 F Supp 2d 402 (2000) ........................................................................................ 30.630 Lane v Holloway [1968] 1 QB 379 ................................................................................................. 6.80 Lane v Northern NSW Local Health District [2013] NSWDC 12 ............................................. 13.310 Lane v Northern NSW Local Health District (No 3) (2015) Aust Torts Rep 82-194; [2014] NSWCA 233 .............................................................................................................................. 13.310, 22.280 Lane v Willis [1972] 1 WLR 326 .................................................................................................. 7.590 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ......................................... 30.230 Langeslag v Kymn Inc 664 NW 2d 860 (Minn 2003) ................................................................ 30.630 Lapointe v Champagne (1921) 64 DLR 520 ................................................................................... 2.10 Larkin v Dublin City Council [2008] 1 IR 391 ............................................................... 3.670, 19.450 Larner v George Weston Foods Ltd [2014] VSCA 62 ........................ 20.390, 20.440, 20.470, 20.790 Larsen v Banner Health System 81 P 3d 196 (Wyo 2003) ........................................... 12.480, 18.230 Larson v Chase 50 NW 238 (Minn 1891) ............................................................ 3.760, 18.40, 30.630 Lascurain v City of Newark 793 A 2d 731 (NJ 2002) ................................................................ 30.630 Latham v Singleton [1981] 2 NSWLR 843 ................................................................................... 6.100 Latimer v Canadian National Railway Co 2007 CanLII 5689 .................................................... 11.530 Launchbury v Morgans [1971] 2 QB 245 ...................................................................................... 7.160 Laurel v Prince 154 So 3d 95 (Ala 2014) ................................................................................... 29.740 Lauterbach v Shiley Inc 1991 WL 148137 .................................................................................. 29.730 Lawrence v CJ Evans (Properties) Ltd (1965) 196 EG 407 ........................................................... 1.30 Lawrence v Pembrokeshire County Council [2007] HRLR 30 .................................................. 21.320 Lawson v Management Activities Inc 81 Cal Rptr 745 (1999) .................................................. 23.400 Lawton v BOC Transhield Ltd [1987] ICR 7 .............................................................................. 28.210 Le Lievre v Gould [1893] 1 QB 491 ............................................................................................. 7.110 LeBlanc v Louque 798 So 2d 216 (La 2001) .............................................................................. 13.600 Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 .... 3.80, 3.200, 4.20, 7.190, 18.110, 18.130, 20.240, 21.430 Leckie Estate v Stevenson (1997) 56 Alta LR (3d) 431 ............................................................. 11.520 Ledbetter v Brown City Savings Bank 368 NW 2d 257 (Mich 1985) ....................................... 30.630 Ledford v Delta Airlines Inc 658 F Supp 540 (1987) .................................................... 11.550, 11.880 Ledger v Commonwealth (unreported, Fed Ct, No G127 of 1990, 18 April 1991) ........ 5.220, 17.40, 25.90 Ledger v Tippitt 210 Cal Rptr 814 (1985) ....................................................................... 9.220, 30.320 Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 .......... 2.290, 4.10, 9.240, 10.180, 12.460, 13.310, 16.160, 17.230 Lee v Comcare (unreported, AAT, 27 March 2003) ...................................................................... 20.30 Lee v State Farm Mutual Insurance Co 533 SE 2d 82 (Ga 2000) ............................................... 3.760 Lee Cooper Ltd v CH Jeakins & Sons Ltd [1967] 2 QB 1 .......................................................... 7.120 Lee Wah v Lok Wai Wa [2015] HKCFI 1144 ........................................................ 3.730, 3.740, 3.750 Lees v Sea Breeze Health Care Center 391 F Supp 1102 (2005) .............................................. 30.630 Lehman v Brooklyn City Railroad Co 47 Hun NY 355 (1888) ................................................... 3.760 Lehmann v Wieghat 917 SW 2d 379 (Tex 1996) ........................................................................ 10.440 Leigh v London Ambulance Service NHS Trust [2014] Med LR 134 ......................................... 5.220 Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350 ............................................ 7.160 Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 ............................................ 7.140 Leighton v Leighton (1963) 41 DLR (2d) 166 .............................................................................. 6.100 Leitch v Accident Compensation Corporation [1990] 2 NZAR 26 ............................................ 20.750 Leitch v Reynolds [2005] NSWCA 259 ........................................................................................ 6.130 Lejeune v Rayne Branch Hospital 539 So 2d 849 (La 1989) ..................................................... 15.280 Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990) ................... 3.790, 5.60, 13.580, 13.610

Table of Cases xlvii Lenoard v British Columbia Hydro & Power Authority (1964) 49 DLR (2d) 422 ..................... 8.370 Leo v Hillman 665 A 2d 572 (Vt 1995) ........................................................................... 3.770, 30.640 Leonard v Pollock [2012] WASCA 108 ......................................................................................... 2.170 Leong v Takasaki 520 P 2d 758 (Haw 1974) ..................................................................... 6.160, 9.220 Leschyna v CIBC World Markets Inc 2005 CanLII 49205 ........................................................ 30.170 Less v Hussain [2013] Med LR 383 ............................................................................... 22.560, 22.570 Levi v Unisure Pty Ltd [2000] SASC 167 .................................................................................... 20.30 Lew v Fenkarek (1997) 40 BCLR (3d) 361 .................................................................................. 8.370 Lew v Mount St Joseph Hospital Society (1997) 36 CCLT (2d) 35 ............... 21.100, 28.240, 28.260 Lew v Mount St Joseph Hospital Society (1997) 44 BCLR (3d) 84 ............................ 21.100, 28.240 Lew v Mount St Joseph Hospital Society (1998) 55 BCLR (3d) 394 .............................. 6.70, 28.240 Lewis v Commonwealth [1999] FCA 1292 ...................................................................... 16.290, 25.90 Lewis v Di Donna 743 NYS 2d 186 (2002) ................................................................................ 27.110 Lewis v Holy Spirit Association for the Unification of World Christianity 589 F Supp 10 (1983) ............................................................................................................. 30.650 Ley v Hamilton (1935) 153 LT 384 ............................................................................................... 6.100 Li v Yellow Cab Co 532 P 2d 1226 (Cal 1969) .......................................................................... 16.100 Liberty Mutual Insurance Co v Steadman 968 So 2d 592 (Fla 2007) ....................................... 30.630 Liffen v Watson [1940] 2 All ER 213 ............................................................................................ 17.40 Lightman v Flaum 687 NYS 2d 562 (1999) ................................................................................ 30.650 Lim Poh Choo v Camden Area Health Authority [1980] AC 174 .................................................. 6.50 Limone v United States 336 F Supp 2d 18 (2004) ..................................................................... 30.640 Lindgren v Moore 907 F Supp 1183 (1995) ................................................................................ 30.630 Lindley v Knowlton 176 P 440 (Cal 1918) ................................................................................... 3.770 Lindsey v Visitec Inc 804 F Supp 1340 (1992) ............................................................................. 9.220 Linebaugh v Sheraton Michigan Corporation 497 NW 2d 585 (Mich 1993) ............................ 30.630 Lions Eye Bank of Texas v Perry 56 SW 3d 872 (Tex 2001) .................................................... 10.440 Lisle v Brice [2000] QDC 228 ....................................................................................................... 8.300 Lisle v Brice [2002] 2 Qd R 168 ................................................................................................... 8.300 Littley v Brooks [1932] 2 DLR 386 ............................................................................................ 16.170 Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 586 ....... 22.580 Locke v Bova [2004] NSWSC 534 ................................................................................................ 17.40 Lockett v Hill 51 P 3d 5 (Or 2002) ............................................................................................. 27.110 Lockwood v McCaskill 138 SE 2d 541 (NC 1964) ...................................................................... 8.340 Lodge v Fraser Health Authority (2009) 91 BCLR (4th) 44 ...................................................... 27.160 Loffo v Giang (unreported, NSWCA, No 429 of 1986, 13 December 1990) ....................... 8.70, 8.80 Long v PKS Inc 16 Cal Rptr 2d 103 (1993) .................................................................... 3.780, 18.190 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 ..................................................... 30.50 Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489 .......................................................................... 6.100 Lough v Ward [1945] 2 All ER 338 .............................................................................................. 6.100 Louie v Lastman (2001) 199 DLR (4th) 726 ................................................................. 30.160, 30.170 Louie v Lastman (2003) 217 DLR (4th) 257 ................................................................. 30.160, 30.170 Louisville & N Railway Co v Hull 68 SW 433 (Ky 1902) .............................................. 6.160, 18.40 Love v Kramer 606 A 2d 1175 (Pa 1992) ................................................................................... 22.640 Love v Port of London Authority [1959] 2 Lloyd’s Rep 541 ...................................................... 8.370 Lowns v Woods (1996) Aust Torts Rep 81-376 ............................................................. 22.250, 22.280 Lubowitz v Albert Einstein Medical Center 623 A 2d 3 (Pa 1993) ........................................... 29.720 Lumley v Gye (1853) 2 E & B 216; 118 ER 749 ......................................................................... 30.20 Lutzkie v SAR 1974 (4) SA 396 .................................................................................................... 6.250 Lynch v Commonwealth (unreported, NSWSC, No 20101 of 1996, 16 October 1998) ........... 24.150 Lynch v Knight (1861) 9 HL Cas 577; 11 ER 854 .................................................... 6.20, 6.70, 6.100 Lynch v Lynch (1991) 25 NSWLR 411 ....................................................................................... 16.170

M M v Australian Capital Territory [2012] ACTSC 20 ................................................................... 22.780 M(K) v M(H) [1992] 3 SCR 6 ......................................................................................................... 6.80

xlviii

Table of Cases

MA v Swanson [2004] NSWSC 30 ................................................................................ 21.250, 21.310 MAK v Dewsbury Health Care NHS Trust [2003] Lloyd’s Rep Med 13 .................................. 21.270 MBM Co Inc v Counce 596 SW 2d 681 (Ark 1980) .................................................... 30.620, 30.630 MacDermid v Discover Financial Services 488 F 3d 721 (2007) .............................................. 30.630 MacFarlane v Tayside Health Board [2000] 2 AC 59 ................................................................... 7.190 MacKenzie v Attorney-General [2015] NZHC 191 ..................................................................... 30.720 MacKinnon v Bluescope Steel (AIS) Pty Ltd [2009] NSWCA 94 ............................... 20.460, 20.780 MacKinnon v Bluescope Steel Ltd [2007] NSWSC 774 ............................................................ 20.780 Macartney v Islic [1996] OJ No 411 ................................................................................ 7.410, 10.450 Macartney v Warner (2000) 183 DLR (4th) 345 ........................................................... 10.450, 13.630 Macdonald v McNeil [1953] 1 DLR 755 .................................................................................... 16.170 Macpherson v Commissioner for Government Transport (1959) 76 WN (NSW) 352 ..... 4.130, 13.50 Macsenti v Becker 237 F 3d 1223 (2001) ................................................................................... 30.630 Maddalena v CSR Ltd [2004] WASCA 231 ................................................................... 29.220, 29.270 Madden v Doohan [2012] IEHC 422 ........................................................................................... 30.300 Madigan v City of Santa Ana 193 Cal Rptr 593 (1983) ............................................................. 10.430 Madigan v Hughes [1999] NSWSC 183 ........................................................................ 13.170, 16.120 Madrid v Lincoln County Medical Center 923 P 2d 1154 (NM 1996) ...................................... 29.720 Mafo v Adams [1970] 1 QB 548 ................................................................................................... 6.100 Magill v Magill (2006) 226 CLR 551 .................................................. 30.130, 30.150, 30.310, 30.460 Magnus v South Pacific Air Motive Pty Ltd (1997) 78 FCR 456 ........ 23.90, 23.100, 23.330, 23.400 Magnus v South Pacific Air Motive Pty Ltd (1998) 157 ALR 443 ................................................ 1.20 Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465 ................. 8.70, 10.30, 10.150, 23.350 Maher v Jabil Global Services Ltd [2008] 1 IR 25 ..................................................................... 20.730 Mahnke v Moore 77 A 2d 923 (Md 1951) ..................................................................... 30.260, 30.620 Maijet v Santam Ltd [1997] 4 All SA 555 .......................... 3.550, 4.160, 5.220, 7.410, 8.100, 10.290 Mainland Sawmills Ltd v IWA-Canada 2006 BCSC 1195 ............................................ 30.190, 30.240 Maiorana v Zammit (unreported, NSWCA, No 110 of 1987, 29 February 1988) ....... 10.290, 13.170 Mair v DSG International plc [2013] Scot SC 68 ....................................................................... 20.830 Majca v Beekil 682 NE 2d 253 (Ill 1997) ..................................................................... 29.340, 29.720 Makgoana v Ministry of Health [2003] BWHC 11 ....................................................................... 3.540 Malcolm v Broadhurst [1970] 3 All ER 508 ........................................................ 8.310, 8.370, 12.380 Maldonado v National Acme Co 73 F 3d 642 (1996) ..................................................... 3.780, 18.240 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 ....................................................................... 17.160 Malette v Shulman (1987) 47 DLR (4th) 18 ................................................................................... 6.80 Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 ......................................................... 13.100 Mallett v Dunn [1949] 2 KB 180 ..................................................................................... 16.70, 16.170 Mallon v Monklands District Council 1986 SLT 347 ............................................ 4.40, 17.40, 21.220 Maloney v Conroy 545 A 2d 1059 (Conn 1988) ......................................................................... 22.640 Manawatu County v Rowe [1956] NZLR 78 ................................................................................ 16.70 Mancer v Commonwealth [1999] NSWSC 693 .......................................................................... 24.150 Mann Boudoir Car Co v Dupre 54 F 646 (1893) ............................................................................ 8.90 Mannall v New South Wales [2001] NSWCA 327 ........................................................ 20.230, 20.540 Mannall v New South Wales [2005] NSWCA 367 ..................................................................... 20.460 Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 .... 2.260, 2.480, 8.230, 17.230, 19.210, 19.220, 24.170 Mantis v United Cerebral Palsy Association 662 NYS 2d 698 (1997) ...................................... 30.620 Manufacturers Mutual Insurance Ltd v Hooper (1988) 5 ANZ Insurance Cases 60-849 ......... 11.620, 22.140 Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 ................... 7.180, 7.190, 7.240 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 .......................................................... 7.570 Marchica v Long Island Railroad Co 31 F 3d 1197 (1994) .......................................... 29.720, 29.740 Marchlewski v Hunter Area Health Service [1998] NSWSC 771 ......... 9.130, 11.130, 12.50, 13.130, 17.40, 17.160, 17.210, 22.180, 22.200 Marcroft v Scruttons Ltd [1954] 1 Lloyd’s Rep 395 .................................................................. 17.170 Marinko v Masri (2000) Aust Torts Rep 81-581; [1999] NSWCA 364 ............ 4.130, 11.120, 22.200

Table of Cases xlix Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373 ... 2.410, 13.430, 21.310 Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989) ....... 18.210, 18.220, 18.230, 21.140 Marra v New Zealand Refrigerating Co Ltd [1963] NZLR 432 .................................................. 8.340 Marriott v Sedco Forex International Resources Ltd 827 F Supp 59 (1993) ............................. 29.720 Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 . 1.20, 3.340, 7.410, 7.620, 9.190, 9.210, 10.80, 17.40 Martin v Ezeagu 816 F Supp 20 (1993) ...................................................................................... 30.630 Martin v Mineral Springs Hospital (2001) 283 AR 178 ............................................................. 22.600 Martin v Teeling [2010] NSWSC 814 ......................................................................................... 22.140 Martin By and Through Martin v United States 779 F Supp 1242 (1991) .... 10.440, 11.550, 18.220, 18.230 Martinez v Bohls Bearing Equipment Co 361 F Supp 2d 608 (2005) ....................................... 30.620 Marx v Attorney General [1974] 1 NZLR 164 .............................................................................. 7.370 Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 ...................................... 8.290, 8.310, 27.90 Mason v Campbell (unreported, Eng QBD, 7 November 1988) .................................................. 8.310 Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361 .......... 6.30, 6.40, 6.280, 6.300, 6.320, 6.380, 17.200, 21.230, 29.570 Massey v Massey 867 SW 2d 766 (Tex 1993) ............................................................................ 30.650 Matei v McCrorie (unreported, Vic SC, No 27 of 1985, 22 May 1986) ............... 16.50, 17.40, 17.80 Matekane v Attorney General 1991-92 LLR-LB 153 ............................................. 3.540, 7.410, 24.40 Mather v British Telecommunications plc 2001 SLT 325 ...................................... 4.70, 5.220, 20.690 Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 ............................................... 17.40 Mathie v Fries 935 F Supp 1284 (1996) ...................................................................................... 30.630 Mathison v Hofer (1984) 28 CCLT 196 .......................................................................................... 4.40 Mattingly v Sheldon Jackson College 743 P 3d 356 (Alaska 1987) .......................................... 10.420 Mavor v Hall (1995) 14 SR (WA) 163 ............................................................................... 8.70, 11.100 Maxwell v Mather (unreported, NSWSC, No 14790 of 1983, No 9232 of 1983, 16 December 1988) .................................................................................................... 10.310, 13.170 Mazzagatti v Everingham 516 A 2d 672 (Pa 1986) ....................................................... 10.420, 11.130 Mbasogo v Logo Ltd [2007] QB 846 .................................................. 30.100, 30.110, 30.190, 30.450 McAllister v Ha 496 SE 2d 577 (NC 1998) .................................................................................. 21.70 McCall v Abelsz [1976] QB 585 .................................................................................................. 30.720 McCarey v Associated Newspapers [1965] 2 QB 86 .................................................................... 6.100 McCarroll v Northern Ireland Housing Executive [2012] NIQB 83 .......................................... 20.700 McCarthy v Chief Constable of South Yorkshire Police (unreported, Eng QBD, 11 December 1996) ...................................................................... 3.30, 9.170, 9.390, 9.410, 10.260 McCarthy v City of Cleveland Heights 583 NE 2d 981 (Ohio 1989) ........................................ 10.420 McCarthy v Highland Council 2012 SLT 95 ............................................................................... 20.830 McCarthy v Wellington City [1966] NZLR 481 ........................................................................... 7.160 McCartney v Andrews [1987] OJ No 1092 ...................................................................... 7.410, 10.290 McClurg v Royal Ulster Constabulary [2007] NIQB 53 ............................................... 20.700, 20.830 McCoy v Keating [2011] IEHC 260 ...................................................... 9.130, 10.290, 16.270, 25.180 McCunney v Clary 576 SE 2d 635 (Ga 2003) .............................................................................. 3.760 McDaid v Letterkenny Seafoods [1996] ILLW 397 .................................................................... 22.790 McDaid v Snodgrass [2009] NICA 18 ........................................................................................... 9.210 McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45 . 4.40, 6.50, 6.260, 6.270, 6.280, 6.380, 17.40 McDonald v New South Wales [2001] NSWCA 303 ................................................................. 19.150 McDonnell v Wellington Area Health Board (unreported, NZHC, CP 250/93, 8 December 1994) ..................................................................................................................... 3.480 McDougall v Lamm 48 A 3d 312 (NJ 2012) ............................................................................... 27.110 McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 .... 30.140, 30.190, 30.210, 30.290, 30.380 McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 ............... 30.140

l

Table of Cases

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 ...... 3.20, 3.190, 7.500, 8.70, 8.80, 9.490, 19.240, 19.300, 24.70, 24.80, 24.90, 24.100, 24.120, 24.180, 25.210, 24.290, 25.350, 25.400 McFarlane v Tayside Health Board [2000] 2 AC 59 ........................................................... 3.40, 7.180 McFarlane v Wilkinson [1996] 1 Lloyd’s Rep 406 ..................................................................... 24.110 McFarlane v Wilkinson [1997] 2 Lloyd’s Rep 259 ........................................................... 1.30, 24.110 McGeady v Saskatchewan Wheat Pool (1998) 174 Sask R 110 ................................... 30.170, 30.210 McGrath v Trintech Technologies Ltd [2004] IEHC 342 ........................................................... 20.730 McGuirk v University of New South Wales [2009] NSWSC 1424 ................... 2.290, 19.220, 20.420 McHale v Watson (1966) 115 CLR 199 ........................................................................................ 16.40 McHugh v Minister for Defence [2001] 1 IR 424 ......................................................... 20.720, 20.730 McKay v Essex Area Health Authority [1982] QB 1166 ................................................ 7.160, 16.170 McKellar v Container Management Services Ltd (1999) 165 ALR 409 ...................................... 6.100 McKenna v Hunter & New England Local Health District (2014) Aust Torts Rep 82-158 ...... 7.300, 9.240, 11.420, 13.410, 22.280 McKenzie v Lichter [2005] VSC 61 . 4.130, 11.400, 17.110, 17.120, 17.130, 17.170, 17.250, 22.180 McKethean v WMATA 588 A 2d 708 (DC 1991) ....................................................................... 10.420 McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 ........................... 1.70 McKiernan v Komarynsky 865 A 2d 1262 (Conn 2004) ............................................................ 22.640 McLaren v Bradstreet (1969) 113 SJ 471 .................................................................................... 12.370 McLaughlin v Long [1927] SCR 303 .......................................................................................... 16.170 McLean v Accident Compensation Corporation [1995] NZAR 342 ............................................ 3.460 McLean v Commonwealth (unreported, NSWSC, No 21250 of 1995, 28 February 1997) ...... 24.140 McLeish v Amoo-Gottfried & Co (The Times, 13 October 1993) ............................................... 21.60 McLelland v Greater Glasgow Health Board [1998] ScotCS 26 ................................................ 22.540 McLelland v Greater Glasgow Health Board 2001 SLT 446 .... 3.200, 6.430, 22.540, 22.560, 22.570 McLinden v Richardson 1962 SLT (Notes) 104 ................... 3.560, 7.350, 9.170, 9.190, 10.40, 24.40 McLoughlin v Arbor Memorial Services Inc (2004) 36 CCLT (3d) 158 ............................ 4.50, 7.410 McLoughlin v Jones [2002] QB 1312 ......... 3.200, 4.70, 4.130, 5.220, 7.190, 7.430, 18.120, 18.130, 18.140, 18.150, 18.160, 18.170, 21.60, 21.450 McLoughlin v O’Brian [1981] QB 599 ........................................ 7.140, 7.550, 9.170, 25.230, 25.430 McLoughlin v O’Brian [1983] 1 AC 410 ... 1.70, 1.100, 1.180, 1.200, 1.220, 2.50, 2.80, 2.90, 2.100, 3.30, 3.50, 3.340, 3.660, 3.700, 3.740, 4.10, 4.20, 4.30, 4.40, 4.120, 4.130, 6.50, 6.250, 6.430, 7.140, 7.150, 7.250, 7.260, 7.270, 7.410, 7.420, 7.430, 7.440, 7.550, 7.590, 8.140, 9.80, 9.90, 9.290, 9.310, 9.360, 9.440, 9.470, 10.30, 10.90, 10.100, 10.120, 10.130, 10.230, 10.240, 10.250, 10.290, 10.300, 10.310, 10.320, 10.340, 10.370, 11.50, 11.140, 11.180, 11.230, 11.490, 11.500, 11.520, 11.540, 11.580, 11.600, 11.710, 11.770, 11.820, 15.190, 15.230, 15.240, 16.130, 18.130, 20.100, 22.20, 22.290, 22.310, 22.340, 25.40, 25.50, 25.80, 25.230, 26.50, 26.80 McMillan v Singh (1984) 17 HLR 120 ........................................................................................... 6.90 McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214 ......... 3.340, 4.50, 7.360, 8.310, 21.180 McNally v City of Regina [1924] 2 DLR 1211 .............................................................................. 2.30 McNern v Metropolitan Police Commissioner (unreported, Eng CA, 18 April 2000) ........ 8.70, 8.80, 21.430 McNichol Estate v Mardell (1983) 43 AR 274 ............................................................................. 10.30 McNichol Estate v Mardell [1984] AJ No 2514 ............................................................................ 10.30 McQuay v Guntharp 986 SW 2d 850 (Ark 1999) ....................................................................... 30.630 McVeagh v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAE 1 ......................................................................................................................... 3.460 Mcloughlin v Arbor Memorial Services Inc (2004) 36 CCLT (3d) 158 .................................... 17.200 Mealey v Marella 744 A 2d 1226 (NJ 1999) ............................................................................... 10.440 Meates v Attorney-General [1983] NZLR 308 .............................................................................. 7.140 Media 24 Ltd v Grobler [2005] 3 All SA 297 ................................................................. 5.220, 20.760 Meek v British Railways Board (unreported, Eng QBD, 15 December 1983) ............... 19.240, 26.60 Meering v Grahame-White Aviation Co (1919) 122 LT 44 ............................................................ 6.80 Mehinovic v Vuckovic 198 F Supp 2d 1322 (2002) ................................................................... 30.630 Mellor v Moran (1985) 2 MVR 461 ...... 4.140, 7.410, 8.130, 9.260, 10.310, 11.180, 12.550, 17.180, 17.190 Mellor v Sheffield Teaching Hospital NHS Trust [2004] EWHC 780 ....................................... 10.340

Table of Cases li Mentzer v Western Union Telegraph Co 62 NW 1 (Iowa 1895) .................................................. 18.40 Meredith v Hanson 697 P 2d 602 (Wash 1985) .................................................. 9.220, 16.130, 16.220 Merlin v British Nuclear Fuels plc [1990] 3 All ER 711 ............................................................. 29.60 Merthyr Tydfil County Borough Council v C [2010] 1 FLR 1640 ............................................ 21.300 Metcalfe v Commonwealth (2008) Aust Torts Rep 81-934 ........................................................ 24.140 Metro-North Commuter Railroad Co v Buckley 521 US 424 (1997) .................. 3.760, 3.770, 29.750 Mewett v Commonwealth [2000] FCA 1045 ................................................................. 19.140, 25.210 Mewett v Commonwealth (2003) 200 ALR 679 .................................................. 4.20, 24.140, 25.210 Meyers v Hot Bagels Factory Inc 721 NE 2d 1053 (Ohio 1999) .................................................. 8.70 Meyers v Hot Bagels Factory Inc 721 NE 2d 1068 (Ohio 1999) .............................................. 30.630 Michael v Chief Constable of South Wales Police [2015] AC 1732 .......................................... 21.420 Michaud v Great Northern Nekoosa Corporation 715 A 2d 955 (Me 1998) ............................. 25.150 Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743 .......................... 12.110, 22.600 Midland Bank Trust Co v Hett, Stubbs & Kemp (a firm) [1979] Ch 384 ................................... 21.30 Midwest Radio Ltd v Arnold (1999) EOC 92-970 ................................................... 8.70, 8.80, 20.170 Migliori v Airborne Freight Corporation 690 NE 2d 413 (Mass 1998) ..................................... 25.150 Mik v Federal Home Loan Mortgage Corporation 743 F 3d 149 (2014) .................................. 30.620 Miley v Landry 582 So 2d 833 (La 1991) .................................................................................... 8.310 Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311 ............................... 16.70 Miller v Baltimore & OSW Rail Co 85 NE 499 (Ohio 1908) ..................................................... 1.150 Miller v Cook 273 NW 2d 567 (Mich 1978) .............................................................................. 30.640 Miller v Miller (2011) 242 CLR 446 ................................................................................ 7.170, 16.220 Miller v Ratner 688 A 2d 976 (Md 1997) ................................................................................... 30.620 Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 .. 5.220, 7.410, 7.500, 7.570, 8.80, 19.100, 19.110, 20.240, 20.550, 28.180 Miller v Wackenhut Services Inc 808 F Supp 697 (1992) .......................................................... 20.740 Millicent and District Hospital Inc v Kelly (unreported, SA FC, No SCGRG 2486 of 1995, 10 September 1996) ............................................................................................................ 7.570, 21.90 Mills v Armstrong, The Bernina (1888) 13 App Cas 1 ................................................................. 16.70 Mills v Australian Postal Corporation (1994) 50 FCR 47 ............................................................ 19.50 Mills v Central Sydney Area Health Service [2002] NSWSC 728 .................. 10.350, 11.390, 13.170 Milner v Carnival plc (trading as Cunard) [2010] 3 All ER 701 ............................................... 17.240 Miner v Canadian Pacific Railway (1911) 3 Alta LR 408 ................................................... 2.10, 6.160 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 ............................................................................................ 7.140, 7.690 Miskovic v Stryke Corporation Pty Ltd [2011] NSWCA 369 ............ 19.220, 20.420, 20.440, 20.790 Mississippi State Federation of Colored Women’s Club Housing for Elderly in Clinton Inc v LR 62 So 3d 351 (Miss 2010) ........................................................................................................... 10.440 Missouri K & T Rail Co v Hawkins 109 SW 221 (Tex 1908) ......................................... 6.160, 18.40 Mitchell v Clancy [1960] Qd R 532 ........................................................................ 4.50, 8.340, 12.550 Mitchell v Clancy [1960] Qd R 62 .............................................................. 4.50, 4.130, 8.340, 12.550 Mitchell v Rochester Railway Co 45 NE 354 (NY 1896) ............................ 1.150, 3.760, 6.20, 18.10 Mitchell v United Co-operatives Ltd [2012] EWCA Civ 348 .................................................... 19.410 Mitran v Williamson 197 NYS 2d 689 (1960) ............................................................... 30.620, 30.630 Mobaldi v Board of Regents of University of California 127 Cal Rptr 720 (1976) ..... 9.220, 12.480, 22.630 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 .............................. 21.150 Mokone v Sahara Computers (Pty) Ltd [2010] ZAGPPHC 279 ................................................ 20.760 Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980) ............. 3.790, 5.60, 6.160, 18.200, 18.210, 18.220, 18.230, 22.640, 28.110 Monie v Commonwealth [2003] NSWSC 1141 .......................................................................... 10.160 Monie v Commonwealth [2007] NSWCA 230 ................... 4.20, 4.40, 5.220, 10.450, 11.120, 16.200 Monie v Commonwealth [2007] NSWCA 505 .............................................................................. 9.130 Monis v The Queen (2013) 249 CLR 92 ....................................................................... 30.130, 30.460 Monk v PC Harrington Ltd [2009] PIQR P3 ........................................ 3.320, 25.450, 26.250, 26.260 Montgomery v Murphy (1982) 136 DLR (3d) 525 ................ 4.50, 4.120, 4.140, 4.160, 17.40, 17.90 Montinieri v Southern New England Telephone Co 398 A 2d 1180 (Conn 1978) ...................... 6.160

lii

Table of Cases

Montreal Street Railway Co v Walker (1903) 13 BR 324 .............................................................. 2.10 Moon v Guardian Postacute Services Inc 116 Cal Rptr 2d 218 (2002) .......................... 9.220, 18.220 Moore v News of the World [1972] 1 QB 441 ............................................................................. 6.100 Moore v Savage 359 SW 2d 95 (Tex 1962) ................................................................................ 30.630 Moorehead v JC Penney Co 555 SW 2d 713 (Tenn 1977) ......................................................... 30.630 Moores v Dixon (unreported, Manchester County Ct, 26 September 1991) ................................ 9.150 Moran v Moran [1999] NSWSC 1103 ............................................................................................. 6.70 Morancy v Morancy 593 A 2d 1158 (NH 1991) ......................................................................... 30.620 Morgan v Hightower’s Administrator 163 SW 2d 21 (Ky 1942) ................................................. 3.760 Morgan v Morgan (unreported, Fam Ct of Aust, No SY 9109/95, 9 May 1997) ...................... 30.210 Morgan v Tame (2000) 49 NSWLR 21 .. 1.180, 2.140, 3.230, 4.130, 7.280, 7.670, 8.40, 8.70, 8.160, 8.290, 11.200, 11.360, 11.370, 12.50, 12.70, 12.280, 12.420, 19.160, 20.220, 24.200, 24.270, 28.70 Morgan v Transport Accident Commission (unreported, Vic AAT, No 1995/40538, June 1998) ............................................................................................................................... 13.250 Morgans v Launchbury [1973] AC 127 ......................................................................................... 7.160 Moricz v Grundel Boilermaking & Engineering Works [1963] SASR 112 ................................. 8.330 Morris v Hartford Courant Co 513 A 2d 66 (Conn 1986) .......................................................... 19.470 Morris v Johnson Controls Ltd (2002) 169 Man R (2d) 183 ..................................................... 29.310 Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 ..... 1.80, 1.180, 4.20, 4.60, 5.220, 5.360, 5.410, 5.420, 5.440, 5.450, 5.480, 5.500, 23.70, 23.240, 23.260, 23.270, 23.280, 23.310, 23.370, 23.380, 23.390 Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 ............. 4.20, 5.410, 5.420, 23.70, 23.230, 23.240, 23.260 Morris v Maryland Casualty Co 657 So 2d 198 (La 1995) ........................................................ 13.610 Mortensen v Stewart Title Guarantee Co 237 P 3d 387 (Idaho 2010) ....................................... 30.620 Mortiboys v Skinner [1952] 2 Lloyd’s Rep 95 .................................................................. 8.310, 9.150 Morton v Douglas Homes Ltd [1984] 2 NZLR 548 .......................................................... 7.140, 16.70 Morton v Stack 170 NE 869 (Ohio 1930) ..................................................................................... 3.760 Morton v Wiseman 1989 SCLR 365 .................................................................................. 9.350, 17.40 Mosho v Phiri [2011] ZMHC 51 .................................................................................................. 29.550 Mosley v Broken Hill Pty Co Ltd (unreported, SASC, SCGRG-94-1966, 23 January 1998) .... 6.110 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 ...................................................... 6.140 Mouat v Clarke Boyce [1992] 2 NZLR 559 ........................................................... 3.460, 6.130, 7.270 Mount Albert Borough Council v Johnson [1979] 2 NZLR 234 .................................................. 7.140 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 ........... 1.20, 2.30, 2.70, 4.10, 4.20, 4.30, 6.150, 6.230, 6.440, 7.410, 7.500, 7.640, 7.660, 7.670, 7.790, 8.80, 8.120, 8.170, 8.280, 8.370, 8.380, 9.60, 9.70, 9.460, 10.70, 11.70, 11.120, 11.350, 12.60, 12.70, 12.260, 12.360, 12.550, 13.30, 13.60, 13.80, 13.100, 13.270, 13.550, 15.10, 15.120, 16.120, 19.50, 19.60, 19.70, 19.80, 19.90, 19.100, 19.140, 19.150, 19.210, 19.350, 20.80, 20.100, 20.160, 20.180, 20.190, 20.210, 20.240, 22.140, 25.60, 25.70, 25.240, 25.430, 28.20, 28.190, 28.270 Mroz v Lee 5 F 3d 1016 (1993) .................................................................................................. 30.630 Muchow v Lindblad 435 NW 2d 918 (ND 1989) ....................................................................... 30.620 Muirhead v Industrial Tank Specialities Ltd [1986] QB 507 ........................................................ 7.140 Muirhead v Kingborough Council (No 2) [2000] TASSC 127 ..................................................... 6.120 Mulder v South British Insurance Co Ltd 1957 (2) SA 444 ......................................................... 3.540 Mullally v Bus Éireann [1992] ILRM 722 ........... 3.660, 3.670, 4.40, 5.220, 10.320, 11.130, 12.380, 20.730 Mullen v Accenture Services Ltd [2010] EWHC 2336 ...................................... 17.40, 20.660, 20.830 Mullins v Harry’s Mobile Homes Inc 861 F Supp 22 (1994) .................................................... 27.100 Mundraby v Commonwealth [1999] FCA 1293 ............................................................... 16.290, 25.90 Munoz v American Lawyer Media LP 512 SE 2d 347 (Ga 1999) ............................................. 30.620 Murphy v Brentwood District Council [1991] 1 AC 398 ......................... 7.140, 7.190, 27.40, 30.710 Murphy v Culhane [1977] QB 94 ................................................................................................ 16.220 Murphy v Implicito 920 A 2d 678 (NJ 2007) ................................................................................ 21.70 Murphy v Islamic Republic of Iran 740 F Supp 2d 51 (2010) ................................................... 30.640 Murphy v Lord Thomson Manor 938 A 2d 1269 (Conn 2008) .................................................. 18.230 Murray v Kerr [1918] VLR 409 ..................................................................................................... 6.100

Table of Cases liii Murray v Ministry of Defence [1988] 1 WLR 692 ......................................................................... 6.80 Murray v Toth (2012) 97 CCLT (3d) 318 ...................................................................... 30.190, 30.700 Murtagh v Minister for Defence [2008] IEHC 292 ................................... 5.210, 5.220, 17.40, 19.450 Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123 ... 3.370, 8.60, 17.40, 17.160, 21.170 Mustapha v Culligan of Canada Ltd (2006) 275 DLR (4th) 473 .......................... 3.380, 8.60, 21.170 Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 ..... 1.120, 3.360, 3.390, 3.400, 3.410, 3.420, 4.20, 6.330, 6.350, 6.370, 6.400, 6.460, 6.480, 7.20, 7.750, 7.760, 7.780, 7.800, 8.10, 8.60, 8.70, 11.530, 17.40, 21.170 Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453 .......................... 6.100 Muzik v Canzone del Mare 1980 (3) SA 470 ................................................................................. 4.40

N N v Queensland [2004] QSC 290 ................................................................................................ 21.250 N v T 1994 (1) SA 862 ...................................................................................... 30.180, 30.260, 30.280 N v United Kingdom Medical Research Council [1996] 7 Med LR 309 .................................. 29.160 NSW Insurance Ministerial Corporation v Gomes (unreported, NSWCA, CA 40052/96, 26 October 1998) ........................................................................................................................... 11.270, 13.170 Nadeem v Shell Oil Products Ltd [2014] EWHC 4664 .............................................................. 20.410 Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 ... 7.630, 7.670, 8.280, 8.320 Nantais v Telectronics Pty (Canada) Ltd (1995) 127 DLR (4th) 552 ........................................ 29.580 Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994) ......... 12.320, 29.50, 29.220, 29.230, 29.240, 29.250, 29.260, 29.270 National Union Fire Insurance Co of Lousiana v Harrington 854 So 2d 880 (La 2003) .......... 27.100 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 ............. 20.370, 20.380, 20.390, 20.400, 20.430, 20.440, 20.460, 20.470, 20.530, 20.540, 20.570, 20.780, 30.150, 30.190, 30.240, 30.460 Naylor v Yorkshire Electricity Board [1968] AC 529 ..................................................................... 6.50 Nazaroff v Superior Court In and For County of Santa Cruz 145 Cal Rptr 657 (1978) .......... 10.430, 12.480 Ndola Central Hospital Board of Management v Kaluba (1995-97) ZR 212 ............................ 22.740 Nea Tyhi, The [1982] 1 Lloyd’s Rep 606 ...................................................................................... 7.140 Neal v Neal 873 P 2d 881 (Id 1994) ........................................................................................... 29.720 Neff v Lasso 555 A 2d 1304 (Pa 1989) ......................................................................................... 10.30 Negretto v Sayers [1963] SASR 313 ............................................................................................. 8.360 Negro v Pietro’s Bread Co Ltd [1933] 1 DLR 490 ............................................................... 2.10, 2.30 Nelson v Crawford 81 NW 335 (Mich 1899) .............................................................................. 30.210 Nesom v Tri Hawk International 985 F 2d 208 (1993) ................................................... 29.90, 29.720 Nespolon v Alford (1998) 161 DLR (4th) 646 ................. 7.410, 7.560, 7.710, 7.800, 15.260, 26.350 Nettleship v Weston [1971] 2 QB 691 ............................................................................. 7.160, 16.190 Nevels v Yeager 199 Cal Rptr 300 (1984) ................................................................................... 10.430 New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46 ........ 3.360, 6.310, 6.320 New South Wales v Brown [2003] NSWCA 21 .......................................................................... 25.210 New South Wales v Burton (2006) Aust Torts Rep 81-826; [2006] NSWCA 12 ......... 19.210, 20.780 New South Wales v Coffey [2002] NSWCA 361 ............................................. 20.230, 20.540, 20.550 New South Wales v Fahy (2006) Aust Torts Rep 81-865; [2006] NSWCA 64 . 8.80, 17.170, 19.210, 20.590 New South Wales v Fahy (2007) 232 CLR 486 ............ 1.100, 8.80, 17.170, 19.210, 20.380, 20.480, 20.590 New South Wales v Godfrey [2004] NSWCA 113 ..................................................................... 21.470 New South Wales v Ibbett (2005) 65 NSWLR 168 ........................................................................ 6.90 New South Wales v Ibbett (2006) 229 CLR 638 ............................................................................ 6.90 New South Wales v Jeffery (2000) Aust Torts Rep 81-580 ........................................................ 20.400 New South Wales v Klein (2006) Aust Torts Reports 81-862 .................................................... 21.420 New South Wales v Lepore (2003) 212 CLR 511 ....................................................................... 30.540

liv Table of Cases New South Wales v Mannall [2005] NSWCA 367 .. 20.230, 20.380, 20.430, 20.440, 20.470, 20.540, 20.570 New South Wales v McMaster (2015) 328 ALR 309 ...................................................... 13.50, 30.310 New South Wales v Napier [2002] NSWCA 402 ............................................. 11.400, 12.440, 20.410 New South Wales v Paige (2002) 60 NSWLR 371; (2002) Aust Torts Rep 81-676 .... 20.410, 21.310 New South Wales v Rogerson (2007) Aust Torts Rep 81-926 .......................................... 8.80, 20.510 New South Wales v Seedsman (2000) 217 ALR 583 .......... 4.70, 5.220, 7.660, 8.70, 12.280, 19.150, 19.160, 19.170, 19.180, 20.30, 20.160, 20.210, 20.220, 20.230, 20.380, 20.480, 20.560, 25.470, 26.120 New South Wales v Shepherd [2003] NSWCA 396 ................................................................... 19.150 New South Wales v Thomas [2004] NSWCA 52 .......................................................................... 13.90 Newby v General Lighterage Co Ltd [1954] 2 Lloyd’s Rep 625 ................................................. 9.210 Newby v General Lighterage Co Ltd [1955] 1 Lloyd’s Rep 273 ................................................. 9.210 Newman v Secretary of State for Health (1997) 54 BMLR 85 .................................................. 29.210 Newman v Secretary of State for Health (No 2) (1998) 54 BMLR 95 ...................................... 29.210 Newpart v Kelly (unreported, Qld SC, No 43 of 1997, 15 April 1999) ...................................... 3.230 Newton v Kaiser Foundation Hospitals 228 Cal Rptr 890 (1986) .............................................. 18.210 Ng Pan Hing v Road Accident Fund [2014] 2 All SA 186 ........................................................ 10.330 Ngiam Kong Seng v Citycab Pte Ltd [2007] SGHC 30 ............................................................... 3.690 Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 ... 3.690, 3.700, 3.710, 3.720, 7.390, 7.410, 12.500 Nichevich v Fullin (unreported, WASC, Appeal No 181 of 1989, 18 July 1990) ..................... 30.140 Nicholls v Rushton (The Times, 19 June 1992) .............................................................................. 3.50 Nichols v Busse 503 NW 2d 173 (Neb 1993) ................................................................ 11.180, 30.640 Nichols v Sukaro Kennels 555 NW 2d 689 (Iowa 1996) ........................................................... 27.110 Nickerson v Hodges 84 So 37 (La 1920) ....................................................................... 30.600, 30.630 Niedermann v Brodsky 261 A 2d 84 (Pa 1970) ................................................................. 3.760, 3.770 Nielson v AT & T Corporation 597 NW 2d 434 (SD 1999) ........................................................ 3.770 Nieto v Kapoor 182 F Supp 2d 1114 (2000) ............................................................................... 30.630 Nikolau v Papsavas, Phillips & Co (1988) Aust Torts Rep 80-225 .............................................. 21.30 Noel v Ontario (Criminal Injuries Compensation Board) [1998] OJ No 708 ............................ 11.590 Nominal Defendant v Bogic [2000] NSWCA 164 .............................................. 13.170, 13.230, 17.40 Norberg v Wynrib (1988) 50 DLR (4th) 167 .................................................................................. 4.50 Norfolk & Western Railway Co v Ayers 538 US 135 (2003) ............... 3.770, 29.260, 29.400, 29.750 Norris v Road Accident Fund [2001] 4 All SA 321 ...................................................................... 7.560 North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 ..... 1.100, 3.290, 3.320, 22.530, 22.570, 22.580, 26.240 North Shore City Council v Attorney General [2012] 3 NZLR 341 ............................................ 7.180 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 ..................................................... 7.170 Northern Territory v Mengel (1995) 185 CLR 307 ............................................ 30.50, 30.130, 30.710 Norweb plc v Dixon [1995] 3 All ER 952 .................................................................................. 30.730 Nouwens v Sociedade [1992] BCJ No 1938 ................................................................................... 1.20 Nova Mink Ltd v Trans-Canada Airlines [1951] 2 DLR 241 ....................................................... 7.160 Nunes v Air Transat AT Inc [2003] OJ No 2006 ........................................................................ 23.270 Nurnber v Workers’ Compensation Board (NS) [2004] NSCA 83 ............................................. 20.740 Nutter v Frisbie Memorial Hospital 474 A 2d 584 (NH 1984) .................................................. 22.630

O O v A [2014] EWCA Civ 1277 .................................................................................................... 30.100 O (A Child) v Rhodes [2016] AC 219 . 4.20, 30.10, 30.200, 30.210, 30.230, 30.380, 30.480, 30.490, 30.500, 30.510, 30.520, 30.530, 30.550, 30.590, 30.670 OB-GYN Associates of Albany v Littleton 386 SE 2d 146 (Ga 1989) ........................................ 3.760 O’Brien v EH Burgess Ltd (unreported, Eng CA, 12 November 1953) ...................................... 8.330 O’C v The KLH [2006] IEHC 199 .............................................................................................. 30.240 O’Connell v Jackson [1972] 1 QB 270 .......................................................................................... 16.40 O’Connor v Lenihan [2005] IEHC 176 ........................................................................................... 4.50

Table of Cases lv O’Donovan v WA Alcohol and Drug Authority [2014] WASCA 4 .... 20.440, 20.460, 20.470, 20.590 O’Dowd v Secretary of State for Northern Ireland [1982] NI 210 ................................. 10.60, 11.580 O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747 ..... 20.230, 20.240, 20.260 O’Neill v Campbell (1995) 161 NBR (2d) 1 ............................................................................... 12.180 OPO v MLA [2014] EWCA Civ 1277 .............................................................. 30.210, 30.220, 30.480 O’Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824 ...... 3.330, 4.10, 16.270, 22.280 O’Sullivan v Williams [1992] 3 All ER 385 ............................................................................... 27.120 Oberreuter v Orion Industries Inc 342 NW 2d 492 (Iowa 1984) ............................................... 10.420 Oberschlake v Veterinary Association Animal Hospital 785 NE 2d 811 (Ohio 2003) .............. 27.110 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 .................................. 30.710 Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985) ....... 3.790, 10.430, 12.480, 12.500, 18.210, 22.640, 22.700 Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 ............................................................... 4.40 Odhavji Estate v Woodhouse [2003] 3 SCR 263 ............................................................... 6.380, 7.180 Officer Commanding Roma Police v Khoete [2012] LSCA 21 .................................................... 3.540 Ogden v Bells Hotels Pty Ltd [2009] VSC 219 ............................................................................ 17.40 Ogieriakhi v Minister for Justice and Equality (No 2) [2014] IEHC 582 .................................... 6.310 Ogwo v Taylor [1988] AC 431 ..................................................................................................... 25.400 Old Gate Estates Ltd v Toplis [1939] 3 All ER 209 ..................................................................... 7.120 Oliver v Birmingham & Midland Motor Omnibus Co [1933] 1 KB 35 ...................................... 16.70 Oliver v Ellison (unreported, BCSC, Docket C843242, 16 March 1998) .................................... 6.270 Oliver (Guardian ad litem of) v Ellison (2001) 90 BCLR (3d) 101 ............................... 6.270, 22.620 Opat v National Mutual Life Association of Australasia Ltd [1992] 1 VR 283 .......................... 7.140 Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 ............................. 7.680, 16.270, 19.210, 25.220 Ordway v County of Suffolk 583 NYS 2d 1014 (1992) ............................................................. 29.720 Organ Retention Group Litigation, Re [2005] QB 506 ............................................................... 22.550 Orman v Harrington (unreported, SASC, No 296 of 1990, 30 April 1990) ....... 4.50, 10.310, 11.130, 13.200 Ortiz v HPM Corporation 285 Cal Rptr 728 (1991) ................................................................... 10.440 Osadchy v Braun (1991) 72 Man R (2d) 286 ................................................................................ 9.130 Osborne v Keeney 399 SW 2d 1 (Ky 2012) ...................................................................... 3.760, 3.790 Osborne v Payne 31 SW 3d 911 (Ky 2000) ................................................................................ 30.630 Osman v Ferguson [1993] 4 All ER 344 ..................................................................................... 21.420 Osman v United Kingdom [1999] 1 FLR 193 ............................................................................. 21.260 Ostrowski v Lotto (1968) 2 DLR (3d) 440 .................................................................................... 7.660 Otter v Residual Health Management Unit (unreported, NZCA, No 137 of 1998, 23 June 1999) .............................................................................................................................. 4.50 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 .................................................................................................................................. 7.600, 7.750 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 ........ 2.70, 7.380, 7.410, 7.480, 7.600, 7.620, 7.750, 8.280, 11.100, 19.60, 25.60, 26.40 Owen v Residual Health Management Unit [2000] NZCA 162 ........................ 5.400, 22.180, 22.650 Owen & Smith (trading as Nuagin Car Service) v Reo Motors (Britain) Ltd (1934) 151 LT 274 ...................................................................................................................... 6.90 Owens v Brimmell [1977] QB 859 ................................................................................................ 16.40 Owens v Liverpool Corporation [1939] 1 KB 394 ....... 2.50, 4.10, 5.370, 7.360, 8.310, 9.130, 10.30, 17.40, 26.20, 27.10 Owens ex rel Schafer v American Home Products Corporation 203 F Supp 2d 748 (2002) .... 22.630 Owers v Medway NHS Foundation Trust [2015] EWHC 2363 ................................................. 22.580 Oyston v St Patrick’s College (2011) Aust Torts Reports 82-086; [2011] NSWSC 269 ............ 16.60, 17.230, 21.400 Oyston v St Patrick’s College [2013] NSWCA 135 .................................................................... 21.400 Oyston v St Patrick’s College (No 2) (2013) Aust Torts Rep 82-148 ........................................ 21.400

lvi Table of Cases

P P v Harrow London Borough Council [1993] 2 FCR 341 .......................................................... 21.390 P v T [1997] 2 NZLR 688 .............................................................................................................. 5.400 P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342 .............................. 7.140 PBD v Chief Constable of Greater Manchester Police [2013] EWHC 3559 ............................. 21.420 Pacific Mutual Life Insurance Co of California v Tetirick 89 P 2d 774 (Okl 1938) ................. 30.620 Page v Smith [1994] 4 All ER 522 ......................... 1.20, 3.50, 3.80, 3.230, 7.440, 8.40, 8.240, 18.60 Page v Smith [1996] AC 155 ........ 1.100, 3.50, 3.60, 3.80, 3.130, 3.140, 3.150, 3.160, 3.180, 3.190, 3.200, 3.210, 3.220, 3.230, 3.240, 3.250, 3.270, 3.550, 3.570, 3.580, 3.610, 3.680, 3.720, 3.790, 4.20, 4.40, 5.380, 6.340, 7.410, 7.440, 7.450, 7.460, 7.470, 7.480, 7.490, 7.510, 7.520, 7.750, 8.10, 8.240, 8.250, 8.260, 8.270, 12.310, 15.110, 17.160, 18.60, 18.100, 18.120, 18.130, 18.140, 18.170, 18.190, 18.250, 19.120, 19.280, 19.300, 19.350, 19.380, 20.690, 20.700, 22.510, 24.20, 24.180, 24.190, 24.200, 24.210, 24.220, 24.230, 24.240, 24.250, 24.260, 24.270, 24.280, 24.290, 25.370, 25.380, 25.420, 25.470, 26.150, 26.160, 26.170, 26.220, 26.320, 26.330, 28.140, 28.150, 29.180, 29.190, 29.400, 29.520, 29.540, 29.550, 29.580 Page v Smith (No 2) [1996] 1 WLR 855 ........................................................................................ 3.70 Pakenham-Walsh v Connell Residential (Private Unlimited Company) [2006] EWCA Civ 90 ............................................................................................................. 20.660 Palamara v Fragameni (unreported, WASC, No 89 of 1983, 13 October 1983) . 4.130, 8.340, 12.550 Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447 ........... 7.270, 10.340, 10.360, 10.400, 11.510, 12.100 Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351 .. 1.70, 7.270, 10.340, 10.360, 10.400, 11.510, 12.100, 21.280 Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928) .......... 3.770, 7.330, 7.340, 7.350, 7.380, 10.290 Panagiotopoulos v Rajendram [2007] NSWCA 265 .................................................................... 22.280 Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 ............. 3.720, 3.760, 4.10, 7.270, 9.380, 12.180, 12.500, 21.10, 22.660, 22.680, 22.690, 22.700, 22.710, 22.740, 26.340 Paola v State Bank of New South Wales Ltd [2000] NSWSC 822 ........................................... 21.150 Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 ......................... 7.150 Papieves v Lawrence 203 A 2d 118 (Pa 1970) ............................................................................ 30.630 Parchment v Secretary of State for Defence (unreported, Eng QB, 23 February 1998) ........... 30.730 Pareezer v Coca-Cola Amatil [2004] NSWSC 825 .............................................. 9.130, 10.160, 17.40 Paris Aircrash on March 3 1974, Re 399 F Supp 732 (1975) ...................................................... 6.180 Parker v Housing Trust (1986) 41 SASR 493 ............................................................................... 7.140 Parramatta City Council v Lutz (1988) 12 NSWLR 293 .............................................................. 7.140 Parsons v Superior Court for County of Monterey 146 Cal Rptr 495 (1978) ........................... 10.430 Parsons v United Technologies Corporation 700 A 2d 655 (Conn 1997) .................................. 19.470 Pasley v Freeman (1789) 3 TR 51; 100 ER 450 ........................................................................... 30.20 Pastras v Commonwealth [1967] VR 161 ...................................................................................... 8.380 Pataki v University of Tasmania [2000] TASSC 144 .................................................................... 20.30 Paten v Bale (unreported, Qld SC, No 8921 of 1998, 19 October 1999) .................................. 17.210 Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 ...... 8.70, 12.280, 19.170, 19.180 Pattavina v Mills 2000 WL 1626960 ........................................................................................... 21.300 Paugh v Hanks 451 NE 2d 759 (Ohio 1983) ....................................................................... 5.60, 6.160 Paul v Providence Health System-Oregon 273 P 3d 106 (Or 2012) .......................................... 27.130 Paves v Corson 765 A 2d 1128 (Pa 2000) ................................................................................... 10.440 Pavlovic v Commonwealth Bank of Australia (1991) 56 SASR 587 ............................ 21.150, 30.140 Pearce v United Bristol Healthcare NHS Trust [1996] EWCA Civ 1562 .................................. 22.180 Pearsall v Emhart Industries Inc 599 F Supp 207 (1984) ........................................................... 10.420 Pearson v Kancilia 70 P 3d 594 (Col 2003) ................................................................................ 30.630 Pecenka v Minister of Health [2012] WASCA 250 ..................................................................... 19.210 Pekin Insurance Co v Hugh 501 NW 2d 508 (Iowa 1993) ............................................................. 5.60 Pelletier v Collins (2012) 403 Sask R 125 .................................................................................. 30.240 Pelmothe v Phillips (1899) 20 LR (NSW) 58 ................................................................................. 1.30 Penman v Winnipeg Electric Railway Co [1925] 1 DLR 497 ........................................................ 2.10

Table of Cases lvii Pennell v O’Callaghan [1954] VLR 320 ........................................................................................ 16.70 People’s Finance & Thrift Co v Harwell 82 P 2d 494 (Okl 1938) ............................................ 30.620 Pereira v Keleman [1995] 1 FLR 428 .............................................................................................. 6.80 Perera v Vandiyar [1953] 1 WLR 672 ................................................................................ 6.90, 30.720 Perham v Connolly (2003) 40 MVR 224 .................................................................................... 25.210 Perharic v Hennessey [1997] EWCA Civ 1815 ............................................................................... 6.90 Perodeau v City of Hartford 792 A 2d 752 (Conn 2002) ............................................................. 7.390 Perre v Apand Pty Ltd (1999) 198 CLR 180 .......................................................... 7.170, 7.210, 7.220 Perry v Sidney Phillips & Son [1982] 1 WLR 1297 ....................................................... 6.120, 12.350 Perry-Rogers v Obajasu 723 NYS 2d 28 (2001) ......................................................................... 18.240 Personal Finance Co v Loggins 179 SE 162 (Ga 1935) ............................................................. 30.610 Petch v Customs and Excise Commissioners [1993] ICR 789 ........................ 20.120, 20.130, 20.200 Petco Animal Supplies Inc v Schuster 144 SW 3d 554 (Tex 2004) ........................................... 27.110 Pete v Trent 583 So 2d 574 (La 1991) ........................................................................................ 27.100 Peters-Brown v Regina District Health Board (1995) 136 Sask R 126 ........................ 28.230, 28.260 Peters-Brown v Regina District Health Board (1996) 148 Sask R 248 ............................ 4.40, 28.230 Peterson v Commonwealth [2008] VSC 166 ................................................................................. 5.220 Petri v Bank of New York Co Inc 582 NYS 2d 608 (1992) ...................................................... 29.720 Petrie v Dowling [1992] 1 Qd R 284 ......... 2.90, 4.40, 8.140, 8.380, 10.450, 11.200, 11.210, 11.290, 11.310, 11.390, 17.40, 28.180, 28.250 Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242 ......... 2.290, 13.420, 14.80, 17.40, 19.220, 29.660 Pham v Lawson (1997) 68 SASR 124 ... 4.10, 4.130, 4.150, 10.290, 11.200, 11.280, 11.290, 11.310, 11.340, 12.40, 12.250, 13.210, 13.510, 17.90, 17.120, 17.130 Phelps v London Borough of Hillingdon [2001] 2 AC 619 ...... 4.20, 16.250, 21.130, 21.270, 21.390 Philcox v King [2013] SADC 60 ...................................... 2.290, 2.360, 2.480, 13.480, 13.500, 17.40 Philcox v King (2014) 119 SASR 71 ........................................... 2.290, 2.360, 2.390, 13.210, 13.510 Philippe v Commonwealth [1999] NSWSC 1118 ........................................................................ 24.150 Philipps v Montreal General Hospital (1908) 33 Que SC 483 ................................................... 30.720 Phillip v Whitecourt General Hospital (2004) 359 AR 259 ........................................................ 22.600 Philp v Ryan [2004] 4 IR 241 ...................................................................................................... 17.210 Phyllis P v Superior Court 228 Cal Rptr 776 (1986) .................................................................. 18.230 Pi v New South Wales [2014] NSWSC 1360 .............................................................................. 21.420 Pibworth v Bevan M Roberts Pty Ltd (unreported, SASC, No 770 of 1986, 28 May 1992) .... 6.200, 27.50 Pickering v McArthur [2005] QCA 294 ......................................................................... 18.170, 21.140 Pickford v Masion 98 P 3d 1232 (Wash 2004) ........................................................................... 27.110 Pierce v Physicians Insurance Co of Wisconsin Inc 692 NW 2d 558 (Wis 2005) .................... 22.640 Pieters v B-Right Trucking Inc 669 F Supp 1463 (1987) ............................................................. 9.220 Piggott v London Underground (unreported, 1995) ...................................................................... 25.50 Pigney v Pointers Transport Services Ltd [1957] 1 WLR 1121 ................................................... 7.670 Piper Estate v Mitsubishi Heavy Industries Ltd 2009 BCSC 1363 ............................... 11.530, 11.870 Pipikos v Brown & Sons Pty Ltd [1970] SASR 508 .................................................................... 8.360 Pippos v Craig [1993] 1 VR 603 ................................................................................................. 10.350 Pirelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1 .............................. 16.260 Piresferreira v Ayotte (2010) 319 DLR (4th) 665 ............................... 20.740, 30.210, 30.170, 30.380 Pitts v Hunt [1991] 1 QB 24 ........................................................................................................ 16.220 Pizarro v 421 Port Associates 739 NYS 2d 152 (2002) ................................................................ 9.450 Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 ............................................... 17.40, 17.130 Planned Parenthood of Columbia/Willamete Inc v American Coalition of Life Activists 945 F Supp 1355 (1996) ............................................................................................................................. 30.650 Pleasant Glade Assembly of God v Schubert 264 SW 3d 1 (Tex 200) ...................................... 30.650 Plenty v Dillon (1991) 171 CLR 635 .......................................................................................... 21.200 Plenty v Seventh Day Adventist Church of Port Pirie [2006] SASC 361 .................................. 21.200 Plotnik v Melhaus 146 Cal Rptr 3d 585 (2012) .......................................................................... 30.630 Poindexter v Armstrong 934 F Supp 1052 (1994) ...................................................................... 30.640 Polemis and Furness, Withy & Co, Re [1921] 3 KB 560 ......................... 7.600, 7.670, 11.90, 11.100

lviii Table of Cases Politarhis v Westpac Banking Corporation [2008] SASC 296 ...................................................... 2.170 Pollard v Macarchuk (1958) 16 DLR (2d) 225 ...................................................... 3.340, 7.410, 8.290 Pollok v Workman (1900) 2 F 354 .............................................................................................. 30.720 Poole v Copland Inc 498 SE 2d 602 (NC 1998) ........................................................................... 8.310 Portee v Jaffee 417 A 2d 521 (NJ 1980) ............................................................................ 6.160, 16.90 Porter v Delaware L & W Rail Co 63 A 860 (NJ 1906) .............................................................. 3.760 Potgieter v Rangasamy [2011] ZAECPEHC 36 ............................................................... 9.470, 24.250 Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993) ...................... 18.210, 29.340, 29.740 Potter v Rowe [1990] BCJ No 2912 ............................................................................................ 30.230 Povey v Qantas Airways Ltd (2005) 223 CLR 189 .............................................. 23.20, 23.70, 23.230 Powell v Boladz [1998] Lloyds Rep Med 116 ................... 7.190, 8.30, 8.80, 22.290, 30.100, 30.210 Powers v Sissoev 114 Cal Rptr 868 (1974) ................................................................................. 10.430 Pozniakow v Farrell [1954] OJ No 228 ................................................................................ 2.30, 24.40 Prakash v Malkog (unreported, SASC, Nos 516 and 517 of 1989, 6 June 1990) ....................... 8.360 Pratt v British Medical Association [1919] 1 KB 244 .................................................................. 6.100 Pratt v Scottish Ministers 2009 SLT 429 ............................................... 3.580, 20.700, 20.830, 29.550 Pratt and Goldsmith v Pratt [1975] VR 378 ................................................................... 10.120, 12.150 Price v State 57 P 3d 639 (Wash 2002) .......................................................................... 18.230, 21.300 Price v Yellow Pine Paper Mill Co 240 SW 588 (Tex 1922) ..................................................... 28.170 Priest v New South Wales [2006] NSWSC 12 ................................................................... 6.70, 20.470 Prince v Pittston Co 63 FRD 28 (1974) ....................................................................................... 11.180 Prinsloo v Road Accident Fund 2015 (6) SA 91 ........................................................................... 3.550 Prinzo v Baycrest Centre for Geriatric Care (2002) 215 DLR (4th) 31 ....................... 30.170, 30.380 Prison Services v Johnson [1997] ICR 275 ................................................................................... 6.140 Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Rep 81-397 ....................... 6.90 Progress & Properties Ltd v Craft (1976) 135 CLR 651 ............................................................ 16.220 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ....................... 2.380 Public Trustee v Commonwealth (unreported, NSWSC, No 10962 of 1985, 8 June 1994) ........ 4.40, 9.130, 11.150, 13.50, 13.170 Public Works, Commissioners for v Swaine [2003] 1 IR 521 .................................................... 29.320 Public Works, Commissioners of v Brewer [2003] IESC 51 ...................................................... 29.320 Pugh v London, Brighton & South Coast Railway Co [1896] 2 QB 248 ............. 2.30, 25.50, 25.190 Pugliese v National Capital Commission (1977) 79 DLR (3d) 592 ............................................. 7.140 Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 ............................................... 16.270 Purcell v St Paul City Railway Co 50 NW 1034 (Minn 1892) ............................. 3.760, 8.280, 18.20 Purdy v Woznesensky [1937] 2 WWR 116 ....................... 2.30, 30.60, 30.70, 30.270, 30.320, 30.420 Purkess v Crittenden (1965) 114 CLR 164 .................................................................................... 8.380 Pyrenees Shire Council v Day (1998) 192 CLR 330 ......................................................... 7.170, 7.210

Q Qantas Airways Ltd v Cameron (1996) 66 FCR 246 ...................................................................... 6.40 Quayle v New South Wales (1995) Aust Torts Rep 81-367 .. 10.350, 11.200, 11.240, 11.250, 13.120, 22.760, 28.250 Queensland v Keeys [1997] QCA 234 ......................................................................................... 20.480 Queensland v Keeys [1998] 2 Qd R 36 ............................................................................ 14.50, 19.130 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 . 20.180, 20.200, 20.540, 20.560 Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 ........... 3.480, 3.500, 3.520, 14.60 Quigley v Complex Tooling & Moulding Ltd [2008] IESC 44 .................................................. 20.730 Quigley v Complex Tooling and Moulding [2005] IEHC 71 ..................................................... 20.730 Quinn v Leathem [1901] AC 495 ....................................................................................... 6.100, 7.600 Quinta Communications SA v Warrington [1999] EWCA 2264 ................................................... 9.450

R R v Bolton; Ex parte Beane (1987) 162 CLR 514 ........................................................................ 2.380

Table of Cases lix R v Chan-Fook [1994] 1 WLR 689 ............................................................................................... 4.110 R v Coté [1976] 1 SCR 595 ........................................................................................................... 7.600 R v Criminal Injuries Compensation Board, ex parte K [1998] 1 WLR 1458 ............ 11.560, 11.570, 11.580 R v Criminal Injuries Compensation Board, ex parte Kent [1998] EWCA Civ 1399 ............... 11.560 R v Criminal Injuries Compensation Board, ex parte Warner [1986] 2 All ER 478 ................. 11.560 R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 ............................ 21.460 R v Dhaliwal [2006] 2 Cr App R 24 ............................................................................................. 4.110 R v Howe [1987] AC 417 ............................................................................................................ 30.710 R v Ireland [1998] AC 147 ................................................................. 1.80, 4.20, 4.110, 5.400, 23.390 R v Kansal (No 2) [2002] 2 AC 69 ............................................................................................. 30.710 R v Kneale [1998] 2 NZLR 169 ......................................................................................... 4.110, 5.400 R v L (1991) 174 CLR 379 .......................................................................................................... 30.710 R v Lardner (unreported, NSWCCA, No 60499 of 1997, 10 September 1998) ............... 4.110, 5.400 R v Martin (1881) 8 QBD 54 ....................................................................................................... 30.380 R v McCraw (1991) 7 CR (4th) 314 .................................................................................. 4.110, 5.400 R v Miller [1954] 2 QB 282 ............................................................................................... 4.110, 5.400 R v Moffat [2000] NZCA 252 ........................................................................................................ 4.110 R v Morrison; Ex parte West [1998] 2 Qd R 79 ........................................................................... 5.400 R v Mwai [1995] 3 NZLR 149 ........................................................................................... 4.110, 5.400 R v Secretary for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513 ..... 11.560 R v Shivpuri [1987] AC 1 ............................................................................................................ 30.710 R(L) v British Columbia (1999) 180 DLR (4th) 639 .................................................................. 22.780 RA and TJ Carll Ltd v Barry [1981] 2 NZLR 76 ......................................................................... 6.120 RD v WH 875 P 2d 26 (Wy 1994) .............................................................................................. 10.440 RJ v Humana of Florida Inc 652 So 2d 360 (Fla 1995) .................................................. 3.760, 28.110 RK v Oldham NHS Trust [2003] Lloyd’s Rep Med 1 ................................................................ 21.270 Radley v London & North Western Railway Co (1876) 1 App Cas 754 ..................................... 16.30 Radovskis v Tomm (1957) 9 DLR (2d) 751 .......................................................................... 1.20, 4.40 Rafter v Attorney General [2004] IEHC 28 ................................................................................. 29.370 Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200 ... 30.160, 30.170, 30.190, 30.210, 30.230, 30.380 Rahman v Arearose Ltd [2000] QB 351 ........................................................................................ 21.70 Railways, Commissioner of v Stewart (1936) 56 CLR 520 ....................................................... 16.260 Railways (NSW), Commissioner for v Cardy (1960) 104 CLR 274 ............................................ 7.120 Ramirez v Armstrong 673 P 2d 822 (NM 1983) ........................................................................... 9.220 Ramsay v Commonwealth [2006] NSWSC 1389 ........................................................................ 24.150 Ramsey v Beavers 931 SW 2d 527 (Tenn 1996) ............................................................. 3.790, 15.270 Rapley v P & O European Ferries (Dover) Ltd (unreported, Eng CA, 21 February 1991) ...... 25.210 Rasmussen v Benson 280 NW 890 (Neb 1938) .......................................................................... 27.100 Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656 .. 4.90, 4.100, 17.40, 22.180 Ratcliffe v Evans [1892] 2 QB 524 ................................................................................................ 6.100 Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 ..... 2.90, 3.30, 4.10, 6.60, 7.410, 10.30, 10.450, 11.200, 11.480, 11.500, 12.520, 17.40 Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n ....... 3.30, 6.60, 10.30, 10.450, 11.500, 12.520, 17.40 Rawlings v Rawlings [2015] VSC 171 ................................... 20.410, 20.440, 20.590, 20.780, 20.790 Rayne Branch Hospital 556 So 2d 559 (La 1990) ...................................................................... 22.630 Rayner Estate v Patterson [1982] OJ No 450 ....................................................... 10.30, 10.290, 17.60 Rea v Balmain New Ferry Co (1896) 17 LR (NSW) 92 ................................................................ 2.10 Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 ......................................... 30.710 Rees v Lumen Christi Primary School [2011] VSCA 361 ................................................ 2.260, 17.40 Rees v Royal Canadian Mounted Police (2004) 709 APR 1 ...................................................... 20.740 Rees v Royal Canadian Mounted Police (2005) 246 Nfld & PEIR 79 ...................................... 20.740 Reeve v Brisbane City Council [1995] 2 Qd R 661 ........ 4.130, 7.150, 9.380, 9.480, 10.450, 11.200, 11.230, 11.310, 12.40, 16.120, 22.140, 25.80, 28.200

lx

Table of Cases

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 ..................................... 21.450 Reeves v New South Wales [2010] NSWSC 611 .................... 17.40, 20.370, 20.380, 20.550, 20.580 Regan v Harper [1971] Qd R 191 ........................................................................... 4.40, 11.100, 16.50 Regush v Inglis (1962) 36 WWR 661 ........................................................................................... 8.330 Reid v Motor Accidents Board (1982) Victorian Motor Accidents Cases 74-135 ........ 10.350, 13.250 Reidy v Trustees of the Christian Brothers (1994) 12 WAR 583 ............................................... 21.210 Reilly v Merseyside Regional Health Authority [1995] 6 Med LR 246 .................... 4.50, 6.40, 6.110 Reilly v United States 547 A 2d 894 (RI 1988) .............................................................................. 5.60 Reinhardt v Huan (1996) 24 MVR 58 .................................................................................. 4.40, 13.50 Reinhardt v Huan (unreported, NSWCA, No 40552 of 1995, 12 July 1996) ............................ 13.170 Reitsma v Government Insurance Office of New South Wales (unreported, NSWSC, No 13879 of 1985, 31 March 1989) ............................................................................................................. 11.620 Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417 ................................................................... 6.120 Renwick v Coote 1976 CarswellBC 1691 ..................................................................................... 17.60 Resavage v Davies 86 A 2d 879 (Md 1952) .................................................................................. 3.770 Reynolds v State Government Insurance Commission (unreported, SA SC, No 2553 of 1988, 27 February 1990) .......................................................................................................................... 3.230 Rhodes v Canadian National Railway (1989) 36 BCLR (2d) 1 ...................................... 3.350, 10.130 Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 .... 3.350, 4.40, 6.260, 7.150, 7.410, 10.130, 10.200, 10.360, 10.450, 11.60, 11.530, 11.870, 12.60, 12.190, 15.240, 22.610, 22.620, 25.100, 27.70 Rhodes v Canadian National Railway [1991] 1 SCR xiii ............................................................. 3.350 Rhodes v OPO [2016] AC 219 ..................................................................................................... 30.110 Rice v Falzon (unreported, NSWSC, No CLD S 17366 of 1981, 1 May 1987) ......................... 17.40 Rich v Commissioner of Railways (NSW) (1959) 101 CLR 135 ................................................ 7.120 Richard FH v Larry HD 243 Cal Rptr 807 (1988) ........................................................ 18.230, 21.140 Richards v Baker [1943] SASR 245 ......................................... 11.120, 12.370, 13.30, 17.150, 17.190 Richardson v Pridmore 217 P 2d 113 (Cal 1950) ....................................................................... 30.620 Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 ...................................... 11.100, 11.120, 17.90 Rickard v Plymouth Co-operative Society (The Times, 4 February 1903) .................................... 2.50 Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983) .......... 3.760, 3.770, 5.60, 9.220, 15.300 Rideau v Jefferson County 902 F Supp 115 (1995) .................................................................... 11.550 Rideout v Health Labrador Corporation [2005] NLTD 116 .......................................................... 6.300 Ridley v New South Wales [2004] NSWCA 68 .......................................................................... 16.270 Rigby v Hewitt (1850) 5 Exch 240; 155 ER 103 .......................................................................... 7.600 Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34 ........................................................... 6.100 Ring v Bourgeois [1998] BCJ No 2576 ................................................. 9.200, 10.290, 10.310, 12.110 Ritchhart v Indianapolis Public Schools 812 NE 2d 189 (Ind 2004) ......................................... 11.550 Rivers v Grimsley Oil Co Inc 842 So 2d 975 (Fla 2003) .......................................................... 19.470 Road Accident Fund v Sauls 2002 (2) SA 55 .................................................................... 9.190, 9.400 Roads & Traffic Authority v Jelfs [1999] NSWCA 179 .................................................. 13.50, 13.120 Roads and Traffic Authority v Royal (2008) 82 ALJR 870 .......................................................... 2.490 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 ........................................ 7.290 Roasting v Lee (cob Famous Chinese Restaurant) (1998) 222 AR 234 ..................................... 30.210 Robb v Pennsylvania Rail Co 210 A 2d 709 (Del 1965) .............................................................. 3.760 Roberts v Westpac Banking Corporation [2015] ACTSC 397 .................................................... 21.150 Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566 ............................... 19.250, 26.90 Robertson v Forth Road Bridge Joint Board (No 2) 1994 SLT 568 .................. 9.490, 19.260, 26.100 Robertson v Forth Road Bridge Joint Board 1995 SC 364 ...... 3.570, 9.490, 19.250, 19.270, 19.300, 19.350, 20.690, 26.60, 26.100, 26.120, 26.210, 26.280 Robertson v Swincer (1989) 52 SASR 356 ................................................................................... 7.140 Robinson v Post Office [1974] 1 WLR 1176 ................................................................................. 8.280 Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099 ....................... 16.250 Robinson v United States 175 F Supp 2d 1215 (2001) .............................................................. 18.220 Rockhill v Pollard 485 P 2d 28 (Or 1971) ..................................................................... 30.620, 30.630 Rodrigues v State 472 P 2d 509 (Haw 1970) ..................................................................... 3.760, 6.160 Rodriguez v Riddell Sports Inc 242 F 3d 567 (2001) ................................................................. 10.440

Table of Cases lxi Roe v Minister of Health [1954] 2 QB 66 .................................................................................... 7.710 Rogers v Brambles Australia Ltd [1998] 1 Qd R 212 ..................................................... 15.70, 26.110 Rogers v Williard 223 SW 15 (Ark 1920) ................................................................................... 30.320 Roitz v Kidman 913 P 2d 431 (Wyo 1996) ................................................................................. 10.440 Roling v Daily 596 NW 2d 72 (Iowa 1999) ................................................................................ 30.620 Romeo v Conservation Commission (1998) 192 CLR 431 .......................................................... 7.170 Rondel v Worsley [1969] 1 AC 191 ............................................................................................... 7.160 Rookes v Barnard [1964] AC 1129 ............................................................................. 6.70, 6.90, 6.100 Roome v Smith Ltd (unreported, Eng CA, 3 July 1956) .............................................................. 8.330 Rootes v Shelton (1967) 116 CLR 383 ........................................................................................ 16.210 Rorrison v West Lothian College [1999] Scot CS 212 ......................................... 5.220, 12.90, 20.830 Rosenberg v Percival (2001) 205 CLR 434 ................................................................................... 7.570 Rosin v Fort Howard Corporation 588 NW 2d 58 (Wis 1998) .................................................. 11.550 Rosman v Trans World Airlines Inc 314 NE 2d 848 (NY 1974) ................................................. 23.40 Ross v Bowbelle and Marchioness (unreported, Admiralty Registrar, 18 June 1991) .... 5.220, 9.210, 25.50 Ross v Caunters [1980] Ch 297 ..................................................................................................... 7.140 Ross v Glasgow Corporation 1919 SC 174 ................................................................................... 3.560 Ross v Stouffer Hotel Co (Hawai’i) Ltd 879 P 2d 1037 (Haw 1994) .......................................... 6.160 Rosstown Holding Pty Ltd v Mallinson (2000) 2 VR 299 .............................................. 17.40, 19.130 Rothwell v Chemical & Insulating Co Ltd [2006] ICR 1438 ............... 3.220, 17.270, 29.380, 29.400 Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 .......... 1.90, 3.220, 19.410, 20.20, 20.700, 29.50, 29.280, 29.380, 29.400, 29.410, 29.420, 29.530, 29.550, 29.660 Roussety v Castricum Brothers Pty Ltd [2016] VSC 466 .......................................................... 20.790 Roussos v Australian Postal Commission (unreported, NSWSC, No 12284 of 1989, 2 November 1994) ............................................................................................................................. 8.320, 17.160 Rowe v Bennett 514 A 2d 802 (Me 1986) .................................................................................. 18.230 Rowe v Bennett 514 A 2d 803 (Me 1986) .................................................................................. 21.140 Rowe v Cleary [1980] NZ Recent Law 71 .................................................................................. 12.490 Rowe v McCartney [1975] 1 NSWLR 544 ........................................................................ 13.80, 16.60 Rowe v McCartney [1976] 2 NSWLR 72 ..... 7.640, 7.650, 7.660, 7.670, 7.680, 9.210, 15.60, 15.70, 16.60, 26.200, 26.210 Rowe v McCartney (1991) Aust Torts Rep 81-134 ....................................................................... 15.60 Rowe Estate v Hanna (1989) 102 AR 88 ................................................... 4.50, 10.450, 11.60, 17.190 Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 ......................... 6.100, 17.40 Rowlands v Collow [1992] 1 NZLR 178 ...................................................................................... 6.120 Rowling v Takaro Properties Ltd [1988] AC 473 ......................................................................... 7.140 Ruffley v Board of Management of St Anne’s School [2014] IEHC 235 .................................. 20.730 Ruffley v Board of Management of St Anne’s School [2015] IECA 287 .................................. 20.730 Ruiz v Bertolotti 236 NYS 2d 854 (1962) .................................................................................. 30.630 Rumley v British Columbia [2001] 3 SCR 184 .................................. 12.180, 21.250, 21.290, 22.780 Russ v Western Union Telegraph Co 23 SE 2d 681 (NC 1943) ................................................... 6.160 Russell v Jorgenson (1909) 9 SR (NSW) 164 ............................................................................... 16.70 Russell v Salve Regina College 649 F Supp 341 (1986) ............................................................ 30.630 Russo v Carpentaria Transport Pty Ltd [2000] QSC 083 .............................................. 20.230, 20.560 Russo v City of Hartford 184 F Supp 2d 689 (2002) ................................................................. 30.630 Rutter v New South Wales [2005] NSWCA 231 ......................................................................... 16.270 Ruttley v Lee 761 So 2d 777 (La 2000) ...................................................................................... 13.600 Ryan v Brown 827 NE 2d 112 (Ind 2005) .................................................................................. 22.640 Ryan v Commonwealth [1999] NSWSC 573 ................................................................. 24.150, 26.110 Ryan v Public Trustee [2000] 1 NZLR 700 ................................................................................... 6.130

S S v Distillers Co (Biochemicals) Ltd [1969] 3 All ER 1412 ........................... 12.380, 17.150, 21.180 S v Gloucestershire County Council [2001] Fam 331 ................................................................ 21.260 S v Mokgethi en Andere 1990 (1) SA 32 .................................................................................... 22.730

lxii Table of Cases S v New South Wales [2008] NSWSC 933 ................................................................................... 17.40 S v New South Wales [2009] NSWCA 164 .... 5.220, 17.40, 20.370, 20.380, 20.440, 20.550, 20.580 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 252 .................................................................................................................................. 21.480 S v W [1995] 3 FCR 649 ............................................................................................................... 6.110 SB v New South Wales [2004] VSC 514 .................................................................................... 21.250 SBEG v Commonwealth [2012] FCAFC 189 .............................................................................. 21.480 SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1970] 1 WLR 1017 ............................. 7.710 SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1 QB 337 .................................. 7.160 Saad v Gosford City Council [2007] NSWSC 643 .......................................................... 11.130, 17.40 Saadati v Moorhead (2015) 390 DLR (4th) 63 ............................................................................. 6.410 Sacco v High Country Independent Press Inc 896 P 2d 411 (Mont 1995) ....... 6.160, 30.620, 30.630 Sahin v Carroll (unreported, NSWSC, No 13161 of 1991, 3 August 1995) ..................... 4.10, 13.230 Saif Ali v Sydney Mitchell & Co [1980] AC 198 ......................................................................... 7.160 St Elizabeth Hospital v Garrard 730 SW 2d 649 (Tex 1987) ....................................................... 6.160 St Louis A & T Railway Co v Mackie 9 SW 451 (Tex 1888) ..................................................... 18.40 St Louis South Western Rail Co v White 91 SW 2d 277 (Ark 1936) ......................................... 6.160 St Onge v MacDonald 917 A 2d 233 (NH 2007) .......................................................................... 9.220 Salamone v Oak Park Marina Inc 688 NYS 2d 362 (1999) .......................................... 30.620, 30.630 Salter v UB Frozen and Chilled Foods Ltd 2003 SLT 1011 ......................................... 26.280, 26.290 Salter v UB Frozen and Chilled Foods Ltd 2004 SC 233 .......................................................... 26.280 Samms v Eccles 358 P 2d 344 (Utah 1961) ................................................................................ 30.630 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 ................................................................................. 7.140, 7.150, 7.160 Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994) .......... 12.50, 24.130, 29.50, 29.600, 29.610, 29.620, 29.650 Sant v Jack Andrews Kirkfield Pharmacy Ltd (2002) 161 Man R (2d) 121 .............................. 21.180 Sasin v Commonwealth (1984) 52 ALR 299 ................................................................................. 7.140 Satchfield v RR Morison & Son Inc 872 SW 2d 661 (Miss 2004) .............................................. 9.450 Saunders v Air-Florida Inc 558 F Supp 1233 (1983) .................................................................. 11.880 Saunders v Edwards [1987] 1 WLR 1116 ..................................................................................... 6.100 Savage v Boies 272 P 2d 249 (Ariz 1954) .................................................................................. 30.630 Savard v Cody Chevrolet Inc 234 A 2d 656 (Vt 1967) ................................................................ 3.760 Saxton v McDonnell Douglas Aircraft Co 428 F Supp 1047 (1977) ......................................... 11.880 Sayers v Cambridgeshire County Council [2007] IRLR 29 ........................................................ 20.800 Sayers v Perrin (No 3) [1966] Qd R 89 ........................................................................................ 8.370 Scala v Mammolitti (1965) 114 CLR 153 ............................................................... 13.50, 13.60, 13.80 Scarf v Koltof 363 A 2d 1276 (Pa 1976) ....................................................................................... 14.90 Schaffer v Murphy [2000] BCSC 501 ............................................................................ 15.240, 15.250 Scherr v Las Vegas Hilton 214 Cal Rptr 393 (1985) ..................................................... 11.820, 11.830 Schiffahrt & Kohlen GmbH v Chelsea Maritime Ltd [1982] QB 481 ......................................... 7.140 Schlink v Blackburn (1993) 87 BCLR (2d) 129 ......................................................................... 25.200 Schmeck v City of Shawnee 647 P 2d 1263 (Kan 1982) ........................................................... 10.420 Schneider v Eisovitch [1960] 2 QB 430 ........... 3.100, 7.740, 11.90, 11.100, 11.150, 12.390, 17.140, 22.160, 22.600, 24.60, 24.210 Schuenneman v Riello Canada Inc [1997] OJ No 3299 ............................................................. 30.210 Schultz v Barberton Glass Co 447 NE 2d 109 (Ohio 1983) ........................................................ 3.760 Schwarz v Regents of University of California 276 Cal Rptr 470 (1990) ................................. 18.220 Scott v Davis (2000) 204 CLR 333 ....................................................................... 10.30, 12.40, 12.170 Scott v Electricity Commission of New South Wales (unreported, NSWSC, No CLD 519 of 1990, 8 September 1995) ...................................................................................................................... 24.260 Scott Group v McFarlane [1978] 1 NZLR 553 ............................................................................. 7.140 Scrase v Jarvis (1998) Aust Torts Rep 81-471 ............................................................................ 10.290 Sealy v Commissioner for Railways [1915] QWN 1 ........................................................... 2.10, 18.40 Seaway Hotels Ltd v Cragg (Canada) Ltd (1960) 21 DLR (2d) 264 ............................................. 6.70 Seitz v Vogler 682 NE 2d 766 (Ill 1997) ....................................................................... 15.300, 18.240 Seltsam Pty Ltd v McNeill [2006] NSWCA 158 .......................................................................... 7.370

Table of Cases lxiii Senior v Ward (1859) 1 E & E 385; 120 ER 954 ....................................................................... 16.170 Sesma v Cueto 181 Cal Rptr 12 (1982) ....................................................................................... 22.630 Shade v City of Dallas 819 SW 2d 578 (Tex 1991) ................................................................... 27.100 Shaw v London Borough of Redbridge [2005] EWHC 150 ....................................................... 21.410 Shaw v Mills (unreported, Eng CA, 7 March 1961) .......................................................... 9.150, 9.260 Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028; [2009] NSWCA 261 .. 2.360, 2.380, 2.390, 2.420, 7.290, 10.170, 13.330, 13.340, 13.350, 13.390, 25.20, 25.260, 25.290 Shelley v Paddock [1979] QB 120 ................................................................................................. 6.100 Shelley v Paddock [1980] QB 348 ................................................................................................. 6.100 Shemenski v Chapiesky 2003 WL 21799941 .............................................................................. 30.640 Shepard v Superior Court In and For Alameda County 142 Cal Rptr 612 (1977) ...................... 9.220 Sheppard-Mobley v King 830 NE 2d 301 (NY 2005) ................................................................ 22.640 Shewan v Sellars (No 1) [1963] QWN 19 .......................................................... 7.630, 11.100, 11.120 Shiels v Minister for Finance (unreported, Irish HC, 2000 No 251 SP, 25 March 2001) ......... 29.370 Shin v Kong 95 Cal Rptr 2d 304 (2000) ..................................................................................... 22.630 Shin v Sunriver Preparatory School Inc 111 P 3d 762 (Or 2005) .............................................. 21.410 Shipard v Motor Accidents Commission (1997) 70 SASR 240 .......... 15.110, 15.130, 15.140, 15.180 Shorey v PT Ltd (2003) 77 ALJR 1104 ......................................................................................... 7.560 Short v British Nuclear Fuels plc [1997] 1 LPr 747 ..................................................................... 29.60 Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 ..................... 17.240, 22.580 Shotter v R & H Green & Silley Weir Ltd [1951] 1 Lloyd’s Rep 329 ....................................... 16.50 Shuamber v Henderson 579 NE 2d 452 (Ind 1991) ...................................................................... 3.760 Shuttleworth v Vancouver General Hospital [1927] 2 DLR 573 .................................................... 6.90 Sidhu v British Airways plc [1997] AC 430 ......... 23.20, 23.50, 23.60, 23.70, 23.80, 23.100, 23.110, 23.120, 23.230, 23.370 Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758 ........................ 7.140 Simard v Air Canada 2007 QCCS 4452 ........................................................................................ 23.80 Simmons v Board of Commissioners of Bossier Levee District 624 So 2d 935 (La 1993) ..... 27.100 Simmons v British Steel plc [2004] PIQR P33 .................................................................. 7.460, 8.240 Simmons v Hartford Insurance Co 786 F Supp 574 (1992) .......................................... 10.440, 11.130 Simms v Western Sydney Area Health Service [2001] NSWSC 795 ........................... 11.360, 22.180 Simons v Beard 72 P 3d 96 (Or 2003) .......................................................................................... 3.760 Simpson & Co v Thomson (1877) 3 App Cas 279 ....................................................................... 1.150 Sim’s Crane Service Inc v Reliance Insurance Co 514 F Supp 1033 (1981) ............................ 12.480 Siney v Dublin Corporation [1980] IR 400 ................................................................................... 7.140 Singh v London Underground Ltd (unreported, Eng QBD, 24 April 1990) ... 10.130, 10.450, 11.500, 11.710 Sinn v Burd 404 A 2d 672 (Pa 1979) ................................................................................... 6.160, 8.70 Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 ......... 3.230, 12.200, 12.280, 20.200, 20.210, 20.220, 20.380 Sion v Hampstead Health Authority [1994] 5 Med LR 170 ... 3.320, 12.250, 12.430, 22.410, 22.420, 22.430 Sivasubramamiam v Yarrall [2005] 3 NZLR 268 .......................................................................... 3.520 Skea v NRMA Insurance Ltd [2003] ACTSC 59 ........................................................................ 12.450 Skea v NRMA Insurance Ltd (2005) 43 MVR 395; [2005] ACTCA 9 ............. 8.380, 11.400, 12.450 Skelton v Collins (1966) 115 CLR 94 ............................................................................................. 6.50 Skinner & Co v Shew & Co [1893] 1 Ch 413 .............................................................................. 30.50 Skippers Aviation Pty Ltd v Curtin [2015] WADC 82 .................................................................. 20.30 Sklavos v Australian College of Dermatologists [2016] FCA 179 ............................................... 2.480 Slaton v Vansickle 872 P 2d 929 (Okl 1994) .............................................................................. 18.220 Slatter v British Railways Board [1966] 2 Lloyd’s Rep 395 ........................................................ 5.170 Sleeman v Police [1998] SASC 6915 ................................................................................. 4.110, 5.400 Sloane v Southern California Railway Co 44 P 320 (Cal 1896) ........................................................... Slocum v Food Fair Stores of Florida Inc 100 So 2d 396 (Fla 1958) ....................................... 30.620 Sloss v New South Wales [1999] NSWSC 995 ................................................ 10.350, 11.130, 22.760 Smallwood v Bradford 720 A 2d 586 (Md 1998) ......................................................................... 6.180 Smee v Tibbetts (1953) 53 SR (NSW) 391 ........................................................... 11.620, 13.60, 13.80

lxiv Table of Cases Smith v Alwarid [1996] YJ No 139 ............................................................................................. 30.210 Smith v Atkins 622 So 2d 795 (La 1993) .................................................................................... 30.630 Smith v Barking, Havering and Brentwood Area Health Authority [1994] 5 Med LR 285 ....... 6.110, 6.450, 21.70 Smith v Bell Sports Inc 934 F Supp 70 (1996) ............................................................................. 9.220 Smith v Calvary Christian Church 592 NW 2d 713 (Mich 1998) .............................................. 30.650 Smith v Clough 796 P 2d 592 (Nev 1990) .................................................................................. 27.110 Smith v Co-operative Group Ltd [2010] RTR 30 ............................................................................ 3.80 Smith v Email Ltd (unreported, NSWSC, No CLD S16572 of 1982, 14 March 1986) ........... 11.620, 17.100, 17.160 Smith v Eric S Bush [1990] 1 AC 831 .......................................................................................... 7.180 Smith v Jenkins (1970) 119 CLR 397 .............................................................................. 7.160, 16.220 Smith v Johnson (unreported, Eng QBD, January 1897, cited in Wilkinson v Downton [1897] 2 QB 57 .................................................................................................................................... 7.730, 9.450 Smith v Kings Entertainment Co 649 NE 2d 1252 (Ohio 1994) .................................................. 9.220 Smith v Leech Brain & Co Ltd [1962] 2 QB 405 ............................................................. 7.600, 8.280 Smith v London & South Western Railway Co (1870) LR 6 CP 14 ........................................... 7.330 Smith v Pust 23 Cal Rptr 2d 364 (1993) ..................................................................................... 18.230 Smith v Smith 640 SW 2d 490 (Mo 1982) ................................................................................. 30.650 Smith v State Government Insurance Commission (unreported, SASC, No 2018 of 1988, 5 June 1990) .......................................................................................................................................... 25.90 Smith v Toney 862 NE 2d 656 (Ind 2007) .................................................................................... 9.220 Smith v Trattler 681 So 2d 961 (La 1996) .................................................................................. 13.600 Smithwick v Queensland [2001] QSC 175 .................................................................................. 11.310 Snodgrass v Hammington [1996] ANZ Conv 597 ........................................................................ 6.120 Snyder v Phelps 131 S Ct 1207 (2011) ....................................................................................... 30.620 So Relle v Western Union Telegraph Co 55 Tex 308 (1881) ............................................ 6.160, 18.40 Sobiecka v Blanton [1960] Qd R 152 ............................................................................................ 8.360 Solity v Transport Accident Commission [2007] VCAT 749 ...................................................... 13.250 Sollars v City of Albuquerque 794 F Supp 360 (1992) ................................................................ 9.220 Somerville v Malloy [1999] OJ No 4208 ...................................................................................... 27.10 Sonlin v Abingdon Memorial Hospital 748 A 2d 213 (Pa 2000) ............................................... 22.630 Sopinka (Litigation guardian of) v Sopinka (2001) 55 OR (3d) 529 ......................................... 30.170 Soucek v Banham 503 NW 2d 153 (Minn 1993) ........................................................................ 27.110 South Australia v Lampard-Trevorrow (2010) 106 SASR 331 ................................................... 21.380 South Central Regional Medical Center v Pickering 749 So 2d 95 (Miss 1999) ...................... 29.720 South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 ......... 23.20, 23.70, 23.110, 23.160, 23.170, 23.200, 23.310, 23.340, 23.350, 23.370, 23.410 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 ....................................................................................................... 7.180, 7.270 Southern Baptist Hospital of Florida Inc v Welker 2005 WL 851030 ....................................... 21.140 Southworth v Commonwealth (1992) 35 FCR 578 ..................................................................... 29.590 Souza v City of Antioch 62 Cal Rptr 2d 909 (1997) .................................................................. 10.440 Spade v Lynn & B Rail Co 47 NE 88 (Mass 1897) ............................................................ 3.760, 8.70 Spade v Lynn & B Rail Road 52 NE 747 (Mass 1899) ............................................................... 3.760 Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100 .......................................................................................................... 3.700, 7.180 Spangler v Bechtel 958 NE 2d 656 (Ind 2007) ............................................................................. 3.760 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 ........ 6.70, 7.160, 7.710 Spautz v Butterworth (1997) 41 NSWLR 1 .................................................................................... 6.80 Speirs v St George’s Healthcare NHS Trust 2014 WL 6862884 ................................... 22.580, 22.590 Spence v Biscotti (1999) 151 FLR 350; (1999) Aust Torts Rep 81-513 ............ 5.390, 10.290, 13.50, 13.240 Spence v Percy (1990) Aust Torts Rep 81-039 .......................... 7.150, 7.410, 10.120, 10.310, 12.400 Spence v Percy (1991) Aust Torts Rep 81-116 .............................. 1.230, 4.40, 7.150, 10.120, 12.400 Spence v Percy (unreported, Aust HC, No B27 of 1991, 13 December 1991) ......................... 10.120 Spencer v Associated Milk Services Pty Ltd [1968] Qd R 393 ...................................... 11.80, 11.100

Table of Cases lxv Spiegel v Evergreen Cemetery Co 186 A 585 (NJ 1936) .............................................. 30.610, 30.630 Spray v Mayor, Alderman and Burgess of Ellesmere Port (unreported, Eng CA, 2 December 1997) .......................................................................................................... 4.50, 24.200 Spring v Guardian Assurance plc [1995] 2 AC 296 ...................................................................... 7.180 Stacy v Rederiet Otto Danielsen AS 609 F 3d 1033 (2010) ........................................... 3.770, 11.550 Stankowski v Commonwealth [2004] NSWSC 198 .................................................................... 24.140 Star v Rabello 625 P 2d 90 (Nev 1981) ...................................................................................... 30.640 Stark v FAI General Insurance Co Ltd (unreported, Qld SC, W No 840 of 1998, 1 May 1999) ............................................................................................................................ 10.310 State v Eaton 710 P 2d 1370 (Nev 1985) ........................................................................... 3.760, 16.90 State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202 ................ 4.120, 4.140 State Rail Authority of New South Wales v Howell (unreported, NSWCA, CA 40378/96, 19 December 1996) ......................................................................................................... 19.110, 20.550 State Rail Authority of New South Wales v Reodica [2000] NSWCA 371 ............................... 20.230 State Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240 ........ 11.620, 13.50, 13.60, 22.260 State Rubbish Collectors Association v Siliznoff 240 P 2d 282 (Cal 1952) ................. 30.620, 30.630 Stechler v Homyk 713 NE 2d 44 (Ohio 1998) ............................................................................ 27.110 Stegemann v Pasemko 2007 BCSC 1062 .................................................................................... 10.290 Steinhauser v Hertz Corporation 421 F 2d 1169 (1970) ............................................................... 8.310 Stephen v Riverside Health Authority [1990] 1 Med LR 261 ...................................................... 29.60 Stephens v Waits 184 SE 781 (Ga 1936) ..................................................................................... 30.610 Stephenson v Parkes Shire Council [2014] NSWSC 1758 ......................................................... 23.340 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 52 ................................................................... 7.600 Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 .... 6.130, 6.220, 7.410, 7.500, 21.150, 27.150 Stergiou v Citibank Savings Ltd [1999] FCA 1321 .............................. 6.130, 21.150, 27.150, 27.160 Stergiou v Stergiou (1987) Aust Torts Rep 80-082 ...... 4.50, 6.60, 7.410, 13.70, 13.80, 14.30, 14.70, 29.50, 29.70 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 ................................................. 7.150 Stevens v Yorkhill NHS Trust 2006 SLT 889 ................................................................ 22.550, 30.720 Stevenson v Basham [1922] NZLR 225 .. 2.30, 3.440, 30.60, 30.70, 30.210, 30.270, 30.280, 30.320, 30.390, 30.410, 30.420 Stevenson v East Dunbartonshire Council 2003 SLT 97 ............................................... 20.700, 20.710 Stewart v Arkansas S Rail Co 36 So 676 (La 1904) .................................................................... 3.760 Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24 ........................ 6.130, 21.40 Stewart v New South Wales Police Service [1998] NSWCC 57 .................................................. 20.30 Stieller v Porirua City Council [1986] 1 NZLR 84 ................................................ 3.460, 6.120, 7.140 Stingel v Clark (2006) 226 CLR 442 .................................................................. 4.110, 16.240, 30.540 Stires v Carnival Corporation 243 F Supp 2d 1313 (2002) ........................................................ 30.630 Stockwell v Victoria [2001] VSC 497 ............................................................................................. 6.90 Stoddard v Atwil Enterprises Ltd (1991) 105 NSR (2d) 315 ............................................ 6.120, 27.80 Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 ........ 19.410, 20.630 Stoleson v United States 708 F 2d 1217 (1983) ............................................................................ 8.280 Storey v Charles Church Developments plc (2001) 73 Con LR 1 .................................. 12.100, 27.40 Storm v Geeves [1965] Tas SR 252 ........... 2.30, 2.50, 2.80, 7.410, 8.370, 9.70, 9.140, 9.290, 10.70, 11.120, 17.80, 19.50 Stovin v Wise [1996] AC 923 ........................................................................................................ 7.180 Strachan v John F Kennedy Memorial Hospital 538 A 2d 346 (NJ 1988) .................................. 6.160 Strawser v Wright 610 NE 2d 610 (Ohio 1992) .......................................................................... 27.110 Strelec v Nelson (unreported, NSWSC, No 12401 of 1990, 19 February 1996) ....................... 17.130 Strelec v Nelson (unreported, NSWSC, Smart J, No 12401 of 1990, 13 December 1996) ....... 12.50, 12.250, 22.220, 22.280 Strickland v Deaconess Hospital 735 P 2d 74 (Wash 1987) ........................................... 9.220, 30.640 Strong v Moon (1992) 13 CCLT (2d) 296 ........................................................ 11.120, 11.520, 28.170 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 ................................................. 7.170, 18.70, 22.830 Stubbings v Webb [1993] AC 498 ............................................................................................... 30.420 Stump v Ashland Inc 499 SE 2d 41 (WVa 1997) .......................................................... 10.440, 11.130

lxvi Table of Cases Sturkenboom v Davies (1996) 187 AR 290 ................................................................... 30.160, 30.210 Sueltz v Bolttler 1914 EDL 176 ..................................................................................................... 3.540 Sullivan v Atlantic Lottery Corporation (1987) 81 NBR (2d) 317 ................................................. 4.50 Sullivan v Boston Gas Co 605 NE 2d 805 (Mass 1993) ............................................................ 27.100 Sullivan v Boylan [2013] IEHC 104 .............................................................................. 30.180, 30.190 Sullivan v HP Hood & Sons 168 NE 2d 80 (Mass 1960) .......................................................... 21.170 Sullivan v Moody (2001) 207 CLR 562 .. 2.160, 2.380, 7.170, 7.210, 7.220, 20.300, 20.380, 21.310, 21.380 Sulz v Canada (Attorney General) (2006) 263 DLR (4th) 58 ....................................... 30.170, 30.210 Sulz v Canada (Attorney General) (2006) 276 DLR (4th) 391 .................................................. 20.740 Summers v Western Idaho Potato Processing Co 479 P 2d 292 (Id 1971) .................................. 3.760 Summers ex rel Dawson v St Andrews Episcopal School Inc 759 So 2d 1203 (Miss 2000) ... 11.550 Sun Life Assurance Co of Canada v Fidler [2006] 2 SCR 3 ...................................................... 28.230 Sutherland v Islamic Republic of Iran 151 F Supp 2d 27 (2001) .............................................. 30.650 Sutherland Shire Council v Heyman [1982] 2 NSWLR 618 ........................................................ 7.140 Sutherland Shire Council v Heyman (1985) 157 CLR 424 ........................ 7.140, 7.150, 7.180, 7.240 Sutton v Pelley [1993] OJ No 2429 .................................................................................. 9.170, 10.290 Swan v Monash Law Book Co-operative [2013] VSC 326 .... 17.40, 17.270, 20.370, 20.430, 20.470, 20.540, 20.550, 20.570, 20.590, 20.780 Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 ........... 4.10, 4.40, 4.130, 6.200, 9.50, 10.310, 11.170, 13.30, 13.50, 13.170, 17.40 Swartbooi v Road Accident Fund [2012] 3 All SA 670 ....................................... 3.550, 11.130, 17.40 Sweeney v Ballinteer Community School [2011] IEHC 131 ...................................................... 20.730 Swentek v USAIR Inc 830 F 2d 552 (1987) ............................................................................... 30.630 Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 .................. 21.420, 21.430 Sydney Water Corporation v Turano (2009) 239 CLR 51 ................................................. 7.370, 7.540 Sykes v Commonwealth [2000] NSWSC 3 ................................................................................. 24.150 Szeliga Estate v Vanderheide [1992] OJ No 2856 .............................................. 9.150, 10.350, 12.180

T T v Kan Ki Leung [2002] 1 HKLRD 29 ....................................................................................... 8.270 T v South Australia (1992) 59 SASR 278 ................................................................................... 30.260 TB v New South Wales [2015] NSWSC 575 ................................................................. 17.230, 21.250 TC v New South Wales [2001] NSWCA 380 ............................................................................. 21.250 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 ...................................................... 6.90 TCN Channel Nine Pty Ltd v Ilvarity Pty Ltd (2008) 71 NSWLR 323 ........................................ 6.90 TP and KM v United Kingdom [2001] 2 FLR 549 ..................................................................... 21.270 Taggart v Drake University 549 NW 2d 796 (Iowa 1996) ......................................................... 30.630 Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80 ................................... 7.140, 7.160 Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 ................................................................. 7.140 Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 ................................................................... 7.140 Talibi v Seabrook (1995) 177 AR 299 ............................................................... 10.350, 11.130, 11.520 Tamaresis v CSR Ltd [2013] VSC 613 ........................................................................................ 22.140 Tame v Morgan (1998) Aust Torts Rep 81-483 ......................................... 2.140, 8.160, 12.420, 28.70 Tame v Morgan S120/2000 (6 April 2001) .................................................................................... 2.140 Tame v New South Wales (2002) 211 CLR 317 ........ 1.80, 1.100, 1.110, 1.160, 1.180, 1.230, 2.120, 2.150, 2.160, 2.170, 2.180, 2.190, 2.240, 2.300, 2.350, 2.470, 3.230, 3.270, 3.320, 3.550, 3.600, 3.620, 3.720, 3.770, 4.10, 4.20, 4.40, 4.70, 5.60, 5.220, 6.10, 6.50, 6.60, 6.170, 6.230, 6.380, 6.470, 7.50, 7.60, 7.80, 7.170, 7.220, 7.280, 7.390, 7.410, 7.680, 8.10, 8.30, 8.150, 8.170, 8.180, 8.190, 8.200, 8.210, 8.220, 9.20, 9.110, 10.20, 10.140, 10.160, 10.180, 10.350, 10.360, 10.450, 11.10, 11.200, 11.370, 11.380, 11.390, 11.400, 11.410, 11.450, 11.670, 11.680, 12.20, 12.80, 12.410, 12.430, 12.440, 12.450, 12.460, 12.470, 13.40, 13.50, 13.110, 13.160, 13.170, 13.290, 13.300, 13.470, 14.40, 14.110, 16.280, 17.40, 17.140, 18.50, 18.70, 18.170, 19.50, 19.150, 19.160, 19.190, 19.210, 20.220, 20.290, 20.310, 20.460, 21.10, 21.140, 21.200, 21.420, 21.440, 22.10, 22.40, 22.50, 22.70, 22.80, 22.90, 22.130, 22.140, 22.280, 22.770, 22.780, 22.820, 23.400, 28.70, 28.80, 28.180, 28.200, 28.250, 28.270, 29.40, 29.250, 29.270, 29.360, 29.510, 30.130, 30.150, 30.460, 30.710

Table of Cases lxvii Tamplin v Star Lumber & Supply Co 824 P 2d 219 (Kan 1991) ..................................... 4.130, 8.330 Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389 ..... 3.200, 4.50, 10.300, 10.380, 11.510, 22.440, 22.460, 22.480, 22.490, 22.570, 22.700 Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 ........................... 22.280 Taplin v Fife Council 2003 SLT 653 .............................................................................. 20.700, 20.710 Tash v Nicholas (1981) 132 New LJ 989 ...................................................................................... 7.560 Tasmania v Wilson [2000] TASSC 152 ......................................................................................... 21.70 Tate v Canonica 5 Cal Rptr 28 (1960) ......................................................................................... 30.630 Tate & Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509 ................ 7.140 Taylor v A Novo (UK) Ltd [2014] QB 150 .... 1.90, 3.300, 3.320, 3.330, 3.570, 3.740, 7.70, 10.370, 10.410, 10.400, 11.510, 12.540, 17.40, 22.570, 22.580, 26.170 Taylor v Baptist Medical Center Inc 400 So 2d 369 (Ala 1981) ................................................. 6.160 Taylor v British Columbia Electric Railway (1911) 16 BCR 109 .................................................. 2.10 Taylor v Canterbury Municipal Council [2000] NSWSC 1093 ...................................................... 8.70 Taylor v Haileybury [2013] VSC 58 ....................................... 20.370, 20.440, 20.480, 20.530, 20.790 Taylor v Kurapati 600 NW 2d 670 (Mich 1999) ......................................................................... 22.630 Taylor v Metzger 706 A 2d 685 (NJ 1998) ................................................................................. 30.630 Taylor v Somerset Health Authority (1993) 16 BMLR 63 ..... 3.320, 10.340, 11.510, 12.100, 22.330, 22.340, 22.370, 22.390, 22.570 Taylor v Trustees of the Christian Brothers (1994) Aust Torts Rep 81-288 .............................. 21.210 Taylor v Vallelunga 339 P 2d 910 (Cal 1959) ............................................................................. 30.640 Taylor v Weston Bakeries (1976) 1 CCLT 158 ........................................................................... 21.170 Taylorson v Shieldness Produce Ltd [1994] PIQR P329 .................................. 10.300, 12.100, 12.430 Tebbutt v Virostek 483 NE 2d 1142 (NY 1985) ............................................................ 22.630, 22.640 Terrorist Attacks on September 11, 2001, In re 349 F Supp 2d 765 (2005) .............................. 11.860 Teubner v Humble (1963) 108 CLR 491 ......................................................................................... 6.50 Texas v Credit Asset Management Inc 85 F Supp 2d 722 (2000) .............................................. 30.630 Theodoretos v Nexus Products Pty Ltd [2009] ACTSC 149 ...................................................... 22.140 Thibeault v Canadian Airlines International Inc 2000 BCSC 1191 ............................... 30.170, 30.210 Thiele v Batten [1962] NSWR 1426 .............................................................................................. 13.30 Thing v La Chusa 771 P 2d 814 (Cal 1989) .. 3.790, 6.160, 10.430, 10.440, 12.480, 18.180, 18.210, 18.220 Thomas v Accident Compensation Corporation [1994] NZAR 322 ............................................. 3.460 Thomas v Corrective Services Commission of New South Wales (unreported, NSWCA, CA Nos 81 and 82 of 1983, 20 December 1989) ........................................................................ 28.180, 28.260 Thomas v Phone Directories Co 996 F Supp 1364 (1998) ......................................................... 18.240 Thomas v Quartermaine (1887) 18 QBD 685 ............................................................................... 7.150 Thompson v Attorney General (Canada) (2008) 85 BCLR (4th) 78 ............................. 11.130, 11.530 Thompson v Bankstown Corporation (1953) 87 CLR 619 ........................................................... 7.120 Thompson v Commissioner of Police for the Metropolis [1998] QB 498 ................ 6.70, 6.80, 6.100 Thompson v NSW Land and Housing Corporation [2011] NSWSC 941 ....................... 2.290, 21.190 Thompson-Schwab v Costaki [1956] 1 WLR 335 .......................................................................... 6.90 Thornton v Board of School Trustees of School District No 57 (Prince George) [1978] 2 SCR 267 ................................................................................................................... 11.530 Thorogood v Bryan (1849) 8 CB 115; 137 ER 452 ...................................................................... 16.70 Thurston v Charles (1905) 21 TLR 659 .......................................................................................... 6.90 Timmerman v Choy (unreported, Vic SC, 6 November 1995) ................................................... 22.180 Timmermans v Buelow (1984) 38 CCLT 136 ........................ 30.160, 30.170, 30.210, 30.220, 30.390 Tobin v Grossman 249 NE 2d 419 (NY 1969) .............................................................................. 3.770 Toler v Cassinelli 41 SE 2d 672 (WVa 1947) ............................................................................. 30.620 Tolley v JS Fry & Son [1931] AC 333 ........................................................................................ 30.710 Tom v Pudovkin (unreported, NSWCA, No 4098 of 1990, 27 March 1992) ................... 17.40, 17.80 Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 ........................................ 19.210 Tomlinson v Harrison [1972] 1 OR 670 ...................................................................................... 16.220 Tommy’s Elbow Room Inc v Kavorkian 727 P 2d 1038 (Alaska 1986) ........................ 3.760, 10.420 Tompkins v Cyr 995 F Supp 664 (1998) ..................................................................................... 30.650 Toney v Chester County Hospital 36 A 3d 83 (Pa 2011) .............................................. 18.190, 18.240

lxviii

Table of Cases

Topgro Greenhouses Ltd v Houweling [2006] BCCA 183 ......................................................... 30.170 Topor v State 671 NYS 2d 584 (1997) ............................................................................ 6.160, 18.240 Tori v Greater Murray Health Service [2002] NSWSC 186 ............................................ 12.50, 22.180 Toronto Railway Co v Toms (1911) 44 SCR 268 ....................................................... 2.10, 2.30, 18.40 Toth v Jarman [2006] Lloyd’s Med 397 ...................................................................................... 22.560 Toth v Ledger [2002] PIQR P1 .................................................................................................... 12.180 Towne v Prospect County Council [2000] NSWCA 270 ............................................................ 13.170 Towns v Anderson 579 P 2d 1163 (Col 1978) .............................................................................. 3.760 Traderight (NSW) Pty Ltd v Bank of Queensland Ltd (No 17) [2014] NSWSC 55 ................. 21.150 Trahan v McManus 689 So 2d 696 (La 1997) ............................................................................ 13.610 Tran v Financial Debt Recovery Ltd (2000) 193 DLR (4th) 168 ................................. 30.190, 30.700 Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895 . 3.30, 10.360, 10.400, 10.450, 22.140, 28.150 Trapp v Schuyler Construction 197 Cal Rptr 411 (1983) ............................................................. 9.220 Travis v Alcon Laboratories Inc 504 SE 2d 419 (WVa 1998) .................................................... 30.620 Tredget v Bexley Health Authority [1994] 5 Med LR 178 .... 10.380, 17.40, 22.380, 22.390, 22.400, 22.430, 22.460, 22.480, 22.510, 22.530, 22.570, 22.700 Tregoning v Hill (The Times, 1 March 1965) ............................................................................... 17.60 Tremain v Pike [1969] 1 WLR 1556 ............................................................................................. 7.600 Trenholm v H & C Trucking Ltd (2014) 342 NSR (2d) 273 ............................................ 9.210, 17.40 Trevorrow v South Australia (No 5) (2007) 98 SASR 136 ........................................................ 21.370 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 .................. 30.710 Trombetta v Conkling 626 NE 2d 653 (NY 1993) ........................................................................ 9.220 Trudgett v Commonwealth [2006] NSWSC 575 ......................................................................... 24.150 Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80; [2013] NSWCA 37 .................................................................................. 2.170, 2.420, 4.10, 22.140 Tsanaktsidis v Oulianoff (1980) 24 SASR 500 ............................................................................ 11.100 Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883 ........................................................... 11.540 Tso Yung v Cheng Yeung Hing [2003] HKEC 253 ..................................................................... 30.180 Tuckey v R & H Green & Silley Weir Ltd [1955] 2 Lloyd’s Rep 619 ............................ 8.370, 17.80 Tucson, City of v Wondergem 466 P 2d 383 (Ariz 1970) ............................................................ 3.760 Turbyfield v Great Western Railway Co (1937) 54 TLR 221 ........................................... 9.150, 17.40 Turley v ISG Lackawanna Inv 774 F 3d 140 (2014) .................................................................. 30.620 Turner v Williams 762 NE 2d 70 (Ill 2001) ................................................................................ 11.100 Turton v Buttler (1987) 85 AR 193 ................................................................................................. 1.20 Tusyn v Tasmania (No 2) [2008] TASSC 76 ............................................................................... 16.250 Tuxford v New South Wales [2006] NSWSC 182 ...................................................................... 30.140

U Ulmer v Weidmann 2011 BCSC 130 ....................................................................... 4.40, 5.220, 10.290 United Services Auto Association v Keith 953 SW 2d 365 (Tex 1997) ...................................... 9.220 United Services Auto Association v Keith 970 SW 2d 540 (Tex 1998) ......................... 9.220, 10.440 Upton v Centrelink [2009] WADC 46 ......................................................................................... 21.490 Urban v Hartford Gas Co 93 A 2d 292 (Conn 1952) .................................................................. 30.620 Urbani v Gillions [2004] NZCA 45 ............................................................................................. 20.750 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 ............................................................ 6.70

V Vaccaro v Squibb Corporation 412 NYS 2d 722 (1978) ............................................................ 22.630 Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765 .......................................... 20.660 Vaillancourt v Medical Center Hospital of Vermont Inc 425 A 2d 92 (Vt 1980) ...................... 22.630 Vairy v Wyong Shire Council (2005) 223 CLR 422 ............................................ 7.170, 7.220, 20.530 Vallery v Southern Baptist Hospital 630 So 2d 861 (La 1993) .................................................. 29.720 Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225 ....................................... 21.420 Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 ........ 1.80, 1.100, 1.180, 3.520, 4.20, 4.40, 4.80, 4.130, 6.420, 6.440, 6.460, 9.420, 10.450, 11.450, 12.490, 22.650

Table of Cases lxix Vana v Tosta [1968] SCR 71 .......................................................................................................... 10.30 Vancouver v Burchill [1932] SCR 620 ........................................................................................ 16.220 Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 ......... 6.40, 6.290, 6.380, 8.310, 29.570 Vanek v Great Atlantic & Pacific Co of Canada (1999) 175 DLR (4th) 409 ................... 6.380, 6.400 Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748 . 1.80, 6.290, 6.300, 6.320, 7.410, 8.310, 10.290, 11.520, 22.790 Vanek v Great Atlantic & Pacific Co of Canada Ltd [2000] 2 SCR xv ....................................... 6.320 Vanguard Insurance Co v Schabatka 120 Cal Rptr 614 (1975) .................................................. 10.430 Varanese v Campbell Estate (1991) 102 NSR (2d) 104 .................................................... 8.310, 8.360 Varga v John Labatt Ltd [1956] OR 1007 ..................................................................................... 8.310 Vaughan v Calvert (unreported, NSWCA, CA No 10 of 1977, 28 July 1977) ............................ 17.40 Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 ....................................... 30.730 Vernon v Bosley (No 1) [1997] 1 All ER 577 ...... 1.180, 3.80, 4.20, 4.50, 4.70, 4.130, 4.140, 5.220, 6.250, 7.500, 7.560, 8.70, 8.260, 10.290, 10.450, 12.100 Vernon v Bosley (No 2) [1999] QB 18; [1997] 1 All ER 614 ............................ 1.180, 4.140, 10.290 Victoria v McIver [2005] VSCA 50 ................................................................................................. 6.80 Victoria Park Racing & Recreation Grounds Co v Taylor (1937) 58 CLR 479 ........................ 30.710 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 . 1.150, 2.10, 2.30, 2.40, 2.50, 2.430, 3.340, 3.440, 3.540, 3.560, 3.640, 3.760, 6.100, 7.730, 9.40, 11.700, 13.10, 13.30, 16.70, 18.10, 18.20, 18.30, 19.50, 22.20, 22.150, 24.10, 24.30, 24.40, 30.40, 30.370, 30.410, 30.420, 30.440, 30.490, 30.500 Videan v British Transport Commission [1963] 2 QB 650 .................................. 7.370, 16.170, 25.20 Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668 ......... 4.40, 7.410, 7.500, 9.40, 17.40, 21.170 Voli v Inglewood Shire Council (1963) 110 CLR 74 .................................................................... 7.120 Vorvis v Insurance Corporation of British Columbia [1989] 1 SCR 1085 ................................ 28.230 Vosburg v Cenex Land O’Lakes Agronomy Co 513 NW 2d 870 (Neb 1994) .......................... 12.130 Vosburg v Putney 50 NW 403 (Wis 1891) .................................................................................... 8.280 Voss v Bolzenius 128 SW 1 (Mo 1910) ...................................................................................... 30.600

W W v Essex County Council [2001] 2 AC 592 .............. 3.210, 4.130, 10.390, 11.180, 18.110, 19.400, 21.300, 22.500, 22.800, 26.230, 26.270, 26.280, 28.140, 28.150 W v Meah [1986] 1 All ER 935 ...................................................................................................... 6.80 Waddle v Sparks 414 SE 2d 22 (NC 1992) ................................................................................. 30.620 Wagner v International Railway Co 133 NE 437 (NY 1921) ............... 25.20, 25.150, 25.220, 25.430 Wagstaff v Haslam [2006] NSWSC 294 ............................................................... 2.290, 2.410, 16.160 Wagstaff v Haslam (2007) 69 NSWLR 1 .............................................................. 2.290, 2.410, 16.160 Wainwright v Home Office [2002] QB 1334 .................................................... 30.100, 30.430, 30.660 Wainwright v Home Office [2004] 2 AC 406 ............ 30.10, 30.100, 30.150, 30.410, 30.440, 30.450, 30.460, 30.550, 30.590, 30.670, 30.680, 30.710 Waite v North Eastern Railway Co (1858) 1 EB & E 719; 120 ER 679 ..................................... 16.70 Wal-Mart Stores Inc v Johnson 547 SE 2d 320 (Ga 2001) ........................................................ 30.630 Waldon v Covington 415 A 2d 1070 (1980) ................................................................................ 30.620 Walker v Great Northern Railway Co of Ireland (1890) 28 LR Ir 69 ......................................... 1.150 Walker v Hamm [2008] VSC 596 ................................................................................... 30.210, 30.290 Walker v Northumberland County Council [1995] ICR 702 ........ 3.460, 4.20, 12.280, 12.290, 20.30, 20.110, 20.130, 20.140, 20.150, 20.160, 20.200, 20.220, 20.230, 20.240, 20.350, 20.660, 20.690, 20.720, 20.790 Walker v Northumberland County Council [1999] 1 WLR 1421 ............................................... 20.240 Walker v Pitlochry Motor Co 1930 SC 565 .................................................................................. 8.310 Walla v Vivek Purmasir & Associates Inc 160 F Supp 2d 380 (2000) ...................................... 30.630 Wallace v Coca-Cola Bottling Plants Inc 269 A 2d 117 (Me 1970) ............................................ 3.760 Wallace v Kennedy (1908) 16 SLT 485 ............................................................................... 2.30, 3.560 Wallace v Korean Air 214 F 3d 293 (2000) ................................................................................ 23.230

lxx Table of Cases Wallace v Parks Corporation 629 NYS 2d 570 (1995) ............................................................... 25.150 Wallace v Shoreham Hotel Corporation 49 A 2d 81 (DC 1946) ................................................ 30.620 Walter v Alltools Ltd (1944) 61 TLR 39 ......................................................................................... 6.80 Walter v Crossan [2014] 1 IR 76 ................................................................................................... 6.120 Walter v Stewart 67 P 3d 1042 (Utah 2003) ............................................................................... 30.630 Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227 .. 3.200, 3.290, 5.220, 10.380, 22.520, 22.530, 22.700, 26.240, 26.260 Waltons v Mytravel Canada Holdings Inc 2006 SKQB 231 ......................................................... 23.80 Wands v Fife Council [2009] Scot SC 18 ................................................................................... 21.410 Ward v Allies & Morrison Architects [2013] PIQR Q1 .............................................................. 17.240 Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 ............. 4.70, 7.410, 8.70, 12.500, 22.790 Ward v James [1966] 1 QB 273 ....................................................................................................... 6.70 Ward v Leeds Teaching Hospitals NHS Trust [2004] Lloyd’s Rep Med 530 .............. 12.100, 22.560 Ward v McMaster [1988] IR 337 ................................................................................................... 7.180 Ward v Scotrail Railways Ltd [1998] ScotCS 95 ............................................. 20.830, 30.180, 30.210 Ward v West Jersey & S Rail Co 47 A 561 (NJ 1900) ..................................................... 1.150, 3.760 Wargelin v Sisters of Mercy Health Corporation 385 NW 2d 732 (Mich 1986) ......... 12.480, 22.630 Waring & Gillow Ltd v Sherborne 1904 TS 340 ............................................................. 3.540, 11.440 Warren Shire Council v Kuehne [2012] NSWCA 81 ........................................... 2.290, 9.240, 10.180 Warwick v Foulkes (1844) 12 M & W 507; 152 ER 1298 ............................................................ 6.80 Washington v John T Rhines Co 646 A 2d 345 (DC 1994) ......................................................... 6.160 Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934 .................. 19.380, 20.250 Watkins v Commonwealth [1999] NSWSC 1127 ........................................................................ 24.150 Watson v Dilts 89 NW 1068 (Iowa 1902) ................................................................................... 30.320 Watt v Rama [1972] VR 353 ................................................................................... 7.370, 8.90, 16.170 Watte v Edgar Maeyens Jr MD PC 828 P 2d 479 (Or 1992) ..................................................... 30.620 Watts v Rake (1960) 108 CLR 158 ................................................................................................ 8.380 Waube v Warrington 258 NW 497 (Wis 1935) ............................................................................. 3.770 Waverley Council v Ferreira (2005) Aust Torts Rep 81-818; [2005] NSWCA 418 ........ 2.290, 7.290, 9.240, 11.420, 13.310, 16.160 Way v Tampa Coca Cola Bottling Co 260 So 2d 288 (Fla 1972) .............................................. 21.170 Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999) ... 5.420, 5.430, 5.450, 5.460, 5.480, 23.240, 23.260 Weaver v Delta Airlines Inc 211 F Supp 2d 1252 (2002) ............................................................ 5.460 Webb v Motta (1998) 233 AR 9 ................................................................................................... 22.610 Webberley v Attorney General (unreported, Tas SC, Nos 90 and 1738 of 1995, 26 April 1996) ............................................................................................................ 20.240, 20.400 Welker v Southern Baptist Hospital of Florida Inc 864 So 2d 1178 (Fla 2004) ....................... 21.140 Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569 ........................... 7.160 Wells v University Hospital Southampton NHS Trust [2015] EWHC 2376 ................. 22.580, 22.590 Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692 ................................. 21.420 Welzenbach v Powers 660 A 2d 1133 (NH 1995) ....................................................................... 30.620 Western Australia v Collard [2015] WASCA 86 ......................................................................... 21.370 Western Union Telegraph Co v Redding 129 So 743 (Fla 1930) ................................................. 6.160 Westwood v Post Office [1974] AC 1 .......................................................................................... 16.220 Wettlaufer v Air Transat AT Inc 2013 BCSC 1245 ..................................................................... 23.270 Whayman v Motor Accidents Insurance Board [2003] TASSC 149 ...................... 4.50, 5.220, 11.400 Wheatley v Cunningham [1992] PIQR Q100 .................................................................................. 4.40 Whetham v Bismarck Hospital 197 NW 2d 678 (ND 1972) ............................... 3.760, 3.770, 22.630 Whitaker v Mullinax 628 So 2d 222 (La 1993) .......................................................................... 12.130 White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982) ......................... 10.100, 11.170, 12.370, 13.170, 16.120, 17.70, 17.100, 28.180

Table of Cases lxxi White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 ......... 1.80, 1.90, 1.100, 1.170, 1.180, 2.30, 2.150, 3.40, 3.80, 3.130, 3.160, 3.170, 3.230, 3.290, 3.310, 3.570, 3.580, 3.620, 3.680, 3.740, 4.10, 4.20, 4.40, 4.70, 4.130, 5.380, 5.510, 6.20, 6.50, 6.250, 6.380, 7.250, 7.410, 7.450, 7.520, 7.790, 8.40, 8.70, 8.250, 8.290, 9.60, 10.290, 10.400, 11.350, 11.570, 12.290, 12.540, 15.120, 15.170, 18.60, 18.120, 18.140, 19.150, 19.160, 19.230, 19.340, 19.350, 19.370, 19.380, 19.390, 19.420, 19.440, 19.450, 20.20, 20.30, 20.150, 20.200, 20.220, 20.250, 20.690, 20.720, 20.850, 21.450, 22.20, 22.70, 22.480, 22.510, 24.290, 25.30, 25.360, 25.380, 25.420, 25.430, 25.440, 25.450, 25.460, 25.470, 25.480, 26.100, 26.120, 26.150, 26.160, 26.170, 26.220, 26.230, 26.280, 26.290, 26.300, 26.320, 26.330, 28.140, 29.570 White v Jones [1995] 2 AC 207 ..................................................................................................... 7.180 White v Lidl UK GmbH [2005] EWHC 871 .............................................................................. 10.120 White Consolidated Industries v Wilkerson 737 So 447 (Ala 1999) .......................................... 27.100 Whitehead v Moon [2013] ACTSC 243 ........................................................................................ 5.220 Whitehouse v Jordan [1981] 1 WLR 246 .................................................................................... 16.170 Whiteside v Croydon London Borough Council [2010] EWHC 329 .............................. 17.40, 20.790 Whitmore v Euroways Express Coaches Ltd (The Times, 4 May 1984) . 6.250, 6.440, 12.380, 17.40 Whitty v Hackney Borough Council (unreported, Eng QBD, 5 February 1987) ......................... 10.30 Wicks v Railcorp [2007] NSWSC 1346 ........................ 2.360, 2.390, 10.170, 12.460, 13.330, 25.260 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 .. 2.200, 2.250, 2.360, 2.390, 2.430, 2.450, 2.460, 2.470, 4.70, 7.60, 7.90, 7.410, 8.220, 9.140, 9.230, 10.170, 11.430, 12.460, 13.40, 13.160, 13.320, 13.370, 13.380, 13.410, 13.490, 13.500, 13.510, 13.520, 13.530, 13.550, 17.40, 25.240, 25.260, 25.270, 25.280, 25.290, 25.300, 25.320 Wideman v DeKalb County 409 SE 2d 537 (Ga 1991) .............................................................. 22.630 Wigg v British Railways Board (1986) 136 New LJ 446 ............................................................. 26.50 Wigg v British Railways Board (The Times, 4 February 1986) ... 19.240, 25.50, 26.50, 26.60, 26.80, 26.190 Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 ... 22.570, 22.580, 22.590 Wilkinson v Downton (1897) 13 TLR 388 .................................................................................. 30.380 Wilkinson v Downton [1897] 2 QB 57 ..... 1.30, 2.440, 6.100, 15.70, 16.260, 19.50, 20.400, 21.150, 21.490, 28.10, 28.90, 29.70, 30.10, 30.30, 30.40, 30.50, 30.220, 30.380, 30.390, 30.420, 30.490 Wilkinson v Downton (1897) 66 LJQB 493 .................................................................... 30.20, 30.380 Wilkinson v Downton (1897) 76 LT 493 ..................................................................................... 30.380 Wilks v Haines (1991) Aust Torts Rep 81-078 ................. 11.190, 13.80, 14.40, 14.50, 19.100, 29.20 Wilks v Hom 3 Cal Rptr 2d 803 (1992) ...................................................................................... 10.440 Willett v Victoria (2013) 42 VR 513 .................................................................................. 17.40, 20.30 Williams v Baker 572 A 2d 1062 (DC 1990) ......................................................... 3.760, 3.770, 6.160 Williams v City of Baton Rouge 731 So 2d 240 (La 1999) ....................................................... 27.100 Williams v Holland (1833) 10 Bing 112; 131 ER 848 ................................................................. 7.100 Williams v Jones Balers (unreported, Chester Assizes, 30 November 1964) ............................... 8.330 Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 ...................... 21.340 Williams v Minister, Aboriginal Land Rights Act 1983 (1999) Aust Torts Rep 81-526 .......... 21.340, 21.360 Williams v Minister, Aboriginal Land Rights Act 1983 (2000) Aust Torts Rep 81-578 . 1.100, 1.180, 21.340 Williams v Mumphrey 668 So 2d 1274 (La 1996) ..................................................................... 13.600 Williamson v Bennett 112 SE 2d 48 (NC 1960) .................................................................. 8.70, 14.70 Williamson v Waldman 696 A 2d 14 (NJ 1997) ......................................................................... 29.720 Willis v Attorney General [1989] 3 NZLR 574 ............................................................................. 3.460 Willis v Gami Golden Glades LLC 967 So 2d 846 (Fla 2007) .................................................... 3.760 Wilson v Canada (1997) 139 FTR 297 ........................................................................................ 28.170 Wilson v Ferguson [2015] WASC 15 ............................................................................................. 6.140 Wilson v Galt 668 P 2d 1104 (NM 1983) ................................................................................... 12.480 Wilson v Horne (1999) 8 Tas R 363 ............................................. 3.230, 6.110, 6.240, 16.270, 30.540 Wilson v New South Wales [2001] NSWSC 869 ........................................................................ 21.310 Wilson v Peisley (1975) 150 ALJR 207 ...................................................................................... 17.160 Wilson v Professional Plaza Pharmacy Inc 903 So 2d 651 (La 2005) ....................................... 26.360

lxxii Table of Cases Wilson v Sears, Roebuck & Co 757 F 2d 948 (1985) .................................................................... 5.60 Wilson v Tasmania [1999] TASSC 145 .............................................................................. 5.220, 21.70 Wilson v Wilkins 25 SW 2d 428 (Ark 1930) ................................................................. 30.610, 30.630 Wilson & Clyde Coal Co Ltd v English [1938] AC 57 .............................................................. 20.110 Winbank v Casino Canberra Ltd [2012] ACTSC 169 ........................................ 8.230, 19.210, 19.220 Windrem v Couture 2009 SKQB 339 .......................................................................................... 30.170 Winter v Commonwealth (1992) 112 ACTR 10 .......................................................................... 16.220 Winterbottom v Wright (1842) 10 M & W 109; 152 ER 402 ...................................................... 7.100 Wise v Kaye [1962] 1 QB 638 ......................................................................................................... 6.50 Wishard Memorial Hospital v Logwood 512 NE 2d 1126 (Ind 1987) .............. 3.760, 11.610, 22.740 Wisniewski v Johns-Manville Corporation 812 F 2d 81 (1987) ................................................. 12.480 Witham v Hastings & Rother NHS Trust (2002) 66 BMLR 20 ................................................. 20.130 Wodrow v Commonwealth (1991) 105 FLR 278 ..................... 20.90, 20.160, 20.390, 20.460, 30.140 Wodrow v Commonwealth (1993) 45 FCR 52 ............. 1.170, 7.150, 7.500, 8.70, 8.80, 20.30, 20.90, 20.160, 20.170, 20.180, 20.190, 20.200, 20.380, 20.470 Wolters v University of the Sunshine Coast [2014] 1 Qd R 571 .................................... 17.40, 19.210 Womack v Eldridge 210 SE 2d 145 (Va 1974) ........................................................................... 30.630 Wong v Parkside Health NHS Trust [2003] 3 All ER 932 ... 30.100, 30.110, 30.120, 30.190, 30.240, 30.430, 30.440, 30.480, 30.490, 30.720, 30.730 Wong Fung Sze v Hospital Authority [2005] HKEC 219 ............................................. 22.530, 25.230 Wong Kwai Fun v Li Fung [1994] HKCFI 21 ............................................................................ 30.180 Wong Tai Wai v Hong Kong SAR Government [2004] HKEC 1093 ........................... 30.180, 30.240 Wong Yiu Wing v To Chark Wah [1993] HKDC 9 ....................................................................... 24.40 Wood v Miller 1958 SLT (Notes) 49 ........................................................................................... 12.380 Wood v National Computer Systems Inc 814 F 2d 544 (1987) ................................................... 3.760 Woods v Duncan [1946] AC 401 ................................................................................................... 7.710 Woods v Lowns (1995) 36 NSWLR 344 ..................................... 4.140, 12.50, 13.120, 17.40, 22.250 Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995) ........ 4.140, 10.380, 12.50, 12.170, 13.120, 13.160, 17.40, 22.250, 22.260 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 ....... 7.170, 7.220, 27.40 Wooldridge v Sumner [1963] 2 QB 43 ........................................................................................ 16.190 Wooleyhan v Cape Henlopen Board of Education 2010 WL 2635982 ...................................... 30.640 Woolworths Ltd v Perrins [2015] QCA 207 ................................................................... 20.370, 20.440 Worboys v Hamill (unreported, NSWSC, No 11216 of 1984, 3 February 1988) ...................... 11.620 Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 ............................................................................................................... 22.140 Wright v Cedzich (1930) 43 CLR 493 ........................................................................................... 30.80 Wright v City of Los Angeles 268 Cal Rptr 309 (1990) .................................... 9.220, 10.440, 22.630 Wright v Commonwealth (2005) 13 VR 155 .............................................................................. 24.140 Wright v Commonwealth [2005] VSC 200 .................................................................................. 24.140 Wright v Optus Administration Pty Ltd [2015] NSWSC 160 .............................. 2.290, 8.220, 19.220 Wright v Stoddard International plc (No 2) [2007] CSOH 173 ................................................. 29.380 Wyld v Bertram & Coats [1970] SASR 1 ..................................................................................... 8.360 Wynbergen v Hoyt’s Corporation Pty Ltd (1997) 72 ALJR 65 .................................................... 16.40 Wyong Shire Council v Shirt (1980) 146 CLR 40 ............................................... 2.290, 7.140, 20.460

X X X X X X

v Bedfordshire County Council [1995] 2 AC 633 .................................................................. 12.330 v Chief Constable of Greater Manchester Police [2004] EWHC 764 .................................... 21.420 v South Australia (2003) 86 SASR 516 ................................................................................... 21.470 v South Australia (No 3) (2007) 97 SASR 180 ...................................................................... 21.470 (Minors) v Bedfordshire County Council [1995] 2 AC 633 ............ 7.180, 21.110, 21.120, 21.140, 21.250, 21.260, 21.270, 21.290, 21.300, 21.310, 21.320, 21.340, 21.380, 21.390, 26.280 X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26 ........ 11.180, 13.170, 17.40, 22.200, 28.180 Xi v Howick Baptist Healthcare Ltd [2014] NZHC 1058 ............................................................ 3.520

Table of Cases lxxiii

Y Yang Yee Man v Leung Hing Hung [2012] 5 HKLRD 782 ......................................................... 3.750 Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 ........................................ 19.410 Yates v South Kirkby Collieries Ltd [1910] 2 KB 538 ..... 2.30, 19.20, 19.30, 19.50, 19.240, 19.270, 25.50 Yeager v Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America 453 NE 2d 666 (Ohio 1983) ......................................................................................................... 30.620, 30.630 Yearworth v North Bristol NHS Trust [2010] QB 1 ........................................................ 6.320, 27.140 Yianni v Edwin Evans & Sons [1982] QB 438 ............................................................................. 7.140 Yoshikawa v Yu (1996) 21 BCLR (3d) 318 .................................................................................. 8.370 Young v Borzoni (2007) 277 DLR (4th) 685 ..................................................... 5.220, 30.170, 30.210 Young v Burgoyne (1981) 122 DLR (3d) 330 ............................. 7.410, 8.310, 10.80, 12.260, 16.130 Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 ...... 1.30, 3.80, 3.170, 10.30, 12.100, 19.320, 24.120, 24.230, 24.240, 25.210 Young v JD Coates Pty Ltd (unreported, NSWCA, CA No 171 of 1988, 5 October 1990) ...... 8.360, 17.80, 21.170 Young v Lort 2007 BCCA 1152 ................................................................................................... 30.170 Young v MacVean [2014] CSOH 133 .......................................................... 1.90, 3.570, 10.370, 17.40 Young v MacVean [2015] CSIH 70 ......................................................................... 1.90, 3.570, 10.370 Young v Post Office [2002] IRLR 660 ........................................................................................ 20.130 Young v Stensrude 664 SW 2d 263 (Mo 1984) .......................................................................... 30.630 Young v Tomlinson [1979] 2 NZLR 441 ....................................................................................... 6.120 Yovina v Big Bubba’s BBQ 896 A 2d 161 (Conn 2006) ............................................................. 9.220 Yu v Yu (1999) 48 MVR (3d) 285 ............................................................................................... 11.100 Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 .................................. 7.140, 7.150

Z Z v United Kingdom [2001] 2 FLR 612; [2001] 2 FCR 246 .......................................... 3.290, 21.270 Zainab bte Ismail v Marimuthu [1955] MLJ 22 .............................................................................. 2.30 Zammit v Queensland Corrective Services Commission [1998] QSC 169 ................... 20.190, 20.540 Zammit v Stena Offshore Ltd (unreported, Eng QBD, 20 March 1997) .................................... 19.320 Zavitsanou v McDonalds Australia Ltd [2004] NSWCA 10 ....................................................... 21.170 Zecevic v Director of Public Prosecutions for Victoria (1987) 162 CLR 645 ........................... 30.710 Zell v Meek 665 So 2d 1048 (1995) .............................................................................................. 3.760 Zinc Corporation v Scarce (unreported, NSWCA, No 40214 of 1993, 20 December 1995) ..... 5.400, 19.50, 22.140 Zumeris v Testa [1972] VR 839 ..................................................................................................... 8.360 Zuniga v Housing Authority of Los Angeles 48 Cal Rptr 2d 353 (1996) .................................. 10.440

Table of Statutes Commonwealth Acts Interpretation Act 1901 s 15AA: 2.380 s 15AB: 2.380

Australian Consumer Law: 2.420 s 50: 30.730

Carriage By Air Act 1935: 23.20 Civil Aviation (Carriers’ Liability) Act 1959: 5.460, 5.490, 23.20, 23.110, 23.160, 23.180, 23.290, 23.300 s 9E: 23.290, 23.310 s 13: 23.290, 23.310 s 28: 23.160, 23.170, 23.180, 23.290, 23.310, 23.330, 23.340 s 34: 23.90 s 36: 23.90, 23.100 Pt II: 23.290 Pt IV: 23.20, 23.90, 23.110, 23.330, 23.340

Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008: 23.290 Competition and Consumer Act 2010 Sch 2 Australian Consumer Law: 2.420 Sch 2 Australian Consumer Law, s 50: 30.730

Family Law Act 1975 s 120: 30.710

Judiciary Act 1903 s 64: 13.420

Judiciary Act 2003 s 64: 14.80

Safety, Rehabilitation and Compensation Act 1988 ss 44 to 45: 19.50

Trade Practices Act 1974: 2.420, 6.100, 23.100 s 52: 23.90, 23.160

Australian Capital Territory Civil Law (Wrongs) Act 2002: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.30, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s 24: 16.170 s 27: 16.170 s 29: 13.120 s 31: 13.30 s 32: 2.260, 13.120, 13.130 s 32 child: A.20 s 32 consequential mental harm: A.20 s 32 family member: A.20 s 32 mental harm: A.20 s 32 negligence: A.20 s 32 parent: A.20 s 32 pure mental harm: A.20 ss 32 to 36: 2.220 s 33: 2.370, 2.430, A.20 s 34: 2.290, 2.410, 24.160, 25.240, 26.130,

29.660 s s s s s s s s s s s s s s s s s s s s s s

34(1): 4.90, 8.220, 18.80, A.20 34(2)(a): 12.20, 12.460 34(2)(a) to (d): A.20 34(2)(b): 10.20, 10.170, 11.410 34(2)(c): 9.20, 9.230 34(2)(d): 18.80, 22.40 34(3): A.20 34(4): 2.300, A.20 35: 2.270, 2.410, 2.430, 4.90, A.20 35(2): 2.330, 6.110, A.20 36: 13.40, 16.140 36(1)(a) to (c): A.20 36(2)(a) to (b): A.20 36(3): A.20 36(4): A.20 36(5): A.20 36(6): A.20 43(1): 7.540, 20.460 43(2): 7.540 45: 7.580 46: 7.580 47: 16.30

lxxvi

Table of Statutes

Civil Law (Wrongs) Act 2002 — cont s 93(1): 30.360 s 99: 17.40 s 104: 16.170 s 119(2): 6.100 s 225(1): 2.410 Pt 3.2: 13.40 Pt 4.2: 7.540

Civil Law (Wrongs) Amendment Act 2003 (No 2): 2.220 Law Reform (Miscellaneous Provisions) Act 1955: 10.350, 11.150 s s s s s

22: 9.70 23: 2.50, 13.30 24: 2.50, 11.620, 13.30 24(1): 17.100 24(5): 13.30

Legislation (Gay, Lesbian and Transgender) Amendment Act 2003: 13.120

Limitation Act 1985 s s s s s

8(1): 16.250 11(1): 16.230 16B(2): 16.230 16B(2)(a): 16.240 40: 16.240

New South Wales Anti-Discrimination Act 1977 s 108: 30.730

Civil Aviation (Carriers’ Liability) Act 1967: 23.20, 23.340 Civil Liability Act 2002: 1.10, 1.110, 1.130, 1.230, 2.220, 2.230, 2.390, 2.420, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.40, 13.50, 13.160, 13.220, 13.290, 13.350, 14.80, 15.140, 16.20, 16.40, 16.140, 17.220, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 22.280, 22.780, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s s s s s s s

3B: 13.220 3B(1): 2.420 3B(1)(a): 30.340 3B(2): 2.420 4(1)(a): 13.50 5B(1): 7.290, 7.540, 20.460 5B(2): 7.290, 7.540

s 5D: 7.580 s 5E: 7.580 s 5R: 16.40 s 11A(1): 30.350 ss 16 to 17: 17.220 s 17A: 17.40 s 21: 6.70, 17.210 s 27: 2.260 s 27 consequential mental harm: A.20 s 27 mental harm: A.20 s 27 negligence: A.20 s 27 personal injury: A.20 s 27 pure mental harm: A.20 ss 27 to 33: 2.220 s 28: 2.430 s 28(1): 2.420, A.20 s 28(2): A.20 s 28(3): 2.420, 30.340, A.20 s 29: 2.370, 2.430, 12.460, 13.40, A.20 s 30: 2.350, 2.360, 2.410, 2.460, 2.470, 11.430, 12.460, 13.300, 13.320, 13.340, 13.350, 13.360, 13.370, 13.380, 13.390, 13.400, 13.410, 13.420, 13.430, 13.530, 14.80, 15.140, 25.270, 25.280, 25.320 s 30(1): 2.350, 13.410, 13.420, 13.490, 13.560, 24.160, 25.310, 25.320, A.20 s 30(2): 2.350, 2.460, 10.170, 13.310, 13.330, 13.420, 24.160, 25.250,

26.130 30(2)(a): 13.310, 13.380, A.20 30(2)(b): A.20 30(3): 2.350, 16.160, A.20 30(4): 2.350, A.20 30(5): 2.350, 13.300, 25.250 30(5)(a) close member of the family: A.20 30(5)(b) close member of the family: A.20 30(5)(b) spouse or partner: A.20 30(5)(c) close member of the family: A.20 30(5)(d) close member of the family: A.20 31: 2.270, 4.90, 4.100, A.20 32: 2.280, 2.320, 2.460, 2.470, 11.420, 12.460, 13.390, 13.400, 13.530, 20.420, 21.80, 21.400, 24.160, 25.240, 26.130, 29.660 s 32(1): 2.320, 4.90, 7.80, 8.220, 18.80, A.20 s 32(2): 2.290, 20.420 s 32(2)(a): 12.20, 12.460, A.20 s 32(2)(b): 2.310, 10.20, 10.170, 11.410, A.20 s 32(2)(c): 9.20, 9.230, A.20 s 32(2)(d): 18.80, 22.40, A.20 s 32(3): A.20 s 32(4): 2.300, 8.220, A.20 s 33: 2.330, 6.110, A.20 Pt 1A, Div 2: 7.540 Pt 3: 11.620, A.20 Sch 1, item 6(1): 2.410

s s s s s s s s s s s s

Table of Statutes lxxvii Civil Liability Act 2002 — cont Sch 1, item 6(2): 2.410 Sch 1, cl 11: 13.40

Civil Liability Amendment (Personal Responsibility) Act 2002: 2.220, 13.350 Civil Liability Amendment (Personal Responsibility) Bill: 10.170 Compensation to Relatives Act 1897: 7.670, 29.590 s 3(1): 16.170

Defamation Act 2005 s 7(2): 6.100

Health Care Liability Act 2001: 17.220 Interpretation Act 1987 s 33: 13.100 s 34: 13.100

Law Reform (Miscellaneous Provisions) Act 1944: 2.180, 4.10, 6.200, 10.290, 10.310, 10.350, 11.150, 11.240, 11.260, 11.270, 12.50, 13.10, 13.30, 13.220, 13.230, 13.270, 13.350, 22.760, 23.180 s 3: 2.50, 13.30, 13.40 s 4: 2.50, 11.170, 11.360, 13.40, 16.140,

17.160 s s s s s

4(1): 9.70, 11.620, 13.30, 22.260, 30.310 4(1)(a): 13.170 4(1)(b): 13.170 4(4): 13.30 4(5): 9.70, 13.30, 13.120, 13.130

Law Reform (Miscellaneous Provisions) Act 1965 s 13: 16.170 Pt 3: 16.30

Limitation Act 1969: 21.340, 24.140, 29.620 s s s s s s

11(1): 16.250 14(1)(b): 16.230 18A: 16.230 50C: 16.230, 16.240 58(2): 29.600 60F: 29.600, 29.610

Motor Accidents Act 1988: 2.420, 5.390, 13.240, 13.270 s s s s

3(1): 13.220 77: 4.20, 10.290, 13.220 77(a)(ii): 13.230 79(1): 4.40

Motor Accidents Compensation Act 1999: 2.420, 13.270, 17.220 s 141: 13.220

Motor Accidents (Lifetime Care and Support) Act 2006: 13.250 Motor Vehicle (Third Party Insurance) Act 1942 s 30(1): 5.400

Supreme Court Act 1970 s 85: 6.70

Transport Accidents Compensation Act 1987: 13.230 Workers Compensation Act 1987: 2.420, 17.220 s 151: 13.270 s 151AD: 13.280, 22.130 s 151H: 19.50 s 151P: 11.360, 13.270, 13.280

Workers’ Compensation Act 1926 s 6: 5.400

Northern Territory Aboriginals Ordinance: 21.370 Anti-Discrimination Act s 88: 30.730

Compensation (Fatal Injuries) Act s 7(1): 16.170 s 10: 17.190 s 10(3)(f): 12.160

Defamation Act s 6(2): 6.100

s 60G: 29.600, 29.610 s 62A: 16.240

Married Persons (Property and Torts) Act 1901 s 16A: 15.30

Mental Health Act 1990: 7.300, 11.420

Law Reform (Miscellaneous Provisions) Act s 18: 16.170 s 23: 9.70, 13.30, 13.120, 13.130 s 23 child: A.20 s 23 member of the family: A.20 s 24: 2.50, 2.370, 13.30

lxxviii

Table of Statutes s 50: 30.360 s 52: 6.70, 17.210 ss 61 to 62: 17.220 Ch 2 Pt 1 Div 1: 7.540

Law Reform (Miscellaneous Provisions) Act — cont s 24(1): A.20 s 24(2): A.20 s 25: 2.50, 11.620, 13.30, 13.40, 16.140 s 25(1)(a) to (b): A.20 s 25(2): A.20 s 25(3)(a) to (c): A.20 s 25(4): A.20 s 25(5): 13.30, A.20 Pt V: 16.30 Pt VII: 13.40, A.20

Civil Proceedings Act 2011

Limitation Act

Law Reform Act 1995

s 4(1): 16.250 s 12(1)(b): 16.230 s 24: 16.240

Motor Accidents (Compensation) Act: 13.250

Personal Injuries (Liabilities and Damages) Act: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s 4(1): 30.360 s 19: 6.70, 17.210 s 24: 17.220 ss 24 to 26: 17.220

Return to Work Act s 52(1): 19.50

Queensland Anti-Discrimination Act 1991 s 209: 30.730

Civil Liability Act 2003: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s s s s s

9(1): 7.540, 20.460 9(2): 7.540 11: 7.580 12: 7.580 23: 16.40

s 64: 16.170

Criminal Code s 663A: 5.400 s 663AA(1): 5.400

Pt 3, Div 3: 16.30

Limitation of Actions Act 1974 s s s s s

5(1): 16.250 10(1)(a): 16.230 11: 16.230 31: 16.240 31(2): 7.680

Workcover Queensland Act 1996 s 34: 13.270

Workers Compensation and Rehabilitation Act 2003 s 237: 19.50

South Australia Aboriginal Affairs Act 1962: 21.370 Civil Liability Act 1936: 1.10, 1.110, 1.130, 1.230, 2.200, 2.220, 2.430, 2.440, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.140, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s s s s s s s s s s s s s s

3: 2.260, 2.440, 16.40, 30.340 3(1): 13.490, 13.560 3(1) accident: A.20 3(1) brother: A.20 3(1) child: A.20 3(1) consequential mental harm: A.20 3(1) domestic partner: A.20 3(1) mental harm: A.20 3(1) motor accident: A.20 3(1) negligence: A.20 3(1) parent: A.20 3(1) personal injury: A.20 3(1) pure mental harm: A.20 3(1) sister: A.20

Table of Statutes lxxix Civil Liability Act 1936 — cont s 3(1) spouse: A.20 s 3(2): A.20 s 4: 16.40 s 4(1): 2.440, 30.340 s 28(1): 16.170 ss 28 to 30: 17.190 s 32(1): 7.540, 20.460 s 32(2): 7.540 s 33: 2.220, 2.290, 2.440, 2.480, 13.480, 13.520, 13.530, 24.160, 25.240, 26.130, 29.660, 30.340 s 33(1): 4.90, 8.220, 13.500, 18.80, A.20 s 33(2): 13.500 s 33(2)(a)(i): 12.20, 12.460 s 33(2)(a)(i) to (iv): A.20 s 33(2)(a)(ii): 2.290, 10.20, 10.170, 11.410 s 33(2)(a)(iii): 2.290, 9.20, 9.230 s 33(2)(a)(iv): 18.80, 22.40 s 33(2)(b): A.20 s 33(3): 2.300, 8.220, A.20 s 34: 7.580 s 35: 7.580 s 51: 2.440, 13.560, 30.340, 30.350 s 51(a)(i) to (ii): A.20 s 51(b): A.20 s 52: 17.220 s 53: 2.220, 2.360, 2.440, 2.480, 10.180, 11.430, 13.500, 13.530, 15.140, 25.310, 29.670, 30.340 s 53(1): 13.480, 13.500, 13.510, 13.520, 13.530, 13.540, 13.550, 13.560, 24.160, 25.300, 25.320, 26.130 s 53(1)(a): A.20 s 53(1)(b): 2.290, 13.500, A.20 s 53(2): 2.270, 4.90, A.20 s 53(3): 2.330, 6.110, A.20 Pt 6: 2.440, 30.340 Pt 6, Div 1: 7.540 Pt 8: 2.440, 13.560, 30.340, 30.350, A.20

Domestic Violence Act 1994 s 4(2): 5.400

Equal Opportunity Act 1984 s 96: 30.730

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 7: 16.30, 16.170

Law Reform (Ipp Recommendations) Act 2004: 1.10, 2.220, 13.200 s 46: 13.30

Limitation of Actions Act 1936

s s s s

35(c): 16.230 36(1): 16.230 36(2): 16.250 48: 16.240

Residential Tenancies Act 1995 s 65(2): 30.730

Return to Work Act 2014 s 72: 19.50

Wrongs Act 1936: 1.10, 2.220 3A: 13.200 24C: 13.210 28: 2.50, 13.30 35A: 11.290, 13.200, 13.210, 13.510, 13.530, 14.100, 16.160 s 35A(1): 13.200 ss 35 to 36: 30.710

s s s s

Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002: 13.210

Tasmania Anti-Discrimination Act 1998 s 89: 30.730

Civil Liability Act 2002: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s 3: 2.430 s 3B(1)(a): 30.340 s 4(3): 2.410 s 11(1): 7.540, 20.460 s 11(2): 7.540 s 13: 7.580 s 14: 7.580 s 23: 16.40 s 24: 30.350 s 27: 17.220 s 28: 17.40 s 29: 2.260 s 29 consequential mental harm: A.20 s 29 mental harm: A.20 s 29 pure mental harm: A.20 ss 29 to 35: 2.220 s 30: 2.420, 2.430, 30.340, A.20 s 31: 2.370, 2.430, A.20 s 32: 2.360, 11.430, 13.450, 13.470, 25.290

lxxx Table of Statutes Civil Liability Act 2002 — cont s 32(1): 4.90, 25.310, A.20 s 32(2): 26.130 s 32(2)(a): 12.20, 12.460, A.20 s 32(2)(b): 2.290, A.20 s 32(2)(c): 2.290 s 32(3): 13.450, A.20 s 32(3)(a) spouse: A.20 s 32(3)(b) spouse: A.20 s 32(3)(b) close member of the family: A.20 s 32(3)(c) close member of the family: A.20 s 32(3)(d) close member of the family: A.20 s 32(4): A.20 s 33: 2.270, 4.90, A.20 s 34: 2.290, 24.160, 25.240, 26.130, 29.660 s 34(1): 8.220, 18.80 s 34(2)(b): 18.80, 22.40 s 34(4): 2.300, 8.220 s 35: 2.330, 6.110, A.20 Pt 1, Div 2: 7.540 Pt 8: A.20

Civil Liability Amendment Act 2002: 2.220

Fatal Accidents Act 1934: 15.50 s 4: 16.170

Limitation Act 1974 s s s s s s

4(1)(a): 16.230 5(1): 6.240, 16.230 5(3): 29.480 5(5): 16.250 5A(3): 16.240 5A(5): 16.240

Motor Accidents (Liabilities and Compensation) Act 1973: 13.250, 15.100 Workers Rehabilitation and Compensation Act 1988 s 138AB: 19.50

Wrongs Act 1954: 16.30

Victoria Accident Compensation Act 1985 s 134AB: 19.50

Criminal Injuries Compensation Act 1972: 11.160

Equal Opportunity Act 2010 s 125: 30.730

Limitation of Actions Act 1958

s s s s s s

3(1): 16.250 5(1)(a): 16.230 5(1A): 16.240, 24.140 27D: 16.230, 16.240 27K: 16.240 39: 16.230

Mental Health Act 1986: 22.810 Motor Accidents Act 1973: 10.350, 13.250 Supreme Court (General Civil Procedure) Rules 2015 r 47.02: 6.70

Transport Accident Act 1986: 9.170, 12.50, 13.250 s 3(1): 13.250 s 93(2): 13.250

Transport Accidents Act 1986: 11.620 Workplace Injury Rehabilitation and Compensation Act 2013 s 327: 19.50

Wrongs Act 1958: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750 s 16: 16.170 s 23: 2.50, 2.370, 2.430, 13.30, A.20 s 26(4): 16.170 s 28B: 30.350 s 28C(1): 30.350 s 28C(2)(a): 30.350 ss 28G to 28H: 17.220 s 28HA: 17.40 s 48(1): 7.540, 20.460 s 48(2): 7.540 s 51: 7.580 s 52: 7.580 s 62: 16.40 s 67: 2.260 s 67 consequential mental harm: A.20 s 67 court: A.20 s 67 damages: A.20 s 67 injury: A.20 s 67 mental harm: A.20 s 67 negligence: A.20 s 67 pure mental harm: A.20 ss 67 to 78: 2.220

Table of Statutes lxxxi Wrongs Act 1958 — cont s 68: 2.430, A.20 ss 68 to 69: 2.420 s 71: A.20 s 72: 2.290, 24.160, 25.240, 26.130, 29.660 s 72(1): 4.90, 8.220, 18.80, A.20 s 72(2)(a): 12.20, 12.460, A.20 s 72(2)(b): 10.20, 10.170, 11.410, A.20 s 72(2)(c): 9.20, 9.230, A.20 s 72(2)(d): 18.80, 22.40, A.20 s 72(3): 8.220, A.20 s 72(4): 2.300 s 73: 2.360, 11.430, 13.440, 25.280 s 73(1): 25.310, A.20 s 73(2): 26.130 s 73(2)(a): A.20 s 73(2)(b): A.20 s 73(3): 2.350, A.20 s 74: 2.290 s 74(1): 4.90 s 74(1)(a): A.20 s 74(1)(b): A.20 s 74(2): A.20 s 75: 2.270, 2.330, 4.90, 6.110, A.20 s 78: 2.270 s 78(1): 2.410 s 78(2): 2.410 Pt V: 16.30 Pt VB: 30.350 Pt X, Div 2: 7.540 Pt XI: A.20

s 5K: 16.40 s 5Q: 2.260 s 5Q consequential mental harm: A.20 s 5Q mental harm: A.20 s 5Q pure mental harm: A.20 ss 5Q to 5T: 2.220 s 5R: A.20 s 5R(1): 2.420, 2.440, 30.340, A.20 s 5R(2): 2.420, A.20 s 5R(3): 2.410, A.20 s 5R(4): 2.410 s 5R(4)(a): A.20 s 5R(4)(b): A.20 s 5R(5): A.20 s 5S: 2.290, 24.160, 25.240, 26.130, 29.660,

A.20 s 5S(1): 2.270, 4.90, 8.220, 18.80, A.20 s 5S(2)(a): 12.20, 12.460, A.20 s 5S(2)(b): 10.20, 10.170, 11.410, A.20 s 5S(2)(c): 9.20, 9.230, A.20 s 5S(2)(d): 18.80, 22.40, A.20 s 5S(3): A.20 s 5S(4): 2.300, 8.220, A.20 s 5T: 2.330, 6.110, A.20 s 6(1): 2.440, 30.350 ss 9 to 10: 17.220 s 10A: 17.40 Pt 1A: 30.350 Pt 1A, Div 2: 7.540 Pt 1B: A.20

Wrongs and Other Acts (Law of Negligence) Act 2003: 1.10, 2.220

Pt 2: 30.350

Civil Liability Amendment Act 2003:

Western Australia

2.220

Civil Aviation (Carriers’ Liability) Act 1961: 23.340

Equal Opportunity Act 1984

Civil Liability Act 2002: 1.10, 1.110, 1.130, 1.230, 2.220, 2.430, 2.440, 3.600, 4.20, 4.40, 4.90, 6.10, 6.110, 6.410, 7.20, 7.290, 7.310, 7.390, 7.410, 7.610, 7.660, 8.10, 8.220, 9.20, 9.230, 9.240, 11.10, 12.440, 12.460, 13.20, 13.290, 14.80, 15.140, 16.20, 16.40, 18.170, 19.220, 20.420, 20.460, 20.520, 20.560, 26.140, 27.60, 28.80, 29.260, 30.340, 30.350, 30.750

Fatal Accidents Act 1959

s s s s s s s s

3: 30.350 3A: 2.440, 30.340 5A: 2.440 5A(1): 30.350 5B(1): 7.540, 20.460 5B(2): 7.540 5C: 7.580 5D: 7.580

s 127: 30.730

s 4(1): 16.170

Interpretation Act 1984 s 8: 4.110

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 ss 4 to 6: 16.30

Limitation Act 1935: 21.210 Limitation Act 2005 s 13: 16.230 s 14: 16.230 s 39: 16.240 ss 55 to 56: 16.240

lxxxii

Table of Statutes

Workers’ Compensation and Injury Management Act 1981

Limitation of Actions Act SNB 2009, c L8.5, s 5: 16.240

s 93E: 19.50

Canada

Tortfeasors Act RSNB 2011, c 231: 16.30

Canadian Charter of Rights and Freedoms: 20.720 s 7: 3.360, 6.310

Carriage by Air Act RSC 1985, c C-26: 23.20

Class Proceedings Act SO 1992 c 6: 23.270

Newfoundland Contributory Negligence Act RSNL 1990, c C-33: 16.30

Limitations Act SNL 1995, c L-16.1, s 5(b): 16.230 SNL 1995, c L-16.1, s 6: 16.230 SNL 1995, c L-16.1, s 14: 16.240

Alberta Northwest Territories Contributory Negligence Act RSA 2000, c C-27: 16.30

Fatal Accidents Act RSA 2000, c F-8, s 8: 17.190

Limitations Act RSA 2000, c L-12, s 3: 16.240

Contributory Negligence Act RSNWT 1988, c C-18: 16.30

Limitation of Actions Act RSNWT 1988, c L-8, s 2(1)(d): 16.230 RSNWT 1988, c L-8, s 2(1)(j): 16.230

Nova Scotia

British Columbia Family Compensation Act 1996: 9.200 Limitation Act

Compensation for Victims of Crime Act 1975 s 6: 11.590, 11.900

RSBC 1996, c 266, s 6(3): 16.240 RSBC 1996, c 266, s 8: 16.270 SBC 2012, c 13, s 6: 16.240 SBC 2012, c 13, s 21: 16.240

Contributory Negligence Act RSNS 1989, c 95: 16.30

Fatal Injuries Act Negligence Act

RSNS 1989, c 163, s 5(2): 17.190

RSBC 1996, c 333: 16.30

Manitoba Fatal Accidents Act CCSM c F-50, s 3(4): 17.190

Limitation of Actions Act RSNS RSNS RSNS RSNS

1989, 1989, 1989, 1989,

c c c c

258, 258, 258, 258,

Limitation of Actions Act CCSM c L-150, s 2(1): 16.230 CCSM c L-150, s 2(1)(e): 16.230 CCSM c L-150, s 14(1): 16.240

Tortfeasors and Contributory Negligence Act

s s s s

2(1)(d): 16.230 2(1)(e): 16.230 2(1)(f): 16.230 3: 16.240

Ontario Class Proceedings Act 1992: 29.560 Contributory Negligence Act SO 1924, c 32: 16.30

CCSM c T-90: 16.30

Dog Owners Liability Act

New Brunswick Fatal Accidents Act RSNB 1973, c F-7, s 3: 17.190

RSO 1990, c D-16: 27.10

Family Law Act RSO 1990, c F3, s 61: 6.360

Table of Statutes lxxxiii Family Law Act — cont RSO 1990, c F3, s 61(2)(e): 17.190

Insurance Act RSO 1990, c I-8, s 266: 10.310, 13.630

s 11(2)(a): 16.230 s 11(2)(b): 16.230

Statute of Limitations (Amendment) Act 1991: 16.240

Limitations Act

New Zealand

SO 2002, c 24, s 4: 16.240 SO 2002, c 24, s 15: 16.240

Accident Compensation Act 1972: 3.450 Negligence Act

s 5(1): 3.450

RSO 1990, c N-1: 16.30

Accident Compensation Act 1982: 3.450

Prince Edward Island Contributory Negligence Act RSPEI 1988, c C-21: 16.30

Fatal Accidents Act RSPEI 1988, c F-5, s 6(3): 17.190

s 2: 3.450 s 2(b)(ii): 3.450 s 27(1): 3.450, 3.480

Accident Compensation Act 2001 s 20: 3.510 s 21: 3.510 s 21A: 3.510

Statute of Limitations RSPEI 1988, c S-7, s 2(1)(d): 16.230 RSPEI 1988, c S-7, s 2(1)(g): 16.230

s 21B: 3.510 s 317: 3.510

Accident Compensation Act 2010: 3.510

Saskatchewan Contributory Negligence Act RSS 1978, c C-31: 16.30

Fatal Accidents Act RSS 1978, c F-11, s 4.1: 17.190

Limitations Act SS 2004, c L-16.1, ss 5 to 7: 16.240

Yukon Territory Contributory Negligence Act RSY 2002, c 42: 16.30

Limitation of Actions Act RSYT 2002, c 139, s 2(1)(d): 16.230 RSYT 2002, c 139, s 2(1)(j): 16.230

Hong Kong

Accident Insurance Act 1998: 3.470 Accident Rehabilitation and Compensation Insurance Act 1992: 3.470, 4.20, 19.460, 20.750 s 4: 3.470 s 8(2): 3.470 s 8(3): 3.470 s 14(1): 3.470, 3.500 s 17: 29.290

Contributory Negligence Act 1947 s 3(1): 16.30

Domestic Actions Act 1975 s 4(1): 30.710

Family Proceedings Act 1980 s 190: 30.710

Injury Prevention, Rehabilitation and Compensation Act 2001: 3.510

Fatal Accidents Ordinance: 11.540 Law Reform Act 1944

Ireland (National) Civil Liability Act 1961 s 34(1): 16.30 s 49: 17.190

s 2: 3.440

Law Reform (Testamentary Promises) Act 1949: 6.130 Limitation Act 1950

Statute of Limitations 1957

s 4(1)(a): 16.230

lxxxiv

Table of Statutes

Limitation Act 1950 — cont s 4(7): 5.400, 16.230, 16.240

South Africa Apportionment of Damages Act 1956 s 1(1): 16.30

United Kingdom

Criminal Justice Act 1988: 11.570 s 109(2): 11.570

Damages (Asbestos-related Conditions) (Scotland) Act 2009: 29.380 Damages (Scotland) Act 1976: 17.190 s 1(4): 17.190

Disability Discrimination Act 1995 Administration of Justice Act 1970 s 40(1): 30.730

Administration of Justice Act 1982 s 1(1): 6.110

Air Navigation Act 1920: 23.380, 23.390 Carriage by Air Act 1932: 23.20

s 8(4): 30.730 s 25(2): 30.730

Fatal Accidents Act 1846: 2.50 s 1: 16.170

Fatal Accidents Act 1976: 19.380 s 1(1): 16.170 s 1A: 6.110, 17.190

Carriage by Air Act 1961: 23.20, 23.70 s 1(2): 23.70 s 10(1): 23.20

Carriage by Air Acts (Application of Provisions) Order 1967 (SI 1967/480): 23.20, 23.190 Sch 1: 5.410 Sch 1, Pt III: 23.200

Civil Aviation Act 1982 s 76(2): 23.380, 23.390, 23.400 s 105: 23.390

Civil Procedure Rules 1998: 21.260 Compensation Act 2006: 17.240 Congenital Disabilities (Civil Liability) Act 1976: 16.170 s 1(1): 16.170 s 1(2): 16.170 s 1(7): 16.170

Consumer Protection Act 1987: 21.170

Human Rights Act 1998: 21.10, 21.270, 30.710, 30.730 Latent Damage Act 1986: 16.240 Law Reform (Contributory Negligence) Act 1945: 16.30 Law Reform (Miscellaneous Provisions) Act 1934 s 1(1): 6.180

Law Reform (Miscellaneous Provisions) Act 1970 s 5: 30.710

Limitation Act 1980 s 2: 16.230 s 11: 16.230, 16.240 s 33: 16.240, 22.450 s 38(1): 16.250

Mines and Quarries Act 1954 s 83: 26.180

Crime and Disorder Act 1998: 30.730 Nuclear Installations Act 1965: 29.60 Criminal Injuries Compensation Act 1995: 11.560

Criminal Injuries Compensation (Northern Ireland) Order 1988: 11.580

Occupiers’ Liability Act 1957: 1.30 Offences against the Person Act 1861 s 18: 4.110

Art 5(12): 11.580

Criminal Injuries to Persons (Compensation) Act (NI) 1968: 11.580

Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 reg 32(3): 24.110

Table of Statutes lxxxv

Prescription and Limitation (Scotland) Act 1973 s 6: 16.230 s 17: 5.400, 16.240 s 17(2): 16.230 s 19A: 16.240 s 22(1): 16.250

Protection from Eviction Act 1977 s 1: 30.730

Protection from Harassment Act 1997: 30.120, 30.460 s 3(2): 6.90, 30.730

Race Relations Act 1976 s 57(4): 30.730

Rent Act 1965 s 30: 30.730

Scotland Act 1998 s 29: 29.380

Sex Discrimination Act 1975 s 66(4): 30.730

Shipbuilding Regulations 1931: 26.10 Social Action, Responsibility and Heroism Act 2015: 17.240 Unfair Contract Terms Act 1977

Restatement of Torts Second: 28.170, 30.380, 30.620, 30.640 § 8A: 30.380 § 46: 30.620, 30.640, 30.660 § 46 comment (d): 30.620 § 46 comment (g): 30.620 § 46 comment (j): 5.80, 30.620 § 46(2): 30.640 §§ 46 to 48: 5.60 §§ 46 to 48 and comments: 30.600 § 312: 30.320, 30.640 § 313: 6.160 § 313(2): 3.770 § 436, Reporter’s Note: 3.760 § 436(2): 3.770 § 500: 30.380 § 870: 30.50

Restatement of Torts Third: 30.380, 30.640 § 45: 30.620 § 45 comment (c): 30.620 § 45 comment I: 30.620 §§ 45 to 47: 5.60 § 46: 3.780 § 46 comment I: 30.640 § 47: 3.780, 30.320

Hawai’i Hawai’i Revised Statutes 1986 § 22, ch 663: 6.160

Louisiana

s 2(2): 7.180

Working Time Regulations 1998: 20.660 Workmen’s Compensation Act 1897 s 2: 27.10

Workmen’s Compensation Act 1906: 19.30

United States Federal Employers’ Liability Act: 3.770, 24.40, 29.260, 29.750

Louisiana Civil Code Art 2315.6: 13.590, 13.610

Treaties and Conventions European Convention on Human Rights: 3.290, 21.10, 23.70, 30.710 Art 3: 21.270 Art 6: 3.290, 21.260, 21.270 Art 8: 21.270, 30.100 Art 13: 21.270 First Protocol, Art 1: 29.380

45 USC § 51: 29.260

Restatement of Torts §§ 45 to 47 and comments: 30.600 § 48: 18.40 § 46: 30.620 § 47A: 30.620

Restatement of Torts (Supplement) 1948 § 46: 30.620

Guadalajara Convention 1961: 23.20 Montreal Convention 1999: 5.460, 5.480, 23.10, 23.30, 23.80, 23.270, 23.290, 23.310 Art 17: 23.30, 23.290

Warsaw Convention 1929: 5.410, 5.440, 5.450, 6.180, 23.10, 23.20, 23.30, 23.40, 23.60, 23.70, 23.80, 23.90, 23.110, 23.130,

lxxxvi

Table of Statutes

Warsaw Convention 1929 — cont

23.170, 23.180, 23.190, 23.200, 23.210, 23.220, 23.230, 23.250, 23.270, 23.280, 23.290, 23.340, 23.370 Art 17: 4.20, 4.60, 5.410, 5.430, 5.440, 5.460, 5.480, 5.490, 6.180, 23.10, 23.20, 23.40, 23.50, 23.60, 23.100, 23.120, 23.130, 23.140, 23.150, 23.160, 23.180, 23.190, 23.200,

23.210, 23.230, 23.240, 23.250, 23.260, 23.270, 23.280, 23.330, 23.370, 23.380 Art 20: 23.20 Art 22: 23.20 Art 24(2): 23.100 Art 29: 23.20 Ch III: 23.20

PART I Introduction 1.

Introduction .................................................................................................................................... 3

2.

The Australian Law .................................................................................................................... 21

3.

The Law Elsewhere ..................................................................................................................... 57

Chapter 1

Introduction [1.10] LIABILITY FOR MENTAL HARM ...................................................................................... 3 [1.10] The area of inquiry ................................................................................................................. 3 [1.40] The search for limits ............................................................................................................... 6 [1.120] Jurisdictional focus ............................................................................................................. 11 [1.140] TRADITIONAL ARGUMENTS AGAINST RECOVERY ............................................. 12

“It is submitted, I think rightly, that this claim breaks new ground. No analogous claim has ever, to my knowledge, been upheld or even advanced. If, therefore, it were proper to erect a doctrinal boundary stone at the point which the onward march of recorded decisions has so far reached, we should answer the question of principle in the negative and dismiss the plaintiff’s action. … But I should for my part erect the boundary stone with a strong presentiment that it would not be long before a case would arise so compelling on its facts as to cause the stone to be moved to a new and more distant resting place.”1

LIABILITY FOR MENTAL HARM The area of inquiry [1.10] This book deals with liability for what has traditionally been called “nervous shock”. It acquired this label in the 1890s, when courts first began to recognise that there might be cases where it was appropriate to grant some redress for physical injuries or illnesses caused through the medium of the mind, rather than by impact.2 In the 1890s, doctors 1 Attia v British Gas plc [1988] QB 304 at 320 per Bingham LJ, refusing to rule out the possibility of liability for psychiatric injury caused by witnessing damage to property. 2

On the history of the relationship between medical advances and the development of the law, see D Mendelson, “The Defendant’s Liability for Negligently Caused Nervous Shock in Australia – Quo Vadis?” (1992) 18 Mon ULR 16; D Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Injury (Nervous Shock) (Ashgate Dartmouth, Aldershot, 1998). In earlier times, terms used included “railway spine” (because it was first thought to be a condition exclusively associated with railway accidents, a theory refuted by JE Erichsen, On Railway and Other Injuries of the Nervous System (Walton & Maberly, London, 1866), and “neurasthenia” (an indefinite term used to denote a number of conditions in which there is a functional (as opposed to organic) disturbance of the nervous system (a term first used by GM Beard, Practical Treatise on Nervous Exhaustion (Neurasthenia) (William Wood, New York, 1880): “Neurasthenia is of course as truly an injury as a broken bone”: Riddell J in Bateman v Middlesex (County) (1911) 19 OWR 442). Note also, in the World War I context, “shell-shock”: for a recent study see M Tyquin, Madness and the Military: Australia’s Experience of the Great War (Australian Military History Publications, Loftus, New South Wales, 2006). On terminology, see further [4.10]–[4.20].

4

Part I: Introduction

[1.20]

referred to these as cases of “nervous shock”, but lawyers retained this terminology long after it had been abandoned by the medical profession. By the 1980s, lawyers were beginning to catch up, and “psychiatric injury” increasingly became the term most commonly used to describe this form of damage. In Australia, the Civil Liability Acts enacted in most States and Territories from 2002 onwards3 now refer to “mental harm”, a development reflected in the change to the title of this book for the present edition. However, at least when discussing particular cases, the terminology used in the text for the most part reflects the terms used in the judgments. While “mental harm” has consistently been used in the context of the Australian legislation, “psychiatric injury” has generally been retained in discussions of the common law. [1.20] The special problems that arise in this area of the law of torts have been a focus of interest for lawyers for many years — indeed, Windeyer J noted nearly 50 years ago that “[t]here have been, in recent times, so many cases about nervous shock, and they have led to so much academic commentary, critical, learned and discerning, but not all harmonious, that the topic now has a special place in books on the law of torts, indeed in some it is virtually a rubric.”4 However, it should be remembered that we are dealing not with a separate tort, but with an application of the tort of negligence to a particular kind of personal damage. This is despite occasional judicial statements to the effect that there is a separate tort of causing “nervous shock” or psychiatric injury5 — statements that are clearly out of line when compared with a large

3

Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Civil Liability Act 1936 (SA) (as amended by the Law Reform (Ipp Recommendations) Act 2004 (SA), which also changed the name of what was originally called the Wrongs Act 1936 (SA)); Civil Liability Act 2003 (Qld); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic) (as amended by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic)); Civil Liability Act 2002 (WA). There is no real equivalent in the Northern Territory, where the reforms enacted were of lesser scope: see the Personal Injuries (Liabilities and Damages) Act (NT). The catalyst for this legislation was the “Ipp Report” (Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002)) commissioned to make proposals to deal with the “insurance crisis” of 2002, though the resulting legislation is very far from uniform.

4 5

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394.

The most well-known is Abramzik v Brenner (1967) 65 DLR (2d) 651 at 654 per Culliton CJS: “In my opinion the authoritative view is that nervous shock, other than that flowing from a physical injury suffered by a claimant as a result of a negligent act, is a substantive tort.” See also Page v Smith [1994] 4 All ER 522 at 546 per Farquharson LJ (“It is nowadays regarded as a separate tort”); Magnus v South Pacific Air Motive Pty Ltd (1998) 157 ALR 443 at 456 where Beaumont J refers in passing to “the tort of nervous shock”. In Radovskis v Tomm (1957) 9 DLR (2d) 751, Williams CJQB at 755 affirmed the proposition in T Ellis Lewis, Winfield on Tort (6th ed, Sweet & Maxwell, London, 1954), p 92 that “The better view today is that it is a separate tort relating to physical or bodily security.” This proposition does not appear in later editions. See also Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 149 per Haines J; Anderson v St Pierre (1987) 46 DLR (4th) 754 at 757–758 per Jewers J; Turton v Buttler (1987) 85 AR 193 at [6] per Master Funduk; Nouwens v Sociedade [1992] BCJ No 1938 per Master Bolton.

[1.30]

1 Introduction

5

body of authority affirming that psychiatric injury cases are a particular application of the tort of negligence.6 [1.30] Given that carelessly caused psychiatric injury is a special application of the tort of negligence, it may seem odd that psychiatric injury resulting from deliberate conduct falls under a separate tort of intentional infliction of mental harm7 originating from the case of Wilkinson v Downton.8 There is no discernible logic in the process by which particular forms of liability have become identified as “nominate torts”, or in the end-results of that process. So it is by virtue of accidents of history that there have developed various individual torts involving intentional harm to the person (such as assault, battery, false imprisonment and Wilkinson v Downton liability) and property (such as trespass to land and goods, and conversion) but one tort of negligence covering all forms of harm unintentionally but carelessly inflicted.9 Parts I to V of this book deal with liability for psychiatric injury caused negligently, Part VI with liability under Wilkinson v Downton.10 6

See eg Chester v Waverley Corporation (1939) 62 CLR 1 at 11 per Rich J (citing PH Winfield, A Textbook of the Law of Tort (1st ed, Sweet & Maxwell, London, 1937), p 85); King v Phillips [1953] 1 QB 429 at 440 per Denning LJ (“There are [not] two different torts — one tort when [one] can foresee physical injury, and another tort when [one] can foresee emotional injury. … There is one wrong only, the wrong of negligence”); Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 385 per Windeyer J (“[N]ervous shock cases are not a new tort: they turn simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort”); Attia v British Gas plc [1988] QB 304 at 311 per Dillon LJ (“[D]amage for ‘nervous shock’, ie for psychiatric illness occasioned by shock, is regarded as a separate head of damage, distinct, for example, from damage for personal injury”); Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400 per Lord Ackner (“Shock is no longer a variant of physical injury but a separate kind of damage”). For Canadian authority, see Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 149 per Haines J; Anderson v St Pierre (1987) 46 DLR (4th) 754 at 757–758 per Jewers J. 7 The name given to it by the doyen of Australian torts scholars, Professor John Fleming: see C Sappideen and P Vines (ed), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), p 41. Many texts refer to this tort as the action for intentional physical harm other than trespass to the person: see eg K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), pp 54-57. 8

Wilkinson v Downton [1897] 2 QB 57.

9

Fleming however said: “Despite widespread current usage, it is misleading to speak of a tort of negligence. Negligence is a basis of liability rather than a single nominate tort”: C Sappideen and P Vines (ed), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), p 121 (emphasis in original). SFC Milsom, Historical Foundations of the Common Law (2nd ed, Butterworths, London, 1981), pp 398–399 suggests that negligence, because of its more modern development, is a different kind of tort from the old traditional torts. 10

Outside these two areas, psychiatric injury does not appear to raise special problems in the law of torts. There have been very few judicial examinations of recovery for psychiatric damage under occupiers’ liability legislation such as the Occupiers’ Liability Act 1957 (UK): it would appear, however, that if premises are maintained in a defective condition such that the occupier should have foreseen the possibility of shock-related injury to visitors, then an action could lie under the statute, irrespective of any common law claim or common law restrictions on recovery: note Lawrence v CJ Evans (Properties) Ltd (1965) 196 EG 407. Likewise the issue of psychiatric damage arises only occasionally in the field of breach of statutory duty: for examples, see McFarlane v Wilkinson [1997] 2 Lloyd’s Rep 259; Young v Charles

6

Part I: Introduction

[1.40]

The search for limits [1.40] Ever since the initial recognition of liability for “nervous shock” in the last years of the 19th century, the law of psychiatric injury has been dominated by the perceived need to impose limits on the scope of that liability. Early cases required the shock to result from reasonable fear of physical injury — or, to use the terminology favoured in the United States, that the victim be in the “zone of danger”, but later cases found such limitations unworkable and had to concede the justice of recognising liability to at least some “secondary victims”, that is, persons who suffered some form of mental harm as a result of another person being killed, injured or put in peril. This led to a host of other suggested limitations, such as particular degrees of relationship, presence at the scene or the aftermath, personal perception, sudden shock and much else. In the words of Bingham LJ quoted at the beginning of this chapter, over and over again it became necessary to move the boundary stone to a new and more distant resting place.11 [1.50] The original edition of this book, published in 1993, presented a study of the law relating to liability in tort for psychiatric damage based on the common law as an organic whole — founded principally on the law in England, Australia and Canada, but referring also to major developments in other common law countries, such as Ireland and New Zealand, and countries influenced by the common law, such as Scotland and South Africa; and for comparative purposes, looking also to the main outlines of the separate but complementary development of the law in the United States. In the light of the evolution of the law up to that point, and particularly in the wake of the then-recent landmark decision of the House of Lords in Alcock v Chief Constable of South Yorkshire Police12 (the action brought by the relatives of those killed in the Hillsborough football disaster), the object of the book was to examine the issues raised in this area of liability and explore the appropriateness of the then-current boundary marks, suggesting a more liberal direction that the law should take in the future.13 Church (Southern) Ltd (1997) 39 BMLR 146 (in each case, there was also a negligence claim). The question of strict liability in relation to psychiatric injury has received almost no attention from the courts: for rare examples see Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 (shock consequent on injuries to wife from escaping elephant); Creydt-Ridgeway v Hoppent 1930 TPD 664 (shock consequent on dog bite). Psychiatric damage cases in the sphere of nuisance are equally scarce: see eg Pelmothe v Phillips (1899) 20 LR (NSW) 58; Evans v Finn (1904) 4 SR (NSW) 297. This work does not further discuss the issues raised in these contexts. 11

Lord Bingham wrote the Forewords to the previous editions of this book (for the first edition, as Sir Thomas Bingham, Master of the Rolls; for the second edition, as Lord Bingham of Cornhill KG, Senior Law Lord in the House of Lords).

12 13

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), p 7. This was the first treatise devoted to the law of psychiatric injury; it has been followed by a number of others, see eg M Napier and K Wheat, Recovering Damages for Psychiatric Injury (Blackstone Press, London, 1995); D Butler, Damages for Psychiatric Injuries

[1.70]

1 Introduction

7

[1.60] “At the first opportunity, the boundary stone must be moved again.” This, the concluding sentence of the book, a reference back to the quotation with which the first edition (like the present edition) began, summed up the authors’ conviction that the law relating to liability for psychiatric injury was not in a satisfactory state. The analysis undertaken illustrated the reluctance of the courts to recognise the individual’s interest in mental tranquillity, and the influence of underlying concerns that continued to cultivate undue judicial caution and foster the imposition of inappropriate doctrinal restrictions on recovery. Though considerable advances had been made in psychiatric damage law since such claims first emerged, they had been piecemeal and slow in coming. It was suggested that the relatively recent sophistication of this branch of medical science provided part of the explanation for the immaturity of the law, but the more telling reason was society’s failure to appreciate, or refusal to admit, that serious disruption to peace of mind is no less worthy of community and legal support than physical injury to the body, even given that priorities in accident compensation require careful thought in the face of limited resources. [1.70] A more desirable position, the authors suggested, would be for the law to treat psychiatric damage in the same way as cases of physical injury. The two kinds of personal harm should not be treated differently in terms of the rules governing responsibility at law.14 As Lord Oliver of Aylmerton said in Alcock v Chief Constable of South Yorkshire Police:15 There is … nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical contact with the body. This is no more than the natural and inevitable result of the growing appreciation by modern medical science of recognisable causal connections between shock to the nervous system and physical or psychiatric illness. Cases in which damages are claimed for directly inflicted injuries of this nature may present greater difficulties of proof but they are not, in their essential elements, any different from cases where the damages claimed arise from direct physical injury.

The same point was made by a distinguished comparative law scholar more than 30 years ago when, after a detailed comparative study of the contrasting approaches of civil and common law systems to liability for negligence, he reflected: One wonders … if the time has not come to say that if the plaintiff, as a result of the defendant’s conduct, has suffered some kind of serious and “recognisable psychiatric illness” he should be allowed to recover damages irrespective of his relationship with the victim, his physical position at the time of the accidents, (Federation Press, Annandale, New South Wales, 2004); H Teff, Causing Psychiatric and Emotional Harm (Hart Publishing, Oxford, 2009); G Kelly, Post Traumatic Stress Disorder, Mental Injury and the Law (2nd ed, Thomson Round Hall, Dublin, 2008); JR Abele, Emotional Distress: Proving Damages (Lawyers & Judges Publishing Co, Tucson, Arizona, 2003). 14

Compare eg McLoughlin v O’Brian [1983] 1 AC 410 at 421–422 per Lord Wilberforce.

15

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 406–407.

8

Part I: Introduction

[1.80]

or even his personal propensities towards such type of injury. Indeed, the law may be slowly moving in that direction.16

The authors endorsed this general approach. It was suggested that the constituent elements of the tort of negligence imposed sufficient limitations on recovery. The plaintiff should be required to prove the existence of psychiatric injury or illness, the reasonable foreseeability of harm of that kind (and it is here that factors such as the relationship between the parties, the claimant’s location at the time of the trauma, the means of knowledge of it and other issues become relevant) and the causative link between the tortfeasor’s conduct and the plaintiff’s mental condition.17 Though defendants are not liable for consequences of a kind that they cannot foresee, it does not follow that they are liable for every consequence that a reasonable person can foresee.18 Sound policy considerations would therefore, in certain circumstances, have a role to play,19 but these should not be permitted to operate covertly and their influence on decision-making should be expressly acknowledged by the courts. Differences in the strengths of various types of claims could be reflected in the quantum of damages awarded rather than leading to automatic exclusion.20 [1.80] The first edition thus suggested the abandonment of most of the control mechanisms that in the words of Lord Hoffmann “disfigure the law of liability for psychiatric injury”.21 These proposals received considerable attention in leading cases,22 as did a very different proposal 16

BS Markesinis, in FH Lawson and BS Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law (Cambridge University Press, Cambridge, 1982), Vol 1, p 47. 17 NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), pp 64, 84, 312. 18

McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 at 1623 per Lord Reid. 19

See eg Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351. The English Court of Appeal rejected a claim by a mother against a health authority for psychiatric injury caused by the abduction, rape and murder of her daughter on the ground that she was not present at the aftermath. It is suggested that the case should have been decided on the ground that although the harm was foreseeable, imposing a duty of care would place unacceptable burdens on health authorities in carrying out their responsibilities, by analogy with the position of the police in Hill v Chief Constable of West Yorkshire [1989] AC 53 and similar cases (see [7.190]). See also Homsi v Homsi [2016] VSC 354, setting out policy and other reasons why a driver who died in a road accident caused by his own negligence owed no duty to his mother who suffered psychiatric injury on learning of his death.

20

Note DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, p 542: “The reasons for caution about emotional distress claims are not reasons to ignore or reject all such claims. Indeed, they provide some guidance for allowing some claims. When common experience tells us that the injury is real and tortiously produced, the reasons for caution suggest that judges can focus on careful assessment of damages rather than on blanket exclusions of stand-alone emotional harm.”

21 22

Gregg v Scott [2005] 2 AC 176 at [87].

Eg Tame v New South Wales (2002) 211 CLR 317 at [49] per Gaudron J; R v Ireland [1998] AC 147 at 156 per Lord Steyn; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455

[1.90]

1 Introduction

9

that suggested that the only possible solution is to abolish recovery for psychiatric injury altogether.23 These widely differing proposals are now well documented.24 What they share is a conviction that the distinctions made by current doctrines are indefensible. Where they diverge is in what they propose should be done. [1.90] The two proposals were contrasted by Lord Steyn in White v Chief Constable of South Yorkshire Police25 (the second Hillsborough case, dealing with the claims of police officers), in an influential passage headed “Thus far and no further”. His Lordship said: My Lords, the law on recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify. There are two theoretical solutions. The first is to wipe out recovery in tort for pure psychiatric injury. The case for such a course has been argued by Professor Stapleton. But that would be contrary to precedent and, in any event, highly controversial. Only Parliament could take such a step. The second solution is to abolish all the special limiting rules applicable to psychiatric harm. That appears to be the course advocated by Mullany and Handford, Tort Liability for Psychiatric Damage. They would allow claims for pure psychiatric damage by mere bystanders: see (1997) 113 LQR 410, 415. Precedent rules out this course and, in any event, there are cogent policy considerations against such a bold innovation. In my view the only sensible general strategy for the courts is to say thus far and no further.26

With respect, it should be noted that the suggestion that the approach advocated in the first edition “would allow claims for pure psychiatric damage by mere bystanders” oversimplifies the position adopted.27 at 469 et seq per Lord Goff of Chieveley, at 500 per Lord Steyn, at 503 per Lord Hoffmann; Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 at [125] per Lord Hope of Craighead; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [58] per McEachern CJBC; Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748 at [62] per MacPherson JA; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [86] per Thomas J; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 209 per Van Heerden DCJ. 23

J Stapleton, “In Restraint of Tort” in P Birks (ed), The Frontiers of Liability (Oxford University Press, Oxford, 1994), Vol 2, p 83.

24 For judicial reference to these contrasting approaches, see eg White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 503 per Lord Hoffmann; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [79]–[86] per Thomas J. 25

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

26

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500. Recent judgments quoting this passage include Taylor v A Novo (UK) Ltd [2014] QB 150 at [8] per Lord Dyson MR; French v Sussex Police [2006] EWCA Civ 312 at [36] per Lord Phillips CJ; Young v MacVean [2014] CSOH 133 at [39] per Lady Rae; it was also quoted in abbreviated form when this case was appealed: Young v MacVean [2015] CSIH 70 at [10] per Lord Brodie. See also comments in Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [54] per Lord Hope of Craighead, at [95] per Lord Rodger of Earlsferry.

27

The source referred to by Lord Steyn, NJ Mullany and PR Handford, “Hillsborough Replayed” (1997) 113 LQR 410 at 415, a note on the English Court of Appeal’s decision in this case, makes it clear that the reference to recovery by bystanders is to the exceptional situations approved by Lord Ackner and others in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see [9.470].

10

Part I: Introduction

[1.100]

[1.100] By the time the second edition of this book appeared in 2006,28 there had been considerable progress towards the objective stated in the first edition in some jurisdictions, notably Australia, where the High Court in Tame v New South Wales29 in effect adopted the above position or something like it, repudiating the traditional limitations such as direct perception, sudden shock and normal fortitude, and resting liability primarily on traditional notions of reasonable foreseeability, in the context of the relationship between the parties.30 Something similar had earlier happened in South Africa in Barnard v Santam Bpk,31 when the Supreme Court of Appeal again overthrew the restrictions of the older law. An influential New Zealand judge espoused a similar position, though this was a minority view.32 In other jurisdictions, unfortunately, the response was much more cautious. In England, for example, the House of Lords, having adopted a rather narrow approach to many psychiatric injury issues in the first Hillsborough case, Alcock v Chief Constable of South Yorkshire Police,33 narrowed the law even further in the second Hillsborough case, White v Chief Constable of South Yorkshire Police,34 in rejecting the claims of the police officers as rescuers and employees. In between these two cases the House of Lords managed to further muddy the waters through the unfortunate decision in Page v Smith35 that created an unlooked-for distinction between the law applicable to primary and secondary victims. As a result of these cases it was recognised that the

28

PR Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006). For citations see eg New South Wales v Fahy (2007) 232 CLR 486 at [246] per Crennan J. 29

Tame v New South Wales (2002) 211 CLR 317. Note Gummow and Kirby JJ’s reference (at n 270) to P Handford, “When the Telephone Rings: Restating Negligence Liability for Psychiatric Injury” (2001) 23 Syd LR 597. Nicholas Mullany appeared in the High Court as one of the counsel representing Mrs Tame.

30

Note Gleeson CJ in Tame v New South Wales (2002) 211 CLR 317 at [13]: “The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.”

31

Barnard v Santam Bpk 1999 (1) SA 202 (SCA). Note Van Heerden DCJ’s reference at 209 to NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993).

32

See Thomas J (dissenting) in van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [86], referring to NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993). Thomas J would in fact go even further by recognising liability for mental suffering plainly outside the range of normal human experience which is not able to be identified as a recognisable psychiatric illness: van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [107].

33

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

34

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

35

Page v Smith [1996] AC 155.

[1.120]

1 Introduction

11

law in England was in an unsatisfactory state.36 The Law Commission of England and Wales reported on liability for psychiatric illness in 1998,37 making recommendations that would have brought about considerable improvement,38 but there has been no move to implement the report. [1.110] Ten years after the second edition, it is time to ask whether the law in Australia has maintained the expansive and much more rational approach adopted by the High Court in Tame v New South Wales.39 As far as the common law is concerned, the position remains substantially unaltered, though recent judgments emphasise the importance of the relationship between the parties operating as a limitation on reasonable foreseeability of psychiatric injury.40 This may suggest that liability for psychiatric injury is still subject to certain limitations not required in cases of negligently inflicted physical harm. However, the common law no longer provides the whole of the picture. Forces that have nothing directly to do with psychiatric injury have led to the enactment of the Civil Liability Acts, which in some States impose additional restrictions not found in the common law. This may have a dampening effect on the further development of what the legislation calls liability for mental harm.

Jurisdictional focus [1.120] The first two editions of this book attempted to survey the law on tort liability for psychiatric damage from a common-law-wide perspective, concentrating principally on England, Australia and Canada but including major developments in other jurisdictions. At the time of the first edition in 1993, major differences between the leading jurisdictions had not become apparent: Australia had not irrevocably deviated from the path taken by the leading English authorities, and the Canadian courts had not taken a distinctive position. By the time of the second edition much had changed, as different jurisdictions responded differently to the challenge presented: as narrated at [1.100], the High Court of Australia expanded and restated liability on a rational basis while in England the House of Lords in a series of important cases imposed new restrictions on the ambit of liability. Over the last 10 years, further jurisdictional differences have emerged, notably in Canada, where the 36

See eg Williams v Minister for Aboriginal Land Rights Act 1983 (2000) Aust Torts Rep 81-578 at [166] per Heydon JA; North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 at [21] per Ward LJ. Note also the earlier comment of Lord Bridge of Harwich in McLoughlin v O’Brian [1983] 1 AC 410 at 431 that “this whole area of English law stands in urgent need of review”. 37

See Law Commission, Liability for Psychiatric Illness (No 249, 1998).

38

See NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350.

39

Tame v New South Wales (2002) 211 CLR 317.

40

Eg King v Philcox (2015) 89 ALJR 582 at [79] per Nettle J: see [2.170]–[2.190].

12

Part I: Introduction

[1.130]

Supreme Court in Mustapha v Culligan of Canada Ltd41 has now restated the law of psychiatric injury in terms of remoteness of damage rather than duty of care. [1.130] Accordingly, the present edition has a changed emphasis. It attempts, first and foremost, to discuss the law in Australia, and thus gives full coverage not only to the common law but also to the effect of the Civil Liability Acts. In line with this new direction, the book has a new title, and major changes have been made to the order and arrangement of the chapters to reflect the provisions of the Civil Liability Acts.42 However, the comparative focus of the book has been retained, both because previous editions have been judicially noticed elsewhere, and because it is valuable to see how particular problems have been approached in other jurisdictions.43 Chapter 3 therefore summarises the law in the major overseas jurisdictions studied, and other chapters contain comparative material on particular topics.

TRADITIONAL ARGUMENTS AGAINST RECOVERY [1.140] As will be evident, the focus of this book is on the problem of setting limits to liability for psychiatric injury, and what limits, if any, are appropriate. Over and over again, as courts have considered where to set down the boundary stone, they have had to contend with arguments against allowing recovery for mental harm, or against allowing recovery for such harm on the same basis as for physical injury. [1.150] Thus in Victorian Railways Commissioners v Coultas,44 the first case in which an attempt was made to recover damages for “nervous shock” (suffered by Mary Coultas as a result of a near-collision between a train and the buggy driven by her husband, after they had negligently been allowed to cross at a level crossing), Sir Richard Couch, giving the judgment of the Privy Council, justified the rejection of such claims in the following terms: Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a mental or nervous shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in 41

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

42

For details of the changes made for this edition, and for material which has been omitted, see the Preface.

43

Note Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [96] per Kirby J, speaking of the practice of the High Court of Australia: “[T]here are sound reasons for paying attention to expressions of the common law in courts of high authority in countries such as England, New Zealand, Canada and Ireland. When the Judicial Committee of the Privy Council was part of the judicial hierarchy of Australia, it was usual for this Court (and other Australian courts) to follow in most matters the statements of common law principle made in the highest courts of England. That time has passed. But it has not been replaced by a parochial or chauvinistic satisfaction with purely Australian legal thinking. Instead, there has been a growing willingness to consider expositions of basic doctrine in other like common law countries.”

44

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 at 225–226.

[1.160]

1 Introduction

13

the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be. Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims. The learned counsel for the respondents was unable to produce any decision of the English courts in which, upon such facts as were proved in this case, damages were recovered.45

These traditional objections — remoteness of the damage, a flood of litigation, the danger of permitting false or imaginary claims, the lack of precedent — can be found in other early cases denying liability for shock damage, notably in the United States, where they were repeated over and over again.46 They were also resorted to in other contexts:47 they are simply the traditional reasons trotted out by 19th century judges unprepared to extend the law, even in circumstances where it might have been thought just to do so. [1.160] Modern judges take a much more enlightened approach. In Australia, Gummow and Kirby JJ, in the leading case of Tame v New South Wales,48 marshalled and dealt with the principal arguments said to support the imposition of greater controls on the scope of liability as follows: Before turning to consider each of the postulated control mechanisms, it is appropriate to identify the justification that is said to support them. At base, the justification lies in a perceived distinction between psychiatric and physical harm. Authorities have isolated four principal reasons said to warrant different treatment of the two categories of case. These are (i) that psychiatric harm is less objectively observable than physical injury and is therefore more likely to be trivial or fabricated and is more captive to shifting medical theories and 45

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 at 225–226.

46

See eg Mitchell v Rochester Railway Co 45 NE 354 (NY 1896); Ewing v Pittsburgh CC & St L Railway Co 23 A 340 (Pa 1892); Braun v Craven 51 NE 657 (Ill 1898); Ward v West Jersey & S Rail Co 47 A 561 (NJ 1900); Miller v Baltimore & OSW Rail Co 85 NE 499 (Ohio 1908). Note the language of Mitchell CJ in Huston v Borough of Freemansburg 61 A 1022 (Pa 1905) at 1023: “In the last half century, the ingenuity of counsel, stimulated by the cupidity of clients and encouraged by the prejudices of juries, has expanded the action for negligence until it oversteps all others in frequency and importance: but it is only in the very end of that period that it has been stretched to the effort to cover so intangible, so untrustworthy, so illusory, and so speculative a cause of action for mere mental distress.” 47

Eg Walker v Great Northern Railway Co of Ireland (1890) 28 LR Ir 69 (liability for injury to unborn children); Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 (social exclusion consequent on accusations of marital impropriety not special damage in slander). Note also Simpson & Co v Thomson (1877) 3 App Cas 279 at 289–290 per Lord Penzance (liability for economic loss).

48

Tame v New South Wales (2002) 211 CLR 317 at [192]–[196] (footnotes omitted). See also at [243]–[245] per Hayne J.

14

Part I: Introduction

[1.170]

conflicting expert evidence, (ii) that litigation in respect of purely psychiatric harm is likely to operate as an unconscious disincentive to rehabilitation, (iii) that permitting full recovery for purely psychiatric harm risks indeterminate liability and greatly increases the class of persons who may recover, and (iv) that liability for purely psychiatric harm may impose an unreasonable or disproportionate burden on defendants. … Several points may be made here. First, the concerns underlying propositions (i), (ii) and (iv) apply, to varying degrees, in cases of purely physical injury, yet it is not suggested that they justify denying a duty of care in that category of case. Secondly, many of these concerns recede if full force is given to the distinction between emotional distress and a recognisable psychiatric illness. … In Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and inevitable incidents of life”; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial. … Thirdly, the law of negligence already supplies its own limiting devices. … It has been observed earlier in these reasons under the heading “Control mechanisms” that, in requiring a plaintiff to establish fault, causation and a lack of remoteness of damage, the ordinary principles of negligence circumscribe recovery. Further, the tort of negligence requires no more than reasonable care to avert reasonably foreseeable risks. Breach will not be established if a reasonable person in the defendant’s position would not have acted differently. The touchstone of liability remains reasonableness of conduct. The asserted grounds for treating psychiatric harm as distinctly different from physical injury do not provide a cogent basis for the erection of exclusionary rules that operate in respect of the former but not the latter. To the extent that any of these concerns are not adequately met in particular categories of case by the operation of the ordinary principles of negligence, they may be accommodated, in the manner explained later in these reasons, by defining the scope of the duty of care with reference to values which the law protects.

[1.170] As noted earlier, the majority judges in the House of Lords in White v Chief Constable of South Yorkshire Police49 took a much more cautious view about the direction of the law, Lord Steyn in particular suggesting that the only sensible general strategy was to say “Thus far and no further”.50 His Lordship accepted that policy considerations had played a part in shaping the law on liability for psychiatric injury and justified different and more limited rules of recovery for psychiatric harm as compared with physical damage. My impression is that there are at least four distinctive features of claims for psychiatric harm which in combination may account for the differential treatment. Firstly, there is the complexity of drawing the line between acute grief and psychiatric harm …. The symptoms may be the same. But there is greater diagnostic uncertainty in psychiatric injury cases than in physical injury cases. The classification of emotional injury is often controversial. In 49

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

50

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500.

[1.180]

1 Introduction

15

order to establish psychiatric harm expert evidence is required. That involves the calling of consultant psychiatrists on both sides. It is a costly and time consuming exercise. If claims for psychiatric harm were to be treated as generally on a par with physical injury it would have implications for the administration of justice. On its own this factor may not be entitled to great weight and may not outweigh the considerations of justice supporting genuine claims in respect of pure psychiatric injury. Secondly, there is the effect of the expansion of the availability of compensation on potential claimants who have witnessed gruesome events. I do not have in mind fraudulent or bogus claims. In general it ought to be possible for the administration of justice to expose such claims. But I do have in mind the unconscious effect of the prospect of compensation on potential claimants. Where there is generally no prospect of recovery, such as in the case of injuries sustained in sport, psychiatric harm appears not to obtrude often. On the other hand, in the case of industrial accidents, where there is often a prospect of recovery of compensation, psychiatric harm is repeatedly encountered and often endures until the process of claiming compensation comes to an end …. The litigation is sometimes an unconscious disincentive to rehabilitation. It is true that this factor is already present in cases of physical injuries with concomitant mental suffering. But it may play a larger role in cases of pure psychiatric harm, particularly if the categories of potential recovery are enlarged. For my part this factor cannot be dismissed. The third factor is important. The abolition or a relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of persons who can recover damages in tort. It is true that compensation is routinely awarded for psychiatric harm where the plaintiff has suffered some physical harm. It is also well established that psychiatric harm resulting from the apprehension of physical harm is enough: Page v Smith [1996] AC 155. These two principles are not surprising. In built in such situations are restrictions on the classes of plaintiff who can sue: the requirement of the infliction of some physical injury or apprehension of it introduces an element of immediacy which restricts the category of potential plaintiffs. But in cases of pure psychiatric harm there is potentially a wide class of plaintiffs involved. Fourthly, the imposition of liability for pure psychiatric harm in a wide range of situations may result in a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, eg in a motor car accident.51

[1.180] All the considerations identified by Lord Steyn were answered by Gummow and Kirby JJ in Tame v New South Wales.52 Their Honours 51

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 493–494. Similar arguments continue to be met with: see eg Wodrow v Commonwealth (1993) 45 FCR 52 at 77 per Gallop and Ryan JJ; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [47] per McEachern CJBC; Brooks v Canadian Pacific Railway Ltd (2007) 283 DLR (4th) 540 at [58] per Dawson J. Note also the comments of the Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.4.

52

Tame v New South Wales (2002) 211 CLR 317. It should be noted that Lord Steyn thought that fraudulent or bogus claims were not a particular concern. In the light of current psychological and psychiatric investigative techniques, the risk of fraud is remote. One suspects it is easier to fake or magnify a bad back than a psychiatrically imbalanced mind. Vernon v Bosley (No 1) [1997] 1 All ER 577 is a rare example of a false claim: the trial judge and the English Court of Appeal were convinced by the evidence of the plaintiff’s suffering

16

Part I: Introduction

[1.190]

were not discouraged by the suggested complexity of drawing the line between acute grief and psychiatric harm, suggesting rather that giving full force to this distinction was one of the chief strategies in allaying concerns about keeping liability within bounds. The effect on potential plaintiffs, the imposition of inappropriate burdens on defendants, and floodgates concerns were all met with cogent arguments rejecting these suggested reasons for retention of limitations on liability found in earlier authorities.53 Interestingly, a quarter of a century earlier, another Law Lord in another leading judgment had taken a much more positive attitude than Lord Steyn: in McLoughlin v O’Brian,54 Lord Wilberforce had dealt with and discounted all the traditional arguments against moving the boundary a stage further.55 Moreover, none of this was new. More than three centuries ago in Ashby v White,56 Holt CJ famously dismissed fears of a flood of actions: [I]t is no objection to say, that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompense.

[1.190] Damage to the psyche has throughout history provoked apprehension, induced a sense of uncertainty and been shrouded in ignorance. People have always feared what they do not understand and and awarded damages, before different evidence given in unconnected family law proceedings came to light: see Vernon v Bosley (No 2) [1999] QB 18; JL Dwyer, “The Vernon Saga” (1998) 6 Tort L Rev 91. The judges in the Court of Appeal in Vernon v Bosley (No 1) referred to the prolonged hearing (eg at 581 per Stuart-Smith LJ) and the fact that “the trial was hijacked by the expert witnesses” (at 603 per Evans LJ). For other comments on the problems of expert evidence, see Williams v Minister for Aboriginal Land Rights Act 1983 (2000) Aust Torts Rep 81-578 at [163] per Heydon JA; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [47] per McEachern CJBC. These comments are not typical of the prevailing judicial attitude, and what happened in Vernon, and the nature of the claim in Williams (as to which see [21.340]), were both wholly exceptional. 53

For other leading rejections of the floodgates argument, see eg Morgan v Tame (2000) 49 NSWLR 21 at 48 per Mason P; Hancock v Nominal Defendant [2002] 1 Qd R 578 at [85] per Davies JA, [101] per Byrne JA; Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 280 per Henry LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 464 per Lord Griffiths; Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 at [181] per Lord Hobhouse of Woodborough; Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 353 per Judge McMahon; Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 482–486 per Keane CJ; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [87]–[96] per Thomas J; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 215–216 per Van Heerden DCJ (“vloedgolf van litigasie”).

54

McLoughlin v O’Brian [1983] 1 AC 410 at 421. See also Lord Bridge of Harwich at 441–442.

55

In addition to arguments dealt with by Gummow and Kirby JJ, Lord Wilberforce rejected arguments based on evidentiary difficulties and lengthened litigation, and that reform should be left to the legislature.

56

Ashby v White (1703) 2 Ld Raym 938; 92 ER 126 at 137. Note also a more recent but equally well-known rebuttal: the leading American torts scholar William Lloyd Prosser, dealing specifically with mental injury said: “It is the business of the law to remedy wrongs that deserve it, even at the expense of a ‘flood of litigation,’ and it is a pitiful confession of incompetence on the part of any court of justice to deny relief on such grounds”: WL Prosser, Law of Torts (4th ed, West Publishing Co, St Paul, Minnesota, 1971), p 51.

[1.200]

1 Introduction

17

been sceptical of that which they cannot “verify” by sight.57 Such attitudes are by no means extinct today. However, the fact that an injury cannot always be seen by the naked eye does not mean that it is any less of a “real” injury than those that involve the breaking of bones, the spilling of blood, the scarring of tissue or physical pain. Indeed, it can be argued that the mental repercussions of trauma are more serious, more deserving of the law’s attention than those of a physical nature. Mental conditions frequently persist long after organic injuries have disappeared. Broken bones knit, wounds heal often without scarring or permanent disability and those that do scar, although unsightly, leave less of a mark than scars on the mind. Physical pain usually subsides, often long before the psychological impact of distressing events disappears. The aftereffects of trauma may never fully dissipate.58 Certainly, not every form of psychiatric abnormality will be permanent or even long-lasting, and tragically there are physical conditions such as paraplegia and quadriplegia that remain with victims until death. But as a general observation, an injured mind is far more difficult to nurse back to health than an injured body and is arguably more debilitating and disruptive of a greater number of aspects of human existence. [1.200] Verifying the presence of mental harm is no mere formality — proof of the existence of a recognisable psychiatric illness is a considerable hurdle to surmount in itself.59 The medical literature makes it clear that the mental equilibrium of most “normal” members of society will not be upset by traumatic stimuli, even those that are quite severe in nature.60 The mind is a remarkably resilient piece of machinery and it is only in the minority of individuals that actual psychiatric damage going beyond the typical emotional reactions experienced when confronted with stressors will be sustained. Such responses are in truth relatively rare phenomena.61 Even in the United States, where the law has evolved further in this area 57 See eg Griffiths v R & H Green & Silley Weir Ltd (1948) 81 LLLR 378 at 380 per Birkett J: “[W]hen people speak of anxiety neurosis when a man is not suffering organically but has hysteria, the ordinary, sound, healthy man is apt to look upon that with a little disdain or a little suspicion and to treat it sometimes rather lightly and to say: ‘Well, if you have a little courage or determination you can overcome it. If you have a little will-power to go back to work and confront the difficulty, that would overcome it.’” 58

For example, some of the sailors who suffered post-traumatic stress disorder as a result of their involvement in the Voyager disaster, a collision between two warships during a training exercise, were still being treated 20 years after the disaster: see eg Clark v Commonwealth (1992) Aust Torts Rep 81-171.

59

See McLoughlin v O’Brian [1983] 1 AC 410 at 431 per Lord Bridge of Harwich. Note also the advice of Brooke LJ in AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 at 99 that legal advisers and legal aid authorities should identify evidence of psychiatric injury before allowing or encouraging potential plaintiffs to embark on litigation.

60 61

See [5.100]–[5.160], [12.260].

For example, one study examining the prevalence of post-traumatic stress disorder in the general United States population established a rate of 1 per cent for this condition J Helzer, “Post-Traumatic Stress Disorder in the General Population” (1987) 317 N Eng J Med 1630. This relatively low figure will have included a vast number of non-tortiously inflicted patients, making the proportion of cases relevant for present purposes even lower. There is

18

Part I: Introduction

[1.210]

and where recovery is permitted for mental disturbances falling well short of psychiatric illness, according to one estimate only approximately 2 to 3 per cent of all torts are associated with psychiatric disability.62 Even if this figure has increased slightly in the last 25 years we are still talking of a proportionally limited number of cases, certainly not an amount that would warrant the imposition of the severe limiting devices operative in some jurisdictions. [1.210] Moreover, pragmatic and personal considerations will convince a number of those who do manage to prove that they have suffered a compensable loss that it is better to refrain from instituting proceedings. Apart from considerations such as financial constraints, few persons relish the thought of a court appearance and in the context of psychiatric illness the prospect of reliving in minute detail the trauma of their loss in hostile surroundings will be particularly unnerving, dissuading many sufferers from pursuing matters any further. Indeed, the stress and strain of such a “re-run” may well be medically inadvisable. Years pass before civil proceedings run their course and psychiatric sufferers may not wish to risk retarding the recovery process in courtroom battle. Also, in contrast to physical injury victims, it is questionable whether those who suffer mental harm are really all that concerned with legal redress. This is not to say that such victims will seldom consider suing for the damage done to them, just that this is probably not priority number one in their broken lives. Further, there may be some truth in the speculation that where the primary and secondary victims are closely bonded, some would consider litigation on their own behalf as particularly inappropriate and distasteful, or perhaps even a kind of betrayal of or disrespect for the dead or injured loved one.63 [1.220] Liberalisation will not see a deluge of psychiatric damage claims because most claimants will be unable to clear the still significant hurdles to relief. To date litigation in this area has been relatively limited,64 no reason to suspect that the rate would be any higher in the other countries considered in this work. Note also evidence given by Professor AC McFarlane of the University of Adelaide, a leader in the field of traumatic stress, in a trial before Abadee J in Howell v State Rail Authority of New South Wales (unreported, NSWSC, No 400071 of 1993, 7 June 1996) where he cited a study which recruited 280 Harvard sophomores who had no physical or psychological disorder and followed their lives until age 75: 120 were recruited into the American armed services, and 70 of these had a high combat exposure, but only five developed post-traumatic stress disorder: referred to by Newman J in the retrial, Howell v State Rail Authority of New South Wales (unreported, NSWSC, No 400071 of 1993, 7 May 1998). 62

LF Sparr and JK Boehnlein, “Posttraumatic Stress Disorder in Tort Actions: Forensic Minefield” (1990) 18 Bull Am Acad Psy Law 283 at 286.

63

See H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 112; note Greatorex v Greatorex [2000] 1 WLR 1970, discussed at [15.160]–[15.170].

64

One informal survey of the major insurance companies in England suggested that the number of psychiatric damage claims did not rise significantly in the years immediately following McLoughlin v O’Brian [1983] 1 AC 410: see DS Greer, “A Statutory Remedy for

[1.230]

1 Introduction

19

especially outside the United States,65 and even in jurisdictions where the law has developed along the lines advocated in the first edition of this work the increase in claims has not been major. The difference is that the claims of those who do sue will be adjudicated according to more sensible doctrine and bearing the relevant medical literature and observations in mind. Denial will be based on sound legal and scientific reasoning rather than the perceived need to prevent trespass beyond artificially constructed boundaries. [1.230] The leading Australian High Court case of Tame v New South Wales66 reached a sensible result after a thorough airing and full explanation of all the relevant issues, though it is a pity that in some States additional limitations have been reintroduced by the Civil Liability Acts. Outside Australia, the law in most jurisdictions has been restrained within narrower limits: to cite just one unfortunate example, it appears that recent House of Lords decisions67 may stifle further development in the United Kingdom, probably for many years to come. In 1991, Williams J in Spence v Percy said: Undoubtedly the last word has not yet been written on the scope of liability with respect to [psychiatric] injury and new factual situations coupled with new technology will cause appellate judges to review the limits of liability for such injury from time to time.68

This is no less true today than when it was first written. The law in some jurisdictions is still far from satisfactory. It is very much to be hoped that in those jurisdictions the boundary stone has not found its final resting place.

Nervous Shock” (1986) 21 Ir Jur (ns) 57 at 77. Significantly, those Australian jurisdictions where statutory remedies were introduced for certain plaintiffs who did not witness an accident or physical injuries were not swamped by litigants: see [13.30]–[13.180]. 65

Even in the United States Dillon v Legg 441 P 2d 912 (Cal 1968) is said to have had a negligible impact on the insurance rates in California: see PA Bell, “The Bell Tolls: Toward Full Tort Recovery for Psychic Injury” (1984) 36 U Fla L Rev 333 at 366.

66

Tame v New South Wales (2002) 211 CLR 317.

67

See [1.100].

68

Spence v Percy (1991) Aust Torts Rep 81-116 at 69,081.

Chapter 2

The Australian Law [2.10] THE COMMON HERITAGE .............................................................................................. 21 [2.10] Origins .................................................................................................................................... 21 [2.30] Moving the boundaries ........................................................................................................ 23 [2.100] The parting of the ways .................................................................................................... 29 [2.120] THE AUSTRALIAN COMMON LAW ........................................................................... 29 [2.120] Developments foreshadowing the High Court decisions ........................................... 29 [2.150] The High Court decisions: Tame and Gifford ............................................................... 32 [2.220] THE CIVIL LIABILITY ACTS ........................................................................................... 37 [2.260] Mental harm — pure and consequential ........................................................................ 40 [2.270] The major provisions ......................................................................................................... 40 [2.380] Interpretation ....................................................................................................................... 47 [2.400] Application ........................................................................................................................... 48 [2.450] Relationship with the common law ................................................................................ 52

THE COMMON HERITAGE Origins [2.10] The law of psychiatric injury has come a long way since that fateful evening in May 1886 when James and Mary Coultas set out from Melbourne in their horse-drawn buggy to return home to Hawthorn. Through the negligence of a level crossing gatekeeper, they were allowed to proceed across a railway line when a train was approaching. James Coultas got the buggy across the line just in time to avoid a collision, but the near miss caused his wife to suffer fright and, as a consequence, a “severe nervous shock”, that brought on a miscarriage. When the case of Victorian Railways Commissioners v Coultas came before the Supreme Court of Victoria, the jury awarded damages for the shock, an award upheld on appeal to the Full Court.1 However, on further appeal the Privy Council2 held that the damage was too remote: Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such 1 2

Coultas v Victorian Railways Commissioners (1886) 12 VLR 895.

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222. No mention is made of the miscarriage in the Privy Council judgment.

22

Part I: Introduction

[2.20]

circumstances … be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gatekeeper.3

The defendant contended that there had to be “impact”, in the shape of some contemporaneous physical injury, as a guarantee of the genuineness of the claim. The Privy Council refrained from saying that impact was necessary,4 but subsequent authorities, both in Australia5 and elsewhere,6 adopted the “impact rule” as a reason for denying recovery.7 [2.20] As noted in the previous chapter,8 the reasoning in this case reflects the scepticism with which mental damage claims were initially greeted by the judiciary. Ignorance of the medical subtleties of the subject, concerns of “opening the floodgates” to limitless liability, the scope for feigned claims,9 inherent problems of establishing a causative link, and perceived administrative and practical difficulties of assessing damages combined to produce a long-entrenched reluctance to protect mental 3

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 at 225 per Sir Richard Couch.

4

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 at 226 per Sir Richard Couch.

5

Lack of impact was adopted as the reason for denying recovery in Rea v Balmain New Ferry Co (1896) 17 LR (NSW) 92 at 98 per Darley CJ. In other cases, Coultas was distinguished on the ground that there was a minor impact, eg Daly v Commissioner of Railways (1906) 8 WALR 125 at 129 per McMillan J (train derailed and passenger thrown off seat); Sealy v Commissioner for Railways [1915] QWN 1 (passenger sustained superficial cut from broken glass after open carriage door struck by another train). Note also Brown v Mount Barker Soldiers’ Hospital [1934] SASR 128, where Coultas was distinguished by Piper J, who said at 131: “even the production of tears is a physical consequence and discomfort”. In Daly v Commissioner of Railways and Brown v Mount Barker Soldiers’ Hospital the court also distinguished Coultas on the ground that there was a pre-existing relationship between the parties: see [22.150]. 6

Coultas was held binding on Canadian courts: see Henderson v Canada Atlantic Railway Co (1898) 25 OAR 437, affirmed Canada Atlantic Railway Co v Henderson (1899) 29 SCR 632; Geiger v Grand Trunk Railway Co (1905) 10 OLR 511 (there was impact, but the decision is not based on this ground); Miner v Canadian Pacific Railway (1911) 3 Alta LR 408; Lapointe v Champagne (1921) 64 DLR 520; Penman v Winnipeg Electric Railway Co [1925] 1 DLR 497 (where the court also observed that there was no impact). Compare Montreal Street Railway Co v Walker (1903) 13 BR 324, where the Cour du Banc du Roi du Québec refused to follow Coultas. In other cases, a slight impact was seized on as a means of distinguishing the case: see Kirkpatrick v Canadian Pacific Railway (1902) 35 NBR 598 (passenger suffered cut to head and bruising in train accident); Toronto Railway Co v Toms (1911) 44 SCR 268 (passenger thrown against seat in streetcar); Taylor v British Columbia Electric Railway (1911) 16 BCR 109 (tram on which plaintiff was travelling involved in collision); Negro v Pietro’s Bread Co Ltd [1933] 1 DLR 490 (plaintiff’s throat scratched by broken glass found in bread). 7

The impact rule assumed particular importance in the United States: see [3.760].

8

See [1.150].

9

P Karsten, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora – The United States, Canada, Australia and New Zealand, 1600-1900 (Cambridge University Press, Cambridge, 2002), refers to an unreported Queensland case of 1908 where the plaintiff had filed a claim for “traumatic neurasthema” (ie neurasthenia) against a railway. The railway’s medical expert warned his employers against the dubious nature of such claims, and of the known influence on juries of the “witness box” testimony of claimants, which he described as “hysterical claptrap” (p 456). In a New Zealand case, a

[2.30]

2 The Australian Law

23

tranquillity. This stance was in marked contrast to the early preparedness to compensate for actual physical harm, something viewed as far more important than the perceived trivialities of nervous stress.

Moving the boundaries [2.30] It was not long before Victorian Railways Commissioners v Coultas10 was challenged by courts, initially in Ireland,11 and then in England,12 Scotland,13 South Africa,14 New Zealand,15 Canada16 and elsewhere.17 In Australia, by the 1930s, the High Court was able to resolve “nervous shock” claims without reference to Coultas.18 Ever since, in the light of railway inspector reported on the condition of another woman injured in a railway accident: “Personally, I do not believe anything is wrong with Mrs Brown except excessive stoutness and a strong power to imagine herself ailing and aching, and an itching to handle some Railway cash” (p 459). 10

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

11

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428, following Byrne v Great Southern & Western Railway Co (unreported, Irish CA, February 1884). 12

Dulieu v White & Sons [1901] 2 KB 669. Coultas had been questioned by Lord Esher MR in Pugh v London, Brighton & South Coast Railway Co [1896] 2 QB 248 at 250. Note also, in the context of workers’ compensation, Yates v South Kirkby Collieries Ltd [1910] 2 KB 538, where Farwell LJ said at 542: “In my opinion, nervous shock due to accident which causes personal incapacity to work is as much ‘personal injury by accident’ as a broken leg.”

13

Wallace v Kennedy (1908) 16 SLT 485; Campbell v James Henderson Ltd 1915 1 SLT 419; Brown v John Watson Ltd [1915] AC 1 at 12–14 per Lord Shaw of Dunfermline, at 16–17 per Lord Parmoor. Other cases such as Cooper v Caledonian Railway Co (1902) 4 F 880, Gilligan v Robb 1910 SC 856 and Fowler v North British Railway Co 1914 SC 866 have also been cited for this point, but it is not absolutely clear from the reports that such a step was taken: the courts involved decided that there was a relevant case for inquiry without investigating the points of law in any detail.

14

Hauman v Malmesbury District Council 1916 CPD 216.

15

Stevenson v Basham [1922] NZLR 225.

16

Negro v Pietro’s Bread Co Ltd [1933] 1 DLR 490; Purdy v Woznesensky [1937] 2 WWR 116; Austin v Mascarin [1942] OR 165; Horne v New Glasgow [1954] 1 DLR 832; Pozniakow v Farrell [1954] OJ No 228. The courts in Toronto Railway Co v Toms (1911) 44 SCR 268 and McNally v City of Regina [1924] 2 DLR 1211 expressed the view that Coultas was confined to situations where there was evidence of pure mental injury unaccompanied by physical damage. 17

In Halligua v Mohanasundaram AIR 1951 Mad 1056, the defendant argued that there was no decision in Indian law in which damages had been awarded for mental shock, and Coultas was discussed. Mack J had no hesitation in following Atkin LJ in Hambrook v Stokes Bros [1925] 1 KB 141, discussed at [2.50]. Zainab bte Ismail v Marimuthu [1955] MLJ 22 is the first case in which liability for “nervous shock” was recognised in Malaya (now Malaysia).

18

In Chester v Waverley Corporation (1939) 62 CLR 1 (see [2.50]), the majority judges (Latham CJ, Rich and Starke JJ) based their decision that no duty was owed on other grounds, and made no mention of Coultas. Evatt J (dissenting) at 46–47 explained that Coultas turned only on questions of remoteness and was no bar to recovery. Burbury CJ in Storm v Geeves [1965] Tas SR 252 at 255 had no doubt that Coultas “has not been good law in Australia for many years”, and Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 remarked at 395 that Coultas “in recent times has been regularly by-passed by courts”; however McPherson JA in Carrier v Bonham [2002] 1 Qd R 474 at 483 suggested that “from that particular species of intellectual bondage [Coultas], courts in Australia were perhaps not completely free until the decision in Jaensch v Coffey (1984) 155 CLR 489”. In an earlier

24

Part I: Introduction

[2.40]

steadily increasing knowledge of the effect on the human psyche of strong emotions such as fright, the courts have gradually widened the ambit of recovery — the law, in the words of Windeyer J, “marching with medicine but in the rear and limping a little”.19 At each stage they have overcome the traditional objections listed at [2.20]. As described by Bingham LJ, in a case in which it was recognised for the first time that liability might exist for nervous shock caused by damage to property, rather than injury to the person,20 on a number of occasions the boundary stone has been taken up and set down in a different place, only to be moved on once more. Bingham LJ’s judgment in this case played a major part in persuading courts to abandon the out of date and medically inexact term “nervous shock”.21 Instead, starting with an important judgment by Lord Denning MR in 1970,22 courts began to refer instead to the need to show that the defendant’s negligence had caused the plaintiff to suffer a “recognisable psychiatric illness”. [2.40] In order to appreciate the inter-jurisdictional debate about what restrictions should be placed on liability for psychiatric damage, it is necessary to look at the successive extensions of the law in a little more detail.23 In the earlier cases repudiating Victorian Railways Commissioners v Coultas24 and the impact rule and granting recovery, liability was based on the principle that “the shock, in order to give a cause of action, must be one which arises from a fear of immediate personal injury to oneself” decision Dixon J had suggested that “a neurasthenic breakdown amounting to an illness” without more would be a sufficient form of damage, supposing the other ingredients of a cause of action to be present: Bunyan v Jordan (1937) 57 CLR 1 at 16. 19

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395. Note also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 503 per Lord Hoffmann: “In order to give due weight to the earlier decisions, particularly at first instance, it is necessary to have regard to their historical context. They cannot simply be laid out flat and pieced together to form a timeless mosaic of legal rules. Some contained the embryonic forms of later developments; others are based on theories of liability which had respectable support at the time but have since been left stranded by the shifting tides.” 20

Attia v British Gas plc [1988] QB 304 at 320, quoted at the beginning of Chapter 1.

21

In his Foreword to the first edition of this book, Lord Bingham commented: “Incidentally, it is to be hoped that the book will hasten the interment of the label ‘nervous shock’, which is not only misleading and inaccurate but, with its echoes of frail Victorian heroines, tends to disguise the very serious damage which is, in many cases, under discussion”: NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (Law Book Co, Sydney, 1993), p vii. 22

Hinz v Berry [1970] 2 QB 40 at 42–43. On terminology, see [4.20], [5.20]–[5.30].

23

For recent general surveys, see D Butler, “An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury resulting from Negligence” (2002) 10 TLJ 13; C Witting, “A Primer on the Modern Law of “Nervous Shock”” (1998) 22 MULR 62. For particular perspectives, see KA Warner, “Judicial Reasoning and Precedent: Negligently Inflicted Psychological Injuries” (1990) 10 LS 63; BA Hocking and A Smith, “From Coultas to Alcock and Beyond: Will Tort Law Fail Women?” (1995) 11 QUTLJ 120; Y Muthu, “Psychiatric Illness and the Law of Negligence: A Historical Review” (2000) 4 Mac LR 1; P Vines, M San Roque and E Rumble, “Is “Nervous Shock” still a Feminist Issue?: The Duty of Care and Psychiatric Injury in Australia” (2010) 18 Tort L Rev 9.

24

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

[2.50]

2 The Australian Law

25

— to quote Kennedy J in the leading case of Dulieu v White & Sons.25 The plaintiff recovered for nervous shock brought on by fear for her own safety when a horse-drawn van was negligently driven into a public house where she was standing behind the bar. She prematurely gave birth to a mentally impaired child. To adopt a term commonly found in the American cases,26 the plaintiff had to be within the “zone of danger”, likely to suffer harm through physical impact. But it was not long before the courts were persuaded to overthrow this restriction. [2.50] It is generally recognised that Hambrook v Stokes Bros27 was the first of a new wave of cases allowing recovery in a situation that has dominated the law of nervous shock ever since — the plaintiff who is safely outside the area of possible impact but suffers psychiatric damage through fear that another has been or may be killed, injured or put in peril.28 Kennedy J’s limitation was criticised by the two majority judges in the English Court of Appeal.29 From this case onwards, the key factors delineating the limits of liability were that the plaintiff should be present at the scene of the accident (or near-accident), and should suffer psychiatric injury as a result of experiencing the calamity through his or her own senses. Shock through being told of the accident by others was regarded as not giving rise to liability. In virtually all the cases, the plaintiff was a close relative — usually a parent or spouse — of the person injured or endangered by the defendant’s negligence, and such a relationship was obviously an important factor in the finding that the psychiatric damage suffered was foreseeable, but some courts appear to have contemplated that even a mere bystander might have a cause of action. Hambrook v Stokes Bros is an important illustration of all these points. The English Court of Appeal granted recovery in a claim under 25

Dulieu v White & Sons [1901] 2 KB 669 at 675.

26

See [3.770].

27

Hambrook v Stokes Bros [1925] 1 KB 141, noted (1925) 41 LQR 132; DB Ross (1928) 2 ALJ 117. For analyses of the law dating from this period, see DH Parry, “Nervous Shock as a Cause of Action in Tort” (1925) 41 LQR 297 and A Stirling, “Liability for Nervous Shock” (1928) 2 ALJ 46. A factually similar American case is Bowman v Williams 165 A 182 (Md 1933).

28

Note, however, the earlier case of Rickard v Plymouth Co-operative Society (The Times, 4 February 1903), where Bigham J awarded damages to a plaintiff who feared for the safety of her children who were (as she thought) in her house when it fell down due to the defendant’s excavation on adjoining land. They had in fact been moved to safety.

29

Hambrook v Stokes Bros [1925] 1 KB 141 at 151 per Bankes LJ, at 157–158 per Atkin LJ (but note the comments of the dissenting judge, Sargant LJ, at 162). Such criticisms have been repeated in subsequent cases: see Owens v Liverpool Corporation [1939] 1 KB 394 at 399–400 per MacKinnon LJ; Bourhill v Young [1943] AC 92 at 110–112 per Lord Wright, at 117, 120 per Lord Porter (but note Lord Russell of Killowen’s comments at 103); Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 at 276–277 per Donovan J; Storm v Geeves [1965] Tas SR 252 at 265 per Burbury CJ; Chadwick v British Railways Board [1967] 1 WLR 912 at 919–920 per Waller J; McLoughlin v O’Brian [1983] 1 AC 410 at 418 per Lord Wilberforce, at 435, 439 per Lord Bridge of Harwich. Note, however, the view of J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478 at 488 that “it should have been unnecessary to have overruled Kennedy J’s limitation as it could have been foreseen that Mrs Hambrook would be placed in immediate fear for her own personal safety”.

26

Part I: Introduction

[2.50]

the Fatal Accidents Act 1846 (UK) made on behalf of a mother who suffered psychiatric injury through seeing a driverless truck coming down a hill out of control, and the fear (well-founded, as it turned out) that it might have injured her children who were further up the road out of sight. The majority said that the duty to avoid such injury was owed to persons such as the plaintiff who were not in personal danger30 (indeed, Atkin LJ went so far as to include all bystanders, even those not related in any way to the accident victim31), provided that the shock was caused by the plaintiff’s own unaided realisation of what had happened.32 The same limitation was imposed by Evatt J in his important dissenting judgment in Chester v Waverley Corporation,33 in which the majority of the Australian High Court refused recovery where a mother suffered psychiatric damage when the body of her missing son was recovered from a water-filled trench. The decision in this case, together with lingering fears about the possible effect of the Privy Council decision in Victorian Railways Commissioners v Coultas,34 caused legislatures in five Australian jurisdictions to confirm that plaintiffs in a personal injury action were not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock,35 and New South Wales, followed by the two Territories, went on to extend the range of recovery to particular groups of relatives, in some cases even where they were not present at the scene of the accident36 — the common law did not reach this point until 2002.37 30

The defendant admitted that its servant had been negligent, and it is sometimes suggested that it is only on this basis that a duty of care was owed to the plaintiff. However, Atkin LJ said that apart from the admission the cause of action was complete: Hambrook v Stokes Bros [1925] 1 KB 141 at 156. For discussion of this point see King v Phillips [1953] 1 QB 429 at 436–437 per Singleton LJ, at 443–444 per Hodson LJ.

31

Hambrook v Stokes Bros [1925] 1 KB 141 at 156–159. Sargant LJ dissented, seeing the wide ambit of possible plaintiffs — relatives and others — as a reason against extending the law. Compare King v Phillips [1953] 1 QB 429 at 441 per Denning LJ and Hinz v Berry [1970] 2 QB 40 at 42 per Lord Denning MR, making a distinction between relatives and others. This issue is discussed in greater detail at [9.440]–[9.510].

32

Hambrook v Stokes Bros [1925] 1 KB 141 at 159, and see also at 152 per Bankes LJ. For further discussion of this issue see [10.30]–[10.50], [11.30].

33

Chester v Waverley Corporation (1939) 62 CLR 1. Note N Landau, “The Duty in Cases of Nervous Shock” (1940) 2 Res Judicata 129. Evatt J’s judgment has earnt high praise in more recent decisions of high authority: eg Lord Bridge of Harwich in McLoughlin v O’Brian [1983] 1 AC 410 at 439 found his Honour’s reasoning “wholly convincing”, and Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 590–591 said that it was “plainly to be preferred to that of the majority”.

34

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

35

Wrongs Act 1958 (Vic), s 23 (originally enacted 1932); Wrongs Act 1936 (SA), s 28 (originally enacted 1939); Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 3; Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 23; Law Reform (Miscellaneous Provisions) Act (NT), s 24. 36

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4; Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 24; Law Reform (Miscellaneous Provisions) Act (NT), s 25.

37

See [2.150].

[2.80]

2 The Australian Law

27

[2.60] As the case law developed, the only non-relatives who recovered were rescuers38 or workmates,39 rather than mere bystanders; and plaintiffs (unlike Mrs Hambrook) usually saw the accident happen, though perception by seeing (as opposed, for example, to hearing40) was never essential. A typical example of the kind of case in which compensation was granted is Hinz v Berry,41 where the plaintiff and her husband, four children and four foster children had stopped in a layby for a picnic tea after a day in the English countryside. The plaintiff, who was across the road with one child picking bluebells, heard a crash and turned round to see that the defendant in his Jaguar had mown down the rest of her family. She recovered damages for her resultant psychiatric illness. [2.70] One important case where an unrelated bystander failed to recover was Bourhill v Young,42 a Scottish appeal that became the first case in which the issue of liability for “nervous shock” was considered by the House of Lords. This case has gone down in history as the “case of the pregnant fishwife” — the pursuer, who worked in the Edinburgh fish market, was lifting her fish basket off a tram when the defender on his motorcycle negligently collided with a car and died as a result. She suffered shock on hearing the noise of the explosion, and seeing blood on the road, and later gave birth to a stillborn child. The House of Lords denied liability on the ground that she was not within the area of potential danger and so the deceased could not have foreseen any injury to her.43 The case raised a number of specific issues44 but its chief significance was in promoting the principle that in shock cases what had to be foreseen was injury by shock, rather than by impact. A generation later, an equally important decision of the High Court of Australia, Mount Isa Mines Ltd v Pusey,45 confirmed that the test of liability for shock was foreseeability of injury by shock, consistently with the decision of the Privy Council in The Wagon Mound (No 1)46 that damage had to be of a foreseeable kind. Pusey was another action by a non-relative, but one who qualified for recovery both as a fellow-employee and as a rescuer.47 [2.80] Starting in the 1960s, the courts once again began to move the boundaries of recovery by developing the “aftermath” doctrine — assisted by acceptance of the principle that the determinant of liability 38

See eg Chadwick v British Railways Board [1967] 1 WLR 912.

39

See eg Dooley v Cammell, Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

40

As in Boardman v Sanderson [1964] 1 WLR 1317, where the plaintiff’s presence was known, rather than merely foreseeable.

41

Hinz v Berry [1970] 2 QB 40, noted (1970) 86 LQR 457.

42

Bourhill v Young [1943] AC 92.

43

See [7.340].

44

See [15.20].

45

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

46

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

47

See [19.50]–[19.90] (employees); [25.60]–[25.70] (rescuers).

28

Part I: Introduction

[2.90]

was foreseeability of injury by shock, as described in [2.70]. On this reasoning, psychiatric damage, at least to close relatives, was foreseeable even where the relative was not present at the scene of the accident but arrived there shortly afterwards, often as a result of having been told of the disaster, and saw its “aftermath”.48 In the early 1980s, in McLoughlin v O’Brian49 and Jaensch v Coffey,50 the aftermath doctrine was ratified by the highest courts in England and Australia and extended to cases where the plaintiffs never arrived at the scene of the accident at all, but saw their loved ones lying injured in hospital. However, this heightened emphasis on the role of foreseeability was accompanied by the adoption of the stance that foresight of psychiatric harm alone was not enough: other policy issues played a part in determining whether there was a duty of care. [2.90] This development brought about important shifts in the balance between the various factors involved in psychiatric damage cases.51 Presence, once essential, was downgraded in importance, and learning of the accident through others was no longer fatal to recovery. In many cases the injury was caused by a combination of what plaintiffs saw and what they were told,52 and in some cases psychiatric damage caused purely through hearing of the accident from others was held recoverable.53 On the other hand, the element of relationship to the injured or endangered person became crucial. The English courts attempted to impose artificial restrictions on recovery, limiting it in the main to parents and spouses,54 and the position of non-relatives, even when the accident happened in front of their eyes, seemed increasingly uncertain.

48

Two important Australian cases helped to lead the way: Storm v Geeves [1965] Tas SR 252; Benson v Lee [1972] VR 879. For other cases see [10.60]–[10.160].

49

McLoughlin v O’Brian [1983] 1 AC 410, noted by P Handford (1983) 15 UWAL Rev 398; AC Hutchinson and D Morgan (1982) 45 MLR 697; M Owen [1983] CLJ 41; H Street (1983) 34 NILQ 53.

50

Jaensch v Coffey (1984) 155 CLR 549, noted by DG Gardiner (1985) 1 QITLJ 69; A O’Connell and R Evans (1985) 15 Melb ULR 164; D Partlett (1985) 59 ALJ 44; FA Trindade (1985) 5 OJLS 305.

51

See H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 100–104; FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476.

52

See eg McLoughlin v O’Brian [1983] 1 AC 410; Jaensch v Coffey (1984) 155 CLR 549; this could also be said to be true of Hambrook v Stokes Bros [1925] 1 KB 141. See the discussion at [11.120]–[11.130].

53

The earliest Australian case of this kind was Petrie v Dowling [1992] 1 Qd R 284: for subsequent cases, see [11.210]–[11.310]. In England, two first instance cases allowing recovery in such circumstances, Hevican v Ruane [1991] 3 All ER 65 and Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, were later repudiated: see [11.470]–[11.480].

54

See eg McLoughlin v O’Brian [1983] 1 AC 410 at 422 per Lord Wilberforce; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 319 per Hidden J, at 359 per Parker LJ.

[2.120]

2 The Australian Law

29

The parting of the ways [2.100] In the last decade of the 20th century, the limits laid down by McLoughlin v O’Brian55 and Jaensch v Coffey56 were in their turn subjected to challenge in a series of leading cases in Australia, England and elsewhere. As a result of these judicial developments, the uniformity that marked the common law of the 1980s has disappeared. Some jurisdictions attempted to contain the pressure to recognise a right to recover in an ever-widening expanse of new situations by adhering firmly to a series of policy restrictions based on relationship, geographical and temporal proximity, the means of communicating news of harm to others, and the concepts of “sudden shock” and “ordinary fortitude”. Others — with Australia to the fore — acknowledged the difficulty of defending such positions and recognised deserving situations where plaintiffs ought to be able to recover, in spite of the possible implications of expanding liability for psychiatric harm.57 [2.110] From this point onwards, this narrative therefore concentrates on the Australian law — first the common law development of recovery for psychiatric injury, and then the adoption of statutory statements of the law of liability for mental harm. The state of the law in other jurisdictions is reviewed in Chapter 3.

THE AUSTRALIAN COMMON LAW Developments foreshadowing the High Court decisions [2.120] Over the last 30 years, Australian courts have made spectacular progress in the dismantling of artificial barriers to recovery. The starting point of this development was the leading judgment of Deane J in Jaensch v Coffey58 in 1984. His Honour did not attempt to restrict the ambit of recovery by reference to particular categories of family relationship, or to impose rigid geographical or temporal limits on proximity. Indeed, he carefully opened the way to subsequent developments by suggesting that “the question whether the requirement of proximity precludes recovery in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one”.59 Though it was unnecessary to rely on this principle to decide the case in hand, since on the evidence the plaintiff suffered psychiatric injury as a combined result of what she was told and what she saw, this statement pointed the way to the future. The overall assessment of Jaensch v Coffey must also take into account Brennan J’s more restrictive 55

McLoughlin v O’Brian [1983] 1 AC 410.

56

Jaensch v Coffey (1984) 155 CLR 549.

57

See P Handford, “Compensation for Psychiatric Injury: The Limits of Liability” (1995) 2 Psychiatry, Psychology and Law 37; D Butler, “Nervous Shock in Australia and England: A Growing Divide?” (2001) 22 Queensland Lawyer 94.

58

Jaensch v Coffey (1984) 155 CLR 549.

59

Jaensch v Coffey (1984) 155 CLR 549 at 608: see [11.150].

30

Part I: Introduction

[2.130]

approach — his insistence on psychiatric injury being shock-induced60 was the origin of the sudden shock rule still insisted on in England, though ultimately disavowed in Australia;61 but on balance the decision proved a sound basis for further advances. [2.130] Over the next few years, a number of first instance and intermediate appeal courts indicated their preparedness to recognise a duty of care in situations where the plaintiff was nowhere near the scene of the accident and psychiatric injury was caused entirely by learning of the injury from others.62 Two statements by Kirby P of the New South Wales Court of Appeal were particularly influential. He emphasised the importance of appreciating the 20th-century advances in the understanding of human psychology, saying that “it is highly artificial to imprison the legal cause of action for psychiatric injury in an outmoded scientific view about the nature of its origins”;63 and he highlighted the importance of the modern world of telecommunications in a graphic description of “the large number of persons linked by mobile telephones to the world about them” that might “inevitably … bring, on occasion, shocking news, as immediate to the senses of the recipient as actual sight and sound of the catastrophe would be”.64 This, as he said, was the reality of the world in which the law of nervous shock must now operate. Whereas in days gone by, most people lived in small communities, and relatives were usually close at hand and came swiftly to the accident scene, today they are just as likely to be half a world away but through modern communication methods such as the mobile phone and the internet they can be as immediately involved as if they are present. [2.140] Not all intermediate courts followed this lead, however, and after some rather more conservative decisions65 the High Court agreed that the appeals in two cases would be heard together, so allowing it to review many of the most contentious issues in this area of the law. In the first case, Tame v Morgan,66 Mrs Tame had alleged that she suffered a psychotic depressive illness as a result of an erroneous blood-alcohol reading being entered on an accident report form against her name after a road accident. She learnt of this during a telephone call from her solicitor. Even though she was told that this was a mistake and had already been corrected, she became obsessed by the error: she felt shame and guilt, and thought that this was the reason her insurance company were not paying her medical bills. She claimed that the New South Wales police were 60

Jaensch v Coffey (1984) 155 CLR 549 at 564–565: see [12.30].

61

By Tame v New South Wales (2002) 211 CLR 317.

62

See [11.210]–[11.310].

63

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503: see [12.200]–[12.230].

64

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 11: see [11.250]–[11.270]. 65

Particularly Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 and Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606.

66

Tame v Morgan (1998) Aust Torts Rep 81-483; Morgan v Tame (2000) 49 NSWLR 21 (CA).

[2.140]

2 The Australian Law

31

vicariously liable for the negligence of the police officer who had inserted the erroneous reading.67 The primary issue was whether in these circumstances psychiatric injury would have been foreseeable to a person of ordinary fortitude. She was successful in the New South Wales District Court,68 but this decision was reversed on appeal to the New South Wales Court of Appeal.69 The High Court then granted special leave.70 The second case, Annetts v Australian Stations Pty Ltd,71 was a dramatic illustration of the secondary victim situation that has dominated the law ever since Hambrook v Stokes Bros72 — James Annetts, aged 16, had left his family home in New South Wales to go and work as a jackaroo on the defendant’s cattle station in the outback in the far north of Western Australia. Before he left home, his mother telephoned his prospective employer to satisfy herself that he would be working under close supervision and well looked after. In fact, after only seven weeks he was sent to work alone at a remote location. Soon he could stand it no longer, and with another teenager employed at another station took off into the desert in a borrowed vehicle. The defendants telephoned his parents in Sydney to tell them he had gone missing. His father collapsed and his mother took over the telephone conversation. The parents made several visits to the area and were shown some of their son’s belongings, including a hat covered in blood, but it was not until four months after their disappearance that the bodies of the two boys were found. The vehicle had become bogged in the desert, James had died from dehydration, exhaustion and hypothermia, and it appeared that his companion had shot himself. After protracted litigation to establish their right to be heard in the coronial inquiry, culminating in proceedings in the High Court,73 Mr and Mrs Annetts sued their son’s employers for damages for psychiatric injury. Dealing with the preliminary issue of whether there was a duty of care, Heenan J in the Supreme Court of Western Australia held that psychiatric harm to the parents was

67

Constable Morgan, one of the police officers concerned, was named as defendant in the original action together with the State of New South Wales. However, the police officer who filled in the erroneous reading was in fact Acting Sergeant Beardsley; Constable Morgan had compiled other information on the form but had left the blood-alcohol readings blank, to be filled in later. “Despite the reasoning of the trial judge, it remains unclear whether a verdict was entered in Constable Morgan’s favour, as it should have been. Surprisingly, Morgan became an appellant. He remains one, destined perhaps to enter the law reports in relation to something that never involved him directly”: Morgan v Tame (2000) 49 NSWLR 21 at [92] per Mason P. However, at the High Court hearing on 5 December 2001 the court made an order dismissing Morgan from the proceedings.

68

Tame v Morgan (1998) Aust Torts Rep 81-483.

69

Morgan v Tame (2000) 49 NSWLR 21.

70

Tame v Morgan S120/2000 (6 April 2001).

71

Annetts v Australian Stations Pty Ltd [2000] WASC 104.

72

Hambrook v Stokes Bros [1925] 1 KB 141.

73

Annetts v McCann (1990) 170 CLR 596.

32

Part I: Introduction

[2.150]

foreseeable but the requirements of proximity were not satisfied.74 On appeal the Full Court was not prepared to go as far.75 In its view it was foreseeable that the parents might suffer grief and distress, but not psychiatric injury. Special leave to appeal having been sought, it was agreed that the case would be heard by the Full High Court conjointly with Mrs Tame’s appeal.76

The High Court decisions: Tame and Gifford [2.150] The landmark High Court decision in Tame v New South Wales,77 in which the court considered the conjoined Tame and Annetts appeals, was the first case to reach Australia’s highest appellate tribunal since Jaensch v Coffey 17 years earlier. The appeals were heard on 4 and 5 December 2001, and the judgments were handed down on 5 September 2002. It is noteworthy that the decision came at a time when Australia was contending with an “insurance crisis” fuelled by the rising cost and diminishing availability of liability insurance, and there was an outcry in some quarters at what were seen by some as controversial extensions of the ambit of negligence liability.78 However, the High Court was not deterred from a logical assessment of the direction in which the law was moving and whether control mechanisms such as direct perception, sudden shock and ordinary fortitude were rational restrictions on recovery. It was not influenced by the catchcry of “thus far and no further”79 that had characterised recent English decisions. The court decided that the issue of duty in psychiatric injury cases was primarily determined by whether psychiatric injury was reasonably foreseeable and that direct perception and sudden shock, while relevant to that determination, were not separate prerequisites of liability. These principles 74

Annetts v Australian Stations Pty Ltd [2000] WASC 104; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 (CA).

75

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

76

Annetts v Australian Stations Pty Ltd P97/2000 (1 June 2001).

77

Tame v New South Wales (2002) 211 CLR 317. For previews of the decision, see P Handford, “When the Telephone Rings: Restating Negligence Liability for Psychiatric Illness” (2001) 23 Syd LR 597; I Freckelton, “Compensability for Psychiatric Injury: An Opportunity for Modernisation and Reconceptualisation” (2001) 9 JLM 137. For commentary on the decision see P Handford, “Psychiatric Injury: The New Era” (2003) 11 Tort L Rev 13; I Freckelton, “New Directions in Compensability for Psychiatric Injuries” (2002) 9 Psychiatry, Psychology and Law 271; J Dietrich, “Nervous Shock: Tame v New South Wales and Annetts v Australian Stations Ltd” (2003) 11 TLJ 11; Y Muthu, E Geraghty and B Hocking, “If Only I Had a Heart: The Australian Case of Annetts and the Internationally Confounding Question of Compensation in Nervous Shock Law” (2005) 7 UTSLR 157.

78

See eg H Coonan, “Insurance Premiums and Law Reform – Affordable Cover and the Role of Government” (2002) 25 UNSWLJ 819; R Debus, “Tort Law Reform in New South Wales: State and Federal Interactions” (2002) 25 UNSWLJ 825. For a different view, see R Graycar, “Public Liability: A Plea for Facts” (2002) 25 UNSWLJ 810; H Luntz, “Reform of the Law of Negligence: Wrong Questions – Wrong Answers” (2002) 25 UNSWLJ 836.

79

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500 per Lord Steyn: see [3.40].

[2.160]

2 The Australian Law

33

were endorsed by Gummow and Kirby JJ in a joint judgment,80 supported by the separate judgments of Gleeson CJ, Gaudron and Hayne JJ;81 Callinan J was the only judge who attempted to retain some semblance of the former rules.82 McHugh J bypassed these issues by holding that the standard rules did not apply where there was a pre-existing relationship.83 A majority of the court — Gleeson CJ, Gaudron J and Gummow and Kirby JJ — also ruled that normal fortitude was not a separate requirement,84 but the other three judges were in favour of retaining it.85 [2.160] In the circumstances of the two cases, it was reasonably foreseeable that the news of their son’s disappearance would cause psychiatric injury to Mr and Mrs Annetts;86 it was not reasonably foreseeable that Mrs Tame would suffer psychiatric injury as a result of an error in an accident report.87 In addition, other considerations endorsed by the court in its earlier decision in Sullivan v Moody88 also told against Mrs Tame. The police officers were engaged in the preparation of an accident report for their superiors, and any finding that they owed a duty to someone involved in the accident would be inconsistent with this duty.89 Further, there was a need to preserve coherence between

80

Tame v New South Wales (2002) 211 CLR 317 at [225] (direct perception), [213] (sudden shock).

81

Tame v New South Wales (2002) 211 CLR 317 at [18] per Gleeson CJ, at [51], [66] per Gaudron J, at [272] per Hayne J (subject to other suitable criteria being formulated).

82

The telephone call and subsequent communications were a series of “successive thunderclaps” and so satisfied the sudden shock requirement: Tame v New South Wales (2002) 211 CLR 317 at [364]; direct perception was no more than a requirement that “by one or other of the senses, a ‘bilaterally related person’ perceive, or come to know of, or realise, at the time of, or as soon as practicable after its occurrence, a shocking event or its shocking aftermath”: at [365].

83

Tame v New South Wales (2002) 211 CLR 317 at [139].

84

Tame v New South Wales (2002) 211 CLR 317 at [16] per Gleeson CJ, at [61] per Gaudron J, at [201] per Gummow and Kirby JJ.

85

Tame v New South Wales (2002) 211 CLR 317 at [87] per McHugh J, at [334] per Callinan J. Hayne J at [283] supported this position but said it was not necessary to decide the issue in the two cases before the court.

86

Tame v New South Wales (2002) 211 CLR 317 at [38] per Gleeson CJ, at [64] per Gaudron J, at [144] per McHugh J, at [236] per Gummow and Kirby JJ, at [303] per Hayne J, at [366] per Callinan J. Mr and Mrs Annetts subsequently accepted an out-of-court payment in settlement of their claim: see “Compo paid for jackaroo death”, The West Australian, 18 March 2003.

87

Tame v New South Wales (2002) 211 CLR 317 at [29] per Gleeson CJ, at [120]–[121] per McHugh J, at [232] per Gummow and Kirby JJ, at [300] per Hayne J, at [331] per Callinan J. Gaudron J at [59], [63] agreed but held that it was not necessary to decide the issue.

88 89

Sullivan v Moody (2001) 207 CLR 562.

Tame v New South Wales (2002) 211 CLR 317 at [27] per Gleeson CJ, at [57] per Gaudron J, at [231] per Gummow and Kirby JJ, at [298] per Hayne J. McHugh J at [126] clearly agreed but said it was unnecessary to decide the issue. Callinan J does not mention it.

34

Part I: Introduction

[2.170]

negligence and the law of defamation, and any liability for communication of a false statement about the blood-alcohol reading should be in defamation and not in negligence.90 [2.170] The decision does not go so far as to say that reasonable foreseeability of psychiatric injury is the only determinant of duty. In the words of Gleeson CJ: “The concept of reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility.”91 As to the question whether the relationship between the parties was such as to make it reasonable to require that the respondent should have in contemplation the danger of psychiatric injury to Mr and Mrs Annetts, his Honour said that the courts below had been wrong to seek the answer by reference to direct perception and sudden shock, but the relationship issue still had to be addressed. On the facts there was a relationship between the parties sufficient, in combination with reasonable foreseeability of harm, to give rise to a duty of care even though they did not witness their son’s death and suffer a sudden shock in consequence. The assurances given to them were one important factor in establishing the sufficiency of that relationship.92 All the other major judgments focus in one way or another on the sufficiency of the relationship as an important factor in the recognition of a duty.93 Hayne J in particular emphasised the importance of identifying some control mechanism beyond foreseeability of psychiatric harm.94 Judges in lower courts in subsequent cases have placed special emphasis on the remarks of Gleeson CJ and the other judges about the importance of relationship in addition to foreseeability.95 [2.180] Two subsequent High Court cases shed further light on what is required to establish a duty of care in psychiatric injury cases in the post-Tame v New South Wales96 era. A few months after the decision in Tame, the High Court endorsed its approach in Gifford v Strang Patrick 90

Tame v New South Wales (2002) 211 CLR 317 at [28] per Gleeson CJ, at [58] per Gaudron J, at [123] per McHugh J, at [323] per Callinan J. Gummow and Kirby JJ and Hayne J do not mention this issue.

91

Tame v New South Wales (2002) 211 CLR 317 at [13], and see also at [32].

92

Tame v New South Wales (2002) 211 CLR 317 at [18], [35]–[37].

93

Tame v New South Wales (2002) 211 CLR 317 at [54] per Gaudron J, at [237]–[240] per Gummow and Kirby JJ, at [303]–[304] per Hayne J. McHugh J at [139] emphasised the pre-existing relationship between the parties.

94

Tame v New South Wales (2002) 211 CLR 317 at [272]. See also his judgment in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [99].

95

Eg Halech v South Australia (2006) 93 SASR 427 at [28] per Duggan J; Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 at [14] per Debelle J; Birti v SPI Electricity Pty Ltd [2011] VSC 566 at [36] per J Forrest J; Leonard v Pollock [2012] WASCA 108 at [57] per Newnes and Murphy JJA. See also Ah Tong v Wingecarribee Council [2003] NSWCA 381 at [2] per Giles JA; Klein v New South Wales [2005] NSWSC 1341 at [16] per Master Harrison; Politarhis v Westpac Banking Corporation [2008] SASC 296 at [93] per White J; compare Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80 at [64] per McColl JA.

96

Tame v New South Wales (2002) 211 CLR 317.

[2.190]

2 The Australian Law

35

Stevedoring Pty Ltd,97 a case where the three children of a docker killed by a forklift truck suffered psychiatric illnesses when told of his death later on the same day.98 In such circumstances, psychiatric injury to employees’ families was foreseeable. The New South Wales Court of Appeal, in a pre-Tame decision, had rejected the claims on the ground that there was no direct perception,99 but the High Court rejected this limitation. The chief importance of Gifford is that the High Court were prepared to recognise the existence of a duty of care even though there was no equivalent of Mrs Annett’s preliminary enquiry. This decision was endorsed by all the judges, including those who had given the leading judgments on the direct perception issue in Tame — Gleeson CJ, and Gummow and Kirby JJ in another joint judgment — plus McHugh J whose judgment in Tame had proceeded on a different basis.100 [2.190] Gleeson CJ said that though Tame v New South Wales101 had ruled that there was no requirement of direct perception, it did not follow that the circumstance that the children were not present and did not observe the accident was irrelevant. The central issue was whether it was reasonable to require the defendant to have in contemplation the risk of psychiatric injury to the worker’s children. It was not possible to require people to guard against all kinds of foreseeable psychiatric injury: the relationship of parent and child went to foreseeability of injury, and also to the reasonableness of recognising the duty. Though not all children had a close relationship with their parents, children as a class formed an obvious category of people who might be expected to be at risk of this kind of injury.102 Gummow and Kirby JJ, emphasising the importance of the protection of the young from serious harm, held that despite the absence of specific assurances the relationship between the parties shared important characteristics with that in the Annetts litigation: the employer’s 97

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, noted by P Handford (2003) 11 Tort L Rev 127. See also D Butler, “Gifford v Strang and the New Landscape for Recovery for Psychiatric Injury in Australia” (2004) 12 TLJ 108. The defendant was also held liable under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW): see [13.90]–[13.100]. The case was remitted to the New South Wales District Court for assessment of damages: see Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50.

98

Mr Gifford’s wife also sued, but her action failed at first instance on the ground that she was unable to prove that she had suffered psychiatric injury as distinct from normal grief: she was separated from her husband.

99 Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606. It is worthy of note that one of the members of the court was Ipp AJA, sitting as a visiting judge from Western Australia, who had endorsed a similar limitation in the leading judgment in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35. 100

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [12]–[13] per Gleeson CJ, at [92] per Gummow and Kirby JJ, at [53] per McHugh J. The decision was also concurred in by Hayne J, though his Honour was still concerned with the problem of limits (at [100]), and Callinan J, who repeated what he said in Tame and said he did not understand other judges to have stated very different views (at [119]). Only six judges sat, Gaudron J having by this time retired. 101

Tame v New South Wales (2002) 211 CLR 317.

102

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [10]–[12].

36

Part I: Introduction

[2.200]

obligations to the employee extended to exercising reasonable care to avoid causing the children psychiatric injury in consequence of their father’s death.103 McHugh J ranged more generally: for him the answer to the question whether the respondent owed a duty to the children had to commence with an inquiry as to whether the children were “neighbours” under Lord Atkin’s well-known principle.104 His Honour proceeded to outline some general principles about closeness of relationship and other factors that would be sufficient for the recognition of a duty of care.105 The closeness of the relationship between parent and child would almost always be sufficient: such a relationship “is so close and loving that a wrongdoer cannot reasonably disregard the risk that the child will suffer mental injury on being informed that his or her parent has been harmed or put in peril as a result of the wrongdoer’s negligence.”106 [2.200] Most recently, the judgment of Nettle J in King v Philcox107 provides further valuable insights into the common law position. Mr Philcox had driven past the scene of a fatal accident several times without realising that his brother was the accident victim. The case involved the interpretation of the mental harm provisions of the Civil Liability Act 1936 (SA) and the other judgments do not comment at any length on the common law. However, Nettle J, taking his cue from the earlier High Court decision in Wicks v State Rail Authority (NSW)108 holding that the legislation had to be understood against the background of the common law of negligence, re-examined the common law position. His extensive treatment is too long for quotation in full, but the core is contained in the following passage: This Court has not before had to determine whether a duty of care is owed in the circumstances presented by this case. Wicks made passing reference to the issue of duty of care owed to those present at the aftermath of an accident but did not deal with it in detail. Jaensch v Coffey, Tame and Gifford v Strang Patrick Stevedoring Pty Ltd all provide relevant guidance, but the issue cannot be properly decided by reference only to the nature of the relationship between the victim of an accident and the claimant, or the victim and the defendant. As Deane J concluded in Jaensch, the question of whether a duty of care is owed in particular circumstances falls to be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases and, ultimately, by value judgments of matters of policy and degree. Although the concept of “proximity” that Deane J held to be the touchstone of the existence of a duty of care is no longer considered determinative, it nonetheless “gives focus to the inquiry”. It does so by directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and 103

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [89]–[90].

104

Donoghue v Stevenson [1932] AC 562 at 580.

105

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [46]–[52].

106

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [50].

107

King v Philcox (2015) 89 ALJR 582.

108

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60: see [2.470].

[2.220]

2 The Australian Law

37

prompting a “judicial evaluation of the factors which tend for or against a conclusion” that it is reasonable (in the sense spoken of by Gleeson CJ in Tame) for a duty of care to arise.109

A prominent feature of this passage is Nettle J’s reference to the concept of proximity that Deane J in Jaensch v Coffey110 and other members of the High Court later adopted as a general criterion for the existence of a duty of care. Though now abandoned, Nettle J found it a useful framework for analysis. Under the heading of foreseeability, he concluded that it was reasonably foreseeable that close relatives might be present at the aftermath of the accident, or go to the scene having been told about it. Though it was less likely that a close relative might stumble on the scene of the accident, as happened here, it did not make it less foreseeable that the relative might suffer mental harm as a consequence.111 As for other considerations, in terms of induction, the considerations that emerged from the decided cases were in effect those listed in the legislation,112 and in terms of deduction, there was little to distinguish between this case and Jaensch v Coffey: if anything, the connection was closer than in that case, where Mrs Coffey had never been present at the accident scene. In terms of contemporary standards of responsibility, it was not unreasonable for a driver to have in contemplation not only a physically injured accident victim but also a close relative who might suffer mental harm as a result of what he or she saw or learnt of the victim’s physical injuries in the aftermath of the accident. Though there were some differences from Jaensch v Coffey in terms of physical and temporal proximity, they were not significant. A submission that recognising a duty on the facts of this case would go beyond the bounds of proximity emphasised in earlier decisions was rejected.113 [2.210] It is of great interest that this latest pronouncement goes back to the influential judgment of Deane J that first opened the way for Australia to make a distinctive contribution to the law of psychiatric injury. The analysis adopted by Nettle J brings together the various threads in the case law and gives lower courts a framework for considering duty issues. The common law has a continuing role, not only in Queensland and the Northern Territory where there is no mental harm legislation, but also, as we shall see, in the other six Australian jurisdictions.

THE CIVIL LIABILITY ACTS [2.220] Between 28 November 2002 and 4 December 2003, legislative provisions on mental harm were enacted in New South Wales, Tasmania, the Australian Capital Territory, Western Australia, Victoria and South 109

King v Philcox (2015) 89 ALJR 582 at [80] (footnotes omitted).

110

Jaensch v Coffey (1984) 155 CLR 549.

111

King v Philcox (2015) 89 ALJR 582 at [82]–[85].

112

See [2.280].

113

King v Philcox (2015) 89 ALJR 582 at [86]–[102].

38

Part I: Introduction

[2.230]

Australia. In these six jurisdictions, the common law is now overlaid by legislative provisions. This was part of a more general reform of the law of negligence that saw Civil Liability Acts or similar legislation enacted in every Australian State and Territory over an 18-month period commencing in June 2002.114 In most instances, the mental harm provisions were enacted by subsequent amending Acts.115 [2.230] The springboard for this legislative reform was the so-called “insurance crisis” that suddenly loomed in early 2002, fuelled by allegations that the law was moving too far and too fast to compensate new categories of plaintiffs in new situations, and reports of professionals and community groups who were having difficulties in obtaining liability insurance, or finding that costs had risen so steeply that their activities were threatened. In March 2002 the Commonwealth government appointed an expert panel, the so-called “Panel of Eminent Persons”, chaired by Justice David Ipp of the New South Wales Court of Appeal, to review the law of negligence in so far as it dealt with the awarding of damages for personal injury.116 The terms of reference given to this body stated that the award of damages for personal injury had become unaffordable and unsustainable as the principal source of compensation for the injured, and that it was desirable to explore reform with the objective of limiting the scope of liability and the quantum of damages awarded. The panel was required to report by 30 September 2002, and did so. Its report, officially entitled Review of the Law of Negligence, is generally referred to as the “Ipp Report”.117 Legislation implementing most of its recommendations — and in some cases going beyond them — was passed in most jurisdictions during the next few months.118 114

Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act (NT); Civil Liability Act 2002 (Tas); Civil Liability Act 2002 (WA). In South Australia, the reforms were inserted in the Wrongs Act 1936 (SA), which was renamed the Civil Liability Act 1936 (SA); in Victoria, the reforms were inserted in the Wrongs Act 1958 (Vic). 115 See now Civil Law (Wrongs) Act 2002 (ACT), ss 32 – 36, inserted by Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT); Civil Liability Act 2002 (NSW), ss 27 – 33, inserted by Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW); Civil Liability Act 1936 (SA), ss 33, 53, inserted by Law Reform (Ipp Recommendations) Act 2004 (SA); Civil Liability Act 2002 (Tas), ss 29 – 35, inserted by Civil Liability Amendment Act 2002 (Tas); Wrongs Act 1958 (Vic), ss 67 – 78, inserted by Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic); Civil Liability Act 2002 (WA), ss 5Q – 5T, inserted by Civil Liability Amendment Act 2003 (WA). 116

The other members were Professor Peter Cane (Research School of Social Sciences, Australian National University), Associate Professor Don Sheldon (surgeon, Chair of the Council of Procedural Specialists) and Mr Ian Macintosh (Mayor of Bathurst).

117

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002) (Ipp Report).

118

New South Wales did not wait for the panel’s report: the Civil Liability Act 2002 (NSW) was assented to on 18 June 2002 and commenced retrospectively on 20 March 2002. For general comment on the reform process by the two lawyer members of the panel, see D Ipp, “Negligence – Where Lies the Future?” (2003) 23 Aust Bar Rev 158; D Ipp, “Policy and the Swing of the Negligence Pendulum” (2003) 77 ALJ 732; P Cane, “Reforming Tort Law in Australia: A Personal Perspective” (2003) 27 MULR 649. Other important contributions

[2.250]

2 The Australian Law

39

[2.240] The High Court’s decision in Tame v New South Wales119 was handed down while the panel was deliberating and the recommendations on psychiatric injury — or, to use the term preferred by the report and now adopted by the legislation, mental harm — are generally consistent with it.120 However, there are some important modifications. While not advocating major changes to the law, the panel recommended a major change to the form of the law by proposing a legislative statement of the duty to take care to avoid causing purely mental harm. Six jurisdictions now have legislation that embodies such a statement.121 If the reform had stopped there, uniformity would not be under threat. Unfortunately, however, led by New South Wales, four of the six jurisdictions felt a need to impose additional restrictions not recommended by the panel. These provisions are all a little different from each other: they are uniform only in the sense that they each place some sort of restriction on the scope of the common law. This has not been a desirable development. The outcome as regards mental harm mirrors what has happened to the general law of negligence: as a result of the legislation, the law now varies considerably from one jurisdiction to another. The uniformity produced by a long period of common law development has been a casualty of the reform process. [2.250] An analysis of the mental harm legislation in the six jurisdictions follows.122

include JJ Spigelman, “Negligence: The Last Outpost of the Welfare State” (2002) 76 ALJ 432 (an address given to the Judicial Conference of Australia on 27 April 2002); C McLure, “Risk and Responsibility: The Interplay between Insurance and Tort Law” (2002) 29(9) Brief 7 (the Sir Ronald Wilson Lecture, given in Perth, Western Australia in August 2002); P Underwood, “Is Mrs Donoghue’s Snail in Mortal Peril?” (2004) 12 TLJ 39 (an address to the State branches of the Australian Insurance Law Association in October 2003); H Luntz, “The Australian Picture” (2004) 35 VUWLR 879. 119

Tame v New South Wales (2002) 211 CLR 317.

120

The Ipp Report deals with mental harm in Ch 9 and recommendations 33–38.

121

For comment on the legislation see DN Seeto, “Shock Rebounds: Tort Reform and Negligently Inflicted Psychiatric Injury” (2004) 26 Syd LR 293; NA Katter, “The Ambit of Liability for Negligently Caused Mental Harm – Finding the Balance” (2004) 6 UNDALR 63; D Butler, “Liability for Psychiatric Injury in Australia: Pieces Falling into Place” (2005) 2(3) Australian Civil Liability 25; I Freckelton, “Actions for Pure Psychiatric Injury after the Ipp Reforms” (2005) 67 Precedent 4; H Luntz, “Damages for Negligently Inflicted Psychiatric Injury: Where Are We Now?” (2005) 79 LIJ 48; D Mendelson, “The Modern Australian Law of Mental Harm: Parochialism Triumphant” (2005) 13 JLM 164; C Forster and J Engel, “Reinforcing Historic Distinctions between Mental and Physical Injury: The Impact of the Civil Liability Reforms” (2012) 19 JLM 593. 122

Note the authoritative and detailed survey of the New South Wales legislation in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [16]–[23] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

40

Part I: Introduction

[2.260]

Mental harm — pure and consequential [2.260] The legislation defines mental harm as “impairment of a person’s mental condition”.123 It makes an important distinction between pure mental harm and consequential mental harm. Consequential mental harm is mental harm that is a consequence of a personal injury of any other kind;124 pure mental harm means mental harm other than consequential mental harm.125 The common law rules on psychiatric injury evolved to deal with what is now referred to as pure mental harm. Prior to 2002, consequential mental harm did not give rise to any special problems, but was simply damage that would be taken into account in assessing the damages flowing from personal injury, without any special rules such as a requirement that it had to consist of a recognised psychiatric illness. The legislation now imposes new restrictions in relation to consequential mental harm, as described at [2.320]–[2.330].126

The major provisions [2.270] Section 31 of the Civil Liability Act 2002 (NSW) states that there is no liability to pay damages for pure mental harm unless the harm consists 123

Except in Victoria, where it is defined to mean “psychological or psychiatric injury”. For definitions, see Civil Law (Wrongs) Act 2002 (ACT), s 32; Civil Liability Act 2002 (NSW), s 27; Civil Liability Act 1936 (SA), s 3; Civil Liability Act 2002 (Tas), s 29; Wrongs Act 1958 (Vic), s 67; Civil Liability Act 2002 (WA), s 5Q. It seems that the definition has resulted in the probably unintended consequence that damages for distress may no longer be available in actions for breach of contract: in Flight Centre v Louw (2012) 78 NSWLR 656, the plaintiffs sued for damages for a disappointing holiday. Barr AJ held that they had suffered impairment of their mental condition under s 27 of the Civil Liability Act 2002 (NSW). This was to be classified as pure mental harm, which did not give rise to damages unless they had suffered a recognised psychiatric illness (at [38]) — a very different result from the common law as stated by the High Court in Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344. For criticism see S Walker and K Lewins, “Dashed Expectations? The Impact of Civil Liability Legislation on Contractual Damages for Disappointment and Distress” (2014) 42 ABLR 465. 124

There are minor variations in wording: eg in Western Australia, harm that is a consequence of personal injury of any kind; in South Australia and the Australian Capital Territory, harm that is a consequence of bodily injury to the person. Rees v Lumen Christi Primary School [2011] VSCA 361, a common law case, provides an example: a primary school teaching assistant who had to restrain a difficult student suffered injuries to her shoulder and consequent psychiatric injury.

125

Note Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 where there were physical injuries but they were not caused by the defendant’s negligence, so the case was correctly treated as one of pure mental harm.

126

There is at least one example of the distinction between pure and consequential mental harm causing confusion during the Parliamentary process. “Members might ask what is the difference between pure mental harm and consequential mental harm? If the mental harm is not caused as a consequence, why are we worried about it? I would like the minister to confirm my understanding of the definitions. Is mental harm directly caused to a person through an injury whereas consequential mental harm is mental harm such as the Bourhill v Young type of mental harm whereby a bus careers out of control down a hill and one knows that one’s child is somewhere further down the hill? Is that the distinction that this Bill intends to draw?”: Western Australia, Parliamentary Debates (Legislative Council, 14 October 2003), 11843. Some errors in the case law cited are also apparent.

[2.280]

2 The Australian Law

41

of a recognised psychiatric illness. There are similar provisions in four of the other five jurisdictions;127 the exception is Western Australia, where there is no express provision to this effect.128 These provisions implement a recommendation of the Ipp Report,129 although there are some drafting differences between the jurisdictions.130 The legislation follows the Ipp Report in adopting the term recognised rather than recognisable psychiatric illness. No express justification for this change is given in the Report. It may simply have resulted from an accident of language, but its consequences could be important, since it has the potential to limit the scope of the common law damage requirement.131 [2.280] The most important provisions in each jurisdiction are those that set out the duty of care in cases of mental harm. Pure and consequential mental harm have been combined in a single statement of duty of care, except in Victoria, where there are separate provisions. The New South Wales legislation, the first in point of time to be enacted, provided the drafting model. Section 32 of the Civil Liability Act 2002 (NSW) states: (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and anyone killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. 127

Civil Law (Wrongs) Act 2002 (ACT), s 35; Civil Liability Act 1936 (SA), s 53(2); Civil Liability Act 2002 (Tas), s 33; Wrongs Act 1958 (Vic), s 75 (a little different from the other provisions, since it provides that a court cannot make an award of damages for economic loss resulting from mental harm unless the harm consists of a recognised psychiatric illness, so remaining closer to the Ipp Report recommendation: see [2.320]). 128

Theoretically, at least, it would be possible to award damages in Western Australia for something less than a recognised psychiatric illness, though like the other jurisdictions the Civil Liability Act 2002 (WA), s 5S(1) provides that there is no liability unless the defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness.

129

Ipp Report recommendation 34(a).

130

The most important is in Victoria, where the legislation provides that a court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness: Wrongs Act 1958 (Vic), s 78. 131

See [4.70]–[4.110].

42

Part I: Introduction

[2.290]

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

[2.290] Minor variations can be found in the other jurisdictions.132 Whereas in New South Wales, Victoria and Western Australia the test asks whether the defendant ought to have foreseen,133 the other provisions emphasise the objective nature of the test by referring to a person in the defendant’s position.134 Victoria and the Australian Capital Territory use the word “danger” rather than “peril”, but presumably no difference is intended.135 The most interesting variation is in Tasmania, where circumstances (b) and (c) have been omitted — because they are covered in another provision dealt with at [2.360]. One argument in favour of this difference is that the omitted circumstances are relevant only to the standard secondary victim situation that has dominated this area of the law ever since Hambrook v Stokes Bros136 — something that may affect the interpretation of the legislation in the other jurisdictions when it is applied to other kinds of cases.137 However, all the provisions have a uniform core: for example, they all emphasise that the test relates to whether a person of normal fortitude might suffer a recognised

132

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), ss 72 (pure mental harm), 74 (consequential mental harm); Civil Liability Act 2002 (WA), s 5S.

133

However, the use of the word “ought” and the context suggests a reasonable person in the position of the defendant: Wright v Optus Administration Pty Ltd [2015] NSWSC 160 at [81] per Campbell J.

134 In Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321, Stanley J said at [90]: “This is an objective test. However, it involves a specific rather than a generalised enquiry. The enquiry is to be undertaken by reference to the reasonable person in the defendant’s position. That is to say, the reasonable person possessed of the knowledge, experience, and capacity for care and foresight of, or to be expected of, the defendant.” However, Kourakis CJ at [2] preferred to reserve this issue for future decision, being inclined to think there was no substantial difference between the provisions in South Australia and the other jurisdictions. Stanley J emphasised that the statutory test was still based on the understanding of foreseeability affirmed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. As to the application of the test in the circumstances of the case (which involved a young unskilled labourer from Afghanistan), see Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [4] per Kourakis CJ, at [16], [21] per Gray J, at [105] per Stanley J. 135

In Philcox v King [2013] SADC 60 at [29], Judge Bampton suggested that “put in peril” in s 33(2)(a)(ii) and (iii) of the Civil Liability Act 1936 (SA) and “endangered” in s 53(1)(b) of the Act carried the same meaning. Judge Bampton’s judgment is a good example of the weighing of the various circumstances. Her decision was reversed by the Full Court (Philcox v King (2014) 119 SASR 71), but restored by the High Court (King v Philcox (2015) 89 ALJR 582): see [2.360]. 136 137

Hambrook v Stokes Bros [1925] 1 KB 141: see [2.50].

Note McGuirk v University of New South Wales [2009] NSWSC 1424, a work stress case, where Johnson J at [107] commented that the circumstances listed in s 32(2) of the Civil Liability Act 2002 (NSW) were, with one exception (a pre-existing relationship between the plaintiff and the defendant) remote from the case at hand: see [20.420].

[2.310]

2 The Australian Law

43

psychiatric illness.138 Courts are now making rulings under these provisions.139 The onus of proving that the statutory conditions are satisfied is on the plaintiff.140 [2.300] These provisions implement the recommendation in the Ipp Report that there should be a statutory statement of the duty of care in cases of pure mental harm,141 closely following (in most respects) the common law as expounded by the High Court in Tame v New South Wales.142 Elements such as sudden shock and direct perception, which the High Court held were not essential requirements of liability, are simply circumstances relevant in the overall foreseeability assessment. But there is an important exception: a majority of the High Court held that foreseeing that a person of normal fortitude might suffer psychiatric injury was not an independent requirement, but merely part of the overall foreseeability test.143 The legislation reinstates normal fortitude as an independent requirement. This is in line with the way it was treated in the Report,144 despite what the High Court said. In the result, there may not be all that much difference between the two positions. The rule that the outcome may be different if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude is specifically preserved.145 [2.310] There is one other point of interest. The recommendation in the Ipp Report suggested five matters that ought to be taken into account in 138

“The section speaks in terms of whether ‘a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness’ …. It does not speak of whether the hypothetical person might suffer the psychiatric illness from which the plaintiff suffered”: Hollier v Sutcliffe [2010] NSWSC 279 at [220] per RA Hulme J.

139

For cases where defendants were held liable under these provisions, see Waverley Council v Ferreira [2005] NSWCA 418; Cox v New South Wales (2007) Aust Torts Rep 81-888; Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109; Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242 (discussing both Australian Capital Territory and New South Wales provisions); Goddard v Central Coast Health Network [2013] NSWSC 1932; Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185; Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280; Wright v Optus Administration Pty Ltd [2015] NSWSC 160. Compare Thompson v NSW Land and Housing Corporation [2011] NSWSC 941, where the test was not satisfied. Note also Wagstaff v Haslam [2006] NSWSC 294, reversed on appeal Wagstaff v Haslam (2007) 69 NSWLR 1; Kuehne v Warren Shire Council (2011) 180 LGERA 383, reversed on appeal Warren Shire Council v Kuehne [2012] NSWCA 81. For cases where the legislation was considered, even though there was no liability on other grounds, see Hollier v Sutcliffe [2010] NSWSC 279; Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321. Note also McGuirk v University of New South Wales [2009] NSWSC 1424 at [106]–[107] per Johnson J. 140

Wright v Optus Administration Pty Ltd [2015] NSWSC 160 at [85] per Campbell J.

141

Ipp Report recommendation 34(b) and (c).

142

Tame v New South Wales (2002) 211 CLR 317.

143

See [8.170]–[8.180].

144

See Ipp Report para 9.13.

145

See Civil Liability Act 2002 (NSW), s 32(4); Civil Law (Wrongs) Act 2002 (ACT), s 34(4); Civil Liability Act 1936 (SA), s 33(3); Civil Liability Act 2002 (Tas), s 34(4); Wrongs Act 1958 (Vic), s 72(4); Civil Liability Act 2002 (WA), s 5S(4).

44

Part I: Introduction

[2.320]

cases of pure mental harm, distinguishing between whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath, and whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses.146 The condensing of these two requirements into a single paragraph (s 32(2)(b)) is not an improvement.147 [2.320] The duty of care set out in s 32(1) and its interstate equivalents applies both to pure and to consequential mental harm,148 and separate subsections provide that for the purpose of the application of the section in respect of consequential mental harm the circumstances of the case include the personal injury suffered by the plaintiff.149 The Ipp Report made recommendations in respect of consequential mental harm which imposed substantial restrictions on the ability to award damages for such harm that were not present at common law, namely that damages for economic loss resulting from consequential mental harm should be recoverable only if the mental harm consisted of a recognised psychiatric illness, and that the applicable foreseeability test should be couched in the same terms as for pure mental harm.150 The legislation goes a little further, setting out a general statutory statement of the duty of care in cases of consequential mental harm equivalent to that for pure mental harm. As already noted at [2.280], the provisions on pure and consequential mental harm have been combined (except in Victoria). The effect of this change is to limit to some degree the well-recognised principle that in a case where a plaintiff suffers personal injury recovery can be had for all consequential harm, physical or mental.151 Hitherto, the law has not required mental harm of this kind to satisfy the recognisable psychiatric illness test, or any other special requirement. [2.330] Section 33 of the Civil Liability Act 2002 (NSW) and equivalent provisions in the other jurisdictions complete the implementation of the Ipp recommendation on consequential mental harm by providing that a court cannot make an award of damages for economic loss for consequential mental harm unless the harm consists of a recognised 146

Ipp Report para 9.28 and recommendation 34(c).

147

Discussed further at [10.170], [11.410]–[11.420].

148

In Hollier v Sutcliffe [2010] NSWSC 279. RA Hulme J rejected an argument that s 32 of the Civil Liability Act 2002 (NSW) only applied to pure mental harm.

149

See Kent v Mullally (No 2) [2016] WADC 37 at [67]–[68] per O’Neal DCJ. In Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321, Kourakis CJ at [3] said: “There is a significant difference between pure mental harm and consequential harm over and above the statutory distinction made by an inclusion of an additional criterion for the latter …. The difference arises out of the common human experience, which is also well known to courts in personal injury actions, that psychological and psychiatric conditions are not uncommon sequelae of physical injuries which require surgical intervention and/or interferes with working capacity or daily living activities.”

150 151

Ipp Report recommendation 37(a) and (b).

See [6.110]. On the effect of the legislation on claims for consequential mental harm, see Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [96] per Stanley J.

[2.350]

2 The Australian Law

45

psychiatric illness.152 This change is limited to cases where the plaintiff is seeking to recover damages for economic loss resulting from consequential mental harm. Suppose the plaintiff’s physical injuries are comparatively slight, but the resulting mental injuries, while not amounting to a psychiatric illness, prevent or delay the plaintiff’s return to work: in such a case these provisions will make a difference by barring damages for pecuniary loss that could have been awarded at common law. However, cases where consequential mental harm only results in the award of non-pecuniary damages will be unaffected. It seems clear that the change was viewed as one way to limit the size of damage awards in personal injury cases.153 Given the aims of the Ipp Report, this was perhaps understandable but nevertheless unfortunate. [2.340] The Report made two recommendations that did not require legislative action: that a panel of experts, including experts in forensic psychiatry and psychology, should be appointed to develop guidelines, for use in legal contexts, for assessing whether a person has suffered a recognised psychiatric illness,154 and that this panel should be instructed to develop options for a system of training and accreditation of forensic psychiatric experts.155 [2.350] This completes the survey of the legislation on mental harm that resulted from the recommendations in the Ipp Report. However, in many ways the most significant legislative provisions are those that were not recommended by the Report. Four of the six jurisdictions took the opportunity to enact additional provisions to limit the scope of liability for psychiatric injury as recognised by the High Court in Tame v New South Wales.156 Taking the legislation in New South Wales as an example, s 30 of the Civil Liability Act 2002 (NSW) is headed “Limitation on recovery for pure mental harm arising from shock”. Section 30(2) provides that: The plaintiff is not entitled to recover damages for pure mental harm unless – (a) the plaintiff witnessed, at the scene, the person being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.

This section applies to liability for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person being killed, injured or put in peril by the 152

Civil Law (Wrongs) Act 2002 (ACT), s 35(2); Civil Liability Act 1936 (SA), s 53(3); Civil Liability Act 2002 (Tas), s 35; Civil Liability Act 2002 (WA), s 5T. In Victoria, a court cannot make an award of damages for economic loss resulting from mental harm in any case (pure or consequential) unless the harm consists of a recognised psychiatric illness: Wrongs Act 1958 (Vic), s 75. 153

See Ipp Report para 9.39.

154

Ipp Report recommendation 33.

155

Ipp Report recommendation 38.

156

Tame v New South Wales (2002) 211 CLR 317.

46

Part I: Introduction

[2.360]

act or omission of the defendant.157 “Close member of the family” is defined.158 The plaintiff’s damages are reduced if the victim is guilty of contributory negligence,159 and eliminated if the recovery of damages would be prevented by any provision of common or statute law.160 [2.360] Additional limitations of this kind can also be found in the mental harm legislation in Tasmania, Victoria and South Australia161 — each different from New South Wales and from each other. This has been a most undesirable development. These provisions have restricted the principles of liability developed by the common law, so denying recovery to claimants previously thought deserving, but they have had another equally undesirable effect: Australian law is no longer uniform and has therefore become extremely complex. Except perhaps in Western Australia and the Australian Capital Territory, which resisted the temptation to impose extra restrictions, and in Queensland and the Northern Territory, where there is no mental harm legislation and the common law survives, the position in every jurisdiction is different. The additional limiting provisions in the four jurisdictions in question are studied in detail in another chapter.162 In two instances, they have already been the subject of examination by the High Court. In Wicks v State Rail Authority (NSW),163 the court gave a ruling on the interpretation of s 30 of the Civil Liability Act 2002 (NSW), reversing lower court decisions164 that held that two police officers who attended the scene of a train crash at Waterfall, south of Sydney, had not witnessed, at the scene, a person being killed, injured or put in peril. More recently, in King v Philcox,165 the High Court had to decide whether a plaintiff who drove past the scene of a fatal accident several times without realising that his brother was the victim was

157

Civil Liability Act 2002 (NSW), s 30(1).

158

Civil Liability Act 2002 (NSW), s 30(5).

159

Civil Liability Act 2002 (NSW), s 30(3). This provision resulted from a recommendation in the Ipp Report (recommendation 36) that in cases where the primary victim’s damages are reduced on the ground of contributory negligence the damages awarded to secondary victim mental injury sufferers should be reduced by the same proportion. New South Wales was the only State to implement this recommendation.

160 Civil Liability Act 2002 (NSW), s 30(4). There is a similar provision in Wrongs Act 1958 (Vic), s 73(3). 161 Civil Liability Act 2002 (Tas), s 32; Wrongs Act 1958 (Vic), s 73; Civil Liability Act 1936 (SA), s 53. 162

See [13.290]–[13.560].

163

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60, noted by P Handford (2010) 18 Tort L Rev 129. 164

Wicks v Railcorp [2007] NSWSC 1346; Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028, noted by P Handford (2010) 18 Tort L Rev 5.

165

King v Philcox (2015) 89 ALJR 582.

[2.380]

2 The Australian Law

47

“present at the scene of the accident when the accident occurred” as required by s 53 of the Civil Liability Act 1936 (SA).166 [2.370] Finally, three of the six jurisdictions — the Australian Capital Territory, New South Wales and Victoria — preserve the old provision, enacted in the wake of the decision in Chester v Waverley Corporation,167 under which plaintiffs are not debarred from recovering damages merely because the injury arose in whole or in part from mental or nervous shock.168 Curiously, the provision was not preserved in South Australia,169 but enacted in Tasmania which had not previously had such a provision.170 In the Northern Territory, which did not enact mental harm legislation, the provision remains in force.171

Interpretation [2.380] Courts have always been required to give effect to the intention of Parliament, but over the last 30 or 40 years there has been something of a shift of emphasis.172 Interpretation legislation mandates an approach preferring a construction that would promote the purpose or object of the statute to one that would not.173 A connected development is the increased attention given to the context of the legislation174 and the need to ensure coherence between common law and statutory rules.175 Under certain conditions, courts may now have regard to extrinsic materials,176 such as committee reports and second reading speeches; however, the High Court has emphasised the cardinal principle that the words of a Minister must not be substituted for the text of the law.177 166

The High Court reversed the decision of the Full Court of the Supreme Court of South Australia (Philcox v King (2014) 119 SASR 71), and restored the first instance decision: Philcox v King [2013] SADC 60. 167

Chester v Waverley Corporation (1939) 62 CLR 1: see [2.50].

168

Civil Liability Act 2002 (NSW), s 29; Civil Law (Wrongs) Act 2002 (ACT), s 33; Wrongs Act 1958 (Vic), s 23.

169

For the former provision see [2.50].

170

Civil Liability Act 2002 (Tas), s 31.

171

Law Reform (Miscellaneous Provisions) Act (NT), s 24.

172

For valuable short accounts of statutory interpretation principles in the context of the mental harm legislation, see Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [37]–[40] per Beazley JA; Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [75]–[80] per Stanley J.

173 Eg Acts Interpretation Act 1901 (Cth), s 15AA and equivalent provisions in State and Territory legislation. 174

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], [78] per McHugh, Gummow, Kirby and Hayne JJ.

175

See particularly Sullivan v Moody (2001) 207 CLR 562 at [55] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.

176

Eg Acts Interpretation Act 1901 (Cth), s 15AB and equivalent provisions in State and Territory legislation.

177

R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.

48

Part I: Introduction

[2.390]

[2.390] When it comes to the mental harm provisions, the second reading speeches are brief and do not provide much assistance.178 They have occasionally been referred to in the cases, but often in critical terms. For example, in Burke v New South Wales,179 the first case to discuss the New South Wales legislation, Master Malpass noted the statements in the second reading speech that the introduction of the legislation was a “triumph for common sense” and that most of the changes implemented or drew on the Ipp Report, commenting that despite what was said, most of what was enacted did not accord with the recommendations, and that it was common ground that the second reading speech afforded little assistance. McColl JA in Sheehan v State Rail Authority (NSW)180 also said it was difficult to understand the contention that the provisions followed the Ipp recommendations, and was critical of the statement of the trial judge that he had been assisted by the second reading speech in reaching his conclusion,181 referring to the High Court’s warning that it should not be substituted for the text of the law. The South Australian second reading speech fared no better in Anwar v Mondello Farms Pty Ltd:182 Stanley J was firm in his view that the Minister’s statement that the legislation for the most part restated the existing law was incorrect. Though second reading speeches have occasionally been referred to without criticism,183 the general view would seem to be that expressed by the High Court in Wicks v State Rail Authority (NSW)184 that extrinsic material provides no assistance in construing the legislative provisions.

Application [2.400] The date of commencement of the mental harm provisions in each jurisdiction is as follows: New South Wales — 6 December 2002; 178

See New South Wales, Parliamentary Debates (Legislative Assembly, 23 October 2002), 5767 (Bob Carr, Premier); Western Australia, Parliamentary Debates (Legislative Assembly, 20 March 2003), 5693 (Mark McGowan, Parliamentary Secretary); Australian Capital Territory, Parliamentary Debates (Legislative Assembly, 24 June 2003), 2248 (Jon Stanhope, Attorney General); Tasmania, Parliamentary Debates (House of Assembly, 24 June 2003) (Judy Jackson, Minister for Justice); South Australia, Parliamentary Debates (Legislative Council, 15 October 2003), 354 (Paul Holloway, Minister for Agriculture, Food and Fisheries); Victoria, Parliamentary Debates (Legislative Assembly, 30 October 2003), 1423 (John Brumby, Treasurer). 179

Burke v New South Wales [2004] NSWSC 725 at [58] per Master Malpass.

180

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [115], [152].

181

The trial judge, surprisingly in view of his comments in Burke v New South Wales [2004] NSWSC 725, was Malpass AJ: see Wicks v Railcorp [2007] NSWSC 1346.

182

Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [101].

183

Eg Philcox v King (2014) 119 SASR 71 at [60] per Sulan J; King v Philcox (2015) 89 ALJR 582 at [122] per Nettle J. Note also Harris v Commissioner of Social Housing [2013] ACTSC 186, where Master Harper at [214] made use of the Explanatory Statement to clarify the meaning of “recognised psychiatric illness”. The statement said that “Implementation of this provision will avoid what appear to be early signs of the courts developing a new head of damages for mere ‘sadness’”. 184

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [41] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

[2.420]

2 The Australian Law

49

Tasmania — 4 July 2003; Australian Capital Territory — 9 September 2003; Western Australia — 1 December 2003; Victoria — 3 December 2003; South Australia — 1 May 2004. [2.410] In some cases, the legislation contains express provisions dealing with its application in time. The most complex provisions are found in New South Wales. The mental harm provisions commenced on 6 December 2002, but applied to civil liability arising before the commencement date, unless proceedings had already been commenced in a court.185 However, s 30 of the Civil Liability Act 2002 (NSW) applied to proceedings commenced in a court on or after 3 September 2002.186 As respects the other jurisdictions, in the Australian Capital Territory ss 34 and 35 of the Civil Law (Wrongs) Act 2002 (ACT) do not apply to a claim based on a cause of action that arose before commencement.187 In Tasmania, the provisions do not apply to a cause of action that accrued before the commencement day.188 In Victoria, the provisions apply to negligence arising before, on or after the commencement day, except where proceedings were commenced in a court before the commencement day.189 In Western Australia, the legislation commenced on 1 December 2003, but applied only where the injury arose out of an incident happening on or after that day.190 In South Australia there are no express provisions in the Act. [2.420] The Ipp Report recommended that the proposed mental harm legislation should embody the principle that the rules about when a duty to take reasonable care to avoid pure mental harm arises are the same regardless of whether the claim for pure mental harm is brought in tort, in contract, under a statute (subject to express provision to the contrary) or any other cause of action.191 The legislation in New South Wales now contains express provisions to this effect;192 in Tasmania and Western Australia, the drafting is different but the result is the same.193 The 185

Civil Liability Act 2002 (NSW), Sch 1 item 6(1). For examples see Wagstaff v Haslam [2006] NSWSC 294, on appeal Wagstaff v Haslam (2007) 69 NSWLR 1 (assault on plaintiff’s husband on 3 May 2002); Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185 (drowning of plaintiffs’ son at a school camp in October 1999). In Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, which involved the abduction of a child on 29 September 1998, Smart AJ at [147] commented that the extent to which the legislation applied “may be a matter of debate”.

186

Civil Liability Act 2002 (NSW), Sch 1 item 6(2) (except in respect of a decision of the court made before the commencement of this clause).

187

Civil Law (Wrongs) Act 2002 (ACT), s 225(1).

188

Civil Liability Act 2002 (Tas), s 4(3).

189

Wrongs Act 1958 (Vic), s 78(1) and (2).

190

Civil Liability Act 2002 (WA), s 5R(3). Section 5R(4) deals with situations where it was not possible to ascertain whether the incident happened on or after the commencement day.

191

Ipp Report recommendation 35. The Report made a similar recommendation in respect of the general operation of the proposed civil liability legislation: recommendation 2.

192

Civil Liability Act 2002 (NSW), s 28(1).

193

Civil Liability Act 2002 (Tas), s 30; Civil Liability Act 2002 (WA), s 5R(2).

50

Part I: Introduction

[2.430]

recommendation made sense: it would be wrong to allow claimants to evade the policy that now governs tort recovery for mental harm by suing in contract or on a statutory cause of action such as the Trade Practices Act 1974 (Cth).194 Unfortunately, the legislation in most jurisdictions compromises the Ipp Report’s clear statement of principle, and complicates matters considerably, by creating exceptions where the mental harm provisions do not apply:195 these are generally references to the general exclusions from the civil liability legislation. There is no uniformity about these provisions, and the result is considerable complication. As an example, the provisions of the Civil Liability Act 2002 (NSW) are inapplicable in cases involving intentional acts and sexual assaults, dust diseases, injuries resulting from smoking, and actions under the Motor Accidents Act 1988 (NSW), the Motor Accidents Compensation Act 1999 (NSW) and the Workers Compensation Act 1987 (NSW),196 but the mental harm provisions apply to motor accidents nonetheless.197 [2.430] Another important issue is whether the provisions on mental harm are limited to cases of negligence or have a wider reach. This problem is not limited to the mental harm provisions but is a general issue for the Civil Liability Acts.198 In the Australian Capital Territory, New South Wales and Victoria, the mental harm provisions apply to claims for damages for mental harm resulting from negligence.199 In Tasmania they apply to claims for damages for mental harm resulting from a breach of duty,200 but duty is defined as a duty of care in tort, or a duty of care under contract that is co-extensive with a duty of care in tort, or another duty under statute or otherwise that is co-extensive with either 194

See G Dempsey and C Cappa, “Moving Far from the Familiar Coastline: Proposed Amendments to the Trade Practices Act and Damages for Mental Injury” (2004) 12 Tort L Rev 71. The Trade Practices Act 1974 (Cth) has now been re-enacted as part of the Australian Consumer Law, which is Sch 2 to the Competition and Consumer Act 2010 (Cth). 195

Civil Liability Act 2002 (NSW), s 28(3); Civil Liability Act 2002 (Tas), s 30; Wrongs Act 1958 (Vic), ss 68 – 69; Civil Liability Act 2002 (WA), s 5R(1). There is no equivalent provision in the Australian Capital Territory or South Australia.

196

Civil Liability Act 2002 (NSW), s 3B(1). Thus, the mental harm provisions do not apply to dust diseases claims: Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80. The applicability of the mental harm provisions to a workers’ compensation claim was in issue in Ireland v Garry Denson Metal Roofing Pty Ltd [2009] NSWSC 999. 197

Civil Liability Act 2002 (NSW), s 3B(2). In Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028, McColl JA at [84] noted that it was common ground that the mental harm provisions were applicable to the liability of the State Rail Authority for the consequences of a train derailment because this was a “motor accident” under the Motor Accidents Compensation Act 1999 (NSW) because “the train was a motor vehicle, being a vehicle built to be propelled by a motor that forms part of the vehicle”. 198

For example, in some jurisdictions the Civil Liability Acts have been drafted so as to apply to at least some cases of intentional wrongs: see P Handford, “Intention, Negligence and the Civil Liability Acts” (2012) 86 ALJ 100.

199

Civil Law (Wrongs) Act 2002 (ACT), s 35; Civil Liability Act 2002 (NSW), s 28 (with an exception for s 29); Wrongs Act 1958 (Vic), s 68. 200

Civil Liability Act 2002 (Tas), s 30 (with an exception for s 31).

[2.440]

2 The Australian Law

51

of these duties,201 and so the result is the same as in the other jurisdictions. However, there is an exception to the position as so far stated. Section 29 of the Civil Liability Act 2002 (NSW), providing that the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock, applies in any action for personal injury, and the equivalent provisions in the Australian Capital Territory and Victoria are similarly worded.202 (The Tasmanian provision, which applies in any civil proceedings for damages, is not all that different.203) This means that s 29 and its equivalents have a wider reach than the other mental harm provisions. In Wicks v State Rail Authority (NSW),204 the High Court commented: “Neither the purpose of s 29, nor the reason for the differential treatment of that provision in the specification by s 28 of the application of Pt 3, is immediately apparent.” History reveals the reason for the difference: these provisions are much older than the other mental harm provisions, having been enacted in the wake of Chester v Waverley Corporation205 to overcome the problem of Australian courts being bound by the decision in Victorian Railway Commissioners v Coultas.206 The original ambit wording was not altered when they were later incorporated into the mental harm provisions of the Civil Liability Acts. [2.440] As just discussed, the mental harm provisions in the Australian Capital Territory, New South Wales, Tasmania and Victoria are limited to negligence (in most cases). Western Australia and South Australia, however, are different. In Western Australia the mental harm provisions apply to any claim for personal injury damages for mental harm,207 and other Parts of the Civil Liability Act 2002 (WA) are expressed to apply to liability and claims for damages caused by the fault of a person.208 Admittedly, the application of these Parts of the Act to intention-based claims is limited by s 3A, which provides that they do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person, or an intentional act that is a sexual offence, or sexual conduct that is otherwise unlawful. However, there remains a possibility that at least some claims that can be brought under Wilkinson v Downton209 are caught by the Act, and so may be subject to the mental harm provisions — something that could not happen in the four jurisdictions referred to above. South 201

Civil Liability Act 2002 (Tas), s 3.

202

Civil Law (Wrongs) Act 2002 (ACT), s 33; Wrongs Act 1958 (Vic), s 23.

203

Civil Liability Act 2002 (Tas), s 31.

204

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [18] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 205

Chester v Waverley Corporation (1939) 62 CLR 1.

206

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.50].

207

Civil Liability Act 2002 (WA), s 5R(1).

208

Civil Liability Act 2002 (WA), ss 5A, 6(1).

209

Wilkinson v Downton [1897] 2 QB 57.

52

Part I: Introduction

[2.450]

Australia is different again. The Civil Liability Act 1936 (SA) applies to the determination of liability and the assessment of damages for harm arising from an “accident”.210 An “accident” is an incident out of which personal injury arises and includes a motor accident. “Motor accident” means an incident in which personal injury arises out of the use of a motor vehicle.211 There is nothing in these provisions to limit “accidents” to cases where personal injury was occasioned negligently rather than intentionally. The two sections dealing with mental harm appear in different Parts of the Act. Section 33, setting out the duty of care in cases of mental harm, is in Pt 6, entitled “Negligence”, which does not contain any express application provisions but is presumably limited to negligence, defined to mean failure to exercise reasonable care and skill.212 Section 53, which limits the situations in which damages can be recovered, is in Pt 8 dealing with personal injury damages, which applies where damages are claimed for personal injury arising from a motor accident (whether caused intentionally or unintentionally) or an accident caused by negligence or some other unintentional act or a breach of a contractual duty of care.213 There is no provision equivalent to s 3A of the Civil Liability Act 2002 (WA) excluding intentional wrongs from its ambit.

Relationship with the common law [2.450] Though the mental harm provisions were intended to be “a legislative statement of the current state of the common law about when a duty is owed to take care to avoid causing mental harm”, they do not supersede the common law. In Wicks v State Rail Authority (NSW),214 the High Court confirmed that the common law has a continuing role. [2.460] It will be recalled that the case involved a claim by two police officers who claimed to have suffered post-traumatic stress disorder and other psychiatric injuries as a result of their attendance at a major train disaster. They were among the first to arrive on the scene in response to a radio message, and were confronted by the wreckage of the train and dead and injured passengers. Overhead electrical cables had been torn down and were draped across the wrecked train, and it was not clear whether they were still live, meaning that it was not clear whether it was safe to go close to the wreckage. Both spent several hours at the site, entering damaged carriages, rescuing the injured and dealing with the dead. They brought actions in negligence against the State Rail Authority. It was agreed that issues of liability should be tried separately from damages, and that there were three questions in issue: 1. Whether the defendant owed the plaintiffs a duty of care; 210

Civil Liability Act 1936 (SA), s 4(1).

211

Civil Liability Act 1936 (SA), s 3.

212

Civil Liability Act 1936 (SA), s 3.

213

Civil Liability Act 1936 (SA), s 51.

214

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

[2.470]

2 The Australian Law

53

2. Whether, in the terms of s 30(2) of the Civil Liability Act 2002 (NSW), the plaintiffs witnessed, at the scene, victims of the derailment being killed, injured or put in peril; 3. Whether each plaintiff’s attendance at the derailment caused him to suffer a recognised psychiatric illness. The trial judge and the New South Wales Court of Appeal approached the case on the basis that it could be resolved by deciding the second issue, without going into questions of duty. It was held that neither plaintiff satisfied the requirements of s 30. However, the High Court was critical of this approach, holding that the issue of duty should have been resolved first, before dealing with questions of limitations on liability — in other words, that s 32 logically preceded s 30.215 Though the Court of Appeal had declined to decide the duty issue, the High Court said that it was open to the court to decide it, but in the end it remitted this question to the Court of Appeal, along with the question whether the appellants suffered a recognised psychiatric injury of which the respondent’s negligence was a cause.216 It then approved a different interpretation of s 30 from that adopted by the Court of Appeal majority, holding that PCs Wicks and Sheehan had witnessed, at the scene, persons being killed, injured or put in peril.217 [2.470] The High Court pointed out that s 32 was not a complete statement of the duty of care applying in mental harm cases, but that the common law still had a role to play: Consideration of the operation of s 32 (in particular sub-ss (1) and (2)) must begin from the observation that neither s 32 itself, nor any other provision of the Civil Liability Act (whether in Pt 3 or elsewhere), identifies positively when a duty of care to another person to take care not to cause mental harm to that other should be found to exist. Rather, like s 30(2), s 32(1) is cast negatively. It provides that a duty is not to be found unless a condition is satisfied. The necessary condition for establishment of a duty of care, identified by s 32(1), is that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. … Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this Court in Tame v New South Wales.218

Tame219 had held that in deciding whether a duty of care was owed, the central question was whether in all the circumstances the risk of 215

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [22], [32] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 216

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [33], [35], [55] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 217

See [13.370]–[13.380].

218

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [22], [24] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 219

Tame v New South Wales (2002) 211 CLR 317.

54

Part I: Introduction

[2.480]

sustaining a psychiatric injury was reasonably foreseeable. The majority had rejected various suggested pre-conditions to liability, including that such injury must be foreseeable to a person of normal fortitude. Contrary to this holding, the legislation provided that a duty of care was not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness. Thus, logically, the first question was whether there was a duty of care at common law; the next question was whether there was anything in s 30 that negatived such a duty.220 [2.480] As one would expect, subsequent cases have adopted the approach outlined by the High Court.221 Particularly notable is the judgment of Nettle J in King v Philcox,222 which has already been analysed in some detail.223 Having discussed the duty provision in s 33 of the Civil Liability Act 1936 (SA), and noting that it had to be understood against the background of the common law of negligence relating to psychiatric injury, his Honour proceeded to discuss the circumstances in which a duty of care arose at common law, concluding that a duty arose in the circumstances of the case — but that the limitations on the scope of liability in s 53 defeated Mr Philcox’s claim. [2.490] The result is a very interesting illustration of the way in which the common law and statute work together. Though logically, a statutory provision must prevail over the common law in a case of conflict, more often at the present day common law and statute work together and influence each other.224 The High Court has observed that “[t]he common law evolves in the orbit of statute”,225 and that there is a “symbiotic relationship”226 between the two. This has been particularly evident and

220

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [26], [31]–[32] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 221

See Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 at [186] per Curthoys DCJ; Philcox v King [2013] SADC 60 at [60] per Judge Bampton; Sklavos v Australian College of Dermatologists [2016] FCA 179 at [399]–[410] per Jagot J. Note also Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [85] per Stanley J.

222

King v Philcox (2015) 89 ALJR 582 at [75] et seq; note also at [28] per French CJ, Kiefel and Gageler JJ, at [32] per Keane J.

223

See [2.200]–[2.210].

224

See eg M Leeming, “Theories and Principles Underlying the Development of the Common Law – the Statutory Elephant in the Room” (2013) 36 UNSWLJ 1002; for an illustration see P Handford and B McGivern, “Two Problems of Occupiers’ Liability – Part One: The Occupiers’ Liability Acts and the Common Law” (2015) 39 MULR 128, especially at 136–138.

225

Roads and Traffic Authority v Royal (2008) 82 ALJR 870 at [93] per Kirby J.

226

Brodie v Singleton Shire Council (2001) 206 CLR 512 at [31] per Gleeson CJ.

[2.490]

2 The Australian Law

55

influential in the development of the law of negligence following the Civil Liability Act reforms.227

227

See P Stewart and A Stuhmcke, “The Rise of the Common Law in Statutory Interpretation of Tort Law Reform Legislation: Oil and Water or a Milky Pond?” (2013) 21 TLJ 126.

Chapter 3

The Law Elsewhere [3.10] INTRODUCTION ................................................................................................................. 57 [3.20] ENGLAND ............................................................................................................................. 58 [3.20] The Hillsborough cases ........................................................................................................ 58 [3.50] Page v Smith .......................................................................................................................... 62 [3.90] Primary and secondary victims ......................................................................................... 65 [3.240] The Law Commission Report ........................................................................................... 74 [3.300] Current position .................................................................................................................. 77 [3.340] CANADA ............................................................................................................................. 79 [3.440] NEW ZEALAND ................................................................................................................ 85 [3.530] SOUTH AFRICA AND SCOTLAND ............................................................................... 91 [3.540] South Africa ......................................................................................................................... 91 [3.560] Scotland ................................................................................................................................ 93 [3.590] The Scottish Law Commission Report ............................................................................ 95 [3.640] IRELAND ............................................................................................................................. 99 [3.690] SINGAPORE ...................................................................................................................... 103 [3.730] HONG KONG ................................................................................................................... 105 [3.760] UNITED STATES .............................................................................................................. 106

INTRODUCTION [3.10] The unity that once characterised the common law on liability for psychiatric injury has now disappeared. Just as the Australian courts (and legislatures) have now put their own distinctive stamp on this area, so leading cases in other jurisdictions have taken the law in different directions. Each country has reacted differently to the pressures to recognise a right to recover when faced with new situations, some attempting to contain that pressure by adhering firmly to a series of policy restrictions, others more prepared to expand the law to recognise deserving cases. There are now major differences between Australian, English and Canadian law, not only in approach but also as to where the boundary stone has been set. New Zealand is different again, as a result of its accident compensation legislation. Further variations can be seen in other common law countries, or countries influenced by the common law. In the United States there is no uniformity, and the States divide into various different groupings.

58

Part I: Introduction

[3.20]

ENGLAND The Hillsborough cases [3.20] The English courts, faced with a series of cases arising out of mass disasters, and in particular the Hillsborough football tragedy of 1989,1 have moved to hold the line against further expansion.2 On the occasion of the FA Cup semi-final between Liverpool and Nottingham Forest at the Hillsborough Stadium in Sheffield on 15 April 1989, 95 people were crushed to death and several hundred injured as the result of the negligence of police who had opened a gate at the Leppings Lane end of the ground and allowed two spectator pens (that were separated from other parts of the terraces and the pitch by wire fences) to become seriously overcrowded. All this took place in the sight of thousands present at the ground and millions watching on television. These tragic events gave rise to two House of Lords cases that together have set strict limits to liability for psychiatric damage in English law. [3.30] In the first case, Alcock v Chief Constable of South Yorkshire Police,3 the action was brought by 16 plaintiffs, all of whom, it was alleged, had suffered psychiatric injury through the fear that loved ones had been killed or injured. Sadly, in most cases their concerns turned out to be justified. Among the plaintiffs were a wife, a parent, a grandparent, a brother, a sister, an uncle, a brother-in-law, a fiancée and a friend. Some had been in the crowd, some saw it as it happened on television, others heard radio or television news broadcasts and some were told by third parties. These 16 plaintiffs4 were representative of some 150 others.5 In each case it was admitted for the purposes of the proceedings that the 1 Note also the cases arising out of the Piper Alpha disaster in 1988, in which 167 men were killed in an explosion on board a North Sea oil rig: McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 and Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 (dealt with at [9.490], [24.70]–[24.120]). The comparison with the Aberfan Pit disaster in Wales in 1966, in which 116 children and 28 adults died when a waterlogged coal tip collapsed onto a village school, is interesting — the only psychiatric injury case brought by a person who experienced the disaster, Crocker v British Coal Corporation (1995) 29 BMLR 159, is mainly concerned with limitation issues. Other cases have involved events such as the King’s Cross underground station fire in 1987, and the Herald of Free Enterprise disaster in Zeebrugge Harbour, also in 1987: see [10.130]. 2 For recent comment, see MA Jones, “Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle” in C Mitchell and P Mitchell, Landmark Cases in the Law of Tort (Hart Publishing, Oxford, 2010), p 113. See also A Sprince, “Negligently Inflicted Psychiatric Damage: A Medical Diagnosis and Prognosis” (1998) 18 LS 59; S Woollard, “Liability for Negligently Inflicted Psychiatric Illness: Where Should We Draw the Line?” (1998) 27 Anglo-Am LR 112; C Brennan, “Psychiatric Injury: A Deterrence Perspective” (2004) 20 PN 41. 3

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. This was only the third psychiatric injury case to reach the House of Lords, the earlier ones being Bourhill v Young [1943] AC 92 and McLoughlin v O’Brian [1983] 1 AC 410.

4 In the English Court of Appeal the number was reduced to 15, since the defendant did not appeal against the finding in favour of Mr William Pemberton (for reasons that are not stated in the law reports). Only 10 of the plaintiffs appealed to the House of Lords.

[3.30]

3 The Law Elsewhere

59

Chief Constable was in breach of a tortious duty of care owed to the primary victim and that each plaintiff had suffered psychiatric illness, and a causal link between that illness and the circumstances in which he or she became aware of the death or injury of the primary victim was assumed. The sole question in issue was whether the defendant owed any duty in tort to the plaintiffs to avoid causing the type of injury complained of. Hidden J at first instance was prepared to consider extending the accepted limits of liability and held that 10 of the plaintiffs (including some watching on television) had a good cause of action,6 but the English Court of Appeal adopted a more restrictive attitude, allowing the defendant’s appeal in each case.7 The House of Lords confirmed the decision of the Court of Appeal.8 Though the House of Lords showed an 5 Claims by some plaintiffs who were in the terraces, and “certain limited nervous shock cases”, were settled without admission of liability, under an order by Steyn J made on 20 December 1989: see L Steel, “Hillsborough Blues” (1990) 134 SJ 1340 at 1341. Actions for pre-death pain and suffering brought on behalf of the estates of three other victims of the disaster were rejected by Hidden J, the English Court of Appeal and the House of Lords: see Hicks v Chief Constable of the South Yorkshire Police (unreported, Eng QBD, 31 July 1990); Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690 (Eng CA); Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 (HL), dealt with at [6.180]. One plaintiff who brought a separate action for psychiatric injury was successful: see McCarthy v Chief Constable of South Yorkshire (unreported, Eng QBD, 11 December 1996), dealt with at [9.390]. Anthony Bland became the 96th fatality: he was rendered permanently unconscious as a result of his injuries, and doctors turned off his life support system in 1993 after the House of Lords had recognised the right of relatives to refuse treatment on his behalf: see Airedale NHS Trust v Bland [1993] AC 789. Another injured spectator, Andrew Devine, emerged from a coma eight years later: see “Hillsborough fan comes alive eight years on”, Birmingham Evening Mail, 26 March 1997. 6

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, sub nom Jones v Wright [1991] 1 All ER 353, noted by S Hedley [1991] CLJ 229. See also M Napier, “The Medical and Legal Trauma of Disasters” [1991] Medico-Legal Journal 157.

7

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, sub nom Jones v Wright [1991] 3 All ER 88. See J Cooke, “One Step Forward, Two Steps Back – Nervous Shock and the Hillsborough Disaster” (1991) 13 Liverpool LR 201 at 211.

8

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, noted by B Lynch (1992) 108 LQR 367; B McDonald (1992) 66 ALJ 386; S Hedley [1992] CLJ 16. See also M Davie, “Negligently Inflicted Psychiatric Illness: The Hillsborough Case in the House of Lords” (1992) 43 NILQ 237; KJ Nasir, “Nervous Shock and Alcock: The Judicial Buck Stops Here” (1992) 55 MLR 705; J Swanton, “Issues in Tort Liability for Nervous Shock” (1992) 66 ALJ 495; H Teff, “Liability for Psychiatric Illness after Hillsborough” (1992) 12 OJLS 440; H Teff, “The Hillsborough Football Disaster and Claims for “Nervous Shock”” (1992) 32 Med Sci Law 251. Criminal charges against the officers involved were dropped: see “Disaster charge dropped”, The Times, 14 January 1992, and a later private prosecution failed after the jury disagreed: see “Hillsborough jury fails to decide on police chief’s blame”, Daily Telegraph, 25 July 2000. However, there have been further developments in the last few years. Many official documents, including an independent report into the disaster, were published in 2012 (see “Hillsborough: The truth about the causes of the disaster”, The Guardian, 12 September 2012), and a new independent investigation was launched: see “Britain launches biggest probe into police over Hillsborough”, Reuters, 12 October 2012. The Attorney General, Dominic Grieve QC, applied to the High Court for a fresh inquest to be held, which opened on 1 April 2014, chaired by Goldring LJ: see “Tears at Hillsborough 96 roll call”, AAP, 1 April 2014. On 25 April 2016, the inquest found that those who had died in the disaster had been unlawfully killed: see “Hillsborough inquests jury rules 96 victims were unlawfully killed”,

60

Part I: Introduction

[3.40]

encouraging willingness to consider the closeness of the actual relationship, rather than arbitrarily limiting recovery to parents and spouses,9 it ruled out any question of a duty being owed to those who saw the disaster as it happened on television10 or learnt of it by any other means than personal perception at the accident scene or its aftermath.11 Further, it placed a narrow interpretation on the aftermath concept by holding that anyone who did not arrive at the accident scene or the hospital bed within two hours of the accident was too late12 — this, according to Lord Wilberforce in McLoughlin v O’Brian,13 being “upon the margin of what the process of logical progression would allow”. Two first instance decisions allowing recovery to parents told of the deaths of their sons were repudiated.14 [3.40] The second action, White v Chief Constable of South Yorkshire Police,15 was brought by six police officers who claimed to have suffered psychiatric injury as a result of their involvement.16 Three had been on duty at the ground, two others were summoned there in the aftermath of the disaster, and one was elsewhere, acting as liaison officer between the hospital and the casualty bureau and dealing with relatives, only going to the ground later. Some of those at the ground were involved in attempts to rescue and resuscitate the injured, others were on duty at the gymnasium being used as a temporary mortuary. Having refused the claims of the relatives, the courts were clearly reluctant to admit those of The Guardian, 27 April 2016. See generally P Scraton, Hillsborough: The Truth (Mainstream Publishing Projects, Edinburgh, 1999); HJ Hartley, Exploring Sport and Leisure Disasters: A Socio-Legal Perspective (Cavendish Publishing, London, 2001), especially Ch 6. Note also C Wells, Negotiating Tragedy: Law and Disasters (Sweet & Maxwell, London, 1995). 9

See [9.340]–[9.360].

10

See [11.790]–[11.810].

11

See [11.500].

12

See [10.240].

13

McLoughlin v O’Brian [1983] 1 AC 410 at 419. According to Brooke LJ in Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895 at [34], “It is clear, in my judgment, that in the later case of Alcock no member of the House of Lords regarded the actual decision in McLoughlin with anything other than reserved enthusiasm.”

14

Hevican v Ruane [1991] 3 All ER 65; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, reversed Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n.

15 16

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

52 police officers commenced proceedings against the Chief Constable and two other defendants. 15 abandoned their actions, and the defendants consented to judgment in the cases of a further 14 who went into the spectator pens and were actively involved in the removal of injured spectators. The six plaintiffs were selected from among the remainder for the trial, the purpose of which was to determine whether the defendants owed a duty of care to any of the plaintiffs. For this purpose, the defendants admitted that the police had been negligent and that the plaintiffs had suffered psychiatric damage. The issue of liability was tried against the first defendant only: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 466 per Lord Goff of Chieveley. DC Hallam did not appeal to the English Court of Appeal, and WPC Smith, the only plaintiff not to succeed in the Court of Appeal, did not appeal to the House of Lords. Another police officer’s claim was settled in 2001: see G Kelly, “Haunted by Hillsborough” (2001) 95(7) Irish Law Society Gazette 18.

[3.40]

3 The Law Elsewhere

61

the police officers. Waller J17 turned down the claims of all the plaintiffs, on the ground that the Chief Constable owed them no duty as their employer not to cause them psychiatric injury, and also by affirming something akin to the United States “firemen’s rule” under which professional rescuers should only recover in wholly exceptional circumstances. The English Court of Appeal,18 by majority, adopted a much more positive approach, holding that the defendant owed a duty to five of the six plaintiffs, in some cases because his responsibility as employer extended to the causing of psychiatric as well as physical injury, in others based on the duty owed to rescuers (repudiating Waller J’s professional rescuer doctrine). In the House of Lords,19 however, more conservative approaches prevailed. The majority rejected the employer argument20 and ruled that liability to rescuers was much narrower than previous decisions indicated.21 Lords Steyn and Hoffmann were both clearly concerned with the problem of expanding liability any further. Lord Steyn said that “we do not live in Utopia: we live in a practical world where the tort system imposes limits to the classes of claims that rank for consideration”,22 and that “the only general sensible strategy for the courts is to say thus far and no further”, leaving any expansion or development to Parliament.23 For Lord Hoffmann, “in this area of the law, the search for principle was called off in Alcock”, and their Lordships were “now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as a system of rules which is fair between one citizen and another”.24

17

Sub nom Frost v Chief Constable of South Yorkshire [1995] TLR 379. Mr Frost was not one of the six police plaintiffs by the time the case came to trial.

18

Sub nom Frost v Chief Constable of South Yorkshire Police [1998] QB 254, noted by NJ Mullany and PR Handford (1997) 113 LQR 410; H Teff (1997) 5 Tort L Rev 184; S Hedley [1997] CLJ 254. See L Dunford and V Pickford, “Nervous Shock: Another Opportunity Missed to Clarify the Law?” (1997) 48 NILQ 364. 19

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. The later pages of the Appeal Cases report, but not the title page, refer to the case as Frost v Chief Constable of South Yorkshire Police. Mr Frost thus came very close to being forever linked in the law reports with legal developments in which he played only a very minor role. For notes on the case, see D Mendelson (1999) 6 JLM 319; L Lomax and S Treece (1999) 7 Tort L Rev 207; S Todd (1999) 115 LQR 345. See also L Lomax and S Treece, “Liability to the Professional Rescuer: Who Pays?” (1999) 15 PN 139; WVH Rogers, “Psychiatric Trauma: “Thus Far and No Further” – In Fact Not Quite so Far as Hitherto” (1999) 7 TLJ 23; L Dunford and V Pickford, “Is There a Qualitative Difference between Physical and Psychiatric Harm in English Law?” (1999) 7 JLM 36.

20

See [19.340]–[19.350].

21

See [25.420]–[25.430].

22

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491.

23

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500.

24

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 511. In McFarlane v Tayside Health Board [2000] 2 AC 59, Lord Steyn at 83 commented that the principal theme of

62

Part I: Introduction

[3.50]

Page v Smith [3.50] In between the two Hillsborough cases, the House of Lords considered a rather different case involving the victim of a very minor road accident — Page v Smith.25 The defendant’s car collided with the plaintiff’s car when the defendant cut across the plaintiff’s path to enter a side road. The plaintiff did not sustain any bodily injury; neither did the defendant, nor his family who were passengers in his car. But for years the plaintiff had suffered from a condition called myalgic encephalitis or chronic fatigue syndrome, that manifested itself from time to time with varying degrees of severity. At the time of the accident, he was recovering from a particularly severe attack. Within hours of the accident he had suffered a relapse, and he alleged that as a result of the accident the condition became chronic and permanent and made it impossible for him to work again. On an orthodox approach to the case, assuming the plaintiff to be suffering from recognisable psychiatric injury,26 it would be necessary, looking at the defendant’s actions ex post facto,27 to establish that psychiatric injury of some kind was foreseeable to a person of ordinary fortitude. This was the approach adopted by the English Court of Appeal,28 overturning the first instance decision of Otton J in favour of the plaintiff, and by Lords Keith and Jauncey in the House of Lords, both of whom had given important judgments in Alcock v Chief Constable of South Yorkshire Police29 four years previously, when the House had restated the traditional approach of English law to psychiatric injury cases. the majority judgments was distributive justice: “Lord Hoffmann and I reasoned that it would be morally unacceptable if the law denied a remedy to bereaved relatives … but granted it to police officers who were on duty.” 25

Page v Smith [1996] AC 155, noted by NJ Mullany (1995) 3 JLM 112; P Handford (1996) 4 Tort L Rev 5; CA Hopkins [1995] CLJ 493; B McDonald and J Swanton (1995) 69 ALJ 945; F McManus [1996] Jur Rev 159; FA Trindade (1996) 112 LQR 22; J Thomson (1996) 112 LQR 383. See also A Sprince, “Page v Smith – Being “Primary” Colours House of Lords’ Judgment” (1995) 11 PN 124; KF Tan, “Nervous Shock to Primary Victims” [1995] Sing JLS 649; J Cooke, “Negligently Caused Psychiatric Injury: A Way Forward?” (1995) 17 Liverpool LR 153. For recent reflection on the case and its effects, see S Bailey and D Nolan, “The Page v Smith Saga: A Tale of Inauspicious Origins and Unintended Consequences” [2010] CLJ 495.

26

It was assumed that chronic fatigue syndrome was a psychiatric injury, but in fact there is considerable doubt about this. “Medical expert witnesses have described this illness as ‘an ill-defined condition with a range of symptoms including malaise, fatigue, headache and exhaustion’, ‘a disease of the whole person [which] cannot be defined as either physiological or organic’, and the aetiology of which is yet to be established”: D Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, Aldershot, 1998), p 270. See also R Mulheron, “Rewriting the Requirement for a “Recognized Psychiatric Injury” in Negligence Claims” (2012) 32 OJLS 77 at 91, 103–104.

27

That is, after the fact. “Foreseeability … involves a hypothetical person, looking with hindsight at an event which has occurred”: McLoughlin v O’Brian [1983] 1 AC 410 at 420. See also Lord Bridge of Harwich at 432.

28

Page v Smith [1994] 4 All ER 522. Note also Nicholls v Rushton (The Times, 19 June 1992), referred to by Hoffmann LJ at 552.

29

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[3.70]

3 The Law Elsewhere

63

[3.60] However, Lord Lloyd of Berwick, with the concurrence of two other members of the court,30 adopted an entirely new approach. Adopting (but subtly altering) a distinction between primary and secondary victims outlined by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police,31 Lord Lloyd said that where the plaintiff was a primary victim (that is, someone directly involved in the accident, and well within the range of physical injury32), all that was necessary was to show that personal injury of some kind was reasonably foreseeable.33 This approach was said to have the advantage of keeping the law up to date with medical science: In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.34

Lord Lloyd went on to state that other important rules did not apply in primary victim cases. One was the rule that the circumstances of the accident or event had to be viewed ex post facto, which made no sense in the case of a primary victim, where liability for physical injury depended on what was reasonably foreseeable before the event.35 Next were the control mechanisms that applied in secondary victim cases, where foreseeability of injury by shock was not enough, and the law for policy reasons imposed requirements such as proximity of relationship and proximity in time and space, and that the defendant should have foreseen injury by shock to a person of normal fortitude. None of these requirements, said Lord Lloyd, were needed in primary victim cases.36 [3.70] The result of all this was that it was enough to show that Mr Smith should have reasonably foreseen that Mr Page might suffer some physical injury as a result of his negligence (even if that physical injury would have been relatively minor). It was unnecessary to ask whether he should have foreseen physical injury by shock. The case was remitted to the English Court of Appeal for determination of the issue of causation (which had been left open, on the assumption that it was unnecessary to decide the issue, since it had been held that psychiatric 30

Lords Ackner and Browne-Wilkinson, who both contributed short judgments. Lord Ackner had also been a party to the decision in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

31

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see [3.90].

32

Page v Smith [1996] AC 155 at 184.

33

Page v Smith [1996] AC 155 at 187.

34

Page v Smith [1996] AC 155 at 188. In Laing Ltd v Essa [2004] EWCA Civ 2, Pill LJ at [41] and Clarke LJ at [56] and [64] were of the opinion that injury to feelings was the same kind of injury as psychiatric damage for the purposes of this test, but Rix LJ at [115] took the opposite view.

35

Page v Smith [1996] AC 155 at 188–189.

36

Page v Smith [1996] AC 155 at 189.

64

Part I: Introduction

[3.80]

injury was unforeseeable). The Court of Appeal subsequently resolved the causation issue in favour of the plaintiff.37 [3.80] Lord Lloyd’s judgment was the subject of in-depth analysis in the dissenting judgment of Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police,38 a cogent restatement of the orthodox approach. He labelled it “a remarkable departure from … generally accepted principles”39 and subjected it to sustained criticism of a kind rarely meted out by one Law Lord to another, before finally suggesting that Lord Lloyd’s strategy was to extend recovery by primary victims, not restrict it,40 and that much of what was said with regard to secondary victims was obiter.41 He specifically reaffirmed the previously accepted foresight test,42 and said that the requirements of reasonable fortitude and viewing with hindsight should continue to apply in all cases.43 Even among the majority judges in White, Page v Smith44 received a mixed reception. Lord Steyn accepted the distinction between primary and secondary victims,45 but Lord Hoffmann, who as a member of the English Court of Appeal in Page v Smith46 had affirmed orthodox principle, refused to commit himself.47 The third member of the majority, Lord Browne-Wilkinson, simply agreed with the reasons of the other two,48 so his view is not clear. However, since Lord Griffiths, who dissented on one issue, referred shortly to Page v Smith as “a sensible development of the law”,49 the case has survived, albeit by a rather slender thread. Certainly, subsequent decisions of the English Court of Appeal have accepted it as authoritative.50 37

Page v Smith (No 2) [1996] 1 WLR 855. See A Sprince, “Page v Smith (No 2) – The Saga Ends but the Questions Remain” (1996) 12 PN 80.

38

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

39

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 473.

40

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 480.

41

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 473–474. It has also been suggested that since it was physical injury that was foreseeable in Page v Smith [1996] AC 155, even in relation to primary victims Lord Lloyd’s comments about foreseeability of psychiatric injuries were obiter: see Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 468 per Judge Bursell QC. 42

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469–470, 476, referring to NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), pp 69–70, 230.

43

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 476–477.

44

Page v Smith [1996] AC 155.

45

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 496–497.

46

Page v Smith [1994] 4 All ER 522.

47

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 504.

48

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 462.

49

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 463.

50

See Vernon v Bosley (No 1) [1997] 1 All ER 577 at 604 per Evans LJ; Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 151 per Evans LJ; Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28 at 35–36 per Hutchison LJ; Leach v Chief Constable of

[3.100]

3 The Law Elsewhere

65

Primary and secondary victims [3.90] The judgment of Lord Oliver in Alcock v Chief Constable of South Yorkshire Police51 is an original and stimulating contribution to the psychiatric injury jurisprudence. Lord Oliver put forward the proposition that psychiatric injury cases are not all of one kind. It is customary to classify cases in which damages are claimed for injury occasioned in this way under a single generic label as cases of “liability for nervous shock”. This may be convenient but in fact the label is misleading if and to the extent that it is assumed to lead to a conclusion that they have more in common than the factual similarity of the medium through which the injury is sustained — that of an assault upon the nervous system of the plaintiff through witnessing or taking part in an event — and that they will, on account of this factor, provide a single common test for the circumstances which give rise to a duty of care. Broadly they divide into two categories, that is to say, those cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others. In the context of the instant appeals the cases of the former type are not particularly helpful, except to the extent that they yield a number of illuminating dicta, for they illustrate only a directness of relationship (and thus a duty) which is almost self-evident from a mere recital of the facts.52

[3.100] The older variety of nervous shock case, in which the plaintiff suffers shock through fear for his or her own safety,53 obviously belonged in the first category. The plaintiff is the primary victim and no other party is involved.54 The rescue cases,55 according to Lord Oliver, also belonged in this category, because “It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing.”56 Cases on liability to workmates57 also fell into this group, because “the defendant’s negligent Gloucestershire Constabulary [1999] 1 WLR 1421 at 1429 per Pill LJ; Bridges v P & NE Murray Ltd [1999] EWCA Civ 2280 at [47]–[51] per Otton LJ (the first instance judge in Page v Smith [1996] AC 155); Heil v Rankin [2001] QB 272 at [194] per Lord Woolf MR; Corr v IBC Vehicles Ltd [2007] QB 46 at [67] per Sedley LJ; Smith v Co-operative Group Ltd [2010] RTR 30 at [20]–[21] per Moore-Bick LJ. Note also A and B v Essex County Council [2003] 1 FLR 615 at [27] per Buckley J. 51

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 406–411.

52

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407. Note also the similar language adopted by Evatt J in Chester v Waverley Corporation (1939) 62 CLR 1 at 44–45.

53

Eg Dulieu v White & Sons [1901] 2 KB 669.

54

Lord Oliver also included cases where a person suffered shock on learning of the death of or an injury to another in an accident, and was directly involved in that accident as a victim, eg Schneider v Eisovitch [1960] 2 QB 430: see [11.90].

55

Eg Chadwick v British Railways Board [1967] 1 WLR 912: see [25.30]–[25.50].

56

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

57

Eg Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271: see [26.10]–[26.30].

66

Part I: Introduction

[3.110]

conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event.”58 [3.110] Other psychiatric damage cases, according to Lord Oliver, should be seen in a very different light: In those cases in which, as in the instant appeals, the injury complained of is attributable to the grief and distress of witnessing the misfortune of another person in an event by which the plaintiff is not personally threatened or in which he is not directly involved as an actor, the analysis becomes more complex. The infliction of injury on an individual, whether through carelessness or deliberation, necessarily produces consequences beyond those to the immediate victim. Inevitably the impact of the event and its aftermath, whether immediate or prolonged, is going to be felt in greater or lesser degree by those with whom the victim is connected whether by ties of affection, of blood relationship, of duty or simply of business. In many cases those persons may suffer not only injured feelings or inconvenience but adverse financial consequences as, for instance, by the need to care for the victim or the interruption or non-performance of his contractual obligations to third parties. Nevertheless, except in those cases which were based upon some ancient and now outmoded concepts of the quasi-proprietorial rights of husbands over their wives, parents over their children or employers over their menial servants, the common law has, in general, declined to entertain claims for such consequential injuries from third parties save possibly where loss has arisen from the necessary performance of a legal duty imposed on such party by the injury to the victim.59

[3.120] What factors marked out the cases in which secondary victims who suffer psychiatric damage should be granted a right of action? Lord Oliver rejected appeals to logic; nor, he said, could it be viewed as a matter of foreseeability, since the consequences for secondary victims were not beyond the bounds of foresight; nor could it be attributed to “some arbitrary but unenunciated rule of ‘policy’ which draws a line as to the outer boundary of the area of duty”.60 The only possible conclusion was that such persons were not, in contemplation of law, in a relationship of sufficient proximity or directness with the tortfeasor to give rise to a duty of care. The problem was to identify why, when the law in general declined to compensate anyone other than the primary victim, it should make an exception in cases where the plaintiff suffers a particular kind of injury (that is, psychiatric injury arising from shock) through witnessing the injury to the primary victim or its immediate aftermath. Lord Oliver was driven to conclude that: The answer has, as it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of “proximity” between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of “proximity” is an artificial one which 58

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

59

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408–409.

60

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 410.

[3.140]

3 The Law Elsewhere

67

depends more upon the court’s perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction.61

In his view, the present state of the law was not satisfactory or logically defensible.62 [3.130] In Page v Smith,63 Lord Lloyd of Berwick purported to adopt Lord Oliver’s distinction between primary and secondary victims;64 but he attached consequences to it, in the form of different rules applying to the two categories of case, that were wholly absent from Lord Oliver’s original judgment. Moreover, his judgment subtly confines the primary victim category within narrower limits than envisaged by Lord Oliver.65 This judgment has had most unfortunate results for English psychiatric damage law. [3.140] Lord Lloyd began by drawing a distinction between the plaintiffs in Alcock v Chief Constable of South Yorkshire Police66 and the claimant in the case before the court. He said: In all these cases the plaintiff was the secondary victim of the defendant’s negligence. He or she was in the position of a spectator or bystander. In the present case, by contrast, the plaintiff was a participant. He was himself directly involved in the accident, and well within the range of foreseeable physical injury. He was the primary victim. This is thus the first occasion on which your Lordships have had to decide whether, in such a case, the foreseeability of physical injury is enough to enable the plaintiff to recover damages for nervous shock.67

He quoted the passage from Lord Oliver’s judgment quoted at [3.90] in which his Lordship explained the distinction between primary and secondary victims, but he then gave that distinction an importance that Lord Oliver, it seems clear, never intended. He said that the distinction, though a factual one, had important legal consequences,68 which he proceeded to spell out: foreseeability of psychiatric injury, viewing ex post facto, controls based on relationship and proximity, and foreseeability to a person of normal fortitude were all unnecessary in primary victim cases.69 61

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411.

62

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418.

63

Page v Smith [1996] AC 155.

64

Lord Lloyd also referred to an earlier recognition of the division between primary and secondary victims by Lord Russell of Killowen in Bourhill v Young [1943] AC 92 at 101: Page v Smith [1996] AC 155 at 184.

65

According to Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 472, Lord Oliver did not attempt to define what was meant by a primary victim, but simply identified three categories of case. 66

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

67

Page v Smith [1996] AC 155 at 184.

68

Page v Smith [1996] AC 155.

69

Page v Smith [1996] AC 155 at 184, 187–189: see [3.60].

68

Part I: Introduction

[3.150]

[3.150] There was no warrant for imposing any of these distinctions, either in the judgment of Lord Oliver or in previous authority.70 In respect of each point, Lord Lloyd was outlining a wholly new approach. His judgment has had two important consequences. First, by imposing different rules for primary and secondary victims, Lord Lloyd has created a situation in which it is advisable for plaintiffs to get their cases into the primary category if they possibly can. Secondly, that pressure has been intensified by the fact that the primary category as delimited by Lord Lloyd is in fact much narrower than Lord Oliver’s original concept. For Lord Oliver, a primary victim was simply a participant rather than a witness. Lord Lloyd, however, referred to persons who are “directly involved in the accident, and well within the range of foreseeable physical injury”,71 thus emphasising one particular form of participation: presence within the zone of physical danger created by the defendant’s negligence.72 Those in Lord Oliver’s other categories — rescuers, and those who unwillingly become part of the cause of another’s injury — will almost certainly be outside the danger zone. [3.160] Subsequent decisions have highlighted the difficulties caused by the need to determine whether plaintiffs come within the primary category as defined by Lord Lloyd.73 In the second Hillsborough case, much energy was expended in the lower courts in deciding whether the police officers who suffered psychiatric illness as a result of their involvement were primary or secondary victims. Waller J at first instance held that they were all secondary victims unless they qualified as rescuers.74 The majority judges in the English Court of Appeal took a different view, deciding that five of the six plaintiffs came within the primary category, two as rescuers, two as employees and one in both capacities.75 Rose and Henry LJJ both expressed considerable doubt whether it was necessary or desirable to go through this classification process, and Henry LJ pointed to the differences between the tests adopted by Lords Oliver and Lloyd.76 Judge LJ, however, in his dissenting judgment, followed Page v Smith77 and held that all the 70

See [7.450]–[7.510].

71

Page v Smith [1996] AC 155 at 184.

72

Note Bici v Ministry of Defence [2004] EWHC 786 (QB): the second claimant, who was travelling in a car with the first claimant when the first claimant was shot, was clearly a primary victim under this principle.

73

See C Hilson, “Nervous Shock and the Categorisation of Victims” (1998) 6 Tort L Rev 37; C Hilson, “Liability for Psychiatric Injury: Primary and Secondary Victims Revisited” (2002) 18 PN 167; LL Luh and SHS Leong, “Nervous Shock, Rescuers and Employees – Primary or Secondary Victims?” [1998] Singapore JLS 121.

74

Frost v Chief Constable of South Yorkshire Police [1995] TLR 379.

75

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

76

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 264–267 per Rose LJ, at 271–279 per Henry LJ.

77

Page v Smith [1996] AC 155.

[3.170]

3 The Law Elsewhere

69

plaintiffs were secondary victims.78 When the case was appealed to the House of Lords,79 the majority judges said very little about the primary/secondary categorisation issue: only Lord Steyn unequivocally asserted that primary victims had to be within the range of foreseeable physical injury and that all other victims were secondary victims.80 [3.170] Around the same time, the English Court of Appeal heard three cases dealing with whether workers present at the scene of an accident were primary or secondary victims. Probably the most hardline of the three was Hunter v British Coal Corporation,81 where the plaintiff struck a hydrant while using his vehicle for excavation, and rushed off to get help, leaving a fellow-worker to try to close the valve and stem the flow of water. Ten minutes later, when the plaintiff was 30 metres away, the hydrant burst and killed the other worker. The plaintiff believed that he was responsible for the death. By a majority, the court ruled that he was not a primary victim because he was not present at the accident and only suffered psychiatric injury when told of the death 15 minutes later. Hobhouse LJ, who dissented, held that the plaintiff was a primary victim by virtue of his physical participation in what happened, causing him to believe that he had caused the death of a fellow-worker. In Young v Charles Church (Southern) Ltd,82 the court held that a construction worker could recover damages for psychiatric illness suffered as a result of witnessing the electrocution of a colleague from a distance of 6 to 10 feet. Evans LJ held that the plaintiff was a primary victim, whether the category was defined in terms of participation or being at risk of foreseeable physical injury. Hobhouse LJ on the other hand held that the plaintiff failed the primary victim test, because he was the observer of a traumatic injury suffered by another, rather than fearing for his own safety, but found an alternative duty owed to him as an employee. Hutchison LJ agreed with Evans LJ that the plaintiff was a primary victim, but said he could also succeed on the employment ground. In Chief Constable of West Yorkshire Police v Schofield,83 all the judges agreed that a police officer who developed post-traumatic stress disorder when a fellow-officer in her presence suddenly discharged a confiscated firearm

78

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 284–293.

79

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

80

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497. Note Campbell v North Lanarkshire Council [1999] ScotCS 163 at [42], where Lord Reed suggested that the difference between the opinions of Lord Steyn and Lord Hoffmann was that Lord Steyn attempted an exhaustive definition of primary victims whereas Lord Hoffmann did not.

81

Hunter v British Coal Corporation [1999] QB 140, noted by NJ Mullany (1999) 115 LQR 30.

82

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146. Note the comments of Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 481–482. 83 Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28, noted by NJ Mullany (1999) 115 LQR 30.

70

Part I: Introduction

[3.180]

six times was a primary victim, even though she testified that she did not fear any personal danger. It is hard to discern a uniform thread running through these three cases. [3.180] The English Court of Appeal was confronted with a somewhat different problem in Donachie v Chief Constable of the Greater Manchester Police.84 It was necessary to decide whether the claimant was a primary victim at risk of foreseeable physical injury, so that the doctrine of Page v Smith85 applied, or a person at risk of foreseeable psychiatric injury due to work stress.86 The claimant was a police officer who was required to attach a tagging device to the underside of a car believed to belong to a gang of criminals. The car was parked in a street behind a pub where the gang were drinking. Unfortunately, this particular tagging device failed to function, and Mr Donachie had to make two battery replacements and seven further trips to the car before the device began working, and each time the risk of being caught in the act by the gang escalated. He became increasingly frightened, which aggravated his pre-existing hypertension and caused a rise in blood pressure that led to him suffering a stroke. The trial judge applied the work stress guidelines and held that psychiatric injury was not reasonably foreseeable. On appeal, however, the Court of Appeal ruled that the trial judge was bound by Page v Smith: once the trial judge had found that there was a risk of physical injury, the claimant was a primary victim within the rule laid down by Lord Lloyd, and the work stress test was not applicable. [3.190] In the pre-Page v Smith87 case of McFarlane v EE Caledonia Ltd,88 Stuart-Smith LJ in the English Court of Appeal distinguished between cases where the plaintiff was in the actual area of danger but escaped physical injury by chance or good fortune, and those who were not actually in danger, but because of the sudden or unexpected nature of events reasonably believed that they were. In the first case the plaintiff would now be able to rely on the Page v Smith foresight test, but the status of those in the second category is not certain. McFarlane involved a worker on board a support vessel who suffered psychiatric illness as a result of viewing the Piper Alpha oil rig fire. He failed to qualify under either category. However, in a second case brought by another man on board the same vessel, Hegarty v EE Caledonia Ltd,89 the English Court of Appeal accepted that the plaintiff fell into the second category but held that his fears were not reasonable. As Brooke LJ said, this involved the proposition that during a particular period Mr Hegarty ceased to be a passive onlooker and became a participant, which “gives an indication of 84

Donachie v Chief Constable of the Greater Manchester Police [2004] EWCA Civ 405.

85

Page v Smith [1996] AC 155.

86

Requiring the court to apply the rules relating to liability for work stress outlined in Hatton v Sutherland [2002] ICR 613: see [20.600].

87

Page v Smith [1996] AC 155.

88

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

89

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259.

[3.210]

3 The Law Elsewhere

71

the difficulties that may arise in the present state of English law if the same person is to be treated as both a primary and a secondary victim in relation to the same occasion”.90 [3.200] These are just a few of the cases in which the classification debate sparked off by Page v Smith91 has caused controversy in an employment context.92 It has also occasioned considerable debate in other areas, for example medical cases, particularly those involving accidents during the birth process, raising the question whether the mother and the father are merely secondary victims, or whether the mother (and even the father) can be put in the primary victim category.93 It has even been hinted that liability for communication of distressing news may turn on whether the plaintiff is a primary or secondary victim.94 There may also be other instances.95 [3.210] However, more recent pronouncements by the House of Lords suggest that their Lordships may perhaps be prepared to revisit the issue of Page v Smith96 when occasion arises. The matter was considered in W v Essex County Council97 in the context of an application to strike out a claim by parents of young children abused by a 15-year-old boy placed with the parents in foster care by the local authority. It was argued that the parents could not be primary victims unless they were participants and well

90

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 265. The Court of Appeal tried to reconcile Lord Lloyd’s and Lord Oliver’s definitions by holding that a primary victim was either directly involved in the accident and well within the range of foreseeable physical injury, or involved as a participant and feared for his or her own safety. However, this addition would exclude the police officers at Hillsborough and many in the involuntary participation category: Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), para 2.58.

91

Page v Smith [1996] AC 155.

92

See also Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421; Hatton v Sutherland [2002] ICR 613 at [19]–[20] per Hale LJ. 93

See cases dealt with at [22.290]–[22.560], particularly Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389; Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158; McLelland v Greater Glasgow Health Board 2001 SLT 446; Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458; Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227.

94

See AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 at 99 per Brooke LJ: see [28.220].

95

Note also McLoughlin v Jones [2002] QB 1312, another decision of Brooke LJ, suggesting that the primary and secondary victim division and other aspects of Page v Smith apply not only where the claimant is within the zone of physical danger but also in other cases where the claimant can be regarded as a primary victim, such as where the relationship between the parties is founded on contract. See [18.120]–[18.140]. The wider implications of the primary and secondary victim distinction are discussed by R Mulheron, “The “Primary Victim” in Psychiatric Illness claims: Reworking the “Patchwork Quilt”” (2008) 19 KLJ 81.

96

Page v Smith [1996] AC 155.

97

W v Essex County Council [2001] 2 AC 592.

72

Part I: Introduction

[3.220]

within the range of foreseeable physical injury. It was held that the claim should not be struck out. Lord Slynn of Hadley, giving the judgment of the court, said: Is it clear beyond reasonable doubt that the parents cannot satisfy the necessary criteria as “primary” or “secondary” victims? As to being primary victims it is beyond doubt that they were not physically injured by the abuse and on the present allegations it does not seem reasonably foreseeable that there was risk of sexual abuse of the parents. But the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed. It is a concept still to be developed in different factual situations.98

[3.220] The question of Page v Smith99 has also arisen in the context of “fear for the future” claims — claims where a present psychiatric condition has been caused by fear and worry of future consequences. In a first instance decision, Morland J rejected an argument that Page v Smith should be extended to plaintiffs who had claimed damages for psychiatric illness caused by fear of Creutzfeldt-Jakob Disease, on the ground that their injury was not the direct result of a sudden shocking injury compressed into a short space of time.100 In Rothwell v Chemical & Insulating Co Ltd both the English Court of Appeal101 and the House of Lords102 adopted a similar approach to a claim by a worker who had developed pleural plaques as a result of exposure to asbestos and had suffered a psychiatric illness in consequence of being told that this indicated a significant exposure to asbestos and the risk of future damage. The Court of Appeal was of course bound by Page v Smith, but the House of Lords was invited to depart from the decision. Lord Hoffmann did not think it would be right to do so, saying it did not appear to have caused any practical difficulties and was not likely to do so if confined to the kind of situation the majority judges had in mind — “a foreseeable event (a collision) which, when viewed in prospect, was such as might cause physical injury or psychiatric injury or both”.103 Other judges were more critical, Lord Mance for example saying that he saw some force in the criticisms that had been levied against the decision, and that he was not confident that it did not cause uncertainty and argument, as in the instant case.104 However, their Lordships were able to distinguish the case, and

98

W v Essex County Council [2001] 2 AC 592 at 600–601. Note also AC v Cabin Hill School [2005] NIQB 45.

99

Page v Smith [1996] AC 155.

100

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161: see [29.150]–[29.210]. 101

Rothwell v Chemical & Insulating Co Ltd [2006] ICR 1438.

102

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281: see [29.380]–[29.420].

103

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [32].

104

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [104].

[3.230]

3 The Law Elsewhere

73

Lord Mance, like Lord Hope of Craighead,105 preferred to leave open the correctness of Page v Smith for another day. [3.230] Fortunately, other legal systems have in the main resisted the temptation to adopt the primary and secondary victim classification and the other doctrines introduced into English law by Lord Lloyd. Australia has led the way: the High Court and intermediate appeal courts such as the New South Wales Court of Appeal have made it clear that Page v Smith106 forms no part of Australian law,107 which affirms the orthodox approach as represented by the dissenting judgment of Lord Goff in White v Chief Constable of South Yorkshire Police108 and the judgment of Hoffmann LJ in the English Court of Appeal in Page v Smith.109 This means that the isolated instances in which Australian judges have paid some attention to the decision110 can safely be ignored.111 However, it should be noted that one Australian judge has reflected on the possibility 105

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [52]. Note also Corr v IBC Vehicles Ltd [2006] PIQR P11 where a man injured in an accident at work committed suicide six years later. His wife, representing his estate, claimed that Page v Smith meant that the defendants were liable for the psychiatric injury which resulted from the original accident and for the eventual suicide. At first instance, Nigel Baker QC, sitting as a judge of the Queen’s Bench Division, had held that Page v Smith could not be used to bypass the question of foreseeability of the type of loss; the claimant’s argument, he said, “ignores the effect of The Wagon Mound [and] seems to me to revert to Re Polemis and the direct consequences test” (at [30]). However, the claimant succeeded on appeal in the English Court of Appeal (Corr v IBC Vehicles Ltd [2007] QB 46) and the House of Lords (Corr v IBC Vehicles Ltd [2008] AC 884), though there was no direct criticism of the quoted statement. Lord Neuberger of Abbotsbury at [55] said that the decision was not based on the assumption that Page v Smith was correctly decided. 106

Page v Smith [1996] AC 155.

107

See Tame v New South Wales (2002) 211 CLR 317 at [93] per McHugh J; Morgan v Tame (2000) 49 NSWLR 21 at [10]–[20] per Spigelman CJ, at [121] per Mason P; AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [115] per Heydon JA. Note also Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [41], [67] per Gillard J, referring to Page v Smith but stating the orthodox test.

108

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

109

Page v Smith [1994] 4 All ER 522 at 549.

110

Eg Cleary v Congregation of the Sisters of the Holy Family at Nazareth (unreported, Qld SC, No 1066 of 1995, 23 December 1996), where Lee J held that a nurse predisposed to psychiatric injury who (erroneously) believed that she was about to be raped by an elderly frail patient who had fallen and clutched hold of her could recover for resulting depressive illness. Counsel for the defendant wrongly assumed that the Queensland Supreme Court was bound by Page v Smith, and that the defendant’s admission of liability for some of the plaintiff’s physical injuries meant that he had to concede liability for all physical and psychiatric injuries. Note also the ambiguous statements of Lee J in FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,499.

111

Note Reynolds v State Government Insurance Commission (unreported, SA SC, No 2553 of 1988, 27 February 1990), where the facts were similar to Page v Smith, in that the plaintiff alleged that a minor car accident resulted in a psychiatric condition. Liability was denied on the grounds of lack of causation. In Newpart v Kelly (unreported, Qld SC, No 43 of 1997, 15 April 1999), the facts again involved a minor road accident, but this caused the plaintiff to suffer whiplash injury as well as a psychiatric condition. The defendant admitted liability, but might not have done so had there been no physical injury.

74

Part I: Introduction

[3.240]

of distinguishing between primary and secondary victims for a different purpose — the damage that needs to be proved. It seems that Wright J in Wilson v Horne112 was initially attracted to the idea that it might be possible to relax the recognisable psychiatric illness requirement for primary victims while retaining it for secondary victim claims, but realised that at the end of the day the distinction could not be supported. Such a distinction would at least be more rational than any of those introduced into English law by Lord Lloyd in Page v Smith.

The Law Commission Report [3.240] English law following the House of Lords decision in Alcock v Chief Constable of South Yorkshire Police113 was widely perceived to be in an unsatisfactory state. This decision caused the Law Commission of England and Wales to extend its examination of personal injury damages to include liability for psychiatric illness. Page v Smith114 was decided during the early stages of its inquiry, complicating the problems the Commission had to confront. The Commission published a discussion paper in 1995115 and submitted its report in 1998.116 [3.250] The Law Commission refrained from recommending a comprehensive codification of the law on negligently inflicted psychiatric illness. Instead, it decided to pursue a policy of “minimal legislative intervention curing serious defects in the present law but otherwise leaving the common law to develop”.117 The most fundamental requirements of the common law were to remain unchanged, and would be incorporated in the recommended legislative provisions. These included the need for a recognisable psychiatric illness,118 and for reasonable foreseeability of psychiatric illness as an essential element in 112

Wilson v Horne (1999) 8 Tas R 363 at [26].

113

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

114

Page v Smith [1996] AC 155.

115

Law Commission, Liability for Psychiatric Illness: A Consultation Paper (No 137, 1995). For a summary of the provisional recommendations, see A Burrows, “Liability for Psychiatric Illness: Where should the Line be Drawn?” (1995) 3 Tort L Rev 220. For comment, see K Wheat, “Law Commission Consultation Paper No 137 – Liability for Psychiatric Illness” [1995] 2 Web JCLI; MA Jones, “Liability for Psychiatric Illness – More Principle, Less Subtlety?” [1995] 4 Web JCLI, also published in Web JCLI Year Book 1995 at 258; V Pickford and L Dunford, “Nervous Shock under English Law: Neither Satisfactory nor Logically Defensible?” (1996) 4 JLM 176. 116 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998). See NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350; KF Tan, “Liability for Psychiatric Illness – The English Law Commission” (1999) 7 Tort L Rev 165; H Teff, “Liability for Psychiatric Illness: Advancing Cautiously” (1998) 61 MLR 849. See also PR Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 435–442. 117 118

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), para 4.1.

The Commission was not in favour of a legislative definition of this term: Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 2.

[3.260]

3 The Law Elsewhere

75

establishing a duty of care.119 However, the latter recommendation was qualified: the Commission also recommended that the proposed legislation should not overturn the rule laid down in Page v Smith120 that reasonable foreseeability of psychiatric illness was not required where physical injury to the plaintiff was reasonably foreseeable.121 This was a somewhat conservative recommendation in view of the Commission’s generally reserved approach to Page v Smith.122 The Commission recommended two general reforms of major importance. One was that it should no longer be a condition of liability that psychiatric illness should be caused by a sudden shock.123 The other was that it should no longer be a bar to liability that the illness result from the death injury or imperilment of the defendant rather than a third person.124 [3.260] The major legislative reforms recommended by the Commission were confined to the standard secondary victim situation where the defendant has injured or imperilled someone other than the plaintiff and as a result the plaintiff has suffered psychiatric injury — identified as the “core area for legislative reform”.125 The Commission recommended that the proposed legislation should provide that in cases where a person suffered psychiatric illness as a result of the death, injury or imperilment of a person with whom there was a “close tie of love and affection”, damages should be recoverable regardless of the plaintiff’s closeness in time or space to the accident or its aftermath or the means by which the plaintiff learns of it.126 The bond between the parties was the only control that was required. The Commission proposed that there should be a fixed list of relationships where a close tie of love and affection should be deemed to exist: spouses, parents, children, siblings and cohabitants. Claimants in a relationship with the victim other than those falling within the fixed categories would be required to prove the existence of the necessary bond.127 In addition to the standard situation where one person suffered psychiatric injury as the result of the death, injury or endangerment of another by a third person, it was recommended that 119

At least where the plaintiff was outside the area of reasonably foreseeable physical injury: Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 3.

120

Page v Smith [1996] AC 155.

121

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 4. 122

See [3.270].

123

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 7. 124 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 8. 125

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), Pt VI.

126

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 11. 127 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendations 13 and 14.

76

Part I: Introduction

[3.270]

these proposals should cover the situation where the immediate victim was the defendant.128 In other areas, the Commission recommended that no legislative change was necessary and that the law should continue to be developed by the judges.129 [3.270] Some recommendations were directed to the judges rather than Parliament. The Commission suggested that while in applying the test of reasonable foreseeability of psychiatric illness it might be helpful to continue to assume that the plaintiff is a person of reasonable fortitude, this assumption should be regarded merely as an aspect of the standard approach to reasonable foreseeability applied in cases of physical injury130 — an approach generally similar to that which the Australian High Court was later to adopt in Tame v New South Wales.131 The Commission also inclined to the view that in secondary victim cases the reasonable foreseeability of the plaintiff’s psychiatric illness should not always be judged with hindsight, and that, in particular, in assessing whether the psychiatric illness was a reasonably foreseeable consequence of the defendant’s conduct, the court should consider whether the harm or imperilment to the immediate victim was, judged prior to the accident, reasonably foreseeable.132 The most important of these recommendations, that courts should abandon attaching practical significance to whether the plaintiff is a primary or secondary victim,133 clearly reflected the Law Commission’s view that Page v Smith134 had produced unwanted complexities and was not a desirable development. [3.280] The Commission recommended that these new statutory duties of care should replace the common law duty of care to the extent that the two would overlap.135 The aim of this proposal was to reduce complexity and uncertainty, and to prevent plaintiffs needlessly framing their actions under both common law and statute.136 The Commission specifically recommended that where there was no overlap with the proposed new statutory duties of care, the common law duty of care should continue to 128

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 12. 129 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendations 20–26. 130 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 6. 131

Tame v New South Wales (2002) 211 CLR 317.

132

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 5. 133

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 9. 134

Page v Smith [1996] AC 155.

135

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 28. 136

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), para 8.5.

[3.300]

3 The Law Elsewhere

77

exist, and that none of its legislative proposals should be construed as impeding the judicial development of the common law duty of care in relation to psychiatric illness.137 [3.290] In 2007 the United Kingdom Department of Constitutional Affairs announced that the Government had rejected the Commission’s recommendations, considering it preferable to allow the courts to continue to develop the law rather than attempt to impose a statutory solution.138 This recommendation was influenced by the decision and views expressed by the House of Lords in White v Chief Constable of South Yorkshire Police,139 decided after the appearance of the report; the Department also expressed the view that “it appears from subsequent case law that the courts are interpreting the requirements established in Alcock in a flexible and sensitive way”.140 It is easy to agree that it is preferable for the courts to develop the common law rather than resort to legislation; the Australian experience affords ample proof of this. However, recent case law suggests that the flexible and sensitive development has not progressed very far, and that English law is likely to remain bound by the limitations and distinctions approved by the 1990s trilogy of House of Lords cases.141

Current position [3.300] A good indicator of the current approach of English courts is the Court of Appeal decision in Taylor v A Novo (UK) Ltd.142 The claimant’s 137 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 27. 138

Department for Constitutional Affairs, The Law on Damages (Consultation Paper CP 9/07, 2007), para 94.

139

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

140

Department for Constitutional Affairs, The Law on Damages (Consultation Paper CP 9/07, 2007), para 89. Specific mention is made of the decisions in North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 and Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285: see [22.520]–[22.530], [10.390].

141 In Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227, the plaintiff argued that the restrictions on recovery by secondary victim claimants were in breach of Art 6 of the European Convention on Human Rights, which provides that in the determination of a person’s civil rights he or she is entitled to a fair and public hearing. Any restriction of this right is impermissible unless it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aims sought to be achieved: see Ashingdale v United Kingdom (1985) 7 EHRR 528. In Z v United Kingdom [2001] 2 FCR 246, the European Convention on Human Rights applied Art 6 to the question whether there was a right to bring a claim in negligence against a local authority. In Walters, the claimant argued that under Art 6 the court was entitled to examine the denial of a duty of care to a person who had suffered psychiatric injury in any case where the test of foreseeability was satisfied and a relationship of proximity was otherwise established. Though it was ultimately unnecessary to decide this matter, Thomas J rejected the argument on the ground that Art 6 was concerned with exclusionary rules or immunities which deprived a person of access to the court, and not with decisions about whether or not to extend liability in negligence into a new area, which were matters of substantive rights. 142

Taylor v A Novo (UK) Ltd [2014] QB 150.

78

Part I: Introduction

[3.310]

mother was injured at work when a fellow-employee negligently caused a stack of racking boards to fall on top of her. Three weeks later, while recovering at home, she unexpectedly collapsed and died. The claimant, who witnessed her mother’s collapse and death, suffered a psychiatric illness (post-traumatic stress disorder) as a result. The trial judge took the view that there was no gap between the relevant event that caused the damage, which was the mother’s sudden death, and the injury three weeks earlier, and held that the claimant’s injury was a reasonably foreseeable consequence of the defendant’s negligence, but on appeal it was held that the relationship was not sufficiently proximate because the claimant was not present at the scene of the accident or the immediate aftermath. [3.310] Lord Dyson MR’s judgment emphasised the importance of the speech of Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police,143 both as the origin of the classification of primary and secondary victims and for the “five common features” identified by Lord Oliver which had become referred to as the “control mechanisms” limiting the class of persons who could recover damages for psychiatric illness as secondary victims: a close relationship of affection between the claimant and the primary victim, that the injury arose from a sudden shock, presence at the scene or the immediate aftermath, that the injury arose from witnessing the death, danger or injury to the primary victim, and a close temporal connection between the event and the claimant’s perception of it. These five elements satisfied the requirement of proximity, to which had to be added the need for reasonable foreseeability of psychiatric injury.144 Lord Oliver’s formulation of the requirements was more elaborate than those of other judges in the same case, and so this means that there has been no relaxation of the hurdles that claimants need to surmount. Lord Dyson also placed much emphasis on the cautionary statements uttered by Lords Steyn and Hoffmann in White v Chief Constable of South Yorkshire Police.145 [3.320] The particular problem here was the time gap between the mother’s injury and her subsequent collapse. Lord Oliver had emphasised the need for proximity of relationship, that in most cases was satisfied by proving physical or temporal proximity to the event and its aftermath, because in most cases there was only one event. Here, however, there were two events — or, more correctly, one event with two separate consequences. If the claimant had been in physical proximity to her mother at the time of the accident and suffered shock as a result of seeing the injuries, she would have qualified as a secondary victim, but to allow her to recover as a secondary victim on the facts of the present case would go too far, viewed from the standpoint of the ordinary reasonable 143

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

144

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411–412.

145

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455: see [3.40].

[3.340]

3 The Law Elsewhere

79

person.146 Cases in which courts had developed the concept of a seamless event147 did not assist; instead Lord Dyson found the way barred by other cases involving time gaps between injury and death.148 Contrary to the expectations of the Department of Constitutional Affairs,149 this case seems to be characterised by insistence on the need for precise compliance with all the control mechanisms.150 The importance of Taylor v A Novo (UK) Ltd in insisting on rigid application of the control mechanisms is confirmed by a subsequent line of medical negligence cases rejecting the seamless event argument in that context and turning down the plaintiffs’ claims on the ground of absence of a sudden shock.151 [3.330] A final illustration of the difference between English and Australian law is provided by the decision of Garling J of the New South Wales Supreme Court in O’Reilly v Western Sussex NHS Trust (No 6).152 The plaintiff’s husband died in England in 2006. The plaintiff commenced an action in New South Wales in 2011 alleging that his death was due to medical negligence. Because the death took place in England, Garling J had to apply English law. He held that the claim was statute-barred, but considered whether the claim would otherwise have succeeded. As in Taylor v A Novo (UK) Ltd,153 there was a considerable time gap (three years) between the alleged negligence and the husband’s death, and his Honour held, applying the same authorities as Lord Dyson, that the necessary proximity was lacking. However, he commented that the result would in all probability have been different if the tort had arisen in Australia and he were applying Australian law.154

CANADA [3.340] Canadian law has generally followed mainstream developments in liability for psychiatric injury in the other jurisdictions. As the boundary stone has been progressively moved by courts in England and elsewhere, so Canadian courts have followed in their wake. So, for example, in the early 20th century Canadian courts managed to overcome 146

Taylor v A Novo (UK) Ltd [2014] QB 150 at [29]–[30].

147

Such as North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 and Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285.

148

Taylor v Somerset Health Authority (1993) 16 BMLR 63; Sion v Hampstead Health Authority [1994] 5 Med LR 170. Cases such as these did not prevent the High Court of Australia from recognising a duty to Mr and Mrs Annetts in Tame v New South Wales (2002) 211 CLR 317: see at [208] per Gummow and Kirby JJ.

149

See [3.290].

150

Note also Monk v PC Harrington Ltd [2009] PIQR P3 at [50], where Leggatt J emphasised the need to satisfy all the control mechanisms. 151

See [22.570]–[22.580].

152

O’Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824.

153

Taylor v A Novo (UK) Ltd [2014] QB 150.

154

O’Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824 at [506].

80

Part I: Introduction

[3.350]

the decision in Victorian Railways Commissioners v Coultas155 and allow liability to those who suffered shock through fear of injury to themselves, and later they followed the English courts in recognising liability to secondary victims who had been present at the accident scene or the aftermath and had suffered psychiatric injury through personal perception.156 Leading English authorities such as McLoughlin v O’Brian157 have enjoyed a good deal of respect, and decisions of the High Court of Australia such as Jaensch v Coffey158 have also exercised some influence. Some Canadian judges have shown a willingness to be innovative in particular areas, for example by compensating plaintiffs whose suffering may not amount to recognisable psychiatric illness,159 but the Canadian judiciary have maintained a generally cautious attitude to invitations to widen the ambit of the duty of care to accommodate new kinds of claim, and in particular have displayed no inclination to follow Australian courts down the path of abolishing control mechanisms such as direct perception and basing liability exclusively on closeness of relationship and foreseeability of psychiatric harm. [3.350] Some examples from leading cases help to fill in the general picture. In Devji v Burnaby (District),160 the parents and sisters of a young man who died in a motorcycle accident suffered psychiatric injury on learning of the death and attending hospital to view the body. The British Columbia Court of Appeal refused to extend the aftermath principle beyond the previously accepted limits, or to recognise claims based on learning of shocking news where direct perception was lacking. The court placed much emphasis on the maintenance of existing limits as determined by earlier precedents, particularly the five-judge decision of the same court on a similar issue in Rhodes v Canadian National Railway.161 In that case the plaintiff’s son was killed in a train crash in Alberta. She first heard of the crash on the radio in British Columbia, and endured many hours of extreme anxiety before learning that her son was among the victims. By the time she was able to see the scene of the accident, eight days had elapsed. The horror of the situation was compounded by being 155

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.30].

156

Eg Pollard v Macarchuk (1958) 16 DLR (2d) 225; Abramzik v Brenner (1967) 65 DLR (2d) 651; Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141; Brown v Hubar (1974) 45 DLR (3d) 664; McMullin v FW Woolworth & Co Ltd (1974) 9 NBR (2d) 214; Cameron v Marcaccini (1978) 87 DLR (3d) 442; Duwyn v Kaprielian (1978) 94 DLR (3d) 424. For comment from this era see JA Rendall, “Nervous Shock and Tortious Liability” (1962) 2 Osgoode Hall LJ 291; JS Williams, “Tort Liability for Nervous Shock in Canada” in AM Linden (ed), Studies in Canadian Tort Law (Butterworths, Toronto, 1968), p 139.

157

McLoughlin v O’Brian [1983] 1 AC 410.

158

Jaensch v Coffey (1984) 155 CLR 549.

159

See [6.260]–[6.320].

160

Devji v Burnaby (District) (1999) 180 DLR (4th) 205; application for leave to appeal to the Supreme Court of Canada dismissed: Devji v Burnaby (District) (2000) 260 NR 393 (note). 161 Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248; leave to appeal to the Supreme Court of Canada refused: Rhodes v Canadian National Railway [1991] 1 SCR xiii.

[3.360]

3 The Law Elsewhere

81

denied access to the crash site and being directed to the wrong memorial service and so missing the official ceremony in remembrance of the dead. Her son’s remains were sent to her unannounced, by ordinary mail, in an unmarked cardboard box. All this caused the plaintiff to suffer severe depression and other signs of mental and emotional disturbance. Much attention was paid to the decision of the High Court of Australia in Jaensch v Coffey.162 Maczko J in the court below163 was prepared to award damages based on Deane J’s doctrine of causal proximity, even though the plaintiff had not directly perceived the accident or its immediate aftermath. The British Columbia Court of Appeal, however, allowed the defendant’s appeal. Taylor JA (Wood JA concurring) said that the concept of causal proximity ought to be taken to exclude indirect injury such as that caused by visiting the scene some days later.164 Wallace JA questioned the usefulness of the notion, rejecting the plaintiff’s claim on different proximity and policy considerations.165 It was clearly stated by a majority of the Court of Appeal that foreseeability alone was insufficient.166 [3.360] Up to this point the Supreme Court of Canada had not had an opportunity to make its mark on this area of the law. Apart from one case half a century beforehand, which dealt with a very specialised question (liability for communicating false news),167 no psychiatric injury case of any importance came before Canada’s highest court until 2008,168 when the court handed down judgment in the case of Mustapha v Culligan of Canada Ltd.169 This case is important in two respects. First, McLachlin CJ, giving the judgment of the court, referred to the level of damage required to give a right to compensation, attempting to restate the requirement in simple terms. These words have given rise to a suggestion that the Supreme Court has relaxed the recognisable psychiatric illness requirement. Secondly, and even more importantly, this judgment has 162

Jaensch v Coffey (1984) 155 CLR 549.

163

Rhodes v Canadian National Railway (1989) 36 BCLR (2d) 1.

164

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 297.

165

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 265. Macfarlane JA agreed with both Taylor and Wallace JJA. Southin JA concurred in the result on different grounds. 166

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 250 per MacFarlane JA, at 264 per Wallace JA (Wood JA concurring), at 296 per Taylor JA. This case was referred to by a United States court applying British Columbia law in Bain v Honeywell International Inc 257 F Supp 2d 879 (2003). 167

Guay v Sun Publishing Co [1953] 2 SCR 216: see [28.90].

168

Note, however, the declaration by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46 that the citizen’s right to security of the person contained in s 7 of the Canadian Charter of Rights and Freedoms protects the psychological as well as the physical integrity of the individual. 169 Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114. Parts of the following discussion are based on P Handford, “Recovery for Psychiatric Illness in Canada: A Tale of Two Cases” (2011) 19 Tort L Rev 18. See also MH Ogilvie, “The Fly in the Bottle and Psychiatric Damage in Consumer Law” [2010] JBL 85.

82

Part I: Introduction

[3.370]

taken Canadian law down its own independent path by characterising psychiatric injury as a matter of remoteness of damage rather than duty of care. [3.370] This case began when a fly found its way into a bottle of water supplied by the defendant — so emulating the snail in the ginger beer bottle170 and many other insects or other foreign objects found in drink containers that have ended up in the law reports. Mr Mustapha and his family drank only bottled water, and had been consuming bottled water supplied by Culligan for the past 15 years. Mr Mustapha was replacing an empty bottle when he saw the fly in the unopened full bottle. This caused Mr Mustapha to develop a major depressive disorder with associated phobia and anxiety. He had constant nightmares about flies and developed an aversion to water, refusing to shower or to drink coffee made with water. At first instance Brockenshire J awarded damages for psychiatric injury,171 ruling that it was foreseeable that if the defendant supplied bottled water containing dead flies to people such as Mr Mustapha, they might suffer some kind of nervous shock. He described the defendant as an “urban, and urbane, hair stylist”,172 someone so concerned about the health of himself and his family that he ensured they consumed only bottled water because it was purer and safer than the water supplied by the city water utility. [3.380] However, this decision was reversed by the Ontario Court of Appeal,173 which held that Brockenshire J had adopted the wrong test. Instead of asking whether psychiatric injury was foreseeable to a person such as Mr Mustapha, the judge should have asked whether psychiatric injury was foreseeable to the hypothetical person of normal fortitude. On this test, the answer would have been in the negative. Nor was there any possibility of recovery in contract, because such harm would not have been in the contemplation of the parties at the time of making the contract. Blair JA’s judgment contained a detailed refutation of the alleged distinction between primary and secondary victims now endorsed by the House of Lords.174 His analysis of the Ontario cases showed that it would be wrong for that jurisdiction to adopt the English approach.175 Instead, it should continue to require reasonable foreseeability of psychiatric injury as a condition of liability to all kinds of plaintiffs. [3.390] On appeal to the Supreme Court of Canada, the issues were elaborately argued on both sides, but the judgment was a very brief 170

Donoghue v Stevenson [1932] AC 562.

171

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123.

172

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123 at [226].

173

Mustapha v Culligan of Canada Ltd (2006) 275 DLR (4th) 473.

174

See [3.130]–[3.150].

175

Mustapha v Culligan of Canada Ltd (2006) 275 DLR (4th) 473 at [22]–[45]. See also Joudrey v Swissair Transport Co (2004) 225 NSR (2d) 156 at 166 per Pickup J; Kotai v Queen of the North (Ship) (2009) 70 CCLT (3d) 21 at [70]–[77] per Joyce J.

[3.410]

3 The Law Elsewhere

83

appeal to first principles, citing a mere six cases on psychiatric injury. McLachlin CJ said that negligence liability required a duty of care, a breach of the standard of care, resulting damage, and that the damage be caused in fact and in law by the defendant’s breach.176 Mr Mustapha failed to surmount the last of these hurdles because the damage was too remote. [3.400] Dealing first with the level of damage issue, McLachlin CJ held that Mr Mustapha had sustained sufficient damage to sustain an action in negligence, provided that the other elements of the tort were made out: On the findings of the trial judge, supported by medical evidence, Mr Mustapha developed a major depressive disorder with associated phobia and anxiety. This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law. It follows that Mr Mustapha has established that he sustained damage.177

It was strictly unnecessary for her Ladyship to say more, but she prefaced this finding with some general observations about the issue of damage in psychiatric injury cases, saying that “damage for the purposes of this inquiry included psychological injury”, “psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset”, and “the law does not recognise upset, disgust, anxiety, agitation or other mental states that fall short of injury”.178 [3.410] It seems that McLachlin CJ was simply attempting to encapsulate the well-known distinction between conditions that reach the level of recognisable psychiatric illness and those that fall short of that level and have usually been characterised as mere emotional distress. However, the distinction was expressed in a slightly unusual way and her Ladyship made no reference to psychiatric injury as such. However, three years later, in Healey v Lakeridge Health Corporation,179 one group of plaintiffs in a class action made an attempt to persuade the Ontario Court of Appeal that they had suffered “psychological injury”, a state that though not amounting to recognisable psychiatric injury had become compensable as a result of the decision in Mustapha v Culligan of Canada Ltd.180 However, the court confirmed that the Supreme Court decision had not had any such effect. It was indeed unlikely that McLachlin CJ would have attempted to make such a fundamental change by means of a brief paragraph with minimal citation of authority, on an issue that was not necessary for the court’s decision, given the finding that damage had been suffered. This matter is pursued further in a later chapter.181 176

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [3].

177

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [10].

178

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [8]–[9].

179

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248.

180

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

181

See [6.330]–[6.410].

84

Part I: Introduction

[3.420]

[3.420] The novelty of the Supreme Court’s decision lies not in any lowering of the damage barrier, but in McLachlin CJ’s categorisation of psychiatric damage as a matter of remoteness rather than duty.182 Her Ladyship’s approach to the issues involved in the case has a beguiling simplicity. As noted at [3.390], she said that negligence liability required a duty of care, a breach of the standard of care, resulting damage, and that the damage be caused in fact and in law by the defendant’s breach, and that Mr Mustapha failed to surmount the last of these hurdles.183 Since the relationship between the parties (that is, producer and consumer) had been judicially recognised as giving rise to a duty of care from Donoghue v Stevenson184 onwards, there was no need for a full analysis.185 Culligan had not appealed the finding that it was in breach;186 it had been proved that Mr Mustapha had suffered damage in the form of psychiatric illness;187 and the evidence before the trial judge had established that this damage was caused by the defendant’s breach of duty.188 The only remaining question was whether the damage was too remote to be a cause of the harm in law as well as in fact. This depended on whether there was a “real risk” — one that would occur to the mind of a reasonable person in the defendant’s position — judged by the standard of a person of ordinary fortitude.189 Though Mr Mustapha was able to give evidence of his own reactions, these were highly unusual. Mr Mustapha was unable to establish that psychiatric injury was foreseeable in a person of ordinary fortitude.190 [3.430] On this analysis, the kind of damage suffered plays no part in the duty inquiry. Either the relationship gives rise to a duty, or it does not. It is at the remoteness stage that the question is asked whether psychiatric injury was reasonably foreseeable in a person of ordinary fortitude. Later cases have adopted this analysis, as one would expect.191 However, there is still room for debate about the respective roles of duty and remoteness in the psychiatric injury inquiry. This also is an issue that arose in Healey v Lakeridge Health Corporation.192 Here, the first instance judge and the Ontario Court of Appeal both adopted an approach to the duty issue that 182

For a similar argument in a United States context, see GC Keating, “Is NIED a Freestanding Tort?” (2009) 44 Wake Forest L Rev 1131.

183

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [3].

184

Donoghue v Stevenson [1932] AC 562.

185

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [4].

186

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [7].

187

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [10].

188

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [11].

189

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [12]–[17].

190

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [18].

191

See eg Frazer v Haukioja (2010) 317 DLR (4th) 688; Deros v McCauley (2011) 84 CCLT (3d) 324; Hussack v Chilliwack School District No 33 [2011] BCCA 258.

192

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248.

[3.460]

3 The Law Elsewhere

85

was consistent with that outlined by McLachlin CJ, but significant differences appear on a detailed analysis. Again, this matter is analysed in detail in a later chapter.193

NEW ZEALAND [3.440] In New Zealand, the evolution of liability for psychiatric injury has proceeded along its own particular path. Until 1972, the common law of negligence held sway, and liability for such harm had expanded along the same lines as in other jurisdictions.194 In 1944, the New Zealand Parliament had legislated to provide that in any action for injury to the person, a party was not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental and nervous shock.195 This provision, similar to those enacted in some Australian jurisdictions,196 was designed to overcome the problems of Victorian Railways Commissioners v Coultas197 and Bourhill v Young.198 However, there was little New Zealand authority on the question of psychiatric injury.199 [3.450] These developments were brought to a halt by the Accident Compensation Act 1972 (NZ), which has had a revolutionary effect on tort law in that country. The Act abolished the right to bring a common law action for personal injury. Instead, accident victims were allowed to claim compensation under the scheme (generally in the form of periodical payments) without any necessity to prove fault. Under the 1972 Act, and the largely consolidating Accident Compensation Act 1982 (NZ) that replaced it, all actions for damages were barred where the plaintiff had suffered “personal injury by accident”.200 This was defined to include the “physical and mental consequences of any such injury or of the accident”,201 subject to specific exclusions, one of which was “damage to the body or mind caused exclusively by disease, infection, or the ageing process”.202 [3.460] Decisions confirmed that most kinds of psychiatric injury case covered by the common law fell within the scope of “personal injury by accident” and so, while a common law action was ruled out, compensation 193

See [7.750]–[7.800].

194

Eg the repudiation of Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 in Stevenson v Basham [1922] NZLR 225. 195

Law Reform Act 1944 (NZ), s 2.

196

See [13.30].

197

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

198

Bourhill v Young [1943] AC 92.

199

One exception was Furniss v Fitchett [1958] NZLR 396 (see [28.210]), an action by a doctor for negligent disclosure of information about the plaintiff’s mental stability.

200

Accident Compensation Act 1972 (NZ), s 5(1); Accident Compensation Act 1982 (NZ), s 27(1).

201

Accident Compensation Act 1982 (NZ), s 2.

202

Accident Compensation Act 1982 (NZ), s 2, para (b)(ii) of the definition.

86

Part I: Introduction

[3.460]

could be obtained under the Act.203 The leading case was Accident Compensation Corporation v E,204 where a 49-year-old woman who held a responsible position in a large organisation sought compensation for a nervous breakdown after having to undergo a gruelling four-day management course on which she had been sent by her employer. At first instance Greig J made it clear that “personal injury” extended to the mental as well as the physical consequences of an accident,205 and the decision was upheld by the New Zealand Court of Appeal, the court stating that there could be “no other construction” of the statute.206 While this was essentially a “work stress” case,207 it is clear that the accident compensation scheme also covered secondary victim situations. This was confirmed by Cochrane v Accident Compensation Corporation,208 where Greig J, following the New Zealand Court of Appeal’s decision in Accident Compensation Corporation v E, awarded compensation for the emotional trauma suffered by a mother as the result of watching her son die in hospital from gunshot wounds. At common law, apart from the question of establishing fault, issues of aftermath and sudden shock might have been raised in other jurisdictions, but no such obstacles stood in Greig J’s path in granting compensation in this case.209 Other cases were consistent with these decisions: for example, a claimant recovered for the mental consequences occasioned by a fire in her home,210 and another for the mental effects of having a shotgun pointed at him during an armed robbery.211 Probably the only discordant note was struck by Holland J’s decision in Accident Compensation Corporation v F,212 rejecting a claim for reactive depression by a man whose wife was unable to have sexual 203

See S Todd and J Black, “Accident Compensation and the Barring of Actions for Damages” (1993) 1 Tort L Rev 197; R Tobin, “Personal Injury by Accident: Some Problems of Interpretation” [1991] NZLJ 239; R Tobin, “Nervous Shock: The Common Law; Accident Compensation?” [1992] NZLJ 282.

204

Accident Compensation Corporation v E [1992] 2 NZLR 426.

205

E v Accident Compensation Corporation [1991] NZAR 116.

206

Accident Compensation Corporation v E [1992] 2 NZLR 426 at 433.

207

Similar to cases such as Walker v Northumberland County Council [1995] ICR 702: see [20.130]–[20.150].

208

Cochrane v Accident Compensation Corporation [1994] NZAR 6.

209

Note also Cogan v Accident Compensation Corporation [1990] NZAR 145 (Accident Compensation Corporation wrong to refuse compensation for mental and emotional trauma suffered as result of her daughter’s accident due to medical misadventure). A booklet issued by the Corporation had advised that “[a] claim may also stand for ‘mental consequences’ as a result of witnessing an accident, or as a result of being advised of the accident shortly thereafter”: see Unintentional Injury: New Zealand’s Accident Compensation Scheme, p 16, cited by R Tobin, “Nervous Shock: The Common Law; Accident Compensation?” [1992] NZLJ 282 at 285. Moreover, the Claims Manual Instructions issued by the Corporation had indicated that claims by persons who suffered mental harm as a result of being told of an accident and the resulting injuries were not ruled out. 210

King v Accident Compensation Corporation [1992] NZAR 65.

211

Kennedy v Accident Compensation Corporation [1992] NZAR 107. Note also Re Firmstone (1983) 4 NZAR 62 (mental injury from wrongful arrest). 212

Accident Compensation Corporation v F [1991] 1 NZLR 234.

[3.470]

3 The Law Elsewhere

87

intercourse following a medical misadventure. Holland J suggested that it was highly unlikely that Parliament intended to compensate those who were merely observers of accidents, or otherwise associated with the victims of accidents.213 However, this decision was overruled by the New Zealand Court of Appeal in Accident Compensation Corporation v E.214 The concept of “personal injury by accident” clearly covered a wide area.215 There was no real equivalent of the recognisable psychiatric injury restriction of the common law,216 and the cases suggested that the Act was wide enough to cover torts such as assault and battery, where there were mental effects short of physical harm.217 Though it continued to be possible to bring a common law action in cases of other recognised torts where there was consequential mental distress,218 in ordinary personal injury cases where there were mental as well as physical effects the scheme was wide enough to cover both.219 [3.470] It may be that Accident Compensation Corporation v E220 stretched the ambit of the scheme a little too far. In the late 1980s further expansion of the scheme, extending it from accidents to disease, was under consideration,221 but a change of government in 1990 produced a fundamental change of direction. It was now clear that the aim was to limit the scope of the scheme to reduce costs, and one particular objective 213

Accident Compensation Corporation v F [1991] 1 NZLR 234 at 240–241.

214

However, the Court of Appeal expressly left open the possibility that Holland J had been correct in not permitting someone who had not suffered directly from the accident to claim: Accident Compensation Corporation v E [1992] 2 NZLR 426 at 434 per Gault J. See also McLean v Accident Compensation Corporation [1995] NZAR 342. 215

But there were limits: see eg Accident Rehabilitation and Compensation Insurance Corporation v McHardy [1996] NZAR 289 (no compensation for depression caused by a company collapse and personal bankruptcy following bank’s refusal to provide finance because it was outside what was commonly understood as personal injury by accident).

216

Cases where the plaintiff recovered for mental suffering alone include Re Firmstone (1983) 4 NZAR 62; King v Accident Compensation Corporation [1992] NZAR 65; Kennedy v Accident Compensation Corporation [1992] NZAR 107; Accident Compensation Corporation v E [1992] 2 NZLR 426; Cochrane v Accident Compensation Corporation [1994] NZAR 6. See also Thomas v Accident Compensation Corporation [1994] NZAR 322.

217

See Re Chase [1989] 1 NZLR 325 (gang member mistakenly shot and killed during police dawn raid); Green v Matheson [1989] 3 NZLR 564 (plaintiff claimed interference with bodily integrity and other damage caused by non-standard medical treatment to which she did not consent); Willis v Attorney General [1989] 3 NZLR 574 (physical and mental injuries caused by intentional assaults and batteries were “personal injury by accident”, but certain mental consequences of false imprisonment were excluded for policy reasons). See also Accident Rehabilitation and Compensation Insurance Corporation v JM [1999] NZAR 433; McVeagh v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAE 1. 218 See eg G v Attorney General [1994] 1 NZLR 714 (breach of confidence); Stieller v Porirua City Council [1986] 1 NZLR 84 (negligence causing property damage); Clemance v Hollis [1987] 2 NZLR 471 (deceit); Mouat v Clarke Boyce [1992] 2 NZLR 559 (breach of contract). 219

See Accident Compensation Corporation v E [1992] 2 NZLR 426 at 433 per Gault J.

220

Accident Compensation Corporation v E [1992] 2 NZLR 426.

221

See New Zealand Law Commission, Personal Injury: Prevention and Recovery (Report No 4, 1988).

88

Part I: Introduction

[3.480]

was the elimination of claims for mental injury. The Accident Rehabilitation and Compensation Insurance Act 1992 (NZ) contained a provision equivalent to those in the earlier legislation barring actions for damages,222 but “personal injury” was now much more elaborately defined. For the purposes of the Act, “personal injury” meant the death of, or physical injuries to, a person and any mental injury suffered by that person which was an outcome of those physical injuries to that person.223 Cover was also provided under the Act for personal injury which was caused by an accident to the person concerned, or by gradual process, disease or infection arising out of or in the course of employment, or which was medical misadventure or was a consequence of treatment for personal injury.224 Such cover also extended to personal injury which was mental or nervous shock suffered by the victims of particular sexual offences.225 [3.480] It will be apparent that cover for mental injury under the Act was now limited to two particular situations: where it is the outcome of physical injury, for example where a road accident victim suffers both physical and mental injury; and in the listed cases involving sexual offences, for example mental injury suffered by the victim of rape, even if there was no physical harm. In other cases, mental injury was not covered. What was the consequence of this? Did it mean that mental injury cases, apart from these two situations, were now beyond the reach of the law, in the sense that no compensation was obtainable under the scheme but actions for damages remained barred, or might common law claims arise phoenix-like from the ashes of the legislation? After some initial uncertainty,226 the important decision of the New Zealand Court of Appeal in Queenstown Lakes District Council v Palmer227 confirmed that mental harm claims could once again be made under the common law. [3.490] Mr Palmer and his wife went white-water rafting down the Shotover River while on holiday at Queenstown. Their raft capsized and was swept down a rapid called “The Toaster”. Mrs Palmer drowned, but Mr Palmer survived. Mr Palmer was not physically injured, but claimed 222

Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 14(1).

223

Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 4.

224

Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 8(2).

225

Accident Rehabilitation and Compensation Insurance Act 1992 (NZ), s 8(3). These provisions of the 1992 Act were substantially reproduced by the Accident Insurance Act 1998 (NZ). 226

Note Kingi v Partridge (unreported, NZHC, CP 16/93, 2 August 1993), holding that the plain and ordinary meaning of s 27(1) of the Accident Compensation Act 1982 (NZ) was that the bar on actions for damages applied to secondary victim claims; McDonnell v Wellington Area Health Board (unreported, NZHC, CP 250/93, 8 December 1994) (husband claimed damages for mental distress caused by seeing wife’s distress and subsequent death in hospital, which had not warned him of her deterioration: claim not struck out).

227 Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549, noted by NJ Mullany (1999) 115 LQR 596. See also S Todd, “Mental Injury and Actions for Damages” [1999] NZLJ 216; G McLay, “Nervous Shock, Tort and Accident Compensation: Tort Regained” (1999) 30 VUWLR 197; R Schmidt, “Nervous Shock Damages in New Zealand: The Implications for Health Providers after Palmer” (2000) 7 JLM 293.

[3.500]

3 The Law Elsewhere

89

to have suffered mental injuries including post-traumatic stress disorder as a result of witnessing his wife’s death. He claimed damages for negligence against the rafting company and the local council which had approved its operations. The defendant applied to strike out the claim on the ground that it was barred by s 14(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ). At first instance, Panckhurst J dismissed the application on the basis that s 14(1) did not extend to the secondary victim of an accident. The defendant’s appeal was dismissed by the Court of Appeal. [3.500] What was at issue was essentially a question of statutory interpretation: did Accident Rehabilitation and Compensation Insurance Act 1992s 14(1) in its natural and ordinary meaning exclude the claim? Thomas J, delivering the judgment of the court, held that it did not. He reached this conclusion on a number of grounds. First, the section had to be read in the light of the other sections stating the cases in which the Act provided cover for personal injury. This made it clear that cover extended to personal injury caused by an accident to the person concerned — but not a third party. This was confirmed by the long title and the context of these provisions within the Act. Secondly, on a true analysis of the situation, the plaintiff was not seeking compensation for his wife’s death (as argued by the defendant) but for his own mental injuries. Her death was simply part of the sequence of events that led up to those injuries. If she had survived and been uninjured, his claim would remain intact. Thirdly, the legislative history and policy of the Act confirmed that it had aimed to restrict the scope of claims for mental injury, and this must be taken as showing an intention that the corresponding common law right should revive. Any other outcome would be anomalous and unjust, because it would deny compensation at common law for an injury that had been excluded from the Act. This was not what Parliament had intended. The aim of the provisions was merely to prevent doubledipping: to ensure that people like Mr Palmer did not receive both accident compensation and common law damages.228 228

Brownlie v Good Health Wanganui Ltd [2005] NZAR 289, decided a month after the decision in Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549, might be thought to complicate the issue. Cancer patients argued that their mental injuries were caused not by the cancer but by reliance on incorrect advice that they did not suffer from cancer. It was held that the mental consequences flowed at least indirectly from the physical injury, even if they were not the outcome of physical injury, and that s 14(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ) therefore operated to bar the common law claim, even though cover under the Act did not extend to the particular kind of injury for which compensation was sought. It is difficult to understand how mental injury can flow from personal injury and yet not be an outcome of it. “The decision can be explained on the basis that the mental injury was an outcome of the misdiagnosis and of the cancer and was covered in the ordinary way”: S Todd et al, The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013), p 37 n 74. See also S Todd, “Mental Injury and Actions for Damages” [1999] NZLJ 216; NJ Mullany “Accidents and Actions for Damage to the Mind – Kiwi Style” (1999) 115 LQR 596.

90

Part I: Introduction

[3.510]

[3.510] Following another change of government in 1999, the legislation was once again re-enacted, this time as the Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ); the wheel came full circle when it was renamed the Accident Compensation Act in 2010. The legislation retains equivalents of the 1992 provisions under which coverage for mental injury is limited to cases where it is the outcome of physical injury,229 and where it is caused by certain criminal acts.230 However, implementing a proposal of the new government, it has also been extended to cases of work-related mental injury.231 In any case where there is cover under the Act, common law actions continue to be barred.232 However, in cases where the Act does not provide cover, plaintiffs have a cause of action at common law. [3.520] The scope for such actions is quite extensive. Queenstown Lakes District Council v Palmer233 confirms that all claims for psychiatric injury suffered by witnessing an accident to another can be litigated at common law; on the facts of the case, it might be said that Mr Palmer was himself involved in the accident, and in terms of the distinction now prevalent in England, a primary rather than a secondary victim, but there is nothing in the judgment to suggest any “zone of danger” limitation. Other kinds of claims, not involving witnessing an accident to another, are clearly possible.234 The courts have had the opportunity to work out the way in which New Zealand’s law of psychiatric damage should develop, unencumbered by developments that have caused problems for other jurisdictions, such as the primary and secondary victim division in England. In the most important decision so far, van Soest v Residual Health Management Unit,235 the majority held that it was not enough to show that mental injury to a secondary victim was foreseeable, in the absence of other proximity requirements,236 but this provoked a strongly worded 229 Accident Compensation Act 2001 (NZ), s 20. See Accident Compensation Corporation v Monk [2013] NZAR 1 (any physical injury sufficient to support claim for mental injury, though physical injury itself not covered). 230

Accident Compensation Act 2001 (NZ), s 21: see CLM v Accident Compensation Corporation [2006] 3 NZLR 127 (claimant, who was suffering psychiatric injury on learning that her partner was HIV positive, was not entitled to cover). Note also s 21A, dealing with criminal acts committed prior to 1 July 1992: see A v Roman Catholic Archdiocese of Wellington [2007] 1 NZLR 536, on appeal A v Roman Catholic Archdiocese of Wellington [2008] 3 NZLR 289.

231

Accident Compensation Act 2001 (NZ), s 21B.

232

Accident Compensation Act 2001 (NZ), s 317.

233

Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549.

234

See S Todd et al, The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013), pp 212–218. 235

van Soest v Residual Health Management Unit [2000] 1 NZLR 179, noted by H Teff (2001) 9 Tort L Rev 109; A Barker (2002) 10 TLJ 1. See PR McRae, “Whither Nervous Shock? The Current State, Future Direction and Possible Reform of Compensation for Negligently Inflicted Psychiatric Injury after Ramstead” (2001) 32 VUWLR 521. 236

Blanchard J, giving the majority judgment, said that New Zealand courts may not follow England in requiring the plaintiff to have witnessed the accident or its immediate aftermath: van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at 184; however, note Hobson

[3.540]

3 The Law Elsewhere

91

dissent from Thomas J, who echoed the words of Lord Oliver in Alcock v Chief Constable of South Yorkshire Police237 that the present state of the law is neither satisfactory nor logically defensible, and suggested that many past plaintiffs had failed where they deserved to succeed. He argued in favour of abandoning proximity limitations and accepting reasonable foreseeability as the sole test of liability for emotional injury.238 The Court of Appeal also confirmed that New Zealand, like England and Australia, requires a recognisable psychiatric illness, though again, Thomas J would have gone further, advocating the recognition of liability for mental suffering outside the range of ordinary human experience even if not identified as a recognisable psychiatric illness. Though the court was unwilling to adopt Thomas J’s far-reaching dissent, the case shows that New Zealand courts are prepared to consider the big issues and take careful note of overseas experience.

SOUTH AFRICA AND SCOTLAND [3.530] South Africa and Scotland have a shared heritage: in each of these countries the common law has been superimposed on a theoretical foundation of delictual liability based on Roman law. However, the state of the law on psychiatric injury in these two jurisdictions is now very different. South Africa has proceeded further in widening the boundaries of recovery for psychiatric injury than most other jurisdictions. Scotland on the other hand has remained rather conservative, adhering very closely to English law.

South Africa [3.540] Though the immunity provided by Victorian Railways Commissioners v Coultas239 did not survive long in South Africa,240 the rule that plaintiffs had to show that nervous shock was caused by fear for their own safety held sway for many years — indeed, in this respect South African law “languished in the doldrums” until 1973.241 This limitation

v Attorney General [2007] 1 NZLR 374, where the New Zealand Court of Appeal struck out the claim of the husband of a woman murdered in an armed robbery who, apart from being unable to establish a recognisable psychiatric illness, was not present at the scene of the crime or the immediate aftermath. Compare Xi v Howick Baptist Healthcare Ltd [2014] NZHC 1058, where a husband and daughter were present at the scene; and Sivasubramamiam v Yarrall [2005] 3 NZLR 268, where a daughter was not only present but, as a passenger in the car, also involved in the accident. 237

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418.

238

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [93].

239

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

240

See [2.30].

241

See PQR Boberg, The Law of Delict Vol 1: Aquilian Liability (Juta, Cape Town, 1984), p 176.

92

Part I: Introduction

[3.550]

was affirmed in several leading cases,242 before being finally abandoned by the Appeal Court in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk.243 In this case, a six-year-old boy was knocked down by a car as he ran across the street. He died from his injuries later the same day. His 11-year-old brother, who had been a couple of metres in front of him, was awarded damages for the shock he suffered as a result of this experience. Botha JA held that there was no reason why someone who had suffered psychiatric injury due to another’s negligence should not be entitled to reparation, provided the result would have been foreseen by a reasonable person in the defendant’s position.244 Though the plaintiff may have been in physical danger, his fear for his brother’s safety and his feeling of guilt at witnessing the fatal collision were the chief contributors to his condition, much more so than fear for his own safety.245 [3.550] South African law has not stood still since this decision. The decision in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk246 showed a preparedness to base liability on foreseeability, shorn of artificial restrictions: South African courts have now shown that they do not find it necessary to impose other controls, such as proximity in space and time to the accident.247 The decision of South Africa’s highest court, the Supreme Court of Appeal, in Barnard v Santam Bpk248 is every bit as important as the Australian High Court’s decision in Tame v New South 242 Waring & Gillow Ltd v Sherborne 1904 TS 340; Sueltz v Bolttler 1914 EDL 176; Mulder v South British Insurance Co Ltd 1957 (2) SA 444 (W), noted by MA Millner (1957) 74 SALJ 263; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1972 (3) SA 68 (D). The rule was affirmed in Lesotho as late as 1991: Matekane v Attorney General 1991-92 LLR-LB 153. 243

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A), noted by L Tager (1973) 90 SALJ 123; PQR Boberg, Annual Survey of South African Law 1973 (Juta, Cape Town, 1974), p 136; JD van der Vyver (1973) 36 THRHR 169; J Neethling and JM Potgieter (1973) 36 THRHR 175; JM Potgieter (1973) 14 Codicillus 12. South African scholars had, in the main, disapproved of the conservative approach prevailing before Bester: for criticism of the lower court decision in Bester see L Tager (1972) 89 SALJ 435; DJ McQuoid-Mason (1973) 36 THRHR 115. However, RG McKerron, The Law of Delict (7th ed, Juta, Cape Town, 1971), pp 156–157 approved of the restriction.

244

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 779.

245

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 781. Bester has been affirmed in Botswana and Lesotho: Makgoana v Ministry of Health [2003] BWHC 11; Officer Commanding Roma Police v Khoete [2012] LSCA 21. 246

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A).

247

Nor is there any real suggestion that South African courts will adopt any of the controversial rules for primary victims outlined by Lord Lloyd in Page v Smith [1996] AC 155. However, in Gibson v Berkowitz 1996 (4) SA 1029 (W) at 1049, Claassen J said that the plaintiff in that case suffered physical injury and so was to be regarded as a primary victim. He then said of Page v Smith that “Lord Keith” [sic] held that the thin skull rule applied where the plaintiff was a primary victim and that hindsight had no part to play in such cases. This passage was quoted without disapproval in Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC) at [89] per Cloete J.

248

Barnard v Santam Bpk 1999 (1) SA 202, noted by J Burchell (1999) 116 SALJ 697; NJ Mullany (2000) 116 LQR 29; J Neethling (1999) 62 THRHR 310. Note also the earlier decision in Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W), where Navsa J at 62 suggested that South African law was not as rigid as English law.

[3.560]

3 The Law Elsewhere

93

Wales.249 It resembled the Annetts appeal in that case in that the news that caused psychiatric injury was imparted by means of a telephone call. Following the death of a young teenager in a road accident, a doctor at the hospital telephoned the child’s father, and the father told the mother, who suffered psychiatric injury. There was no question of being present at the aftermath: the mental injury was occasioned entirely as the result of the communication of the bad news from the doctor via her husband. Yet the court did not find the lack of direct perception an impediment. Departing from earlier case law denying compensation to “hearsay victims”, the court unanimously held that in the circumstances the injury was foreseeable, a finding that depended primarily on the closeness of the relationship between the mother and the child.250 The court examined all the standard policy objections, and rejected them. It was heavily influenced by the pre-Tame Australian authorities.

Scotland [3.560] Scottish law, like English law, was not long in repudiating the doctrine of Victorian Railways Commissioners v Coultas,251 but was much slower to abandon the requirement that the pursuer, in order to recover, had to fear for his or her own personal safety:252 it was not until 1962 that it could be said that this restriction had finally been lifted.253 The earlier case of Currie v Wardrop254 was inconclusive. The pursuer, walking arm-in-arm with her fiancé, suffered shock when they were both knocked down by a bus (though it appeared that she was not physically struck). The Court of Session held that shock was caused both by fear for her own 249 Tame v New South Wales (2002) 211 CLR 317. The application of the “flexibility test” to the secondary victim situation in the pre-Barnard South African case of Maijet v Santam Ltd [1997] 4 All SA 555 (C) also appears to resemble the approach adopted by the High Court in Tame. 250

Barnard v Santam Bpk 1999 (1) SA 202 was followed in Swartbooi v Road Accident Fund [2012] 3 All SA 670 (WCC), another case where news of a serious accident was communicated by phone, in this case to the victim’s mother. BP Mantame AJ said at [18] that the relationship between the plaintiff and the primary victim may not necessarily be the prime consideration: questions of legal policy, reasonableness, fairness and justice are relevant in addition to reasonable foreseeability. Note also Hing v Road Accident Fund [2014] 2 All SA 186 (WCC) at [20] per Binns-Ward J.

251

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.30].

252

The limitation was affirmed in Wallace v Kennedy (1908) 16 SLT 485; Campbell v James Henderson Ltd 1915 1 SLT 419; Ross v Glasgow Corporation 1919 SC 174; Brown v Glasgow Corporation 1922 SC 527. Other cases sometimes cited for this proposition (Cooper v Caledonian Railway Co (1902) 4 F 880; Gilligan v Robb 1910 SC 856; Fowler v North British Railway Co 1914 SC 866; Cowie v London, Midland & Scottish Railway Co 1934 SC 433) do not make clear the basis on which the issue was allowed to go to proof, although on the facts the pursuers feared for their own safety.

253

McLinden v Richardson 1962 SLT (Notes) 104. Lord Wheatley at 105, in allowing proof before answer, said that he was not prepared to apply this limitation as an absolute proposition. More recent cases are consistent with the Hambrook v Stokes Bros [1925] 1 KB 141 approach: see eg Bain v Kings & Co Ltd 1973 SLT (Notes) 8; Harvey v Cairns 1989 SLT 107.

254

Currie v Wardrop 1927 SC 538.

94

Part I: Introduction

[3.570]

safety and for that of her fiancé, and so the case is not clear authority for the view that shock arising from apprehension for the safety of another was actionable.255 [3.570] Scottish courts were of course bound by decisions of the House of Lords, and are now bound by those of the Supreme Court of the United Kingdom, as a shared final court of appeal.256 This means that Scottish courts in recent years have mirrored the generally conservative approach of the English judiciary, since the three leading decisions of the House of Lords in the 1990s — the two Hillsborough cases, Alcock v Chief Constable of South Yorkshire Police257 and White v Chief Constable of South Yorkshire Police,258 plus Page v Smith259 — were binding on them. In Robertson v Forth Road Bridge Joint Board,260 for example, the Court of Session, anticipating the House of Lords decision in White, refused to open up a new category of duty requiring employers not to cause psychiatric injury to their employees. Most recently, in Young v MacVean,261 the Court of Session closely followed the approach of the English Court of Appeal in Taylor v A Novo (UK) Ltd262 which insisted on adherence to all the control mechanisms in secondary victim cases. [3.580] Page v Smith263 has presented problems for Scottish courts.264 This was evident in Campbell v North Lanarkshire Council,265 a case that on its facts closely resembles Hunter v British Coal Corporation.266 The pursuer and some other employees were removing a broken piece of crank handle from an air break circuit breaker in the switch room and discussing whether to isolate it. The pursuer left the switch room and was about 30 or 40 yards away when there was a violent explosion. He ran back to the switch room, saw the grotesque injuries of the other men, and went to 255 See DM Walker, The Law of Delict in Scotland (2nd ed, W Green, Edinburgh, 1981), p 675. Bourhill v Young [1943] AC 92 (see [2.70]) was of course a Scottish appeal. The Court of Session concentrated on the then still-unresolved issue of whether the pursuer had to be in fear for her own safety: Bourhill v Young’s Executor 1941 SC 395; the House of Lords decided the case on general foreseeability grounds. 256

The same applies to the courts of Northern Ireland.

257

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

258

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

259

Page v Smith [1996] AC 155.

260

Robertson v Forth Road Bridge Joint Board 1995 SC 364, noted by F McManus [1996] Jur Rev 240. See MJM Bogie, “A Shocking Future: Liability for Negligently Inflicted Psychiatric Illness in Scotland” [1997] Jur Rev 39. 261

Young v MacVean [2015] CSIH 70; see also the decision at first instance, Young v MacVean [2014] CSOH 133.

262

Taylor v A Novo (UK) Ltd [2014] QB 150: see [3.300]–[3.320].

263

Page v Smith [1996] AC 155.

264

As also for those in Northern Ireland. Page v Smith was followed by the Northern Ireland Court of Appeal in Fryers v Belfast Health and Social Care Trust [2010] NI 133. 265

Campbell v North Lanarkshire Council [1999] ScotCS 163.

266

Hunter v British Coal Corporation [1999] QB 140: see [3.170].

[3.590]

3 The Law Elsewhere

95

telephone for help. As the result of this experience he developed a major depressive disorder. The defender argued that the pursuer had no right to recover because he did not fall into any of the standard categories: he was neither present, nor a rescuer, nor a relative. The pursuer maintained that he was a primary victim, close enough to the scene at the moment of the explosion to be in physical danger. Lord Reed allowed proof before answer on the basis that at this preliminary stage it could not be said that the pursuer’s case that he was within the range of physical injury was bound to fail. His Lordship expressed considerable dissatisfaction with Lord Lloyd’s judgment, saying: “The leitmotiv of Lord Lloyd’s speech indeed is the artificiality of the distinction between physical and psychiatric injury … which makes it somewhat paradoxical if he is to be understood as making that very distinction critical to the definition of primary victims.”267 However, he interpreted the subsequent House of Lords judgments in White v Chief Constable of South Yorkshire Police268 as offering some scope for a more flexible interpretation.269 On several occasions, Scottish courts have questioned whether the primary and secondary categories are all-embracing, or whether other kinds of case are possible — for example, where a truck driver manoeuvring his truck out of a loading bay unwittingly caused the death of another employee,270 where a prison officer breaking up a fight ingested blood from a prisoner known to be an injecting drug user,271 and where sperm stored in a sperm bank was destroyed due to the malfunction of the storage vessel.272 However, in other instances, Scottish courts have been able to make positive use of the distinction, as in Burns v Boots UK Ltd273 where a child shopping with her grandmother was hit by a rolling pin dropped from a third floor window. The grandmother claimed for her mental injuries. Any question about whether the secondary victim control mechanisms were satisfied could be put on one side because she was standing beside the child and within the range of foreseeable physical injury.

The Scottish Law Commission Report [3.590] Three years after the publication of the Law Commission of England and Wales’s report, the Scottish Law Commission was given a reference to review the law of Scotland relating to psychiatric injury. It 267

Campbell v North Lanarkshire Council [1999] ScotCS 163 at [26].

268

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

269

See also Forey v RHI Refractories (UK) Ltd [2004] ScotCS 59, a case with facts very similar to Campbell. For other Scottish cases where Page v Smith has caused problems in an employment context, see Cross v Highland and Islands Enterprise 2001 SLT 1060 at 1076 per Lord Macfadyen; Fraser v State Hospitals Board for Scotland 2001 SLT 1051 at 1057 per Lord Carloway; Keen v Tayside Contracts 2003 SLT 500 at 509–510 per Lady Paton.

270

Anderson v Christian Salvesen plc 2006 SLT 815.

271

Pratt v Scottish Ministers 2009 SLT 429.

272

Holdich v Lothian Health Board [2013] CSOH 197 at [78] per Lord Stewart. For further discussion of this case see [27.140].

273

Burns v Boots UK Ltd [2011] CSOH 182.

96

Part I: Introduction

[3.600]

issued a discussion paper in August 2002274 and submitted its report in August 2004.275 The Scottish report proposed a legislative scheme that was different in a number of important respects from that of the English Law Commission. It recommended that there should be a full codification, rather than the partial codification of duty recommended for English law: the common law rules would be replaced by a statutory obligation to make reparation for wrongfully caused mental harm.276 [3.600] “Mental harm” was the term chosen by the Commission to mean any harm to a person’s mental state, mental functioning or mental well-being, whether or not the harm amounted to a medically recognised mental disorder.277 A key recommendation was that where mental harm was caused unintentionally there should be no liability to make reparation unless the mental harm consisted of a “medically recognised mental disorder”278 — a term that was seen as superior to “recognisable psychiatric illness” because of some doubt about the scope of the term “psychiatric”.279 This recommendation on its face might be thought to do little to change the present law, but its importance lies in the fact that the Commission recommended that where the harm was caused intentionally, mental harm should be actionable without the medically recognised mental disorder limitation — a considerable extension of the law.280 However, the Commission recommended that there should be no obligation to make reparation if the mental harm was of such a nature that a person in the position of the victim could reasonably be expected to endure it.281 The Commission said there was no need to retain the ordinary fortitude rule as a separate rule282 — consistent with the 274

Scottish Law Commission, Discussion Paper on Damages for Psychiatric Injury (No 120, 2002). See P Case, “The Scottish Law Commission’s Discussion Paper on Damages for Psychiatric Injury” (2003) 19 PN 395.

275 Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004). See D Nolan, “Reforming Liability for Psychiatric Injury in Scotland” (2005) 68 MLR 983. See also PR Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 442–447. 276 Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 1. 277

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 3(a). “Mental harm” is also the term adopted by the Australian Civil Liability Acts, defined to mean impairment of a person’s mental condition: see [2.260]. 278 Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 3(b). 279

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 1.7. 280

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.7: see [30.680]. 281

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 5(a). 282

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), paras 3.19–3.21.

[3.610]

3 The Law Elsewhere

97

approach of the Australian High Court283 but contrary to the Civil Liability Acts, which have resurrected this rule.284 The Commission recommended that there should be some statutory examples of cases where a person could be expected to endure mental harm without seeking reparation. One was where the mental harm resulted from the normal stresses or vicissitudes of life or the type of life the person led,285 and another was when it resulted from bereavements or losses of a type that persons could reasonably be expected to suffer in the course of their lives.286 Here the Commission took issue with the Australian High Court’s decision in Gifford v Strang Patrick Stevedoring Pty Ltd,287 suggesting that there was nothing that marked out the suffering of the three teenage plaintiffs as a consequence of their father’s death in a work accident as different from any other bereavement.288 [3.610] Unlike the English Law Commission, which had stopped short of recommending the abolition of the distinction between primary and secondary victims and the special rules for primary victims outlined for the first time in Page v Smith,289 the Scottish Commission repudiated all this. It recommended that there should be no liability for mental harm caused unintentionally unless the harm amounted to a medically recognised mental disorder and the defender foresaw, or could reasonably have foreseen, at the time of the act causing the harm, that the act was likely to cause a person in the position of the victim to suffer such harm.290 However, in cases such as Page v Smith foreseeability of such mental harm would be readily inferred.291 The same would apply in other

283

Tame v New South Wales (2002) 211 CLR 317.

284

See [2.300].

285

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 5(b)(i). The Commission suggested that this principle would be applicable in work stress cases: para 3.25. 286

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 5(b)(ii). 287

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

288

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.28. Though the Commission did not comment on the facts of the Annetts case in Tame v New South Wales (2002) 211 CLR 317, it is presumed that they would be distinguishable. 289

Page v Smith [1996] AC 155: see [3.270].

290

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 6. Although this recommendation deals primarily with harm caused by unintentional conduct, it was also intended to cover the foreseeable consequences of intentional conduct, such as mental harm to third parties consequent on a murder: see para 3.34. This issue is dealt with at [30.260]–[30.330]. 291

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.38.

98

Part I: Introduction

[3.620]

cases, such as employees who due to their employer’s negligence thought they had involuntarily been the cause of death or injury to fellowworkers.292 [3.620] Dealing specifically with the situation where the victim suffered mental disorder by witnessing or learning of an incident in which he or she was not directly involved (the secondary victim situation), the Commission, in line with its desire to rationalise the law rather than expand it,293 recommended that as a general rule there should be no liability to make reparation,294 but that there should be two “gateways” by which this restriction could be circumvented. The first applied to rescuers:295 the Commission was emphatically of the view that White v Chief Constable of South Yorkshire Police296 had been overly restrictive of rescuers’ rights. Under the Scottish recommendations, the police at Hillsborough would have been able to sue, as would some of the relatives:297 the second gateway covered cases where the victim had a close relationship with the person killed, injured or at risk of being killed or injured.298 There would be a fixed list of persons who would be presumed to have a close relationship299 — a fairly extensive list, including for example cohabitants of the same or different sexes — but it was recommended that the concept of a close relationship should be capable of including relationships of a non-familial kind, for example a teacher who saw her pupils killed on a school excursion.300 There would be no other restrictions: for example, the restrictions ratified by Alcock v Chief Constable of South Yorkshire Police,301 such as the need for proximity in space and time, and sudden shock, would disappear.302 It can be seen 292

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.39. 293

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 1.12. 294

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 7(a). 295

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 8. 296

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

297

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.52. 298

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 9(a). These principles would also cover the situation where immediate victims are responsible for their own injuries: paras 3.61–3.65. 299

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendation 10(a). 300

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.59(f). 301 302

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.3.

[3.650]

3 The Law Elsewhere

99

that the Scottish proposals had much in common with the decision of the High Court of Australia in Tame v New South Wales.303 [3.630] Unfortunately, the Scottish proposals, like the English proposals, are destined to gather dust on the shelf. After a consultation process, they were rejected by the Scottish Government in December 2013.304

IRELAND [3.640] The Irish courts have generally displayed a very progressive attitude to psychiatric injury claims. It is often forgotten that it was an Irish judge — Palles CB in Bell v Great Northern Railway Co of Ireland305 — who was the first to repudiate the old rule of non-recovery for nervous shock first propounded in Victorian Railways Commissioners v Coultas;306 indeed, six years prior to Coultas, the Irish Court of Appeal allowed recovery for nervous shock suffered by the superintendent of the telegraph office at a train station caused when a train ran off the rails and broke down the wall of his office, even though there was no impact.307 [3.650] Modern Irish judges have followed in the footsteps of these early cases. While not perhaps prepared to go as far as the Australian or South African courts (in that no Irish decision has as yet permitted recovery to a plaintiff who did not have some contact with the accident scene or its aftermath), the Irish courts have not emphasised the control mechanisms adopted by English courts and seem prepared to rely much more on broad principles of foreseeability. So, for example, an Irish court has recognised that in particular circumstances employees might owe a duty to their employees to protect them from psychiatric injury,308 and Judge McMahon — in another capacity, one of the authors of the leading Irish torts text309 — commented that the difference in approach between Ireland and England was becoming increasingly obvious and was perhaps inevitable.310 Another Irish author has suggested that the Irish

303

Tame v New South Wales (2002) 211 CLR 317.

304

Civil Law of Damages, Issues in Personal Injury (Scottish Government Response to the Consultation, December 2013), p 21.

305

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428, a case arising out of the Armagh rail disaster of 12 June 1889: see [24.30]. 306

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

307

See Byrne v Great Southern & Western Railway Co (unreported, Irish CA, February 1884), discussed in Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 at 441–442 per Palles CB. The plaintiff was awarded the very considerable sum at that time of £325, and this verdict was upheld by the Irish Court of Appeal. 308

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, noted by D McHugh (2000) 18 ILT 162: see [19.440], [26.320]–[26.330].

309

BME McMahon and W Binchy, Law of Torts (4th ed, Bloomsbury, Dublin, 2013).

310

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 360.

100

Part I: Introduction

[3.660]

and Australian decisions are broadly in line, with the Irish judges also being prepared to decide cases on broad principles of foreseeability.311 [3.660] Mullally v Bus Éireann312 was perhaps the first modern example: in this case Denham J, confronted with a typical secondary victim situation, showed a willingness to rely primarily on “the ordinary criteria of reasonable foreseeability”.313 This case arose out of a bus accident in which three people were killed and 49 injured. The plaintiff, whose husband and three sons had gone to a football match and were on the bus, was telephoned and told to come to Limerick straight away. The situation was complicated by the fact that two of her boys were in one hospital and her husband and her other son in another. It was nearly four hours before the plaintiff reached the hospital her sons were in, and when she arrived there it “looked like a hospital out of a war film, like a field hospital. There were bodies everywhere, people moaning and groaning, and many distressed relatives milling around.” Paul had bad head injuries and she was told that he was dying. She did not recognise Francis because of his injuries. She then went to the other hospital to find her husband receiving the last rites, although in fact he eventually recovered. Paul was not so lucky. His head had been opened in the accident and his brain exposed. The inside of his head had to be cleaned every day, and he would allow no one but his mother or sister to hold his head while this was done. He lingered on for nine months before he died. He was the plaintiff’s favourite son. Denham J, having satisfied herself that the plaintiff had suffered psychiatric damage, held that it was foreseeable in the circumstances, and that it was caused by the accident and its aftermath. She said that the case was within the parameters set by Lord Wilberforce in McLoughlin v O’Brian,314 though she was assisted more by the speech of Lord Bridge.315 Though the time lapse between accident and perception of aftermath was twice that taken by Mrs McLoughlin to reach and view her family, this was inconsequential. There is no sense from Denham J’s judgment of the case being at the margin of recovery, no concern with counting the hours that had elapsed since the accident. Her Ladyship adopted a common-sense attitude to the situation rather than being preoccupied with the problem of limiting liability.

311

G Kelly, Post Traumatic Stress Disorder, Mental Injury and the Law (2nd ed, Thomson Round Hall, Dublin, 2008), p 14. 312

Mullally v Bus Éireann [1992] ILRM 722; see R Byrne and W Binchy, Annual Review of Irish Law 1991 (Round Hall, Dublin, 1993), p 399.

313

Mullally v Bus Éireann [1992] ILRM 722 at 730.

314

McLoughlin v O’Brian [1983] 1 AC 410.

315

See [7.250], [7.420].

[3.670]

3 The Law Elsewhere

101

[3.670] Three years later, in Kelly v Hennessy,316 the Irish Supreme Court was called on to consider a similar situation, and Hamilton CJ authoritatively stated the requirements of psychiatric damage liability in such cases. The plaintiff’s husband and their two daughters, who had gone to Dublin Airport to meet the plaintiff’s niece, were severely injured in an accident, the husband and one daughter suffering permanent brain damage. The plaintiff was told of the accident by telephone and was taken to hospital by car. On hearing of the accident she immediately went into shock and commenced vomiting, and was ill on the way to the hospital, but her condition was gravely aggravated on seeing the state of her family. She suffered from post-traumatic stress disorder for at least the next five years; her condition was not improved by the daily round of hospital visits and later caring for her husband and daughter. Lavan J awarded damages, accepting the decision of Denham J in Mullally v Bus Éireann317 as strongly persuasive.318 On appeal to the Supreme Court, the decision was confirmed, subject to a modification of the damages award. The issues were subjected to detailed scrutiny in the judgment of Hamilton CJ. His Lordship said that the plaintiff had to establish that he or she had suffered a recognisable psychiatric illness; that the illness was shock-induced; that it was caused by the defendant’s act or omission; that it was sustained by reason of actual or apprehended physical injury to the plaintiff or another person; and that the defendant owed the plaintiff a duty of care not to cause reasonably foreseeable injury in the form of nervous shock. It was not enough to show there was a reasonably foreseeable risk of personal injury generally.319 In general, this judgment displays an enlightened attitude: the recovery of damages where the plaintiff came upon the immediate aftermath of an accident, either at the scene or in hospital, was approved, and no detailed investigation into the time at which the plaintiff arrived at the hospital, or what she saw there, was perceived to be necessary. However, Hamilton CJ made it clear that foreseeability of psychiatric injury alone is not enough and that there are other requirements that have to be satisfied. It is of interest also that in the 316

Kelly v Hennessy [1995] 3 IR 253; see R Byrne and W Binchy, Annual Review of Irish Law 1995 (Round Hall, Dublin, 1996), p 520; G Kelly, “Post Traumatic Stress Disorder: A Recognisable Psychiatric Illness” (1998) 16 ILT 10, 26, 39.

317

Mullally v Bus Éireann [1992] ILRM 722.

318

Kelly v Hennessy [1993] ILRM 530.

319

Kelly v Hennessy [1995] 3 IR 253 at 258–259 per Hamilton CJ. Cases applying the requirements as stated by Hamilton CJ include Devlin v National Maternity Hospital [2008] 2 IR 222; Larkin v Dublin City Council [2008] 1 IR 391. Note, however, A v C [2007] IEHC 120, where Laffoy J referred to the remarks of Geogahan J in Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 491 that in ordinary motor accident or workplace injury cases trial judges did not ordinarily have to consider anything other than reasonable foreseeability, and suggested that this might apply to the case before her, where the plaintiff was traumatised by the action of an adjoining landowner who, at 6 am, demolished a wall (the subject of a legal dispute between the parties) at the back of the house in which the plaintiff and her family resided, within their sight and hearing, commenting: “In my view, this case does not warrant the type of analysis which courts have had to embark on in the so-called ‘nervous shock’ cases, such as Kelly v Hennessy.”

102

Part I: Introduction

[3.680]

other judgment delivered, Denham J seemed to modify somewhat the approach she had adopted in her earlier decision in Mullally v Bus Éireann, placing more stress on proximity requirements rather than a simple foreseeability test.320 [3.680] The judgment of Hamilton CJ in this case, though given prior to Page v Smith,321 strongly suggested that Irish courts would apply the same foreseeability test regardless of whether the plaintiff was a primary or secondary victim. Page v Smith received some attention in the subsequent decision of the Irish Supreme Court in Fletcher v Commissioners of Public Works.322 The court stated its view that the particular question before them, which was whether the plaintiff had a cause of action for psychiatric injury caused by fear of the future consequences of asbestos inhalation, raised special issues different from ordinary psychiatric damage cases. However, Keane CJ and Geoghegan J both commented in some detail on the Page v Smith ruling that in the case of primary victims all that was required was foreseeability of some form of personal injury. While they emphasised that they did not have to rule on the issue, it seems clear that Irish courts are unlikely to follow this decision.323 Both judgments referred at some length to the widespread criticisms of Lord Lloyd’s judgment, both academic and judicial, notably the dissenting judgment of Lord Goff in White v Chief Constable of South Yorkshire Police.324 Neither was there much support for Lord Lloyd’s other innovations: Geoghegan J, for example, said that Lord Lloyd had “rather arbitrarily held” that in the case of secondary victims, but not primary victims, psychiatric injury had to be foreseeable in a person of normal fortitude.325 Both judges approved the tests of liability for psychiatric injury stated in Kelly v Hennessy,326 including the requirement that the plaintiff must show that the defendant “owed him or her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock”.327 Though on its facts Kelly involved liability to someone who the English courts would now classify as a secondary victim, it may be inferred from Fletcher that this will remain the general test for all occasions.

320

Kelly v Hennessy [1995] 3 IR 253 at 269–270, 274.

321

Page v Smith [1996] AC 155.

322

Fletcher v Commissioners of Public Works [2003] 1 IR 465, noted by P Handford (2003) 11 Tort L Rev 61. 323 Note also that Judge McMahon in Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 347 was “not convinced that the separation of victims into these two categories does anything to assist the development of legal principles that should guide the courts in this complex area of the law”. 324

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

325

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 508.

326

Kelly v Hennessy [1995] 3 IR 253.

327

Kelly v Hennessy [1995] 3 IR 253 at 259.

[3.700]

3 The Law Elsewhere

103

SINGAPORE [3.690] An important decision of the Singapore Court of Appeal shows that the courts of that country, like those in Ireland, take a generally enlightened approach to psychiatric injury claims: while not going as far as Australian courts, the narrow rules and unfortunate distinctions adopted in England have been avoided. In Ngiam Kong Seng v Lim Chiew Hock,328 a husband was badly injured in a road accident when a taxi collided with his motorcycle. As he lay on the road, the defendant came up to him, and the injured man, thinking he was a passer-by acting as a good Samaritan, asked for his wife to be contacted. The defendant phoned, telling the wife that the accident was not serious. When she arrived at the hospital, she found that her husband had been admitted to the emergency department and was shocked by his condition, which was very different from what she had been told: her husband had become a tetraplegic. The wife later discovered from passengers in the taxi that her informant was in fact the taxi-driver responsible for the accident, and that he had deceived her. The husband claimed damages from the owner of the taxi for his physical injuries, and the wife claimed damages for shock and psychiatric injury. However, the husband was unable to prove negligence, and the judge accepted a submission that if his case failed, the wife’s claim failed also.329 Here the trial judge fell into error, because the duty owed to a secondary victim should have been recognised as independent of the primary claim. Both plaintiffs appealed. [3.700] The Singapore Court of Appeal dismissed the appeals, but took the opportunity to set out the applicable principles on liability for psychiatric harm. Phang JA in essence adopted the general approach of Lord Wilberforce in McLoughlin v O’Brian,330 including the three factors of relationship, proximity to the scene and the means by which the shock was caused (which, Phang JA noted, were consistent with the distinction between circumstantial, physical and causal proximity made by Deane J in Jaensch v Coffey331), and set these issues in the context of the same judge’s two-stage test of duty of care in Anns v Merton London Borough Council332 which the Singapore Court of Appeal in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency333 had recently approved as the correct general approach to questions of duty of care in negligence. Before applying the two-stage test, it was necessary to establish the presence of a recognisable psychiatric illness and “factual 328 Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23, noted by G Chan Kok Yew (2008) 16 Tort L Rev 127; see also TK Leng, “Duty of Care for Psychiatric Harm: Back to Anns?” (2008) 14 PN 154. 329

Ngiam Kong Seng v Citycab Pte Ltd [2007] SGHC 30.

330

McLoughlin v O’Brian [1983] 1 AC 410.

331

Jaensch v Coffey (1984) 155 CLR 549 at 497: see [7.150].

332

Anns v Merton London Borough Council [1978] AC 728 at 751–752.

333

Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100.

104

Part I: Introduction

[3.710]

foreseeability”.334 The three factors were relevant to the first stage of the inquiry335 (establishing a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the wrongdoer carelessness on his or her part may be likely to cause damage to the injured party). This would give rise to a prima facie duty of care. At the second stage (considering whether there were any considerations that ought to negative or reduce or limit the scope of the duty, the class of persons to which it is owed or the damages to which a breach may give rise) broader public policy issues could be considered. [3.710] Phang JA then applied these principles to the facts of the wife’s case. Since the defendant would not have known how serious the husband’s injuries were at the time he phoned the wife, the question was whether a duty of care existed in respect of his failure to be more candid about his involvement. Though the threshold requirement of reasonable foreseeability would almost always be satisfied, it was not satisfied here — it could not be said to be reasonably foreseeable that the mere communication of information without more would result in harm. Assuming for the purposes of the argument that it was satisfied, though the requisite relational proximity existed, the other elements were absent. The alleged tort was the communication of information, not the causing of the accident; if the tort had been the accident then the wife would not be able to satisfy the physical proximity requirement. As to the means by which the shock was caused, Phang JA was not prepared to allow recovery for psychiatric harm arising from communication of information in cases where there was no malign intention.336 [3.720] While it is clear that Phang JA would not go as far as the Australian High Court in Tame v New South Wales337 — he said that while there might be cogent arguments for doing away with Lord Wilberforce’s second and third factors, this was a matter that should be left to the legislature — it should be emphasised that the approach now adopted in Ngiam Kong Seng v Lim Chiew Hock338 is much more flexible than the rigid rules that have been ratified in England. Another indicator is that in an earlier case the Singapore High Court rejected the alleged requirement of sudden shock, granting recovery to a plaintiff for the consequences of watching her daughter linger on in hospital after negligent surgery until she died three months later.339 Further, Phang JA in Ngiam Hong Seng subjected the Page v Smith340 primary and secondary victim distinction to searching analysis, concluding that it was a retrograde step and should 334

Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [109].

335

Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [48].

336

Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [13]–[140]. Phang JA refused to follow Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458: see [28.130].

337

Tame v New South Wales (2002) 211 CLR 317.

338

Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23.

339

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

340

Page v Smith [1996] AC 155.

[3.740]

3 The Law Elsewhere

105

not be adopted in Singapore.341 Courts in other parts of the common law world should draw encouragement from Singapore’s positive approach to psychiatric injury.

HONG KONG [3.730] Hong Kong, like Singapore, generally follows English precedents, but generally takes a positive approach and avoids the narrow distinctions found in recent English case law — or so it appears on the evidence of a recent case, Lee Wah v Lok Wai Wa.342 The 12-year-old Yik Hong Kwai was seriously injured after being knocked down by a bus driven by the defendant, and was certified dead after hours of attempted resuscitation at the hospital. His mother, the plaintiff, claimed damages for psychiatric injury. At the time of the accident, she was working as a tour guide and was on her way home from Shanghai. She arrived home to find a note pinned to her door telling her that her son had been admitted to the Queen Elizabeth Hospital. She rushed to the hospital but was not allowed to see her son because he was undergoing attempted resuscitation and emergency treatment. About four hours later, her son was declared dead. [3.740] Leung J said that in relation to secondary victim claims the appropriate starting point was always McLoughlin v O’Brian343 and the three limitations on the reasonable foreseeability test outlined by Lord Wilberforce: the class of persons, proximity to the accident, and the means by which the shock was caused. He also referred to the discussion of these principles by the House of Lords in the two Hillsborough cases,344 and the line of subsequent decisions of lower English courts culminating in Taylor v A Novo (UK) Ltd.345 However, Leung J said that these principles should be applied with common sense. As to the requirement of proximity, seeing the note on her door was part of the immediate aftermath of the accident, and her time at the hospital was also part of the immediate aftermath: Lee rushed to the hospital while what could be done to save Hong was being done. Hours later, she got to see Hong’s body when the resuscitation eventually failed. All were precipitated by the accident, and fell within the time and space of its immediate aftermath.346

As regards the means of communication, though she was first informed that something had happened to her son by means of the note on her door, she had no idea who had put it there, and it told her only that her 341

Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [95].

342

Lee Wah v Lok Wai Wa [2015] HKCFI 1144.

343

McLoughlin v O’Brian [1983] 1 AC 410.

344

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 345

Taylor v A Novo (UK) Ltd [2014] QB 150.

346

Lee Wah v Lok Wai Wa [2015] HKCFI 1144 at [60].

106

Part I: Introduction

[3.750]

son had been taken to hospital. The uncertainty about her son’s well-being created by the note was not resolved when she arrived at the hospital. She was not allowed to see her son, but was close to where he was being treated, and saw the hospital staff rushing about and a nurse go behind the curtain with a pack of blood. A doctor told her to be prepared for the worst, and finally she was told that attempts at resuscitation had been unsuccessful, and at this point she was allowed to see his body. She was thus present during the four-hour period during which her son was being treated, and “what she described was not merely information from third parties but her perception by sight and sound of what had happened and what was happening to Hong as a result of the accident”.347 Leung J summed up the case by saying: In my view, one must exercise common sense in understanding the scenario at the time and place. In the whole series of events experienced by Lee in those 4 to 5 hours, not a single moment in time could be frozen for study in isolation. Nor could the moment of Lee finally seeing the body of Hong. Otherwise, it will be too narrow a view to take about what are [sic] relevant to be taken into account, contrary to what the authorities say as discussed above.348

[3.750] Leung J also cited judicial and academic commentaries suggesting that English law was too restrictive and somewhat illogical.349 He referred to an earlier Hong Kong decision in which the judge had noted that much had been said in favour of abandoning other restrictions in the case of a person who had suffered a reasonably foreseeable psychiatric illness as a result of the death, injury or imperilment of person with whom he or she had a close tie of love and affection350 — the step which has now been taken in Australia.

UNITED STATES [3.760] The development of liability for psychiatric injury in England and the other jurisdictions discussed in this chapter has been paralleled by a similar story in the United States.351 Reference to United States law involves a degree of generalisation, because the law is State law and the 347

Lee Wah v Lok Wai Wa [2015] HKCFI 1144 at [68].

348

Lee Wah v Lok Wai Wa [2015] HKCFI 1144 at [70].

349

Lee Wah v Lok Wai Wa [2015] HKCFI 1144 at [76].

350

Yang Yee Man v Leung Hing Hung [2012] 5 HKLRD 782 at [8] per Bharwaney J.

351

The literature on the law in the United States is immense. For a summary of the present position see DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 1, pp 571–583, 589–614. Older surveys include J Hwang, “Emotional Distress Law in Disarray” in 1987 Annual Survey of American Law (Oceana, New York, 1988), p 475; DB Marlowe, “Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective versus Subjective Indices of Distress” (1988) 33 Villanova L Rev 781. Among the most important general discussions are: RS Miller, “The Scope of Liability for Negligent Infliction of Emotional Distress: Making “The Punishment Fit the Crime”” (1979) 1 U Haw L Rev 1; VE Nolan & E Ursin, “Negligent Infliction of Emotional Distress: Coherence Emerging from Chaos” (1982) 33 Hastings LJ 583; RA Chesley, “The Increasingly Disparate Standards of Recovery for Negligently Inflicted Emotional Injuries” (1983) 52 Cin L Rev 1017; PA Bell,

[3.760]

3 The Law Elsewhere

107

speed and extent of development has differed from one jurisdiction to another. However, looking at the general picture, it is interesting to note that the United States has generally been more reluctant to open up the gates of liability than either Australia or England.352 The United States courts adopted the spirit of the decision in Victorian Railways Commissioners v Coultas353 and erected a barrier to recovery in the shape of the “impact rule”;354 the arguments against liability stated in Coultas were repeated “The Bell Tolls: Toward Full Tort Recovery for Psychic Injury” (1984) 36 U Fla L Rev 333; RN Pearson, “Liability for Negligently Inflicted Psychic Harm: A Response to Professor Bell” (1984) 36 U Fla L Rev 413; PA Bell, “Reply to a Generous Critic” (1984) 36 U Fla L Rev 437; W Winter, “A Tort in Transition: Negligent Infliction of Mental Distress” (1984) 70 ABAJ 62; CE Cantu, “Negligent Infliction of Emotional Distress: Expanding the Rule Evolved since Dillon” (1986) 17 Tex Tech L Rev 1557; D Crump, “Evaluating Independent Torts Based upon “Intentional” or “Negligent” Infliction of Emotional Distress: How can we Keep the Baby from Dissolving in the Bathwater” (1992) 34 Ariz L Rev 439; RJ Rhee, “A Principled Solution for Negligent Infliction of Emotional Distress Claims” (2004) 36 Ariz St LJ 805; RL Rabin, “Emotional Distress in Tort Law: Themes of Constraint” (2009) 44 Wake Forest L Rev 1197. For a historical perspective see FH Bohlen, “Right to Recover For Injury Resulting from Negligence Without Impact” (1902) 41 American Law Register (ns) 141, reprinted in FH Bohlen, Studies in the Law of Torts (Bobbs-Merrill, Indianapolis,1926), pp 252–290; FM Burdick, “Tort Liability for Mental Disturbance and Nervous Shock” (1905) 5 Col L Rev 179; AH Throckmorton, “Damages For Fright” (1921) 34 Harv L Rev 260; HF Goodrich, “Emotional Disturbance as Legal Damage” (1922) 20 Mich L Rev 497; L Green, ““Fright” Cases” (1933) 27 Ill L Rev 761, 873; C Magruder, “Mental and Emotional Disturbance in the Law of Torts” (1936) 49 Harv L Rev 1033; FV Harper and MC McNeely, “A Re-examination of the Basis of Liability for Emotional Distress” [1938] Wis L Rev 426. For a feminist interpretation see M Chamallas and LK Kerber, “Women, Mothers and the Law of Fright: A History” (1990) 88 Mich L Rev 814; M Chamallas, “Unpacking Emotional Distress: Sexual Exploitation, Reproductive Harm, and Fundamental Rights” (2009) 44 Wake Forest L Rev 1109. 352

See Comment, “Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases” (1968) 35 U Chi L Rev 512; Comment, “Bystander Recovery for Emotional Distress” (1969) 37 Fordham L Rev 429; JK Golden, “The Development of Recovery for Negligently Inflicted Mental Distress Arising from Peril or Injury to Another: An Analysis of the American and Australian Approaches” (1977) 26 Emory LJ 647; PR Handford, “Intentional Infliction of Mental Suffering — Analysis of the Growth of a Tort” (1979) 8 Anglo-Am LR 1 at 3–13; AN Khan, “Liability for Nervous Shock by Negligence” (1983) 12 Anglo-Am LR 263; Comment, “The New English Approach to Emotional Distress: Should American Courts Declare Their Independence?” (1986) 19 Cornell International LJ 65; D Partlett, “Tort Liability and the American Way: Reflections on Liability for Emotional Distress” (1997) 45 AJCL 171; MH Matthews, “Negligent Infliction of Emotional Distress: A View of the Proposed Restatement (Third) Provisions from England” (2011) 44 Wake Forest L Rev 1177. Cases in which non-United States courts have made reference to American authorities include Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 329–333 per Amarjeet JC; Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) at 66–69 per Navsa J; Hancock v Nominal Defendant [2002] 1 Qd R 578 at [100] per Byrne J; contrast the conclusion of Morland J in CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 163, after dealing with the American authorities cited to him: “In my judgment American cases are not particularly helpful. The culture of American personal injury litigation is very different.” 353 354

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

See eg Lehman v Brooklyn City Railroad Co 47 Hun NY 355 (1888) (the first case); Ewing v Pittsburgh CC & St L Railway Co 23 A 340 (Pa 1892); Mitchell v Rochester Railway Co 45 NE 354

108

Part I: Introduction

[3.760]

over and over again.355 However, the courts soon began to find that the impact rule was an inconvenient restriction on recovery. Some tried to get round it by holding that even the most trivial contact constituted impact.356 Others went further and abolished the rule altogether.357 The

(NY 1896); Spade v Lynn & B Rail Co 47 NE 88 (Mass 1897); Braun v Craven 51 NE 657 (Ill 1898); Cleveland CC & St L Rail Co v Stewart 56 NE 917 (Ind 1899); Ward v West Jersey & S Rail Co 47 A 561 (NJ 1900). For a comprehensive list of cases, see Restatement of Torts Second 1965 (US), § 436, Reporter’s Note. 355

See Lehman v Brooklyn City Railroad Co 47 Hun NY 355 (1888) (the first case); Ewing v Pittsburgh CC & St L Railway Co 23 A 340 (Pa 1892); Mitchell v Rochester Railway Co 45 NE 354 (NY 1896); Spade v Lynn & B Rail Co 47 NE 88 (Mass 1897); Braun v Craven 51 NE 657 (Ill 1898); Cleveland CC & St L Rail Co v Stewart 56 NE 917 (Ind 1899); Ward v West Jersey & S Rail Co 47 A 561 (NJ 1900). For more recent cases advocating these old-fashioned views, see Morgan v Hightower’s Administrator 163 SW 2d 21 (Ky 1942); Bartow v Smith 78 NE 2d 735 (Ohio 1948); Bosley v Andrews 142 A 2d 263 (Pa 1958) (where an elderly lady who suffered a heart attack when chased by a bull escaping with a herd of cows was denied recovery because there was no impact — Musmanno J (dissenting) said at 280 “the policy of non-liability … is insupportable in law, logic and elementary justice – and I shall continue to dissent from it until the cows come home”); Amaya v Home Ice, Fuel & Supply Co 379 P 2d 513 (Cal 1963) (a case upholding the “zone of danger” rule). 356

For examples of instances held to satisfy this requirement see Consolidated Traction Co v Lambertson 36 A 100 (NJ 1896) (trivial jolt); Spade v Lynn & B Rail Road 52 NE 747 (Mass 1899) (slight blow) (this was the retrial — in the first hearing, Spade v Lynn & B Rail Road 47 NE 88 (Mass 1897), it was held that no recovery could be granted in the absence of impact); Homans v Boston Elevated Railway Co 62 NE 737 (Mass 1902) (slight bump against seat); Porter v Delaware L & W Rail Co 63 A 860 (NJ 1906) (dust in the eye); Kentucky Traction Terminal Co v Roman’s Guardian 23 SW 2d 272 (Ky 1929) (minor burn); Morton v Stack 170 NE 869 (Ohio 1930) (inhaling smoke); Comstock v Wilson 177 NE 431 (NY 1931) (fall brought about by faint after collision). More recent examples include Clark v Choctawhatchee Electric Co-op 107 So 2d 609 (Fla 1958) (electric shock); Deutsch v Schein 597 SW 2d 141 (Ky 1980) (x-ray bombardment); Landry v Florida Power & Light Corporation 799 F Supp 94 (1992) (inhalation of asbestos fibres). Note, however, Metro-North Commuter Rail Co v Buckley 521 US 424 (1997), where the United States Supreme Court held that physical contact with insulation dust did not constitute “physical impact”. The most absurd cases of this kind were Kenney v Wong Len 128 A 343 (NH 1925) where there was held to be sufficient impact when a mouse hair in a spoonful of stew touched the roof of the plaintiff’s mouth, and Christy Bros Circus v Turnage 144 SE 680 (Ga 1928) in which the requirement was satisfied when a circus horse “evacuated its bowels” in the plaintiff’s lap. However, in OB-GYN Associates of Albany v Littleton 386 SE 2d 146 (Ga 1989) the Georgia Supreme Court overruled this decision and reaffirmed the impact rule. More recent cases continue to show the artificiality of the impact rule, eg Wishard Memorial Hospital v Logwood 512 NE 2d 1126 (Ind 1987) (action against a hospital for damages for emotional distress suffered by a mother due to a baby swap was denied on the ground that placing her baby in the arms of another woman did not constitute impact to either the infant or the parents); Simons v Beard 72 P 3d 96 (Or 2003) (impact requirement satisfied when doctors released a mother in labour from hospital and told her not to return even after contractions became more frequent); Willis v Gami Golden Glades LLC 967 So 2d 846 (Fla 2007) (hotel guest robbed at gunpoint, gunman required plaintiff to lift her shirt, placed hands on her exposed body, this held to be sufficient impact). 357

Among the factors which contributed to this development were the existence of special forms of liability involving purely mental injury — the liability of carriers to insulted passengers, and liability for interference with dead bodies: for leading cases see Chamberlain v Chandler 5 Fed Cas No 2,575 (1823); Goddard v Grand Trunk Railway 57 Me 202 (1869) (carriers); Larson v Chase 50 NW 238 (Minn 1891) (bodies). See also [18.40].

[3.770]

3 The Law Elsewhere

109

first State to do this was Texas in 1890,358 and other jurisdictions gradually followed,359 the most recent being Kentucky in 2012.360 The impact rule has now been abandoned in all except five States, in two of which it operates in modified form.361 [3.770] The jurisdictions that thus recognised liability for shock tended to do so on the basis that the plaintiff was within the “zone of danger” 358

Hill v Kimball 13 SW 59 (Tex 1890). See JE Hallen, “Hill v Kimball – A Milepost in the Law” (1933) 12 Tex L Rev 1.

359

Among the more prominent early decisions were Purcell v St Paul City Railway Co 50 NW 1034 (Minn 1892); Sloane v Southern California Railway Co 44 P 320 (Cal 1896); Stewart v Arkansas S Rail Co 36 So 676 (La 1904); Green v TA Shoemaker & Co 73 A 688 (Md 1909); Alabama Fuel & Iron Co v Baladoni 73 So 205 (Ala 1916); Hanford v Omaha & CB Street Railway Co 203 NW 643 (Neb 1925); Chiuchiolo v New England Wholesale Tailors 150 A 540 (NH 1930). After a lull, Battalla v State 176 NE 2d 729 (NY 1961) (on which see TF Lambert, “Tort Liability for Psychic Injuries” (1961) 41 BUL Rev 584) provided the impetus for further change. Since then, the following jurisdictions have repudiated the impact rule: Delaware (Robb v Pennsylvania Rail Co 210 A 2d 709 (Del 1965)); New Jersey (Falzone v Busch 214 A 2d 12 (NJ 1965)); Vermont (Savard v Cody Chevrolet Inc 234 A 2d 656 (Vt 1967)); Arizona (City of Tucson v Wondergem 466 P 2d 383 (Ariz 1970)); Hawaii (Rodrigues v State 472 P 2d 509 (Haw 1970)); Maine (Wallace v Coca-Cola Bottling Plants Inc 269 A 2d 117 (Me 1970)); Michigan (Daly v La Croix 179 NW 2d 390 (Mich 1970)); Pennsylvania (Niedermann v Brodsky 261 A 2d 84 (Pa 1970)); New Mexico (Aragon v Speelman 491 P 2d 173 (NM 1971)); North Dakota (Whetham v Bismarck Hospital 197 NW 2d 678 (ND 1972)); Virginia (Hughes v Moore 197 SE 2d 214 (Va 1973)); Mississippi (First National Bank v Langley 314 So 2d 324 (Miss 1975)); Colorado (Towns v Anderson 579 P 2d 1163 (Col 1978)); Massachusetts (Dziokonski v Babineau 380 NE 2d 1295 (Mass 1978)); Iowa (Barnhill v Davis 300 NW 2d 104 (Iowa 1981)); Illinois (Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983)); Missouri (Bass v Nooney Co 646 SW 2d 765 (Mo 1983)); Ohio (Schultz v Barberton Glass Co 447 NE 2d 109 (Ohio 1983)); Nevada (State v Eaton 710 P 2d 1370 (Nev 1985)); Wyoming (Gates v Richardson 719 P 2d 193 (Wyo 1986)); Utah (Johnson v Rogers 763 P 2d 771 (Utah 1988)); District of Columbia (Williams v Baker 572 A 2d 1062 (DC 1990)). The impact rule has also clearly been abolished in Idaho and Alaska, though the authorities do not make any direct reference to the fact: see Summers v Western Idaho Potato Processing Co 479 P 2d 292 (Id 1971); Tommy’s Elbow Room Inc v Kavorkian 727 P 2d 1038 (Alaska 1986). It is worthy of note that the impact rule was retained longest in jurisdictions with large urban areas and a consequent greater volume of traffic (see J McNeice, “Psychic Injury and Tort Liability in New York” (1949) 24 St Johns L Rev 1 at 32), the most conspicuous exceptions being California and Texas, which had settled their attitude to these cases before their cities started to grow. 360 361

Osborne v Keeney 399 SW 2d 1 (Ky 2012).

The hard-line impact rule is retained in Arkansas (Wood v National Computer Systems Inc 814 F 2d 544 (1987)); Georgia (OB-GYN Associates of Albany v Littleton 386 SE 2d 146 (Ga 1989), but note discussion in Lee v State Farm Mutual Insurance Co 533 SE 2d 82 (Ga 2000) and McCunney v Clary 576 SE 2d 635 (Ga 2003)); Oregon (Chouinard v Health Ventures 39 P 3d 951 (Ore 2002)). In Florida, the “modified impact rule” allows a claim where physical injury is caused by psychic trauma resulting from a negligent injury to another who because of his or her relationship with that other and their involvement in the event is foreseeably injured: Champion v Gray 478 So 2d 17 (Fla 1985); see also RJ v Humana of Florida Inc 652 So 2d 360 (Fla 1995); Zell v Meek 665 So 2d 1048 (1995); Hagan v Coca-Cola Bottling Co 804 So 2d 1234 (2001). In Indiana, when a plaintiff sustains a direct impact by the negligence of another, and by virtue of that direct involvement sustains emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, the plaintiff can recover for that emotional trauma without regard to whether it arises out of or accompanies any physical injury to the plaintiff (Shuamber v Henderson 579 NE 2d 452 (Ind 1991)); witnessing an accident to a close family member may be sufficient direct involvement:

110

Part I: Introduction

[3.770]

and therefore in fear of physical injury,362 a requirement similar to Kennedy J’s ruling in Dulieu v White & Sons363 that the plaintiff must suffer shock through fear of injury to himself or herself. According to the Wisconsin court that first adopted it,364 the rule was based on the classic judgment of Cardozo J in Palsgraf v Long Island Railroad Co.365 The zone of danger rule is still adhered to by a substantial number of jurisdictions;366 it has recently been affirmed by the United States Supreme Court as the most desirable rule to apply in the context of actions under the Federal Employers’ Liability Act;367 and has also been adopted in federal maritime Groves v Taylor 729 NE 2d 569 (Ind 2000). In Atlantic Coast Airlines v Cook 857 NE 2d 989 (Ind 2006) at 997, the court said “We thus adopted what is now commonly referred to as the bystander rule”; see also Spangler v Bechtel 958 NE 2d 656 (Ind 2007). 362

See particularly Waube v Warrington 258 NW 497 (Wis 1935); Resavage v Davies 86 A 2d 879 (Md 1952); Amaya v Home Ice, Fuel & Supply Co 379 P 2d 513 (Cal 1963); Niedermann v Brodsky 261 A 2d 84 (Pa 1970); Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983); Bovsun v Sanperi 461 NE 2d 843 (NY 1984). The zone of danger rule was adopted by the Restatement of Torts Second 1965 (US): see §§ 313(2), 436(2). 363

Dulieu v White & Sons [1901] 2 KB 669 at 675.

364

Waube v Warrington 258 NW 497 (Wis 1935) at 498 per Wickhem J.

365

Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928): see [7.330].

366

At least 17 States still retain this rule: Alabama, Arizona, Colorado, Delaware, District of Columbia, Idaho, Illinois, Maryland, Minnesota, Missouri, New York, North Dakota, Oklahoma, South Dakota, Utah, Vermont and Virginia. Kansas may also fall into this group, but the cases are inconclusive. For detailed listings see Annotation, “Recovery under State Law for Negligent Infliction of Emotional Distress Due to Witnessing Injury to Another where Bystander Plaintiff must Suffer Physical Impact or be in Zone of Danger” 89 ALR 5th 255 (DJ Gilsinger); note also DB Marlowe, “Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective versus Subjective Indices of Distress” (1988) 33 Villanova L Rev 781 at 796–799. For recent examples of jurisdictions affirming the zone of danger rule in preference to full bystander recovery, see Johnson v Rogers 763 P 2d 771 (Utah 1988); Williams v Baker 572 A 2d 1062 (DC 1990); Asaro v Cardinal Glennon Memorial Hospital 799 SW 2d 595 (Mo 1990); Carlson v Illinois Farmers Insurance Co 520 NW 2d 534 (Minn 1994); Leo v Hillman 665 A 2d 572 (Vt 1995); Nielson v AT & T Corporation 597 NW 2d 434 (SD 1999); Feng v Metropolitan Transportation Authority 727 NYS 2d 470 (NY 2001); Re Air Crash at Belle Harbor, New York on November 12, 2001 450 F Supp 2d 432 (2006). The most recent affirmation is Coleson v City of New York 24 NE 3d 1074 (NY 2014) (child not in zone of danger when mother stabbed by father, because child was hiding in broom closet and so did not see and was not immediately aware of incident). Some courts, while retaining the zone of danger rule, may be able to base recovery on the “direct victim” principle (see [18.190]–[18.240]): eg Hedgepeth v Whitman Walker Clinic 22 A 3d 789 (DC 2011), noted (2011) 125 Harv L Rev 642 (the court, while retaining the zone of danger rule, was prepared to recognise a supplementary rule jettisoning the need for imminent physical harm where the parties were in a special relationship).

367

Consolidated Rail Corporation v Gottshall 512 US 532 (1994), a claim under the Federal Employers’ Liability Act by a plaintiff who suffered severe emotional distress on witnessing the death of a fellow-worker. According to the reporter, the majority reasoned that this rule was “the only common-law test that exhibits both significant historical support and continuing vitality sufficient to inform the Court’s determination of the federal question of what constitutes FELA ‘negligence’ in this context”: Consolidated Rail Corporation v Gottshall 129 L Ed 2d 427 (1994) at 434. Three of the nine judges dissented and endorsed the bystander rule. However, two subsequent Supreme Court cases show that under the FELA the court will distinguish between claims for emotional distress standing alone and claims for

[3.780]

3 The Law Elsewhere

111

law.368 The rule in its classical form required that the plaintiff should not only be within the zone of physical danger but also suffer shock through fear of physical harm to himself or herself.369 However, led by New York, a few jurisdictions now operate a modified form of the rule under which plaintiffs may recover for emotional distress occasioned by fear for the safety of another provided they themselves are within the zone of danger.370 [3.780] Not until 1968 was this barrier breached. Then, as is the case with subsequent developments in this area, California led the way. In Dillon v Legg,371 a mother recovered damages for emotional distress suffered on witnessing the death of her infant daughter, who was run down by a negligent driver as she crossed the street, even though the mother was herself in no danger. The Californian Supreme Court held emotional suffering associated with physical injury. In Metro-North Commuter Rail Co v Buckley 521 US 424 (1997), a claim by workers who had been exposed to asbestos but had no health problems at the time of the action, the court held that exposure to asbestos constituted “physical impact” as this term was used in Gottshall (when referring to the “immediate risk of physical impact”). In Norfolk & Western Railway Co v Ayers 538 US 135 (2003), noted by Butler D (2003) 11 Tort L Rev 132, the plaintiffs were already suffering from asbestosis: it was held that they could recover damages for the fear that they would contract cancer without proof of physical manifestation of that illness. In Tame v New South Wales (2002) 211 CLR 317, Gummow and Kirby JJ at 375, commenting on Gottshall, said that the development of tests such as this restricting the right to recovery was a result of identifying the interest of plaintiffs in broad terms as one in peace of mind, and so allowing recovery for pure emotional distress, rather than restricting it to an interest in freedom from psychiatric injury as the Anglo-Australian common law does. On this aspect of the United States law, see [6.160]. 368 Stacy v Rederiet Otto Danielsen AS 609 F 3d 1033 (2010) (freighter almost collided with fishing vessel, owner recovered damages for negligent infliction of emotional distress on the basis that he was within zone of danger); Chaparro v Carnival Corporation 693 F 3d 1333 (2012) (cruise ship passenger shot when ship in Virgin Islands, parents who witnessed shooting when trapped in tour bus recovered damages because in zone of danger). 369

See eg Amaya v Home Ice Fuel & Supply Co 379 P 2d (Cal 1963) (plaintiff who claimed emotional distress caused by viewing death of infant son in accident refused to amend complaint to allege she had feared for her own safety, court found she was not within zone of danger), and compare Lindley v Knowlton 176 P 440 (Cal 1918) (family attacked by escaped chimpanzee, mother recovered on basis that she feared for her own safety as well as that of her children). 370

In Tobin v Grossman 249 NE 2d 419 (NY 1969) the New York Court of Appeals pointed out that the zone of danger concept and the principle that the plaintiff must suffer shock through fear for his or her own safety were not the same, since the former was wide enough to permit a plaintiff to recover for shock suffered through fear for the safety of someone else who was also within the zone of danger. Whetham v Bismarck Hospital 197 NW 2d 678 (ND 1972) is a good example of the distinction: a mother who saw a nurse drop her newborn baby on the floor and heard the skull crack recovered on the basis that she was within the zone of danger. In Bovsun v Sanperi 461 NE 2d 843 (1984) New York ultimately adopted the wider version of the zone of danger rule, rather than the narrower principle upheld in Tobin v Grossman. See TT Uhl, “Bystander Emotional Distress: Missing an Opportunity to Strengthen the Ties that Bind” (1995) 61 Brooklyn L Rev 1399. For other jurisdictions adopting a similar principle, see Keck v Jackson 593 P 2d 668 (Ariz 1979); Nielson v AT & T Corporation 597 NW 2d 434 (SD 1999).

371

Dillon v Legg 441 P 2d 912 (Cal 1968).

112

Part I: Introduction

[3.790]

that liability should depend on whether harm was foreseeable by a reasonable person in all of the circumstances, taking into account the factors of the plaintiff’s location, whether the shock resulted from a direct emotional impact on the plaintiff from sensory and contemporaneous observance, as contrasted with merely hearing about it later, and the plaintiff’s relationship to the accident victim372 — “nearness, hearness, and dearness”, as one commentator has put it.373 Thus, for the first time, an American court adopted the principle of “bystander recovery”.374 [3.790] A number of jurisdictions have followed California in recognising this extended liability,375 but even among States which permit bystander recovery there are major differences.376 The most important 372

Dillon v Legg 441 P 2d 912 (Cal 1968) at 920–921.

373

Comment, “Negligent Infliction of Emotional Distress: Formulating the Psychological Inquiry” (1984) 18 Suffolk L Rev 401 at 407.

374

For the adoption of bystander recovery by the Restatement Third, see Restatement of the Law Third – Torts: Liability for Physical and Emotional Harm 2011 (US), § 47. Of course, the recognition of bystander recovery does not preclude the application of older principles: those who are personally involved in accidents, and suffer emotional distress through fear for their own safety, can still recover damages: see eg Brown v Philadelphia College of Osteopathic Medicine 674 A 2d 1130 (Pa 1996); Gaynor v State Farm Mutual Auto Insurance Co 727 So 2d 1279 (La 1999). The Restatement Third recognises this principle: see Restatement of the Law Third – Torts: Liability for Physical and Emotional Harm 2011 (US), § 46. The restrictions on bystander recovery will not apply in such situations: see eg In re Air Crash Disaster near Cerritos, Cal, Aug 31, 1986 973 F 2d 1490 (1992); Long v PKS Inc 16 Cal Rptr 2d 103 (1993); Maldonado v National Acme Co 73 F 3d 642 (1996). 375

It appears that the bystander principle is now adopted in 28 States: Alaska, California, Connecticut, Hawaii, Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Washington, West Virginia, Wisconsin and Wyoming. For detailed listings, see Annotation, “Recovery under State Law for Negligent Infliction of Emotional Distress under Rule of Dillon v Legg, 68 Cal 2d 728, 69 Cal Rptr 72, 441 P 2d 912 29 ALR 3d 1316 (1968), or Refinements Thereof” 96 ALR 5th 107 (DJ Gilsinger); see also DB Marlowe, “Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective versus Subjective Indices of Distress” (1988) 33 Villanova L Rev 781 at 806–817. For the most recent recognitions, see Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990); Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990); Heldreth v Marrs 425 SE 2d 157 (WVa 1992); Bowen v Lumbermen’s Mutual Casualty Co 517 NW 2d 432 (Wis 1994) (especially significant, since it marks the abandonment of the zone of danger rule by the first jurisdiction to adopt it); Clohessy v Bachelor 675 A 2d 852 (Conn 1996); Ramsey v Beavers 931 SW 2d 527 (Tenn 1996); Osborne v Keeney 399 SW 2d 1 (Ky 2012). Plaintiffs who do not satisfy the requirements for bystander recovery may nevertheless have a right of action if they can show they were within the zone of danger: see eg Jablonowska v Suther 948 A 2d 610 (NJ 2008). 376

See JP Towey, “Negligent Infliction of Mental Distress: Reaction to Dillon v Legg in California and Other States” (1974) 25 Hastings LJ 1248; AJ Simons, “Psychic Injury and the Bystander: The Transcontinental Dispute between California and New York” (1976) 51 St Johns L Rev 1; RN Pearson, “Liability to Bystanders for Negligently Inflicted Emotional Harm — A Comment on the Nature of Arbitrary Rules” (1982) 34 U Fla L Rev 477; JL Diamond, “Dillon v Legg Revisited: Toward a Unified Theory of Compensating Bystanders and Relatives for Intangible Injuries” (1984) 35 Hastings LJ 477.

[3.790]

3 The Law Elsewhere

113

controversy is illustrated by the subsequent history of the Dillon v Legg377 rule in California itself. The intention behind the judgment in this case was that the three factors should not be prerequisites to recovery, but merely considerations that assisted in the application of the foreseeability test. Some later cases so interpreted them378 — thus, for example, recognising what has become referred to in England, Australia and elsewhere as the aftermath doctrine379 — but others did not. The subsequent pronouncement of the California Supreme Court in Thing v La Chusa,380 ruling that the three factors are to be reinterpreted as strict rules, indicates a disenchantment with the uncertainty engendered by the Dillon v Legg approach.381 This divide is reflected in the jurisprudence of other States: it appears that four States382 still adhere to a pure foreseeability test along Dillon v Legg lines, but most others reject this wide approach and impose additional limitations of one kind or another.383 California was again in the forefront of another important development, by which some jurisdictions abandoned the requirement that emotional distress had to have physical or psychiatric results,384 but others continue to require resulting physical harm.385 Finally, while Thing v La Chusa might seem to herald a return to a stricter approach, in a parallel series of cases culminating in Burgess v Superior Court (Gupta),386 decided shortly after Thing v La Chusa, the California Supreme Court has emphasised that these limitations apply only to “bystander” cases and not to “direct victim” situations, that is, cases where the plaintiff who suffers psychiatric injury is owed some pre-existing duty of care. Again, some other jurisdictions have followed this lead.387 The law in the United States is a kaleidoscope in which the pattern is continually changing.

377

Dillon v Legg 441 P 2d 912 (Cal 1968).

378

In particular, Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985).

379

See [10.420].

380

Thing v La Chusa 771 P 2d 814 (Cal 1989): see Comment, “Thing v La Chusa: Public Policy Demands a Limitation on the Bystander Recovery for Infliction of Emotional Distress” (1990) 17 W St U L Rev 499; see also [8.330]. On the application of the principles of Thing v La Chusa to cases involving the negligent mishandling of human remains, see [6.160].

381

“There are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury”: Thing v La Chusa 771 P 2d 814 (Cal 1989) at 830 per Eagleson J.

382

Hawaii, Montana, North Carolina and Idaho.

383

See Annotation, “Recovery under State Law for Negligent Infliction of Emotional Distress under Rule of Dillon v Legg, 68 Cal 2d 728, 69 Cal Rptr 72, 441 P 2d 912 29 ALR 3d 1316 (1968), or Refinements Thereof” 96 ALR 5th 107 (DJ Gilsinger), § 2(a).

384

See Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980).

385

See [6.160].

386

Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992).

387

See [18.180]–[18.240]. Some recent cases have referred to Page v Smith [1996] AC 155 with approval: see Janicki v Hospital of St Raphael 744 A 2d 963 (Conn 1999) at 974; Kelly v Brigham & Women’s Hospital 745 NE 2d 969 (Mass 2001) at 979.

PART II Mental Harm 4.

Recognised Psychiatric Illness ................................................................................................. 117

5.

A Medical Perspective ............................................................................................................... 135

6.

Attempts to Lower the Barrier ................................................................................................ 175

Chapter 4

Recognised Psychiatric Illness [4.10] INTRODUCTION ................................................................................................................ 117 [4.30] COMMON LAW: RECOGNISABLE PSYCHIATRIC ILLNESS .................................. 120 [4.70] CIVIL LIABILITY ACTS: RECOGNISED PSYCHIATRIC ILLNESS .......................... 125 [4.120] IS THE CAUSE OF THE PSYCHIATRIC ILLNESS MATERIAL? ............................ 129

INTRODUCTION [4.10] “Nervous shock” is the “hallowed expression”1 that the courts have traditionally used to describe the form of personal harm with which this work is concerned. If ever it had any real significance in medical terms, that time is long since past, and the retention by lawyers of such “quaint” language has often been criticised.2 It has been said that its use “indicates a scant acquaintance with the subtleties of psychiatric medicine”.3 The chief objection is that it is entirely inappropriate to describe the harm for which relief may be had. Transient shock does not attract damages: rather it is the mental and physical consequences that flow from it that may be compensable.4 Some judges have gone so far as to stigmatise the use of such terminology as “misleading and inaccurate”,5 though some have retained “nervous shock” as a convenient label, on the 1

McLoughlin v O’Brian [1983] 1 AC 410 at 418 per Lord Wilberforce.

2

See eg McLoughlin v O’Brian [1983] 1 AC 410 at 432 per Lord Bridge; De Franceschi v Storrier (1988) 85 ACTR 1 at 6 per Miles CJ; Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 per Kirby P (“It is highly artificial to imprison the legal cause of action for psychiatric injury in an outmoded scientific view about the nature of its origins”); note also Giller v Procopets (2008) 24 VR 1 at [31] per Maxwell P. 3

Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 185 per Samuels JA.

4

In Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 27–28 Devlin J said when referring to a case of fright caused by an elephant: “I am satisfied that the shock must have been considerable. I should like to award [the plaintiff] a most substantial sum under this head but I am satisfied that I cannot do so except to the extremely limited extent that the shock resulted in physical and mental harm. I think that is clearly the effect of the authorities. When the word ‘shock’ is used in them it is not in the sense of a mental reaction but in a medical sense as the equivalent of nervous shock.” His Lordship went on to refer to MacKinnon LJ in Owens v Liverpool Corporation [1939] 1 KB 394 at 400 who spoke of nervous shock as a “form of ill-health” which is “ascertainable by the physician”. 5

Attia v British Gas plc [1988] QB 304 at 317 per Bingham LJ. See also Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 76 per Ward J; Sahin v Carroll (unreported, NSWSC, No 13161 of 1991, 3 August 1995) at [1] per Spender AJ; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 208–209 per Van Heerden DCJ.

118

Part II: Mental Harm

[4.20]

proviso that it is understood to refer to the psychiatric illnesses that result from emotional stress and not the emotional stress itself.6 The leading Australian case of Tame v New South Wales7 is an interesting example. While most of the judgments are consistent in their use of modern language, two of them clearly retain a preference for describing the cause of action as one for “nervous shock”.8 [4.20] Outdated terminology can only serve to confuse. Moreover, it may hinder the development of desirable doctrine, for example encouraging the retention of the unsatisfactory rule (now rejected in Australia and South Africa, but retained in England and elsewhere) that compensable damage of the kind under consideration must arise by way of a sudden shock.9 In order to develop a modern body of coherent principle, it is important to sever links with the past and to adopt language that is consistent with modern medical practice and accurately reflects the injury that the plaintiff seeks to redress. From about 1970 6 See eg Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394–395 per Windeyer J; Jaensch v Coffey (1984) 155 CLR 549 at 560 per Brennan J; Brice v Brown [1984] 1 All ER 997 at 1006 per Stuart-Smith J; Attia v British Gas plc [1988] QB 304 at 311 per Dillon LJ, at 313 per Woolf LJ; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 351 per Parker LJ; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [1] per McEachern CJBC; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 208 per Van Heerden DCJ. Other prominent judgments simply continue to use the traditional terminology: notable examples include Jaensch v Coffey (1984) 155 CLR 549 at 611 per Dawson J; Pham v Lawson (1997) 68 SASR 124 at 137 per Lander J; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 419 per Lord Jauncey of Tullichettle; Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 322 per Amarjeet JC; Kelly v Hennessy [1995] 3 IR 253 at 258 per Hamilton CJ. Even at the present day, some Australian judges, particularly those in New South Wales, opt to retain the term that is most familiar to them: see eg O’Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824 at [4] per Garling J; Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at [4] per Beech-Jones J. Compare Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37, where McColl JA at [62] made it clear that her use of the term “nervous shock” was confined to discussion of decisions under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which used that term (see [13.30]), and that it “should be understood, however, to be intended to be synonymous with the contemporary expression of ‘recognisable psychiatric illness’”. 7

Tame v New South Wales (2002) 211 CLR 317.

8

McHugh J generally referred to “a nervous shock action” without seeing any need to justify the use of this term, though he made it clear that this means an action for the negligent infliction of pure psychiatric injury: Tame v New South Wales (2002) 211 CLR 317 at [87]. Callinan J said (at [328]): “I do not think that anything turns in this case upon whether the appellant would seek to identify the injury as nervous shock, or a psychiatric or psychological injury. … Nervous shock is … a convenient term which well expresses necessary elements of the cause of action.” McHugh and Callinan JJ adopted the same approach in their judgments in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. In contrast, in the leading English case of White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, all the judges consistently used terms such as “psychiatric injury”. 9

See Chapter 12. Note Tame v New South Wales (2002) 211 CLR 317 at [308] per Callinan J (who dissented on the sudden shock issue): “To call it nervous shock is more than a mere matter of convenient shorthand. The term ‘nervous shock’ well conveys the idea of an extremely sudden, unexpected, highly disturbing, or nerve-wracking event of the kind for which the courts have generally consistently looked as a precondition to the recovery of damages.”

[4.20]

4 Recognised Psychiatric Illness

119

onwards most judges came to appreciate this, electing to refer, in more medically appropriate terms, to a “recognisable psychiatric illness”10 — though even this term may be a little out of date, since psychiatry now prefers the term “psychiatric disorder”.11 More recently, some judges have adopted the term “mental injury”,12 while the Australian Civil Liability Acts have adopted the term “mental harm”.13 This work consistently uses modern expressions such as “psychiatric injury” or “mental harm”, generally retaining the term “nervous shock” only when referring to the pre-1970 case law in order to reflect the language utilised by the courts in those authorities.14 10

The term was first used in Hinz v Berry [1970] 2 QB 40 at 42 per Lord Denning MR, at 44 per Lord Pearson. For leading Australian examples, see Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394 per Windeyer J; Jaensch v Coffey (1984) 155 CLR 549 at 559–560 per Brennan J; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 4 per Gleeson CJ, at 12 per Kirby P, at 19 per Clarke JA; Tame v New South Wales (2002) 211 CLR 317 at [7] per Gleeson CJ, at [183], [193] per Gummow and Kirby JJ, note also at [44] per Gaudron J; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [58], [92] per Gummow and Kirby JJ, note also at [53] per McHugh J. For leading examples from other jurisdictions, see McLoughlin v O’Brian [1983] 1 AC 410 at 431 per Lord Bridge of Harwich; Page v Smith [1996] AC 155 at 167 per Lord Keith of Kinkel; R v Ireland [1998] AC 147 at 157 per Lord Steyn; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491 per Lord Steyn; Beecham v Hughes (1988) 52 DLR (4th) 625 at 638 per Taggart JA; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [70] per Blanchard J, at [96] per Thomas J; Fletcher v Commissioner of Public Works [2003] 1 IR 465 at 468 per Keane CJ; See also Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 2.3, 5.1. Note D Butler, “Identifying the Compensable Damage in “Nervous Shock” Cases” (1997) 5 TLJ 67.

11

See [5.30]. Note Arrowsmith v Beeston (unreported, Eng CA, QBENF 97/0755/C, 18 June 1998) per Brooke LJ: “The common language of psychiatrists has moved on from referring to illnesses to referring to disorders.”

12

Notably Lord Phillips of Worth Matravers MR, giving the judgment of the English Court of Appeal in Morris v KLM Royal Dutch Airlines [2002] QB 100 at [35], and Lord Steyn and Lord Hope of Craighead in the House of Lords in the same case, Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 at [17] and [45] respectively, perhaps because their Lordships were dealing with the interpretation of the words “bodily injury” in Art 17 of the Warsaw Convention 1929: see [23.120]–[23.280]; but compare Lord Hobhouse of Woodborough at [157], [182] who did not favour the use of “an unscientific expression (‘mental injury’) which lacks definition and fails to provide the requisite certainty”. Other judgments favour the term “mental illness”, eg Walker v Northumberland County Council [1995] ICR 702 at 708 per Colman J; Barber v Somerset County Council [2004] 1 WLR 1089 at [16] per Lord Rodger of Earlsferry. Note also Vernon v Bosley (No 1) [1997] 1 All ER 577 at 597 per Evans LJ, suggesting that “mental illness” and “mental injury” conveyed the same meaning as “recognisable psychiatric disorder”; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [70] per Blanchard J, commenting on the use of the term “mental injury” in the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ): “It seems to us that this is another way of describing a recognisable psychiatric disorder or illness.”

13 See [2.240]–[2.260]. Note also Mewett v Commonwealth (2003) 200 ALR 679 at [119] per Whitlam J, who refers to both “mental trauma” and “mental harm”. 14

Some judicial statements refer to “psychological” rather than “psychiatric” injury: a prominent example is Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [9] per McLachlin CJ; for other examples, see Monie v Commonwealth of Australia [2007] NSWCA 230 at [80] per Campbell JA; Blaxter v Commonwealth (2008) Aust Torts Rep 81-948 at [4] per Basten JA; Beecham v Hughes (1988) 52 DLR (4th) 625 at 665 per Lambert JA; Leach v Chief Constable of Gloucestershire [1999] 1 WLR 1421 at 1427 per Pill LJ, at 1432 per Brooke LJ; Phelps

120

Part II: Mental Harm

[4.30]

COMMON LAW: RECOGNISABLE PSYCHIATRIC ILLNESS [4.30] Modern cases rest on the principle that the plaintiff must suffer legally recognised harm — some recognisable psychiatric injury or illness resulting from the infliction of traumatic shock — rather than mere mental or emotional distress such as grief, sorrow, distress, worry, anxiety, disappointment, anger, outrage and the like. The genesis of contemporary thought can be traced to the leading expression by Lord Denning MR in Hinz v Berry15 in 1970: In English law no damages are awarded for grief and sorrow caused by a person’s death. No damages are to be given for the worry about the children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock, or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of duty by the defendant.

Equally important is Windeyer J’s statement in Mount Isa Mines Ltd v Pusey16 in the same year: Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a “shock”, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psycho-neurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. v London Borough of Hillingdon [2001] 2 AC 619 at 654 per Lord Slynn of Hadley; note also O (A Child) v Rhodes [2016] AC 219 at [1] per Baroness Hale of Richmond and Lord Toulson (“psychological harm”). This tendency is particularly noticeable in cases dealing with Art 17 of the Warsaw Convention 1929: see [23.60]–[23.280]. Note also the adoption of the term “psychological or psychiatric injury” in s 77 of the Motor Accidents Act 1988 (NSW): see [13.220]. It is suggested that “psychiatric injury” should be the preferred term. As Louise Bélanger-Hardy notes, psychiatry and psychology have different meanings. “The Oxford English Dictionary … defines psychiatry as ‘the branch of medicine concerned with the causes, diagnosis, treatment, and prevention of mental illness’ while psychology is defined as ‘the branch of science that deals with the (human or animal) mind as an entity and in its relationship to the body and to the environmental or social context, based on observation of the behaviour of individuals or groups of individuals in particular (ordinary or controlled) circumstances’. This suggests [that] psychological harm may encompass a wider range of mental conditions”: L Bélanger-Hardy, “Reconsidering the “Recognizable Psychiatric Illness” Requirement in Canadian Negligence Law” (2013) 38 Queen’s LJ 583 at 613 n 135. Bélanger-Hardy’s last point is confirmed by Healey v Lakeridge Health Corporation 2010 ONSC 725, where Perell J at [121] noted that the plaintiffs’ expert witness had defined the term to mean less severe stress responses that did not meet the threshold of psychiatric illness; a similar usage has been adopted by at least one Australian judge: see Habib v Commonwealth (No 2) (2009) 175 FCR 350 at [22] per Perram J. Note also NJ Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), pp 103–104 n 6, suggesting that psychiatrists, not psychologists, are best qualified to express an opinion as to the diagnostic classification of mental disorder. 15

Hinz v Berry [1970] 2 QB 40 at 42–43.

16

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394.

[4.40]

4 Recognised Psychiatric Illness

121

Another salient dictum appears in the judgment of Lord Bridge in McLoughlin v O’Brian:17 The common law gives no damages for the emotional distress which any normal person experiences when someone he loves is killed or injured. Anxiety and depression are normal human emotions. Yet an anxiety neurosis or a reactive depression may be recognisable psychiatric illnesses, with or without psychosomatic symptoms. So, the first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.

[4.40] These sentiments are echoed in the case law18 in Australia,19 England,20 Canada21 and elsewhere.22 The courts have repeatedly emphasised that the initial obstacle to a successful claim of this kind is to provide evidence that there is a recognisable psychiatric illness, and that there can be no recovery for emotions that, while distressing, fall short of

17

McLoughlin v O’Brian [1983] 1 AC 410 at 431.

18

For further citations see PR Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 32–33. 19

See eg Benson v Lee [1972] VR 879 at 880 per Lush J; Jaensch v Coffey (1984) 155 CLR 549 at 587, 593 per Deane J; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 195 per Priestley JA; Spence v Percy (1991) Aust Torts Rep 81-116 at 69,081 per Shepherdson J; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 4 per Gleeson CJ, at 12 per Kirby P; Monie v Commonwealth [2007] NSWCA 230 at [175] per Campbell AJ. Australian courts now apply the same rule in the context of the Civil Liability Acts: see [4.90].

20

See eg McLoughlin v O’Brian [1983] 1 AC 410 at 418 per Lord Wilberforce; Brice v Brown [1984] 1 All ER 997 at 1006 per Stuart-Smith J; Attia v British Gas plc [1988] QB 304 at 311 per Dillon LJ, at 317 per Bingham LJ; Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1238 per Lord Bridge of Harwich; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 393, 396 per Lord Keith of Kinkel, at 399, 401 per Lord Ackner, at 406, 416 per Lord Oliver of Aylmerton; Page v Smith [1996] AC 155 at 171 per Lord Jauncey of Tullichettle, at 189 per Lord Lloyd of Berwick; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469 per Lord Goff of Chieveley, at 501 per Lord Hoffmann; CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 163 per Morland J; Connor v Castle Cement [2016] EWHC 300 (QB) at [1] per Cheema-Grubb J.

21

See eg Duwyn v Kaprielian (1978) 94 DLR (3d) 424 at 438 per Morden J; McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45 at 52 per Southin J; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 264 per Wallace JA; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [83] per Mackenzie JA; Odhavji Estate v Woodhouse (2003) 233 DLR (4th) 193 at [41] per Iacobucci J; Anderson v Excel Collection Services Ltd (2005) 260 DLR (4th) 367 at [18]–[20] per Swinton J; Brooks v Canadian Pacific Railway Ltd (2007) 283 DLR (4th) 540 at [49]–[51] per Dawson J. Note also the early case of Radovskis v Tomm (1957) 9 DLR (2d) 751 at 756 per Williams CJQB, requiring a “visible and provable illness”. 22 Eg Scotland (see Mallon v Monklands District Council 1986 SLT 347 at 349 per Lord Jauncey; Harvey v Cairns 1989 SLT 107 at 109 per Lord Murray; Clarke v McFadyen 1989 SCLR 792 at 793 per Lord Kirkwood; Holdich v Lothian Health Board [2013] CSOH 197 at [96] per Lord Stewart); Ireland (see Mullally v Bus Éireann [1992] ILRM 722 at 728 per Denham J; Kelly v Hennessy [1995] 3 IR 253 at 258 per Hamilton CJ); New Zealand: see van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [65]–[69] per Blanchard J.

122

Part II: Mental Harm

[4.40]

that standard.23 Proof of actionable injury generally depends on supportive expert psychiatric evidence.24 It does not matter that the damage has healed before proceedings commenced25 or will eventually respond to treatment,26 though such factors will of course influence the measure of damages awarded.27 The fundamental nature of the requirement of recognisable psychiatric damage was confirmed by 23

On emotions falling short of the recognisable psychiatric injury standard, see [6.190]–[6.480].

24

See Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 2.3, 5.1. Remarkably, the Saskatchewan Court of Appeal in Peters-Brown v Regina District Health Board (1996) 148 Sask R 248 at 250 rejected a contention that a court had to be presented with medical evidence in order to find “nervous shock” proved. This seems to be an isolated decision; there seems no doubt that the court was speaking of true psychiatric disorder rather than mere distress, since it referred to suffering which “greatly transcended … noncompensable emotional upset”. Note the view of the Australian Negligence Review Panel that the lack of suitable forensic criteria of mental illness is a serious cause of dissatisfaction with the current law among particular interested groups, and that a panel of experts, including experts in forensic psychiatry and psychology, should be appointed to develop a set of guidelines, for use in legal contexts, for assessing whether a person has suffered a recognised psychiatric illness: Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendation 33. In Tame v New South Wales (2002) 211 CLR 317 at [308], Callinan J commented on the role of the statements made by the injured person: “Despite many advances in the diagnosis of psychiatric illness, whether, and the extent to which it exists in a particular patient will almost invariably depend, in some measure at least, upon the reliability of the patient’s own utterances.”

25

See eg Regan v Harper [1971] Qd R 191; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 199 per Priestley JA; Petrie v Dowling [1992] 1 Qd R 284; Public Trustee v Commonwealth (unreported, NSW SC, No 10962 of 1985, 8 June 1994); Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 14 per Kirby P; Hanlon v Hanlon [2006] TASSC 1 at [101] per Underwood CJ. For examples from other jurisdictions see Wheatley v Cunningham [1992] PIQR Q100; Mathison v Hofer (1984) 28 CCLT 196; Bruneau v Bruneau (1997) 32 BCLR (2d) 317; Ulmer v Weidmann 2011 BCSC 130. Note also Reinhardt v Huan (1996) 24 MVR 58 at 64 per Meagher JA; England v Van Donk (1997) 26 MVR 289 at 302 per Stein JA (cases dealing with the interpretation of the Motor Accidents Act 1988 (NSW), s 79(1)).

26 See eg Regan v Harper [1971] Qd R 191; Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668; De Franceschi v Storrier (1988) 85 ACTR 1. Note also Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988) where damages were awarded for the aggravation of a pre-existing post-traumatic stress disorder over a three-year period, the aggravation having tapered off in the last 18 months. There has been some suggestion in Canada that the impact of the trauma in question on the mind of the claimant must be permanent: see Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 251 per Macfarlane JA, at 272, 285 per Southin JA. See also Muzik v Canzone del Mare 1980 (3) SA 470 (C) where recovery was denied for anxiety resulting from food poisoning through eating contaminated mussels. Broeksma J stressed that, even if this amounted to nervous shock or psychiatric damage, it had been of short duration (six days) and had not caused mental or physical impairment or affected bodily well-being. In Harvey v Cairns 1989 SLT 107 Lord Murray attached significance to the fact that an accident to the plaintiff’s sister had not caused him “continuing mental effects”. 27

See [17.40]. It is also immaterial that the psychiatric damage in question was not of a particularly serious nature although, again, it will be taken into account in the assessment of compensation: see eg Mallon v Monklands District Council 1986 SLT 347 where Lord Jauncey spoke of the plaintiff’s “minor psychiatric illness”, assessing damages at £100.

[4.50]

4 Recognised Psychiatric Illness

123

Gummow and Kirby JJ in their joint judgment in Tame v New South Wales.28 Pointing out the difference between the position in Australia, England, Canada and New Zealand, where “a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover”, and the United States, where the damage threshold is lower,29 they said: Properly understood, the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation. It restricts recovery to those disorders which are capable of objective determination. To permit recovery for recognisable psychiatric illnesses, but not for other forms of emotional disturbance, is to posit a distinction grounded in principle rather than pragmatism, and one that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception. Doubts as to adequacy of proof (which are particularly acute in jurisdictions where civil juries are retained) are to be answered not by denial of a remedy in all cases of mental harm because some claims may be false, but by the insistence of appellate courts upon the observance at trial of principles and rules which control adjudication of disputed issues.30

[4.50] It is not uncommon for claimants to fall at this first hurdle. In Australia, the need to establish recognisable psychiatric illness prevented the plaintiff recovering damages in Orman v Harrington,31 where she was summoned by telephone to hospital to be informed that her daughter had suffered serious injuries in a car accident. After a detailed review of the medical evidence Mullighan J concluded that it did not disclose that the plaintiff, though clearly distressed and anxious at the plight of her daughter, had suffered a recognisable psychiatric illness or any other injury or complaint that could sound in damages.32 In an English case, Tan v East London and City Health Authority,33 the plaintiff claimed damages for depression resulting from a summons to hospital where his wife was giving birth by caesarean and a crisis occurred, and the effect on him of subsequent events, including being present while an emergency operation was conducted and watching over the dead body of the baby 28

Tame v New South Wales (2002) 211 CLR 317.

29

See [6.160].

30

Tame v New South Wales (2002) 211 CLR 317 at [194]. Note also the sentiments of Hayne J at [286]: “[I]f there is a difficulty it does not lie in distinguishing between cases at opposite ends of the field that is being considered. The important question is whether a satisfactory criterion can be identified that will distinguish cases that lie in the middle of that field.”

31

Orman v Harrington (unreported, SASC, No 296 of 1990, 30 April 1990).

32

For other Australian examples see Mitchell v Clancy [1960] Qd R 62, affirmed by the High Court Mitchell v Clancy [1960] Qd R 532; Diakogiorgic v Anastasas (unreported, Qld SC, No 179 of 1972, 4 November 1974), noted (1975) 49 ALJ 188; Stergiou v Stergiou (1987) Aust Torts Rep 80-082; Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 (the mother’s claim); Whayman v Motor Accidents Insurance Board [2003] TASSC 149. For a case where the judges reached different conclusions about whether the recognisable psychiatric illness standard had been satisfied, see Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 12–13 per Kirby P, compare at 3 per Gleeson CJ, at 20 per Clarke JA.

33

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389.

124

Part II: Mental Harm

[4.60]

throughout the following night. Irrespective of whether he was owed a duty of care in these circumstances,34 the court ruled that his suffering did not amount to recognisable psychiatric illness.35 Beaulieu v Sutherland36 provides a Canadian illustration that unless such harm is established an action will be doomed to failure. There the court turned down a claim for compensation following an accident in which the plaintiff’s friend, while walking along the road beside her, was struck by a vehicle and killed. It was held that the plaintiff’s reactions suggested anxiety and grief, not mental illness of any kind, and that this was fatal to her claim.37 Similar examples can be found in other jurisdictions.38 [4.60] It should be noted that physical symptoms resulting from shock, such as strokes, miscarriages, peptic ulcerations or increased blood pressure, will fall outside the category of recognisable psychiatric illness.39 This does not mean that such harm is not compensable, merely that it is conceptually distinct from damage to the mind. Where physical harm of the kind referred to results from a negligent breach of duty, redress will be available without proof of a recognisable psychiatric illness, or indeed any interference with peace of mind. 34

See [22.440]–[22.480].

35

For other English examples see Reilly v Merseyside Regional Health Authority [1995] 6 Med LR 246; Spray v Mayor, Alderman and Burgess of Ellesmere Port (unreported, Eng CA, 2 December 1997). The judges reached different conclusions in Vernon v Bosley (No 1) [1997] 1 All ER 577: the majority (Evans LJ at 607 and Thorpe LJ at 613) were satisfied that the standard had been reached, but Stuart-Smith LJ at 591–592 dissented. 36

Beaulieu v Sutherland (1986) 35 CCLT 237.

37

For other Canadian examples see Alaffe v Kennedy (1973) 40 DLR (3d) 429; McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214; Cameron v Marcaccini (1978) 87 DLR (3d) 442; Duwyn v Kaprielian (1978) 94 DLR (3d) 424 (the mother’s claim); Kernested v Desorcy [1978] 3 WWR 623; Griffiths v Canadian Pacific Railways (1978) 6 BCLR 115; Montgomery v Murphy (1982) 136 DLR (3d) 525; Norberg v Wynrib (1988) 50 DLR (4th) 167; Rowe Estate v Hanna (1989) 102 AR 88; Hodder (Guardian ad litem of) v Waddleton (1993) 110 Nfld & PEIR 222; McLoughlin v Arbor Memorial Services Inc (2004) 36 CCLT (3d) 158; Kendrew v McDonald’s Restaurants of Canada Ltd 2008 SKQB 50. In Sullivan v Atlantic Lottery Corporation (1987) 81 NBR (2d) 317 no compensation was available to the plaintiff for disappointment caused by being erroneously led to believe through an inaccurate brochure that she had won third prize in a lottery, though the court suggested that the result might be different had the prize been a million dollars rather than the $1,272 in question. 38

For a New Zealand example, see Otter v Residual Health Management Unit (unreported, NZCA, No 137 of 1998, 23 June 1999); for Irish examples, see O’Connor v Lenihan [2005] IEHC 176; Hegarty v Mercy University Hospital Cork Ltd [2016] IECA 24. 39

This is despite the fact that miscarriages and other physical consequences of shock played an important part in early nervous shock cases, providing the guarantee of genuineness that was needed to persuade the courts to allow the action: see eg Dulieu v White & Sons [1901] 2 KB 669. Note King v Bristow Helicopters Ltd, decided by the House of Lords together with Morris v KLM Royal Dutch Airlines [2002] 2 AC 628, dealing with the meaning of “bodily injury” under Art 17 of the Warsaw Convention 1929 (see [23.230]–[23.260]): it was ultimately held that the pursuer could recover for a peptic ulcer caused by mental illness. Note also Gilmont v Queensland [2000] QSC 95, an application to extend the limitation period in a personal injury action based on evidence that a stress-related condition had resulted in multiple sclerosis; the application was refused on other grounds.

[4.80]

4 Recognised Psychiatric Illness

125

CIVIL LIABILITY ACTS: RECOGNISED PSYCHIATRIC ILLNESS [4.70] When Lord Denning in Hinz v Berry40 first stated the damage requirement in modern medical terms, he referred to the necessity of establishing a recognisable psychiatric illness caused by the defendant’s breach of duty. While most judges have been careful to adopt similar terminology, over recent years an increasing number of judges, though still in the minority, have used the term “recognised” rather than “recognisable”.41 It seems that no change in meaning is intended by such usage: indeed, there are some judgments that do not consistently adopt one usage or the other but employ both expressions without any indication that any difference in meaning is to be inferred.42 However, one Australian judge has weighed up the credentials of the two expressions: in Halech v South Australia,43 Besanko J said that it was not necessary for him to consider whether there was any difference between the two expressions, but he preferred to use “recognisable psychiatric illness” which had the better common law pedigree. [4.80] A rare judicial discussion of the significance of the difference between the two terms is contained in the judgment of Blanchard J in the leading New Zealand case of van Soest v Residual Health Management Unit,44 where the issue was whether the plaintiffs’ claims against a hospital in respect of negligent surgery carried out on relatives were barred by the accident compensation legislation. Having discussed the leading common law authorities in England, Australia and elsewhere, Blanchard J, giving the judgment of the majority of the New Zealand Court of Appeal, said that the court was not persuaded that New Zealand should depart from the position established elsewhere whereby claims by secondary victims would not lie unless the effect on the mind of the secondary victim had manifested itself in a recognisable psychiatric 40

Hinz v Berry [1970] 2 QB 40 at 42–43: see [4.30].

41

See eg New South Wales v Seedsman (2000) 217 ALR 583 at [113] per Spigelman CJ; for English examples see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 365 per Stocker LJ; Vernon v Bosley (No 1) [1997] 1 All ER 577 at 584 per Stuart-Smith LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469 per Lord Goff of Chieveley, at 501 per Lord Hoffmann; Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 at 165 per Steel J; Hatton v Sutherland [2002] ICR 613 at [6] per Hale LJ; McLoughlin v Jones [2002] QB 1312 at [51] per Hale LJ; for examples from other jurisdictions see Dube (Litigation guardian of) v Penlon Ltd (1994) 21 CCLT (2d) 268 at [143] per Zuber J; Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 351 per Judge McMahon; Mather v British Telecommunications plc 2001 SLT 325 at [36] per Lord Osborne; Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 at 436 per Deemster Corrin.

42

Eg Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [43], [83] per Ipp J; Tame v New South Wales (2002) 211 CLR 317 at [7] per Gleeson CJ; CSR Ltd v Thompson (2003) 59 NSWLR 77 at [24], [27] per Ipp JA; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

43

Halech v South Australia (2006) 93 SASR 427 at [96].

44

van Soest v Residual Health Management Unit [2000] 1 NZLR 179.

126

Part II: Mental Harm

[4.90]

disorder or illness, and referred to the approval of this term by the English Law Commission.45 He then said: We would, like the law commission, use the expression “recognisable” rather than “recognised”. These expressions seem to mean the same thing, but “recognisable” perhaps will indicate an awareness by the Court that over time medical experts’ views about the nature of particular mental conditions are bound to be subject to some alteration, just as they are with respect to physical ailments. Certainly the law, whilst recognising post-traumatic stress disorder, pathological grief syndrome and the like, should not become tied to present-day classifications or terminology when in the future our knowledge of the workings of the human mind under conditions of stress becomes greater. If the medical profession as a body is prepared to recognise a particular condition of the mind the Court should be willing to give credence to it as it does a new virus or physical condition, such as occupational overuse syndrome.46

This important statement underlines the necessity that the courts should not become wedded to terminology that prevents the law from recognising new developments in psychiatric medicine. [4.90] In Australia, this question of terminology has now assumed a much greater significance, because the term “recognised psychiatric illness” is now enshrined in statute, and “recognisable psychiatric illness” has thus been superseded. In all jurisdictions except Queensland and the Northern Territory, the Civil Liability Acts or similar legislation now contain legislative provisions on liability for “mental harm”.47 In four of the six jurisdictions, the legislation provides that there is no liability to pay damages for pure mental harm unless the harm consists of a recognised psychiatric illness,48 and there is an analogous provision in Victoria.49 Though there is no equivalent provision in Western Australia, it like the other five jurisdictions has enacted that a defendant does not owe a duty of care to a plaintiff not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness if reasonable care were not taken.50 Courts are now making rulings under these provisions.51 45

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), p iii.

46

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [66].

47

See [2.220]–[2.370].

48

Civil Law (Wrongs) Act 2002 (ACT), s 35; Civil Liability Act 2002 (NSW), s 31; Civil Liability Act 1936 (SA), s 53(2); Civil Liability Act 2002 (Tas), s 33. Note King v Philcox (2015) 89 ALJR 582 at [13] per French CJ, Kiefel and Gageler JJ: “The term ‘psychiatric illness’ … describes a subset of ‘mental harm’.”

49

Wrongs Act 1958 (Vic), s 75 (a court cannot award damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness).

50

Civil Law (Wrongs) Act 2002 (ACT), s 34(1); Civil Liability Act 2002 (NSW), s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2002 (Tas), s 32(1); Wrongs Act 1958 (Vic), ss 72(1), 74(1); Civil Liability Act 2002 (WA), s 5S(1). 51

The recognised psychiatric illness requirement was held to be satisfied in Cox v New South Wales (2007) Aust Torts Rep 81-888 at [159] per Simpson J; Benic v New South Wales

[4.100]

4 Recognised Psychiatric Illness

127

[4.100] This change was not the result of any express policy shift. The legislation implemented the report of the panel appointed by the Commonwealth government to review the law of negligence. The report simply stated, without any citation of authority or further explanation, that “The rule is that pure mental harm will attract compensation only if the harmed person has suffered a ‘recognised psychiatric illness’ (or ‘condition’).”52 Although the review was required by its terms of reference to assume that “the award of damages for personal injury has become unaffordable and unsustainable”,53 there is really no evidence to suggest that the change from “recognisable” to “recognised” represented any deliberate attempt to limit the scope of psychiatric damage law.54 Moreover, there is nothing in the previous writing of the two principal authors of the report to suggest any particular position on this issue.55 It is to be hoped that judges seeking to construe the legislation and identify how it changes the pre-existing common law will not see this change in terminology as a reason for adopting a more stringent approach.56 There is no indication in the legislation or elsewhere to explain by whom the psychiatric injury must be recognised, and it should not necessarily be assumed that the legislation requires acceptance by one or other of the standard works that classify psychiatric disorders;57 but some judges may see in the wording a legislative warrant to confine the disorders qualifying for relief to those that are well-established, and to reject those that are newly emerging. If this happened, it would make it much harder [2010] NSWSC 1039 at [635] per Kaye J; Kuehne v Warren Shire Council (2011) 180 LGERA 383 at [179] per Elkaim DCJ; Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656 at [43] per Adamson J; Goddard v Central Coast Health Network [2013] NSWSC 1932 at [151] per Adamson J; Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185 at [249], [285], [454] per Davies J. Compare AX v Ashfield Municipal Council [2012] NSWDC 32 at [87] where Gibson DCJ determined that the plaintiff was not suffering from a psychiatric condition, but merely from “adolescent turmoil”. 52

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.5.

53

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), p ix.

54 In Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656, Adamson J at [43] said (inadvertently, one presumes) that each of the disorders suffered by the plaintiff was a “recognisable psychiatric illness” within the meaning of s 31 of the Civil Liability Act 2002 (NSW). 55

Ipp J in his judgment in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [43], [83] uses both terms. F Trindade and P Cane, The Law of Torts in Australia (3rd ed, Oxford University Press, Melbourne, 1999), p 66 simply quoted Lord Denning MR in Hinz v Berry [1970] 2 QB 40 at 42. 56

In Harris v Commissioner for Social Housing [2013] ACTSC 186 at [214] Master Harper rejected a submission that the legislation had made a distinction between a recognised psychiatric illness and the aggravation of such illness, saying it was designed to draw a distinction between the suffering of mental harm in the form of distress not amounting to a recognised psychiatric illness on the one hand and a recognised psychiatric illness on the other, and that the intention of the legislature was made clear by the explanatory statement: see [2.390].

57

See [5.170], [5.210].

128

Part II: Mental Harm

[4.110]

for the law to keep up with developments in psychiatric medicine. It should be remembered that post-traumatic stress disorder, for example, now a well-recognised psychiatric disorder that is the subject of many tort claims, was identified as such only in 1980.58 In the words of two recent commentators: Unless the legislation is regarded as ambulatory in effect, and as speaking of illnesses which are recognised as at the time that a particular plaintiff suffered the harm of which he or she complains, it appears that it has frozen liability for this type of harm as that harm was understood by the psychiatric profession in the earliest years of this century.59

[4.110] This quotation perhaps states not only the problem but also a possible solution. It is an accepted principle of statutory interpretation that law is to be regarded as always speaking, and that words in an Act should if possible be given a contemporary meaning, rather than being limited to what they were understood to mean at the time of enactment.60 A close parallel can be found in the criminal law, in regard to the meaning of the words “bodily harm” in offences such as assault occasioning actual bodily harm and causing grievous bodily harm. In England, these offences are still contained in 19th century legislation.61 In R v Ireland,62 where the House of Lords was hearing appeals in two cases involving repeated silent telephone calls to women and, in one of the cases, other conduct designed to harass, the victims had each suffered psychiatric illness. It was held that such illness constituted “bodily harm”. In 1861 when the legislation was originally enacted, such conditions were unrecognised, and so it is likely that “bodily harm” was intended to refer only to traditional physical injuries. However, the House of Lords accepted that the words should be given their contemporary meaning. Lord Steyn, having discussed developments in tort law relating to the recognition of liability for psychiatric injury, said: The proposition that the Victorian legislator when enacting sections 18, 20 and 47 of the Act of 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant inquiry is as to the sense of the words in the context in which they are used. Moreover, the Act of 1861 is a

58

See [5.210].

59

RP Balkin and JLR Davis, Law of Torts (4th ed, Lexis Nexis Butterworths, Sydney, 2009), p 244.

60

See eg DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, Sydney, 2014), paras 4.9–4.12; in Western Australia the principle is statutory: Interpretation Act 1984 (WA), s 8.

61

Offences against the Person Act 1861 (UK), ss 18 (unlawfully and maliciously causing grievous bodily harm), 20 (unlawfully and maliciously inflicting grievous bodily harm), 47 (assault occasioning actual bodily harm).

62

R v Ireland [1998] AC 147, noted by S Gardner (1998) 114 LQR 33; J Herring [1998] CLJ 10.

[4.120]

4 Recognised Psychiatric Illness

129

statute of the “always speaking” type: the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury.63

This decision confirmed the approach taken in earlier criminal law cases in England and elsewhere.64 It is suggested that the words “recognised psychiatric illness” should be interpreted in the same way. The legislative adoption of the word “recognised” rather than “recognisable” was not accompanied by any movement in the case law or deliberate change in policy, and should not prevent the courts from granting relief in any case involving recognisable psychiatric illness, providing the other conditions of liability are satisfied.

IS THE CAUSE OF THE PSYCHIATRIC ILLNESS MATERIAL? [4.120] If the first essential prerequisite of a successful psychiatric damage claim is proof of a recognisable psychiatric illness resulting from mental or emotional distress or suffering, the exact nature of that distress or suffering would seem to be of secondary importance. Yet there is some authority that suggests that the root of mental damage is material and that where recognisable psychiatric harm results from grief, rather than from emotions such as fright or horror, there can be no recovery. Galligan J of the Ontario Supreme Court in Montgomery v Murphy65 refused to compensate a husband for that part of his serious clinical depression which resulted from grief and sorrow over the loss of his wife, who had been run over by a car in front of him. His Lordship’s approach makes it necessary to attempt the often near-impossible task of analysing the many potential distinct and interlocking causes of psychiatric illnesses in a particular individual merely so that the law can artificially separate out those portions of mental damage deemed compensable from those that are not, thereby distracting attention from the central established fact — that a recognisable psychiatric illness has been caused to the plaintiff by the defendant’s negligence. The sorts of sentiments expressed in this case threaten to disadvantage recovery for all psychiatric conditions in that such conditions do not suddenly appear out of thin air, but follow emotional imbalance triggered by some external stressor — thus, in a sense, inevitably “resulting from” or “attributable to” natural feelings. Psychiatric damage was attributed wholly rather than partially to grief in the Irish case of State (Keegan) v Stardust Victims Compensation Tribunal.66 63

R v Ireland [1998] AC 147 at 158–159. Note also the reference to the development of medical knowledge in Stingel v Clark (2006) 226 CLR 442 at [27] per Gleeson CJ, Callinan, Heydon and Crennan JJ.

64

The leading case is R v Chan-Fook [1994] 1 WLR 689, noted by D Kell (1995) 111 LQR 27. See also R v Miller [1954] 2 QB 282; R v Dhaliwal [2006] 2 Cr App R 24. Australian authorities include R v Lardner (unreported, NSWCCA, No 60499 of 1997, 10 September 1998); Sleeman v Police [1998] SASC 6915. For cases from other jurisdictions, see R v McCraw (1991) 7 CR (4th) 314; R v Mwai [1995] 3 NZLR 149; R v Kneale [1998] 2 NZLR 169; R v Moffat [2000] NZCA 252. 65

Montgomery v Murphy (1982) 136 DLR (3d) 525 at 529–530.

66

State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202.

130

Part II: Mental Harm

[4.130]

Finlay CJ took a similar line to Galligan J in the Canadian case, remarking that “grief even so extreme as to cause psychiatric disorder as distinct from nervous shock may not give rise to liability for damages”.67 Similarly, Henchy J in the same proceedings stated: [T]he [applicant’s] claim in essence is that his grief at the deaths of the two daughters who died in the fire developed into severe psychiatric illness. That, I fear, is not, according to Lord Wilberforce’s speech [in McLoughlin v O’Brian68], a ground for compensation, for it ignores the test of shock by sight or sound.69

[4.130] It is only by linking Lord Wilberforce’s general comments on grief with his discussion of the physical perception of trauma that such a conclusion about McLoughlin v O’Brian70 can be reached. It is one thing to say that mere grief71 gives no right to recover,72 or that in cases where recognisable psychiatric illness is found to exist compensation may be granted only for that condition and not for causally unconnected grief and sorrow.73 It is quite another to maintain that because psychiatric

67

State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202 at 212.

68

McLoughlin v O’Brian [1983] 1 AC 410.

69

State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202 at 217.

70

McLoughlin v O’Brian [1983] 1 AC 410.

71

“If any grief may be described as mere”: Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 14 per Kirby P. 72

For Australian affirmations of this principle see eg Jaensch v Coffey (1984) 155 CLR 549 at 587 per Deane J; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 193–194 per Priestley JA; Reeve v Brisbane City Council [1995] 2 Qd R 661 at 676–677 per Lee J; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 12 per Kirby P; Pham v Lawson (1997) 68 SASR 124 at 153 per Lander J; APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [37] per Harper J; Marinko v Masri (2000) Aust Torts Rep 81-581 at [51] per Handley JA; Morgan v Tame (2000) 49 NSWLR 21 at [130] per Mason P; McKenzie v Lichter [2005] VSC 61 at [12] per Gillard J. For similar statements in other jurisdictions see eg McLoughlin v O’Brian [1983] 1 AC 410 at 431 per Lord Bridge of Harwich; Vernon v Bosley (No 1) [1997] 1 All ER 577 at 585 per Stuart-Smith LJ, at 604 per Evans LJ (Stuart-Smith LJ suggesting that recovery was denied for policy reasons, Evans LJ that it was too remote); White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 465 per Lord Griffiths, at 491 per Lord Steyn, at 501 per Lord Hoffmann; W v Essex County Council [2001] 2 AC 592 at 600 per Lord Slynn of Hadley; McLoughlin v Jones [2002] QB 1312 at [51] per Hale LJ; Fenn v City of Peterborough (1976) 73 DLR (3d) 177 at 209 per RE Holland J; Beaulieu v Sutherland (1986) 35 CCLT 237 at 246 per Legg J; Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318 at 369, 373 per Cumming J; Bruneau v Bruneau (1997) 32 BCLR (2d) 317 at 323 per Maczko J; Brooks v Canadian Pacific Railway Ltd (2007) 283 DLR (4th) 540 at [49] per Dawson J; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [24] per Blanchard J; Fletcher v Commissioner of Public Works [2003] 1 IR 465 at 483 per Keane CJ.

73

See eg Pham v Lawson (1997) 68 SASR 124 at 151–153 per Lander J; Marinko v Masri (2000) Aust Torts Rep 81-581 at [51] per Handley JA; Hancock v Nominal Defendant [2002] 1 Qd R 578 at [98] per Davies JA; Hinz v Berry [1970] 2 QB 40 at 42–43 per Lord Denning MR, at 45 per Lord Pearson; Kralj v McGrath [1986] 1 All ER 54 at 61–62 per Wolff J; Vernon v Bosley (No 1) [1997] 1 All ER 577 at 604 per Evans LJ; Kardan v Bartholdt (1995) 83 OAC 158 at 160; Bruneau v Bruneau (1997) 32 BCLR (2d) 317 at 324–325 per Maczko J; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [24] per Blanchard J; Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 351 per Judge McMahon.

[4.140]

4 Recognised Psychiatric Illness

131

injury is grief-induced there can be no recovery for the psychiatric injury.74 It is not clear why grief should be distinguished from other emotions in this way if psychiatric harm has resulted. It is now clear that recovery may be had for psychiatric conditions induced by fear or worry, whether this is worry over the ability to support a family financially after a physically debilitating accident,75 or that physical harm or serious illness may eventuate as a result of tortious conduct. There is a substantial jurisprudence involving psychiatric conditions caused by fear of exposure to conditions that may result in illnesses such as mesothelioma and other cancers, AIDS or Creutzfeldt-Jakob Disease. Courts in the United States have taken the lead in this regard, but in recent years Australia, England and other common law jurisdictions have recognised the possibility of psychiatric conditions caused by fear for the future.76 In one United States case, recovery has even been granted for the mental anguish a plaintiff might suffer if she worried in later life about the effects of physical injuries sustained as a child.77 It is submitted that, providing a causal connection can be established, any emotional or mental suffering that develops into damage of a psychiatric nature should be compensable whether it stems from fear or horror, or worry, anxiety, anger, disappointment, distress, sorrow or grief. What matters is the existence of recognisable (or recognised) psychiatric illness, not the way in which it was brought about or the catalyst behind its development. This is especially so in jurisdictions such as Australia where the requirement of direct physical perception has been abandoned.78 [4.140] For some time, it has been possible to point to authorities which are inconsistent with the propositions advanced by Montgomery v Murphy79 and State (Keegan) v Stardust Victims Compensation Tribunal.80 For example, in Mellor v Moran81 it was held that a child’s grief at the death of her mother in a car accident had developed into a depressive condition amounting to a compensable psychiatric illness;82 in Woods v Lowns83 a 74

Note that grief and anguish resulting from an illness due to shock are compensable, though “ordinary” grief and anguish are not: see eg Macpherson v Commissioner for Government Transport (1959) 76 WN (NSW) 352; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172; Marinko v Masri (2000) Aust Torts Rep 81-581 at [51] per Handley JA; Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50 at [37] per Handley AJA.

75

See eg Mitchell v Clancy [1960] Qd R 62 and Palamara v Fragameni (unreported, WASC, No 89 of 1983, 13 October 1983), discussed at [11.310].

76

See Chapter 29.

77

See Tamplin v Star Lumber & Supply Co 824 P 2d 219 (Kan 1991).

78

On this issue see [11.200]–[11.400], [11.440]–[11.450].

79

Montgomery v Murphy (1982) 136 DLR (3d) 525.

80

State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202.

81

Mellor v Moran (1985) 2 MVR 461.

82

Significantly also, Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408 spoke of the “cases in which, as in the instant appeals, the injury complained of is attributable to the grief and distress of witnessing the misfortune of another person”.

132

Part II: Mental Harm

[4.150]

father recovered for a major depressive illness that started as a normal grief reaction to the brain damage and quadriplegia sustained by his son as a result of a major epileptic fit; and in Vernon v Bosley (No 1),84 where a father was present at the aftermath of a tragic accident resulting in the death of his two young children, whose nanny had negligently driven off the road and into a river, on the evidence before the court85 it was held that if mental illness had been caused by a combination of the traumatic experience and greater than normal grief, the damages should not be discounted on the ground that it had been caused by grief and bereavement. Further, there is now a body of case law that specifically repudiates the view that grief-based psychiatric conditions are not compensable. The issue was first addressed by Kirby P in his dissenting judgment in Coates v Government Insurance Office of New South Wales.86 Having queried the distinction between grief and suffering following tragic news and psychological or psychiatric injury,87 His Honour said: Even more open to criticism must be the suggestion, made in some jurisdictions, that illness resulting from grief as opposed to shock caused by sight or sound is not compensable: see Montgomery v Murphy (1982) 136 DLR (3d) 525 at 529-530; State (Keegan) v Stardust Victims Compensation Tribunal [1987] ILRM 202. If courts are to maintain that the requirement for damages is proof of a recognisable psychiatric illness, the existence of that condition is what should matter and not the classification of the initial reaction or catalyst as one either of extreme grief, shock or horror.88

The fact that the other members of the court differed from Kirby P in holding that on the facts the plaintiff did not suffer a recognisable psychiatric illness does not detract from the importance of this statement. [4.150] Two years later Lander J, giving the judgment of the Full Court of the Supreme Court of South Australia in Pham v Lawson,89 said of the view that a party who had suffered grief and bereavement was on that ground disentitled from recovering for resulting psychiatric illness: If the argument was right, everyone who suffered nervous shock, together with grief and bereavement, would be disqualified from obtaining damages. It would mean only those persons who were disassociated from the deceased person would be entitled to qualify for a claim for damages for nervous shock. That would appear to limit the class to an unrelated passenger or driver or onlooker or an unrelated person who comes across the scene of the accident. 83

Woods v Lowns (unreported, NSWSC, No 14259 of 1988, Nos 15676, 15678 of 1992, 9 February 1995); the reported version (Woods v Lowns (1995) 36 NSWLR 344) does not deal with the psychiatric injury issues.

84

Vernon v Bosley (No 1) [1997] 1 All ER 577.

85

It was later revealed that the evidence given in matrimonial proceedings between the plaintiff and his wife was rather different: see Vernon v Bosley (No 2) [1999] QB 18, discussed by JL Dwyer, “The Vernon Saga” (1998) 6 Tort L Rev 91.

86

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

87

See [6.220].

88

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 12.

89

Pham v Lawson (1997) 68 SASR 124.

[4.160]

4 Recognised Psychiatric Illness

133

The argument simply cannot be right. It also cannot be right because it would mean the closer a person is to a deceased or injured person and the more that the person has thereby suffered the less likely that person will be able to recover in a claim for nervous shock.90

[4.160] Final confirmation of the unsoundness of the decisions under discussion has been provided by a South African judge. In Maijet v Santam Ltd,91 the plaintiff suffered a major depressive disorder as a result of being summoned to the scene of an accident involving her nine-year-old son and seeing his body lying on the road. Cleaver J of the Cape of Good Hope Provincial Division was urged by counsel for the defendant to follow Montgomery v Murphy92 and hold that since no damages were recoverable for grief and sorrow, damages could not be awarded for depression resulting from such emotions. In a detailed refutation of this proposition Cleaver J pointed to the absence of South African authority, the lack of detail in the medical evidence in Montgomery v Murphy, and most importantly, the fact that the psychiatric injury suffered by the plaintiff in the instant case met the requirement of the law that the plaintiff must suffer a reasonable serious physical or mental injury that has a marked effect on the victim’s health.93 This judgment homes in on the crucial issue. What matters is whether or not on the evidence the plaintiff can be shown to have suffered a recognisable psychiatric injury as a result of the defendant’s wrongdoing. The precise emotion that brings this about — whether fright or horror, grief, worry or any other — is not material.

90

Pham v Lawson (1997) 68 SASR 124 at 150. A later passage in the judgment reads: “As grief and bereavement are not compensable by themselves, these elements should not become compensable by reason of a party suffering a compensable injury, in this case a psychiatric illness. It is only for nervous shock and consequential psychiatric illness for which a court awards damages” (at 153). Though at first sight this statement may appear to contradict the earlier one, on a careful reading the two can be seen to be consistent. On the facts, the court reduced the trial judge’s assessment for non-economic loss.

91

Maijet v Santam Ltd [1997] 4 All SA 555 (C).

92

Montgomery v Murphy (1982) 136 DLR (3d) 525.

93

Maijet v Santam Ltd [1997] 4 All SA 555 (C) at 568.

Chapter 5

A Medical Perspective [5.20] PSYCHIATRIC INJURY AND MEDICAL RESEARCH ............................................... 136 [5.20] Terminology ......................................................................................................................... 136 [5.70] Emotions ............................................................................................................................... 140 [5.90] The human nervous system .............................................................................................. 140 [5.100] Effect of emotions on the body ...................................................................................... 141 [5.180] Anxiety disorders, somatic disorders and psychoses ................................................ 148 [5.210] Post-traumatic stress disorder ........................................................................................ 150 [5.320] Sociological and biological research .............................................................................. 160 [5.350] Conclusion .......................................................................................................................... 162 [5.360] MEDICAL RESEARCH AND THE LAW: THE MIND–BODY DISTINCTION .... 163 [5.360] Introduction ....................................................................................................................... 163 [5.410] Morris v KLM and the Weaver argument ................................................................... 166 [5.460] Carey v Pel-Air Aviation ................................................................................................. 170 [5.500] Conclusion .......................................................................................................................... 173

[5.10] The purpose of this chapter is to examine the medical and psychiatric research into psychiatric injury, in order that lawyers may better understand what is involved in categorising particular conditions as recognisable psychiatric disorders and distinguishing them from lesser states which are said to amount only to mental or emotional distress.1 An understanding of these issues assists us to deal with the question whether, for purposes of legal liability, it is rational to identify psychiatric injury as a category separate from physical harm.2

1

For general accounts of this research written for lawyers, see Law Commission, Liability for Psychiatric Illness (Consultation Paper No 137, 1995), paras 3.1–3.16; Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 3.1–3.33; G Mendelson and D Mendelson, “Legal Aspects of Stress-Related Illness” (1998) 6 JLM 60; K Wheat, Napier and Wheat’s Recovering Damages for Psychiatric Injury (2nd ed, Oxford University Press, Oxford, 2002), Ch 2; D Butler, Employer Liability for Workplace Trauma (Ashgate, Aldershot, 2002), Ch 2; C Tennant, “Liability for Psychiatric Injury: An Evidence-Based Appraisal” (2002) 76 ALJ 73; C Tennant, “Definition of Psychological Trauma: Psychiatric and Legal Approaches” (2003) 77 ALJ 369. See also works listed in [5.100] and [5.210]. 2

See [5.360]–[5.510].

136

Part II: Mental Harm

[5.20]

PSYCHIATRIC INJURY AND MEDICAL RESEARCH3 Terminology [5.20] It is important to define what we mean by “recognisable psychiatric illness” (or disorder), and its statutory equivalent, “recognised psychiatric illness”, and to endeavour to contrast it with “mental or emotional distress”, since the antithesis between the two has had much influence on the development of this area of the law. By way of preliminary discussion, there is in general medicine an important distinction between “disease” and “illness”. “Disease” refers to a definite morbid process having a characteristic train of symptoms. To put it another way, “disease” refers to objective physical pathology, demonstrable, for example, in terms of microscopic or macroscopic structural change, biochemical disturbance or radiological abnormality. “Illness” denotes the subjective appreciation dimension of a medical condition or, in other words, the subjective awareness of distress or limitation of function. Although the two often coexist, they are mutually exclusive concepts. One may be diseased without being ill (as, for example, in well-controlled diabetes) or ill without having a disease (as, for example, where a person experiences chronic pain but there is no associated causative pathology). The majority of psychiatric conditions which are potentially the subject of tort claims are best regarded as illnesses.4 The terms “illness” and “mental illness” are both bandied around in everyday speech without much precision. The composition of appropriate definitions has proved notoriously difficult. Reference to states marked by a pronounced deviation from a normal healthy condition merely compounds the problem because “health” is even more difficult to define. The World Health Organisation defined health as “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”5 — a definition labelled as one that “could hardly be more comprehensive or more meaningless”.6 Nor do definitions of “illness” based on the presence of suffering or pathological processes greatly assist.7 3

This section ([5.20]–[5.350]) was revised for the current edition by Philip Mitchell, Scientia Professor and Head of the School of Psychiatry, University of New South Wales. 4

See M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 99.

5 Preamble to the Constitution of the World Health Organisation as adopted by the International Health Conference, New York, 19 June – 22 July 1946; signed on 22 July 1946 by the representatives of 61 states (Official Records of the World Health Organisation, no 2, p 100) and entered into force on 7 April 1948. 6

AJ Lewis, “Health as a Social Concept” (1953) 4 Brit J Sociology 109 at 110, reprinted in AJ Lewis, The State of Psychiatry (Routledge and Kegan Paul, London, 1967), p 179. Note also B Wootton, Social Science and Social Pathology (Allen and Unwin, London, 1959), pp 203–226. 7

See M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), pp 99–121.

[5.50]

5 A Medical Perspective

137

[5.30] In contemporary psychiatric classificatory systems, the synonymous term “psychiatric (or mental) disorder” is more commonly used than “illness”. This rubric connotes not only “illness” in the sense described at [5.20], but moreover indicates a recognisable pattern of symptoms and signs (that is, a “syndrome”) and the tacit acknowledgment that the causative (or aetiological) processes are at present scientifically uncertain. For this reason, we will use the term “psychiatric disorder” throughout this chapter. [5.40] While definitions of psychiatric (or mental) disorder differ, that used by the American Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5)8 is indicative: A syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behaviour that reflects a disfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational, or other important activities.9

DSM-5 further emphasises that this syndrome or pattern must not be either merely an expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, or socially deviant behaviour (for example, political, religious, or sexual) and conflicts that are primarily between the individual and society. [5.50] It should also be noted from the outset that, as is the case with “recognisable (or recognised) psychiatric illness”, expressions such as “mental distress” and “emotional suffering” are not terms of either art or medical science: there is no universally accepted language to characterise these states of the human mind. One often finds “mental suffering”, “mental anguish”, “emotional distress” and the like both in the case law and the literature and there does not appear to be any discernible difference between them. Objections can be raised to the use of both “mental” and “emotional” in this context. The term “mental” to some may convey a psychological or psychiatric condition (and, as we have noted, “mental disorders” and “psychiatric disorders” are synonymous terms), thereby making distinction between the two identified categories more difficult than need be. It may also be said that the use of the word “emotional” to describe a person’s mood or spirits is better avoided because it is often used to indicate a state of agitation or excitement, perhaps with pejorative overtones. However, no better terms appear to be available, and they are sanctioned by long usage. As there is no clear reason for preferring one term to the other, terms such as “mental distress” or “emotional distress” have therefore generally been used interchangeably to characterise states of the human mind which lack objective and recognisable syndromal characteristics, other than the primary instinctive reactions outlined at [5.100]–[5.130]. 8

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition: DSM-5 (American Psychiatric Association, Washington DC, 2013). 9

See DSM-5, Section I: DSM-5 Basics — Use of the Manual.

138

Part II: Mental Harm

[5.60]

[5.60] However, when discussing issues of terminology, two important qualifications are necessary. The first is that six Australian legislatures have now enacted statutory provisions on liability for “mental harm”, defined to mean “impairment of a person’s mental condition” (except in Victoria, where it means “psychological or psychiatric injury”).10 While the legislation makes it clear that there is no liability for mental harm unless it consists of a recognised psychiatric illness, and so could be said to retain consistency with the distinction made in [5.10] between recognisable psychiatric disorders and lesser states that amount only to mental or emotional distress, the statutory expression “mental harm” now clearly encompasses conditions that are not confined to mental or emotional distress in the terms of this distinction. For this reason, usage of the term “mental harm” as a synonym for mental or emotional distress has been avoided. Secondly, for many years now United States courts have adopted the practice of using “emotional distress” (and occasionally, “mental distress”) as a generic term to describe all mental damage cases,11 in much the same way as English, Australian and other Commonwealth courts formerly referred to “nervous shock” and now employ terms such as “psychiatric damage” or “psychiatric injury” (or, in the Australian statutes, “mental harm”). However, “emotional distress” in its United States sense does not necessarily mean the same thing as nervous shock or psychiatric damage. In a development noted by Gummow and Kirby JJ in Tame v New South Wales,12 and more fully reviewed in the next chapter,13 a number of jurisdictions have dropped the former requirement that emotional distress had to cause or be followed by some physical manifestation in order to be compensable, and so might now be said to permit recovery for pure emotional distress. However, this does not necessarily mean that they grant damages for transient emotional reactions of the kind dealt with in [5.50]. Precisely what is required is not always clear, nor can we be certain that all jurisdictions interpret the rules in exactly the same way. Under the rule requiring some physical manifestation, some jurisdictions accepted psychiatric problems as sufficient14 — so offering a temptation to view this rule as equivalent to the requirement of recognisable psychiatric illness in English and Commonwealth law — but others did not. In one case, for example, the plaintiff had nightmares, frequent headaches, dizziness, depression, nervousness, weight loss and poor appetite and was medically diagnosed as suffering from post-traumatic stress disorder, and yet the court ruled that he could not recover for emotional distress because he did not 10

See [2.260].

11

Restatement of Torts Second 1965 (US), §§ 46 – 48 consistently uses this term. The Restatement of the Law Third – Torts: Liability for Physical and Emotional Harm 2011 (US), §§ 45 – 47 prefers the term “emotional disturbance”. 12

Tame v New South Wales (2002) 211 CLR 317 at [172]–[173], [194].

13

See [6.160].

14

See eg Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983); note also Jessamy v Ehren 153 F Supp 2d 398 (2001) on the meaning of “psychiatric injury” in New York law.

[5.60]

5 A Medical Perspective

139

demonstrate any objectively verifiable physical symptoms.15 In other cases, however, the courts were prepared to find the necessary physical manifestation satisfied on evidence of temporary physical effects such as loss of bladder and bowel control.16 The jurisdictions that now allow recovery for emotional distress without physical manifestations may be allowing recovery for purely mental suffering, but this is not necessarily the case. First, there is widespread acceptance that the emotional distress must be severe,17 by analogy to the limitation placed on the equivalent intentional tort.18 Secondly, there are various judicial statements of what is required by way of proof of severe emotional distress in terms that are not markedly dissimilar to the recognisable psychiatric illness requirement.19 So in the United States the use of the term “emotional distress” may or may not indicate that recovery is being permitted for something less than a recognisable psychiatric illness or disorder. In Australia and other Commonwealth countries, however, the distinction between the two remains crucial, for failure to at least attempt to separate these states of mind has profound medico-legal implications. This work, therefore, avoids using the terms “emotional distress” or “mental distress” to refer to a recognisable psychiatric disorder, except when it is necessary in discussing particular American decisions to reflect the language used in those cases.

15

Wilson v Sears, Roebuck & Co 757 F 2d 948 (1985). Note also First National Bank in Sioux Falls v Drier 574 NW 2d 597 (diagnosed severe mental illness did not fall within definition of physical injury).

16

Armstrong v Paoli Memorial Hospital 633 A 2d 605 (Pa 1993); see also Reilly v United States 547 A 2d 894 (RI 1988).

17

See eg Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980) at 821 per Mosk J; Paugh v Hanks 451 NE 2d 759 (Ohio 1983) at 765 per Sweeney J; Bovsun v Sanperi 461 NE 2d 843 (NY 1984) at 849 per Jones J; Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990) at 97 per Mitchell J; Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990) at 570 per Calogero J; Heldreth v Marrs 425 SE 2d 157 (WVa 1992) at 166 per McHugh CJ. 18 19

See [30.620].

Eg Bass v Nooney Co 646 SW 2d 765 (Mo 1983) at 772–773 per Wasserstrom J (“the emotional distress or mental injury must be medically diagnosable and must be of sufficient severity so as to be medically significant”); Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990) at 97 per Mitchell J (“the term ‘severe emotional distress’ means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so”); Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990) at 570 per Calogero J (“A non-exhaustive list of examples of serious emotional distress includes neuroses, psychoses, chronic depression, phobia and shock”); Jack v Trans World Airlines Inc 854 F Supp 654 (1994) (under Californian law, emotional distress refers to the psychic trauma experienced after the accident). For further examples from other jurisdictions, see Berger v Sonneland 1 P 3d 1187 (Wash 2000); Conley v Romeri 806 NE 2d 933 (Mass 2004); Henricksen v State 84 P 3d 38 (Mont 2004); Flax v DaimlerChrysler Corporation 272 SW 2d 521 (Tenn 2008). Note also Pekin Insurance Co v Hugh 501 NW 2d 508 (Iowa 1993) (bystander claim for emotional distress held to amount to “bodily injury” for purposes of insurance policy).

140

Part II: Mental Harm

[5.70]

Emotions [5.70] The best way to appreciate the ambit of what is recoverable under the current law is to examine from a medical perspective the “mental distress” or “emotional suffering” that most common law systems have viewed as unworthy of compensation. Mental distress has been described as any “disagreeable disturbance of emotional or mental tranquillity”20 or “traumatically induced reaction which is medically detrimental to the individual”.21 It is thus best understood as a comprehensive label covering a variety of unpleasant emotional reactions. [5.80] There does not appear to be any universally accepted classification of human emotions.22 The respected United States neuroscientist Antonio Damasio23 distinguishes between primary or universal emotions (happiness, sadness, fear, anger, surprise or disgust), secondary or social emotions (such as embarrassment, jealousy, guilt or pride) and background emotions (well-being or malaise; calm or tension). The mental distress that is the origin of the harm suffered in the cases we will be considering usually consists of a combination of the following unpleasant emotions: 1. 2. 3. 4. 5. 6. 7.

Fear or apprehension. Horror. Grief, sorrow and loneliness. Shame, humiliation and embarrassment. Anger, annoyance and vexation. Disappointment and frustration. Worry and anxiety.24

The human nervous system [5.90] For a proper understanding of what follows it is important first to have some knowledge of the human nervous system. This consists of the central nervous system and the peripheral nervous system. It may be 20

HW Smith, “Problems of Proof in Psychic Injury Cases” (1963) 14 Syr L Rev 586 at 610.

21

Comment, “Negligently Inflicted Mental Distress: The Case for an Independent Tort” (1971) 59 Geo LJ 1237 at 1255.

22

S Cobb, Emotions and Clinical Medicine (Norton, New York, 1950), p 25 says of the term “emotion”: “The term ‘emotion’ designates a multidimensional referent: (1) the private, consciously felt effect; (2) the complex set of biochemical processes which constitute the internal milieu in which a multitude of reactions take place at various ‘levels’ of physiological integration, as well as the functioning of various neurological mechanisms, notably the ‘visceral brain’ and the autonomic nervous system, which are more directly concerned with the somatic expression of emotion; and (3) the more or less typical overt patterns of behaviour which may be said to ‘express’ the felt effect and to be manifestations of the stirred-up internal state.”

23 24

A Damasio, The Feeling of What Happens (Vintage, London, 2000), p 50.

For slightly different classifications see S Cobb, Emotions and Clinical Medicine (Norton, New York, 1950), p 108; HW Smith, “Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli” (1944) 30 Va L Rev 193 at 214; Restatement of Torts Second 1965 (US), § (j).

[5.100]

5 A Medical Perspective

141

further subdivided functionally into the somatic and autonomic nervous systems. These various systems are anatomically and physiologically distinct. The central nervous system comprises the cerebral hemispheres (comprised of the cerebral cortex, white matter and subcortical regions), the rest of the forebrain (thalamus, hypothalamus and pituitary gland), the midbrain, the brain stem and the spinal cord, which are the main centres where correlation and integration of nervous information occurs. Injury to this system, particularly trauma to the brain, is mainly a matter for the neurologist, though damage to areas such as the frontal lobes may lead to personality and behavioural change. The peripheral system consists of the nerves emerging from the brain (cranial nerves) and from the spinal cord (spinal nerves) which convey neural messages from the sense organs and sensory receptors inward to the central nervous system and from the central nervous system outward to the muscles and glands of the body. The somatic nervous system comprises those peripheral systems responsible for conveying and processing conscious and unconscious sensory information (such as vision, touch, pain and unconscious muscle sense) from the head, body wall and extremities to the central nervous system, and the motor control of the voluntary muscles. In other words, it innervates the body (for example, the skin and skeletal muscles) but not the viscera25 or blood vessels. We are here chiefly concerned with the remaining category — the autonomic nervous system, which involves innervation of involuntary structures within the body. It operates independently of the volition on these structures and is responsible for conveying and processing sensory input from the visceral organs (for example, the digestive and cardiovascular systems), and the motor control of the involuntary (smooth) and cardiac muscles and of glands of the viscera (for example, the large internal organs found in the abdominal cavity or “guts”).

Effect of emotions on the body [5.100] In 1902 Gillett J in Kline v Kline,26 attempting to describe mental or emotional distress, said that there was “a touching of the mind, if not of the body”. However, from the scientific point of view, it is incorrect to think of any sort of emotional response as purely mental suffering. A considerable amount of medical evidence has been assembled since the beginning of the last century to demonstrate that all emotions have physical effects.27 The basis of our knowledge of this subject remains the pioneering work of Dr Walter B Cannon of the Harvard Medical School 25

A term applied to the larger internal organs of the body which are closely related to, or contained within, one of the three great cavities of the body: the thorax (ie chest, containing the heart and lungs), pelvic cavity, and abdominal cavity. The term applies particularly to the organs of the abdominal cavity. “Viscus” is also applied individually to these organs.

26 27

Kline v Kline 64 NE 9 (Ind 1902) at 10.

For accounts in legal journals of this research, and older general discussions of psychiatric damage from a medical perspective, see FVW Tibbits, “Neurasthenia, the Result of Nervous Shock, as a Ground for Damages” (1904) 59 Cent LJ 83; HF Goodrich, “Emotional Disturbance as Legal Damage” (1922) 20 Mich L Rev 497; L Vold, “Tort Recovery

142

Part II: Mental Harm

[5.110]

who, during the early years of the 20th century, conducted extensive investigations into the physical effects of various emotions and produced very convincing evidence that emotions bring about important bodily changes.28 Although more is now known about physiology, modern research has done nothing to invalidate his thesis.29 But even before his study there was significant scientific opinion that supported such a contention. William Harvey in the 17th century recognised that affections of the mind were accompanied by bodily responses,30 and in the 19th century what was probably the first serious study of the physical effects of fright was carried out by Charles Darwin.31 Damasio describes this graphically: “All emotions use the body as their theatre (internal milieu, visceral, vestibular and musculoskeletal systems).”32 [5.110] Much of the scientific evidence on the effects of emotions on the body deals with fear. Fear may be of many types but it inevitably involves the threat of loss or damage to something that the individual greatly values and to which he or she is strongly attached. It may be for one’s own personal safety or that of another, for loss of a prized possession or even an abstract ideal such as honour, reputation or a political or religious

for Intentional Infliction of Emotional Distress” (1939) 18 Neb L Bull 222 at 222–228; HW Smith and HC Solomon, “Traumatic Neuroses in Court” (1943) 30 Va L Rev 87; HW Smith, “Relation of Emotions to Injury and Disease: Legal Liability for Psychic Stimuli” (1944) 30 Va L Rev 193; M Keschner, “Simulation of Nervous and Mental Disease” (1946) 44 Mich L Rev 715; J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478; PD Cantor, “Psychosomatic Injury, Traumatic Psychoneurosis, and Law” (1957) 6 Clev Mar L Rev 428; CE Wasmuth, “Psychosomatic Disease and the Law” (1958) 7 Clev Mar L Rev 34; HW Smith, “Problems of Proof in Psychic Injury Cases” (1963) 14 Syr L Rev 586; DI Sindell, “The Terror Neurosis” (1966) 15 Clev Mar L Rev 41; E Tanay, “Psychic Trauma and the Law” (1969) 15 Wayne L Rev 1033 at 1033–1045; RI Gordon, “Mental Distress in Psychological Research” (1969) 21 Baylor L Rev 520; ML Selzer, “Psychological Stress and Legal Concepts of Disease Causation” (1971) 56 Cornell L Rev 951; Comment, “Negligently Inflicted Mental Distress: The Case for an Independent Tort” (1971) 59 Geo LJ 1237 at 1248–1262; DJ Leibson, “Recovery of Damages for Emotional Distress caused by Physical Injury to Another” (1976-1977) 15 Journal of Family Law 163 at 190–211. 28

See WB Cannon, Bodily Changes in Pain, Hunger, Fear and Rage (Appleton & Co, New York, 1915); WB Cannon, The Wisdom of the Body (Norton, New York, 1939). Dr George W Crile also made important contributions to the subject: see GW Crile, The Origin and Nature of the Emotions (Saunders, Philadelphia, 1915); GW Crile, Man — An Adaptive Mechanism (Macmillan, New York, 1916). Note, however, that as L Vold, “Tort Recovery for Intentional Infliction of Emotional Distress” (1939) 18 Neb L Bull 222 at 222 n 3 points out, Crile was a surgeon rather than a physiologist or a psychologist and so on the matters under discussion may be less authoritative. 29

See A Storr, Human Aggression (Penguin, London, 1970), p 28; S Cobb, Emotions and Clinical Medicine (Norton, New York, 1950), pp 89–90.

30

W Harvey, Movement of the Heart and Blood in Animals (Blackwell, Oxford, 1957: first published in 1628), Ch 15.

31

C Darwin, Expression of the Emotions in Man and Animals (Murray, London, 1904: first published in 1872). 32

A Damasio, The Feeling of What Happens (Vintage, London, 2000), p 51.

[5.130]

5 A Medical Perspective

143

canon.33 Fear causes various bodily changes: it affects the digestive processes, making the mouth dry and checking the flow of pancreatic juices and bile, and the bladder, increasing the frequency of urination; peristaltic movements of the stomach and intestines are stopped, hair may stand on end and skin may “goosebump” or perspire. It also affects the organs of the body that can aid it in its attempts to combat or escape the cause of the fear. Blood flows at an increased rate and pressure from the internal organs into the skeletal muscles, the supply of blood sugar rises, and the adrenal glands respond by secreting adrenaline to restore tired muscles which become more tense and less liable to fatigue. The spleen is contracted so that its content of concentrated corpuscles is squeezed out into the bloodstream. Blood vessels of the skin are constricted to guard against excessive bleeding from possible lesions, the rate of breathing is accelerated and the thyroid gland is triggered into action. Fear is thus very much a physical thing — it puts the whole body in a state of readiness for “fight or flight”.34 This bodily reaction that aided primitive humans survives in us today. What is true of fear is true of all other emotions — horror, anger, shame, disappointment, worry, anxiety and so on have all been demonstrated to have complex physical effects, which vary according to the individual and the length and intensity of the emotional response. In the words of Goodrich, “[a]n emotion as a purely mental thing does not exist”.35 [5.120] It has also become apparent from the work of Joseph LeDoux36 that there are two distinct physiological brain responses to threat which differ in their time course and pathways. After we perceive a potentially threatening stimulus, all signals are relayed to the thalamus — a brain structure that acts as a sort of “clearing house”. Thence there are two distinct and separate paths. First, the more rapid, and unconscious, response is transmitted via the amygdala — a large (and evolutionarily) primitive nucleus deep in the brain and one of the subcortical structures referred to at [5.90] — which activates the physical response to the threat by initiating the “fight or flight” response via the autonomic nervous system. The second, and slower, pathway is to the cortex, alerting us consciously to the threatening stimulus. By the time we are consciously aware of the potential harm, the body has already (unconsciously) commenced its response. [5.130] These bodily reactions are short-term in duration, subjective in nature and in themselves are not harmful. In fact, such reactions may even be beneficial in the short term, because of the restorative effect on 33

See J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478 at 481–482. For discussion of the causation of fear see RR Grinker and JP Spiegel, Men Under Stress (McGraw-Hill, New York, 1963).

34

“Fear hath torment”: 1 John 4:18.

35

HF Goodrich, “Emotional Disturbance as Legal Damage” (1922) 20 Mich L Rev 497 at 501.

36

J LeDoux, The Emotional Brain (Simon & Schuster, New York, 1996).

144

Part II: Mental Harm

[5.140]

adrenalin secretion caused by emotional stimulation.37 In the long term, however, these bodily changes may cause serious and permanent damage. Crile points out38 that, when nature developed the physical reactions following fear, fear usually meant fight or flight, but today it seldom means either. Such consequential action would use up the products of emotional stimulation, such as adrenalin and sugar, but if no action follows these products must be eliminated as waste; and there is a limit to the amount to which the body can withstand this process. The body is like a car with the accelerator pressed down when the clutch is let out.39 No adverse consequences will result after the first couple of times this is done but there is a limit to the number of occasions it can be repeated before serious and possibly lasting damage occurs. So with the body: the infliction of emotional distress, if serious or intense enough or repeated often enough, may cause debilitating and permanent harm. [5.140] There is thus a primary, automatic and instinctive reaction to traumatic stimuli, involving conscious and unconscious components, which may be seen as the body’s attempt to combat and protect the individual from the stress associated with the situation in question. This may be followed by a longer-term reaction, which occurs when the body can no longer overcome the problem of ongoing emotional stress or adequately cope with the traumatic event.40 [5.150] Despite the undeniable progress that has been made in psychiatric medicine, the line between “normal” initial emotional 37

HF Goodrich, “Emotional Disturbance as Legal Damage” (1922) 20 Mich L Rev 497 at 502, quoting WB Cannon, Bodily Changes in Pain, Hunger, Fear and Rage (Appleton & Co, New York, 1915).

38

GW Crile, The Origin and Nature of the Emotions (Saunders, Philadelphia, 1915), pp 93, 139.

39

GW Crile, The Origin and Nature of the Emotions (Saunders, Philadelphia, 1915), pp 61, 139–140, 161.

40

Trauma can be understood as a sudden extreme discontinuity in a person’s experience. It commonly brings about extensive alterations of emotional, cognitive, and volitional processes which may ultimately threaten the self as a coherent whole: see D Spiegel and E Cardena, “Dissociative Mechanisms in Posttraumatic Stress Disorder”, in ME Wolf and AD Mosnaim (eds), Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, Washington DC, 1990), p 23. Sigmund Freud argued that traumatic neuroses result when the ego is overwhelmed as a consequence of an extensive breach made in its “protective shield” against stimuli; by this he meant a sort of psychic skin necessary for the crucial daily function of keeping at bay external stimuli that might otherwise swamp the ego. “Ego” refers to one of the three major divisions of the personality — the id, ego, and superego. The ego is the “executive branch” of the personality, mediating between the needs of the self and reality. When the “shield” is penetrated or the “skin” pierced the individual’s normal adaptive capabilities are disturbed and he or she reverts to the primitive form of defence known as repetition compulsion which involves mentally repeating the distressing happening over and over, most commonly in dreams. The active re-creation of the event in this manner rather than the passive experience of it as in the original situation allows the trauma victim to overcome it: see Freud’s introduction to S Ferenczi et al, Psycho-Analysis and the War Neuroses (International Psycho-Analytical Press, London, 1921); S Freud, Beyond the Pleasure Principle (International Psycho-Analytical Press, London, 1922: authorised trans from 2nd German ed by CJM Hubback).

[5.160]

5 A Medical Perspective

145

responses to trauma and “abnormal” secondary psychiatric reactions remains, in some cases, a hazy one. Certain psychiatric disorders are simply extreme versions of commonplace human frames of mind. For example, reactions diagnosed as mild clinical anxiety or depressive states41 may merge imperceptibly with normal and natural anxiety and despondency.42 The indistinct boundary between normal and abnormal responses to stress is further compounded by the inclusion in the DSM-5 classification system of “adjustment disorders”. The adjustment disorders describe clinically significant emotional or behavioural symptoms in response to identifiable psychosocial stressors, but which do not fulfil the criteria for more distinct conditions such as major depressive disorder or post-traumatic stress disorder. For example, one may have adjustment disorder with depression and/or anxiety. The central criteria here are that symptoms must have developed within three months of such a stressor, and that the reaction is indicated by either marked distress that is out of proportion to the severity or intensity of the stressor, or by significant impairment in social or occupational functioning. [5.160] The distinction between “abnormal” and “normal” is more readily made in relation to the more severe disorders (such as bipolar disorder and schizophrenia43) which can be characterised as autonomous “categorical” illnesses beyond voluntary control or influence — though some episodes or exacerbations may be related to external stressors or illicit substance use. One either exhibits or does not exhibit evidence of these sorts of illnesses. Greater difficulty arises in relation to the milder “dimensional” disorders that may overlap with the ordinary feelings experienced in everyday life. In contrast to the “all or nothing” nature of “categorical” illness, a person can, for example, be more or less anxious or depressed than the next person. Although it is clear that anxiety and depression pose a risk to health, the fundamental problem in a mildly anxious or depressed individual and a grossly or “abnormally” anxious or depressed individual is identical. It is the consequences of the two forms of condition that are statistically different. Persons who are in a heightened anxiety state or suffering from severe “major” depression will experience a more serious, effective, rapid and longer-lasting decline in mental well-being than moderately anxious or depressed people. Further, such severe forms of depressive and anxiety disorders cause significant functional impairment in areas such as capacity to work, earning an income and maintenance of relationships, and moreover may lead to more tragic consequences such as suicide attempts. Commonly, it is less severe forms of psychiatric illness such as these that are under consideration in litigation, complicating the determination of the issue of 41

See [5.180].

42

Note Hudson v Mutual of Omaha Insurance Co (1974) 51 DLR (3d) 115 where it was held (for the purposes of a question in an insurance proposal) that depression, without more, was not a mental disorder.

43

See [5.190].

146

Part II: Mental Harm

[5.170]

compensability and bringing into question the wisdom of the courts’ forced division between normal and abnormal mental conditioning. [5.170] Not only does the prevailing law insist that this secondary damage be distinguished from transitory or momentary human response: it must be separated from any direct physical injury sustained as a result of immediate reaction, for example, to being startled, taken by surprise or frightened. The classic illustration is Jones v Boyce44 where a passenger on a runaway stagecoach, frightened that it was about to overturn, jumped off and broke his leg. In fact the coach did not overturn, but the passenger’s fear was reasonable, and so the defence of contributory negligence was not successful. Similarly, in Slatter v British Railways Board45 the plaintiff was startled by a loud bang caused by the violent shunting of goods wagons into a stationary wagon that he was examining. He fell and his hand was cut off by the wagon.46 Whilst recovery was allowed for this instantaneous injury the case cannot be regarded as one involving recognisable psychiatric harm. It is the secondary injuries or illnesses that manifest themselves subsequent to initial responses to exposure to trauma (and consequent and immediate physical injury sustained by falling, tripping and so on) that may be classified under that rubric. What we (and the courts) are concerned with when discussing compensable damage are those injuries or illnesses that can be categorised as acknowledged medical conditions. Medical science has now built up a great deal of knowledge about these secondary states which include both somatic damage such as miscarriages, heart attacks and peptic ulcerations and psychic (mental) damage. Traditionally the various mental responses were categorised into the “traumatic neuroses”,47 psychoses48 and psycho-neuroses.49 The term “neurosis” has, 44

Jones v Boyce (1816) 1 Stark 493; 171 ER 540.

45

Slatter v British Railways Board [1966] 2 Lloyd’s Rep 395.

46

See also Cohn v Ansonia Realty Co 148 NYS 39 (1914) (fright caused plaintiff to fall down elevator shaft); Brandon v Osborne, Garrett & Co Ltd [1924] 1 KB 548 (husband injured by falling glass in shop, wife instinctively pulled him out of danger and strained her leg); Hogg v Keane [1956] IR 155 (passenger in car jumped out when she saw car in front reversing into her car, injured her head as she did so); Devine v Colvilles Ltd 1969 SC 67 (fear and panic after explosion caused steelworker to jump from high platform). Note also Brook v Cook (1961) 105 SJ 684, where the plaintiff was frightened by an African monkey which suddenly appeared on top of her garden wall, causing her to fall breaking her wrist trying to turn away quickly. She failed on the facts, her injury being unforeseeable because it had not resulted from an attack of any kind by the animal.

47

The word “neurosis” has been used historically as a collective term for psychiatric disorders which have three things in common: (1) they are functional in nature, ie they are unaccompanied by organic brain disease; (2) they are not psychoses, ie the sufferer does not lose touch with external reality however severe the condition; (3) they differ from personality disorders in that they have a discrete onset rather than a continuous development from early adult life: see M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 20. Neuroses are less severe forms of mental illness than psychoses and are characterised by symptoms closer to normal experiences. The term is less than satisfactory as a formal component of a system of classification, which explains its omission from contemporary

[5.170]

5 A Medical Perspective

147

however, fallen out of common and official usage because of its pejorative connotations and the implication of unconscious causative psychodynamic processes. Modern nosological systems such as the World Health Organisation International Classification of Diseases, the most recent version being the 10th edition (ICD-10),50 and the American DSM-5 refer rather to broad descriptive categorical groupings such as depressive, anxiety, trauma- and stressor-related, somatic and dissociative disorders, or schizophrenia and bipolar disorders. Although comprehensive understanding of the aetiology,51 pathology52 and pathological

classification systems. It is difficult to define, the conditions it embraces have little in common, and increased information can be conveyed by using a more specific diagnosis. Moreover, neurosis has sometimes been misused to denote aetiology (see [5.280]) rather than used in its historically correct sense of designating disorder. Nevertheless “neurosis” continues to be used in everyday clinical practice and will be adopted in this work in its global sense. See generally S Furst (ed), Psychic Trauma (Basic Books, New York, 1967); L Keiser, The Traumatic Neurosis (Lippincott, Philadelphia, 1968); R Culpan and C Taylor, “Psychiatric Disorders following Road Traffic and Industrial Injuries” (1973) 7 Aust NZ J Psych 32; MR Trimble, Post Traumatic Neurosis: From Railway Spine to the Whiplash (Wiley, Chichester, 1981); MJ Horowitz, Stress Response Syndromes (2nd ed, Aronson, New York, 1986); L Michelson and LM Ascher (eds), Anxiety and Stress Disorders: Cognitive-Behavioral Assessment and Treatment (Guilford Press, New York, 1987); G Mendelson, Psychiatric Aspects of Personal Injury Claims (Thomas, Springfield, Illinois, 1988); JP Wilson, Z Harel and B Kahana (eds), Human Adaptation to Extreme Stress: From the Holocaust to Vietnam (Plenum Press, New York, 1988). For a clear explanation of the medical terms see A Mann, Medical Assessment of Injuries for Legal Purposes (4th ed, Butterworths, Sydney, 1985), Chs 3–4. 48

Broadly speaking, “psychosis” refers to the more severe forms of mental illness. However, reference to greater severity is not particularly helpful as the disorders which fall under this head occur in mild as well as severe forms. Unsuccessful attempts have been made to define the term more precisely: for example, insight is often suggested as a criterion for psychosis but this concept is itself difficult to define. The best criterion is perhaps the inability to distinguish between subjective experience and reality as evidenced by hallucinations and delusions — but again these criteria are not easily applied. As with the term “neurosis”, “psychosis” is undesirable in that, apart from difficulties of definition, the conditions covered by the term have little in common and it is insufficiently informative. Once again, it is nevertheless widely used in practice as a convenient term for disorders which cannot be given a more precise diagnosis due to insufficient data: see M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 521.

49

These are intermediate types of disorder displaying characteristics of both neurosis and psychosis.

50

World Health Organisation, The ICD-10 Classification of Mental and Behavioural Disorders – Clinical Descriptions and Diagnostic Guidelines (World Health Organisation, Geneva, 1992).

51

Aetiology is the study or theory of the causation of any disorder; the sum total of knowledge of causes.

52

Pathology is that branch of medical science which deals with the essential nature of disorders, in particular the structural and functional alterations caused by them.

148

Part II: Mental Harm

[5.180]

physiology53 of these conditions remains elusive, modern research is slowly identifying relevant causative biological (including genetic) and psychosocial factors.54

Anxiety disorders, somatic disorders and psychoses [5.180] A common trauma-induced condition is generalised anxiety disorder where sufferers are tortured by the dread that all is not well and that something terrible is about to happen to them or to those they love. Because persons so afflicted do not know where the danger is going to come from, their happiness and efficiency is constantly curtailed by the perceived need to worry. The emotional stress produces severe tension resulting in symptoms such as nervousness and timidity, nausea, cardiac palpitations, shortness of breath, loss of weight, persistent headaches and backaches, stomach pains, weakness and so on. Another not uncommonly observed post-traumatic condition is conversion disorder (also termed “functional neurological symptom disorder” in DSM-5) where the individual converts impulses that he or she consciously disavows into various physiological symptoms such as impaired coordination or balance, weakness, loss of speech, loss of touch or pain sensation, muscular spasms, paralysis, loss of hearing or sight, and epileptic-like convulsions. Here the effects of trauma manifest themselves not as anxiety but in terms of physical injury — though there is of course no physical cause. Other secondary reactions to trauma have been identified: hypochondria, characterised by fears of illness and excessive concern with health; phobias, which cause the trauma victim to avoid contact with other people, places or situations; obsessive-compulsive disorders, where there is a continued appearance of unwelcome ideas in the mind or a repeated urge to carry out certain acts and rituals; depression, which may cause sleeplessness, loss of appetite, impaired initiative, poor memory and concentration, reduced energy, social withdrawal, fatigue and suicidal thoughts and behaviour; and post-traumatic stress disorder.55 [5.190] Of the secondary afflictions that are psychotic in nature the most serious is schizophrenia, an extremely complex disorder involving delusions, hallucinations, and disturbance in the affect (the observed mood) and form of thought. Schizophrenia is a strongly heritable condition, with the current dominant aetiological theory suggesting abnormal brain development during gestation and infancy. The disorder can be viewed as having three stages: in chronological order, the

53

Pathological physiology concerns those deviations from normal functioning of particular organs or bodily processes which are produced by disorder or abnormal interference.

54

KS Kendler, “The Dappled Nature of Causes of Psychiatric Illness: Replacing the Organic-Functional/Hardware-Software Dichotomy with Empirically Based Pluralism” (2012) 17 Molecular Psychiatry 377.

55

See [5.210].

[5.200]

5 A Medical Perspective

149

prodromal, active and residual phases.56 The first and third of these are characterised by social isolation or withdrawal, clear deterioration from a previous level of role functioning (for example, as a wage earner, student or homemaker), peculiar behaviour (such as talking to oneself in public or collecting refuse), odd beliefs or thinking (for example, that others can “know my feelings”, telepathy), unusual perceptual experiences (for example, sensing “that something is wrong”), speech and communicative deterioration, marked decline in personal hygiene and grooming, and a lack of initiative, interests or energy. During the active phase the sufferer will experience delusions (for example, that he or she is being persecuted or controlled by another person or that others can read their thoughts) and vivid auditory, visual or olfactory hallucinations. Such hallucinatory experiences are not limited to a few brief moments — in fact, some persist life-long — and may take the form of voices keeping a running commentary on the person’s behaviour or thoughts, or two or more voices conversing with each other. There may, in addition, be a loosening of thought associations, incoherence, and flat or grossly inappropriate affect. In flat affect there are minimal signs of affective expression — the voice is monotonous and the face immobile. In inappropriate affect the affect is clearly discordant with the content of the person’s speech or thoughts (for example, when discussing being tortured by electric shock the sufferer may laugh or smile). Although not commonly observed in contemporary practice, acute schizophrenic patients may also engage in catatonic behaviour that is characterised by negativistic reactions, phases of stupor, immobility with muscle rigidity or inflexibility and outbreaks of excitement. Associated features of the syndrome of schizophrenia include psychomotor abnormalities (such as pacing, rocking or apathetic immobility); memory impairment and other thinking difficulties; dysphoric moods that may take the form of depression, anxiety, anger or a mixture of these; and eccentric grooming or dressing or dishevelment. [5.200] The other major psychotic illness is bipolar disorder, previously known as manic depressive illness.57 As with schizophrenia, persons suffering from this may experience delusions and hallucinations, but the long-term course of illness is distinctive. Patients experience episodes of both mania and depression, with full or substantial recovery between such phases, unlike the ongoing symptomatology most frequently seen in schizophrenia. While vulnerability to this condition is strongly genetically determined, specific episodes of mania and depression may be precipitated by stressful experiences, or illicit substances such as amphetamine or marijuana. In mania, patients experience elevated and irritable moods. They are highly energised and over-active, with disinhibition and impaired judgment often leading to damaging decisions and behaviour in 56

For discussion of these schemes in this context see M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 521.

57

See P Joyce and P Mitchell (eds), Mood Disorders: Recognition and Treatment (UNSW Press, Sydney, 2004).

150

Part II: Mental Harm

[5.210]

relationships, financial matters, and careers. They are talkative and have less need for sleep. Grandiosity usually presents with an inflated opinion of their own capacities, but may become frankly delusional, with the person believing for example that they are Christ or have some hitherto unrecognised talent or role. Ideas of persecution frequently co-exist with such grandiosity. Depressive episodes are often markedly debilitating, with profound loss of energy and drive, with physical slowing and thinking difficulties prevalent. Suicide attempts are common, and 10 to 20 per cent end their life by their own hand.

Post-traumatic stress disorder [5.210] Of all the “recognisable psychiatric illnesses”, of particular significance for our purposes is the very considerable interest focused in the last two or three decades on post-traumatic stress disorder (“PTSD”)58 and it is on this anxiety disorder that we will concentrate our discussion. Although the clinical features of PTSD have been observed for hundreds of years59 the psychiatric nomenclature is of recent vintage. It was only in 1980 that American psychiatrists introduced this new diagnostic category 58

This disorder has generated a voluminous body of literature. A selection of the recent and more general discussions includes M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), pp 693–728; J Bisson and M Andrew, “Psychological Treatment of Post-traumatic Stress Disorder (PTSD)” (2005) 18(2) Cochrane Database Syst Rev CD003388; R Bryant, “Psychosocial Approaches of Acute Stress Reactions” (2005) 10(2) CNS Spectr 116; J Bisson, “Post-traumatic Stress Disorder” (2004) 11 Clin Evid 1343. For earlier literature, see the first edition of this book: NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), p 33 n 95. For accounts of PTSD in legal journals, see JT Smith, “Post Traumatic Stress Disorder: An Often Overlooked Element of Trauma” (1984) 20 Trial 92; MM Duran, “Nothing New: Unwrapping the Packaging of Post-Traumatic Stress Disorder” (1988) 33 Loyola L Rev 1076; RJ Bragg, “Post-Traumatic Stress Disorder” (1992) 136 SJ 674; Weller M, “Post Traumatic Stress Disorder” (1993) 143 New LJ 878; M McCulloch, “Post Traumatic Stress Disorder: Turning the Tide without Opening the Floodgates” (1995) 35 Med Sci Law 287; RL Newman and R Yehuda, “PTSD in Civil Litigation: Recent Scientific and Legal Developments” (1997) 37 Jurimetrics 257; K Kuch and P Collins, “Psychological Injury and Motor Vehicle Accidents” (1997) 19 Adv Q 176; G Mendelson, “Posttraumatic Stress Disorder as Psychiatric Injury in Civil Litigation” (1997) 2 Psychiatry, Psychology and Law 53; I Freckelton, “Post Traumatic Stress Disorder: A Challenge for Public and Private Health Law” (1998) 5 JLM 252; G Glumac, “Post-traumatic Stress Disorder: A Review of the Psychiatric Literature for the Legal Profession” (1999) 21 Adv Q 336; PF McGuire, “The Assessment of Malingering in Traumatic Stress Claimants” (1999) 6 Psychiatry, Psychology and Law 163; M Pangia, “Posttraumatic Stress Disorder: Litigation Strategies” (1999) 64 Jl of Air Law and Commerce 1091.

59 See generally MR Trimble, Post Traumatic Neurosis: From Railway Spine to the Whiplash (Wiley, Chichester, 1981); G Mendelson, Psychiatric Aspects of Personal Injury Claims (Thomas, Springfield, Illinois, 1988). Note also MR Trimble, “Post-Traumatic Stress Disorder: History of a Concept” in CR Figley (ed), Trauma and its Wake: The Study and Treatment of Posttraumatic Stress Disorder (Brunner Mazel, New York, 1985), Pt 5; E Hare, “The History of “Nervous Disorders” from 1600 to 1840, and a Comparison with Modern Views” (1991) 159 Br J Psy 37. For a detailed judicial discussion of the history of PTSD (incorporating references to a variety of sources, including Lady Percy’s description of Hotspur’s sufferings in Shakespeare’s Henry IV Part I, and Wilfred Owen’s World War I poem “Mental Cases”), see the judgment of Budd J in Murtagh v Minister for Defence [2008] IEHC 292.

[5.220]

5 A Medical Perspective

151

into the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) — the diagnostic system of the American Psychiatric Association.60 Previously what is really a relatively common human post-trauma problem had been known under a variety of different names such as “post-traumatic neurosis”, “post-accident syndrome”, “fright neurosis” or “shell shock”. One catalyst for its inclusion was the results of growing research being carried out on combat veterans and in particular into the catastrophic effects of the Vietnam War.61 [5.220] Some continue to debate the validity of this syndrome but the vast majority of the scientific community accept it as a psychiatric entity, pointing to repeated observation and description of identical sets of symptoms following traumatic events.62 It is included in DSM-5, and was added to the 10th edition of the World Health Organisation’s International Classification of Diseases (ICD-10)63 — the standard psychiatric classification used in the Australian public health system. Although courts have been somewhat hesitant to utilise the benefits of the latest developments in this field, there are signs that this is changing. Starting in the late 1980s, judges 60

The most recent version, known as DSM-5, was published in 2013: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition: DSM-5 (American Psychiatric Association, Washington DC, 2013).

61

The first edition, DSM-I (1952), which coincided with the Korean War, had referred to gross stress reaction, a transient response to severe physical or emotional stress capable of developing into chronic neurotic reaction in accordance with predisposing character traits. The second edition, DSM-II (1968), developed during a period without war, eliminated the diagnostic category of gross stress reaction. It categorised the effects of traumatic stress under the diagnosis “transient situational disturbance” if the symptoms were short-lived and used the category “anxiety neurosis” for more enduring symptoms. See R Ramsay, “Invited Review: Post-Traumatic Stress Disorder: A New Clinical Entity?” (1990) 34 Journal of Psychosomatic Research 355. It has been estimated that there are between 500,000 and 1.5 million Vietnam veterans suffering PTSD: see P Thiens-Honthos, CG Watson and T Kucala, “Stress Disorder Symptoms in Vietnam and Korean War Veterans” (1982) 50 Journal of Consulting & Clinical Psychology 558.

62

Previously controversy arose as to the “legitimacy” of the disorder and its true discriminability from other disturbances: see eg N Breslau and G Davis, “Posttraumatic Stress Disorder: The Stressor Criterion” (1987) 175 J Nerv Ment Dis 255. It was questioned whether PTSD constituted a verifiable disorder or whether it should be alternatively recategorised as a variant or subset of other major syndromes such as major depression: see eg DW Goodwin and SB Guze, Psychiatric Diagnosis (4th ed, Oxford University Press, New York, 1989), pp 93–94. However, an increasing number of studies have generated a substantial amount of factual data about PTSD and its distinctive symptomatology. This has assisted greatly in the resolution of earlier questions about diagnostic validity and taxonomy. Research conducted from about 1979 to 1983 provided the empirical support for this and work continues today to build on that foundation: see J Wolfe and TM Keane, “Diagnostic Validity of Posttraumatic Stress Disorder” in ME Wolf and AD Mosnaim (eds), Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, Washington DC, 1990), p 50.

63

The closest equivalent category in ICD-9 was “acute reaction to stress” which is defined as: “[V]ery transient disorders of any severity in nature which occur in individuals without any apparent mental disorder, in response to exceptional physical or mental stress, such as natural catastrophe or battle, and which usually subside within hours or days”. See now “Acute stress reaction” in ICD-10.

152

Part II: Mental Harm

[5.220]

began to identify the sufferings of plaintiffs as PTSD.64 The DSM-III-R criteria were expressly adopted for the first time in an Irish decision,65 and since then judges have regularly referred to the diagnostic criteria in DSM-III-R,66 DSM-IV,67 DSM-IV-TR68 and now DSM-5,69 and also to

64

Eg Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988); A v P & O Ferries (Dover) Ltd (The Independent, 5 May 1989); Ross v Bowbelle and Marchioness (unreported, Admiralty Registrar, 18 June 1991); Clark v Commonwealth (1992) Aust Torts Rep 81-171; Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271. According to the expert evidence given in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 317, “[t]he most common diagnosis made was post-traumatic stress disorder”. Note, however, occasional examples of judges assuming that PTSD encompasses all cases of “nervous shock” or recognisable psychiatric illness, eg Vernon v Bosley [1997] 1 All ER 577 at 584 per Stuart-Smith LJ: “Over the last 15 years psychiatrists have come to call this [recognised psychiatric] illness post-traumatic stress disorder” (the other judges did not commit this error: see at 603 per Evans LJ, at 609–610 per Thorpe LJ); Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28 at 33 per Hutchison LJ: “nervous shock, now more commonly referred to as post-traumatic stress disorder”.

65

Mullally v Bus Éireann [1992] ILRM 722. Note, however, Foster J’s brief reference to “DMS III” in Ledger v Commonwealth (unreported, Fed Ct, No G127 of 1990, 18 April 1991) at [7].

66

See eg Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) at [121] per Foster J; Vernon v Bosley [1997] 1 All ER 577 at 584 per Stuart-Smith LJ, at 595 per Evans LJ, at 610–611 per Thorpe LJ. Thorpe LJ said at 607: “The duty of the courts, as I see it, is to take account of contemporary knowledge and to decide whether the plaintiff has suffered mental injury caused by the negligence of the defendant, and then to apply the policy limits on recovery.”

67

For Australian examples see Cleary v Congregation of the Sisters of the Holy Family at Nazareth (unreported, Qld SC, No 1066 of 1995, 23 December 1996) at [13] per Lee J; FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,487 per Lee J; Wilson v Tasmania [1999] TASSC 145 at [42]–[53] per Evans J; New South Wales v Seedsman (2000) 217 ALR 583 at [101]–[119] per Spigelman CJ; [2000] NSWCA 371 at [40]–[41], [53] per Mason P]; Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at [63] per Hodgson JA; Monie v Commonwealth [2007] NSWCA 230 at [175] per Campbell JA; Covington-Thomas v Commonwealth [2007] NSWSC 779 at [35] per Kirby J; Peterson v Commonwealth [2008] VSC 166 at [210] per Kaye J; S v New South Wales [2009] NSWCA 164 at [47] per Macfarlan JA; Doherty v New South Wales [2010] NSWSC 450 at [9] per Price J. For examples from other jurisdictions see Arrowsmith v Beeston (unreported, Eng CA, No QBENF 97/0755/C, 18 June 1998) per Brooke LJ; Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 at 164 per Judge Steel; Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 463 per Judge Bursell QC; Hatton v Sutherland [2002] ICR 613 at [5] per Hale LJ; Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [133] per Lord Hobhouse of Woodborough; Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227 at [1] per Thomas J; McLoughlin v Jones [2002] QB 1312 at [16] per Brooke LJ; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [84] per Mackenzie JA; Young v Borzoni (2007) 277 DLR (4th) 685 at [37] per Thackray J; Burnett v St Jude Medical Inc 2009 BCSC 1651 at [9] per Sigurdson J; Rorrison v West Lothian College [1999] Scot CS 212 per Lord Reed; Mather v British Telecommunications plc 2001 SLT 325 at [43] per Lord Osborne; Anderson v Christian Salvesen plc 2006 SLT 815 at [2] per Lord Drummond Young; Murtagh v Minister for Defence [2008] IEHC 292 per Budd J; Maijet v Santam Ltd [1997] 4 All SA 555 (C) at 565 per Cleaver J; Media 24 Ltd v Grobler [2005] 3 All SA 297 (SCA) at [56]–[60] per Farlam JA.

68

See eg Tame v New South Wales (2002) 211 CLR 317 at [293] per Hayne J; Halech v South Australia (2006) 93 SASR 427 at [97] per Besanko J; Burk v Commonwealth [2008] VSCA 29 at [49] per Warren CJ; Giller v Procopets (2008) 24 VR 1 at [28] per Maxwell P.

[5.230]

5 A Medical Perspective

153

ICD-1070 and other medical literature,71 to assist in the determination of whether a recognisable psychiatric illness has been established.72 The authors of DSM-5 suggest caution in the way in which this material should be used: Clinical training and experience are needed to use DSM for determining a diagnosis. The diagnostic criteria identify symptoms, behaviors, cognitive functions, personality traits, physical signs, syndrome combinations, and durations that require clinical expertise to differentiate from normal life variation and transient responses to stress.73

Judges have also recognised the limitations of such sources. In the words of Thorpe LJ in Vernon v Bosley (No 1):74 DSM-III-R may provide the medical profession with a useful diagnostic tool but PTSD and its DSM-III-R classification should not, in my judgment, be adopted in personal injury litigation as the yardstick by which the plaintiffs’ success or failure is to be measured.

[5.230] DSM-5 defines PTSD as requiring: (i) exposure to actual or threatened death, serious injury, or sexual violence; (ii) the presence of intrusion symptoms associated with the traumatic event(s); (iii) persistent avoidance of stimuli associated with the traumatic event(s); (iv) negative 69

Whitehead v Moon [2013] ACTSC 243 at [173] per Master Harper (referring to expert evidence that the criteria in DSM-IV did not adequately describe the plaintiff’s condition, but it would be covered by a new classification, complex post-traumatic stress disorder); Leigh v London Ambulance Service NHS Trust [2014] Med LR 134 at [47] and elsewhere per Globe J.

70

See eg Arrowsmith v Beeston (unreported, Eng CA, No QBENF 97/0755/C, 18 June 1998); Rorrison v West Lothian College [1999] Scot CS 212 per Lord Reed; Briody v St Helens and Knowsley Health Authority (2000) 53 BMLR 108 at 117 per Ebsworth J; Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 463 per Judge Bursell QC; Hatton v Sutherland [2002] ICR 613 at [5] per Hale LJ.

71

See eg Hatton v Sutherland [2002] ICR 613 at [7]–[9] per Hale LJ (literature on occupational stress).

72

It appears that a judge should not refer to material such as DSM-IV unless it is put in evidence: in Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492, it was held that the judge’s independent use of DSM-III-R was a breach of procedural fairness in that he decided issues which went beyond those raised in evidence and argument. The majority, however, ruled that this did not necessitate a new trial (Burchell J dissenting on this point).

73

DSM-5, Introduction. The equivalent passage in DSM-IV stated: “It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion” (DSM-IV p xxiii; DSM-IV-R p xxxii). One judgment that appears to have proceeded on this basis is Maczko J in Bruneau v Bruneau (1997) 32 BCLR (2d) 317 at 320–321.

74

Vernon v Bosley (No 1) [1997] 1 All ER 577 at 610. See also New South Wales v Seedsman (2000) 217 ALR 583 at [114]–[121] per Spigelman CJ; Whayman v Motor Accidents Insurance Board [2003] TASSC 149 at [27] per Cox CJ; Benic v New South Wales [2010] NSWSC 1039 at [553]–[556] per Garling J; Ulmer v Weidmann 2011 BCSC 130 at [216] per Truscott J. Note the extreme view of McGill DCJ in Carrier v Bonham [2000] QDC 226 at [145] that whether the criteria in the DSM-IV manual were satisfied was not important: “What matters is whether the plaintiff had something wrong with him, not what label it should have.”

154

Part II: Mental Harm

[5.230]

alterations in cognitions and mood associated with the traumatic event(s); (v) marked alterations in arousal and reactivity associated with the traumatic event(s); (vi) a duration of disturbance of more than one month; and (vii) clinically significant distress or impairment in social, occupational or other important areas of functioning.75 ICD-10 requires an event or situation of an exceptionally threatening or catastrophic nature that is likely to cause pervasive illness in almost anyone.76 These definitions recognise that not all trauma victims are necessarily normal individuals, although the stressor must be of sufficient severity to invoke the symptoms in normal persons. Consequently, PTSD may be diagnosed in those who have had previous psychiatric problems. Importantly, it is also recognised that the trauma may be experienced through direct physical perception or on learning of it through third parties,77 alone or in the company of others. Stressors capable of producing the condition include military combat, natural disasters, intentionally caused disasters (such as confinement in concentration camps, subjection to torture or presence at bombing sites), and the situation with which we are chiefly concerned, accidental disasters.78 Exposure to such phenomena must lead to a characteristic collection of symptoms involving mental re-experience of the traumatic event, numbing of responsiveness to the external world, the avoidance of stimuli associated with the trauma and increased arousal.79 75

DSM-5, Section II: Diagnostic Criteria and Codes — Trauma- and Stressor-Related Disorders — Posttraumatic Stress Disorder.

76

ICD-10 F 43.1.

77

For discussion of the means of communication of trauma see Chapter 11.

78

As the case law illustrates, such happenings may have detrimental effects on those injured, their loved ones and others, and rescue workers. After a devastating disaster it is not uncommon for as many as 50–80% of the survivors to develop PTSD: see M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 700. For discussion in psychiatric terms of the rescue worker’s responses see B Raphael et al, “Disaster: The Helper’s Perspective” (1980) 2 Med J Aust 445; DCJ Frazer and AJW Taylor, “The Stress of Post-Disaster Body Handling and Victim Identification Work” (1982) 8 Human Stress 5; CB Wilkinson, “Aftermath of a Disaster: The Collapse of the Hyatt Regency Hotel Skywalls” (1983) 140 Am J Psy 134; B Raphael, “Rescue Workers: Stress and their Management” (1984) 1 Emergency Response 27; B Raphael, “Who Helps The Helpers? The Effects of a Disaster on the Rescue Workers” (1983-1984) 14 Omega 9; AC McFarlane, “Ash Wednesday and the CFS Firefighters” (1984) 1 Emergency Response 34; DA Alexander, “The Piper Alpha Oil Rig Disaster” in JP Wilson and B Raphael (eds), The International Handbook of Traumatic Stress Syndromes (Plenum Press, New York, 1993), p 461; M Napier, “The Medical and Legal Trauma of Disasters” [1991] Medico-Legal Journal 157; J Bisson and M Andrew, “Psychological Treatment of Post-traumatic Stress Disorder (PTSD)” (2005) 18(2) Cochrane Database Syst Rev CD003388; R Bryant, “Psychosocial Approaches of Acute Stress Reactions” (2005) 10(2) CNS Spectr 116; J Bisson, “Post-traumatic Stress Disorder” (2004) 11 Clin Evid 1343. 79

For discussion of the treatment of PTSD see JB Frank et al, “Anti-depressants in the Treatment of Posttraumatic Stress Disorder”, S Lipper, “Carbamazepine in the Treatment of Posttraumatic Stress Disorder: Implications for the Kindling Hypothesis”, MJ Friedman, “Interrelationships Between Biological Mechanisms and Pharmacotherapy of Posttraumatic Stress Disorder”, and CK Embry, “Psychotherapeutic Interventions in Chronic Posttraumatic Stress Disorder” in ME Wolf and AD Mosnaim (eds), Posttraumatic Stress Disorder: Etiology,

[5.250]

5 A Medical Perspective

155

These states do not always occur in a prescribed pattern, there being variations in the oscillations between them. [5.240] PTSD thus focuses on specific psychological responses to an extreme environmental condition that would evoke distress symptoms in almost everyone. It consists of a combination of “tonic” features (those that the victim manifests all or most of the time) and “phasic” features (those that are manifested intermittently). Although comprised of the trilogy of intrusion (phasic), avoidance (tonic) and arousal (a mixture of phasic and tonic) symptoms, it is the first of these that is the characteristic feature of the disorder. Unwelcomed memories of the traumatic event may manifest themselves in recurrent and distressing recollections (in young children, in the form of repeated engagement in play in which themes or aspects of the trauma are expressed), nightmares, sudden acting or feeling as if the event were recurring in the form of a sense of reliving the experience, visual and auditory flashbacks not unlike those experienced by LSD users, dissociative states lasting from a few seconds to several hours or even days,80 and intense distress at exposure to events that symbolise or resemble an aspect of the trauma (such as anniversaries of the trauma).81 [5.250] The unconscious defence mechanisms of general nonresponsiveness and avoidance strategy may manifest themselves in deliberate efforts to avoid thoughts or feelings about the event in question and activities or situations that arouse recollections of it. PTSD victims may even experience memory fragmentation, developing psychogenic amnesia for an important aspect of the trauma. Commonly there is a markedly diminished interest in significant activities which in the case of children may result in the loss of recently acquired developmental skills such as toilet training or improvement in language. Feelings of detachment or estrangement from others, “emotional blunting”, inability to express Phenomenology, and Treatment (American Psychiatric Press, Washington DC, 1990), pp 170, 184, 204, 226; KC Peterson, MF Prout and RA Schwarz, Post-Traumatic Stress Disorder: A Clinician’s Guide (Plenum Press, New York, 1991), Pt IV. 80

See eg A Burstein, “Posttraumatic Flashbacks, Dream Disturbances and Mental Imagery” (1985) 46 J Clin Psychiatry 374; D Spiegel, “Dissociation and Hypnosis in Post-Traumatic Stress Disorders” (1988) 1 Journal of Traumatic Stress 17; D Spiegel and E Cardena, “Dissociative Mechanisms in Post-Traumatic Stress Disorder” in ME Wolf and AD Mosnaim (eds), Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, Washington DC, 1990), p 23. 81

DSM-5 requires one or more of the following intrusion criteria: (1) recurrent, involuntary and intrusive distressing memories of the traumatic event(s); (2) recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); (3) dissociative reactions (eg flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring (such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings); (4) intense or prolonged psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event(s); or (5) marked physiological reactions to internal or external cues that symbolise or resemble an aspect of the traumatic event(s).

156

Part II: Mental Harm

[5.260]

loving feelings and a sense of a life without future (for example, empty of marriage, children or career) are also signs of the existence of these components of the disorder.82 [5.260] Persistent symptoms of increased arousal that were not present prior to the trauma include irritability, difficulty in falling or staying asleep, problems with concentration, hypervigilance and exaggerated startle response.83 Sufferers may also experience negative alterations in cognitions and mood associated with the traumatic event, such as inability to remember some important aspects of the event, decreased interest in significant activities, and feelings of detachment from others.84 [5.270] The original definition of PTSD drew a distinction between three subtypes: an acute disorder that began within six months of the trauma and lasted less than six months; a chronic disorder lasting six months or longer; and delayed PTSD that had its onset at least six months after the event in question. The literature reveals that most researchers conceptualise PTSD as a syndromal progression of clinical features from the acute to the chronic stage, although it is certainly true that this progression may be affected by secondary “symptoms” such as involvement in continuing or prospective litigation. DSM-5 stipulates that the symptoms outlined at [5.260] must be present for at least one month before the diagnosis of PTSD will be made, although it is silent on the question of the time of the disturbance’s onset.85 The capacity of PTSD to occur with a delayed start — it can be as little as a week or as long as 30 years86 — remains one of the puzzling aspects of the condition. 82

DSM-5 requires one or more of the following avoidance criteria: (1) avoidance of or efforts to avoid distressing memories, thoughts or feelings about or closely associated with the traumatic event(s); (2) avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts or feelings about or closely associated with the traumatic event(s).

83

DSM-5 requires two or more of the following alterations in arousal and reactivity: (1) irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; (2) reckless or self-destructive behaviour; (3) hypervigilance; (4) exaggerated startle response; (5) problems with concentration; and (6) sleep disturbance (eg difficulty falling or staying asleep or restless sleep).

84

DSM-5 requires two or more of the following negative alterations in cognition and mood: (1) inability to remember an important aspect of the traumatic event(s); (2) persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (eg “I am bad”, “No one can be trusted”, “The world is completely dangerous”, “My whole nervous system is permanently ruined”); (3) persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself or herself or others; (4) persistent negative emotional state (eg fear, horror, anger, guilt or shame); (5) markedly diminished interest or participation in significant activities; (6) feelings of detachment or estrangement from others; or (7) persistent inability to experience positive emotions (eg inability to experience happiness, satisfaction or loving feelings).

85 86

DSM-5 requires that the symptoms be present for at least one month.

Note C Van Dyke, NJ Zilberg and JA McKinnon, “Posttraumatic Stress Disorder: A Thirty-Year Delay in a World War II Veteran” (1985) 142 Am J Psy 1070.

[5.290]

5 A Medical Perspective

157

[5.280] The aetiological factors of PTSD have not yet been fully determined. There is a consensus that the nature and intensity of the stressor is the primary aetiological factor determining the symptoms that people develop in the face of extreme adversity. The role of the stressor can be compared to the role of force in breaking a leg. It is normal for a leg to break if enough force is applied. Individual legs vary, however, in the amount of force required to produce a break, the amount of time required for healing to occur and the degree of residual pathology that may remain.87 In most PTSD cases although the stressor is a necessary cause, it is not a sufficient one because even the most severe stressors do not produce PTSD in every individual experiencing them. [5.290] Women are at greater risk of developing this disorder. While it affects those of all ages indiscriminately, it is true that in general the very young and very old have greater difficulty coping with trauma than do persons experiencing it in midlife.88 A variety of psychological,89 physical,90 genetic and social91 factors may contribute to the onset, effect and duration of the disorder. However, the different contributions made, for example, by personality and other premorbid characteristics remain unclear. A minor trauma might be an important cause of the onset of PTSD in a highly vulnerable individual, where the same trauma would be an unlikely trigger in a less predisposed person.92 The degree of impairment also varies between PTSD victims ranging from slight to 87

See NC Andreasen, “Posttraumatic Stress Disorder” in HI Kaplan and BJ Sadock (eds), Comprehensive Textbook of Psychiatry (4th ed, Williams and Wilkins, Baltimore, Maryland, 1985), p 919.

88

The body’s coping mechanisms designed to deal with the emotional and physical impact of traumatic stimuli are not fully developed in children of tender years. The elderly are likely to have more rigid mechanisms and diminished capacity to develop flexible approaches to coping with the effects of trauma: see NC Andreasen, “Posttraumatic Stress Disorder” in HI Kaplan and BJ Sadock (eds), Comprehensive Textbook of Psychiatry (4th ed, Williams and Wilkins, Baltimore, Maryland, 1985), p 919.

89

For example, it is widely, although not universally, believed that the more previous trauma experienced by an individual the more likely he or she is to develop symptoms following a stressful event.

90

Often PTSD victims will have also suffered physical injuries due to the traumatic event (eg in a car accident) and this may increase the likelihood of a prolonged psychiatric reaction, particularly if the injury is to the head.

91

For example, there is some evidence that PTSD is more likely to occur in those who are single, divorced, widowed, economically handicapped or socially deprived: see NC Andreasen, “Posttraumatic Stress Disorder” in HI Kaplan and BJ Sadock (eds), Comprehensive Textbook of Psychiatry (4th ed, Williams and Wilkins, Baltimore, Maryland, 1985), p 920.

92

See AC McFarlane, “Vulnerability to Posttraumatic Stress Disorder”, F Flach, “The Resilience Hypothesis and Posttraumatic Stress Disorder”, and JH Reich, “Personality Disorders and Posttraumatic Stress Disorder” in ME Wolf and AD Mosnaim (eds), Posttraumatic Stress Disorder: Etiology, Phenomenology, and Treatment (American Psychiatric Press, Washington DC, 1990), pp 3, 37, 65. Although the evidence suggesting that personality can predispose an individual to PTSD is fragmented, the best-designed studies do show some link: see eg JE Helzer, LN Robins and L McEvoy, “Post-Traumatic Stress Disorder in the General Population” (1987) 317 New Eng J Med 1630; AC McFarlane, “The Aetiology of Post-traumatic Stress Disorders Following a Natural Disaster” (1988) 152 Br J Psy 116.

158

Part II: Mental Harm

[5.300]

severe. Not every individual suffers the same degree of impairment in response to the same traumatic situation — as with the leg, everyone has their own mental breaking point. As a general rule those with normal intelligence, healthy premorbid personality, adequate social supports and sufficient adaptive capabilities are likely to suffer only minimal impairment and recover quickly. Persons with less psychological stamina and fewer social supports may develop more serious symptoms for a longer period.93 When the stressor is intense or the individual has little resilience the disorder may potentially affect almost every aspect of daily life and may become quite refractory to treatment.94 [5.300] Despite the recognition of PTSD in both DSM-5 and ICD-10, and the growing sophistication of psychology and psychiatry over the years, a number of PTSD cases go unrecognised by experts in both disciplines. The disorder’s symptoms are similar to other complaints and it is sometimes confused with other anxiety disorders, anti-social personality disorders, schizophrenia, alcoholism and other substance abuse, and depression. The identification difficulties are compounded by the fact that PTSD may coexist with any of these and with other psychiatric disorders (the phenomenon of comorbidity). One reason for diagnostic inaccuracy stems from the nature of psychopathology.95 Where an x-ray clearly reveals evidence of fracture, or laboratory testing denotes abnormal growth hormone levels in atypically short or tall patients, there can be no doubt as to the nature of the particular complaint. Such unequivocal and reliable evidence is not always ascertainable when assessing mental disturbance. Current psychiatric assessment and evaluation procedure still primarily consists of descriptive interview and structured observation of behaviour, with the possible additional use of questionnaires to gather further information.96 Reported experience and observed behaviour (by clinicians, family, friends, and so on) is measured against clinical concepts of the “normal” and the “abnormal” accumulated over time. However, most trauma victims will not readily respond to inquiries about their distressing experiences; they will very rarely provide information unprompted by clinicians and when asked directly often respond evasively with generalities or denial. There may be genuine difficulty in recalling past happenings, resulting in unintentional retrospective 93

See NC Andreasen, “Posttraumatic Stress Disorder” in HI Kaplan and BJ Sadock (eds), Comprehensive Textbook of Psychiatry (4th ed, Williams and Wilkins, Baltimore, Maryland, 1985), p 923.

94

Approximately 30% of sufferers recover, 40% have mild symptoms, 20% have moderate symptoms while 10% do not respond to treatment or become worse: see HI Kaplan and BJ Sadock, Synopsis of Psychiatry (6th ed, Williams and Wilkins, Baltimore, Maryland, 1991), p 411.

95 96

Psychopathology is the study of abnormal states of mind.

Although there have been advances in psychometric instruments, there are few standardised examiner-administered interview formats for PTSD. Rating scales include the Impact of Event Scale (IES) which assesses the degree of subjective stress experienced as a result of a particular event: see MJ Horowitz, N Wilner and W Alvarez, “Impact of Event Scale: A Measure of Subjective Stress” (1979) 41 Psychosomatic Medicine 209.

[5.310]

5 A Medical Perspective

159

fabrication. It must be pointed out, however, that whilst these types of factors may make life more difficult for those investigating this disorder, for the trained and experienced eye they do not present insurmountable obstacles to accurate diagnosis. Efforts to develop new detection and diagnosis validation techniques continue. Use has been made, for example, of epidemiological approaches that examine disease distributions across population,97 and focused biologic and physiologic approaches that involve the search for intrinsic biologic or centrally mediated “markers” such as genetics, biochemical and neuroendocrine98 alterations and heart rate reactivity.99 For example, it is now apparent that secretion of the stress-related hormone cortisol is in fact reduced in those with PTSD, suggesting an impaired feedback loop in this endocrine system.100 [5.310] Whilst much space has been devoted to outlining the psychiatric disorder with which lawyers and the general public are probably most familiar, it is significant, particularly for those concerned with the legal implications of trauma, that a related but conceptually distinct new diagnosis has recently been included in ICD-10 (as acute stress reaction) and in DSM-5 (as acute stress disorder).101 This diagnosis is designed to assist in the categorisation of trauma-induced conditions that do not meet the criteria for diagnosis as PTSD because of differences in onset, duration and symptom presentation. As with diagnostic criteria for PTSD, both diagnostic systems require exposure to a major event, defined as exceptional mental or physical stress in ICD-10, and an event involving actual or threatened death, sexual violation or serious injury to oneself or others in DSM-5. While there is overlap between these two concepts of acute stress syndromes, there are important distinctions. They differ in terms of the required time frame, with ICD-10 expecting a symptom onset 97

One study examining the prevalence of PTSD in the United States established a rate of 1% for this disorder: see JE Helzer, LN Robins and L McEvoy, “Post-Traumatic Stress Disorder in the General Population” (1987) 317 New Eng J Med 1630 (and note the comments by TM Keane and WE Penk, “The Prevalence of Post Traumatic Stress Disorder” (1988) 318 New Eng J Med 1690). This is comparable to the incidence of schizophrenia in that country. HI Kaplan and BJ Sadock, Synopsis of Psychiatry (6th ed, Williams and Wilkins, Baltimore, Maryland, 1991), p 409 state the prevalence of PTSD in the general US population to be 0.5% in men and 1.2% in women.

98

Relating or belonging to the effect produced on the organism by the nerves and the action of the ductless (endocrine) glands.

99

See eg PF Malloy, JA Fairbank and TM Keane, “Validation of a Multimethod Assessment of Posttraumatic Stress Disorders in Vietnam Veterans” (1983) 51 J Consult Clin Psychol 488; T Kosten et al, “Sustained Urinary Norepinephrine and Epinephrine Elevation in Post-Traumatic Stress Disorder” (1987) 12 Psychoneuroendocrinology 13; E Blanchard, “Cardiac Response to Relevant Stimuli as an Adjunctive Tool for Diagnosing Post-Traumatic Stress Disorder in Vietnam Veterans” (1986) 17 Behavior Therapy 592; RK Pitman et al, “Psychophysiologic Assessment of Posttraumatic Stress Disorder Imagery in Vietnam Veterans” (1987) 44 Arch Gen Psy 970.

100 See M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), p 706. 101

See ICD-10 F43.0; DSM-5 Section II: Diagnostic Criteria and Codes — Trauma- and Stressor-Related Disorders — Acute Stress Disorder.

160

Part II: Mental Harm

[5.320]

of within one hour of the stressor, and beginning to abate within 48 hours, whereas DSM-5 requires onset within four weeks, and a duration of at least three days, perhaps progressing to PTSD. Both systems include symptoms of dissociation, anxiety and hyperarousal. DSM-5 requires nine or more symptoms from the five categories of intrusion, negative mood, dissociation, avoidance and arousal. According to ICD-10, any combination of at least four symptoms of generalised anxiety disorder would suffice for the diagnosis.

Sociological and biological research [5.320] Other disciplines have contributed to the understanding of the aetiology of psychiatric complaints. The social sciences, most notably sociology, which is the science concerned with the development, constitution and laws of human society, emphasise the social dimension of mental illness. Of particular importance is the sociological research that has examined the social and cultural determinates of psychiatric disorder and the harmful effects on physical and mental health of stressful “life events” and crises. A number of studies using epidemiological methods102 show a causal association between life events and mental illness and physical ailments, suggesting that the risk to health is greater at a period of change in a person’s life than at an uneventful time. For example, researchers have identified a correlation between specific life changes and psychotic breakdown in people with schizophrenia.103 Earlier more general research that observed the morbidity of several hundred people over many years found that episodes of illness clustered at transitional stages rather than periods of stability in human existence.104 Evidence was adduced that stressful events, by stimulating psychophysiological reactions, were important causative agents in the development of many illnesses. The foundation work in this area, however, was that of Holmes and Rahe who in the 1960s attempted to improve on the highly subjective

102

Epidemiology is the study of the distribution of disease in space and time within the population and of the factors that influence this distribution. It is concerned with illness among groups of persons, not the individual.

103

One study showed that in the three weeks prior to the onset of a schizophrenic episode, 60% of patients experienced events which impinged directly on themselves or on close relatives. The comparable figure for a control group was only 19%: see JLT Birley and GW Brown, “Crisis and Life Changes Preceding the Onset or Relapse of Acute Schizophrenia: Clinical Aspects” (1970) 116 Br J Psy 327. See also GW Brown and JLT Birley, “Crisis and Life Changes and the Onset of Schizophrenia” (1968) 9 Journal of Health & Social Behavior 203; GW Brown, TO Harris and J Peto, “Life Events and Psychiatric Disorders Part 2: Nature of Causal Link” (1973) 3 Psychological Medicine 159; S Jacobs and J Myers, “Recent Life Events and Acute Schizophrenic Psychosis: A Controlled Study” (1976) 162 J Nerv Ment Dis 75.

104

See HG Wolff, “A Concept of Disease in Man” (1962) 24 Psychosomatic Medicine 25. Note also HG Wolff et al (eds), Life Stress and Bodily Disease (Williams and Wilkins, New York, 1950). This type of research evolved from the work of Adolf Meyer: see A Lief (ed), The Commonsense Psychiatry of Dr Adolf Meyer (McGraw-Hill, New York, 1948).

[5.330]

5 A Medical Perspective

161

measures adopted in previous research.105 They developed a “social readjustment scale” according to which various life events necessitating adaptation or change were quantified by formulating the “life stress unit”. “Stress” is not used here in the conventional negative sense, but to connote the requirement of some accommodative or coping behaviour on the part of the affected individual. Thus the scale included both socially desirable and undesirable events, for change for the better and for the worse both produce stress in this context — indeed good news may be more stressful than some bad news or unfortunate events — as well as changes within and outside the individual’s control. Forty-three different varieties of life changes (for example, those concerning work, residence, finance, family and marital relationships, pregnancy, injury and illness) were identified and assigned a value depending on their apparent severity and the degree of stress they commonly evoke. The death of a spouse was found to be the greatest stressor and assigned a unit value of 100. At the other end of the spectrum was the taking of a vacation with a relative stress value of 13 and a minor violation of the law with 11. If a certain tally of points was accumulated by a person within the preceding year he or she was found to be at an increased risk for developing some type of medical or psychiatric illness in the following months. More recent research suggests that external events may in some circumstances, although not acting as stressors in themselves, render a person more vulnerable to later stressful life events.106 Whilst the methodology, results and significance of life event research have been questioned,107 it does provide a complementary insight into the genesis of psychiatric illness. [5.330] A recent important elaboration of such life event research has been growing evidence for genetically determined variation in the 105 TH Holmes and RH Rahe, “The Social Readjustment Rating Scale” (1967) 11 Journal of Psychosomatic Research 213. See also eg CM Parkes, “Recent Bereavement as a Cause of Mental Illness” (1964) 110 Br J Psy 198; A Antonovsky and R Kats “The Life Crisis History as a Tool in Epidemiologic Research” (1967) 8 Journal of Health & Social Behavior 15; RH Rahe, EKE Gunderson and RJ Arthur, “Demographic and Psychological Factors in Acute Illness Reporting” (1970) 23 J Chronic Dis 245; CM Parkes and RJ Brown, “Health after Bereavement: A Controlled Study of Young Boston Widows and Widowers” (1972) 34 Psychosomatic Medicine 449; ES Paykel, “Recent Life Events and Clinical Depression” in EKE Gunderson and RH Rahe (eds), Life Stress and Illness (Thomas, Springfield, Illinois, 1974), p 134; BS Dohrenwend and BP Dohrenwend (eds), Stressful Life Events: Their Nature and Effects (Wiley, New York, 1974); ES Paykel, “Contribution of Life Events to Causation of Psychiatric Illness” (1978) 8 Psychological Medicine 245; TKJ Craig and GW Brown, “Life Events, Meaning and Physical Illness: A Review” in A Steptoe and A Matthews (eds), Health Care and Human Behaviour (Academic Press, London, 1984), p 7; C Tennant, “Psychosocial Causes of Duodenal Ulcer” (1988) 22 Aust NZ J Psych 195. 106

See eg GW Brown and TO Harris, Social Origins of Depression (Tavistock Publications, London, 1978).

107

See eg ES Paykel et al, “Life Events and Depression: A Controlled Study” (1969) 21 Arch Gen Psy 753; S Henderson, DG Byrne and P Duncan-Jones, Neurosis and the Social Environment (Academic Press, Sydney, 1981); ES Paykel, “Methodological Aspects of Life Event Research” (1983) 27 Journal of Psychosomatic Research 341. For a recent survey, see M Gelder, N Andreasen, J Lopez-Ibor and J Geddes, New Oxford Textbook of Psychiatry (2nd ed, Oxford University Press, Oxford, 2009), pp 269–271.

162

Part II: Mental Harm

[5.340]

likelihood of developing psychiatric conditions on exposure to life events. The major work has been undertaken in studies of risk to depression, but is very likely to be replicated in the anxiety and psychotic disorders. The phenomenon of such a “gene-environment interaction” in the causation of depression was demonstrated elegantly by the US geneticist Kenneth Kendler108 who followed a sample of female twins (identical and non-identical) over several years, examining for the occurrence of stressful life events and the onset of episodes of major depression. He found that depression rarely developed in the absence of stressful life events; but more importantly, was most likely to occur after such distressing life experiences in those with a strong family history of this condition. [5.340] There have been major advances in technologies for imaging the living brain over the last few decades, with increasing capacity to visualise both its function and structure in fine detail. However, although there have been cases where these technologies have been used in legal settings, such applications are premature, as even within the clinical arena the value of these techniques in assisting diagnosis and choice of treatment is markedly limited.109

Conclusion [5.350] It is thus indisputable that emotional and mental distress brought on by exposure to trauma may often have serious long-term physical and psychiatric effects. Adequate proof that such secondary damage has in fact been suffered is currently a prerequisite to any detailed legal inquiry as to the compensability of the particular harm in question — but psychology and psychiatry are now equal to this task. Some assessment and classification confusion will surface as long as the courts demand that delineation between normal initial and abnormal subsequent responses to stressors be made. But if there are to be any allegations of inadequacy they ought to be directed at the law and not at these disciplines. Medical science can with an acceptable degree of certainty establish the existence of the various types of recognised psychiatric complaints, their degree and effects and very often isolate their causes. Although in many respects the common law has clung to outdated and historical notions or merely tinkered with principles that are fundamentally unsound, the courts have gradually recognised the fruits of advances in these disciplines and that they allow them to jettison 108

KS Kendler et al, “Stressful Life Events, Genetic Liability, and Onset of an Episode of Major Depression in Women” (1995) 152 Am J Psy 833.

109

BD Power et al, “Neuroimaging in Psychiatry: An Update on Neuroimaging in the Clinical Setting” (2016) 24 Psychiatry 157. For commentary on the possible legal response to these advances, see A Schuurman and Z Sinel, “Matter over Mind: Tort Law’s Treatment of Emotional Injury” in K Barker, K Fairweather and R Grantham (eds), Private Law in the Twenty-First Century (Hart Publishing, Oxford, 2016).

[5.370]

5 A Medical Perspective

163

many of the original requirements thought necessary as guarantees of genuineness, for example, the need for physical harm or the likelihood of it.

MEDICAL RESEARCH AND THE LAW: THE MIND–BODY DISTINCTION Introduction [5.360] It has always been assumed that psychiatric damage is a separate category of negligence liability: a form of personal injury, but different from cases of ordinary physical harm. This is reflected in the identification of recognisable psychiatric illness as the required damage,110 and the fundamental rule that there must be reasonable foreseeability of psychiatric injury.111 It can be seen also in the caution with which the courts have generally approached such cases, and in the extra policy requirements that have usually been imposed in most jurisdictions as preconditions for the recognition of a duty of care, in contrast to cases involving ordinary physical harm where the duty issue is generally a simple question of foreseeability.112 However, the medical evidence that all emotions have some bodily effects, and that in a sense there is no such thing as pure emotional injury, offers a potential challenge to the assumption that psychiatric and physical personal injury are different. This challenge was put to the House of Lords in Morris v KLM Royal Dutch Airlines Ltd,113 based on American authority about the bodily effects of PTSD. [5.370] One way of justifying the separate treatment of psychiatric damage is by reference to history. Some interests in the physical person, such as the immunity of the body from direct and indirect injury, and the preservation and furtherance of bodily health, have long been recognised, whereas other interests, such as the immunity of the mind and the nervous system from direct and indirect injury and the preservation and furtherance of mental health, became more important with the progress of civilisation, and have been protected by the law only since the early 20th century.114 But from this time onwards there is evidence that some judges have recognised that the Cartesian distinction between mind and body115 110

See [4.30]–[4.40].

111

See [7.390]–[7.410].

112

See [5.270]–[5.330].

113

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

114

See R Pound, “Interests of Personality” (1915) 28 Harv L Rev 343, 445 at 355–356.

115

See R Descartes, “The Passions of the Soul” in The Philosophical Works of Descartes (Cambridge University Press, London, 1911: trans ES Haldane and GRT Ross), Vol 1. See also W McCartan, “Monism and Dualism: New Lamps for Old” (1961) 107 J Ment Sci 809; LL Langley and JL Brand, “The Mind-Body Issue in Early Twentieth-Century American Medicine” (1972) 46 Bull Hist Med 171; TM Brown, “Cartesian Dualism and Psychosomatics” (1989) 30 Psychosomatics 322.

164

Part II: Mental Harm

[5.380]

has no place in the common law. In 1914, Lord Shaw of Dunfermline exposed the lack of foundation for this division: On principle, the distinction between cases of physical impact or lesion being necessary as a ground of liability for damage caused seems to have nothing in its favour – always on the footing that the causal connection between the injury and the occurrence is established. If compensation is to be recovered under the statute or at common law in respect of an occurrence which has caused dislocation of a limb, on what principle can it be denied if the same occurrence has caused unhinging of the mind? The personal injury in the latter case may be infinitely graver than in the former, and to what avail – in the incidence of justice, or in the principle of law – is it to say that there is a distinction between things physical and mental? This is the broadest difference of all, and it carries with it no principle of legal distinction. Indeed it may be suggested that the proposition that injury so produced to the mind is unaccompanied by physical affection or change might itself be met by modern physiology or pathology with instant challenge.116

MacKinnon LJ made a similar statement in 1939: [M]ental or nervous shock, if in fact caused by the defendant’s negligent act, is just as really damage to the sufferer as a broken limb – less obvious to the layman, but nowadays equally ascertainable by the physician. That alleged shock results from apprehension as to a less important matter may well be material in considering whether the allegation be proved. But fear that unfounded claims may be put forward, and may result in erroneous conclusions of fact, ought not to influence us to impose legal limitations as to the nature of facts that it is permissible to prove.117

Another well-known statement to the same effect is that of Lord Macmillan in 1942: The distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system. And the mental shock may have consequences more serious than those resulting from physical impact.118

[5.380] More recent judicial statements make the same point. In Page v Smith,119 one of the most useful insights provided by the controversial judgment of Lord Lloyd of Berwick is that even in the early 20th century the courts were beginning to realise that there may be no hard and fast division between physical and psychiatric injury, and that: In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat 116

Coyle v John Watson Ltd [1915] AC 1 at 14. The House of Lords was dealing with a claim for workers’ compensation.

117

Owens v Liverpool Corporation [1939] 1 KB 394 at 400.

118

Bourhill v Young [1943] AC 92 at 103.

119

Page v Smith [1996] AC 155.

[5.400]

5 A Medical Perspective

165

artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.120

Unfortunately, this led Lord Lloyd to re-erect a different distinction, between psychiatric injury victims who are “directly involved in the accident, and well within the range of foreseeable physical injury”121 and the rest, which may have had the well-meaning objective of expanding recovery in favour of a particular class of plaintiffs,122 but which has had troublesome consequences for English law.123 [5.390] In Australia, the New South Wales Court of Appeal in Aboushadi v CIC Insurance Ltd,124 confronted with the meaning of “injury” in the Motor Accidents Act 1988 (NSW), said that the distinction between ordinary physical injury and psychological or psychiatric injury is illusory,125 relying on the statements of Lords Shaw and Macmillan. There are other Australian judicial statements to similar effect.126 [5.400] Aboushadi v CIC Insurance Ltd127 is just one of many cases in which courts in various countries have had to decide whether statutory provisions dealing with “bodily harm” and the like should be interpreted so as to include psychiatric as well as physical injuries. In almost all these examples, the judicial response has been to reject the narrow construction and hold that bodily injuries are both mental and physical. In the case of statutes creating criminal offences of causing grievous bodily harm, assault occasioning actual bodily harm and so on, it has been held that psychiatric injury is included,128 and the House of Lords in R v Ireland129 has confirmed that the original intent of the framers of a 19th century provision of this kind is not material and that instead what is important is to give the words a contemporary interpretation. A similar interpretation prevails in many other instances — for example “personal injury” in 120

Page v Smith [1996] AC 155 at 188.

121

Page v Smith [1996] AC 155 at 184.

122

See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 480 per Lord Goff of Chieveley.

123

See [3.130]–[3.220].

124

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384.

125

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 at 63,339 per Handley JA.

126

See eg Spence v Biscotti (1999) Aust Torts Rep 81-513 at 65,988 per Miles CJ. Note also Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.19: “It would seem, therefore, that Australian law has now reached the point where the basic principles governing liability for mental harm are essentially the same as those governing liability for physical harm.” 127

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384.

128

R v Miller [1954] 2 QB 282; R v McCraw (1991) 7 CR (4th) 314; R v Mwai [1995] 3 NZLR 149; R v Kneale [1998] 2 NZLR 169; R v Ireland [1998] AC 147; R v Lardner (unreported, NSWCCA, No 60499 of 1997, 10 September 1998). 129

R v Ireland [1998] AC 147: see [4.110].

166

Part II: Mental Harm

[5.410]

domestic violence legislation,130 “bodily harm” in criminal injuries compensation statutes,131 “bodily harm” in s 4(7) of the Limitation Act 1950 (NZ),132 “bodily injury” in legislation dealing with motor vehicle accident compensation133 and “injury” in the Workers’ Compensation Act.134

Morris v KLM and the Weaver argument [5.410] In Morris v KLM Royal Dutch Airlines Ltd,135 the House of Lords was dealing with a similar issue: the interpretation of the words “bodily injury” in Art 17 of the Warsaw Convention 1929 which limits liability to aircraft passengers for death, wounding or “bodily injury” resulting from accidents on board the aircraft or in the course of embarking or disembarking. It is perhaps significant that the case law on Art 17 has generally affirmed a much more restrictive interpretation of “bodily injury” than in the other examples described at [5.400], limiting it to injuries that would have been compensable under the law as understood at the time of the Convention and so excluding psychiatric injuries.136 The House of Lords was hearing two appeals, one from England and the other from Scotland. In the English appeal, Miss Morris, aged 15, was flying unaccompanied from Kuala Lumpur to Amsterdam. She fell asleep, and awoke to find the man in the next seat caressing her thigh. Though she sustained no physical injury, she was later diagnosed as suffering from clinical depression, and she sued the airline under Art 17. The trial judge found in her favour, but the airline appealed, arguing that indecent assault was not an “accident” since it was not related to the operation of the plane or the character of air travel. The English Court of Appeal held that the circumstances of the case exemplified a special risk involved in air travel, namely sleeping in close proximity to strangers, and therefore constituted an “accident” under Art 17, but “bodily injury” in 1929 meant physical injury, and the subsequent recognition of liability for mental injury in a number of jurisdictions could not affect the meaning of the 130

Sleeman v Police [1998] SASC 6915 (Domestic Violence Act 1994 (SA), s 4(2)). The court referred to Graham v Robinson [1992] 1 VR 278, where it was held that for the purpose of the jurisdictional limits of the Victorian Magistrates Court “personal injury” covered physical and mental illness but not mere emotional hurt.

131

R v Morrison; Ex parte West [1998] 2 Qd R 79 (Criminal Code (Qld), ss 663A, 663AA(1)).

132

H v R [1996] 1 NZLR 299; P v T [1997] 2 NZLR 688; Owen v Residual Health Management Unit [2000] NZCA 162. Note also Fleming v Strathclyde Regional Council 1992 SLT 161 (claim for “personal injuries” under the Prescription and Limitation (Scotland) Act 1973 (UK), s 17). 133

Boyle v Nominal Defendant [1959] SR (NSW) 413 (Motor Vehicle (Third Party Insurance) Act 1942 (NSW), s 30(1)). 134

Zinc Corporation v Scarce (unreported, NSWCA, CA 40214/93, 20 December 1995) (Workers’ Compensation Act 1926 (NSW), s 6).

135

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628, noted by K Stanton (2003) 11 Tort L Rev 6. See AY Anwar, “A Body Blow for Mental Injury Claims” 2002 SLT 157. 136

See [23.120]–[23.280].

[5.420]

5 A Medical Perspective

167

words in the Convention.137 Miss Morris appealed to the House of Lords. In the Scottish appeal, King v Bristow Helicopters Ltd, Mr King was a passenger on a helicopter that landed heavily on a helideck on a North Sea oil rig platform in poor weather.138 He developed various psychiatric conditions as a result of the accident, including PTSD, and the stress led to peptic ulcer disease. At first instance, the Lord Ordinary held that his claim under Art 17 was confined to the peptic ulcer disease.139 Mr King reclaimed against the exclusion of his claim for psychological injury, and the defender cross-reclaimed arguing that the ulcer was triggered by psychiatric and not bodily injury. The First Division of the Court of Session reversed the first instance decision that his claim was confined to the peptic ulcer condition and held that he was also entitled to claim damages for psychiatric injury.140 The carrier appealed to the House of Lords. Both appeals thus required a ruling on the meaning of “bodily injury”. [5.420] During the hearing in the House of Lords, a point emerged that had not been previously considered. It was based on Weaver v Delta Airlines Inc,141 where a federal court in Montana was dealing with a claim by a passenger for PTSD resulting from an emergency landing. The issue was whether the plaintiff suffered “bodily injury” — a requirement that United States courts, following the leading United States Supreme Court decision in Eastern Airlines Inc v Floyd,142 had held to rule out claims for purely mental injury unaccompanied by physical injury or some physical manifestation thereof. Lord Hobhouse of Woodborough described the special nature of the evidence in this case: The plaintiff filed affidavits providing uncontradicted expert evidence that “extreme stress causes actual physical brain damage, ie, physical destruction or atrophy of portions of the hippocampus of the brain”. “The impact upon [the plaintiff] of the events which occurred on that flight was extreme and included biochemical reactions which had physical impacts upon her brain and neurological system.” She had thus presented evidence of “physical injury” and was entitled to say that “her diagnosed post-traumatic stress disorder arose from the physical changes in her brain brought on during the extreme stress of the emergency landing” … . The judge therefore distinguished her case from “Floyd and its progeny”: she was relying upon “an injury to her brain, and the only reasonable conclusion is that it is, in fact, a bodily injury” … . It is hard to see any basis for disagreeing with the conclusion that, if the

137

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100.

138

This was not a case of international carriage, but the Warsaw Convention 1929 applied by virtue of Sch 1 of the Carriage by Air Acts (Application of Provisions) Order 1967 (SI 1967/480) (UK).

139

Sub nom Hammond v Bristow Helicopters Ltd 1999 SLT 919.

140

King v Bristow Helicopters Ltd 2001 SC 54.

141

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

142

Eastern Airlines Inc v Floyd 111 S Ct 1489 (1991).

168

Part II: Mental Harm

[5.430]

passenger can prove that his or her brain was damaged as a result of the accident, the passenger has suffered a bodily injury.143

This was the argument that had been accepted by Shanstrom CJ in Weaver: Weaver’s action is here distinguishable from previous cases, because her claim is presented as a physical injury and she relies on recent scientific research explaining that post-traumatic stress disorder evidences actual trauma to brain cell structures. Weaver’s post-traumatic stress disorder evidences an injury to her brain, and the only reasonable conclusion is that it is, in fact, a bodily injury. More particularly, the injury to her brain should be considered a “bodily injury” as defined under the Warsaw Convention. Granted, Weaver’s injury manifests itself in ways that are similar to the “injuries” previously found not compensatable in similar cases under the Warsaw Convention. However, the central factor here is not legal, but medical. The legal question in this case is simply whether the Warsaw Convention allows recovery for this particular kind of bodily injury, ie a brain injury (even with slight physical effects). The answer must be yes. The court is cognizant that the Warsaw Convention chose to preclude recovery for purely psychic injuries, and the court respects the Supreme Court’s determination in Floyd that such was a legislative choice. Moreover, the present holding has the potential of allowing for more valid actions under the Warsaw Convention, with the increase attributable only to the increased sophistication of medical science. However, no floodgates of litigation will be opened by allowing for such claims as Weaver’s, which are based on a definite diagnosis of a disorder that arises from a physical injury that is medically verifiable. Fright alone is not compensatable, but brain injury from fright is. Unlike the plaintiffs in Floyd and its progeny, Weaver’s injury is a “bodily injury” as defined by the Warsaw Convention.144

[5.430] Evidence such as that presented in Weaver v Delta Airlines Inc145 has the potential not only to expand the interpretation of “bodily injury” in Art 17 of the Warsaw Convention 1929 but also perhaps to expand the conception of what is understood by a “recognisable psychiatric illness” at common law, to strengthen the case for recognition of liability for pure mental distress and other mental injuries not amounting to recognisable psychiatric illness, and possibly even to render the distinction between physical and psychiatric injuries almost meaningless. 143

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [175] (emphasis in original). See also Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [40] per Lord Phillips of Worth Matravers MR (“[I]t is possible that every mental illness will, in time, be shown to be accompanied by and consequent upon some change to the physical structure of the body, so that mental illness can properly be described as a type of physical injury”); Glen v Korean Airlines Co Ltd [2003] QB 1386 at [34] per Simon J “[T]he defendant very properly accepted that, in the light of the majority opinion in Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628, a person can recover on the basis of a bodily injury if that person can establish that the mental injury is evidence of structural change to the brain or central nervous system.” 144

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999) at 1192. The case was followed in Re Air Crash at Little Rock, Arkansas on June 1, 1999 118 F Supp 2d 916 (2000). 145

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

[5.450]

5 A Medical Perspective

169

[5.440] The immediate problem before the House of Lords in Morris v KLM Royal Dutch Airlines Ltd146 was the interpretation of Art 17. Their Lordships dismissed Miss Morris’s appeal and allowed that of Bristow Helicopters. It was held that where mental injury or illness lacked a physical cause or origin, it could not constitute bodily injury; however, “bodily injury” could cover physical manifestations of mental injury. Lord Nicholls of Birkenhead, Lord Mackay of Clashfern and Lord Hobhouse held that it also covered physical disorders arising from injury to the brain or nervous system. However, the word “bodily” was not intended to cover all injuries: this word, and more especially “corporelle”, its equivalent in the French text of the Convention, referred to physical changes in the body rather than something that affected the mind. This meant that pure emotional distress was excluded, and also a psychiatric illness that affected the mind only and could not be described as a physical injury. However (according to the majority view) if the brain could be shown to be injured, compensation could not be refused on the ground that in 1929, medical science would not have been able to demonstrate that such an injury had occurred, and so it would have been concluded that the passenger had suffered only mental injury. In the two cases before the court, no attempt had been made to show that the depressive illnesses suffered by Miss Morris and Mr King had a physical cause or origin, and accordingly they did not fall within the scope of “bodily injury”. However, Mr King could recover in respect of his peptic ulcer disease: the fact that it was stress-induced did not prevent it being classified as a “bodily injury”. [5.450] On the point of difference between their Lordships, Lord Nicholls stated the effect of the majority view: The brain is part of the body. Injury to a passenger’s brain is an injury to a passenger’s body just as much as an injury to any other part of his body. Whether injury to a part of a person’s body has occurred is, today as much as in 1929, essentially a question of medical evidence. It may be that, in the less advanced state of medical and scientific knowledge 70 years ago, psychiatric disorders would not have been related to physical impairment of the brain or nervous system. But even if that is so, this cannot be a good reason for now excluding this type of bodily injury, if proved by satisfactory evidence, from the scope of art 17. This does not mean that shock, anxiety, fear, distress, grief or other emotional disturbances will as such now fall within art 17. It is all a question of medical evidence.147

The other judges, Lord Steyn and Lord Hope of Craighead, were not prepared to accept the possibility raised by Weaver v Delta Airlines Inc.148 146

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

147

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [3]–[4].

148

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

170

Part II: Mental Harm

[5.460]

Lord Steyn149 ventured the view that Weaver was inconsistent with the settled line of approach to the interpretation of the Convention taken by the American authorities from Eastern Airlines Inc v Floyd150 onwards. However, he emphasised that the issue did not arise on the evidence before the court in the two cases under consideration, and that the House had not had the benefit of adversarial argument or the decisions of the courts below. The matter should be revisited when it was directly in issue.151

Carey v Pel-Air Aviation [5.460] Weaver v Delta Airlines Inc152 seems to have caused few reverberations in United States case law.153 However, evidence that post-traumatic stress disorder was a “bodily injury” because it was a consequence of damage to the brain and other bodily processes was accepted by Schmidt J in the New South Wales Supreme Court in Casey v Pel-Air Aviation Pty Ltd.154 Karen Casey, a nurse employed by an air ambulance service (Careflight (NSW) Ltd), and a doctor were sent from Sydney to Samoa to help transport a seriously ill passenger from Samoa to Melbourne. The plane was operated by the defendant, Pel-Air. On the flight to Melbourne the plane was scheduled to land at Norfolk Island to refuel, but it crashed while attempting to land, due to the pilot’s negligence, and Ms Casey was seriously injured. In addition to her physical injuries, Ms Casey was diagnosed as suffering from a complex pain syndrome, a major depressive disorder, an anxiety disorder and post-traumatic stress disorder. The issue was whether any of these conditions constituted “bodily injury” under Art 17 of the Warsaw Convention 1929 — which had been retained by the Montreal Convention 1999 and incorporated in Australian law by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). Pel-Air conceded that the first three conditions had been caused by her physical injuries and could therefore be classified as bodily injuries. However, Pel-Air was not willing to accept that the 149

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [26]. See also at [126]–[127] per Lord Hope of Craighead. 150

Eastern Airlines Inc v Floyd 111 S Ct 1489 (1991).

151

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [23].

152

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

153

Weaver v Delta Airlines 56 F Supp 2d 1190 (1999) was distinguished in Carey v United Airlines 255 F 3d 1044 (2001) (passenger’s claims of nausea, cramps, perspiration, nervousness, tension and sleeplessness following confrontation with flight attendant did not meet “bodily injury” criterion in Art 17 of the Warsaw Convention 1929); and the order in Weaver in favour of the plaintiff was later vacated by joint motion of the parties: Weaver v Delta Airlines Inc 211 F Supp 2d 1252 (2002). In Doe v United Airlines Inc 73 Cal Rptr 3d 541 (2008) at 550, the Court of Appeal in California considered it to be of limited precedential value. Re Air Crash at Little Rock, Arkansas on June 1, 1999 118 F Supp 2d 916 (2000) was reversed by the United States Court of Appeals, Eighth Circuit in Re Air Crash at Little Rock, Arkansas 291 F 3d 503 (2002), the court holding, inter alia, that the expert’s conclusion that the passenger had brain dysfunction lacked foundation and was inadmissible. 154

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220.

[5.480]

5 A Medical Perspective

171

PTSD had been caused by her physical injuries, or that the crash had caused any physical injury to her brain of which the PTSD was a manifestation. Schmidt J held that, following the accepted authorities, injuries such as PTSD did not constitute “bodily harm” within the meaning of Art 17.155 [5.470] However, there was another route by which Schmidt J was able to hold Pel-Air liable to compensate Ms Casey for her PTSD: there was expert psychiatric evidence about developments in neuroscience that established that in this case PTSD had been caused by physical injury to the brain and/or other parts of the body. Her Honour said: For reasons which follow, I have firstly concluded that a diagnosis of PTSD does not exclude the possibility that evidence in a particular case may establish that a person has suffered a bodily injury compensable under the Montreal Convention. Secondly, that the evidence established that the PTSD which Ms Casey suffers and for which she has also been unsuccessfully treated, is consequent on damage to her brain and to other of her bodily processes, which have had the result that her brain is no longer capable of functioning normally. Either the PTSD is at least in part a manifestation of that damage, or that damage has caused or contributed to the PTSD, or there is a combination of such cause and effect, which has put Ms Casey into the position she is now in. Whichever it is, the result is that the PTSD which Ms Casey suffers, is a compensable bodily injury.156

[5.480] Schmidt J discussed the authorities on the meaning of Art 17 of the Warsaw Convention 1929, noting that although they were authorities on Art 17, not its equivalent in the Montreal Convention 1999, they were entitled to be given considerable weight. In addition to the Australian authorities, the United States authorities were fully discussed, including Weaver v Delta Airlines Inc157 and its subsequent history. Also fully considered were the statements of their Lordships in Morris v KLM Royal Dutch Airlines Ltd158 to the effect that injury to the brain was a bodily injury, and that it would be wrong to ignore medical evidence to that effect. In the case before Schmidt J, such evidence had been led: An understanding of the nature and extent of Ms Casey’s injuries and their impact, must begin with the evidence of how she functioned before and after the accident. … All of that evidence has to be considered in the context of the expert evidence which the parties led from Dr Rastogi and Dr Phillips. In their reports, joint report and oral evidence, they explained not only the nature and complexity of Ms Casey’s injuries, their interaction and consequences, but how this made the 155

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [94]–[101]. The cases are discussed at [23.120]–[23.280]. 156

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [109].

157

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

158

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [3] per Lord Nicholls of Birkenhead, at [8] per Lord Mackay of Clashfern, at [49], [125] per Lord Hope of Craighead, at [141]–[143], [152] per Lord Hobhouse of Woodborough.

172

Part II: Mental Harm

[5.490]

task of attempting to separate her injuries and their results not only a difficult exercise, but also quite an artificial one. The experts also explained their clinical application of developments in neuroscience, which have led to an increased understanding by practicing clinicians such as they, of the role which neurotransmitter chemicals play in brain function and in the development and treatment of psychiatric disorders, including depression, anxiety and PTSD. Those advances have been accompanied by advances in neuropharmacology which they use to treat such disorders. Research and understanding of brain functioning continues to evolve, as does understanding of the mechanics of how such pharmacological treatments work, in clinical practice. It is now known that certain psychiatric disorders are caused by alterations in neurotransmitter pathways in the brain and that the pharmacological treatments used to treat these disorders work by altering neurotransmitter pathways, which are malfunctioning. How particular patients respond to medication and treatments prescribed by clinicians differs. Effective treatment still has to be determined clinically, with each patient. This evidence shed considerable light on significant objective evidence that revealed that not only had Ms Casey’s mind initially been adversely affected by her understandable distress and the other emotional reactions she had, to what she had experienced during the crash and its aftermath, but that amongst the many bodily injuries which she suffered were injuries which damaged the ability of her brain to function normally. Despite ongoing intensive treatment, her body has never been able to recover its normal functioning.159

One of the expert witnesses, Dr Rastogi, summarised the neuroscientific evidence in the following terms: “Although Post traumatic stress disorder has been considered as a neuropsychiatry disorder, numerous studies and evidence based research have confirmed that complex traumatic experiences cause chemical changes in the brain which result in structural changes in brain and toxic changes as evident by neurotransmitter balance changes and physical defects in brain similar to other physical chronic disease and conditions. Posttraumatic stress disorder presents with a constellation of physical symptoms and somatic features with psychiatric co morbidity. This places Posttraumatic stress disorder categorically in chronic physical disorders with significant physical and psychological impairment, It is important to recognise the physical changes that occur in Posttraumatic stress disorder similar to any chronic physical disease which cause toxic milieu and cell death and damage which is irreversible. The areas of the brain where such changes occur are the hippocampus, amygdala and prefrontal cortex.”160

[5.490] Schmidt J was able to conclude, on the basis of this evidence, that Ms Casey’s PTSD was not merely the result of an injury to her mind, caused by the shock, fear and other emotional trauma caused by the crash. The conclusion, on the balance of probabilities, was that the PTSD also involved an injury to her brain and other parts of her body involved in normal brain function — a psychiatric injury caused by a physical 159

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [147]–[151].

160

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [212].

[5.510]

5 A Medical Perspective

173

route. The PTSD could not be distinguished from the other identified psychiatric conditions as being caused only by the shock, fear and emotional trauma of the crash: the PTSD, like the other conditions, had a physical cause, or was a manifestation of the injuries to her body and brain and not simply the result of an injury to her mind. As such, it could be regarded as a “bodily injury” under Art 17 of the Warsaw Convention 1929 and the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), and she was entitled to compensation for it.161

Conclusion [5.500] Morris v KLM Royal Dutch Airlines Ltd162 and Casey v Pel-Air Aviation Pty Ltd163 are both of great importance in that they show that courts are prepared to consider that advances in medical science may make it necessary to reconsider long-held assumptions about the nature of psychiatric injury. It has been accepted for many years now that all emotions have physical effects, and as medical science advances much more will be learnt about this. The new developments considered in these cases are clearly a new and exciting step forward. In Casey, at least, they had a dramatic effect on the eventual outcome. [5.510] The question that then arises is whether it is still possible to suggest, at least for the law’s purposes, that there is such a thing as purely mental harm. In terms of legal conceptualisation and classification it still seems convenient to focus on mental harm (or psychiatric injury) as a discrete negligence category. There is much to be said for Lord Goff of Chieveley’s view as expressed in White v Chief Constable of South Yorkshire Police:164 [A] particular type of personal injury, viz, psychiatric injury, may … properly be differentiated from other types of personal injury. It appears to be in no way inconsistent with the making of that common sense judgment, as a matter of practical justice, that scientific advances are revealing that psychiatric illnesses may have a physical base, or that psychiatric injury should be regarded as another form of personal injury.

What is unacceptable is not this separate treatment, but rather the argument that liability for psychiatric injury, because it is psychiatric, should be much more limited than liability for physical harm. Courts in Australia and elsewhere have managed to rebut this argument. The English courts have not been as successful.165

161

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [230]–[235].

162

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

163

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220.

164

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 475. Compare Lord Steyn at 492. 165

See [2.100].

Chapter 6

Attempts to Lower the Barrier [6.10] INTRODUCTION ............................................................................................................... 175 [6.20] RECOVERY FOR EMOTIONAL DISTRESS ................................................................... 176 [6.20] The general principle ......................................................................................................... 176 [6.70] “Parasitic” or “aggravated” damages for emotional distress ..................................... 180 [6.150] Emotional distress damages in the United States ...................................................... 190 [6.180] Pre-impact emotional distress ........................................................................................ 194 [6.190] RECOVERY FOR SOMETHING LESS THAN RECOGNISABLE PSYCHIATRIC ILLNESS ............................................................................................................................. 195 [6.200] Australia ............................................................................................................................. 196 [6.250] England: “ordinary” shock ............................................................................................. 199 [6.260] Canada: “scar on the mind” ........................................................................................... 201 [6.330] Canada: the Mustapha decision ..................................................................................... 206 [6.420] New Zealand and elsewhere .......................................................................................... 212 [6.440] Conclusion .......................................................................................................................... 213

INTRODUCTION [6.10] In their seminal judgment in the High Court of Australia in Tame v New South Wales,1 Gummow and Kirby JJ affirmed some fundamental propositions: In Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and inevitable incidents of life”; the very universality of these emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial.2

Australian law is thus firmly wedded to the proposition that proof of a recognisable (or in the context of the Civil Liability Acts, recognised) psychiatric illness is an essential element of liability for mental harm. Yet one qualification is inherent in this statement: though emotions such as 1 2

Tame v New South Wales (2002) 211 CLR 317 at [193].

See also their Honours’ earlier discussion at [17]–[175]. Justice Kirby has modified his views somewhat: for his earlier judgments see [6.210]–[6.220].

176

Part II: Mental Harm

[6.20]

fright, without more, give no cause of action, it may be possible to recover for emotional distress when some other wrong is committed.3 In some jurisdictions, attempts have been made to go further. In the United States, for example, for many years now, some jurisdictions have recognised that compensation for pure emotional distress is possible in negligence cases:4 instead of relying on the need for a recognisable psychiatric illness, other control mechanisms are employed. In other common law jurisdictions, and most particularly in Canada, attempts have been made to lower the barrier by suggesting that recovery should be available for injuries that, while not satisfying the recognisable psychiatric injury threshold, are more serious than mere emotional distress.5 Accordingly, this chapter reviews, first, cases in which recovery has been permitted for mere emotional distress, and secondly, cases in which the argument has been made for the adoption of some intermediate standard.

RECOVERY FOR EMOTIONAL DISTRESS The general principle [6.20] The principle that compensation is not available for mere mental or emotional distress is one that courts have adhered to for many years. As long ago as 1861, Lord Wensleydale said in Lynch v Knight:6 “Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone.” Although certain situations may often bring about such harm — for example, it may be expected that relatives and others may experience severe emotional turmoil at the death or injury of a loved one — the common law does not seek to provide a remedy. The principle has been repeated so often that it is generally accepted without question. It is frequently stated as a truism without explanation of any kind: for example, Lord Ackner in Alcock v Chief Constable of South Yorkshire Police7 said simply: “Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages”, and in the same vein Lord Steyn in White v Chief Constable of South Yorkshire Police8 said: “[T]he law cannot compensate for all emotional suffering even if it is acute and truly debilitating.” [6.30] Occasionally, there are judges who have been prepared to state a different view. Perhaps the leading example is Molloy J of the Ontario

3

See [6.70]–[6.130].

4

See [6.160].

5

See [6.190]–[6.430].

6

Lynch v Knight (1861) 9 HL Cas 577; 11 ER 854 at 855; see also Mitchell v Rochester Rail Co 45 NE 354 (NY 1896). 7

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401.

8

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491.

[6.40]

6 Attempts to Lower the Barrier

177

Supreme Court. In Mason v Westside Cemeteries Ltd9 she forcefully put the case for recognising the justice of awarding some damages for pure mental distress, granting the plaintiff modest relief ($1,000) for emotional distress consequent on a cemetery’s negligent loss of urns containing the ashes of her parents.10 She suggested that such cases could be satisfactorily controlled by the level of damage awards and the imposition of cost sanctions for truly trivial claims, since it must be highly doubtful that litigants would wish to incur the unrecoverable costs of litigation and run the risk of exposure to adverse costs orders for the chance of recovering very small awards. She stated: [T]he general theme is that damages for mental distress, when allowed, have been relatively low. That seems to me to be appropriate. The plaintiff in this case is genuinely and understandably upset. He has lost some peace of mind. However, in the general scheme of things, his suffering has not been extreme. Indeed, I would place this case within the general category of claims for relatively minor mental distress which are so trivial in nature that they ought not to be encouraged. It is important in our society that all citizens have access to our courts of civil justice to redress wrongs committed against them. That does not mean that a civil action for damages is the appropriate solution to every instance of emotional upset or hurt feelings caused by somebody else’s civil wrong. While those claims may, on the application of general legal principles, be valid, if the injury suffered is trivial in nature, the damages awarded should reflect that fact. The plaintiff in this case ignored his parents’ ashes for 23 years. While he is clearly upset, I consider the emotional harm done to him to be minor.11

[6.40] Under the present law, there is an inconsistency between the treatment of very minor physical and mental injuries. If a very minor physical injury (say a cut finger) caused by negligence is compensable, then why should the same not apply to a comparatively minor emotional injury? In Cameron v Qantas Airways Ltd,12 airline passengers who were not warned that they might not be allocated a non-smoking seat recovered sums ranging from $50 to $750 at first instance for the passive smoking experience. This case may be compared with Reilly v Merseyside Regional Health Authority13 where, due to identified negligence, an elderly couple, one of whom suffered from angina and the other from claustrophobia, were trapped in a lift in a maternity hospital for an hour and 20 minutes. However, they were denied any relief for their apprehension, fear, discomfort and shortness of breath on the basis that their physical and emotional reactions to the trauma did not amount to recognised psychiatric injuries. It could be argued that the relativities between the classes of claims that rank for consideration could be 9

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

10

Relying principally on Canadian authority extending the notion of “recognisable psychiatric illness” to lesser states: see [6.260]–[6.320].

11

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361 at 381–382.

12

Cameron v Qantas Airways Ltd (1995) 55 FCR 147; on appeal Qantas Airways Ltd v Cameron (1996) 66 FCR 246.

13

Reilly v Merseyside Regional Health Authority [1995] 6 Med LR 246.

178

Part II: Mental Harm

[6.50]

preserved by a comparatively small award. This type of inconsistency troubled Molloy J in Mason v Westside Cemeteries Ltd:14 It is difficult to rationalize awarding damages for physical scratches and bruises of a minor nature but refusing damages for deep emotional distress which falls short of a psychiatric condition. Trivial physical injury attracts trivial damages. It would seem logical to deal with trivial emotional injury on the same basis, rather than by denying the claim altogether. Judges and juries are routinely required to fix monetary damages based on pain and suffering even though it is well-known that the degree of pain is a subjective thing incapable of concrete measurement. It is recognized that emotional pain is just as real as physical pain and may, indeed, be more debilitating. I cannot see any reason to deny compensation for the emotional pain of a person who, although suffering, does not degenerate emotionally to the point of actual psychiatric illness. Surely emotional distress is a more foreseeable result from a negligent act than is a psychiatric illness.

Such reasoning has an attraction, especially in the light of the existing situations where tort does afford some compensation for mental distress, to be considered at [6.70]–[6.130]. [6.50] It is important to ask why the law gives no damages for “mere” emotional distress.15 The arguments put forward against allowing recovery for such harm closely parallel those that have been raised to outlaw or circumscribe recovery for the more serious forms of injury that were traditionally labelled “nervous shock” — that is, those that satisfy the recognisable psychiatric injury requirement. The statement of Lord Wensleydale suggests that the reason is that the law is unable to value such injury, but, as we have already seen, much more is now known about the effects of emotions on the body and doctors can with a considerable degree of precision identify various forms of emotional distress and their effects.16 Moreover, difficulty of valuation and assessment is a poor rationale for denial when (as Molloy J pointed out) awards for the non-pecuniary components of personal injury damages, such as pain and suffering, are routinely made but, by their very nature, are also incapable of valuation.17 Other traditional arguments, such as the problems of proof, that the damage is too remote, and the danger of false 14

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361 at 379–380, followed in Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 at [11] per Cosgrove J. 15

See generally NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 368–373. The arguments in this article now have to be considered in the light of the judgment of Gummow and Kirby JJ in Tame v New South Wales (2002) 211 CLR 317 referred to at [6.10].

16 17

See Chapter 5.

See eg Teubner v Humble (1963) 108 CLR 491; Skelton v Collins (1966) 115 CLR 94; Wise v Kaye [1962] 1 QB 638; H West & Son Ltd v Shephard [1964] AC 326; Lim Poh Choo v Camden Area Health Authority [1980] AC 174; Andrews v Grand and Toy Alberta Ltd [1978] 2 SCR 229. Note the remarks of Southin JA in McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45 at 53 (see [6.260]); note also Naylor v Yorkshire Electricity Board [1968] AC 529 at 548 per Lord Devlin: “In the law of damages … difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award.”

[6.60]

6 Attempts to Lower the Barrier

179

claims succeeding, are also much more difficult to sustain in the light of developments in medical knowledge. Some judges, Gummow and Kirby JJ among them, have suggested that emotional distress is not compensable because it is something experienced by any normal person when someone they love is killed or injured,18 but it is not easy to see why the fact that it is commonly experienced is of itself a reason for denying recovery. This logic has not affected recoverability for the universally experienced sensation of physical (as opposed to emotional) pain. It may simply be another way of expressing the traditional floodgates argument.19 Closely related to this argument is the suggestion that the rule acts as a deterrent to trivial claims. The courts seem to have been motivated by the belief that requiring physical consequences will verify the reality of trauma and make it easier to distinguish cases deserving of compensation. [6.60] Perhaps the best reason for refusing recovery for mere emotional distress is that, if one looks at the priorities for compensation, emotional distress ranks lower down the list than physical harm caused by impact and the recognisable psychiatric damage that is the subject of “nervous shock” cases. In 1915 Roscoe Pound, discussing the interest in the physical person, suggested that immunity of the mind and the nervous system from injury, and freedom from annoyance interfering with mental poise and comfort, were interests that had become more important with the progress of civilisation, as opposed to more basic interests such as immunity of the body from direct and indirect injury.20 Lush J probably had such considerations in mind in Benson v Lee21 when he said that the law’s policy not to give damages for grief or other emotional distress had to be maintained for practical reasons. This philosophy is apparent also in Lord Oliver of Aylmerton’s statement in Alcock v Chief Constable of South Yorkshire Police22 that the law will not compensate a person for mental anguish flowing from the loss of a relative or from being compelled to look after an invalid. His Lordship’s judgment was founded on the well-entrenched common law principle that, save for exceptional circumstances, the law compensates only the primary victim.23 Mental 18

See eg Tame v New South Wales (2002) 211 CLR 317 at [193]; McLoughlin v O’Brian [1983] 1 AC 410 at 431 per Lord Bridge of Harwich; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 416 per Lord Oliver of Aylmerton; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 465 per Lord Grifffiths.

19

Gummow and Kirby JJ in Tame v New South Wales (2002) 211 CLR 317 at [194] noted that the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation.

20

R Pound, “Interests of Personality” (1915) 28 Harv L Rev 343, 445 at 355–356.

21

Benson v Lee [1972] VR 879 at 880.

22

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408–409.

23

See [7.370]. See the extended discussion in the previous edition of this book: P Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 153–167. See also P Handford, “Relatives’ Rights and Best v Samuel Fox” (1979) 14 UWAL Rev 79.

180

Part II: Mental Harm

[6.70]

distress suffered by a secondary party (such as a relative) does not have a high enough priority to warrant legal recognition. It is these considerations, coupled with the fact that emotional distress is often of relatively short-lived duration,24 rather than the longer-lasting psychiatric illness to which it may give rise, that provide the most plausible explanation why the law has remained firm in not giving compensation for mere mental distress.25 To these arguments must be added those relied on by Gummow and Kirby JJ for maintaining a distinction between recognisable psychiatric illness and emotional distress; their Honours noted that most of the traditional concerns receded if full force is given to this distinction.26 In their view, permitting recovery for recognisable psychiatric illnesses but not for other forms of emotional disturbance “is to posit a distinction grounded in principle rather than pragmatism, and one that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception”.27

“Parasitic” or “aggravated” damages for emotional distress [6.70] Though damages are not awarded in tort for mental distress standing alone, the law has always been content to award damages for such loss consequent upon the commission of some other wrong.28 Such damages are sometimes referred to as “parasitic damages”, because they are awardable only where they can be attached to some recognised wrong.29 Some judges have expressed dislike of the term “parasitic damages”. To Lord Denning MR, for example, it conveyed “the idea of damages which ought not in justice to be awarded, but which somehow or other have been allowed to get through by hanging on to others”.30 However, the awarding of such damages is a well-established practice, the origins of which are somewhat obscure, but can probably be ascribed 24

See eg Stergiou v Stergiou (1987) Aust Torts Rep 80-082; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, reversed by the English Court of Appeal in Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n.

25

See generally H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 105–106.

26

Tame v New South Wales (2002) 211 CLR 317 at [193], quoted at [1.160].

27

Tame v New South Wales (2002) 211 CLR 317 at [194].

28

See generally PR Handford “Damages for Injured Feelings in Australia” (1982) 5 UNSWLJ 291 at 296–298, 301–302; P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19. Note Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344 at 359 per Mason CJ: “[I]n some circumstances at least, a plaintiff can recover damages for injury to his or her feelings caused by tortious conduct: assault, false imprisonment, malicious prosecution and defamation are causes of action in which a plaintiff may recover damages on that score.”

29

See H McGregor, Damages (18th ed, Sweet & Maxwell, London, 2009), para 6-120. In Thompson v Commissioner of Police for the Metropolis [1998] QB 498 at 514, Lord Woolf MR made a helpful distinction between “basic” damages and aggravated damages.

30

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 35. See also French Knit Sales Pty Ltd v N Gold & Sons Pty Ltd [1972] 2 NSWLR 132; but contrast Seaway Hotels Ltd v Cragg (Canada) Ltd (1960) 21 DLR (2d) 264.

[6.70]

6 Attempts to Lower the Barrier

181

to the fact that the assessment of damages was for a long period in the hands of juries,31 who looked at the real and not the legal injury.32 Another term often used in this area of the law is “aggravated damages”, which are damages awarded to compensate for injured feelings, as opposed to exemplary or punitive damages which are available in limited circumstances to punish the tortfeasor for the nature of the wrongdoing.33 In England, since the distinction between aggravated and exemplary damages was made clear by Rookes v Barnard34 in 1964, there has been

31

In most Australian States and Territories, personal injury cases are virtually never tried by jury. However, in Victoria, and also in New South Wales (in non-motor accident cases) juries have continued to be used quite frequently in personal injury cases: see H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, Sydney, 2002), pp 219–222; J Crawford and B Opeskin, Australian Courts of Law (4th ed, Oxford University Press, Melbourne, 2004), pp 81–82; for the current rules see Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 47.02; Supreme Court Act 1970 (NSW), s 85. (On the right to jury trial in psychiatric injury actions in New South Wales, see Moran v Moran [1999] NSWSC 1103; Priest v New South Wales [2006] NSWSC 12; in Victoria, see Birti v SPI Electricity Pty Ltd [2011] VSC 566; Birti v SPI Electricity Pty Ltd (No 2) [2012] VSC 482.) Juries are no longer used in personal injury cases in England: see Ward v James [1966] 1 QB 273; H v Ministry of Defence [1991] 2 QB 103. Civil jury trials are still relatively common in Ontario and British Columbia, but in other Canadian Provinces they are becoming increasingly rare: see AM Linden and B Feldthusen, Canadian Tort Law (9th ed, LexisNexis, Ontario, 2011), p 253. On jury trial in psychiatric injury actions in British Columbia, see Lew v Mount St Joseph Hospital Society (1998) 55 BCLR (3d) 394 (application for trial of action without jury allowed because of the complexity of the issues). Jury trials have been abolished in most other jurisdictions, though they are still in use in the Scottish Court of Session (see eg Girvan v Inverness Farmers Dairy (No 2) 1998 SC (HL) 1).

32

See FH Bohlen, “Right to Recover for Injury Resulting from Negligence without Impact” (1902) 41 American Law Register (ns) 141, reprinted in FH Bohlen, Studies in the Law of Torts (Bobbs-Merrill, Indianapolis,1926), p 252. In Lynch v Knight (1861) 9 HL Cas 577; 11 ER 854 at 855, Lord Wensleydale, having said that there was no recovery for mental pain or anxiety alone, added: “though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should altogether overlook the feelings of the party interested”. 33

In England, exemplary damages are now much restricted in scope, applying only in particular cases identified by the House of Lords in Rookes v Barnard [1964] AC 1129. However, these restrictions have not been accepted in Australia, Canada or New Zealand: for leading Australian authorities see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Australian Consolidated Press Ltd v Uren [1969] 1 AC 590; Lamb v Cotogno (1987) 164 CLR 1 at 7–8. Such damages thus continue to be available in cases over a wide spectrum of torts involving intentional acts and omissions where the defendant’s wrongdoing is wanton and outrageous. In Australia the courts have also shown that they are also prepared to extend such damages outside the area of intentional wrongs and into cases involving road and work accidents: see eg Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident Commission (1998) 196 CLR 1. However, in New South Wales, the Northern Territory and Queensland, the awarding of exemplary damages in negligence actions for personal injury is now prohibited: see Civil Liability Act 2002 (NSW), s 21; Personal Injuries (Liabilities and Damages) Act (NT), s 19; Civil Liability Act 2003 (Qld), s 52. For Canadian law, see AM Linden and B Feldthusen, Canadian Tort Law (9th ed, LexisNexis, Ontario, 2011), pp 68–71; for New Zealand law, see S Todd (gen ed), The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013), pp 1263–1278.

34

Rookes v Barnard [1964] AC 1129.

182

Part II: Mental Harm

[6.80]

debate about when it is proper to award aggravated damages.35 A 1997 report of the English Law Commission36 discussed the role of aggravated damages in providing compensation for injured feelings, and recommended that whenever possible such damages should be considered simply as damages for mental distress.37 [6.80] Parasitic or aggravated damages for mental distress may be awarded for most torts. Since at least the 14th century, the common law has countenanced recovery in the tort of assault for a purely dignitary interest — the momentary apprehension of impending physical harm, even if it does not ultimately happen.38 The other torts of trespass to the person — battery and false imprisonment — also in the main protect dignitary interests,39 and can be used as a vehicle for awarding damages for mental distress,40 though there are also cases where substantial 35

It has been suggested that such damages should not be awarded in negligence cases: see Kralj v McGrath [1986] 1 All ER 54; AB v South West Water Services Ltd [1993] QB 507. Reviewing this debate, Mason P in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [94]–[110] found that it gave no clear guidance on the issue so far as Australian law was concerned, noting the uneasy relationship between the cases on aggravated damages and those awarding damages for mental distress consequent on property damage (see [6.120]). 36

Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997).

37

Law Commission, Aggravated, Exemplary and Restitutionary Damages (Law Com No 247, 1997), para 2.42.

38

See I de S et ux v W de S (1348) YB 22 Edw III f 99, pl 60 (defendant found liable for assault and ordered to pay compensation when he aimed hatchet at tavern-keeper’s wife, though he did not hit her). It may be that the principal justification for this was to keep public order by giving a defence to someone who retaliated when faced with threatened harm, on the basis that “it might come too late afterwards”: Chapleyn of Greye’s Inn’s Case (1400) YB 2 Hen IV f 8, pl 40. See PR Handford, “Tort Liability for Threatening or Insulting Words” (1976) 54 Can BR 563.

39

Battery, though it may involve substantial personal injury, also extends to protect purely dignitary interests, since “the least touching of another in anger is a battery”: Cole v Turner (1704) Holt KB 108; 90 ER 958. Thus spitting in a person’s face, cutting their hair or kissing them without consent are all batteries of this kind. It seems that a battery could even be committed where the plaintiff is ignorant of it at the time, because the injury to feelings is just as real when the plaintiff does not discover what happened until later. False imprisonment, similarly, can protect a purely dignitary interest. As long as the restraint is total, it may cause the plaintiff no harm except the indignity of being unable to exercise freedom of movement. Again, despite the old case of Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126, it seems that the tort may be committed even though the plaintiff is not conscious of it at the time, because of the injury to feelings element involved in the later discovery of what took place: see Meering v Grahame-White Aviation Co (1919) 122 LT 44; Murray v Ministry of Defence [1988] 1 WLR 692. See generally PR Handford “Damages for Injured Feelings in Australia” (1982) 5 UNSWLJ 291 at 294–296; P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 27–29.

40

For examples of the use of battery for this purpose, see Appleton v Garrett [1997] 8 Med LR 75 (damages for anger and indignation at unnecessary dental treatment); Corr v Harrods Ltd [1999] EWCA Civ 2381 (plaintiff forcibly ejected from Harrods because of his appearance); Malette v Shulman (1987) 47 DLR (4th) 18 (blood transfusion given to Jehovah’s

[6.90]

6 Attempts to Lower the Barrier

183

physical harm or inconvenience is suffered and damages for mental distress are tacked onto the main award.41 In recent years, battery has been increasingly used as a remedy for sexual abuse:42 in such cases mental distress is part of the very serious harm suffered.43 [6.90] Intentional torts to property may be somewhat different. In Australia, it has been held that damages for insult and indignity may be awarded in an action for trespass to land;44 a similar conclusion may be suggested by old English authorities,45 plus modern decisions that recognise the reality of distress caused where landlords wrongfully evict tenants from their home or do other acts that cause injury to tenants’ Witness without her consent). For false imprisonment examples, see Spautz v Butterworth (1997) 41 NSWLR 1 (university lecturer dismissed after making allegations of plagiarism unlawfully imprisoned after failing to pay costs of unsuccessful court proceedings); Childs v Lewis (1924) 40 TLR 870 (plaintiff detained in custody, compelled to resign directorship, recovered damages for indignity and loss of directors’ fees); Thompson v Commissioner of Police for the Metropolis [1998] QB 498 (plaintiff manhandled and assaulted by police officers, and wrongly detained in cell for four hours). Note also Walter v Alltools Ltd (1944) 61 TLR 39 (plaintiff detained on suspicion of stealing pot of paint, recovered damages for imprisonment and injury to reputation); Hook v Cunard SS Co Ltd [1953] 1 WLR 682 (steward on Queen Elizabeth wrongly accused by passenger of indecently assaulting child, put under lock and key until ship reached New York). 41

Eg Kohan v Stanbridge (1916) 16 SR (NSW) 576; Costi v Minister of Education (1973) 5 SASR 328; L v Commonwealth (1976) 10 ALR 269; A v D (unreported, ACT SC, No SC336 of 1994, 20 September 1995); Forde v Skinner (1830) 4 C & P 239; 172 ER 687; W v Meah [1986] 1 All ER 935; Fogg v McKnight [1968] NZLR 330 (battery); note also Lane v Holloway [1968] 1 QB 379 (battery, though on the facts no damages for mental distress were awarded because of provocation); Warwick v Foulkes (1844) 12 M & W 507; 152 ER 1298 (false imprisonment); Hurst v Picture Theatres Ltd [1915] 1 KB 1 (battery and false imprisonment).

42

See B Feldthusen, “The Canadian Experiment with the Civil Action for Sexual Battery” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), p 274, which contains extensive case citations and deals fully with all the issues involved, including the choice of cause of action and limitation and evidentiary issues as well as the awarding of damages; R Tobin, “Civil Actions for Sexual Abuse in New Zealand” (1997) 5 Tort L Rev 190; S Todd, “Tort Actions by Victims of Sexual Abuse” (2004) 12 Tort L Rev 40.

43

See eg Victoria v McIver [2005] VSCA 50; Pereira v Keleman [1995] 1 FLR 428; M(K) v M(H) [1992] 3 SCR 6; H v R [1996] 1 NZLR 299.

44

New South Wales v Ibbett (2005) 65 NSWLR 168, upheld on appeal to the High Court in New South Wales v Ibbett (2006) 229 CLR 638; TCN Channel Nine Pty Ltd v Ilvarity Pty Ltd (2008) 71 NSWLR 323; note also TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 (search of property by environmental protection authority, which had invited a reporter and camera crew to accompany them on the raid). For earlier authority, see Greig v Greig [1966] VR 376 at 380–381 per Gillard J (microphone installed in chimney to record conversations of brother’s housekeeper); Columbia Picture Industries Inc v Robinson [1987] Ch 38 at 87 per Scott J (unlawful entry into shop in purported execution of Anton Piller order).

45

Eg Bruce v Rawlins (1770) 3 Wils KB 61; 95 ER 934 (home owner and family “frightened and surprised” where customs officers entered house under pretended legal authority); Bennett v Allcott (1787) 2 TR 166; 100 ER 90 (trespassers seduced plaintiff’s daughter, damages awarded for loss of services, but to modern eyes plaintiff’s damage would be essentially mental distress). Note also Huxley v Berg (1815) 1 Stark 98; 171 ER 413 (fright of trespass caused death of plaintiff’s wife), and the comments of Spigelman CJ in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at 351.

184

Part II: Mental Harm

[6.90]

feelings.46 Damages for injured feelings may not be available in private nuisance,47 except perhaps where the nuisance is intentional.48 By analogy with trespass to land, it might be thought that mental distress damages might not be available in torts involving interference with goods, but there are examples of such awards being made in actions for conversion,49 and there is some possibility of a similar award in trespass to goods.50

46

Drane v Evangelou [1978] 1 WLR 455 at 461 per Lawton LJ, at 462 per Goff LJ; see also McMillan v Singh (1984) 17 HLR 120; Branchett v Beaney [1992] 3 All ER 910; P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 31–32, who notes that the Protection from Harassment Act 1997 (UK), s 3(2) now creates a statutory tort of harassment, the damages for which may include an award for “any anxiety caused by the harassment”. Note also Perera v Vandiyar [1953] 1 WLR 672: see [30.720].

47

See Clifford v Dove [2006] NSWSC 314 (removing cattle yards over which plaintiff had an easement); Thompson-Schwab v Costaki [1956] 1 WLR 335 (house being used as brothel: neighbours could get damages for physical inconvenience, such as parked cars and comings and goings late at night, but not for mental disturbance and the knowledge of what was going on next door). See also Shuttleworth v Vancouver General Hospital [1927] 2 DLR 573 (no injunction against isolation hospital: neither sight of human suffering nor imaginary fear of infection was sufficient to support action, both being founded on sentiment). However, note Stockwell v Victoria [2001] VSC 497 at [570] per Gillard J, where the only reason suggested for not granting damages for depression is that the nuisance (marauding dogs) was not the cause of the depression. These cases are consistent with the generally understood rule that personal injury damages are not available in private nuisance: see eg Hunter v Canary Wharf Ltd [1997] AC 655. However, personal injury damages are recoverable in public nuisance, and damages for stress and depression may be granted in a public nuisance action: see eg Cohen v City of Perth [2000] WASC 306 (inner-city resident disturbed by early-morning garbage trucks).

48

For classical examples of intentionally caused nuisance, see Christie v Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; note also Perharic v Hennessey [1997] EWCA Civ 1815 (harassment of husband’s new partner by silent telephone calls, together with leaving cards in phone boxes with her telephone number, describing her as an “exuberant blonde”, resulting in many calls from would-be clients). P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 37–38 notes that it is likely that there will be no award if the nuisance is merely negligent, citing AB v South West Water Services Ltd [1993] QB 507, and also the generally antagonistic attitude to recovery for personal injury in private nuisance displayed by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655.

49

See Graham v Voight (1989) 89 ACTR 11 (in action for conversion of stamp collection, plaintiff compensated for loss of his hobby); Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Rep 81-397 (owner of vehicle that was unlawfully towed away and damaged entitled to award for worry, anxiety, annoyance and mental upset). Note also Thurston v Charles (1905) 21 TLR 659, where damages were awarded in conversion for lost reputation.

50

In Owen & Smith (trading as Nuagin Car Service) v Reo Motors (Britain) Ltd (1934) 151 LT 274 the English Court of Appeal awarded punitive damages against a firm which removed the plaintiff’s tyres from a car at a motor show, but in Rookes v Barnard [1964] AC 1129 Lord Devlin at 1229 said the result could be justified as an award of aggravated damages. See also Cox v McIntosh [1992] CLY 1523 (plaintiff’s dog twice savaged by neighbour’s Rottweiler, damages for “trouble” awarded to 89-year-old plaintiff, who witnessed each incident); Columbia Picture Industries Inc v Robinson [1987] Ch 38 at 87 per Scott J (improper

[6.100]

6 Attempts to Lower the Barrier

185

[6.100] It was settled that damages for emotional suffering could be awarded in defamation, in those cases (libel and slander actionable per se) where defamation was actionable without proof of damage.51 In cases of slander requiring proof of damage, some old authorities held that the damages recoverable were limited to the actual damage suffered,52 but others allowed damages for mental suffering,53 and in Australia it was held that mental distress amounted to actual damage.54 The uniform Australian defamation legislation has now abolished the distinction between libel and slander and defamation is actionable without proof of damage in all cases.55 The position in injurious falsehood was previously uncertain,56 but it has now been held that damages for injured feelings are available.57 The courts have shown themselves willing to make awards for mental distress in malicious prosecution, by analogy with false seizure of videotapes from shop: aggravated damages awarded for both trespass to land and trespass to goods) and other cases cited by P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 32–33. 51

See eg Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 65 per Mason CJ, Deane, Dawson and Gaudron JJ; for English authorities see Goslin v Corry (1844) 7 Man & G 342; 135 ER 143; Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin; McCarey v Associated Newspapers [1965] 2 QB 86 at 104 per Pearson LJ; Fielding v Variety Inc [1967] 2 QB 841 at 855 per Salmon LJ; Broome v Cassell & Co [1972] AC 1027 at 1071 per Lord Hailsham of St Marylebone LC, at 1085–1086 per Lord Reid; see also P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 29–31. See also Froese v Canada Safeway Ltd [1994] AJ No 1215; Brown v Cole (1998) 61 BCLR (3d) 1 at 20 per Southin JA, raising the possibility of compensation for psychiatric illness in defamation.

52

Albrecht v Patterson (1886) 12 VLR 821; Brown v Smith (1855) 13 CB 596; 138 ER 1333 at 1334–1335 per Williams J; Ratcliffe v Evans [1892] 2 QB 524 at 530–532 per Bowen LJ.

53

Dixon v Smith (1860) 5 H & N 450; 157 ER 1257 at 1258 per Martin B; Lynch v Knight (1861) 9 HL Cas 577; 11 ER 854 at 864 per Lord Wensleydale.

54

Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34. This case rejected as out of date the old English case of Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 which was influenced by the same kind of thinking as Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222; note the approach of Wright J in Wilkinson v Downton [1897] 2 QB 57 at 60–61. See also Chu Siu Kuk Yuen v Apple Daily Ltd [2001] HKCFI 1382.

55

See Defamation Act 2005 (NSW), s 7(2) and similar provisions in Qld, SA, Tas, Vic, WA; Defamation Act (NT), s 6(2); Civil Law (Wrongs) Act 2002 (ACT), s 119(2). There has been a similar reform in New Zealand and eight Canadian Provinces (Alberta, Manitoba, New Brunswick, Newfoundland, North West Territories, Nova Scotia, Prince Edward Island and Yukon Territory). In Australia, aggravated damages for defamation continue to be available under the legislation: see Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606 (Australian actor Judy Davis awarded aggravated damages, but not for hurt feelings).

56

See Joyce v Sengupta [1993] 1 WLR 337, where Sir Donald Nicholls VC at 348 and Sir Michael Kerr at 351 suggested that it should be possible to award damages for distress; Khodaparast v Shad [2000] 1 WLR 618; P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 34–35. Lord Denning MR in Fielding v Variety Inc [1967] 2 QB 841 at 850, who says mental distress damages are not available, perhaps states an older view. In Australia, the tort became almost obsolete following enactment of the Trade Practices Act 1974 (Cth).

57

Khodaparast v Shad [2000] 1 WLR 618 (Iranian woman’s former lover used photographs of her in advertisements in pornographic magazines).

186

Part II: Mental Harm

[6.110]

imprisonment and defamation,58 and misfeasance in a public office.59 Damages for injured feelings were also available in torts affecting domestic relations60 (now abolished in most jurisdictions61) and most torts involving pure economic loss,62 conspiracy excepted.63 [6.110] Most of the torts mentioned in [6.100] are intentional torts. However, damages for injured feelings can also be awarded in certain negligence cases. In personal injury cases, damages for mental suffering are commonly awarded as part of the overall compensation — the damages award includes non-pecuniary elements such as damages for pain and suffering and loss of amenities, which incorporate elements of mental anguish that would not be compensable if it stood alone.64 In England, following a Law Commission report on the awarding of 58

See eg Thompson v Commissioner of Police of the Metropolis [1998] QB 498; Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065; P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 33–34. Damages for psychiatric injury were awarded in Clifford v Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB).

59

Muuse v Secretary of State for the Home Department [2010] EWCA Civ 453.

60

Lough v Ward [1945] 2 All ER 338 (enticement and harbouring); Howard v Crowther (1841) 8 M & W 601; 151 ER 1179; Murray v Kerr [1918] VLR 409 at 412 per Irvine CJ; Beetham v James [1937] 1 KB 527 at 533 per Atkinson J (seduction); Butterworth v Butterworth [1920] P 126; Leighton v Leighton (1963) 41 DLR (2d) 166 (adultery).

61

These torts have now been abolished in many jurisdictions: see PB Kutner, “Law Reform in Tort: Abolition of Liability for “Intentional” Interference with Family Relationships” (1987) 17 UWAL Rev 25.

62

See Aldersea v Public Transport Corporation [2001] 3 VR 499; Mafo v Adams [1970] 1 QB 548; Shelley v Paddock [1979] QB 120, affirmed Shelley v Paddock [1980] QB 348; Archer v Brown [1985] QB 401; Saunders v Edwards [1987] 1 WLR 1116 (deceit); Pratt v British Medical Association [1919] 1 KB 244 (inducing breach of contract); Rookes v Barnard [1964] AC 1129; Latham v Singleton [1981] 2 NSWLR 843 (intimidation — now, at least in England, part of the tort of causing loss by unlawful means); note also Moore v News of the World [1972] 1 QB 441 (infringement of copyright). 63

In Lonrho plc v Fayed (No 5) [1993] 1 WLR 1489 the English Court of Appeal refused to recognise injured feelings as a possible head of damages, despite the contrary indication in Quinn v Leathem [1901] AC 495 and Huntley v Thornton [1957] 1 WLR 321: see P Giliker, “A “New” Head of Damages: Damages for Mental Distress in the English Law of Torts” (2000) 20 LS 19 at 35–36. In McKellar v Container Management Services Ltd (1999) 165 ALR 409, Weinberg J in the Federal Court of Australia suggested that physical injury which is parasitic on pecuniary loss, including psychiatric injury, was compensable.

64

Among numerous examples, see Goorkani v Tayside Health Board [1991] 3 Med LR 33 (distress and anxiety consequent on being rendered infertile due to doctor’s negligence); Smith v Barking, Havering and Brentwood Area Health Authority [1994] 5 Med LR 285 (shock and depression caused by onset of tetraplegia); compare Cockatoo Dockyard Pty Ltd v Gifford [2008] NSWCA 162 (action by mesothelioma suffer: no damages for plaintiff’s anger at manner of commission of tort). However, where a plaintiff suffers psychiatric injury beyond that attributable to personal injury, it will be necessary to show that psychiatric injury was foreseeable: Kavanagh v Akhtar (1998) 45 NSWLR 588 at 600 per Mason P; note also Bryant v London Fire and Civil Defence Authority (1994) 22 BMLR 124 (submitted that in order to recover compensation for any damage beyond that attributable to physical injuries, plaintiff had to demonstrate an identifiable psychiatric condition: new trial granted on other issues). In cases of sexual abuse, plaintiffs sometimes prefer to sue in negligence rather than in battery: see eg Wilson v Horne (1999) 8 Tas R 363; S v W [1995] 3 FCR 649. In these cases, the

[6.110]

6 Attempts to Lower the Barrier

187

damages for non-pecuniary loss,65 the English Court of Appeal in Heil v Rankin66 gave an authoritative ruling on the level of awards for this element of personal injury damages, and confirmed that in a personal injury case it is possible to recover for mental harm that would not be remediable if it were the only loss suffered.67 There are also statutory provisions that give a cause of action for mental distress in particular circumstances.68 In Australia, however, the principle of allowing recovery for mental distress consequent on personal injury is now qualified by legislation: the Civil Liability Acts in six jurisdictions provide that a court cannot award damages for economic loss resulting from negligently caused consequential mental harm unless the mental harm consists of a recognised psychiatric illness.69 Awards of non-pecuniary damages for such harm are not affected.70 plaintiff must allege a recognisable psychiatric illness; however, damages for distress and humiliation may be awarded if related to the physical or psychiatric injury on which the claim is based: see eg Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783 at [28] per Smith LJ. 65

Law Commission, Damages for Personal Injury: Non-Pecuniary Loss (Law Com No 257, 1999).

66

Heil v Rankin [2001] QB 272.

67

Lord Woolf MR, dealing with Connelly v Tasker [2001] QB 272 (one of the eight cases before the court), where the defendant submitted that the plaintiff could not recover damages for upset, nightmares and flashbacks because there was no psychiatric injury, said that the case could be distinguished from Reilly v Merseyside Regional Health Authority [1995] 6 Med LR 246 (see [6.40]) where the only injury suffered was mere emotional distress, because in Connelly v Tasker the plaintiff’s mental suffering arose directly out of the accident and resulting physical injury: Heil v Rankin [2001] QB 272 at 328.

68

Administration of Justice Act 1982 (UK), s 1(1) (victim of personal injury may recover damages for suffering consequent on realisation of reduced life expectancy). In addition, relatives bringing a fatal accident action now have a claim for bereavement under s 1A of the Fatal Accidents Act 1976 (UK).

69

Civil Law (Wrongs) Act 2002 (ACT), s 35(2); Civil Liability Act 2002 (NSW), s 33; Civil Liability Act 1936 (SA), s 53(3); Civil Liability Act 2002 (Tas), s 35; Wrongs Act 1958 (Vic), s 75; Civil Liability Act 2002 (WA), s 5T. This reform resulted from concerns about the size of economic loss damages for mental harm consequent on personal injury, and the view that fairness demanded that the plaintiff prove the existence of recognised psychiatric illness in cases where mental harm was consequential upon physical injury, in the same way as where mental injury stands alone. This was seen as an effective way of reducing the size of damages awards. See Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), paras 9.34–9.39. For examples of cases that would presumably qualify under the new rules, see Mosley v Broken Hill Pty Co Ltd (unreported, SASC, SCGRG-94-1966, 23 January 1998) (depressive disorder caused by asbestos-related disease); Beverley v Hill-Douglas [1998] QSC 31 (depressive disorder resulting from personal injury suffered in accident). For a case where damages would not now be awarded in Australia, see Anderson v Davis [1993] PIQR Q87 (plaintiff recovered from physical injuries suffered in road accident, but psychiatric injuries more severe and prevented him resuming employment, awarded damages for future loss of earnings).

70

However, Australian jurisdictions now impose caps on the level of awards for non-pecuniary loss, and thresholds below which no claim can be made: for comparative tables compiled in 2005, see D Butler, “A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms” (2005) 13 TLJ 203.

188

Part II: Mental Harm

[6.120]

[6.120] It is also generally recognised that compensation can be given for mental distress consequent on damage to property.71 In Attia v British Gas plc,72 the English Court of Appeal refused to rule out a cause of action for psychiatric damage caused by the destruction of the plaintiff’s home, and the court made it clear that had the claim for property damage not been settled compensation for shock and mental distress could have been granted consequent on the property damage. In a later Australian case, Campbelltown City Council v Mackay,73 the New South Wales Court of Appeal awarded damages to the plaintiff for grief and mental anguish consequent on the collapse of her “dream home”, and in Broken Hill City Council v Tiziani,74 the same court upheld an award of damages for emotional distress in favour of a homeowner whose house was flooded through the negligence of a council in designing and constructing public roadworks. Similarly, in Canada in Stoddard v Atwil Enterprises Ltd,75 general damages for mental distress were awarded against a contractor for a house that “was a structural disaster and in danger of partial collapse”. In New Zealand there is a long line of authority, beginning with Gabolinscy v Hamilton City Corporation,76 awarding damages for ill-health resulting from the subsidence of a house, and in RA and TJ Carll Ltd v Barry77 the plaintiff recovered for anxiety affecting health following the receipt of negligent advice from a health inspector that a coffee lounge, milk bar and confectionery business had a “clean bill of health” but was subsequently found to be heavily infested with cockroaches. It is clear from more recent cases that such awards can include pure mental suffering. In Rowlands v Collow,78 three plaintiffs were awarded substantial sums for mental suffering resulting from an engineer’s negligent performance of a contract to construct a driveway to their houses. [6.130] Authorities from several jurisdictions suggest that mental distress damages are also possible in actions for professional negligence 71

Note, however, Walter v Crossan [2014] 1 IR 76, holding that even where the action is brought in negligence, mental distress damages may only be awarded where there is a contract between the parties.

72

Attia v British Gas plc [1988] QB 304: see [27.20]. See also Batty v Metropolitan Property Realisations [1978] QB 554 (damages for injury to peace of mind due to imminent collapse of defective house); Perry v Sidney Phillips & Son [1982] 1 WLR 1297 (damages for distress caused by misleading surveyors’ report, on faith of which plaintiff purchased house with leaking roof and septic tank with offensive smell).

73

Campbelltown City Council v Mackay (1989) 15 NSWLR 501: see [12.200]–[12.230], [27.40].

74

Broken Hill City Council v Tiziani (1997) 93 LGERA 113. See also Brickhill v Cooke [1984] 3 NSWLR 396; Clarke v Shire of Gisborne [1984] VR 971; Delaney v FS Evans & Sons Pty Ltd (1984) 58 LGRA 395; Rentokil Pty Ltd v Channon (1990) 19 NSWLR 417; Snodgrass v Hammington [1996] ANZ Conv 597; Avenhouse v Hornsby Shire Council (1998) 44 NSWLR 1; Muirhead v Kingborough Council (No 2) [2000] TASSC 127. 75

Stoddard v Atwil Enterprises Ltd (1991) 105 NSR (2d) 315.

76

Gabolinscy v Hamilton City Corporation [1975] 1 NZLR 150. For other examples see Young v Tomlinson [1979] 2 NZLR 441; Stieller v Porirua City Council [1986] 1 NZLR 84.

77

RA and TJ Carll Ltd v Barry [1981] 2 NZLR 76.

78

Rowlands v Collow [1992] 1 NZLR 178.

[6.130]

6 Attempts to Lower the Barrier

189

where the primary loss is economic and there is no necessary connection with real property. In Leitch v Reynolds,79 solicitors negligently allowed a claim for medical negligence to become statute-barred, and then failed to pursue a notice of motion applying for an extension of time until it was too late to do so. The New South Wales Court of Appeal affirmed an award of general damages that included damages for vexation and stress. In Duvall v Godfrey Virtue & Co (a firm),80 Malcolm CJ at first instance awarded $5,000 against a firm of solicitors for distress precipitated by the plaintiff’s discovery of a writ of fi fa affixed to his house following the solicitors’ failure to give proper advice about the costs of a personal injury action, and this award was upheld by the Western Australian Full Court, which gave him further damages and increased costs.81 In a New Zealand case, Mouat v Clarke Boyce,82 due to the negligence of her solicitors, an elderly woman was confronted with the threat of losing her home when a mortgage given to her son as security for a loan was called in. The New Zealand Court of Appeal upheld an award of $25,000 for the mental anguish she endured as a consequence of that incompetence.83 In another New Zealand case, Ryan v Public Trustee,84 the plaintiff had given help to an elderly woman over a long period, and the woman decided to make a will, saying that she wanted the plaintiff to have some money after her death. An officer of the Public Trustee made a file note to the effect that he did not think she had testamentary capacity, but did not seek any expert assessment. As a result the plaintiff lost the opportunity of having a will made in her favour. Since the plaintiff got an award under the Law Reform (Testamentary Promises) Act 1949 (NZ), there was no financial loss, but she was awarded $10,000 damages for being denied her inheritance for six years, for stress and anxiety, and for the stress of litigation. In Ontario, in Stewart v Canadian Broadcasting Association,85 the plaintiff, who had been represented by a prominent silk on a charge of criminal negligence causing death, recovered $2,500 for “emotional harm” suffered after his release from prison, as a result of viewing a television program on the 79

Leitch v Reynolds [2005] NSWCA 259.

80

Duvall v Godfrey Virtue & Co (a firm) (unreported, WASC, CIV 1758 of 1996, 18 September 1996).

81

Duvall v Godfrey Virtue & Co (a firm) [2001] WASCA 105. Mr Duvall recounted his experiences with the law in Are Lawyers Really Necessary? (Colonial Publishing Co, Bentley, Western Australia, 2002).

82

Mouat v Clarke Boyce [1992] 2 NZLR 559.

83

Compare the somewhat ambiguous decision, on analogous facts, in Stergiou v Citibank Savings Ltd (1998) 148 FLR 244. Crispin J noted that the right to an award of damages for distress had been upheld in a number of cases, eg Campbelltown City Council v Mackay (1989) 15 NSWLR 501. On appeal, the Full Court in Stergiou v Citibank Savings Ltd [1999] FCA 1321 at [28] said it was clear that the court in the Campbelltown case was considering actual psychiatric injury, not merely vexation. This is debatable: see [6.120]. 84

Ryan v Public Trustee [2000] 1 NZLR 700.

85

Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24.

190

Part II: Mental Harm

[6.140]

case as part of a series on the administration of justice in which the silk participated in breach of his continuing fiduciary duty.86 [6.140] Sometimes, courts have been able to invoke equitable principles in order to provide a remedy for emotional distress. In Australia, the remedy of equitable compensation has been invoked to provide a remedy for emotional distress caused by what has become known as “revenge porn” — cases where following the breakdown of a relationship one party has circulated footage of the parties engaged in intimate sexual relations. In Giller v Procopets87 the material was circulated on videotape, but in the most recent case, Wilson v Ferguson,88 the parties used smartphones to film their sexual encounters, and after the relationship ended the defendant uploaded the material to his Facebook page, with boorish comments — showing, if nothing else, how much more effectively such material can now be disseminated. The plaintiff was horrified disgusted and upset, but there was no evidence that she suffered from a recognised psychiatric illness. This occasioned no difficulty for Mitchell J, who held that the elements of an action in equity for breach of confidence had been established, and awarded $35,000 as equitable compensation for the emotional distress suffered. In England, the equitable action for breach of confidence has been the means by which the courts have created a cause of action for misuse of private information. In the landmark decision, Campbell v MGN Ltd,89 model Naomi Campbell denied having a drug addiction but was later photographed leaving a Narcotics Anonymous meeting.90 The House of Lords held by majority that she had a right to privacy that had been infringed, and restored the award of damages for injured feelings made by Morland J.91 Later cases confirm that in cases such as this general damages may be awarded for injured feelings.92

Emotional distress damages in the United States [6.150] Long ago, an American writer, Thomas Atkins Street, suggested that the treatment of an element of damages as parasitic was merely the 86

Note also Bernier v Murchison 2014 NBQB 198 (damages awarded for distress caused by conveyancer’s professional negligence).

87

Giller v Procopets (2008) 24 VR 1.

88

Wilson v Ferguson [2015] WASC 15.

89

Campbell v MGN Ltd [2004] 2 AC 457.

90

Other leading decisions involving well-known celebrities include Douglas v Hello (No 3) [2008] AC 1 (unauthorised publication of wedding photographs of Michael Douglas and Catherine Zeta-Jones); Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (motor racing identity clandestinely photographed engaging in sado-masochistic activities). 91

Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB); see also Lady Archer v Williams [2003] EWHC 1670 (QB) (court granted injunction to prevent Lady Archer’s confidential secretary selling her story to the press, general damages for injured feelings also awarded).

92

Eg Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB) (£60,000). Note also the award of damages for injured feelings under torts of discrimination created by statute: see eg Prison Services v Johnson [1997] ICR 275.

[6.160]

6 Attempts to Lower the Barrier

191

precursor to its recognition as an independent basis of liability.93 Such sentiments were unconsciously echoed by Nader J in Anderson v Smith,94 commenting on Campbelltown City Council v Mackay,95 when he suggested that if the law gave damages for mental anguish consequent on damage to property and not for mental anguish caused by caring for a young child who suffered brain damage in an accident, it was time for the law to take another “cautious step”.96 [6.160] In the United States, Street’s prophecy has been fulfilled: grief, worry, anxiety and the like can now, in certain circumstances, be the subject of a damages award.97 This happened first in the area of mental suffering caused intentionally: the intentional infliction of severe emotional distress by extreme and outrageous conduct is now an actionable tort.98 As for the law of negligence, in two particular cases the law recognised liability for mental distress at an early point: the negligent transmission of telegraph messages and the negligent mishandling of corpses.99 Otherwise, until quite recently, the law retained the requirement that

93

TA Street, Foundations of Legal Liability (Edward Thompson Co, New York, 1906), Vol 1, p 470.

94

Anderson v Smith (1990) 101 FLR 34 at 50–51: see [12.160].

95

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

96

A reference to Jaensch v Coffey (1984) 155 CLR 549 at 555 per Gibbs CJ: “The law must continue to proceed in this area step by cautious step.” Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 403 also refers to the courts proceeding “cautious step by cautious step”.

97

See DB Marlowe, “Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective versus Subjective Indices of Distress” (1988) 33 Villanova L Rev 781 at 801–802.

98 99

See [30.600]–[30.650].

On negligent telegraph messages see eg So Relle v Western Union Telegraph Co 55 Tex 308 (1881); Western Union Telegraph Co v Redding 129 So 743 (Fla 1930); Russ v Western Union Telegraph Co 23 SE 2d 681 (NC 1943). On negligent mishandling of corpses see eg Louisville & NR Co v Hull 68 SW 433 (Ky 1902); Missouri K & T Rail Co v Hawkins 109 SW 221 (Tex 1908) (negligent shipment); St Louis South Western Rail Co v White 91 SW 2d 277 (Ark 1936) (running over body); Chelini v Nieri 196 P 2d 915 (Cal 1948) (negligent embalming). Compare Miner v Canadian Pacific Railway (1911) 3 Alta LR 408 (carrier not liable for damages for mental suffering for negligently delaying delivery of dead body). Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991) is of particular importance because the court ruled that the principles of Thing v La Chusa 771 P 2d 814 (Cal 1989) (see [3.790]) do not necessarily apply in cases involving the negligent handling of human remains; note also Strachan v John F Kennedy Memorial Hospital 538 A 2d 346 (NJ 1988) (body of brain-dead son maintained on life-support system even after parents demanded that system be removed; damages granted for their emotional distress, despite lack of resulting psychiatric illness, by applying dead body cases). However, one jurisdiction insisted on applying general limitations on claims for negligent infliction of emotional distress to such cases: see Washington v John T Rhines Co 646 A 2d 345 (DC 1994) (claim for negligent mishandling of husband’s body barred because claimant not in zone of danger). Cases on negligent handling of dead bodies continue to appear, eg Guth v Freeland 28 P 3d 982 (Haw 2001) (failure to refrigerate body caused it to decompose prior to open-casket funeral); Cohen v NuVasive Inc 79 Cal Rptr 3d 759 (2008) (medical company that purchased human remains

192

Part II: Mental Harm

[6.160]

injury to feelings must result in bodily harm or illness.100 However, over the last 40 years, the law of negligence has come to recognise liability for severe emotional distress in its own right.101 This happened first in Hawaii in 1970 in Rodrigues v State.102 In this case the plaintiffs, husband and wife, recovered against the State of Hawaii for its negligence in failing to attend to a drainage system, resulting in a flood that destroyed their recently completed home, for which they had saved for 15 years. There was of course property damage to which the damages for emotional distress might have been attached — this was the approach suggested in the later Australian case of Campbelltown City Council v Mackay,103 the facts of which are strikingly similar. However, the Hawaii Supreme Court was firm in its opinion that it was time to recognise an independent duty not to inflict mental distress by negligence.104 Other jurisdictions then began to follow this initiative, notably California in Molien v Kaiser Foundation Hospitals105 where a wife recovered damages in respect of a negligent misdiagnosis that she was suffering from syphilis, which caused her severe emotional suffering and wrecked her marriage. Though neither of these cases involve claims by persons who suffer emotional distress through witnessing injury to others, a number of States have shown a preparedness to recognise bystander claims for emotional distress alone,106 and many also allow such claims in other situations, for from bodies donated to university liable for causing emotional distress to family members); Boorman v Nevada Memorial Creation Society 236 P 3d 4 (Nev 2010) (family members recovered damages for negligent infliction of emotional distress when body returned to England without internal organs). 100

According to the Restatement of Torts Second 1965 (US), § 313, a person was liable for “illness or bodily harm” resulting from emotional distress if he or she realised that there was an unreasonable risk of such harm occurring. The Comment states: “The rule … does not give protection to mental and emotional tranquillity in itself.”

101

As to the meaning of this term as used by United States courts, see [5.60].

102

Rodrigues v State 472 P 2d 509 (Haw 1970).

103

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

104

Note, however, that the Hawaii legislature subsequently abolished causes of action for the negligent infliction of serious emotional distress or disturbance arising solely out of damage to property or material objects unless such distress or disturbance results in physical injury to or mental illness of the person who suffers the emotional distress or disturbance: Hawai’i Revised Statutes 1986 (HI), § 22 ch 663: see JA Davies, “Direct Actions for Emotional Harm: Is Compromise Possible?” (1992) 67 Wash L Rev 1 at 11. The cases stress the need for “some physical injury to property or a person”: see eg Chedester v Stecker 643 P 2d 532 (Haw 1982); Calleon v Miyagi 876 P 2d 1278 (Haw 1994); Ross v Stouffer Hotel Co (Hawai’i) Ltd 879 P 2d 1037 (Haw 1994).

105

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980). See WS Blackmer, “Molien v Kaiser Foundation Hospitals: Negligence Actions for Emotional Distress and Loss of Consortium without Physical Injury” (1981) 69 Cal L Rev 1142; E Finneran, “The Death of the Ensuing Physical Injury Rule: Validating Claims for Negligent Infliction of Emotional Harm” (1981) 10 Hofstra L Rev 213; CJ Spector, “Negligent Infliction of Emotional Distress Absent Physical Impact or Subsequent Injury” (1982) 47 Mo L Rev 124.

106

Hawaii (Leong v Takasaki 520 P 2d 758 (Haw 1974)); Iowa (Barnhill v Davis 300 NW 2d 104 (Iowa 1981)); Maine (Culbert v Sampson’s Supermarkets Inc 444 A 2d 433 (Me 1982)); Montana (Sacco v High Country Independent Press Inc 896 P 2d 411 (Mont 1995)); Nebraska (James v Lieb

[6.170]

6 Attempts to Lower the Barrier

193

example where a pre-existing duty can be shown,107 even though some of these do not allow recovery for emotional distress in bystander cases.108 It thus appears that at least 24 jurisdictions have now recognised a cause of action for the negligent infliction of emotional distress. [6.170] Other common law jurisdictions have not yet trodden the same path as the United States.109 The recognisable psychiatric illness requirement remains an important prerequisite to the recovery of tortious damages for shock-induced harm, and not only in negligence. Even intentionally caused emotional distress must result in some form of significant physical or psychiatric harm before liability will exist.110 Now that Gummow and Kirby JJ in the High Court of Australia in Tame v New South Wales111 have reaffirmed the importance of the recognisable psychiatric illness requirement as the price of discarding needless policy restrictions on recovery for psychiatric injury, specifically repudiating the position in the United States where allowing compensation for pure 375 NW 2d 109 (Neb 1985)); New Jersey (Portee v Jaffee 417 A 2d 521 (NJ 1980)); New Mexico (Folz v State 797 P 2d 246 (NM 1990)); North Carolina (Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990)); Ohio (Paugh v Hanks 451 NE 2d 759 (Ohio 1983)); Pennsylvania (Sinn v Burd 404 A 2d 672 (Pa 1979)); Tennessee (Camper v Minor 915 SW 2d 437 (Tenn 1996)); Washington (Hegel v McMahon 960 P 2d 424 (Wash 1998)); West Virginia (Heldreth v Marrs 425 SE 2d 157 (WVa 1992)); Wisconsin (Bowen v Lumbermen’s Mutual Casualty Co 517 NW 2d 432 (Wis 1994)); Wyoming: Gates v Richardson 719 P 2d 193 (Wyo 1986). In Texas, a general duty not to cause emotional distress by negligence, recognised in St Elizabeth Hospital v Garrard 730 SW 2d 649 (Tex 1987), was repudiated in Boyles v Kerr 855 SW 2d 593 (Tex 1993), but the holding in this case recognised the right to recover for pure emotional distress in cases of breach of some other legal duty, and by bystanders. See GF Cerasuolo, “Boyles v Kerr: Sex, Emotional Distress and Videotape” (1993) 30 Houston L Rev 1433. 107 Alabama (Taylor v Baptist Medical Center Inc 400 So 2d 369 (Ala 1981)); Alaska (Chizmar v Mackie 896 P 2d 196 (Alaska 1995)); California (Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980)); Connecticut (Montinieri v Southern New England Telephone Co 398 A 2d 1180 (Conn 1978)); District of Columbia (Williams v Baker 572 A 2d 1062 (DC 1990)); Illinois (Corgan v Muehling 574 NE 2d 602 (Ill 1991)); Louisiana (Chappetta v Bowman Transport Inc 415 So 2d 1019 (La 1982)); Missouri: Bass v Nooney Co 646 SW 2d 765 (Mo 1983). New York probably also belongs in this group, but the position is uncertain: see eg JM Mega, “Negligent Infliction of Emotional Distress: Confusion in New York and a Proposed Standard” (1990) 56 Brooklyn L Rev 379. However, more recent authorities suggest that New York does recognise liability for pure emotional distress, and date that recognition back to Battalla v State 176 NE 2d 729 (NY 1961) (see eg Topor v State 671 NYS 2d 584 (1997) at 587 per Collins J: “The law has long been settled that a claimant can recover for emotional trauma even in the absence of a physical injury.”). 108

Eg District of Columbia, Illinois, Missouri.

109

Note, however, Bryan v Philips New Zealand Ltd [1995] 1 NZLR 632 where Barker J in the New Zealand High Court refused to strike out a claim for “mental anguish or emotional distress” allegedly suffered by the plaintiff caused by knowledge that he had a high chance of developing asbestos-related cancers due to exposure to and ingestion of asbestos while employed as a gas bender by a company which made neon lights, notwithstanding that there was no allegation and no evidence before him that the plaintiff had suffered a recognised disorder, and that the claim was based entirely on the cause of action for emotional distress available in some United States jurisdictions. 110

See [30.190].

111

Tame v New South Wales (2002) 211 CLR 317 at [171]–[175], [194]: see [4.40].

194

Part II: Mental Harm

[6.180]

emotional distress in order to protect peace of mind has compelled the retention of such policy limitations, any move in this direction seems unlikely.

Pre-impact emotional distress [6.180] A special problem that has arisen in recent years, both in the United States and elsewhere, is that of “pre-impact emotional distress”: the problem of whether plaintiffs, or their estates, can recover for the mental anguish of knowing, before there is any impact, that an accident is inevitable and that they will die or be seriously injured. This issue has arisen in a number of cases concerning aircraft disasters,112 and is also illustrated by the fate of the astronauts in the 1986 Challenger and 2003 Columbia space shuttle tragedies, who for at least some seconds or minutes would have been aware that the malfunction of their spacecraft had sealed their fate.113 The doctrine has also been extended to other situations, for example motor vehicle accidents.114 A somewhat similar problem arose out of the Hillsborough football disaster. In Hicks v Chief Constable of the South Yorkshire Police115 actions for damages for pain and suffering prior to death were brought on behalf of the estates of three young people who were crushed to death on the Leppings Lane terraces. 112

See eg Re Paris Aircrash on March 3 1974 399 F Supp 732 (1975); Re Eastern Airlines Inc, Engine Failure, Miami International Airport on May 5, 1983 629 F Supp 307 (1986); Re Aircrash Disaster Near New Orleans 789 F 2d 1092 (1986); Re Aircraft Disaster near Roselawn, Indiana, on October 31, 1994 954 F Supp 175 (1997). The doctrine has also been applied in analogous situations, eg Re Inflight Explosion on Trans World Airlines Inc Aircraft Approaching Athens, Greece on April 2, 1986 778 F Supp 625 (1991) (passenger ejected from plane as result of explosion on board). Some courts have refused to recognise the doctrine, eg Re Air Crash Disaster near Chicago 507 F Supp 21 (1980). For discussion, see NR McGilchrist, “Mental Anguish — Before and After the Crash” [1984] LMCLQ 311; EA Cunningham, “Negligent Infliction of Emotional Distress in Air Crash Cases: A New Flight Path?” (1992) 70 Wash ULQ 935. In Eastern Airlines Inc v Floyd 111 S Ct 1489 (1991), it was argued that the doctrine could be applied to a near-crash situation: passengers claimed damages for emotional distress as a result of an aircraft losing power on a flight from Miami to the Bahamas. Liability was denied under Art 17 of the Warsaw Convention 1929 (see [23.10]): note DM Eaton, “Recovery for Purely Emotional Distress under the Warsaw Convention: Narrow Construction of Lésion Corporelle in Eastern Airlines, Inc v Lloyd” [1993] Wis L Rev 563. In Re Aircraft Disaster near Roselawn, Indiana, on October 31, 1994 the court took a different view, holding that availability of pre-impact fear damages was governed by the law of the deceased’s domicile, regardless of whether the claim was subject to the Warsaw Convention.

113

See KM Turezyn, “When Circumstances Provide a Guarantee of Genuineness: Permitting Recovery for Pre-Impact Emotional Distress” (1987) 28 BCL Rev 881.

114 See Benyon v Montgomery Cablevision Ltd Partnership 718 A 2d 1161 (Md 1998) and Smallwood v Bradford 720 A 2d 586 (Md 1998), where Maryland courts held that pre-impact emotional distress damages were available in such cases. In Benyon the court reviewed the authorities and noted that such damages had been awarded in non-aircraft accident cases in Georgia, Louisiana, Michigan, Nebraska, New York and Texas, though denied in Kansas, Massachusetts and Pennsylvania. 115 Hicks v Chief Constable of the South Yorkshire Police (unreported, Eng QBD, 31 July 1990) (Hidden J); Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690 (CA); Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 (HL). See A Unger, “Pain and Anger” (1992) 142 New LJ 394.

[6.190]

6 Attempts to Lower the Barrier

195

Hidden J, the English Court of Appeal and the House of Lords all rejected the claim. It was accepted that a person who through negligence was caused injuries that resulted in pain and suffering and loss of amenities had a cause of action that would survive for the benefit of that person’s estate.116 In the circumstances of this case, however, during the 30 minutes or so in which the deceased persons were crushed together before asphyxia resulted in death, they suffered fear, horror and acute mental anguish but no physical or psychiatric injury. If there was pain and suffering, it occurred only in the last few seconds before unconsciousness and death, and was really part of the dying process. In the words of Parker LJ in the Court of Appeal: Apprehension and fear are of themselves not compensatable, nor in my view are discomfort or shortness of breath by themselves. Anyone who regularly travels on the London Underground frequently suffers discomfort and shortness of breath from the press of bodies in overcrowded trains.117

Similar sentiments were expressed by Lord Bridge of Harwich in the House of Lords: It is perfectly clear law that fear by itself, of whatever degree, is a normal humane motion [sic] for which no damages can be awarded. Those trapped in the crush at Hillsborough who were fortunate enough to escape without injury have no claim in respect of the distress they suffered in what must have been a truly terrifying experience. It follows that fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim’s estate.118

The logic of this approach rests on the conclusion that the victims of the disaster suffered only mental distress, rather than some recognised injury for which they could be compensated. Putting aside the question of the defensibility of a rule that denies recovery for the sheer all-consuming terror caused by an appreciation of the impending end of one’s life, it is hard to see how, when many persons are negligently herded into a confined space and crushed to death, there is no actionable physical injury. Duration of discomfort has been afforded an undeserved prominence. The decision seems to pay insufficient regard to the victims of the tragedy and their families.

RECOVERY FOR SOMETHING LESS THAN RECOGNISABLE PSYCHIATRIC ILLNESS [6.190] While it seems clear that no common law jurisdiction outside the United States has endorsed recovery for pure emotional distress standing alone, there are isolated decisions from every jurisdiction in which courts have attempted to find some sort of via media. They have 116

Under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 (UK), s 1(1).

117

Hicks v Chief Constable of the South Yorkshire Police [1992] 1 All ER 690 at 693.

118

Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 at 69.

196

Part II: Mental Harm

[6.200]

attempted to endorse recovery for conditions that may not amount to a recognisable psychiatric illness but involve much more than mere grief or other forms of emotional distress.119

Australia [6.200] The Australian cases that suggest the possibility of recovery for something less than a recognisable psychiatric illness are few and far between. The older cases, at least, could be explained away as isolated and accidental departures from the ruling general principle. In South Australia in Brown v Mount Barker Soldiers’ Hospital Inc,120 a mother recovered for “shock, discomfort and inconvenience” consequent on being told of an accident in which her newborn baby had been burnt. If the case is viewed from the standpoint of the modern law it seems very doubtful whether the plaintiff suffered a recognisable psychiatric illness.121 In Swan v Williams (Demolition) Pty Ltd122 the majority of the New South Wales Court of Appeal accepted medical reports that the plaintiff had not suffered any psychiatric illness, yet granted relief on the basis that he had suffered more than ordinary grief.123 [6.210] More recently, however, Kirby J, when President of the New South Wales Court of Appeal, twice questioned the orthodox view limiting recovery to cases where proof of established psychiatric disorder exists. In Government Insurance Office v Best124 Mrs Best suffered severe orthopaedic, dental and cosmetic injuries when a car driven by her husband, in which she was a passenger, ran off the road and collided with a tree. Her husband was killed. Uncontested medical evidence established that Mrs Best developed severe depression and anxiety that six years after the accident had a marked incapacitating effect upon her. Experts stated that there were two inextricably linked causes for her depression, one related to the accident and her own injuries, the other related to the grief experienced on the loss of the husband. Clarke and Handley JJA ruled out recovery in respect of grief resulting from the death of the husband and 119

Some of the following discussion is based on NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 359–368.

120

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128. Note Millhouse J’s comments in Pibworth v Bevan M Roberts Pty Ltd (unreported, SASC, No 770 of 1986, 28 May 1992). 121

See PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 208 n 29. Piper J said (Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128 at 130–131): “As to damages, the direct physical consequences to her of the shock were not serious, but even the production of tears is a physical consequence and discomfort.” Significantly, the hospital already owed the plaintiff a duty by reason of accepting her into its care.

122

Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172.

123

Strictly the case may be authority only in relation to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) (as to which see [13.30]–[13.180]) but the court discusses the point by reference to the standard common law authorities. 124

Government Insurance Office v Best (1993) Aust Torts Rep 81-210.

[6.220]

6 Attempts to Lower the Barrier

197

reduced the general damages awarded by the trial judge accordingly. Kirby P dissented, observing: “The distinction drawn by law between compensation for grief (caused by the loss of a spouse in a car accident) and compensation for depression (caused by injuries suffered in the same accident) is highly artificial.”125 His Honour went on to comment that although the validity of this “rather unrealistic and highly arbitrary distinction” between psychological reaction caused by grief for the death of a spouse and the depression resulting naturally from a reaction to the trauma of the accident was not challenged in the case before him, “one day (if common law damages survive) it may need to be reconsidered”. [6.220] Kirby P returned to the issue in Coates v Government Insurance Office of New South Wales.126 The appeal concerned the dismissal of claims by two children for alleged psychiatric injury suffered on being informed of the death of their father in a car accident. His Honour observed: One might criticise the scarcely delineated distinction made between grief and suffering following tragic news and psychological or psychiatric injury. … Nineteenth century notions of psychological illness and an abiding suspicion of such claims (not so susceptible to objective scrutiny and determination) lurk in the cases to forbid recovery where prolonged grief is shown, extending beyond the norm deemed acceptable to our society. The changing composition of the Australian community and different cultural attitudes to the demonstration of profound grief, afford yet another reason for reconsidering this area of the law. To adhere to stereotypes expressed in terms of abnormal grief derived from England, may work an injustice upon Australian litigants for whom the norms are different and grief reaction more variable than was hitherto expressed to be the case.127

Later in his judgment he said: If it be the case that grief alone does not afford a basis for recovery by family members and others deeply distressed by the consequences of the wrong of a tortfeasor to someone in close relationship to them and if reasons of legal public policy restrain the expansion of a remedy to such persons, such policy scarcely operates to deny recovery in this case.128

For the purposes of the appeal before him and without committing himself, his Honour assumed that the law in Australia required proof of recognised psychiatric disorder. Clearly unconvinced of the sanctity of the limitation, Kirby P appears to have been comforted by his assessment that the damage in question satisfied the higher threshold.129 It seemed that in the right case and the right circumstances, his Honour might have been prepared to reject the traditional rule and allow recovery, presumably 125

Government Insurance Office v Best (1993) Aust Torts Rep 81-210 at 62,092.

126

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

127

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 12.

128

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 15.

129

Gleeson CJ and Clarke JA thought otherwise, with the result that the appeal was dismissed.

198

Part II: Mental Harm

[6.230]

modest, for mental or emotional distress or suffering incapable of classification as psychiatric disorder.130 [6.230] Subsequently, however, in Tame v New South Wales,131 Kirby J, now elevated to the High Court bench, combined with Gummow J in a comprehensive restatement of the law relating to liability for psychiatric injury that emphasised the central importance of the recognisable psychiatric illness requirement. Analysing the interests protected by this area of the law, their Honours rejected wider notions such as “peace of mind” that had led United States courts to allow recovery for the negligent infliction of emotional distress, and suggested that the relevant interest was limited to “nervous integrity”.132 Their Honours affirmed the leading statement of Windeyer J requiring “a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness”133 and, as noted at [6.10], held that “[i]n Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover”.134 The value of this requirement was that it made it unnecessary to impose other restrictions on the scope of liability for such harm, unlike the opposite American experience with pure emotional distress.135 Though the judgment makes no reference to Kirby J’s earlier judicial utterances, or to the English and Canadian authorities discussed at [6.250]–[6.320], it is clear that the High Court has now ruled on the issue and that, in Australia at any rate, further judicial development softening the psychiatric injury requirement is unlikely. [6.240] In the earlier case of Wilson v Horne,136 the Full Court of the Supreme Court of Tasmania was expressly asked to reconsider the type of damage necessary to sustain an action in negligence for exposure to trauma, but refused to lower the threshold. The issue was whether the action had been commenced within the limitation period. At the age of 25 the respondent developed post-traumatic stress disorder on the revival of memories of sexual assaults committed against her by her uncle, the appellant, when she was aged between five and 12. Prior to the onset of this psychiatric illness, the respondent had experienced abnormal sexual development and behavioural patterns during her teens consistent with earlier abuse but not diagnosable as a recognised psychiatric disorder. She

130 Note also Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 at 250–251 per Crispin J, who rejected the submission that claims for “mental anguish or stress” not amounting to or causing physical or psychiatric injury “could not possibly succeed”. 131

Tame v New South Wales (2002) 211 CLR 317.

132

Tame v New South Wales (2002) 211 CLR 317 at [168]–[171].

133

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394: see [4.30].

134

Tame v New South Wales (2002) 211 CLR 317 at [193].

135

Tame v New South Wales (2002) 211 CLR 317 at [193].

136

Wilson v Horne (1999) 8 Tas R 363.

[6.250]

6 Attempts to Lower the Barrier

199

was successful at first instance in establishing negligence.137 On appeal it was argued that the trial judge erred in law in ruling that the evidence supported that claim. He was said to have wrongly held that evidence of disorder was required before actionable damage sufficient to give rise to the accrual of the action could be said to have been sustained. He had not considered whether the respondent’s condition prior to the onset of post-traumatic stress disorder could be classified as more than de minimis and sufficient to give rise to the tort even if that condition did not amount to a recognisable disorder; there was clear evidence of compensable damage to the respondent’s development, personality and character prior to the diagnosis of post-traumatic stress disorder. Adopting the conventional approach, the Full Court disagreed, holding that the trial judge was correct in his conclusion that the respondent had not suffered injuries for which damages might be awarded in negligence until she was diagnosed with recognised illness in the form of post-traumatic stress disorder, the symptoms having become manifest on the release of her repressed memories.138 Actionable injury not having been sustained until 1994, s 5(1) of the Limitation Act 1974 (Tas) did not operate to bar her claim in negligence commenced in May 1996 even though the tortious conduct had concluded by 1980.139

England: “ordinary” shock [6.250] In England, there is only one decision where a court has attempted to award damages for something less than recognisable psychiatric injury — perhaps the most problematic decision falling into this category.140 Comyn J in Whitmore v Euroways Express Coaches Ltd141 137

Horne v Wilson [1998] TASSC 17; Horne v Wilson (No 2) [1998] TASSC 44.

138

Wilson v Horne (1999) 8 Tas R 363 at [14] per Cox CJ, at [23]–[31] per Wright J, at [42]–[52] per Evans J. Note also Gray v Motor Accident Commission (1998) 196 CLR 1, where the High Court held that an adolescent behavioural disorder caused by the defendant’s conduct was not a psychiatric illness and so did not give rise to a cause of action more than three years before the plaintiff issued a writ.

139

This conclusion was probably inevitable, given that the court was referred only to the statement of Lord Denning MR in Hinz v Berry [1970] 2 QB 40 at 42–43 and Australian dicta endorsing it. If the Full Court had been made aware of the English and Canadian authorities challenging traditional thought discussed at [6.250]–[6.320], the result might possibly have been different.

140

In the arbitrations pursuant to the Zeebrugge disaster settlement “pathological grief” (ie grief the extent and duration of which is in excess of the normal emotional reaction to trauma) was accepted as legal damage: see A v P & O Ferries (Dover) Ltd (The Independent, 5 May 1989); “Zeebrugge ten share £645,000”, The Times, 29 April 1989. Note the erroneous suggestion by Lord Steyn in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491 that “pathological grief” is not a recognised disorder. Although there is no specific entry in DSM-5, the condition has been held to qualify as a recognised disorder: see eg Vernon v Bosley (No 1) [1997] 1 All ER 577; Arrowsmith v Beeston (unreported, Eng CA, QBENF 97/0755/C, 18 June 1998). See also M Napier, “The Medical and Legal Trauma of Disasters” [1991] Medico-Legal Journal 157. 141

Whitmore v Euroways Express Coaches Ltd (The Times, 4 May 1984). See MA Jones, ““Ordinary Shock” — Thin Skull Rules OK?” (1985) 4 Litigation 114.

200

Part II: Mental Harm

[6.250]

drew a distinction between “ordinary” shock, which he considered did not need to be proved by medical evidence, and “psychiatric shock”, where such evidence was necessary. In this case the plaintiff and her husband were injured in a coach accident in France, the husband suffering very grave injuries. The plaintiff’s claim for physical injuries included a plea for relief both for the trauma and shock in respect of her own experiences and the immediate and continuing shock suffered as a consequence of her husband’s injuries. What is of interest is not that the court distinguished between the “profound shock” occasioned to the plaintiff by the injured husband’s state, for which damages were recoverable, and the worry, strain and distress suffered as a result of those injuries and their continuing debilitating effects, for which damages were not recoverable,142 but what it was prepared to include within the compensable category. The shock in question was not psychiatric in nature, but “shock in the ordinary, general, everyday meaning of the word and not in any medical or psychiatric sense”.143 Without making any reference to leading authorities such as McLoughlin v O’Brian,144 the not insignificant sum of £2,000 was awarded for something that amounted to more than emotional upset but less than medical incapacitation.145 No indication was given how this “ordinary shock” differed from grief or distress, merely that it was “a concept known to all of us” that was to be measured by reference to the evidence of the particular sufferer. It was not susceptible to medical proof and had to be decided by the judge himself or herself using common sense. The decision in this case was no doubt influenced by Comyn J’s expressed wish to judge damages claims in an ordinary, “down-to-earth” and realistic manner rather than subject them to legal technicalities, in an attempt to make litigation comprehensible to ordinary people who have suffered ordinary accidents. The reasoning behind it cannot be explained as an unconscious slip on Comyn J’s part, for his Lordship clearly appreciated the case’s uniqueness in involving “a shock, not psychiatric in character, that endured beyond the moment of impact”. However, it remains an isolated decision.146 142

Although Comyn J did express the view that the law is harsh in categorically excluding such emotions as recoverable heads of damages. On this issue see [6.20]–[6.60].

143

Note also Lutzkie v SAR 1974 (4) SA 396 (W) where, in an action for personal injuries, the plaintiff claimed, inter alia, for “surgical shock”. Trengove J rejected this, ruling that it was no different from that generally associated with the type of surgical treatment the plaintiff had received and that it was compensable, not as a separate item, but as part of the pain and suffering associated with the operation.

144

McLoughlin v O’Brian [1983] 1 AC 410.

145

Separate damages were awarded for the shock suffered in relation to her own experiences. These were subsumed in the £4,500 compensation for general damages.

146

Note Kralj v McGrath [1986] 1 All ER 54 where Woolf J analysed the plaintiff’s claim by utilising the traditional language of “nervous shock”. His Lordship makes no reference to “psychiatric illness” per se and it is not absolutely clear from the report that the plaintiff suffered such damage. In all probability, however, this was the case. It seems that, unlike

[6.260]

6 Attempts to Lower the Barrier

201

Canada: “scar on the mind” [6.260] The Australian and English decisions considered so far are exceptional and may perhaps be dismissed as an aberration. However, the Canadian courts have issued a direct challenge to the traditional orthodoxy in this regard. These decisions originated in the outright rejection by a British Columbia first instance judge of the recognisable psychiatric illness requirement as stated by Lord Denning MR in Hinz v Berry.147 In McDermott v Ramadanovic Estate148 a young girl saw her parents die in the front seat of their car. The question was whether she could recover for the impact that witnessing this event had on her mind. The medical evidence was that she had not suffered a recognised psychiatric disorder. Notwithstanding this, Southin J ruled that the emotional pain, as distinct from grief, sounded in damages and awarded her $20,000 compensation.149 She queried: [W]hat is the logical difference between a scar on the flesh and a scar on the mind? If a scar on the flesh is compensable although it causes no pecuniary loss, why should a scar on the mind be any the less compensable? In both cases, there are serious difficulties of assessment. That has not been allowed to stand in the way of the courts making awards for non-pecuniary losses. Nor has it prevented awards for pain caused by physical injury which is … a “bad memory”. And, too, pain from a physical injury is not the result of a “recognisable psychiatric illness”. It is the result of the interplay of tissue, nerves and brain. But to the sufferer, what is the difference between physical pain and emotional pain? Indeed, the former may be easier to bear, especially with modern analgesics, than the latter. Therefore, with the greatest of respect, I reject Lord Denning’s limitation (if he intended it as a limitation of law) of recovery to cases of “recognisable psychiatric illness”.150

Following her elevation to the British Columbia Court of Appeal, Southin JA reiterated these views in Rhodes v Canadian National Railway:151 An argument can be made for the proposition that to award damages as I did in [McDermott v Ramadanovic Estate], is, as a matter of policy, wrong. There are Comyn J, Woolf J was not consciously expanding recovery in this context (although he clearly was in other respects, on which see [12.510]) and that, like so many other judges, he merely found it easier to talk in “nervous shock” terms. 147

Hinz v Berry [1970] 2 QB 40 at 42–43: see [4.30].

148

McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45.

149

Compare this with the $5,000 damages given for her physical injuries. Although counsel had agreed on an award of $5,000 as general damages it was open to the court to consider its appropriateness since the plaintiff was still an infant and $20,000 was accordingly added for the emotional scar.

150

McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45 at 53. Note the view of Lamperson J in Cady v Anderson [1992] BCJ No 2555 that Southin J’s decision was not authoritative because it was delivered two days after the judgment of the British Columbia Court of Appeal in Beecham v Hughes (1988) 52 DLR (4th) 625, which reaffirmed the need for recognisable psychiatric illness.

151

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 289.

202

Part II: Mental Harm

[6.270]

all sorts of people throughout the world who have gone through the horrors of war and somehow got on with their lives without compensation for the terrible memories with which they have to live. In my opinion, the question of policy is better answered not by saying that scars on the flesh are compensable but scars on the mind are not, but by making all awards for scars on the mind, including scars said to lead to “psychiatric illness”, conventional, even as damages for pain and suffering have been made conventional.

[6.270] In Cox v Fleming152 these two decisions were relied on by Ryan J of the Supreme Court of British Columbia to justify a similar award for “emotional scarring”. A young man was killed when the car in which he was a passenger crashed into a tree. His death was not instantaneous. It occurred after many hours of struggle with gross and disfiguring head injuries. This increased the distress of his parents who were in constant attendance at the hospital. After the young man’s death, his father underwent drastic and permanent personality change. The damage was allegedly the direct result of being required to view and identify his son at the hospital. He claimed for “nervous shock” against the driver and owner of the car. Ryan J drew a distinction between the father’s emotional suffering and his grief. She observed that the line drawn in the authorities between grief and actionable “nervous shock” was extremely problematic, involving as it did a seemingly artificial dissection of intense human suffering. It was said that a direct and immediate impact upon the father’s mind, inflicted by the accident itself, must be shown, rather than a traumatic reaction to the impact that the accident had upon another. The medical evidence did not clearly state the mechanism or source by which the father’s injury had been inflicted. It had not been established on a balance of probabilities that the condition was a direct result of seeing the aftermath of the accident. His loss was such that he would have probably suffered whether he had seen his son or not. But the added horror of seeing his son’s disfigured body in the hospital had added a further and emotionally scarring dimension to his current condition which sounded in $20,000 damages. That dimension represented the sole compensable facet of the claim for “nervous shock”.153

152

Cox v Fleming (1993) 13 CCLT (2d) 305, appeal dismissed in Cox v Fleming (1995) 15 BCLR (3d) 201.

153

Note also Flett v Maxwell [1996] BCJ No 1455, where the plaintiff claimed damages for loss of the opportunity to arrange her father’s funeral in a timely manner due to failure by the hospital to notify the next of kin. On an application to strike out, Burdett Prov Ct J ruled that there was a triable issue. The judge accepted that there was no recovery for mere grief but said, referring to the “emotional scar” principle of McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45, that “additional or aggravated grief” was akin to an emotional shock. The “scar on the mind” doctrine was also referred to by Meredith J in Oliver v Ellison (unreported, BCSC, Docket C843242, 16 March 1998), a claim for emotional distress resulting from breach of contract. On appeal in Oliver (Guardian ad litem of) v Ellison (2001) 90 BCLR (3d) 101, Southin J was prepared to rule in favour of the claim, but made no mention of the “scar on the mind” doctrine.

[6.290]

6 Attempts to Lower the Barrier

203

[6.280] An Ontario judge relied on Southin J’s comments in McDermott v Ramadanovic Estate154 to grant modest relief for emotional distress consequent on a cemetery’s negligent loss of urns containing the ashes of the plaintiff’s parents. In Mason v Westside Cemeteries Ltd155 Molloy J said: I agree with the observations and conclusions of Southin J in McDermott v Ramadanovic Estate …. Although the plaintiff’s emotional suffering did not amount to a psychiatric condition, it was nevertheless real and more painful to her than the physical injuries she sustained. Southin J observed that damages are awarded for physical scars even if there is no ongoing pain or associated pecuniary loss. She then stated …: “But what is the logical difference between a scar on the flesh and a scar on the mind? If a scar on the flesh is compensable although it causes no pecuniary loss why should a scar on the mind be any the less compensable?” I agree. And I would add that it seems equally illogical to me that mental distress damages should be recoverable in a case based on contract but not in a negligence case. I recognize the undesirability of lawsuits based on nothing more than fright or mild upset. However, in my view the more appropriate way to control these frivolous actions is by limiting recovery based on foreseeability (and perhaps proximity or directness) and by awarding limited damages and imposing cost sanctions in cases of a trivial nature.156

[6.290] This approach was in turn endorsed by Cosgrove J in Vanek v Great Atlantic & Pacific Co of Canada.157 Damages were awarded for mental distress to a father and a mother who suffered “anxiety” (in the lay sense of the term) after their young daughter swallowed contaminated grape juice packed in her school lunch. The girl recovered $2,000. She had been transferred to hospital by the parents, released after examination, and returned to school the following day. The evidence suggested that she was most unlikely to suffer any long-term health consequences. This notwithstanding, the father, who was predisposed to physical and psychiatric injury, suffered chronic anxiety “detracting from his ability to enjoy some normalcy in his living habits”.158 His distress flowed directly from the incident involving his daughter, which also contributed to a debilitating angina attack. Although the father suffered no psychiatric disorder, Cosgrove J was persuaded by Molloy J’s reasoning, described as of “unassailable logic and good sense”,159 to award him $12,500 for his moderate (albeit chronic) “mental and emotional distress”. The sum is not insignificant when it is appreciated that it represented more than six times what the child primary victim received and that it compensated the secondary victim for a state short of recognised illness. The mother was 154

McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45.

155

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

156

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361 at 380.

157

Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304.

158

Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 at [21].

159

Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 at [11].

204

Part II: Mental Harm

[6.300]

awarded, inter alia, $2,500 for her “anxiety” and “distress” despite the absence of any supportive medical opinion.160 [6.300] The issue of the damage necessary to ground relief in trauma received further consideration in Anderson v Wilson.161 This case concerned the certification of a class action in negligence proceedings. Three members of the Ontario Divisional Court were not prepared to endorse the sentiments of Molloy J in Mason v Westside Cemeteries Ltd162 or to sanction a shift in the law of that Province to allow a large group of patients and dependents who underwent blood tests for hepatitis B following possible infection from EEGs conducted at five clinics to recover for mental distress. The absence of an allegation or evidence of the infliction of recognised disorder as a consequence of receiving notice by post of possible infection from a health department and taking the blood tests was considered to be fatal to the claims. No actionable injury had been sustained. However, their Lordships did not rule out reconsideration of the current law in litigation other than cases involving thousands of claimants such as the large class action before them: It may be that the law, when ripe for change, will permit such claims in the future. But that kind of judicial legislation should take place incrementally on a case by case basis. Judge-made law should evolve in a way that permits the experience of each case to be considered in the next case until the correct path of the law becomes clear. This case by case experiential evolution cannot take place in a mass class nervous shock proceeding with over 10,000 claimants. There are enough complicated issues to manage in this case already without turning it into an experimental laboratory for fundamental change in the law of tort.163

The case was appealed to the Ontario Court of Appeal,164 which was prepared to venture further. Unlike the Divisional Court, the Court of Appeal referred to Cosgrove J’s decision in Vanek v Great Atlantic & Pacific Co of Canada,165 as well as that of Molloy J in Mason v Westside Cemeteries Ltd,166 to support the unanimous conclusion that the lower court had erred in excluding from the class action those patients who were fearful of 160

Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 at [18]. See, however, the decision of the Ontario Court of Appeal: Vanek v Great Atlantic & Pacific Co of Canada (1999) 180 DLR (4th) 748, dealt with at [6.320]. In Boudreau v Benaiah (1998) 154 DLR (4th) 650 another Ontario first instance judge awarded damages against a criminal lawyer for serious depression brought about by the negligent handling of his client’s defence to a charge of child abduction, without reference to the earlier case law. It appears that although Greer J referred repeatedly to the “mental distress” suffered by the plaintiff, his condition had deteriorated to such an extent that it was possible to classify it as a psychiatric disorder.

161

Anderson v Wilson (1998) 156 DLR (4th) 735.

162

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

163

Anderson v Wilson (1998) 156 DLR (4th) 735 at 745.

164

Anderson v Wilson (1999) 175 DLR (4th) 409.

165

The Ontario Court of Appeal’s decision in Anderson v Wilson preceded its decision in Vanek v Great Atlantic & Pacific Co of Canada (1999) 180 DLR (4th) 748. 166

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

[6.310]

6 Attempts to Lower the Barrier

205

contracting hepatitis B but not psychiatrically compromised as a consequence. This class was recertified. That the contrary view in relation to the nature of damage had been endorsed by the House of Lords was not determinative of the position in Ontario. Carthy JA (with whom the other members of the court agreed) said: Given the uncertain state of the law on tort relief for nervous shock, it is not appropriate that the court should reach a conclusion at this early stage and without a complete factual foundation. It cannot be said, in this case, that it is plain and obvious that the claim for the tort of mental distress standing alone will fail. On the assumption that a legal obligation may exist, this segment of the class proceeding is ideally suited for certification. There are many persons with the same complaint, each of which would typically represent a modest claim that would not itself justify an independent action. In addition, the nature of the overall claim lends itself to aggregate treatment because individual reactions to the notices would likely be similar in each case – fear of a serious infection and anxiety during the waiting period for a test result. Thus, in my view, the claim in tort for mental distress for this group of persons should proceed as the preferable mode of bringing these claims forward.167

[6.310] It is also significant that the Supreme Court of Canada recognised that psychological integrity is a right to which citizens are entitled as part of their right to security of the person embodied in s 7 of the Canadian Charter of Rights and Freedoms. In New Brunswick (Minister of Health and Community Services) v G(J),168 an appeal concerning the refusal of government to fund wardship proceedings, Lamer CJ (with whom a majority of the Court agreed) said: This Court has held on a number of occasions that [t]he right to security of the person protects “both the physical and psychological integrity of the individual” …. For a restriction of security of the person to be made out, then, the impugned state action must have a serious and profound effect on a person’s psychological integrity. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.169

It is not a large step from recognition of a constitutional entitlement to peace of mind to recognition of the case for common law protection from significant disturbance to mental and emotional harmony incapable of classification as psychiatric disorder. 167

Anderson v Wilson (1999) 175 DLR (4th) 409 at [18]–[19]. This decision was followed in Fakhri v Wild Oats Markets Canada Inc [2004] BCCA 549 and Rideout v Health Labrador Corporation [2005] NLTD 116. 168 169

New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46.

New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46 at [58], [60]. The test for violation of s 7 was not met in Kelly v Attorney General of Canada (2007) 266 Nfld & PEIR 112. Note also the position in Ireland, where an action for damages for breach of constitutional rights may lie in a case where the plaintiff suffers distress falling short of cognisable psychiatric injury: see Ogieriakhi v Minister for Justice and Equality (No 2) [2014] IEHC 582.

206

Part II: Mental Harm

[6.320]

[6.320] However, the significance of this line of authorities was somewhat reduced by the decision of the Ontario Court of Appeal in Vanek v Great Atlantic & Pacific Co of Canada Ltd,170 given some months after the decision of the same court in Anderson v Wilson171 and the Supreme Court’s opinion in the New Brunswick case.172 In Vanek, the Ontario Court of Appeal specifically reaffirmed the need for recognisable psychiatric illness. It held that psychiatric injury to the father was not reasonably foreseeable in the circumstances of the case, and that it had therefore been unnecessary for the judge to deal with the damage issue.173 In Graham v MacMillan,174 the British Columbia Court of Appeal also accepted that the weight of authority supported the need for a recognised psychiatric illness (but held that the anxiety suffered by the plaintiff in this case would in any event have failed to meet the threshold required for the lesser “scar on the mind” standard).

Canada: the Mustapha decision [6.330] The decisions discussed at [3.360]–[3.410] form part of the essential background to the important judgment of the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd,175 given by McLachlin CJ, which is notable for a passage that some have interpreted as an attempt to redefine the level of disorder that has to be established for success in a psychiatric injury claim.176 As will be recalled, the plaintiff in this case alleged that he had suffered a major depressive disorder as a result of seeing a fly in a bottle of water supplied by the defendant. McLachlin CJ held that Mr Mustapha had sustained sufficient damage to sustain an action in negligence, provided that the other elements of the tort were made out: On the findings of the trial judge, supported by medical evidence, Mr Mustapha developed a major depressive disorder with associated phobia and anxiety. 170

Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748; application for leave to appeal to Supreme Court of Canada dismissed in Vanek v Great Atlantic & Pacific Co of Canada Ltd [2000] 2 SCR xv. 171

Anderson v Wilson (1999) 175 DLR (4th) 409.

172

New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46.

173

In Yearworth v North Bristol NHS Trust [2010] QB 1, an action for the loss of frozen sperm which the defendant had negligently allowed to thaw, the English Court of Appeal allowed a claim in bailment for damages for mental distress. As part of a wide-ranging review of the authorities in a number of jurisdictions, Lord Judge CJ (at [59]) referred with approval to the decision of Molloy J in Mason v Westside Cemeteries (1996) 135 DLR (4th) 361, without noting the later decision of the Ontario Court of Appeal in Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748, which had reversed the decision of Cosgrove J in that case, which had relied heavily on the decision of Molloy J in Mason v Westside Cemeteries — an illustration of the perils of incomplete knowledge of overseas authorities. For another example, see [15.160]–[15.220].

174

Graham v MacMillan (2003) 10 BCLR (4th) 397.

175

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

176

Parts of the following discussion are based on P Handford, “Recovery for Psychiatric Illness in Canada: A Tale of Two Cases” (2011) 19 Tort L Rev 18.

[6.340]

6 Attempts to Lower the Barrier

207

This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law. It follows that Mr Mustapha has established that he sustained damage.177

It was strictly unnecessary for her Ladyship to say more, but she prefaced this finding with the following general observations about the issue of damage in psychiatric injury cases: Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. The distinction between physical and mental injury is elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page v Smith [1996] 1 AC 155 (HL) at p 188: “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law.” [Emphasis added.] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v Berry [1970] 2 QB 40 (CA) at p 42; Page v Smith at p 189; Linden and Feldthusen, [Canadian Tort Law, Markham, Ontario: LexisNexis, 8th ed, 2006] at pp 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v Great Atlantic & Pacific Co of Canada (1999) 48 OR (3d) 228 (CA): “Life goes on” (para 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.178

[6.340] Analysis of this passage suggests that her Ladyship was simply attempting to encapsulate the well-known distinction between conditions that reach the level of recognisable psychiatric illness and those that fall short of that level and have usually been characterised as mere emotional distress179 — an interpretation reinforced by reference to the well-known words in Hinz v Berry.180 However, this distinction was expressed in a slightly unusual way: there is no reference to psychiatric injury as such, but instead it is said that “psychological injury” is a form of personal injury, a sentiment probably influenced by the quotation from Page v 177

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [10].

178

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [8]–[9].

179

Though there is scope for differences of view here: see eg L Bélanger-Hardy, “Reconsidering the “Recognizable Psychiatric Illness” Requirement in Canadian Negligence Law” (2013) 38 Queen’s LJ 583, arguing that by not using the term “recognisable psychiatric illness” the Supreme Court invited courts to adopt a lower threshold.

180

Hinz v Berry [1970] 2 QB 40.

208

Part II: Mental Harm

[6.350]

Smith;181 and “psychological disturbance that rises to the level of personal injury” is distinguished from “psychological upset”. [6.350] It seems improbable that this brief passage was intended to create new law, especially given the finding that Mr Mustapha’s disorder did meet the standard required for personal injury, which means that anything said about the status of lesser standards could be no more than obiter dictum. However, three years later, in a case before the Ontario Court of Appeal, Healey v Lakeridge Health Corporation,182 this passage became the foundation for an argument that McLachlin CJ had lowered the barrier and that one group of plaintiffs had suffered “psychological injury” that had become compensable as a result of Mustapha v Culligan of Canada Ltd.183 [6.360] The story in Healey v Lakeridge Health Corporation184 began when, sometime in 2003, two patients at the Lakeridge Health Corporation, a public hospital, were diagnosed with tuberculosis. Lakeridge, as it was obliged to do, informed the local Public Health Department, which notified over 4,000 persons who had come into contact with the two infected patients, recommending they be tested for TB. Mr Healey and Mr Horgan tested positive, and began class actions on behalf of themselves, a second group consisting of those who had been exposed to risk but were uninfected, and a third group that consisted of relatives of the uninfected persons claiming for loss of companionship and guidance under Ontario’s Family Law Act.185 The argument on behalf of the second group was that the notices advising them that they should be tested for possible exposure to TB caused them mental anxiety, suffering and distress. The case came before Perell J on motions by the defendant to dismiss. The major issue for the court was whether the harm suffered by the plaintiffs in the second group, which was described as “psychological injury”, was harm of a kind recognised by the law as deserving of compensation. Perell J found for the defendant on several grounds: there was no duty of care; there was no compensable damage; and if contrary to this finding there was compensable damage, it was too remote.186 The Ontario Court of Appeal convened a court of five judges to hear this important issue. It dismissed the appeal. Contrary to the approach taken by the trial judge, the court, in a joint judgment authored by Sharpe JA, found that there was a duty of care, because the relationship of the parties was one where a duty had been recognised to exist according to previous authorities.187 The question whether the plaintiffs had sustained compensable damage was not part of the duty question. However, as in 181

Page v Smith [1996] AC 155.

182

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248.

183

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

184

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248.

185

Family Law Act, RSO 1190, c F-3, s 61.

186

Healey v Lakeridge Health Corporation 2010 ONSC 725.

187

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [32]–[33].

[6.380]

6 Attempts to Lower the Barrier

209

the court below, the appellants failed to surmount this particular hurdle. There was no need to proceed further: “As the issues of remoteness, causation and aggregate damages are only reached if the appellants establish an injury that meets the threshold for a compensable claim, it is not strictly necessary … to consider those issues.”188 [6.370] The evidence led on behalf of the second group of plaintiffs (the “uninfected persons”) at first instance included affidavits from a number of members of the group (it was common ground that they were the most seriously affected) describing a variety of symptoms they had experienced as a result of the TB notification and awaiting the results of their tests: depression, fear, shock, anxiety, anger, frustration, shame, outrage, distress and sleeplessness.189 As Perell J’s first instance judgment notes, the court also heard expert medical evidence to the effect that an ordinary person who received notification of exposure to TB and tested negative “would experience substantial psychological injury or illness”.190 Adopting the language of McLachlin CJ in Mustapha v Culligan of Canada Ltd,191 the doctor testified that these injuries would be “serious and prolonged (not a minor or transient upset) and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”.192 He forecast that 30–40% of the uninfected persons would suffer a psychiatric illness as defined in DSM-IV (in other words, a recognisable psychiatric illness) and another 30–40% would have experienced “psychological injury”.193 This medical evidence was contested by the defendant’s expert witness. However, as Perell J said, in the end it was unnecessary to resolve this difference: the key issues were the identification of the threshold that the law required, and whether the mental distress actually suffered by the plaintiffs was serious enough to get over this threshold.194 The plaintiffs’ contention was that Mustapha had lowered the bar, and so it was no longer necessary to establish a recognisable psychiatric illness; the defendant argued that McLachlin CJ had done no such thing, and that everything said in the passage quoted at [6.330] was consistent with the accepted Hinz v Berry195 view. [6.380] Perell J at first instance and Sharpe JA giving the judgment of the Ontario Court of Appeal both analysed the previous Ontario case law going back to Duwyn v Kaprielian,196 where the Court of Appeal had 188

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [67].

189

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [42].

190

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [119].

191

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

192

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [119].

193

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [120]–[121].

194

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [137].

195

Hinz v Berry [1970] 2 QB 40.

196

Duwyn v Kaprielian (1978) 94 DLR (3d) 424.

210

Part II: Mental Harm

[6.390]

clearly accepted the recognisable psychiatric illness test laid down by Lord Denning in Hinz v Berry.197 Apart from the first instance judgments of Molloy J in Mason v Westside Cemeteries Ltd198 and Cosgrove J in Vanek v Great Atlantic & Pacific Co of Canada199 — the latter subsequently reversed by the Ontario Court of Appeal200 — no Ontario court had departed from this standard (and Perell J stressed that Molloy J had been chiefly concerned with bailment and compensation for mental distress in contract, rather than tort).201 Decisions about certification in class actions, such as Anderson v Wilson,202 were of little assistance since they simply dealt with the question whether the plaintiffs’ cases met the “plain and obvious” test entitling them to proceed. It was the same in British Columbia: though Southin JA in McDermott v Ramadanovic Estate203 and other cases had championed the “scar on the mind” approach, the British Columbia Court of Appeal in Graham v MacMillan204 had confirmed that “the weight of authority supports a recognized psychiatric illness as a condition for liability”.205 Sharpe JA also noted that this standard had been upheld by the House of Lords206 and the High Court of Australia207 and had been referred to with approval by Iacobucci J in the Supreme Court of Canada.208 [6.390] It was apparent, therefore, that the plaintiffs’ argument could succeed only if they were able to persuade the court that McLachlin CJ’s statement had brought about a change in the law as previously understood. In this they were unsuccessful. Sharpe JA said: When the passage the appellants rely on from Mustapha is read in the light of this body of jurisprudence and scholarly writing, I find it impossible to imagine that McLachlin CJ could have intended her brief description of the type of psychological injuries that qualify as being compensable to change a well-established, though at times contested, rule. She explicitly stated, at para 9, that she “did not purport to define compensable injury exhaustively”. As I read Mustapha, McLachlin CJ was simply trying to explain in non-technical language the level to which psychological injury had to rise to be eligible for legal compensation. Had she intended to make a fundamental change to the

197

Hinz v Berry [1970] 2 QB 40.

198

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

199

Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304.

200

Vanek v Great Atlantic & Pacific Co of Canada (1999) 175 DLR (4th) 409.

201

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [58].

202

Anderson v Wilson (1998) 156 DLR (4th) 735.

203

McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45.

204

Graham v MacMillan (2003) 10 BCLR (4th) 397.

205

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [51].

206

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 491 per Lord Steyn.

207

Tame v New South Wales (2002) 211 CLR 317 at [193]–[194] per Gummow and Kirby JJ.

208

Odhavji Estate v Woodhouse [2003] 3 SCR 263 at [40]–[41].

[6.410]

6 Attempts to Lower the Barrier

211

law, she almost certainly would have discussed the authorities and the policy issues at stake in a more extensive manner.209

His Lordship also adopted the observations of Perell J in the court below. In addition to commenting on the obiter status of the passage in question and the unlikelihood that the Chief Justice would attempt to make such an important change in the law in this manner, Perell J said: [I]n any event, if her comments are taken to be more than obiter and are an authoritative statement of the law, all she decided was that: (a) personal injury damages include psychological injury; but (b) not all psychological upset constitutes personal injury damages. Justice McLachlin expressly left open – she said: “I would not purport to define” - the definition of compensable psychological injury except to say “that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. … Quite simply, minor and transient upsets do not constitute personal injury and hence do not amount to damage.”210

[6.400] Perell J also commented that the citation of Hinz v Berry211 — and, it might be added, the Ontario Court of Appeal in Vanek v Great Atlantic & Pacific Co of Canada212 — suggested that McLachlin CJ was equating a psychological disturbance that reached the level of personal injury with a psychiatric illness recognisable to the medical profession. Both judges also referred to subsequent cases such as Kotai v Queen of the North213 that lent support to the view that Mustapha v Culligan of Canada Ltd214 had left the recognisable psychiatric illness requirement undisturbed. Sharpe JA added that even if Mustapha had changed the law, the evidence fell short of demonstrating that the appellants’ sufferings were sufficiently grave to qualify under the suggested lower standard. Though he made it clear that he was not saying that the possibility of changing the test should be foreclosed once and for all, in the light of his conclusion about the plaintiffs’ evidence, this was not the case in which to do it.215 [6.410] Healey v Lakeridge Health Corporation216 therefore affirms that the recognisable psychiatric illness standard is still the accepted position in Canada.217 It joins a respectable line of appellate authority to that effect and confirms that occasional judgments, mostly at first instance, lending support to a wider view do not represent orthodoxy. The plaintiffs’ 209

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [61].

210

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [63].

211

Hinz v Berry [1970] 2 QB 40.

212

Vanek v Great Atlantic & Pacific Co of Canada (1999) 175 DLR (4th) 409.

213

Kotai v Queen of the North (2009) 70 CCLT (3d) 221.

214

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

215

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [64].

216

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248.

217

This view was affirmed in Saadati v Moorhead (2015) 390 DLR (4th) 63; note also Dhillon v Jaffer 2014 BCCA 215.

212

Part II: Mental Harm

[6.420]

arguments based on the brief passage from the judgment of McLachlin CJ always appeared unlikely to succeed: it seems clear that the Chief Justice was attempting to reflect the standard position, while avoiding the standard terminology. The resulting controversy in Healey prompts the observation that such attempts often cause more problems than they solve. In particular, the term “psychological injury” has seldom been helpful:218 the two cases under examination provide an object lesson in this respect, because it is clear that the term can be taken to mean either a state measuring up to the recognisable psychiatric illness standard or one falling short of it. The American jurisprudence confirms that the “emotional distress” measure favoured by courts in the United States is similarly capable of varying interpretations,219 and the same might be said of “mental harm”, though the Australian Civil Liability Acts make it clear that there is no liability in the absence of a recognised psychiatric illness.220

New Zealand and elsewhere [6.420] One of the most thoughtful contributions to the debate about lowering the barrier is the dissenting judgment of Thomas J in the New Zealand Court of Appeal case of van Soest v Residual Health Management Unit.221 The majority ruled that the plaintiffs could not recover because they had not been able to show the existence of a recognisable psychiatric disorder or illness. Thomas J, however, outlined a basis for restatement of the common law relating to mental injury claims, not only abandoning various policy restrictions in favour of untrammelled foreseeability but also modifying the damage requirement. While retaining a general rule that damages should not be available in the absence of a recognisable psychiatric illness, a plaintiff should not be prevented from recovering “if he or she can … demonstrate that, although not identified as a recognisable psychiatric illness, their mental suffering is of the order, or approaching the order, of a psychiatric illness and therefore plainly outside the range of ordinary human experience”.222 This conclusion was arrived at on the basis of the authorities discussed in this chapter. The fact that the preferred test is stated in the negative is important. In his Honour’s view: The outcome of the restriction to recognisable psychiatric illness is to place the categories of mental and emotional harm for which damages may be recovered in the hands of psychiatry. Whatever that discipline chooses to identify and name as a psychiatric illness becomes the law’s boundaries for damages in this area. Yet, there is no necessary relationship between the fundamental concept of reasonable foreseeability and psychiatry’s classification of psychiatric illnesses. A negligent wrongdoer may be able to reasonably foresee mental and 218

See [4.20].

219

See [5.60].

220

See [2.270].

221

van Soest v Residual Health Management Unit [2000] 1 NZLR 179.

222

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [83].

[6.450]

6 Attempts to Lower the Barrier

213

emotional harm to a third person; he or she will not contemplate a particular or any psychiatric illness. This restriction, therefore, is simply an arbitrary means of limiting the number of claimants even though the wrongdoers may owe a duty of care to a particular claimant and be able to reasonably foresee the harm which eventuated. Psychiatry is given the last word.223

Instead, according to Thomas J, there should be a different test, that should exclude rather than include: damages should be recoverable for mental and emotional suffering unless it is of the kind that is part of ordinary human experience.224 [6.430] Finally, we can note the observation of Lord Prosser in McLelland v Greater Glasgow Health Board,225 a decision of the Extra Division of the Court of Session in Scotland, which allowed a claim by parents against a hospital for negligence resulting in the birth of a child with Down’s Syndrome. Lord Prosser, referring to the statement of Lord Bridge in McLoughlin v O’Brian,226 said that he was not persuaded of the usefulness of the distinction between normal emotional reactions and physical, mental or nervous injury, and that there might be many types of suffering between normal emotions and positive psychiatric illness.

Conclusion [6.440] Interestingly, the developments in each jurisdiction reviewed in this chapter have generally proceeded in isolation from similar happenings elsewhere.227 The Australian cases, for example, have not made reference to the important line of Canadian authority deviating from the traditional rule requiring recognisable psychiatric injury. In the words of Windeyer J, in fields in which the common law is still in course of development, “[c]ourts … must act in company and not alone. Analogies in other courts, and persuasive precedents as well as authoritative pronouncements, must be regarded.”228 This comment should perhaps have been heeded by the English Law Commission whose 1998 report, without reference to the growing body of authority from elsewhere, concluded that the sole English case229 was an aberration.230 [6.450] The cases reveal a cross-jurisdictional dissatisfaction with what is arguably an unnecessarily severe limitation on the range of permissible claims, and show different courts independently feeling their way 223

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [100].

224

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [97].

225

McLelland v Greater Glasgow Health Board 2001 SLT 446 at [11].

226

McLoughlin v O’Brian [1983] 1 AC 410 at 431: see [4.30].

227

Thomas J’s judgment in van Soest v Residual Health Management Unit [2000] 1 NZLR 179 is a conspicuous exception.

228

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 396.

229

Whitmore v Euroways Express Coaches Ltd (The Times, 4 May 1984).

230

Law Commission, Liability for Psychiatric Illness (No 249, 1998), para 2.3; see also Law Commission, Liability for Psychiatric Illness (Consultation Paper No 137, 1995), para 2.4.

214

Part II: Mental Harm

[6.460]

forward to what may perhaps be a more sensible stopping point. Certainly, insistence on recognisable psychiatric injury may exclude some deserving claimants: in many of the cases discussed in this chapter, something was suffered that, while short of medically proved psychiatric harm, was considerably more serious and impacting than commonplace grief or sorrow. Broken minds have often been greeted with a scepticism that contrasts sharply with the sympathy generated by broken bones. To many, the fact that an injury does not manifest itself overtly or exhibit outward signs of its effects casts serious doubts on its existence. Demanding that there be damage of a recognisable psychiatric nature is one way in which the law has erected safeguards perceived to be necessary against unauthentic and illegitimate claims. One wonders how many of the pre-1970 plaintiffs actually suffered recognisable psychiatric illnesses. It is open to question whether, for example, Mrs Dulieu231 or Mrs King232 would have satisfied the threshold test had they brought their claims today.233 Whether or not additional levels of compensable harm are desirable or merely introduce unwanted complications in an already complex and difficult area of the law, the line of authority discussed in this chapter does represent a significant variation from the conventional position. [6.460] There is now powerful academic support for rejecting the recognisable psychiatric illness criterion and adopting a different test. This issue has been addressed by Des Butler234 in Australia, Harvey Teff235 and Rachael Mulheron236 in England, and Louise BélangerHardy237 in Canada. It is significant that so many leading psychiatric 231

Dulieu v White & Sons [1901] 2 KB 669: see [2.40], [24.30].

232

King v Phillips [1953] 1 QB 429: see [7.350], [10.40].

233

Occasionally, more modern cases provide examples of doubtful recognisable psychiatric illness, such as Kardan v Bartholdt (1995) 83 OAC 158, where headaches, tightness in the neck and shoulders, “nervous” feelings and disturbed sleep was enough to satisfy the Ontario Court of Appeal that the requisite damage had been suffered. Another example is Smith v Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285, where the plaintiff received £3,000 for “shock and depression” caused by the immediate onset of tetraplegia following an operation. The defendant had failed to warn her of the risks, but it was not established that she would have elected not to have the operation had she received proper advice. There is no confirmation that the shock and depression amounted to a recognisable psychiatric illness.

234

D Butler, Damages for Psychiatric Injuries (Federation Press, Annandale, New South Wales, 2004), pp 132–147. See also NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 359–373.

235

H Teff, Causing Psychiatric and Emotional Harm (Hart Publishing, Oxford, 2009), pp 171–186. 236

R Mulheron, “Rewriting the Requirement for a “Recognized Psychiatric Injury” in Negligence Claims” (2012) 32 OJLS 77.

237

L Bélanger-Hardy, “Reconsidering the “Recognizable Psychiatric Illness” Requirement in Canadian Negligence Law” (2013) 38 Queen’s LJ 583; L Bélanger-Hardy, “Thresholds of Actionable Mental Harm in Negligence: A Policy-Based Analysis” (2013) 36 Dalhousie LJ 103.

[6.460]

6 Attempts to Lower the Barrier

215

injury scholars have subjected this issue to sustained inquiry, all the more so since between them their work focuses on three leading common law countries, suggesting that the cross-jurisdictional dissatisfaction referred to at [6.450] is not confined to the courts. These writers note the judicial developments referred to in this chapter; they also focus on the problems of over-reliance on the DSM guidelines as a means of establishing the existence of recognisable psychiatric injury. It is pointed out, for example, that the DSM classification is a diagnostic tool and was never intended for legal use, and that the qualifications built into DSM are routinely overlooked; that there is dispute over whether the classifications are the essential reference point for recognisable psychiatric illness or simply an indicator; and that changing diagnostic criteria may result in widening the scope of the conditions that fall into this category.238 Teff, Butler and Mulheron all in different ways suggest that the recognisable psychiatric injury requirement should be replaced by some sort of intermediate standard, one that is not subject to the problems of the accepted test but provides a higher threshold than “mere distress”. Teff recommends that the recognisable psychiatric illness criterion should be replaced by a new threshold of “moderately severe mental or emotional harm”;239 Butler proposes the adoption of a formula that takes cognisance of current psychiatric knowledge, so requiring evidence of a “failure to restore psychiatric homeostatic equilibrium” that is such as to adversely affect the plaintiff’s normal enjoyment of life; and Mulheron argues for a “grievous mental injury” threshold.240 Bélanger-Hardy’s thesis is a little different. Based on her analysis of the Canadian Supreme Court’s decision in Mustapha v Culligan of Canada Ltd,241 she argues that the law should keep only the lower threshold of “no compensation for mere upsets”. Consistently with the view of Thomas J in van Soest v Residual Health Management Unit,242 she suggests that the scope of compensable injury should be stated negatively: damages should be available for standalone mental harm unless such harm is of the kind that is part of ordinary human experience.243

238

See eg R Mulheron, “Rewriting the Requirement for a “Recognized Psychiatric Injury” in Negligence Claims” (2012) 32 OJLS 77 at 86–95; L Bélanger-Hardy, “Thresholds of Actionable Mental Harm in Negligence: A Policy-Based Analysis” (2013) 36 Dalhousie LJ 103 at 111–116.

239

H Teff, Causing Psychiatric and Emotional Harm (Hart Publishing, Oxford, 2009), p 178.

240

R Mulheron, “Rewriting the Requirement for a “Recognized Psychiatric Injury” in Negligence Claims” (2012) 32 OJLS 77 at 107.

241

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

242

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [97].

243

L Bélanger-Hardy, “Thresholds of Actionable Mental Harm in Negligence: A PolicyBased Analysis” (2013) 36 Dalhousie LJ 103 at 131.

216

Part II: Mental Harm

[6.470]

[6.470] It was suggested in the first edition of this book244 that the line of authority on lowering the recognisable psychiatric illness barrier reviewed in this chapter might well influence future development, particularly in the light of the diagnostic difficulties that may arise in assessing some post-traumatic responses.245 In Australia, at least, this may now require reassessment in the light of the judgment of Gummow and Kirby JJ in Tame v New South Wales246 reaffirming the importance of the recognisable psychiatric illness requirement as a key foundation of negligence liability for psychiatric injury. Though Gummow and Kirby JJ did not make their statement in the context of the authorities discussed here — which were not cited247 — but rather in the process of rejecting the United States preference for the much lower threshold of emotional distress, it is likely that this leading judgment in the leading case will now cut off any attempt to advocate that recovery should be possible for “ordinary shock”, a “scar on the mind” or anything else short of a recognisable psychiatric illness. This may be an acceptable price to pay for a decision that has rejected the other restrictive rules that have characterised the development of United States law. [6.480] There is no real suggestion that the English courts are likely to progress in the direction of relaxing the psychiatric harm rule, given the extremely conservative approach of the House of Lords in recent years. In Canada too, the interesting line of development inspired by judges such as Southin J in British Columbia and Molloy J in Ontario may now have been stifled by the Supreme Court decision in Mustapha v Culligan of Canada Ltd.248 However, the academic literature suggests that the last word may not yet have been said on this subject. If at some time in the future there is to be a movement to relax the current damage threshold, it may be Canada that will have to provide the inspiration.

244

NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), p 21. See also NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 359–373.

245

See [5.300].

246

Tame v New South Wales (2002) 211 CLR 317 at [168]–[171], [193]: see [4.40].

247

Note, however, the earlier judgments of Kirby P discussed at [6.210]–[6.220].

248

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

PART III Liability for Mental Harm 7.

Duty and Other Elements of Liability .................................................................................... 219

8.

Normal Fortitude ....................................................................................................................... 281

9.

Circumstances of the Case: Relationship to Accident Victim .............................................. 311

10. Proximity of Time and Space .................................................................................................. 351 11. Means of Communication ......................................................................................................... 391 12. Sudden Shock ............................................................................................................................. 457 13. Statutory Extensions and Restrictions .................................................................................... 497 14. Secondary Victims: Variations on the Traditional Theme ................................................... 537 15. Where the Tortfeasor is the Primary Victim ......................................................................... 545 16. Defences ...................................................................................................................................... 567 17. Damages ...................................................................................................................................... 591

Chapter 7

Duty and Other Elements of Liability [7.10] INTRODUCTION ............................................................................................................... 219 [7.40] DUTY OF CARE ................................................................................................................. 222 [7.40] Duty at common law and under statute ........................................................................ 222 [7.100] General principles of duty .............................................................................................. 225 [7.100] The neighbour principle ............................................................................................ 225 [7.130] More recent attempts to state a general test .......................................................... 227 [7.180] The current position ................................................................................................... 235 [7.230] Application of duty principles in mental harm cases ................................................ 240 [7.290] Content or scope of duty ................................................................................................ 244 [7.310] FORESEEABILITY ............................................................................................................ 245 [7.310] Introduction ....................................................................................................................... 245 [7.320] The plaintiff must be foreseeable ................................................................................... 246 [7.390] The kind of damage must be foreseeable .................................................................... 250 [7.450] Page v Smith ...................................................................................................................... 255 [7.530] BREACH AND CAUSATION ........................................................................................ 260 [7.540] Breach .................................................................................................................................. 260 [7.560] Causation ............................................................................................................................ 261 [7.600] REMOTENESS OF DAMAGE ........................................................................................ 263 [7.600] General principles ............................................................................................................. 263 [7.620] Remoteness principles as applied to psychiatric injury cases .................................. 265 [7.690] Relationship with duty of care rules ............................................................................. 271

INTRODUCTION [7.10] According to the conventional analysis of the tort of negligence, the tort has three elements — duty of care, breach, and resulting damage. This tripartite division probably over-simplifies the problem, in that each of the three elements is simply a heading under which a number of complex problems fall to be analysed. One much-quoted analysis of the threefold test, that of Deane J in a leading psychiatric injury decision, Jaensch v Coffey,1 has the merit of making plain the fact that each of the three elements encompasses more than a single issue: 1

Jaensch v Coffey (1984) 155 CLR 549 at 586.

220

Part III: Liability for Mental Harm

[7.20]

[T]he components of an action in negligence … are a duty of care, determined by reference to the related tests of reasonable foreseeability and proximity, breach of that duty of care, and damages. In the context of subsequent development and refinement, those components can be stated, in a form appropriate to the circumstances of the present case, as being: (i) a relevant duty owed by the defendant to the plaintiff to take reasonable care resulting from the combination of (a) reasonable foreseeability of a real risk that injury of the kind sustained by the plaintiff would be sustained either by the plaintiff, as an identified individual, or by a member of a class which included the plaintiff, (b) existence of the requisite element of proximity in the relationship between the parties with respect to the relevant act or omission and the injury sustained, and (c) absence of any statutory provision or other common law rule (eg, that relating to hazards inherent in a joint illegal enterprise) which operates to preclude the implication of such a duty of care to the plaintiff in the circumstances of the case; (ii) breach of that duty of care in that the doing of the relevant act or the doing of it in the manner in which it was done was, in the light of all relevant factors, inconsistent with what a reasonable man would do by way of response to the foreseeable risk …; and (iii) injury (of a kind which the law recognises as sounding in damages) which was caused by the defendant’s carelessness and which was within the limits of reasonable foreseeability.

This statement must now be read subject to the major qualification that Australian courts no longer identify proximity of relationship as an essential component of duty of care; however, it remains clear that the duty element usually requires more than mere foreseeability. This matter is further pursued at [7.170] and [7.220]. [7.20] It is clear that some scholars, and some judges, have found that the various issues do not fit satisfactorily into the tripartite division, and have preferred to abandon it in favour of a more comprehensive and revealing exposition of the issues involved. An important recent analysis — important particularly because of the way in which the judge then used it to classify psychiatric injury issues2 — is that of McLachlin CJ, on behalf of the Supreme Court of Canada, in the leading case of Mustapha v Culligan of Canada Ltd.3 According to her Ladyship: A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.4 2

See [7.750].

3

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [3].

4

McLachlin CJ avoids referring to the second element as “breach of a duty of care”. As to the reasons for preferring to refer to this element as concerned with the standard of care required to discharge the duty, see K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), pp 418–419. Cause in law (part of the fourth element) has been referred to by a variety of names: “remoteness of damage” is perhaps the most usual, but in the United States it is usually referred to as “proximate cause”. The Australian Civil Liability Acts now refer to “scope of liability”: see [7.580].

[7.30]

7 Duty and Other Elements of Liability

221

The plaintiff in this case overcame all these hurdles except the last: he failed to show that his damage was caused in law by the plaintiff’s negligence. Even more elaborate analyses are possible, adopting fivefold and even sixfold divisions.5 One influential contribution, that of RWM Dias, was even more radical in the way it reclassified the various elements, identifying the following ingredients of liability: (1) The existence in law of a duty of care situation, that is, one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the type of person to which the plaintiff belongs by the type of person to which the defendant belongs is actionable. (2) Careless behaviour by the defendant, that is, that it fails to measure up to the standard and scope set by law. (3) A causal connection between the defendant’s careless conduct and the damage. (4) Foreseeability that such conduct would have inflicted on the particular plaintiff the particular kind of damage of which he complains. As long as these four requirements are satisfied, the defendant is liable in negligence. Only then do the remaining considerations arise, namely, (5) the extent of the damage attributable to the defendant; and (6) the monetary estimate of that extent of damage.6

The compilation of such lists of prerequisites to legal accountability in negligence is not to be taken as suggesting that every criterion will be in issue in every case. Most commonly, the existence of one or more of the requirements will not even be the subject of argument. Judges generally confine themselves to the contentious aspects of the liability equation raised by the particular circumstances of the action before them. [7.30] In this chapter we are mainly concerned with issues of duty of care, including foreseeability, since psychiatric injury problems are most often analysed as involving questions of duty. However, it will also be necessary to consider the relationship between duty and remoteness issues, and whether there is scope for an alternative classification of psychiatric injury issues under the heading of remoteness of damage. 5

See eg C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), p 122, suggesting a fivefold division into duty, breach, resulting injury, remoteness of damage, and absence of prejudicial conduct by the injured party; AM Linden and B Feldthusen, Canadian Tort Law (9th ed, LexisNexis, Ontario, 2011), pp 114–116, discussing suggested fourfold and fivefold divisions, and adopting a sixfold division along the same lines as Fleming except that “resulting injury” is separated into the two elements of damage and causation; DW Robertson, “An American Perspective on Negligence Law”, in S Deakin, A Johnston and B Markesinis, Tort Law (6th ed, Clarendon Press, Oxford, 2008), p 286, suggesting that in United States law “the plaintiff cannot succeed without satisfying the five elements of duty, breach of duty, factual causation, legal causation and damages”.

6

See RWM Dias (gen ed), Clerk and Lindsell on Torts (16th ed, Sweet & Maxwell, London, 1989), para 10.02 (and note also MR Brazier (gen ed), Clerk and Lindsell on Torts (17th ed, Sweet & Maxwell, London, 1995), para 7-04). A statement in this form also appeared in earlier editions of this text in which Dias was involved: see eg AL Armitage (ed), Clerk and Lindsell on Torts (13th ed, Sweet & Maxwell, London, 1969), para 854. See also RWM Dias and BS Markesinis, Tort Law (2nd ed, Oxford University Press, Oxford, 1988), pp 59–60. Later editions of these works in which Dias was not involved do not contain statements in this form, but continue to be influenced by this analysis.

222

Part III: Liability for Mental Harm

[7.40]

DUTY OF CARE Duty at common law and under statute [7.40] It is first necessary to set out the basic rules as to duty of care as they apply in psychiatric injury cases at common law — and, because six Australian jurisdictions have now enacted statutory provisions on mental harm, under statute. In essence, [7.40]–[7.90] contain little more than a brief recapitulation of the essential principles discussed in Chapter 2,7 but a short summary is necessary to form a foundation for the ensuing discussion about the application of general duty principles to psychiatric injury cases. [7.50] At common law, so far as Australia is concerned, the applicable principles are found in the judgments of the High Court in the conjoined appeals heard in Tame v New South Wales.8 Prior authorities had held that though reasonable foreseeability of psychiatric injury was a necessary prerequisite to establishing a duty of care, it was not of itself sufficient. Perhaps the most important additional factor, in secondary victim cases at any rate, was the existence of a close relationship between the injured party and the plaintiff. Some saw this as a particularisation of the foreseeability test, others as a policy limitation.9 In addition, there were other limitations that were clearly separate from foreseeability issues, whether compendiously described as “proximity” issues, or viewed simply as policy requirements. Thus, although questioned in some lower court cases, it seemed that there were requirements of “direct perception”, that is, that the plaintiff had to be proximate to the original injury, in space and time, either viewing it in person or being present at the aftermath, whether at the scene or later in hospital during the period of immediate post-accident treatment; and that the plaintiff perceive the happening with his or her own senses, rather than via communication from someone else. There were further requirements, not limited to secondary victim cases: the need for “sudden shock”, and that the injury be foreseeable to a person of normal fortitude. [7.60] Much of this was changed by the High Court decision in Tame v New South Wales.10 The High Court held that the issue of duty in psychiatric injury cases was primarily determined by whether psychiatric injury was reasonably foreseeable, and that direct perception and sudden shock, while relevant to that determination, were not separate prerequisites of liability. The High Court also held, by majority, that normal fortitude was not a separate requirement, but merely part of the foreseeability test. However, the decision does not go so far as to say that reasonable foreseeability of psychiatric injury is the only determinant of 7

Where more detailed references may be found supporting the various points made.

8

Tame v New South Wales (2002) 211 CLR 317.

9

See [7.50]. See also C Witting, “A Primer on the Modern Law of “Nervous Shock”” (1998) 22 MULR 62 at 79–80. 10

Tame v New South Wales (2002) 211 CLR 317.

[7.80]

7 Duty and Other Elements of Liability

223

duty: reasonable foreseeability of harm, and the nature of the relationship between the parties, are both relevant as criteria of responsibility. This proposition was stated in this form by Gleeson CJ and endorsed in various ways by the other judges.11 Subsequent High Court cases have provided further elaboration and examples of these principles. In Gifford v Strang Patrick Stevedoring Ltd12 both Gleeson CJ and Gummow and Kirby JJ in their joint judgment recognised that the defendant employer owed a duty to take care not to cause psychiatric injury to the family of an employee killed in an accident at work, and McHugh J outlined in more general terms the circumstances in which a neighbour relationship might exist between primary and secondary victims for psychiatric injury purposes. Though more recent High Court decisions are concerned with the interpretation of the Civil Liability Act provisions, the joint judgment in Wicks v State Rail Authority (NSW)13 made it clear that the legislation had to be understood against the background of the common law of negligence,14 and in King v Philcox15 Nettle J took the opportunity to re-examine the common law position, returning to the concept of proximity, not to exclude particular cases on policy grounds but to direct attention to features of the relationships between the parties and the factual circumstances of the case, and to assist judicial evaluation of the factors to be weighed in determining whether the defendant owed the plaintiff a duty of care. [7.70] This, of course, is to summarise the position in Australia. Among common law jurisdictions, Australia is in a minority. As shown in Chapter 3, most jurisdictions still hold that a duty of care cannot be recognised unless factors additional to foreseeability are present — most importantly, a sufficiently close relationship, but also other requirements such as proximity of time and space, personal perception and sudden shock. The details vary from one jurisdiction to another. In England, for example, the Court of Appeal has recently affirmed five common “control mechanisms” that limit the class of persons who can recover damages for psychiatric injury in secondary victim cases: a close relationship of affection between the claimant and the primary victim; that the injury arose from sudden shock; presence at the scene or the immediate aftermath; that the injury arose from witnessing the death, danger or injury to the primary victim; and a close temporal connection between the event and the claimant’s perception of it.16 [7.80] Under the Civil Liability Acts in force in the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and 11

See [2.170].

12

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269.

13

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

14

See [7.90].

15

King v Philcox (2015) 89 ALJR 582.

16

Taylor v A Novo (UK) Ltd [2014] QB 150: see [3.300]–[3.310].

224

Part III: Liability for Mental Harm

[7.90]

Western Australia, there is now a statutory statement of duty of care.17 Though the drafting varies from State to State, New South Wales is broadly representative. Section 32(1) of the Civil Liability Act 2002 (NSW) states that: A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

Further subsections proceed to set out circumstances that are relevant to the application of the section as respects pure mental harm and consequential mental harm. These provisions reinstate the normal fortitude principle as a separate test (as will be further discussed in Chapter 8) but the other pre-2002 control mechanisms are not re-imposed, instead being listed as relevant circumstances, in a manner broadly consistent with the High Court’s judgment in Tame v New South Wales.18 However, in some States additional requirements have been imposed19 — except in cases where there is a close family relationship. These provisions (discussed in Chapter 13) take the position in those States a little closer to the law in Australia prior to 2002, or the present-day law in other countries. [7.90] Finally, it needs to be remembered that the High Court in Wicks v State Rail Authority of New South Wales20 confirmed that the common law has a continuing role to play even in States where the legislative provisions are in force.21 The court pointed out that the statutory provisions on duty are not a complete statement of the law, because they do not identify positively when a duty exists, but instead are cast negatively, saying that a duty does not exist unless particular conditions are satisfied. This meant that the sections had to be understood against the background of the common law. The correct approach appears to be to identify whether a duty exists at common law and then determine whether it is negatived by the statute — for example, because psychiatric injury to a person of normal fortitude is not foreseeable in the circumstances of the case.

17

See [2.280]–[2.310].

18

Tame v New South Wales (2002) 211 CLR 317. The circumstances of the case which are to be taken into account in pure mental harm cases, and the common law principles on which they are based, are discussed in other chapters: sudden shock (Chapter 12); witnessing at the scene (Chapters 10–11); the nature of the relationship between the plaintiff and any person killed, injured or put in peril (Chapter 9); and whether or not there is a pre-existing relationship between the plaintiff and the defendant (Chapters 18–22).

19

See [2.320].

20

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

21

See [2.450]–[2.470].

[7.110]

7 Duty and Other Elements of Liability

225

General principles of duty The neighbour principle [7.100] When, in the first half of the 19th century, negligence was finally recognised as an independent tort,22 the need for limitations on liability quickly became apparent. It is in this context that the duty of care element originated.23 Its earlier history is shrouded in obscurity, but it seems clear that it was recognised by the 1860s, and possibly even as early as 1842, when the privity requirement was imposed to limit the tort liability of manufacturers and the like to persons with whom they were in a contractual relationship.24 Policy considerations, and in particular the need to keep negligence liability within proper bounds, have thus always been the most important raison d’être of the duty concept. [7.110] In the 19th and early 20th centuries the duty requirement was essentially a collection of particular rules governing particular negligence situations, not reducible to any kind of general principle. Nevertheless, over the past 150 years, a number of attempts have been made to find some general principle of duty that would either explain or supersede all the particular rules. The first such attempt, that of Brett MR in Heaven v Pender,25 suggested that a duty would arise whenever a person was by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would recognise that a failure to use ordinary care and skill would cause danger of injury to the other’s person or property. This proposition, which in essence reduced duty to no more than “a simple test of attributed foresight”,26 was quickly recognised as too wide, not least by Brett MR himself. In Le Lievre v

22

The classical account of the history of negligence is PH Winfield, “The History of Negligence in the Law of Torts” (1926) 42 LQR 184. For accounts incorporating more recent historical scholarship, see eg JH Baker, An Introduction to English Legal History (4th ed, Butterworths, London, 2002), Ch 23; D Ibbetson, A Historical Introduction to the Law of Obligations (Oxford University Press, Oxford, 1999), Ch 9. Note also P Handford, “Intentional Negligence – A Contradiction in Terms?” (2010) 32 Syd LR 29 at 33–39. It is probable that negligence only became an independent tort with the decision in Williams v Holland (1833) 10 Bing 112; 131 ER 848 which allowed an action for unintentional harm to be brought either in trespass or in case: see MJ Prichard, “Trespass, Case and the Rule in Williams v Holland” [1964] CLJ 234; SFC Milsom, “Historical Foundations of the Common Law” (2nd ed, Butterworths, London, 1981), pp 392–400; Baker, pp 409–413; Ibbetson, pp 155–163.

23

The most well-known historical account of duty is PH Winfield, “Duty in Tortious Negligence” (1934) 34 Col L Rev 41.

24

Winterbottom v Wright (1842) 10 M & W 109; 152 ER 402.

25

Heaven v Pender (1883) 11 QBD 503 at 509. The plaintiff, a ship’s painter, was injured when scaffolding supplied by the defendant dock owner collapsed. His claim was allowed by Cotton and Bowen LJJ based on established rules of occupiers’ liability.

26

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 410 per Lord Oliver of Aylmerton.

226

Part III: Liability for Mental Harm

[7.120]

Gould,27 he said that his statement had to be limited to situations where there was a degree of physical proximity between the defendant and the persons or property affected. However, 50 years later, Lord Atkin in Donoghue v Stevenson28 returned to the problem. Echoing the sentiments of Brett MR, he said: [I]n English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it as such or treat it as in other systems as a species of “culpa”,29 is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.30

Taking his cue from the biblical account of the lawyer’s question that led to the telling of the parable of the good Samaritan,31 Lord Atkin continued: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. 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.

[7.120] This remains the most enduring of all the attempts to state a general test of duty, but it has had a chequered career.32 Pockets of initial resistance can be found,33 but its seminal nature and influence on the modern law of negligence was soon recognised. Though it was sometimes 27

Le Lievre v Gould [1893] 1 QB 491 at 497 per Lord Esher MR (formerly Sir Baliol Brett MR), at 502 per Bowen LJ, at 504 per AL Smith LJ. See also Heaven v Pender (1883) 11 QBD 503 at 516 per Cotton LJ, at 517 per Bowen LJ.

28

Donoghue v Stevenson [1932] AC 562.

29

The element of fault in the Roman law of delict.

30

Donoghue v Stevenson [1932] AC 562 at 580.

31

See Luke 10: 25–37.

32

See eg RFV Heuston, “Donoghue v Stevenson in Retrospect” (1957) 20 MLR 1; RFV Heuston, “Donoghue v Stevenson: A Fresh Appraisal” [1971] CLP 37; JC Smith and P Burns, “Donoghue v Stevenson: The Not-So-Golden Anniversary” (1983) 46 MLR 147; AM Linden, “The Good Neighbour on Trial: A Fountain of Sparkling Wisdom” (1983) 17 UBC L Rev 67; JC Smith and P Burns, “The Good Neighbour on Trial: Good Neighbours Make Bad Law” (1983) 17 UBC L Rev 93; P Handford, “The Snail’s Antipodean Adventures” [2013] Jur Rev 315; L Klar, “Is Lord Atkin’s Neighbour Principle still Relevant to Canadian Negligence Law?” [2013] Jur Rev 357; J Edelman, “Fundamental Errors in Donoghue v Stevenson” (2014) 39 Aust Bar Rev 160.

33

See eg Farr v Butters Bros & Co [1932] 2 KB 606 at 613–614 per Scrutton LJ; Haynes v G Harwood & Sons [1935] 1 KB 146 at 167–168 per Roche LJ.

[7.130]

7 Duty and Other Elements of Liability

227

seen as a self-sufficient general test of duty in negligence,34 for many years the predominant judicial attitude was that it was too wide to serve as anything but a general yardstick against which potential new duties could be measured,35 and that the real importance of Donoghue v Stevenson36 was in the recognition that a manufacturer of products owed a duty to the ultimate consumer and the rejection of the privity of contract fallacy adopted 90 years before.37 However, in the 1970s the neighbour principle became the basis of new attempts to generalise a test of duty. More recent attempts to state a general test [7.130] The first announcement of a new era was Lord Reid’s suggestion in Home Office v Dorset Yacht Co Ltd38 that the time had come to recognise that the neighbour principle ought to apply unless there was some justification or valid explanation for its exclusion.39 This statement led Lord Wilberforce in Anns v Merton London Borough Council40 to formulate a two-stage test of duty. He suggested that one should first ask whether, as between the defendant and the plaintiff, there was a “sufficient relationship of proximity or neighbourhood, such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter”. If so, there would be a prima facie duty of care. It was then necessary to consider whether there were “any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise”.41

34

For English cases see eg Clay v A J Crump & Sons Ltd [1964] 1 QB 533; Lee Cooper Ltd v CH Jeakins & Sons Ltd [1967] 2 QB 1; for Australian cases see eg Thompson v Bankstown Corporation (1953) 87 CLR 619; Rich v Commissioner of Railways (NSW) (1959) 101 CLR 135; Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274; Voli v Inglewood Shire Council (1963) 110 CLR 74. 35

See eg Deyong v Shenburn [1946] KB 227 at 233 per du Parcq LJ. Note also Old Gate Estates Ltd v Toplis [1939] 3 All ER 209, where Wrottesley J held that the neighbourhood principle was confined to carelessness which results in danger to life, limb or health.

36

Donoghue v Stevenson [1932] AC 562.

37

See especially Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 at 524–525 per Lord Devlin; Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1060 per Lord Diplock; Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 at 239–240 per Lord Keith of Kinkel.

38

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1027.

39

Note also Lord Morris of Borth-y-Gest at 1034 and Lord Pearson at 1054, affirming the view that the neighbour principle had the status of a rule of law, subject only to exceptions based on particular justifications or policy grounds. Compare the view of Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1060.

40

Anns v Merton London Borough Council [1978] AC 728.

41

Anns v Merton London Borough Council [1978] AC 728 at 751–752.

228

Part III: Liability for Mental Harm

[7.140]

[7.140] For a few years, the “Anns two-step”42 was much in vogue as a general test of duty,43 and was the catalyst for significant expansions of liability in a number of directions,44 not least in Anns v Merton London Borough Council45 itself, which confirmed that local authorities could be held liable for negligent building approvals that allowed defective buildings to be constructed. Anns was utilised not only by English courts46 but also those in Australia,47 Canada,48 New Zealand49 and Ireland.50 However, it was not long before cracks began to appear in the Anns general principle, just as they had done in the dwellings that were the subject of the proceedings in that case. Starting with the High Court of

42

See M Davies, “Negligently Caused Economic Loss” (1985) 16 UWAL Rev 209 at 216.

43

One example of its application in psychiatric injury cases is McLoughlin v O’Brian [1983] 1 AC 410, in the leading judgment of Lord Wilberforce himself at 420–421. See also McLoughlin v O’Brian [1981] QB 599 at 604–605 per Stephenson LJ.

44

In particular Ross v Caunters [1980] Ch 297 (liability of solicitors to persons other than their clients); Schiffahrt & Kohlen GmbH v Chelsea Maritime Ltd [1982] QB 481; The Nea Tyhi [1982] 1 Lloyd’s Rep 606 (liability to buyer under cif contract before property passes — a doctrine now repudiated by Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785); Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 (liability of manufacturers for financial loss suffered by consumers — a decision now virtually distinguished out of existence: see eg Tate & Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509; Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1986] AC 1; Muirhead v Industrial Tank Specialities Ltd [1986] QB 507; Simaan General Contracting Co v Pilkington Glass Ltd (No 2) [1988] QB 758; Greater Nottingham Co-operative Society Ltd v Cementation Piling & Foundations Ltd [1989] QB 71; D & F Estates Ltd v Church Commissioners for England [1989] AC 177; Murphy v Brentwood District Council [1991] 1 AC 398; Department of the Environment v Thomas Bates & Son Ltd [1991] 1 AC 499).

45

Anns v Merton London Borough Council [1978] AC 728.

46

Eg Batty v Metropolitan Property Realisations Ltd [1978] QB 554; Yianni v Edwin Evans & Sons [1982] QB 438; Acrecrest Ltd v WS Hattrell & Partners [1983] QB 260; Tate & Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509; P Perl (Exporters) Ltd v Camden London Borough Council [1984] QB 342; Inland Revenue Commissioners v Hoogstraten [1985] QB 1077; Hill v Chief Constable of West Yorkshire [1988] QB 60.

47

Eg L Shaddock & Associates Pty Ltd v Parramatta City Council (1978) 38 LGRA 23; Wyong Shire Council v Shirt (1980) 146 CLR 40 at 44 per Mason J; Sutherland Shire Council v Heyman [1982] 2 NSWLR 618; Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Clarke v Shire of Gisborne [1984] VR 971; Hackshaw v Shaw (1984) 155 CLR 614; Sasin v Commonwealth (1984) 52 ALR 299; Robertson v Swincer (1989) 52 SASR 356. 48

Pugliese v National Capital Commission (1977) 79 DLR (3d) 592; Barratt v Corporation of North Vancouver [1980] 2 SCR 418; Diversified Holdings Ltd v The Queen in right of British Columbia (1982) 143 DLR (3d) 529; Baird v The Queen in right of Canada (1983) 148 DLR (3d) 1. For the current position in Canada, see [7.180].

49

Scott Group v McFarlane [1978] 1 NZLR 553; Takaro Properties Ltd v Rowling [1978] 2 NZLR 314; Mount Albert Borough Council v Johnson [1979] 2 NZLR 234; Allied Finance & Investments Ltd v Haddow & Co [1983] NZLR 22; Gartside v Sheffield, Young & Ellis [1983] NZLR 37; Meates v Attorney-General [1983] NZLR 308; Morton v Douglas Homes Ltd [1984] 2 NZLR 548; Brown v Heathcote County Council [1986] 1 NZLR 76; Stieller v Porirua City Council [1986] 1 NZLR 84. For the current position in New Zealand, see [7.180].

50

Siney v Dublin Corporation [1980] IR 400. For the current position in Ireland, see [7.180].

[7.140]

7 Duty and Other Elements of Liability

229

Australia in Sutherland Shire Council v Heyman,51 the courts began to question the idea of a duty that applied unless there was some valid reason for its exclusion, particularly if it was founded solely on foreseeability — though whether issues other than this were relevant at the first stage of the inquiry remained the subject of dispute.52 In Sutherland Shire Council v Heyman, where the facts were similar to Anns, the High Court rejected the idea that local authorities, and thus ultimately ratepayers, should be held responsible for defective building.53 Subsequent decisions likewise dissented from the Anns general principle.54 The English courts, too, eventually turned against Anns. The first case to call the Anns test into question was Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd,55 where Lord Keith of Kinkel cautioned against treating Lord Wilberforce’s words as definitive.56 Subsequent decisions of the House of Lords57 and the Privy Council58 took up the view that no single general principle could provide a practical test applicable to every situation, a process completed by the decision of the House of Lords in Caparo Industries plc v Dickman59 which seems to mark the final rejection of Lord Wilberforce’s test. Murphy v Brentwood District

51

Sutherland Shire Council v Heyman (1985) 157 CLR 424.

52

For a range of differing interpretations see Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 440 per Gibbs CJ, at 477 per Brennan J, at 506 per Deane J; Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785 at 815–816 per Lord Brandon of Oakbrook; Takaro Properties Ltd v Rowling [1986] 1 NZLR 22 at 57 per Woodhouse J, at 73 per Somers J; Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 at 191–192 per Lord Keith of Kinkel. See generally JA Smillie, “Principle, Policy and Negligence” (1984) 11 NZULR 111.

53

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 440 per Gibbs CJ, at 477 per Brennan J, at 506–508 per Deane J.

54

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 367 per Brennan J; Gala v Preston (1991) 172 CLR 243 at 262 per Brennan J. For decisions of State courts adopting the approach in Sutherland Shire Council v Heyman (1985) 157 CLR 424 see eg Parker v Housing Trust (1986) 41 SASR 493; Parramatta City Council v Lutz (1988) 12 NSWLR 293; Casley-Smith v FS Evans (1989) Aust Torts Rep 80-227; Opat v National Mutual Life Association of Australasia Ltd [1992] 1 VR 283; Curran v Greater Taree City Council (1992) Aust Torts Rep 81-152.

55

Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210.

56

Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1985] AC 210 at 240–241. 57

Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1986] AC 785; Curran v Northern Ireland Housing Co-ownership Association Ltd [1987] AC 718; CBS Songs v Amstrad plc [1988] AC 1013; Hill v Chief Constable of West Yorkshire [1989] AC 53. Note also the English Court of Appeal decisions in Investors in Industry Commercial Properties Ltd v South Bedfordshire District Council [1986] QB 1034; Muirhead v Industrial Tank Ltd [1986] QB 507; Jones v Stroud District Council [1986] 1 WLR 1141; Jones v Department of Employment [1989] QB 1. 58

Candlewood Navigation Corporation Ltd v Mitsui OSK Lines Ltd [1986] AC 1; Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175; Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80; Rowling v Takaro Properties Ltd [1988] AC 473; Davis v Radcliffe [1990] 1 WLR 821. 59

Caparo Industries plc v Dickman [1990] 2 AC 605.

230

Part III: Liability for Mental Harm

[7.150]

Council60 completed the demise of Anns by overruling the decision itself and all subsequent decisions that had imposed liability based on the reasoning in that case.61 [7.150] In Australia, in place of the Anns v Merton London Borough Council62 test, an expanded concept of “proximity”63 emerged and for a few years held sway as the general determinant of duty endorsed by the High Court of Australia. Its period of dominance essentially coincides with the period during which Deane J was a member of the court: he was appointed in June 1982 and left to become Governor-General in November 1995. The new formulation of this notion was first outlined by him in Jaensch v Coffey64 as a response to the proposition that reasonable foreseeability could be a sufficient test of duty.65 Going back to the neighbour principle, his Honour suggested that Lord Atkin, by saying that a neighbour was a person who is “so closely and directly affected by my act that I ought reasonably to have [him or her] in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”, was accepting that the formulation of a duty of care merely in terms of reasonable foreseeability would be too wide unless it were limited by the notion of proximity.66 He saw proximity as the factor that unified all the particular rules that had been laid down across the wide range of individual duty situations. Proximity was a flexible concept: It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of 60

Murphy v Brentwood District Council [1991] 1 AC 398. See also Department of the Environment v Thomas Bates & Son Ltd [1991] 1 AC 499. On these developments see eg R Cooke, “An Impossible Distinction” (1991) 107 LQR 46; IND Wallace, “Anns Beyond Repair” (1991) 107 LQR 228; J Stapleton, “Duty of Care and Economic Loss: A Wider Agenda” (1991) 107 LQR 249; D Howarth, “Negligence after Murphy: Time to Rethink” [1991] CLJ 58; M Giles and E Szyszczak, “Negligence and Defective Buildings: Demolishing the Foundations of Anns?” (1991) 11 LS 85. 61

Dutton v Bognor Regis Urban District Council [1972] 1 QB 373, the precursor to Anns, was also overruled.

62

Anns v Merton London Borough Council [1978] AC 728.

63

This term has a long history. Its birth can probably be attributed to the judgment of Lord Esher MR in Thomas v Quartermaine (1887) 18 QBD 685 at 688.

64

Jaensch v Coffey (1984) 155 CLR 549.

65

See also his closely related judgment in Sutherland Shire Council v Heyman (1985) 157 CLR 424 (decided a few months later) at 495–496.

66

Jaensch v Coffey (1984) 155 CLR 549 at 579. For other expressions of a similar view in psychiatric damage cases see McLoughlin v O’Brian [1983] 1 AC 410 at 420 per Lord Wilberforce; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 250 per Macfarlane JA, at 252–253 per Wallace JA, at 295–296 per Taylor JA (Wood JA concurring); Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 396–397 per Lord Keith of Kinkel, at 402 per Lord Ackner, at 410 per Lord Oliver of Aylmerton. For similar statements in other cases see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 51 per Deane J; San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 368–369 per Brennan J; Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175 at 191–192 per Lord Keith of Kinkel.

[7.150]

7 Duty and Other Elements of Liability

231

the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship of the particular act or cause of action and the injury sustained. … The identity and relative importance of the considerations relevant to an issue of proximity would obviously vary in different classes of case and the question whether the relationship is “so” close “that” the common law should recognise a duty of care in a new area or class of case is, as Lord Atkin foresaw, likely to be “difficult” of resolution in that it may involve value judgments on matters of policy and degree. … The requirement of a “relationship of proximity” is a touchstone and a control of the categories of case in which the common law will admit the existence of a duty of care and, given the general circumstances of a case in a new or developing area of the law of negligence, the question whether the relationship between plaintiff and defendant with reference to the allegedly negligent act possessed the requisite degree of proximity is a question of law to be resolved by the processes of legal reasoning by induction and deduction. The identification of the content of the criteria or rules which reflect that requirement in developing areas of the law should not, however, be either ostensibly or actually divorced from the considerations of public policy which underlie and enlighten it.67

Jaensch v Coffey was of course a psychiatric injury case, and the proximity approach was applied in other such cases by lower courts over the next few years.68 In Jaensch v Coffey itself the other members of the court, with the possible exception of Gibbs CJ,69 did not express themselves in these terms. However, Deane J continued to advocate the proximity approach,70 with growing support,71 and then in a series of joint judgments a majority of the High Court gave their endorsement to the proximity test.72 The 67

Jaensch v Coffey (1984) 155 CLR 549 at 584–585.

68

See P Vines, “Proximity as Principle or Category: Nervous Shock in Australia and England” (1993) 16 UNSWLJ 458; D Butler, “Proximity as a Determinant of Duty: The Nervous Shock Litmus Test” (1995) 21 Mon ULR 159. Prominent examples include Spence v Percy (1990) Aust Torts Rep 81-039, where Derrington J attempted to apply the test of causal proximity to hold the defendant liable for psychiatric damage to a mother caused as the result of her daughter’s death, three years after the initial accident, and the rejection of this approach to proximity by the Full Court: Spence v Percy (1991) Aust Torts Rep 81-116; Wodrow v Commonwealth (1993) 45 FCR 52; Reeve v Brisbane City Council [1995] 2 Qd R 661; FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,482 per Macrossan CJ, at 64,498 per Lee J; APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 (decided on 2 February 1995). It was applied in Canada in Beecham v Hughes (1988) 52 DLR (4th) 625. 69

Jaensch v Coffey (1984) 155 CLR 549 at 553.

70

See Hackshaw v Shaw (1984) 155 CLR 614; Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7. 71

See Sutherland Shire Council v Heyman (1985) 157 CLR 424 per Gibbs CJ, Wilson and Deane JJ; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 per Mason and Deane JJ.

72

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 (joint judgment of Gibbs CJ, Mason, Wilson and Dawson JJ); Cook v Cook (1986) 162 CLR 376 (joint judgment of Mason, Wilson, Deane and Dawson JJ); Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 (joint judgment of Mason, Wilson, Deane and Dawson JJ); Hawkins v Clayton (1988) 164 CLR 539 (Mason CJ; joint

232

Part III: Liability for Mental Harm

[7.160]

only judge who consistently refused to endorse the proximity approach was Brennan J, who preferred to identify the considerations that affirm or negative a duty of care rather than simply to assert the presence or absence of proximity.73 In his first major contribution to this debate in Sutherland Shire Council v Heyman,74 his Honour stated his own preferred approach, which has become known as the incremental approach to the duty of care. Stating his opposition to the Anns two-stage approach, he said: It is preferable … that the law should develop novel categories of negligence incrementally and by analogy with existing categories, rather than by massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed”.75

But throughout the period of proximity’s ascendancy he remained a lone voice. [7.160] The problem with the proximity criterion was that it concealed more than it revealed.76 Asking whether a relationship is “proximate” was a very uncertain guide to whether a duty would be found to exist because the notion’s inherent imprecision made it possible for the word to mean whatever one wanted it to mean.77 As successive judgments confirmed that the indicators of proximity varied from one area to another,78 its judgment of Wilson, Deane and Gaudron JJ); Gala v Preston (1991) 172 CLR 243 (joint judgment of Mason CJ, Deane, Gaudron and McHugh JJ); Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (joint judgment of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); Bryan v Maloney (1995) 182 CLR 609 (joint judgment of Mason CJ, Deane and Gaudron JJ). 73

See his judgments in Sutherland Shire Council v Heyman (1985) 157 CLR 424; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; Cook v Cook (1986) 162 CLR 376; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hawkins v Clayton (1988) 164 CLR 539; Gala v Preston (1991) 172 CLR 243; Bryan v Maloney (1995) 182 CLR 609.

74

Sutherland Shire Council v Heyman (1985) 157 CLR 424.

75

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481.

76

See NJ Mullany, “Proximity, Policy and Procrastination” (1992) 9 Aust Bar Rev 80; J Stone, Precedent and Law (Butterworths, Sydney, 1985), pp 254–255. See also JA Smillie, “Principle, Policy and Negligence” (1984) 11 NZULR 111; R Kidner, “Resiling from the Anns Principle: The Variable Nature of Proximity in Negligence” (1987) 7 LS 319; S Quinlan and D Gardiner, “New Developments with Respect to the Duty of Care in Tort” (1988) 62 ALJ 347; JA Smillie, “The Foundation of a Duty of Care in Negligence” (1989) 15 Mon ULR 302; JF Keeler, “The Proximity of Past and Future: Australian and British Approaches to Analysing the Duty of Care” (1989) 12 Adel LR 93.

77

“‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less’”: L Carroll, Through the Looking Glass and What Alice Found There (1871), Ch 6 (see eg M Gardner, The Annotated Alice (revised ed, Penguin Books, Middlesex, 1970), p 269).

78

For example, in San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340, Gibbs CJ, Mason, Wilson and Dawson JJ in their joint judgment said (at 355) that when economic loss results from negligent misstatement,

[7.160]

7 Duty and Other Elements of Liability

233

chameleon-like nature became more and more apparent. As Goff LJ pointed out in Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd,79 as soon as “proximity is no longer treated as expressing a relationship founded simply on foreseeability of damage, it ceases to have an ascertainable meaning; and it cannot therefore provide a criterion for liability”. The core proximity notions of “nearness” and “closeness” provided illusory assistance to courts, for a duty to take care may arise despite great distances between parties or be absent notwithstanding the presence of a very close and direct relationship. The nebulous character of proximity had the potential to camouflage the true basis of judicial decision-making, allowing a curtain to be drawn across the process of determining whether a duty exists. This process was accentuated by later decisions, starting with Gala v Preston,80 where the High Court asserted that the notion of proximity was capable of accommodating policy considerations relative to the existence of the duty of care:81 in this case, where a group of drunken youths stole a car for the purpose of going on a crime spree, and the driver by his negligence caused an accident that injured one of his passengers, it was said that no duty was owed because of the lack of proximity. As Brennan J pointed out, there are few more familiar examples of a proximate relationship than that between driver and passenger;82 the invocation of “proximity” is most unhelpful in this context. The determination of whether a duty should be recognised in a particular category of case is one in which policy considerations are inevitably at work, and the process is better understood if those considerations are brought out in the open. This was appreciated by at least one Canadian judge in the 1950s83 and by other judges,84 not least the element of reliance played a prominent part in ascertaining the duty of care, but where economic loss resulted from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present; and in Bryan v Maloney (1995) 182 CLR 609, according to the joint judgment of Mason CJ, Deane and Gaudron JJ (at 619), the duty of a builder to a subsequent purchaser involved the identified element of known reliance, or assumption of responsibility, or a combination of the two. 79

Leigh & Sillivan Ltd v Aliakmon Shipping Co Ltd [1985] QB 350 at 395.

80

Gala v Preston (1991) 172 CLR 243.

81

See also Bryan v Maloney (1995) 182 CLR 609, where the joint judgment of Mason CJ, Deane and Gaudron JJ subsumes the policy issues within the context of proximity. Compare Giannarelli v Wraith (1988) 165 CLR 543, where the important policy issues involved in whether barristers should be immune from liability in negligence are not discussed in a proximity context.

82

Gala v Preston (1991) 172 CLR 243 at 261.

83

Nova Mink Ltd v Trans-Canada Airlines [1951] 2 DLR 241 at 254 per MacDonald J.

84

See eg Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465; Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569; McCarthy v Wellington City [1966] NZLR 481; Rondel v Worsley [1969] 1 AC 191; Smith v Jenkins (1970) 119 CLR 397; Home Office v Dorset Yacht Co Ltd [1970] AC 1004; Morgans v Launchbury [1973] AC 127; Caltex Oil (Australia) Pty Ltd v Dredge “Willemstad” (1976) 136 CLR 529. For later examples see Saif Ali v Sydney Mitchell & Co [1980] AC 198; McKay v Essex Area Health Authority [1982] QB 1166; Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank [1986] AC 80.

234

Part III: Liability for Mental Harm

[7.170]

Lord Denning,85 in the 1960s and 1970s. Significantly, in Gala v Preston not only Brennan J but also Dawson and Toohey JJ openly based their decisions to differing degrees on public policy, deriving minimal assistance from proximity.86 [7.170] The proximity test did not long survive Deane J’s departure from the court in November 1995, one of five retirements between April 1995 and May 1998 that brought about a radical change in the culture of the Australian High Court.87 In Hill v Van Erp88 in 1997, four of the six sitting judges stated that proximity was of limited usefulness.89 Brennan J, one of the remaining judges, did not restate his views but was clearly in agreement.90 By the time of Perre v Apand Pty Ltd91 in 1999, the High Court had clearly rejected proximity as the Australian general test of duty of care in negligence.92 By 2011, in light of a long line of judicial pronouncements denying the role of proximity,93 the High Court was able to confirm that “The demise of proximity as a useful informing principle in this area is now complete”.94 85

See his judgments in Dorset Yacht Co Ltd v Home Office [1969] 2 QB 412; SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1 QB 337; Launchbury v Morgans [1971] 2 QB 245; Nettleship v Weston [1971] 2 QB 691; Dutton v Bognor Regis Urban District Council [1972] 1 QB 373; Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27.

86

Note also the significant extra-curial comments and criticisms of McHugh J in “Neighbourhood, Proximity and Reliance” in PD Finn (ed), Essays on Torts (Law Book Co, Sydney, 1989), pp 36–42.

87

See H Luntz, “Torts Turnaround Downunder” (2001) 1 OUCLJ 95.

88

Hill v Van Erp (1997) 188 CLR 159.

89

Hill v Van Erp (1997) 188 CLR 159 at 177–179 per Dawson J, at 198–199 per Gaudron J, at 210 per McHugh J, at 237–239 per Gummow J; compare at 188–189 per Toohey J.

90

See also Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, decided on the same day as Hill v Van Erp, and Pyrenees Shire Council v Day (1998) 192 CLR 330, where Toohey J was the only judge to express even qualified support for the proximity test. Most judgments in other cases decided in this period skirted the issue: see eg Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Pyrenees Shire Council v Day (1998) 192 CLR 330; Romeo v Conservation Commission (1998) 192 CLR 431.

91

Perre v Apand Pty Ltd (1999) 198 CLR 180.

92

Perre v Apand Pty Ltd (1999) 198 CLR 180 at [10] per Gleeson CJ, at 27 per Gaudron J, at [70] per McHugh J, at [280]–[281] per Kirby J, at [330]–[331] per Hayne J.

93

See eg Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [73] per McHugh J, at [222] per Kirby J; Brodie v Singleton Shire Council (2001) 206 CLR 512 at [316] per Hayne J; Sullivan v Moody (2001) 207 CLR 562 at [48] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ; Tame v New South Wales (2002) 211 CLR 317 at [107] per McHugh J, at [268] per Hayne J; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [99] per McHugh J, at [23] per Kirby J; Joslyn v Berryman (2003) 214 CLR 552 at [30] per McHugh J; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [18] per Gleeson CJ, Gummow, Hayne and Heydon JJ; Vairy v Wyong Shire Council (2005) 223 CLR 422 at [28] per Gleeson CJ and Kirby J, at [66]–[68] per Gummow J; Imbree v McNeilly (2008) 236 CLR 510 at [41] per Gummow, Hayne and Kiefel JJ, at [141] per Kirby J, at [181] per Crennan J; Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at [132] per Crennan and Kiefel JJ.

94

Miller v Miller (2011) 242 CLR 446 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[7.180]

7 Duty and Other Elements of Liability

235

The current position [7.180] What, then, is the current thinking of the courts on duty issues? Interestingly, despite this period of intense activity in England and Australia, the courts in other common law jurisdictions have in general adhered to the two-stage Anns v Merton London Borough Council95 test: this is the position in Canada,96 New Zealand97 and Singapore,98 and was the position in Ireland until relatively recently.99 However, the English courts in their retreat from Anns and search for an alternative, have adopted what has become known as the three-stage test. The leading statement of the current English position is that of Lord Bridge in Caparo Industries plc v Dickman:100 What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the 95

Anns v Merton London Borough Council [1978] AC 728.

96

The Anns test was originally adopted by the Supreme Court in City of Kamloops v Nielsen [1984] 2 SCR 2. In Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021, Stevenson J at 1178, affirming the majority judgment in which three judges participated, expressed agreement with criticisms of the Australian proximity test. The dissenting judgment of La Forest J at 1114–1115 also implicitly rejected the notion of proximity. The Supreme Court adopted a refined version of the Anns test in Cooper v Hobart [2001] 3 SCR 537; see also Edwards v Law Society of Upper Canada [2001] 3 SCR 562. Note, however, Odhavji Estate v Woodhouse [2003] 3 SCR 263, where Iacobucci J appears to have modified the Canadian approach by taking it closer to the English three-stage test. On the implications of the Canadian approach for psychiatric injury, see L Bélanger-Hardy, “Nervous Shock, Nervous Courts: The Anns/Kamloops Test to the Rescue?” (1999) 37 Alta L Rev 553.

97

The New Zealand courts have affirmed the Anns test in a line of cases from South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 onwards. The Supreme Court restated its approach in North Shore City Council v Attorney General [2012] 3 NZLR 341.

98

The Singapore Court of Appeal adopted a modified version of the Anns test in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR 100.

99

Starting with Ward v McMaster [1988] IR 337, the Irish courts consistently adopted the Anns formula. However, in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84, the Irish Supreme Court introduced a revised version much closer to the current English approach with the aim of putting a brake on the expansion of the duty concept.

100

Caparo Industries plc v Dickman [1990] 2 AC 605 at 617–618. See also X (minors) v Bedfordshire County Council [1995] 2 AC 633 at 749–751 per Lord Browne-Wilkinson; White v Jones [1995] 2 AC 207 at 221 per Sir Donald Nicholls VC, at 289–291 per Lord Mustill; Spring v Guardian Assurance plc [1995] 2 AC 296 at 307–308 per Lord Keith of Kinkel; Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 219, 227 per Lord Lloyd of Berwick, at 235 per Lord Steyn; Stovin v Wise [1996] AC 923 at 931–932 per Lord Nicholls of Birkenhead; McFarlane v Tayside Health Board [2000] 2 AC 59 at 76 per Lord Slynn of Hadley, at 95 per Lord Hope of Craighead; D v East Berkshire Community NHS Trust [2005] 2 AC 373 at [2] per Lord Bingham of Cornhill, at [100] per Lord Rodger of Earlsferry. Note Smith v Eric S Bush [1990] 1 AC 831 where the House of Lords employed the “fair and reasonable” standard of the Unfair Contract Terms Act 1977 (UK), s 2(2).

236

Part III: Liability for Mental Harm

[7.190]

one party for the benefit of the other. But it is implicit in the passages referred to 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. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and limits of the varied duties of care which the law imposes.

Quoting the statement of Brennan J of the High Court of Australia in Sutherland Shire Council v Heyman101 that it was preferable for the law to develop novel categories of negligence incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty of care restrained only by various “indefinable considerations”, his Lordship said that “We must now, I think, recognise the wisdom of the words of Brennan J.”102 [7.190] This approach makes some use of the notion of proximity, but simply as one of a number of considerations to be taken into account, not as an all-embracing test. In addition to foreseeability and proximity, ideas of fairness, justice and reasonableness openly play their part in the determination of duty103 — and these ideas make it easier for policy issues to come to the surface.104 Policy considerations were clearly discernible in, for example, Hill v Chief Constable of West Yorkshire105 where 101

Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 480: see [7.150].

102

See KM Stanton, “Incremental Approaches to the Duty of Care” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), p 34. Some commentators have voiced their opposition to the incremental approach: note D Howarth, Textbook on Tort (Butterworths, London, 1995), p 31 criticising the “almost ritual incantation … of an obscure Australian case”.

103

Though there is some difference of opinion about whether proximity or the “fair, just and reasonable” criterion are requirements of the duty of care in cases of physical damage caused by negligent acts. In Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 235, Lord Steyn said that the three elements were relevant to all cases whatever the nature of the harm suffered by the plaintiff, but this is debatable: see eg J Stapleton, “Duty of Care Factors: A Selection from the Judicial Menus” in P Cane and J Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford University Press, Oxford, 1998), p 72. The three limbs of the test are not so much separate requirements as merely facets of the same thing: Caparo Industries plc v Dickman [1990] 2 AC 605 at 633 per Lord Oliver of Aylmerton.

104

The approach in Caparo Industries plc v Dickman [1990] 2 AC 605 was referred to by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 415. Psychiatric injury cases in lower courts relying on the three-stage test include Powell v Boladz [1998] Lloyds Rep Med 116 at 123 per Stuart-Smith LJ; Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 at 1433 per Brooke LJ, at 1427 per Pill LJ (dissenting); Greatorex v Greatorex [2000] 1 WLR 1970 at 1973 per Cazalet J; McLoughlin v Jones [2002] QB 1312 at [31] per Brooke LJ.

105

Hill v Chief Constable of West Yorkshire [1989] AC 53.

[7.210]

7 Duty and Other Elements of Liability

237

the House of Lords dismissed an action against the police for alleged negligence in failing to apprehend the Yorkshire Ripper sooner than they did, Murphy v Brentwood District Council106 where the House of Lords departed from Anns v Merton London Borough Council107 and held that local councils should not be liable for pure economic loss suffered as a result of bad building practices, merely through failure to ensure compliance with building regulations and by-laws, and MacFarlane v Tayside Health Board108 where the House of Lords rejected a claim by parents for the cost of bringing up a healthy child born as a result of a failed vasectomy. [7.200] Lord Bridge’s reference to Brennan J underlines how much the English approach has changed since Caparo Industries plc v Dickman109 replaced Anns v Merton London Borough Council110 as the operative test of duty. In the words of a leading text: [T]he picture changes if we also look at what the courts do and not just at what they say. For then it becomes clear that the approach to the formulation of the duty of care has changed considerably as a result of the demise of Anns. Thus, first, more attention is now paid to the likely impact of any potential extension of the duty concept on other areas of law, such as public law, statutory duties, contract law, and the law of property. Second, attempts to formulate a general test for establishing duty of care are now discouraged, in favour of a much closer consideration of what Lord Bridge called “the more traditional categorisation of distinct and recognisable situations as guides to the existence” of a duty. This means that the duty concept will only be applied, or “extended”, to novel or previously unconsidered situations if this can be done by analogy with the existing categories of potential liability.111

[7.210] The English courts have thus followed the Australian example in rejecting Anns v Merton London Borough Council;112 and the Australian High Court, like the House of Lords, has discarded the search for a general principle and instead moved much closer to the incrementalism approach outlined by Brennan J. Despite these similarities, England and Australia have been unable to agree on a formula for the determination of duty of care. As the High Court in the last years of the 20th century turned away from the general proximity principle, one judge, Kirby J, in 106

Murphy v Brentwood District Council [1991] 1 AC 398.

107

Anns v Merton London Borough Council [1978] AC 728.

108

MacFarlane v Tayside Health Board [2000] 2 AC 59.

109

Caparo Industries plc v Dickman [1990] 2 AC 605.

110

Anns v Merton London Borough Council [1978] AC 728.

111

S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), p 115. While the three-stage test appears to be dominant, it should be noted that there is still some variety in the approaches adopted by English courts. Balkin and Davis suggest that recent decisions also show support for the assumption of responsibility test and the incremental approach: see particularly Customs & Excise Commissioners v Barclays Bank plc [2007] 1 AC 181: RP Balkin and JLR Davis, Law of Torts (5th ed, LexisNexis Butterworths, Chatswood, New South Wales, 2013), pp 202–203.

112

Anns v Merton London Borough Council [1978] AC 728.

238

Part III: Liability for Mental Harm

[7.220]

several cases urged the adoption of the three-stage test.113 However, the rest of the court did not favour this approach, and in Sullivan v Moody114 the court confirmed that it did not represent the law in Australia, saying: Lord Bridge himself said that concepts of proximity and fairness lack the necessary precision to give them utility as practical tests, and “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”. There is a danger that judges and practitioners, confronted by a novel problem, will seek to give the Caparo approach a utility beyond that claimed for it by its original author. There is also a danger that, the matter of foreseeability (which is often incontestable) having been determined, the succeeding questions will be reduced to a discretionary judgment based on a sense of what is fair, and just and reasonable as an outcome in the particular case. The proximity question has already been discussed. The question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle. The concept of policy, in this context, is often ill-defined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decision-making in individual cases.115

[7.220] While there was some measure of agreement in saying what the test is not, reaching consensus as to what it is has proved more difficult. Some cases, particularly Perre v Apand Pty Ltd,116 were noteworthy for the diversity of approaches adopted. In this case, the seven judgments offered a variety of proposed criteria, including the incremental approach, looking for “salient features”, vulnerability, indeterminacy and the protection of legal rights, and exhibited similar disunity of approach to the problem of setting limits to recovery for pure economic loss.117 However, in Sullivan v Moody118 — a then-rare instance of a joint judgment by all the judges who sat on the case — the High Court laid down some general pointers to assist in determining whether the circumstances disclose a duty of care. It said: “There are cases … where to 113

See Pyrenees Shire Council v Day (1998) 192 CLR 330 at [244]; Perre v Apand Pty Ltd (1999) 198 CLR 180 at [259]; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [221]–[222]. 114

Sullivan v Moody (2001) 207 CLR 562.

115

Sullivan v Moody (2001) 207 CLR 562 at [49] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. Kirby J did not sit in this case. Following Sullivan v Moody, Kirby J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [238], after restating the advantages and disadvantages of the various alternatives, said: “In the face of this explicit disapproval of the Caparo approach, my duty is to conform to the opinion that the majority of this Court has stated. … Nevertheless, I relinquish my adherence to the Caparo approach with reluctance. It is after all the methodology adopted in the major common law systems with which Australian judges are familiar.” 116

Perre v Apand Pty Ltd (1999) 198 CLR 180.

117

See B Feldthusen, “Pure Economic Loss in the High Court of Australia: Reinventing the Square Wheel?” (2000) 8 Tort L Rev 33.

118

Sullivan v Moody (2001) 207 CLR 562.

[7.220]

7 Duty and Other Elements of Liability

239

find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted”.119 This might happen, for example, where imposing liability in negligence cut across well-developed principles of defamation law that had settled the balance between interests in reputation and in free speech. Another pointer was “coherence in the law”: an alleged duty of care should not be recognised if that duty would not be compatible with other duties owed by the defendant.120 In this case, these two approaches combined to lead the court to the conclusion that childcare authorities who investigated allegations of sexual abuse owed no duty of care to the family members who were the potential suspects. In so far as their complaints related to the communication of information to third parties, the position was appropriately regulated by the law of defamation, and any suggested duty of care owed to suspected abusers was inconsistent with the duty to the victims and other duties owed by the defendants. In subsequent cases the High Court has continued to develop these ideas.121 At the same time, the court continues to have regard to factors such as control, vulnerability, knowledge and indeterminacy (some of which in their early development functioned as indicators of proximity). Adopting the terminology first brought to prominence by Gummow J,122 such factors are now often referred to as “salient features”.123 At the same time, it appears that some judges continue to resort to what Hayne J called the “safe haven”124 of the incremental approach.125 Thus, for example, there are judgments which ask whether the case falls within the familiar category of cases where the plaintiff was a member of a class of persons to whom the defendant owed a duty.126

119

Sullivan v Moody (2001) 207 CLR 562 at [53].

120

Sullivan v Moody (2001) 207 CLR 562 at [55].

121

See eg Tame v New South Wales (2002) 211 CLR 317; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Hunter & New England Local Health District v McKenna (2014) 253 CLR 270.

122

Perre v Apand Pty Ltd (1999) 198 CLR 180 at [201].

123

See eg Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [104], where Allsop P provided a list of “salient features” to assist in the identification of a duty of care. 124

Brodie v Singleton Shire Council (2001) 206 CLR 512 at [316].

125

See eg Perre v Apand Pty Ltd (1999) 198 CLR 180 at [94] per McHugh J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [73] per McHugh J; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at [73] per McHugh J. Note, however, K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), p 459, suggesting that incrementalism now appears to be out of fashion. 126

See eg Vairy v Wyong Shire Council (2005) 223 CLR 422 at [27] per Gleeson CJ and Kirby J; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [22] per French CJ and Gummow J.

240

Part III: Liability for Mental Harm

[7.230]

Application of duty principles in mental harm cases [7.230] What approach do the courts adopt to the duty issue in psychiatric injury cases? Is it enough if such damage is reasonably foreseeable? If not, what additional elements are necessary to establish a duty not to inflict damage to the psyche? Leading decisions of the highest courts over the last 30 years reveal a range of answers to this question. [7.240] In straightforward cases involving negligently caused physical injury, for example road and work accidents, it is generally accepted that once the requirements of foreseeability are satisfied no further duty issue exists.127 For some time after liability for psychiatric illness was recognised early in the 20th century, it was unclear whether the basis of liability was simply a question of reasonable foreseeability of the type of injury.128 In the early 1980s, the issue was brought to a head when plaintiffs in cases before the highest courts in Australia and England argued that foreseeability, without more, gave rise to a duty not to cause psychiatric damage.129 [7.250] The major foundation for this argument was McLoughlin v O’Brian,130 where the House of Lords unanimously allowed the appeal of a plaintiff who never went to the scene of an accident but suffered psychiatric damage through seeing wounded members of her family in hospital. In coming to this decision, Lord Bridge131 and Lord Scarman132 appear to have rejected considerations of policy as irrelevant and held 127

See eg Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 396 per Lord Keith of Kinkel, at 419 per Lord Jauncey of Tullichettle. One of the first to make this point was PS Atiyah, Accidents, Compensation and the Law (Weidenfeld and Nicolson, London, 1970), p 48 (see now P Cane, Atiyah’s Accidents, Compensation and the Law (8th ed, Cambridge University Press, Cambridge, 2013), p 67). Note also the suggestion of Lord Reid in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1027 that the neighbour principle should apply unless there was some justification or explanation for its exclusion: see [7.130]. However, according to Deane J, under the Australian proximity test, proximity was an essential element in such cases also, even if not separately identified, and that in these more settled areas of negligence reasonable foreseeability of damage was evidence of sufficient proximity of relationship: Jaensch v Coffey (1984) 155 CLR 549 at 581–582 and Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 495. For a similar suggestion in relation to the Caparo three-stage test currently adopted by the English courts, see Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 at 235 per Lord Steyn, discussed at [7.190].

128

Cases which suggest that foreseeability was sufficient include Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 and Benson v Lee [1972] VR 879. 129

Jaensch v Coffey (1984) 155 CLR 549; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

130

McLoughlin v O’Brian [1983] 1 AC 410. “There was a time when it seemed that English law might arrive at this position. It came within a hair’s breadth of doing so in McLoughlin v O’Brian, one of those cases in which one feels that a slight change in the composition of the Appellate Committee would have set the law on a different course”: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 502 per Lord Hoffmann.

131

McLoughlin v O’Brian [1983] 1 AC 410 at 441–443. But quaere whether Lord Bridge is totally rejecting the relevance of policy: see P Handford, “Shock and Policy: McLoughlin v O’Brian” (1983) 15 UWAL Rev 398 at 409–410. Lord Bridge’s later judgment in Caparo Industries plc v Dickman [1990] 2 AC 605 clearly affirms the relevance of policy: see [7.180].

[7.260]

7 Duty and Other Elements of Liability

241

that liability should be determined purely on questions of principle. Lord Bridge, in particular, can perhaps be regarded as suggesting that foreseeability without more was sufficient. This approach was roundly criticised by a third member of the court, Lord Edmund-Davies.133 However, the most important judgment in this case, that of Lord Wilberforce, clearly regarded foreseeability alone as an insufficient criterion of liability, and policy considerations as highly relevant134 — and this may suggest that Lord Wilberforce never intended the first of his two stages in Anns v Merton London Borough Council135 to be limited to the issue of foreseeability. It was as part of the policy element of liability that Lord Wilberforce identified three elements that were inherent in any psychiatric injury claim,136 elements that have often provided the framework for discussion in later cases137 and that have influenced the structure of this book: 1. the class of persons whose claims should be recognised; 2. the physical proximity of such person to the accident; 3. the means by which the shock is caused. [7.260] In Jaensch v Coffey,138 a case very similar on its facts to McLoughlin v O’Brian,139 the plaintiff argued before the High Court of Australia that to prove a duty of care it was sufficient to show foreseeability of psychiatric illness to a person in that position. The High Court, however, held that foreseeability was not the only test of duty. This appears most clearly in the judgments of Gibbs CJ140 and Deane J:141 for Deane J the additional factor was a relationship of proximity, a test that he outlined for the first time in this case.142 The other judges were less definite. Brennan J was against the recognition of new criteria of liability143 and his judgment can be read as suggesting that foreseeability 132

McLoughlin v O’Brian [1983] 1 AC 410 at 429–431.

133

McLoughlin v O’Brian [1983] 1 AC 410 at 426–428.

134

McLoughlin v O’Brian [1983] 1 AC 410 at 421–423. Lord Russell at 429 also regarded policy as a relevant consideration.

135

Anns v Merton London Borough Council [1978] AC 728 at 751–752.

136

McLoughlin v O’Brian [1983] 1 AC 410 at 422. These three factors appear to have been drawn from the judgment of Tobriner J in the leading United States case of Dillon v Legg 441 P 2d 912 (Cal 1968). Lord Wilberforce used the words “inherent in any claim”, but it must be remembered that the case in question was what would now be referred to as a secondary victim case. 137 For example in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, the judgments of Hidden J at first instance, Nolan LJ in the English Court of Appeal and Lord Ackner in the House of Lords. 138

Jaensch v Coffey (1984) 155 CLR 549.

139

McLoughlin v O’Brian [1983] 1 AC 410.

140

Jaensch v Coffey (1984) 155 CLR 549 at 552–554.

141

Jaensch v Coffey (1984) 155 CLR 549 at 578–585.

142

See [7.180].

143

Jaensch v Coffey (1984) 155 CLR 549 at 571–573.

242

Part III: Liability for Mental Harm

[7.270]

is a sufficient criterion. Dawson J found it unnecessary to resolve this issue.144 Murphy J, in a short and rather offbeat judgment dealing mainly with accident compensation and social security, merely said that there were no acceptable reasons of public policy for limiting recovery.145 In spite of the equivocation of some of the judges in this case, proximity eventually became the accepted approach to duty issues, and as one would expect, it was the approach adopted by State courts in psychiatric injury cases.146 However, after the High Court abandoned proximity as a general test of duty, its potential approach to psychiatric injury liability necessarily became somewhat more uncertain.147 [7.270] In Alcock v Chief Constable of South Yorkshire Police,148 the plaintiffs before the House of Lords once again argued that foreseeability was a sufficient test of duty, in spite of the rejection of this argument in the leading judgments in Jaensch v Coffey.149 The contention did not succeed. All four judgments specifically endorsed the view that duty was not just a matter of foreseeability. Lord Keith of Kinkel and Lord Ackner simply referred to the extra element as “proximity”, without going into any detail.150 Lord Oliver of Aylmerton, who discussed the issue at greater length, also endorsed the notion of proximity,151 dealing with it mainly from the perspective that in most psychiatric damage cases the plaintiff is not the primary victim.152 However, his reference to Lord Bridge’s judgment in Caparo Industries plc v Dickman153 confirmed that the basic requirements of duty in psychiatric damage cases were the same as for other areas of negligence law.154 It seems clear that, in the ultimate analysis, Alcock v Chief Constable of South Yorkshire Police was a decision in which the incidence of duties of care was limited for policy reasons.155 These duties can be accommodated within the Caparo 144

Jaensch v Coffey (1984) 155 CLR 549 at 612.

145

Jaensch v Coffey (1984) 155 CLR 549 at 558.

146

See [7.140].

147

See D Butler, “Managing Liability for Bystander Psychiatric Injury in a Post-Hill v Van Erp Environment” (1997) 13 QUTLJ 152.

148

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

149

Jaensch v Coffey (1984) 155 CLR 549.

150

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 396 per Lord Keith of Kinkel, at 402 per Lord Ackner. 151

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 410–415.

152

See [7.370].

153

Caparo Industries plc v Dickman [1990] 2 AC 605.

154

It has been suggested that Hevican v Ruane [1991] 3 All ER 65, a first instance decision which runs counter to Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, did not give proper effect to the changes brought about by Caparo: Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 325 per Amarjeet JC.

155

Mouat v Clarke Boyce [1992] 2 NZLR 559 at 569 per Cooke P. See also South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282, where Cooke P at 295, commenting on the statement of Stocker LJ in the English Court of Appeal in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 377 that

[7.280]

7 Duty and Other Elements of Liability

243

approach. Subsequent cases confirmed the acceptance of the Alcock doctrine that in English psychiatric damage law foreseeability alone is not enough.156 It seems likely that in psychiatric injury cases most courts will continue to concentrate on the three specific areas identified by Lord Wilberforce in McLoughlin v O’Brian.157 [7.280] In Tame v New South Wales,158 the High Court again confronted the issue of whether foreseeability alone should be regarded as a sufficient test of duty. Though in all the earlier cases discussed at [7.250]–[7.270] the House of Lords and the High Court had confirmed the need for additional control mechanisms, the High Court took the opportunity presented by the two appeals before it to review the law relating to psychiatric injury in the light of developments over the preceding 17 years. The judgments reveal interesting differences in the ways in which their Honours made use of the various general principles discussed at [7.100]–[7.220]. The problem was raised most acutely by the facts of the Annetts case, because James’s parents never went to the scene of the accident: the psychiatric injury they suffered was caused by the initial telephone call informing them of his disappearance, and the anguish of not knowing what had happened to him until his body was discovered four months later. The lower courts endorsed the need for additional elements over and above foreseeability, as they were clearly bound to do by Jaensch v Coffey.159 However, the High Court held that the limiting factors of direct perception, sudden shock and ordinary fortitude should no longer be regarded as essential requirements. This left the issue to be resolved simply as a matter of whether psychiatric injury was reasonably foreseeable, subject to recognising the existence of a sufficient relationship. The judgments that make most reference to general principles are those of McHugh and Hayne JJ. McHugh J advocated a return to Lord Atkin’s test, suggesting that he saw the concept of proximity as equivalent to the “some limitations must be put upon what is reasonably foreseeable if a duty of care is not to be owed to the whole world at large”, suggested that in statements such as this the English courts are coming to speak of reasonable foresight in a deliberately artificial sense. “There could be no objection to this usage, provided that it is acknowledged to be a special usage and is not employed to conceal the fact that the decision is one of policy rather than one as to what was reasonably foreseeable in fact.” 156

See eg Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 272 per Henry LJ.

157

McLoughlin v O’Brian [1983] 1 AC 410 at 422: see [7.250]. The more general duty issues have not featured prominently in the case law, except at the highest level: for example, there is little on this in the judgments of Hidden J and the English Court of Appeal judgments in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. However, there are exceptions: Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447, on appeal Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351 is a good example of how the general Caparo requirements interact with the more specific policy limitations which English law imposes in psychiatric damage cases. 158 159

Tame v New South Wales (2002) 211 CLR 317.

Jaensch v Coffey (1984) 155 CLR 549. See Annetts v Australian Stations Pty Ltd [2000] WASC 104 at [15] per Heenan J; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [12] per Malcolm CJ, at [89]–[94] per Ipp J; see also Morgan v Tame (2000) 49 NSWLR 21 at [119] per Mason P.

244

Part III: Liability for Mental Harm

[7.290]

concept of “neighbourhood”.160 In his subsequent judgment in Gifford v Strang Patrick Stevedoring Pty Ltd,161 McHugh J further developed the idea of the neighbourhood test as a foundation for determining which categories of persons might be in the sort of relationship with the defendant that would give rise to a duty of care. Hayne J ranged more widely, making reference to the neighbour principle, Deane J’s analysis of proximity and the Caparo three-stage test.162 However, in relation to Mrs Tame’s appeal, analysis of the judgments reveals more uniformity of approach. In addition to foreseeability, most judgments refer to the Sullivan v Moody principles of avoiding inconsistent duties163 and coherence in the law.164

Content or scope of duty [7.290] The question whether the law recognises a duty of care in any particular case directs attention, first and foremost, to the relationship between the parties — whether, in the circumstances, a duty is owed by this defendant to this plaintiff. However, the duty question is concerned not just with the existence of a duty, but with its content or scope, and this involves factors such as the kind of harm suffered, the manner of its infliction, the positions of the parties, and much more. One useful example is the decision in Geyer v Downs165 that the duty relationship between a school and its pupils only existed during school hours.166 Several recent High Court cases emphasise the importance of the content of the duty, notably Kuhl v Zurich Financial Services Australia Ltd,167 where the High Court said that the scope and content of the duty depend on the circumstances of the case. However, there is nothing very new about all this: half a century ago, a leading text was stressing that “duty-situations” involved a number of factors such as a recognised kind of harm, a recognised manner of infliction, a recognised type of a plaintiff and a recognised type of defendant.168 Furthermore, as a number of 160

Tame v New South Wales (2002) 211 CLR 317 at [104]–[108].

161

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [46]–[52].

162

Tame v New South Wales (2002) 211 CLR 317 at [249]–[250], [263]–[268].

163

Tame v New South Wales (2002) 211 CLR 317 at [27] per Gleeson CJ, at [57] per Gaudron J, at [231] per Gummow and Kirby JJ, at [298] per Hayne J. McHugh J at [126] clearly agreed but said it was unnecessary to decide the issue.

164

Tame v New South Wales (2002) 211 CLR 317 at [28] per Gleeson CJ, at [58] per Gaudron J, at [123] per McHugh J, at [323] per Callinan J.

165

Geyer v Downs (1977) 138 CLR 91.

166

This example can be found in K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), p 464. 167 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [20], [22] per French CJ and Gummow J. 168

See RWM Dias’s account of duty in AL Armitage (ed), Clerk and Lindsell on Torts (13th ed, Sweet & Maxwell, London, 1969), paras 856–868. For the continuing influence of this analysis see S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), pp 102–103.

[7.310]

7 Duty and Other Elements of Liability

245

commentators note, the notion of content of duty must not be taken too far lest it trespass on territory more properly the preserve of the standard of care/breach issue. This carries the risk that the duty will be stated in very particular terms, so foreclosing decisions about whether the defendant was negligent in the circumstances of the case.169 [7.300] In the psychiatric injury context, it is clear that the duty element involves more than just identifying the person to whom the duty is owed. Other factors are relevant, including some of those referred to at [7.290]. Most of the chapters in this book deal with the content of the duty in various different situations. To mention just one example, the High Court in Koehler v Cerebos (Australia) Ltd170 discussed in detail the content of the duty of an employer in work stress cases.171

FORESEEABILITY Introduction [7.310] As can be seen from the foregoing discussion, foreseeability is an important component of duty in any negligence case, but it assumes a particular importance in psychiatric injury cases. This is especially so in Australia, where policy restrictions such as direct perception and sudden shock have been eliminated, with the result that duty in such cases is a combination of foreseeability of psychiatric injury plus a relevant relationship. Foreseeability of such injury is also an essential part of duty of care under the Civil Liability Acts. In other jurisdictions, though the policy limitations remain as elements of duty, foreseeability of psychiatric injury is still an important minimum requirement. Two related rules — that the plaintiff must be foreseeable, and that psychiatric injury to the plaintiff must be foreseeable — are discussed at [7.320]–[7.440].

169

See eg K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), p 419; RP Balkin and JLR Davis, Law of Torts (5th ed, LexisNexis Butterworths, Chatswood, New South Wales, 2013), pp 263–264, 272–275. For a controversial example, see Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330, and comments on this case by H Luntz, “Reliving History” (2010) 18 TLJ 107; D Ipp, “The Reach of the Dederer Principle” (2010) 18 TLJ 125. In the context of the Civil Liability Acts, there are judicial statements to the effect that provisions such as s 5B(1) of the Civil Liability Act 2002 (NSW) deal with the content of the duty, while s 5B(2) deals with breach, eg Waverley Council v Ferreira (2005) Aust Torts Rep 81-818 at [27] per Ipp JA; Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [86] per McColl JA.

170 171

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

See [20.430]–[20.510]. Note also the statement of Garling J (dissenting) in McKenna v Hunter & New England Local Health District (2014) Aust Torts Rep 82-158 at [208] that the nature and content of the duty owed to primary and secondary victims may well be different. McFerlan JA at [85] noted that this point was not argued by the defendants. On appeal, the High Court held that the defendant’s obligations to the primary victim under the Mental Health Act 1990 (NSW) were inconsistent with owing a duty to his relatives: Hunter & New England Local Health District v McKenna (2014) 253 CLR 270.

246

Part III: Liability for Mental Harm

[7.320]

The plaintiff must be foreseeable [7.320] An important rule of negligence law is that the plaintiff must be foreseeable. The plaintiff cannot build on a duty owed to someone else, but must establish that it was “owed to” him or her172 — either individually, or as a member of a class.173 Unless the plaintiff comes within this umbrella of foreseeability, no action can lie. [7.330] This rule antedates most of the general tests of duty dealt with in [7.100]–[7.220]. It owes its origin to the United States case of Palsgraf v Long Island Railroad Co,174 where the defendant’s servants, in attempting to bundle two late passengers into a train, caused one of them to drop a parcel that exploded and caused a weighing machine at the other end of the station to topple over and injure the plaintiff. It was held that though the defendant may have been in breach of a duty to the passengers, no duty was owed to the plaintiff. She could not build on a duty owed to someone else and no duty was owed to her because she was outside the range of foreseeable harm. Older cases that overlooked this requirement175 are regarded as no longer authoritative. [7.340] In the context of this rule, Bourhill v Young176 has a twofold importance. First, at a general level, it adopted the Palsgraf v Long Island Railroad Co177 principle for English and Scottish law — no doubt influenced by the neighbour principle in which the concept of the plaintiff being foreseeable is deeply embedded. Secondly, it applied the principle to cases of psychiatric damage. The pursuer, Mrs Euphemia Bourhill, “doomed to celebrity, in the pages of the Law Reports, in language thought acceptable in another era, as the pregnant ‘fishwife’”,178 had just got off an Edinburgh tram and had gone round to the driver’s platform on the far side to collect her fish basket. A motorcyclist passed between the near side of the tram and the pavement and was killed in a collision with a car at a nearby intersection, about 15 yards away from Mrs Bourhill. She could not see the impact, but heard it, and later saw blood on the road. 172

Described by the High Court as “the basic rule of the law of negligence”: Agar v Hyde (2000) 201 CLR 552 at [67] per Gaudron, McHugh, Gummow and Hayne JJ. 173

Eg road users (see Chapman v Hearse (1961) 106 CLR 112; see also Farrugia v Great Western Railway Co [1947] 2 All ER 565 at 567 per Lord Greene MR; Jones v Wabigwan (1969) 8 DLR (3d) 421). Other examples include Haley v London Electricity Board [1965] AC 778, where it was held that the defendant in leaving an unfenced hole should have foreseen that blind people might fall into it, and Home Office v Dorset Yacht Co Ltd [1970] AC 1004, where it was held that the defendant should have foreseen that permitting Borstal boys to escape might result in damage to the property of persons in the vicinity.

174

Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928). See WL Prosser, “Palsgraf Revisited” (1953) 52 Mich L Rev 1; WH Manz, “Palsgraf: Cardozo’s Urban Legend?” (2003) 107 Dick L Rev 785. 175

Eg Smith v London & South Western Railway Co (1870) LR 6 CP 14.

176

Bourhill v Young [1943] AC 92.

177

Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928).

178

Jaensch v Coffey (1984) 155 CLR 549 at 594 per Deane J.

[7.350]

7 Duty and Other Elements of Liability

247

Mrs Bourhill claimed that as a result she suffered a severe shock to her nervous system and one month later gave birth to a stillborn child. She sued the estate of the deceased motorcyclist. The Scottish courts concerned themselves with the issue, still at that time unresolved in Scots law, whether it was a necessary condition of recovery that the claimant suffer shock through fear for her own safety.179 The House of Lords held that it was unnecessary to resolve this matter. The pursuer’s claim could be rejected on the logically prior ground that she was not a foreseeable victim. The motorcyclist owed a duty only to such persons as he could foresee might be injured by his failure to exercise care, and this did not include Mrs Bourhill, who was not within the area of potential danger.180 [7.350] Even prior to the decision in Bourhill v Young,181 the principle that no duty is owed to an unforeseeable plaintiff was applied in the important Australian case of Chester v Waverley Corporation182 to defeat the claim of a mother who suffered shock when she saw the body of her 11-year-old son being recovered from a trench that had been inadequately fenced by council workers and had filled with water over the weekend. Another important psychiatric injury case where the plaintiff failed on the same ground was King v Phillips,183 where a mother in her house heard the screams of her toddler, who was playing outside, and looked out of an upstairs window to see his tricycle beneath the wheels of a reversing taxi, causing her to suffer nervous shock. Singleton and Hodson LJJ applied the principle of Bourhill v Young and held that the taxi driver could not reasonably have contemplated that as a result of his negligence in reversing his taxi without looking where he was going he would cause shock to the mother 70 yards away.184 It has been suggested that the result of the case would be different if it were to be litigated at the present day, and that a court would not have difficulty in viewing the mother’s presence as foreseeable.185 Likewise, it seems clear that Chester would now be decided differently, in line with the important dissenting judgment of Evatt J, and there is much to be said for the suggestion that in these cases the finding that injury to the plaintiff was unforeseeable was simply a disguise to cloak unexpressed policy reasons for denying 179

See Bourhill v Young’s Executor 1941 SC 395.

180

Bourhill v Young [1943] AC 92 at 98 per Lord Thankerton, at 102 per Lord Russell of Killowen, at 105 per Lord Macmillan, at 111 per Lord Wright, at 119 per Lord Porter. Compare John Mill & Co Ltd v Public Trustee [1945] NZLR 347.

181

Bourhill v Young [1943] AC 92.

182

Chester v Waverley Corporation (1939) 62 CLR 1. Evatt J at 33 referred to the rule in Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928) as a “truism”. See also the earlier decision in Bunyan v Jordan (1937) 57 CLR 1. 183

King v Phillips [1953] 1 QB 429.

184

King v Phillips [1953] 1 QB 429 at 435 per Singleton LJ, at 443 per Hodson LJ.

185

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 412 per Lord Oliver of Aylmerton. In a Scottish case with almost identical facts, the defender was held liable: McLinden v Richardson 1962 SLT (Notes) 104.

248

Part III: Liability for Mental Harm

[7.360]

remedies to the claimants.186 However, even if its application in particular cases can be called into question, the principle is clear: it must be established that the defendant owed a duty to a foreseeable plaintiff. [7.360] The principle is occasionally applied in psychiatric damage suits to rule out actions in particular cases.187 By contrast, there are cases in which courts have specifically pointed out that plaintiffs have overcome this first foreseeability hurdle.188 An unusual illustration of the principle is Ibrahim (A Minor) v Muhammad.189 In accordance with Muslim custom, Tayfun, a five-year old Turkish Cypriot, was to be circumcised in the presence of his family (and the event was being recorded for posterity on cine-film by his uncle). Lamentably, the pride and joy of his mother and father turned to horror when the local general practitioner, who held himself out as an expert in such matters, cut off not just the foreskin but about half of Tayfun’s penis, causing blood to spout out of what remained of that organ and Tayfun to scream with pain and shock. Actions were brought by Tayfun and his mother and father — in the case of the parents, for psychiatric harm caused by the shock of what happened. Taylor J held that shock to the parents was within the bounds of foresight. In assessing what was reasonably foreseeable, it was necessary to have in mind a Muslim parent of reasonable fortitude viewing the particular type of injury inflicted in the festive circumstances in which it was witnessed. These cases all involve the now typical psychiatric damage scenario where the plaintiff suffers such harm as the result of an accident or near-accident to someone else. They show the importance, in such a situation, of establishing that the plaintiff was foreseeable and that a duty was owed to him or her. A Canadian judge has expressly recognised that it is easier to satisfy this test where plaintiffs are directly involved than where they are merely observers.190 [7.370] Outside the area of psychiatric injury, the need to prove that the duty of care was owed to a foreseeable plaintiff has been applied in a number of different contexts, for example rescue cases191 and liability for 186 See H Luntz et al, Torts Cases and Commentary (7th ed, Lexis Nexis Butterworths, Chatswood, New South Wales, 2013), p 123. 187

Eg Brown v Hubar (1974) 45 DLR (3d) 664 (claim by father who went to scene of accident in which daughter had been badly injured); McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214 (claim by mother of children who contracted salmonella infection from pet turtles).

188

See eg Owens v Liverpool Corporation [1939] 1 KB 394 (although the discussion on this point is very brief); Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271; Boardman v Sanderson [1964] 1 WLR 1317; Anderson v Smith (1990) 101 FLR 34; Bechard v Haliburton Estate (1991) 84 DLR (4th) 668.

189

Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984).

190

See Duwyn v Kaprielian (1978) 94 DLR (3d) 424 at 437–438 per Morden JA (Brooke JA concurring). It was held that psychiatric injury to a baby boy severely shocked when a car backed into his mother’s car in which he and his grandmother were sitting was reasonably foreseeable, but such injury to the mother who returned from a nearby building to see the commotion was not. Note also Jaensch v Coffey (1984) 155 CLR 549 at 570 per Brennan J.

191

See eg Videan v British Transport Commission [1963] 2 QB 650.

[7.380]

7 Duty and Other Elements of Liability

249

injuries to unborn children.192 It has also been applied to rule out a duty to wives who contracted mesothelioma193 and lead poisoning194 from contact with their husbands’ work clothes, and was invoked by the High Court of Australia to hold that a council that laid a water main did not have a sufficiently close connection with a road user injured many years later by a collapsing tree.195 There is a close relationship between the rule that the plaintiff must be foreseeable and the general principle that the law only compensates the accident victim, not relatives or others who suffer pecuniary or non-pecuniary losses as a result of their association with him or her.196 [7.380] The need to prove a duty of care owed to a foreseeable plaintiff is thus undoubted. The place this principle occupies in negligence law, and its relationship to the general principles about determining duty that have developed since Palsgraf v Long Island Railroad Co197 and the other leading cases referred to at [7.330]–[7.350] were decided, are less clear. The orthodox approach is to classify the foreseeable plaintiff rule as a rule relating to duty of care, distinguishing it from the other rules by referring to it as duty in fact rather than the “notional duty”, or describing it as an instance of moving from the general to the particular.198 The rule has a close association with the rule that the kind of damage must be foreseeable,199 which is generally classified as an issue of remoteness, and

192

See eg Watt v Rama [1972] VR 353; Duval v Seguin (1973) 40 DLR (3d) 666.

193

Bale v Seltsam Pty Ltd [1996] QCA 288; Seltsam Pty Ltd v McNeill [2006] NSWCA 158.

194

Hewett v Alf Brown’s Transport Ltd [1992] ICR 530.

195

Sydney Water Corporation v Turano (2009) 239 CLR 51.

196

A good example is Marx v Attorney General [1974] 1 NZLR 164, where a husband suffered a personality change as a result of an accident at work and began physically and sexually assaulting his wife. The court held that the defendant owed no duty to the wife, stressing the need for the plaintiff to found her claim on breach of a duty owed to herself, and the desirability of compensating only the accident victim. See the extended discussion in the previous edition of this book: P Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 153–167. See also P Handford, “Relatives’ Rights and Best v Samuel Fox” (1979) 14 UWAL Rev 79. Lord Oliver of Aylmerton discussed the relationship between these principles and the circumstances in which secondary victims are allowed to recover in psychiatric injury cases in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408–411. 197

Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928).

198

See MA Jones, Textbook on Torts (8th ed, Oxford University Press, Oxford, 2002), p 41. The notional duty/duty in fact terminology appeared in earlier editions of Winfield & Jolowicz on Tort but was abandoned in the 15th edition: see WVH Rogers, Winfield & Jolowicz on Tort (15th ed, Sweet & Maxwell, London, 1998), p 92 n 18.

199

The foreseeability of the plaintiff rule was expressly affirmed by the Privy Council in the leading case establishing the modern foreseeability of damage rule, Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 at 425 per Viscount Simonds: see [7.600].

250

Part III: Liability for Mental Harm

[7.390]

some writers have suggested that the foreseeable plaintiff rule should be likewise treated as an issue of remoteness rather than duty.200

The kind of damage must be foreseeable [7.390] Under another general rule of negligence, foreseeability is required not only of the plaintiff but also of the kind of damage suffered. This rule is normally analysed under the heading of remoteness of damage, but in psychiatric injury cases it is clear that reasonable foreseeability of psychiatric injury (or, as it was expressed in the earlier cases, reasonable foreseeability of injury by shock) is an important element — perhaps the most important element — in establishing a duty of care.201 This was fundamental to the High Court’s restatement of the common law of liability for psychiatric injury in Tame v New South Wales,202 and is now echoed in the mental harm provisions of the Civil Liability Acts.203 [7.400] In the early shock cases the need for foreseeability of injury by shock was not made clear. The courts were most hesitant to recognise shock as a kind of damage in its own right, and even after repudiating the need for contemporaneous physical impact retained, for a time, the requirement that the plaintiff must be within the area of possible injury by impact and must suffer shock through fear for his or her own safety.204 In these conditions what is required is foreseeability of injury by impact rather than by shock — a theory that has been labelled the “impact theory”.205 The distinction between the two theories is clearly stated in Abramzik v Brenner206 where Culliton CJS asked: Is the duty which a plaintiff must establish in seeking to recover damages for nervous shock only that the defendant ought, as a reasonable man, to have foreseen injury to the plaintiff as a result of his conduct, or must the plaintiff 200

See S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), pp 104, 250; AM Dugdale (gen ed), Clerk & Lindsell on Torts (18th ed, Sweet & Maxwell, London, 2000), paras 7-133 – 7-134; note also JG Fleming, The Law of Torts (9th ed, LBC Information Services, Sydney, 1998), pp 243–244 (this passage does not appear in the 10th edition). 201

Note some valuable overseas judicial statements: in Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [131], Phang JA described this rule as “a preliminary threshold requirement which a plaintiff in a negligence action must satisfy”; in Perodeau v City of Hartford 792 A 2d 752 (Conn 2002) at 767, Zarella J said: “In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated is a prerequisite to recovery even where a breach of duty might otherwise be found.” 202

Tame v New South Wales (2002) 211 CLR 317.

203

See [2.280].

204

Dulieu v White & Sons [1901] 2 KB 669.

205

See See RWM Dias (gen ed), Clerk and Lindsell on Torts (16th ed, Sweet & Maxwell, London, 1989), para 10.07. 206

Abramzik v Brenner (1967) 65 DLR (2d) 651 at 656.

[7.410]

7 Duty and Other Elements of Liability

251

establish that the defendant ought, as a reasonable man, to have foreseen nervous shock (as opposed to other physical injury) to the plaintiff as a result of his conduct?

Many of the older cases are consistent with the “impact theory” approach.207 [7.410] However, the courts gradually began to appreciate that shock was a distinct kind of damage in itself, different from conventional cases of personal injury.208 This process was assisted by the recognition, in Hambrook v Stokes Bros209 and subsequent cases, that persons outside the zone of physical danger were owed a duty of care, because injury by shock was the only kind of injury that was foreseeable in such circumstances. Bourhill v Young210 is instructive in this respect. Though the judgments are not always clear on this issue, Lords Russell, Macmillan and Porter, at least, appear to ratify a test that the defendant must foresee injury by shock.211 A few years later in King v Phillips212 the judgment of Denning LJ stated clearly that the test of liability for nervous shock was foreseeability of injury by nervous shock213 and this influential judgment was expressly affirmed in The Wagon Mound (No 1).214 The “shock theory” has thus replaced the “impact theory”, and all the modern psychiatric damage cases from Australia,215 England,216 Canada217 and various other 207

Eg Dulieu v White & Sons [1901] 2 KB 669 at 675 per Kennedy J; Hambrook v Stokes Bros [1925] 1 KB 141 at 162 per Sargant LJ (dissenting); King v Phillips [1953] 1 QB 429 at 435 per Singleton LJ, at 443 per Hodson LJ.

208

Note also [4.10]–[4.60].

209

Hambrook v Stokes Bros [1925] 1 KB 141.

210

Bourhill v Young [1943] AC 92.

211

Bourhill v Young [1943] AC 92 at 102 per Lord Russell of Killowen, at 105 per Lord Macmillan, at 117 per Lord Porter — though there is room for differences of interpretation of the judgments in this case: see eg RWM Dias (gen ed), Clerk and Lindsell on Torts (16th ed, Sweet & Maxwell, London, 1989), para 10.07. In King v Phillips [1953] 1 QB 429, Denning LJ at 438 suggested that all five judges had supported this test, but this seems an overstatement. Other older cases which appear to endorse the view that what is required is foreseeability of injury by shock are Bunyan v Jordan (1937) 57 CLR 1 at 16 per Dixon J; Chester v Waverley Corporation (1939) 62 CLR 1 at 7 per Latham CJ, at 11 per Rich J, at 13–14 per Starke J; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 at 276–277 per Donovan J; Pollard v Macarchuk (1958) 16 DLR (2d) 225 at 229 per Johnson JA.

212

King v Phillips [1953] 1 QB 429.

213

King v Phillips [1953] 1 QB 429 at 441.

214

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 at 426: see [7.600].

215

See eg Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395 per Windeyer J, at 410–411 per Walsh J; Jaensch v Coffey (1984) 155 CLR 549 at 552–553 per Gibbs CJ, at 560–562 per Brennan J, at 581, 591 per Deane J, at 611 per Dawson J; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [37], [40] per Ipp J; Tame v New South Wales (2002) 211 CLR 317 at [13], [32] per Gleeson CJ, at [118] per McHugh J, at [237], [240] per Gummow and Kirby JJ, at [303] per Hayne J; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [98] per Hayne J; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [33] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; King v Philcox (2015) 89 ALJR 582 at [82] per Nettle J (referring to the position under the Civil Liability Acts). See also Storm v

252

Part III: Liability for Mental Harm

[7.410]

jurisdictions218 affirm that the test is whether injury by shock was foreseeable. This was until the House of Lords in Page v Smith219 qualified this principle for English law, a matter to be dealt with at [7.450]–[7.520].220 Geeves [1965] Tas SR 252 at 255–256 per Burbury CJ; Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668 at 68,814 per Underwood J; Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723 at 69,175 per Vasta J; Mellor v Moran (1985) 2 MVR 461 at 462 per Vasta J; Stergiou v Stergiou (1987) Aust Torts Rep 80-082 at 68,436 per Gallop J; Spence v Percy (1990) Aust Torts Rep 81-039 at 68,037 per Derrington J; Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 at [33] per Zeeman J; FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,482 per Macrossan CJ; Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 at 250 per Crispin J; Kavanagh v Akhtar (1998) 45 NSWLR 588 at 600 per Mason P; APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [12] per Harper J. 216

See eg McLoughlin v O’Brian [1983] 1 AC 410 at 417–418 per Lord Wilberforce, at 423 per Lord Edmund-Davies, at 432 per Lord Bridge of Harwich; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 396 per Lord Keith of Kinkel, at 400 per Lord Ackner, at 406 per Lord Oliver of Aylmerton; Page v Smith [1996] AC 155 at 167–169 per Lord Keith of Kinkel, at 175–176 per Lord Jauncey of Tullichettle. See also Boardman v Sanderson [1964] 1 WLR 1317 at 1322 per Danckwerts LJ; Chadwick v British Railways Board [1967] 1 WLR 912 at 920 per Waller J; Brice v Brown [1984] 1 All ER 997 at 1007 per Stuart-Smith J; Attia v British Gas plc [1988] QB 304 at 310–312 per Dillon LJ, at 315 per Woolf LJ, at 319–320 per Bingham LJ; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 84 per Ward J; CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 166 per Morland J; Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 472 per Judge Bursell QC. 217

See eg Abramzik v Brenner (1967) 65 DLR (2d) 651 at 658 per Culliton CJS; Duwyn v Kaprielian (1978) 94 DLR (3d) 424 at 435 per Morden JA; Beecham v Hughes (1988) 52 DLR (4th) 625 at 647 per Taggart JA; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 250 per Macfarlane JA, at 264, 266 per Wallace JA; Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 674 per Griffiths JA; Nespolon v Alford (1998) 161 DLR (4th) 646 at 659 per Abella JA; Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748 at [27] per MacPherson J; Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [15] per McEachern CJ. See also Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 149 per Haines J; Fenn v City of Peterborough (1976) 73 DLR (3d) 177 at 209 per RE Holland J; Cameron v Marcaccini (1978) 87 DLR (3d) 442 at 444 per Macdonald J; Young v Burgoyne (1981) 122 DLR (3d) 330 at 336 per Hallett J; L(D) v Children’s Aid Society of the District of Thunder Bay [1987] OJ No 1461 per Kurisko DCJ; McCartney v Andrews [1987] OJ No 1092 per Sutherland J; Ashley Estate v Goodman [1994] OJ No 1672 at [14] per McKay J; Macartney v Islic [1996] OJ No 411 at [88]–[89] per Yates J; McLoughlin v Arbor Memorial Services Inc (2004) 36 CCLT (3d) 158 at [13] per Hockin J.

218

Eg Singapore (see Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [131] per Phang JA); Ireland (see eg Kelly v Hennessy [1995] 3 IR 253 at 259 per Hamilton CJ; Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 349, 352 per Judge McMahon; Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 476, 479 per Keane CJ); South Africa (see eg Gibson v Berkowitz 1996 (4) SA 1029 (W) at 1050 per Claassen J; Maijet v Santam Ltd [1997] 4 All SA 555 (C) at 568 per Cleaver J; Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 214 per Van Heerden AHR); Lesotho (Matekane v Attorney General 1991-92 LLR-LB 153 at 161 per Cullinan CJ); Isle of Man (Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 at 442–443 per Deemster Corrin). 219 220

Page v Smith [1996] AC 155.

See [7.450]–[7.520]. In White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, Lord Goff of Chieveley (dissenting) at 468–480 provided a comprehensive restatement of the orthodox position, quoting the equivalent passage in the first edition of this book, and exposed the errors in the Page v Smith approach.

[7.420]

7 Duty and Other Elements of Liability

253

[7.420] Lord Bridge of Harwich in McLoughlin v O’Brian221 suggested that there were at least two theoretically possible approaches to establishing that the kind of damage suffered by the plaintiff was foreseeable: Then, here comes the all-important question. Given the fact of the plaintiff’s psychiatric illness caused by the defendant’s negligence in killing or physically injuring another, was the chain of causation from the one event to the other, considered ex post facto in the light of all that has happened, “reasonably foreseeable” by the “reasonable man”? A moment’s thought will show that the answer to that question depends on what knowledge is to be attributed to the hypothetical reasonable man of the operation of cause and effect in psychiatric medicine. There are at least two theoretically possible approaches. The first is that the judge should receive the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect, and apply to that the appropriate legal test of reasonable foreseeability as the criterion of the defendant’s duty of care. The second is that the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, as fairly representative of that of the educated layman, should treat himself as the reasonable man and form his own view from the primary facts whether the proven chain of cause and effect was reasonably foreseeable. In principle, I think there is much to be said for the first approach. Foreseeability, in any given set of circumstances, is ultimately a question of fact. If a claim in negligence depends on whether some defect in a complicated piece of machinery was foreseeably a cause of injury, I apprehend that the judge will decide that question on the basis of the expert evidence of engineers. But the authorities give no support to this approach in relation to the foreseeability of psychiatric illness. The judges, in all the decisions we have been referred to, have assumed that it lay within their own competence to determine whether the plaintiff’s “nervous shock” (as lawyers quaintly persist in calling it) was in any given circumstances a sufficiently foreseeable consequence of the defendant’s act or omission relied on as negligent to bring the plaintiff within the scope of those to whom the defendant owed a duty of care. To depart from this practice and treat the question of foreseeable causation in this field, and hence the scope of the defendant’s duty, as a question of fact to be determined in the light of the expert evidence adduced in each case would, no doubt, be too large an innovation in the law to be regarded as properly within the competence, even since the liberating 1966 practice direction … of your Lordships’ House. Moreover, psychiatric medicine is far from being an exact science. The opinions of its practitioners may differ widely. Clearly it is desirable in this, as any other, field that the law should achieve such a measure of certainty as is consistent with the demands of justice. It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma resulting from the death or injury of third parties, or indeed the threat of such death or injury, ex hypothesi attributable to the defendant’s negligence, was a foreseeable cause in law, as well as the actual cause in fact, of the plaintiff’s psychiatric or psychosomatic illness. But the word I would emphasise in the foregoing sentence is “informed”. For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility. Now, I venture to hope, that attitude has quite disappeared. No judge who has 221

McLoughlin v O’Brian [1983] 1 AC 410 at 432–433.

254

Part III: Liability for Mental Harm

[7.430]

spent any length of time trying personal injury claims in recent years would doubt that physical injuries can give rise not only to organic but also to psychiatric disorders. The sufferings of the patient from the latter are no less real and frequently no less painful and disabling than from the former. Likewise, I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights and the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants.

[7.430] According to Lord Bridge, then, the foreseeability of psychiatric damage is not purely and simply a question of fact, but is an issue to be decided by the judge, approaching the matter from a common-sense point of view, enlightened by progressive awareness of mental illness.222 However, 20 years on, this passage from Lord Bridge’s judgment was qualified somewhat by Brooke LJ in McLoughlin v Jones,223 where the plaintiff suffered psychiatric illness as the result of a wrongful conviction, and sued his solicitor for negligence in the conduct of his defence, and the English Court of Appeal suggested that the approach to psychiatric illness in cases where there was a prior relationship between the parties might differ from the standard secondary victim situation: Three comments need to be made about this passage. The first is that it is concerned only with the type of case in which a secondary victim suffers psychiatric illness (most commonly post-traumatic stress disorder) in consequence of the imperilment of a third party caused by the negligent act of the defendant. It is not concerned with a claim founded ultimately on contract, in which the duty is owed to an identifiable person known to the defendant from the time when the contract was made. The second is that although psychiatric medicine will never be an exact science, our knowledge and understanding of the causes of psychiatric illness, which are still developing, have progressed in the 19 years since McLoughlin v O’Brian was decided. Finally, it is relevant to note that Lord Bridge appreciated that in appropriate circumstances foreseeable psychiatric illness may be suffered by people whom it would be wrong to regard as having any abnormal psychological make-up. It is well-settled law that it is the judge, and not the expert, who must decide whether psychiatric illness was reasonably foreseeable in any given case, and Lord Bridge’s dicta remain established authority in the class of case with which he was concerned. Lord Bridge referred, however, to informed judicial opinion, and it appears to me that in the present type of case it would turn the administration of justice into too much of a lottery if the outcome of a claim had to turn on the knowledge (or lack of it) of the individual judge without any assistance from experienced psychiatrists at all, particularly as the number of judges likely to be invited to try a case like this has increased so much since 1982. … 222

McLoughlin v O’Brian [1983] 1 AC 410 at 443.

223

McLoughlin v Jones [2002] QB 1312.

[7.450]

7 Duty and Other Elements of Liability

255

For my part, I do not consider that we are bound by authority to hold that, at any rate in a case in which the parties’ relationship stems ultimately from contract, appropriate experts may not give evidence about the statistical incidence of the occasions when people who are not immediately identifiable as vulnerable personalities suffer psychiatric illness of different kinds as a result of being exposed to events comparable to those experienced by the claimant in the case now before the court.224

[7.440] A final point about the standard test of reasonable foreseeability of psychiatric injury is that the authorities confirm that it is applied “ex post facto”, that is to say, with hindsight, in the light of what has happened, and not at some point prior to the negligent act that causes the harm.225 That this is so was emphasised by Lord Wright in Bourhill v Young,226 who said, “It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee”. Lord Bridge confirmed this proposition in the passage from McLoughlin v O’Brian227 quoted at [7.420].228 The “ex post facto” issue was just one of the controversies aroused by the House of Lords decision in Page v Smith.229

Page v Smith [7.450] In England, the principle that there can be no liability for psychiatric injury unless it can be shown that psychiatric injury is reasonably foreseeable has now been fundamentally affected by the decision of the House of Lords in Page v Smith.230 The judgment of a bare majority of their Lordships given by Lord Lloyd of Berwick has changed 224

McLoughlin v Jones [2002] QB 1312 at [41]–[42], [44]. Note also Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458, where Judge Bursell QC at 473 held that he could take account of expert evidence by a psychiatrist.

225

The justification for this may be that, in terms of the traditional analysis of the tort of negligence, the principle that the kind of damage must be foreseeable is a test of remoteness rather than duty: see [7.390], [7.600].

226

Bourhill v Young [1943] AC 92 at 110.

227

McLoughlin v O’Brian [1983] 1 AC 410.

228

McLoughlin v O’Brian [1983] 1 AC 410 at 432. For other affirmations of the ex post facto principle, see Page v Smith [1994] 4 All ER 522 at 542 per Ralph Gibson LJ; Page v Smith [1996] AC 155 at 169 per Lord Keith of Kinkel, at 178–179 per Lord Jauncey of Tullichettle; Kelly v Hennessy [1995] 3 IR 253 at 274 per Denham J; CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 166 per Morland J; Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 472 per Judge Bursell QC. 229

Page v Smith [1996] AC 155. For further comment on this issue, see NJ Mullany, “Psychiatric Damage in the House of Lords – Fourth Time Unlucky” (1995) 3 JLM 112 at 116–117; K Barker, P Cane, M Lunney and F Trindade, The Law of Torts in Australia (5th ed, Oxford University Press, Melbourne, 2012), p 444, noting that “Explicit statements that [the question of reasonable foreseeability] should be decided prospectively can be found, but perhaps only when some reason for denying liability is being positively searched for.”

230

Page v Smith [1996] AC 155: see [3.50]–[3.70]. Some of the material which follows is based on P Handford, “A New Chapter in the Foresight Saga: Psychiatric Damage in the House of Lords” (1996) 4 Tort L Rev 5. See also NJ Mullany, “Psychiatric Damage in the House of Lords – Fourth Time Unlucky” (1995) 3 JLM 112 and other literature cited at [3.50].

256

Part III: Liability for Mental Harm

[7.460]

the face of English psychiatric damage law, creating major divisions between the law applicable to primary and secondary victims. In spite of strongly worded dissents by Lord Keith of Kinkel and Lord Jauncey of Tullichettle, the brief concurring judgments of Lords Ackner and Browne-Wilkinson ensured that the new doctrine enunciated by Lord Lloyd found its way into English law. Though subjected to a sustained and carefully reasoned demolition by Lord Goff of Chieveley in his dissenting judgment in White v Chief Constable of South Yorkshire Police,231 and treated with varying degrees of enthusiasm by the other judges in that case, it seems that it survives to represent current English law. Elsewhere in the common law world, it has met with a uniformly chilly response, with the result that there is now a major divide between the law in England and that of most other countries. [7.460] It will be recalled that the case arose out of a very minor road accident. The plaintiff did not suffer bodily injury, but the accident reactivated the myalgic encephalitis or chronic fatigue syndrome from which he had suffered for some years, and this condition became chronic and permanent, making it impossible for him to work again. The English Court of Appeal, applying orthodox principles, held that the plaintiff had not established that psychiatric injury of some kind was foreseeable to a person of ordinary fortitude. However, the House of Lords allowed the appeal. Lord Lloyd of Berwick, giving the main judgment, said that when the plaintiff was a primary victim, all that was necessary was to show that personal injury of some kind was reasonably foreseeable: Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.232

[7.470] Not only were primary victim cases to be governed by a different foreseeability test: Lord Lloyd went on to state that other important rules did not apply in such cases. One was the rule that the circumstances of the accident or event had to be viewed ex post facto: This makes sense, as Lord Keith points out, where the plaintiff is a secondary victim. For if you do not know the outcome of the accident or event, it is impossible to say whether the defendant should have foreseen injury by shock. It is necessary to take account of what happened in order to apply the test of reasonable foreseeability at all. But it makes no sense in the case of a primary victim. Liability for physical injury depends on what was reasonably foreseeable by the defendant before the event. It could not be right that a 231 232

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

Page v Smith [1996] AC 155 at 187. The House of Lords applied this approach in Simmons v British Steel plc [2004] PIQR P33.

[7.490]

7 Duty and Other Elements of Liability

257

negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire. Such a result in the case of a primary victim is neither necessary, logical nor just. To introduce hindsight into the trial of an ordinary running-down action would do the law no service.233

[7.480] Lord Lloyd reconciled his view with the traditional authorities supporting the requirement of foreseeability of psychiatric injury by saying that they were all secondary victim cases.234 He was particularly critical of King v Phillips,235 where Denning LJ had supported the test of foreseeability of injury by shock, saying that this was too wide in secondary victim cases (because it was not the sole test) and too narrow in primary victim cases (because it was inconsistent with Bourhill v Young,236 the basis of which was that the pursuer was not within the range of foreseeable physical injury). Lord Lloyd also suggested that the Privy Council in The Wagon Mound (No 1),237 in endorsing Denning LJ’s dictum that the test of liability for shock is foreseeability of injury by shock, did not intend to indicate that it applied across the board in personal injury actions, or that psychiatric injury was a different “kind” of damage from physical injury for the purposes of establishing the relevant duty of care.238 Deane J in Jaensch v Coffey239 came in for particular criticism, being said to have misunderstood Bourhill v Young and to have cited Hambrook v Stokes Bros240 and King v Phillips for a proposition for which they were not authority. [7.490] Page v Smith241 has had a major effect on English psychiatric damage law. It has torn the fabric apart and stitched it together again so differently as to be almost unrecognisable. Certainly, there was a time when the courts required reasonable foreseeability of impact, rather than shock, but this was when the law was still at an early stage of development and the courts attempted to limit recovery to those within the zone of physical danger, rather than those who were merely witnesses and who therefore could be injured only by shock.242 Whatever may have happened to the law of psychiatric damage in its earlier formative period, 233

Page v Smith [1996] AC 155 at 188–189.

234

Page v Smith [1996] AC 155 at 190.

235

King v Phillips [1953] 1 QB 429.

236

Bourhill v Young [1943] AC 92.

237

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

238 Compare the view of Lord Jauncey of Tullichettle in Page v Smith [1996] AC 155 at 175 that The Wagon Mound (No 1) “was a case of direct damage by fire, comparable to a participant case, but the judgment nevertheless applies it to the dictum of Denning LJ [in King v Phillips]”. 239

Jaensch v Coffey (1984) 155 CLR 549.

240

Hambrook v Stokes Bros [1925] 1 KB 141.

241

Page v Smith [1996] AC 155.

242

See [7.400]–[7.410].

258

Part III: Liability for Mental Harm

[7.500]

for the past 70 years this category of claim has been regarded as conceptually separate from ordinary cases of personal injury, marked off by the requirement that there must be reasonable foresight of psychiatric harm, assessed on an ex post facto basis. It has also been, and in England and some other jurisdictions continues to be, limited by various other principles imposed in the name of proximity or policy. [7.500] Further, the previous case law cannot be overcome as easily as Lord Lloyd suggests. There is a solid wall of authority in favour of the test of reasonable foreseeability of psychiatric injury.243 It appears that his Lordship would disregard any such pronouncement, however weighty, if it was made in a secondary victim case, but it is impossible to brush aside so many decisions on this basis; this applies with particular force to leading expositions of general principle by final appellate courts such as the decision of the High Court in Jaensch v Coffey.244 Even on Lord Lloyd’s view, it is difficult to explain away decisions such as Brice v Brown245 and Attia v British Gas plc.246 In the former case the plaintiff was involved in the accident and was therefore clearly a primary victim, and yet Stuart-Smith LJ expressly required reasonable foresight of injury by shock as a precondition for compensating her for resulting psychiatric harm. In Attia the plaintiff suffered psychiatric harm through witnessing the burning down of her house as a result of the negligence of employees of the defendant who were installing central heating. All three judges in the English Court of Appeal stated that the appropriate test was reasonable foreseeability of psychiatric harm. The plaintiff in this case cannot possibly be regarded as a secondary victim (unless the house be regarded as the primary victim, which would be a bizarre approach). Many of the other authorities that affirm the proposition that what the law requires is reasonable foreseeability of psychiatric injury247 are not standard secondary victim cases.248 243

See [7.410].

244

Jaensch v Coffey (1984) 155 CLR 549.

245

Brice v Brown [1984] 1 All ER 997. The leading judgment was given by Stuart-Smith LJ. Note that his dissenting judgment in Vernon v Bosley (No 1) [1997] 1 All ER 577 at 583 adheres to orthodox principle: he says: “Thus in the case of a primary victim, that is to say one who suffers nervous shock and psychiatric illness in consequence of fear for his safety, the defendant is only liable if it is reasonably foreseeable that a person of ordinary phlegm would so suffer” (emphasis added). See also McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 9 per Stuart-Smith LJ, referring to the trial judge’s decision in that case. 246

Attia v British Gas plc [1988] QB 304.

247

See [7.410].

248

See eg Chadwick v British Railways Board [1967] 1 WLR 912 (rescuer); Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 (employee/rescuer); Vince v Cripps Bakery Ltd (1984) Aust Torts Rep 80-668 (defective product); Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723 (tortfeasor was primary victim); Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 (employee); Wodrow v Commonwealth (1993) 45 FCR 52 (employee); Gibson v Berkowitz (1996) (4) SA 1029 (W) (doctor–patient relationship); Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 (banker–customer relationship).

[7.520]

7 Duty and Other Elements of Liability

259

[7.510] It may be that Lord Lloyd’s new approach was inspired by a desire to find a simple solution to a seemingly simple case. Why, it might be asked, when the plaintiff had been deprived of the capacity to work and had suffered damages quantified by Otton J at £162,153, and the defendant was presumably insured, should the attempt to compensate the plaintiff for his loss be frustrated by the need to show that psychiatric injury, rather than any other sort of personal injury, was foreseeable? Establishing the foreseeability of harm of this kind was not an easy hurdle to overcome on the facts of the case, involving as it did a fairly minor collision in which no one was hurt. Three judges in the English Court of Appeal and two in the House of Lords thought that it was inappropriate to conclude that psychiatric harm was foreseeable in the circumstances. Nevertheless, it can be maintained that the possibility of psychiatric injury cannot be ignored, even in a case involving a fairly minor collision between two cars travelling at 30 miles an hour. This view was endorsed by Lord Lloyd as a fall-back position249 and also by Lord Ackner.250 [7.520] As noted elsewhere,251 Lord Lloyd’s judgment was subjected to a detailed critical analysis in the dissenting judgment of Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police.252 His Lordship reaffirmed the previously accepted foresight test, and said that the requirements of reasonable fortitude and viewing with hindsight should continue to apply in all cases.253 It has also been noted that courts in other jurisdictions,254 and in particular in Australia, have made it clear that the rules in Page v Smith255 form no part of their law.256 The English Law Commission in its 1998 report257 was clearly uncomfortable with the developments stemming from Page v Smith, and made some recommendations designed to limit its effects.258 However, it stopped short of carrying these recommendations through to their logical conclusion by advocating the reversal of the rule that reasonable foreseeability of psychiatric illness is not required where physical injury to the plaintiff is reasonably foreseeable. In so doing, the Commission deferred to the views of those consultees (mainly legal practitioners and

249

Page v Smith [1996] AC 155 at 197.

250

Page v Smith [1996] AC 155 at 170.

251

See [3.80].

252

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

253

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 469–470, 476–477.

254

Except Scotland and Northern Ireland, whose courts are bound by decisions of the House of Lords: see [3.570].

255

Page v Smith [1996] AC 155.

256

See [3.230] (Australia), [3.380] (Canada), [3.550] (South Africa), [3.680] (Ireland), [3.720] (Singapore). Note also [3.790] (United States).

257

Liability for Psychiatric Illness (Law Com No 249, 1998).

258

See [3.270].

260

Part III: Liability for Mental Harm

[7.530]

judges) who saw the relaxation of the foreseeability test as convenient.259 It concluded that there was no strong support for the reversal of the decision, and that there had been insufficient time to assess its full impact.260 The Scottish Law Commission’s report submitted six years later261 was much bolder. Having commented on the disadvantages of the division into primary and secondary victims and the different rules applying in each class of case,262 it recommended that there should be liability for unintended mental harm only if the harm amounted to a medically recognised disorder and the person foresaw, or could reasonably have foreseen, at the time of the act causing the harm, that the act was likely to cause such harm to a person in the position of the victim.263

BREACH AND CAUSATION [7.530] Breach and causation do not generally raise special issues in psychiatric damage cases, and so can be dealt with very briefly.264

Breach [7.540] The plaintiff must establish that the defendant was negligent, that is, that the defendant failed to live up to the standard set by a reasonable person in his or her position. Various factors, such as age, intelligence and experience, are taken into account in setting this standard, though of course there are cases where the ordinary standard is not appropriate, pre-eminently when the defendant professes some special skill, in which case he or she must be judged by the standard not of the ordinary person but of a reasonable person possessed of that skill. Whatever the standard, various factors are applied in determining how the reasonable person would act in the situation in question — for example, the likelihood of harm, its potential seriousness, the cost of taking precautions, and the benefits of the activity in which the defendant was involved. As a result of the enactment of the Civil Liability Acts, the legislation in most Australian jurisdictions now contains statutory statements of general principle defining when a person is negligent in failing to take precautions against a risk of harm,265 and setting out matters to be considered in determining whether a reasonable person 259

“It appears however that the responses from practitioners were simply expressions of view, unsupported by any analysis”: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 474 per Lord Goff of Chieveley.

260

Liability for Psychiatric Illness (Law Com No 249, 1998), paras 5.12–5.15.

261

Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004).

262

Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), paras 2.6–2.16.

263

Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.44.

264

No attempt has been made to provide authority for most of the well-known propositions about the general law of negligence set out in [7.540]–[7.570]. The authorities can be found in any torts text.

265

See Civil Law (Wrongs) Act 2002 (ACT), s 43(1); Civil Liability Act 2002 (NSW), s 5B(1); Civil Liability Act 2003 (Qld), s 9(1); Civil Liability Act 1936 (SA), s 32(1); Civil Liability Act 2002 (Tas), s 11(1); Wrongs Act 1958 (Vic), s 48(1); Civil Liability Act 2002 (WA), s 5B(1).

[7.560]

7 Duty and Other Elements of Liability

261

would have taken precautions.266 Though in some jurisdictions these provisions are found in a Division somewhat confusingly headed “Duty of care”,267 it is clear that they in fact deal with what the above classifications refer to as “standard of care” or “breach of duty”.268 Duty of care in most instances has not been the subject of statutory provisions, though mental harm is the leading exception to that general proposition.269 [7.550] It should be stressed that the relevant standard is the reasonable person in the defendant’s position. Lord Russell of Killowen in McLoughlin v O’Brian270 pointed out that there was a tendency in the cases to talk of the reasonable bystander, an error that probably originated with Lord Wright in Bourhill v Young271 who talked of the reasonable observer, a phrase echoed by Denning LJ in King v Phillips272 and the English Court of Appeal in McLoughlin v O’Brian.273 Lord Russell is of course correct. Questions of breach of the duty to prevent causing psychiatric injury must be assessed from the point of view of a reasonable person in the shoes of the tortfeasor.

Causation [7.560] There must be a causal link between the defendant’s negligence and the psychiatric harm suffered by the plaintiff. This issue has generally been decided by recourse to the “but-for” test, that is, asking if the harm would not have occurred but for the negligence. However, this test never resolved all causation issues, particularly the more complex cases such as those involving multiple causes or successive injuries, and cases where some other factor (whether the intervention of a third party or the plaintiff, or some natural event) came between the negligence and the damage were always more difficult, involving as they did not just pure causation questions but also issues of foreseeability and reasonableness. However, in many psychiatric injury cases the issue is straightforward 266 See Civil Law (Wrongs) Act 2002 (ACT), s 43(2); Civil Liability Act 2002 (NSW), s 5B(2); Civil Liability Act 2003 (Qld), s 9(2); Civil Liability Act 1936 (SA), s 32(2); Civil Liability Act 2002 (Tas), s 11(2); Wrongs Act 1958 (Vic), s 48(2); Civil Liability Act 2002 (WA), s 5B(2). 267

Civil Law (Wrongs) Act 2002 (ACT), Pt 4.2; Civil Liability Act 2002 (NSW), Pt 1A Div 2; Civil Liability Act 1936 (SA), Pt 6 Div 1; Wrongs Act 1958 (Vic), Pt X Div 2; Civil Liability Act 2002 (WA), Pt 1A Div 2; compare Civil Liability Act 2003 (Qld), Ch 2 Pt 1 Div 1 (“Breach of duty”); Civil Liability Act 2002 (Tas), Pt 6 Div 2 (“Standard of care”).

268

See Sydney Water Corporation v Turano (2009) 239 CLR 51 at [18] per French CJ, Gummow, Hayne, Crennan and Bell JJ; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13] per French CJ, Gummow, Hayne, Heydon and Crennan JJ; Department of Housing and Works v Smith (No 2) (2010) 41 WAR 217 at [76]–[77] per Buss JA.

269

See J Dietrich, “Duty of Care under the “Civil Liability Acts”” (2005) 13 TLJ 17; D Butler, “A Comparison of the Adoption of the Ipp Report Recommendations and Other Personal Injuries Liability Reforms” (2005) 13 TLJ 203.

270

McLoughlin v O’Brian [1983] 1 AC 410 at 429.

271

Bourhill v Young [1943] AC 92 at 111.

272

King v Phillips [1953] 1 QB 429 at 441.

273

McLoughlin v O’Brian [1981] QB 599 at 613 per Stephenson LJ.

262

Part III: Liability for Mental Harm

[7.570]

enough, and courts have ruled that the mental harm suffered by the plaintiff was caused or contributed to by the defendant’s breach of duty,274 or that the harm would have happened anyway and so causation was lacking.275 [7.570] In March v E & MH Stramare Pty Ltd,276 the Australian High Court rejected the “but-for” test as the exclusive determinant of causation in favour of applying the principles of “common sense causation”. The criterion for determining whether a breach of duty to take care caused damage was now to be based on general considerations including the drawing of inferences from established facts and the assessment of alleged causative factors from the standpoint of material contribution, necessitating a value judgment involving ordinary notions of language and common sense, and downplaying the role traditionally afforded to the “but-for” test. Australian courts have applied these principles in psychiatric injury cases. For example, in Miller v Royal Derwent Hospital Board of Management277 Zeeman J used the March v Stramare approach to reject a claim by a nurse that the psychiatric illness she suffered following the death by strangulation of a young epileptic whom she had strapped to a chair in an emergency was due to the hospital’s failure to provide post-trauma psychiatric counselling.278 [7.580] Australian law may be returning to a more traditional approach to matters of causation. The Civil Liability Acts in most jurisdictions now contain further statutory statements of general principle279 which distinguish between a determination that the negligence was a necessary condition of the occurrence of the harm (factual causation) and a 274

See eg Vernon v Bosley (No 1) [1997] 1 All ER 577; Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158; Norris v Road Accident Fund [2001] 4 All SA 321 (SCA); Shorey v PT Ltd (2003) 77 ALJR 1104.

275

See eg Griffiths v Canadian Pacific Railways (1978) 6 BCLR 115; Tash v Nicholas (1981) 132 New LJ 989; Cox v Fleming (1993) 13 CCLT (2d) 305; Nespolon v Alford (1998) 161 DLR (4th) 646; Krishna v Loustos [2000] NSWCA 272; AMP General Insurance Co Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [33] per Spigelman CJ, at [200] per Davies AJA; Bailey v Urban Transit Authority [2002] NSWCA 239. 276

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. See NJ Mullany, “Common Sense Causation – An Australian View” (1992) 12 OJLS 431. The decision was applied in Bennett v Minister of Community Welfare (1992) 176 CLR 408. See also Chappel v Hart (1998) 195 CLR 232; Rosenberg v Percival (2001) 205 CLR 434. 277

Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271.

278

See also Cleary v Congregation of the Sisters of the Holy Family at Nazareth (unreported, Qld SC, No 1066 of 1995, 23 December 1996); Keeys v Queensland [1998] 2 Qd R 36; AMP General Insurance Co Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [151] per Heydon JA; Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd (2004) Aust Torts Rep 81-740. Note Millicent and District Hospital Inc v Kelly (unreported, SA FC, No SCGRG 2486 of 1995, 10 September 1996), noted by J Devereux (1997) 4 JLM 224, who suggested that the reasoning of Zeeman J in Miller v Royal Derwent Hospital Board of Management should have been adopted. 279

See Civil Law (Wrongs) Act 2002 (ACT), s 45; Civil Liability Act 2002 (NSW), s 5D; Civil Liability Act 2003 (Qld), s 11; Civil Liability Act 1936 (SA), s 34; Civil Liability Act 2002 (Tas), s 13; Wrongs Act 1958 (Vic), s 51; Civil Liability Act 2002 (WA), s 5C.

[7.600]

7 Duty and Other Elements of Liability

263

determination that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability) — hitherto usually referred to as remoteness of damage, considered at [7.600]–[7.610]. The legislation also provides that proof of causation is on the plaintiff on the balance of probabilities.280 The aim of these provisions is to make a clear division between issues of fact and policy questions, and ensure that matters of policy are excluded from the causal inquiry.281 [7.590] In practice, a causal relationship may be assumed,282 thus allowing the court to concentrate on other issues of liability. In other cases it falls to be established on the evidence, and in such situations the court may be particularly dependent on the evidence of professionals such as psychiatrists.283 As Lord Bridge has remarked, “psychiatric medicine is far from being an exact science”284 but nonetheless psychiatrists are experienced in separating truth from falsehood.285

REMOTENESS OF DAMAGE General principles [7.600] The consequences of negligence for which the defendant can be held liable are limited by the remoteness of damage principle. Even though it can be established that the harm was caused by the defendant’s breach of duty, the tortfeasor will be held liable only for those consequences that are not too remote. According to the decision of the Privy Council in The Wagon Mound (No 1),286 plaintiffs may only recover

280

See Civil Law (Wrongs) Act 2002 (ACT), s 46; Civil Liability Act 2002 (NSW), s 5E; Civil Liability Act 2003 (Qld), s 12; Civil Liability Act 1936 (SA), s 35; Civil Liability Act 2002 (Tas), s 14; Wrongs Act 1958 (Vic), s 52; Civil Liability Act 2002 (WA), s 5D.

281

The form of these provisions was clearly inspired by J Stapleton, “Cause-in-Fact and the Scope of Liability for Consequences” (2003) 119 LQR 388: see Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 7.27.

282

As it was, for example, in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC

310. 283

On refusal to submit to a psychiatric examination see eg Lane v Willis [1972] 1 WLR 326.

284

McLoughlin v O’Brian [1983] 1 AC 410 at 432.

285

See Hevican v Ruane [1991] 3 All ER 65 at 71 per Mantell J.

286

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388: see especially at 425–426 per Viscount Simonds. RWM Dias, “Remoteness of Liability and Legal Policy” [1962] CLJ 178 fn 2 lists much of the vast literature that has accumulated on this topic; later articles include D Jackson, “A Kind of Damage — Foreseeability, Probability and Causation” (1965) 39 ALJ 3; JC Smith, “Requiem for Polemis” (1965) 2 UBC L Rev 159. It must be remembered that the discussion in the text is concerned only with responsibility for unintended consequences. The consequences which flow from an intention to injure the plaintiff are never too remote: see Quinn v Leathem [1901] AC 495 at 537 per Lord Lindley; H McGregor, Damages (18th ed, Sweet & Maxwell, London, 2009), para 6-048.

264

Part III: Liability for Mental Harm

[7.600]

for damage that is of a foreseeable kind,287 but it is only the general kind of damage that must be foreseeable, and not its particular nature, its extent or the manner of its infliction.288 This may have been a general requirement in negligence a long time ago,289 but after the decision in Re Polemis and Furness, Withy & Co290 it appeared to have been superseded by a rule that the defendant was responsible for all direct consequences of his or her negligence, however unforeseeable. Such a rule seemed to leave no room for any proposition based on foresight of the kind of damage in suit.291 Re Polemis in its turn, however, was rejected. In The Wagon Mound (No 1), the Privy Council restored the foreseeability test and held that there would be no liability for a negligent breach of duty unless the damage suffered was of a foreseeable kind. This begged the question how foreseeable the damage had to be, for the range of probability stretches from “infinitely remote” through “possible” and “probable” and all the other variant shades of likelihood to “almost certain”. The degree of foreseeability that would satisfy the new test was articulated in The Wagon Mound (No 2),292 a second action arising out of the same circumstances: Lord Reid identified a foreseeable risk as a “real risk”, that is, “one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as farfetched”.293 His Lordship summarised the two Wagon Mound cases as having decided that “the defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it”.294 287

For a case where particular items of damage claimed by the plaintiff were held not to have resulted from the anxiety condition suffered by him as a result of the defendant’s negligence see Keys v British Gas plc (unreported, Eng CA, 10 July 1991).

288

See eg Chapman v Hearse (1961) 106 CLR 112 at 120–121; Smith v Leech Brain & Co Ltd [1962] 2 QB 405; Hughes v Lord Advocate [1963] AC 837; Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518; Tremain v Pike [1969] 1 WLR 1556; R v Coté [1976] 1 SCR 595 at 604 per Dickson J; Stephenson v Waite Tileman Ltd [1973] 1 NZLR 52; Jolley v Sutton London Borough Council [2000] 1 WLR 1082. Note also the rule that the defendant must take the plaintiff as he or she finds him or her: see [8.280]–[8.380]. 289

See Rigby v Hewitt (1850) 5 Exch 240; 155 ER 103 at 104 per Pollock CB; Greenland v Chaplin (1850) 5 Exch 243; 155 ER 104 at 106 per Pollock CB.

290

Re Polemis and Furness, Withy & Co [1921] 3 KB 560. See M Davies, “The Road from Morocco: Polemis through Donoghue to No-Fault” (1982) 45 MLR 534. 291

See, however, MA Jones and AM Dugdale, Clerk & Lindsell on Torts (20th ed, Sweet & Maxwell, London, 2010), para 2-143 for an alternative interpretation of the Polemis principle which recognised the need for a foreseeable kind of damage. This interpretation (attributed to JWC Turner) is fully discussed by RWM Dias, “Remoteness of Liability and Legal Policy” [1962] CLJ 178. 292

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617.

293

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 at 643. See RWM Dias, “Trouble on Oiled Waters: Problems of The Wagon Mound (No 2)” [1967] CLJ 62.

294

Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350 at 385–386.

[7.630]

7 Duty and Other Elements of Liability

265

[7.610] As noted at [7.580], in Australia, the Civil Liability Acts now contain statutory statements the aim of which is to make a clear distinction between the factual question of whether the harm was caused by the defendant’s negligence and the policy issues involved in determining the limits of the defendant’s responsibility for that harm. The legislation provides that a determination that negligence caused particular harm comprises two elements: that the fault was a necessary condition of the occurrence of the harm (factual causation), and that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

Remoteness principles as applied to psychiatric injury cases [7.620] As applied to psychiatric injury cases, the effect of The Wagon Mound (No 1)295 is that the test of liability for psychiatric injury is foreseeability of psychiatric injury. Psychiatric damage cases played an important part in this decision. Viscount Simonds noted that the test of liability for nervous shock was foreseeability of injury by shock. He substituted fire for shock and applied it to the facts of the case,296 which, as is well known, involved the ignition through welding operations of oil carelessly discharged into Sydney Harbour and the consequent damage to the plaintiff’s wharf and two vessels moored there. While damage by fouling was clearly foreseeable, damage by fire was not. The prior utilisation of these principles in psychiatric damage suits led Haines J in Marshall v Lionel Enterprises Inc297 to say that The Wagon Mound (No 1) had made little change in the law governing liability for psychiatric injury. [7.630] In some psychiatric injury cases, courts have held that particular items of damage are too remote because they are not of a foreseeable kind. In Antonatos v Dunlop, Allsop & Transport & General Insurance Co Ltd,298 for example, the plaintiff’s mental condition following a car accident caused the break-up of his marriage and led him to dispose of his share in a partnership at a substantial under-value. It was held that though these losses were consequences that ensued from the defendant’s tort, the Wagon Mound principle did not entitle him to be compensated for the losses sustained as the result of the sale of the business or losing his wife’s affection and companionship. They were not foreseeable, and they were different in kind from those losses that were foreseeable. Again, in Jinks v Cardwell,299 though the wife of a mental patient who drowned in a bath due to the defendant’s negligence recovered for the shock she 295

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

296

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 at 426.

297

Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 147.

298

Antonatos v Dunlop, Allsop & Transport & General Insurance Co Ltd [1968] Qd R 114.

299

Jinks v Cardwell (1987) 39 CCLT 168, reversed in part on other grounds, sub nom Jinks v Abraham (unreported, Ont CA, Doc Nos CA 181/87, 195/87, 23 June 1989).

266

Part III: Liability for Mental Harm

[7.640]

suffered when told by a doctor that he had committed suicide, the legal costs of clearing his name were adjudged different in kind and too remote.300 By contrast, in Nader v Urban Transit Authority of New South Wales,301 as in the earlier Canadian case of Duwyn v Kaprielian,302 children recovered for recognisable psychiatric injury because the damage was of a foreseeable kind even though its extent was not foreseeable. In each case, the injury had been exacerbated as a result of the over-protective response of the child’s parents. Nonetheless, such a reaction was not outside the bounds of foreseeability. Morden JA in Duwyn v Kaprielian303 added that, quite apart from foreseeability, the conduct of the parents could not be considered to be a new intervening force that actively operated to produce the harm after the defendant’s negligent act had taken place.304 [7.640] It is not always clear what is meant by the Wagon Mound requirement that the kind of damage must be foreseeable.305 On at least one occasion it has been held that damage falling under the umbrella description “nervous shock” or “psychiatric damage” will not satisfy the “kind of damage” criterion in all cases. In Rowe v McCartney,306 the defendant, while driving a friend’s car with the friend as passenger, rammed a telegraph pole, thereby rendering himself a quadriplegic. However, the friend failed in her claim for damages for resulting psychiatric illness because the type of mental disorder she sustained was not foreseeable.307 Two judges of the New South Wales Court of Appeal proceeded on the basis that it was proper to define the type of injury more narrowly. The plaintiff’s psychiatric illness was not associated with the experience of involvement in a car crash, but stemmed from guilt at having agreed to allow the defendant to drive her car which was too powerful for him and with which he was unfamiliar, and aggravated by 300

A more debatable decision is Shewan v Sellars (No 1) [1963] QWN 19 where the plaintiff was held unable to recover for the anxiety neurosis suffered on learning of the severity of the injuries to his wife and child in a car accident in which he was also involved or for the loss of his employment consequent on his inability to cope. The court’s decision was influenced by Chester v Waverley Corporation (1939) 62 CLR 1. Under current law it is probable that the anxiety neurosis, at least, would not be regarded as too remote.

301

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.

302

Duwyn v Kaprielian (1978) 94 DLR (3d) 424.

303

Duwyn v Kaprielian (1978) 94 DLR (3d) 424 at 441.

304

Note also Government Insurance Office of New South Wales v Maroulis (unreported, NSWCA, CA Nos 274 and 275 of 1988, 6 April 1990) where the court rejected an argument that the domestic discord between husband and wife after the husband’s accident had obliterated the effects of the wife’s initial psychiatric injury. 305

See D Jackson, “A Kind of Damage — Foreseeability, Probability and Causation” (1965) 39 ALJ 3; D Butler, “A “Kind of Damage”: Removing the “Shock” from “Nervous Shock”” (1997) 5 TLJ 255. Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402 referred to this requirement as a “comfortable latitudinarian doctrine”.

306 307

Rowe v McCartney [1976] 2 NSWLR 72.

A causal connection between the plaintiff’s neurosis and the defendant’s negligent conduct was also lacking. The mental damage was considered to have been caused by the plaintiff’s own antecedent decision to allow the defendant to drive her car.

[7.650]

7 Duty and Other Elements of Liability

267

the fact that his injuries were non-compensable. Perceiving a need to penetrate the category of “mental illness” more closely, Moffitt P and Samuels JA found that the neurotic guilt-based disorder was an injury that no reasonable driver could have regarded as a likely consequence of his or her carelessness.308 Glass JA dissented, refusing to qualify the “kind of damage” criterion in this manner. [7.650] This decision was controversially applied by Brooke LJ in the English Court of Appeal in Hunter v British Coal Corporation,309 where the plaintiff, who was employed as a vehicle driver in a mine, suffered an anxiety reaction, depression and pathological guilt reaction because he thought he was responsible for the death of a workmate, Tommy Carter, when a water hydrant burst shortly after being struck by the vehicle the plaintiff was driving. The plaintiff had gone for help while Carter tried to turn off the water, and was about 30 metres away when it burst. He heard a message over the loudspeaker that a man had been injured, and on his way back to the scene he was told that Carter was dead. Brooke LJ and Sir John Vinelott held that he could not recover damages because he was not present at the scene and had learnt of it by being told by someone else. The controversial nature of this decision is highlighted by the approach of the dissenting judge, Hobhouse LJ, who held that the plaintiff should be able to recover because he fell into the category of those who had involuntarily become responsible for injury to others.310 However, Brooke LJ added a further strand of controversy by saying: “This appeal raises a quite new point. Under what circumstances does the law provide compensation for survivor’s guilt?” He went on to refer to the decision in Rowe v Macartney311 at some length, even though it had not been referred to in argument,312 and said: I do not suggest that the present case is on all fours with Rowe v Macartney [1976] 2 NSWLR 72 but the judgments of the majority in Rowe’s case illustrate vividly the problems that are likely to occur while the law grapples on a case by case basis with the conundrum of identifying the categories of people who should be entitled to recover damages for guilt-induced depression following a serious accident.313

His conclusion was that, in the absence of binding authority, the court should not push forward the frontiers of liability by finding the defendant 308

Rowe v McCartney [1976] 2 NSWLR 72 at 75–76 per Moffitt P, at 89–90 per Samuels JA. Moffitt P took the view that “psychiatric damage arising from circumstances external to the trauma caused by the negligent act can … be classified according to the kind of chain that links the damage with the negligent act” (at 75).

309

Hunter v British Coal Corporation [1999] QB 140, noted by NJ Mullany (1999) 115 LQR 30; H Teff (1998) 6 Tort L Rev 190. 310

See [26.210].

311

Rowe v McCartney [1976] 2 NSWLR 72.

312

Hunter v British Coal Corporation [1999] QB 140 at 168 per Hobhouse LJ.

313

Hunter v British Coal Corporation [1999] QB 140 at 153 per Brooke LJ.

268

Part III: Liability for Mental Harm

[7.660]

liable in the circumstances of this case, at a time when the English Law Commission’s report on its general review of liability for psychiatric illness was imminent. [7.660] It is doubtful whether such a decision would have extended the boundaries of liability: as Hobhouse LJ’s dissent makes clear, an existing principle was available. Moreover, it is highly doubtful whether the impending report should have influenced the decision. These issues apart, Brooke LJ in following the Rowe v Macartney314 approach was making an impermissible distinction between the categories of psychiatric injuries required to have been foreseen by the defendant, contrary to established general principle. It is usually accepted that what is required is foreseeability of shock generally — of some kind of psychiatric damage — and that the precise nature of that damage need not be foreseeable. This issue was specifically raised in Mount Isa Mines Ltd v Pusey315 where the plaintiff’s efforts to rescue workmates who had been badly burnt by an electric arc when testing a switchboard caused him to develop schizophrenia. The trial judge held that although this particular manifestation of psychiatric injury could not have been foreseen, it was within the broad category of psychiatric damage that was foreseeable. On appeal to the High Court the defendant contended that this was wrong, but the High Court disagreed, affirming the proposition that what the defendant had to foresee was the occurrence of the class of injury, mental disorder, rather than the particular illness.316 This approach was reaffirmed by Brennan J in Jaensch v Coffey.317 Once the plaintiff has sustained the kind of injury that could reasonably have been foreseen as the result of the trauma caused by the tortfeasor (namely, psychiatric injury), it is immaterial that the precise medical category of psychiatric injury was unforeseeable, and foresight of the precise mental or psychological process that led to the condition in question is unnecessary.318 [7.670] The danger of cases like Hunter v British Coal Corporation319 is that those who read Brooke LJ’s judgment without appreciating the general background or the current status of the decision in Rowe v 314

Rowe v McCartney [1976] 2 NSWLR 72.

315

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

316

See particularly at 390 per Barwick CJ, at 392 per McTiernan J, at 393 per Menzies J, at 402 per Windeyer J, at 410–412, 414 per Walsh J. The same approach is adopted under the Civil Liability Acts: Hollier v Sutcliffe [2010] NSWSC 279 at [220] per RA Hulme J.

317

Jaensch v Coffey (1984) 155 CLR 549 at 563. See also eg Brice v Brown [1984] 1 All ER 997 at 1007 per Stuart-Smith J; Attia v British Gas plc [1988] QB 304 at 312 per Dillon LJ; Gillespie v Commonwealth (1991) 104 ACTR 1 at 4, 17 per Miles CJ; New South Wales v Seedsman (2000) 217 ALR 583 at [22]–[36] per Spigelman CJ. Note also Ostrowski v Lotto (1968) 2 DLR (3d) 440 where it was held that mental illness was not a kind of damage that was foreseeable as a consequence of negligence in the performance of an operation. 318

Brice v Brown [1984] 1 All ER 997 at 1007 per Stuart-Smith J.

319

Hunter v British Coal Corporation [1999] QB 140.

[7.670]

7 Duty and Other Elements of Liability

269

Macartney320 may assume that the “survivor guilt” approach has a legitimacy that it does not possess.321 The court that decided Rowe v Macartney has suggested that the decision may need to be revisited,322 and in AMP General Insurance v Roads and Traffic Authority of New South Wales323 Heydon JA subjected it to a detailed review. According to his Honour, one issue in the case before him was “does reasonable foreseeability of injury-induced depression entail reasonable foreseeability of litigation-induced depression?”. An employee suffered depression and adjustment disorder as a result of injury at work and, having commenced a compensation claim, committed suicide after a stressful crossexamination. His wife heard him remove the gun from his gun locker, followed him, heard a shot and then found his body. Her claim against her deceased husband’s employers for psychiatric injury under the Compensation to Relatives Act 1897 (NSW) and as executrix of his estate was rejected by the New South Wales Court of Appeal on the ground that his suicide broke the chain of causation between the tort and her injuries.324 On the Rowe v Macartney issue, Heydon JA, referring to a subsequent case in which the court had confirmed the ratio decidendi of the decision,325 said: While on the one hand McHugh JA denies that different mental illnesses can be divided into “kinds” or “categories”, both he and Samuels JA saw damage in the form of mental illness caused by the car accident as different from damage in the form of mental illness caused by irrational guilt feelings about the origins of the car accident. In terms of foreseeability they saw the crucial issue as being whether shock consequent on physical injury on the happening of the accident was foreseeable or whether in addition shock from feelings of guilt was. In terms of causation, what Rowe v Macartney decided was that the particular psychiatric illness was not relevantly related to the accident, despite the fact that it would not have occurred had the accident not happened. Similar inquiries are called for here. They reveal that it is not enough to find merely 320

Rowe v McCartney [1976] 2 NSWLR 72.

321

No Rowe v Macartney argument was raised in Clarke v McFadyen 1989 SCLR 792, where the pursuer recovered for depression consequent on the death of her sister in an accident. Her illness was partially due to a feeling that she was responsible for her sister’s death. The court made it clear that this did not affect their finding that the illness was caused by the accident.

322 Morgan v Tame (2000) 49 NSWLR 21 at [37] per Spigelman CJ. Note also Hodgkinson v Government Insurance Office of New South Wales (unreported, NSW SC, No 17181 of 1987, 23 July 1996), where the plaintiff had asked a friend to give him a lift on his motorcycle, and was injured in the accident in which the motorcyclist lost his life. Allen J distinguished Rowe v Macartney on the ground that the plaintiff’s sense of guilt was not the sole connection between the deceased’s negligence and the plaintiff’s psychiatric illness. 323

AMP General Insurance v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619. 324

Heydon JA said that the reasoning in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 was not applicable to the circumstances of this case, which resembled Pigney v Pointers Transport Services Ltd [1957] 1 WLR 1121, a case decided in the era of the direct consequences test of remoteness of damage stemming from Re Polemis & Furness, Withy & Co [1921] 3 KB 560. 325

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.

270

Part III: Liability for Mental Harm

[7.680]

that psychiatric illness “of some kind” was foreseeable as a result of the physical injuries which the Deceased suffered.326

This statement emphasises that the situation in Rowe v Macartney was special, and that the decision is not a warrant for requiring foreseeability of the particular kind of psychiatric illness in every case. [7.680] Even more fundamentally, the basis of the majority’s decision in Rowe v Macartney327 has now been called into question by the judgment of McMeekin J in Oram v BHP Mitsui Coal Pty Ltd,328 a case arising out of the Moura Mine disaster of 7 August 1994 in which 11 men died in a mine explosion. The plaintiff did not turn up for work on that day and the man who took his place was one of the victims. The plaintiff later took part in the search for survivors. Nearly 16 years later, he was diagnosed with a major depressive disorder, and sought an extension of the limitation period. McMeekin J accepted that there was evidence to establish the right of action (one of the requirements for obtaining an extension of the limitation period in personal injury cases in Queensland)329 but refused the application on the ground that the respondents would suffer prejudice. In relation to the first issue, the defendant argued that the decision in Rowe v Macartney precluded recovery. In response, McMeekin J questioned whether the decision had any authority. According to the majority judgments, the plaintiff had sought to extend the liability of the driver for his negligent driving to all those who might blame themselves for his injuries, no matter how irrational the link. If this reasoning had any validity, it was not applicable to the case before him, where the connection between the guilt felt by the plaintiff and the employment relationship on which the duty depended could not be doubted, and there was no evidence that the connection between Mr Oram’s illness and the breach of duty was an irrational one.330 More fundamentally, however, the majority in Rowe v Macartney had overlooked the point made by Glass JA in dissent that the test of responsibility was whether psychiatric injury as a general class of injury was foreseeable, and the particular kind of psychiatric injury, and whether the plaintiff’s particular mental make-up had contributed to it, were not relevant.331 As the High Court had confirmed in Tame v New South Wales,332 normal fortitude was simply a factor to be weighed up at the duty stage.

326

AMP General Insurance v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [138]. 327

Rowe v McCartney [1976] 2 NSWLR 72.

328

Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230.

329

Limitation of Actions Act 1974 (Qld), s 31(2).

330

Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [75]–[78].

331

Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [79]–[84].

332

Tame v New South Wales (2002) 211 CLR 317.

[7.710]

7 Duty and Other Elements of Liability

271

Relationship with duty of care rules [7.690] It can be seen that foreseeability plays a number of roles in the tort of negligence. In Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd,333 Glass JA provided a valuable analysis of the differences between the various foreseeability issues: [A] recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and the plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter: Chapman v Hearse (1961) 106 CLR 112 at 120, 121. The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff’s person or property: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd; The Wagon Mound (No 2) [1967] 1 AC 617 at 642, 643; Wyong Shire Council v Shirt (1980) 29 ALR 217 at 219-22. Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant: ibid. The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant.

[7.700] Applying this to psychiatric injury, it becomes apparent that it does not quite fit. As discussed at [7.310]–[7.440], foreseeability of psychiatric injury is an important component of duty in such cases, whereas foreseeability of the kind of damage is normally regarded as part of the remoteness inquiry.334 Clearly, there is potential for confusion here. For example, one Australian judge has said of the statutory duty of care provisions that “While [the section] is expressed in terms of a defendant not owing a duty of care not to cause mental harm, in substance it imposes a statutory remoteness test analogous to the common law test of remoteness in tort which requires that the type of damage be reasonably foreseeable by the defendant.”335 It is necessary to investigate whether there is any way in which this problem can be resolved. [7.710] Although theoretically distinct, the ingredients of liability are not always clearly separated from one another. Indeed, it is sometimes suggested that they are all aspects of one and the same question. The most well-known expression of this view is Denning LJ’s judgment in Roe v Minister of Health,336 where his Lordship revealed his difficulties with the standard categories by saying: “In all these cases you will find that the three questions, duty, causation and remoteness, run continually into one 333

Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295–296.

334

See also the issue discussed at [7.370].

335

Ireland v Wightman [2013] SASC 139 at [74] per Blue J.

336

Roe v Minister of Health [1954] 2 QB 66 at 85.

272

Part III: Liability for Mental Harm

[7.710]

another.”337 Similar views have been expressed in psychiatric damage cases. For example, in Beecham v Hughes,338 Lambert JA stated: The questions of foreseeability, proximity, causation and remoteness are interlocked. They are not four answers to four questions, but one composite answer to one composite question.

In Annetts v Australian Stations Pty Ltd,339 Ipp J affirmed this and other similar statements, saying: These authorities make it plain that in certain categories of cases of negligence, there are dangers in trying to make separate inquiries into duty of care, breach of duty and remoteness of damage (including causation). … In some instances, for example, in most motor vehicle accident cases, it is helpful and convenient to separate the three elements and to make separate inquiries into each. But in more complex situations, and particularly cases where damages are claimed for negligence causing psychiatric injury, there should be only one basic inquiry that incorporates an investigation into all the elements of negligence. In such a case those elements are dependent on each other and can only be defined by reference to each other.

His Honour stated his agreement with the view that there was much to recommend the approach suggested by Denning LJ in Roe v Minister of Health, which was to propound a single inquiry: “Is the consequence fairly to be regarded as within the risk created by the negligence?”340 337

See also Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1052 per Lord Pearson who said it may be “artificial and unhelpful” to consider the question of the existence of a duty of care in isolation from the other criteria of liability, and spoke of possible “illuminati[on]” by starting with the damage suffered and working back through the cause of it to the possible duty which may have been broken; Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 at 37 per Lord Denning MR who said: “The more I think about these cases, the more difficult I find it to put each into its proper pigeon-hole. Sometimes I say: ‘There was no duty.’ In others I say: ‘The damage was too remote.’ So much so that I think the time has come to discard those tests which have proved so elusive. It seems to me to be better to consider the particular relationship in hand.” For Australian examples of difficulties and confusion caused by the terminology of negligence see Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 where questions of duty and breach appear to merge; Gett v Tabet (2009) 254 ALR 504 at [321] per Allsop P, Beazley and Basten JJA. For English examples see Woods v Duncan [1946] AC 401 where an action failed for want of foreseeability, three Law Lords viewing this as denoting the absence of causation, two others viewing it as meaning that there was no breach; King v Liverpool City Council [1986] 1 WLR 890 where “duty of care” was used as an analogy for “breach of duty” in that it was said that the absence of breach by the defendant meant the absence of a duty owed to the plaintiff. Note also SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1970] 1 WLR 1017 at 1031 per Thesiger J; Al-Kandari v JR Brown & Co [1987] QB 514 at 525 per French J; Corr v IBC Vehicles Ltd [2007] QB 46 at [9] per Ward LJ. Similar issues were discussed by the United States Supreme Court in Consolidated Rail Corporation v Gottshall 512 US 532 (1994) at 546.

338

Beecham v Hughes (1988) 52 DLR (4th) 625 at 665. See also Nespolon v Alford (1998) 161 DLR (4th) 646 at [40] per Abella JA: “While the precise division of the elements may differ, and some may be viewed interchangeably, all of the foregoing elements must be brought together to determine negligence liability.”

339

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [61]–[62].

340

Roe v Minister of Health [1954] 2 QB 66 at 85.

[7.730]

7 Duty and Other Elements of Liability

273

[7.720] A different approach, but one that has much to recommend it, is to view the issues of foreseeability of the plaintiff and foreseeability of the kind of damage as elements separate and apart from the existence of a duty-situation, breach, causation and damage. This is the virtue of the analysis of the issues involved in the tort of negligence suggested by Dias.341 The two foreseeability issues function as limits on actionability. [7.730] An even more radical view is to classify all psychiatric injury issues as matters of remoteness of damage, rather than duty of care.342 It should not be forgotten that the initial case that denied liability, Victorian Railways Commissioners v Coultas,343 did so on the basis that physical injury or illness caused by fright was too remote a consequence of negligent conduct to be actionable. Even when, a few years later, in cases such as Dulieu v White & Sons344 the courts abandoned this attitude and held that there could be liability for shock if it was caused by fear of physical injury to the plaintiff, there was still considerable doubt whether this requirement related to duty or remoteness. The defendant’s plea was that the damage was too remote, and the judgment of Kennedy J suggested that the objection to be overcome was one of remoteness and not duty: This is an action on the case for negligence – that is to say, for a breach on the part of the defendants’ servant of the duty to use reasonable and proper care and skill in the management of the defendants’ van. In order to succeed the plaintiff has to prove resulting damage to herself …. In regard to the existence of the duty here, there can, I think, be no question. The driver of a van and horses in a highway owes a duty to use reasonable and proper care and skill so as to not to injure either persons lawfully using the highway or property adjoining the highway, or persons who, like the plaintiff, are lawfully occupying that property.345

However Phillimore J saw the difficulty as one of duty rather than remoteness.346 The next extension of liability in Hambrook v Stokes Bros,347 allowing a person outside the area of potential danger to recover for shock caused by an accident or near-accident to another, showed that there was still substantial uncertainty, perhaps as a result of the defendant’s admission of negligence which Atkin LJ, at least, seemed to 341

See [7.20].

342

As do successive editions of Lewis Klar’s Canadian tort text: see LN Klar, Tort Law (5th ed, Carswell, Toronto, 2012), pp 497–507. For a similar argument from the perspective of United States law, see GC Keating, “Is NIED a Freestanding Tort?” (2009) 44 Wake Forest L Rev 1131.

343

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

344

Dulieu v White & Sons [1901] 2 KB 669.

345

Dulieu v White & Sons [1901] 2 KB 669 at 671–672. Kennedy J also referred to Smith v Johnson (unreported, Eng QBD, January 1897, cited in Wilkinson v Downton [1897] 2 QB 57 at 61 per Wright J), where liability for shock suffered by a bystander was denied, as turning on remoteness.

346

Dulieu v White & Sons [1901] 2 KB 669 at 685.

347

Hambrook v Stokes Bros [1925] 1 KB 141.

274

Part III: Liability for Mental Harm

[7.740]

regard as disposing of the duty question.348 Nonetheless, at the end of the day, his Lordship said that “the question appears to be as to the extent of the duty, and not as to remoteness of damage”,349 and it seems that the other judges were in agreement.350 However, it was not until the early 1940s, when in Bourhill v Young351 the question of nervous shock liability reached the House of Lords for the first time, that the matter was authoritatively put to rest. The Law Lords had no doubt that the core issue was one of duty of care,352 and practically all cases since that time have seen the essential issue as one of duty.353 However, Denning LJ’s judgment in King v Phillips354 can be seen as an echo of the older view. The English Court of Appeal had to examine the case of a mother who suffered shock when she heard her son scream and looked out of the window of her home to see a taxi reversing over his tricycle. Denning LJ found difficulty in dealing with the case by applying the duty concept, stating that the driver’s duty should not differ according to whether the injury suffered was physical harm or nervous shock. He suggested that the reason why the mother should not recover was not because of lack of a duty owed to her, but because the damage was too remote.355 The other judges adopted the conventional approach of dealing with the case as a matter of duty.356 [7.740] Even if the conventional analysis now sees mental harm as a duty issue, some cases suggest that the duty and remoteness concepts are interchangeable, at least in certain circumstances. Where there is an initial breach of duty to the plaintiff, as in cases where he or she is involved in an accident and later suffers shock and psychiatric damage through learning of injuries to others in the same accident,357 the question of liability for mental harm caused by this means has been treated as a remoteness issue whereas in other circumstances it is a matter of duty. Miles CJ in Gillespie v Commonwealth358 adopted the same approach in a work stress case, where the relationship of employer and employee provided the duty of care. Another example is furnished by Attia v British 348

Hambrook v Stokes Bros [1925] 1 KB 141 at 156.

349

Hambrook v Stokes Bros [1925] 1 KB 141 at 158.

350

Hambrook v Stokes Bros [1925] 1 KB 141 at 151 per Bankes LJ, at 162–163 per Sargant LJ.

351

Bourhill v Young [1943] AC 92, noted by CA Wright (1943) 21 Can BR 65; AL Goodhart (1944) 8 CLJ 265.

352

Bourhill v Young [1943] AC 92 at 98 per Lord Thankerton, at 101 per Lord Russell of Killowen, at 104 per Lord Macmillan, at 106 per Lord Wright, at 113 per Lord Porter.

353

There are some areas of debate: for example, there have been differences of view as to whether the element of sudden shock is an issue of duty or causation (see Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [74]–[75] per Ipp J).

354

King v Phillips [1953] 1 QB 429.

355

King v Phillips [1953] 1 QB 429 at 440.

356

King v Phillips [1953] 1 QB 429 at 435–436 per Singleton LJ, at 443–444 per Hodson LJ.

357

As eg in Schneider v Eisovitch [1960] 2 QB 430 and Andrews v Williams [1967] VR 831: see [11.90]–[11.100]. 358

Gillespie v Commonwealth (1991) 104 ACTR 1 at 15.

[7.750]

7 Duty and Other Elements of Liability

275

Gas plc,359 where the English Court of Appeal held that there was no rule that psychiatric injury caused by witnessing damage to property (in that case, the burning down of the plaintiff’s house) could never be actionable. Woolf and Bingham LJJ considered that because the defendant clearly owed the plaintiff a duty of care not to cause damage to her home the important issue in this context was one of remoteness and not duty.360 Dillon LJ would have agreed if the plaintiff had claimed for the property damage361 — in fact, this issue had been settled. But all three judgments deal with foreseeability and policy issues that are normally analysed under the heading of duty. [7.750] This classification debate has now been given a new impetus by the judgment of McLachlin CJ in the Supreme Court of Canada in Mustapha v Culligan of Canada Ltd.362 As already noted at [7.20], McLachlin CJ commenced by setting out the elements of a successful negligence action. As to the first issue, whether the defendant owed the plaintiff a duty of care, McLachlin CJ briefly stated the current approach adopted by Canadian law.363 The focus is on the relationship between the parties, asking whether it is so close that the one may reasonably be said to owe a duty to take care not to injure the other. Whether such a relationship exists depends on foreseeability, moderated by policy concerns: Canadian law still relies on the two-step approach of Anns v Merton London Borough Council.364 However, in many cases, the relationship between the plaintiff and the defendant is of a type that has already been judicially recognised as giving rise to a duty of care. In such cases, precedent determines the question of duty of care and it is unnecessary to undertake a full duty of care analysis. This was the case in Mustapha, where cases going back to Donoghue v Stevenson365 settled that the manufacturer of products owed a duty of care to the ultimate consumer. Duty, breach of duty, recognised damage and causation all being satisfied, the issue for determination was whether, as McLachlin CJ put it, the breach “also caused the plaintiff’s damages in law, or whether they are too remote to warrant recovery”.366 It was in the context of remoteness, therefore, that the Canadian Supreme Court held that 359

Attia v British Gas plc [1988] QB 304.

360

Attia v British Gas plc [1988] QB 304 at 314 per Woolf LJ, at 319 per Bingham LJ who said: “[I]t seems to me to be preferable, where a duty of care undeniably exists, to treat the question as one of remoteness and ask whether the plaintiff’s psychiatric damage is too remote to be recoverable because not reasonably foreseeable as a consequence of the defendant’s careless conduct.”

361

Attia v British Gas plc [1988] QB 304 at 312.

362

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114. Parts of the following discussion are based on P Handford, “Recovery for Psychiatric Illness in Canada: A Tale of Two Cases” (2011) 19 Tort L Rev 18. 363

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [4]–[5].

364

Anns v Merton London Borough Council [1978] AC 728: see [7.180].

365

Donoghue v Stevenson [1932] AC 562.

366

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [11].

276

Part III: Liability for Mental Harm

[7.760]

Mr Mustapha had failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered the kind of damage in question. McLachlin CJ described the damage as personal injury,367 having held that psychiatric injury is a form of personal injury,368 but there is no real suggestion that she was departing from the orthodox approach of the Wagon Mound cases369 (which she cited) in favour of the novel approach of Lord Lloyd in the House of Lords in Page v Smith.370 [7.760] It will be seen that on this analysis the kind of damage plays no part in the duty enquiry. Either the relationship gives rise to a duty, or it does not. However, it is interesting that her Ladyship, in the course of her discussion of remoteness in the context of claims for mental injury, referred to the “ordinary fortitude” test, saying: “The law has consistently held – albeit within the duty of care analysis – that the question is what a person of ordinary fortitude would suffer.”371 [7.770] In Healey v Lakeridge Health Corporation, both Perell J at first instance372 and Sharpe JA in the Ontario Court of Appeal373 adopted an approach to the duty of care issue that was consistent with that outlined by McLachlin CJ — but with rather different results. Because Perell J took the view that the case did not fall within any established relationship category, he had to undertake a full analysis of the foreseeability, proximity and policy concerns embedded in the Anns v Merton London Borough Council374 test. His conclusion was that the foreseeability requirement was satisfied, in that it could be shown that the defendant ought to have contemplated that the plaintiffs would be affected by the defendant’s conduct, but that the relationship between the parties was not so close that the one might reasonably be said to owe the other a duty to take care, so the necessary proximity was absent. Even if, contrary to this conclusion, there was sufficient proximity to establish a prima facie duty of care according to the first stage of the Anns test, at the second stage duty was negatived by policy considerations.375 This of itself was enough to dispose of the case, although Perell J went on to consider the damage issue and the other questions raised. However, in the Court of Appeal Sharpe JA took the view that Perell J had been in error. The duty owed by Lakeridge was a straightforward issue: it arose out of the relationship 367

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [14].

368

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [11].

369

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No 1)) [1961] AC 388; Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617.

370

Page v Smith [1996] AC 155: see [7.450]–[7.470].

371

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [14].

372

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [182].

373

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [29], [39]–[40].

374

Anns v Merton London Borough Council [1978] AC 728.

375

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [187]–[229].

[7.790]

7 Duty and Other Elements of Liability

277

between a hospital and its patients to take reasonable care to prevent the transmission of infectious diseases.376 [7.780] It is in the detail of what the two judges say that a significant difference appears. Perell J appeared to recognise that the kind of injury suffered by the plaintiffs had some relevance to the duty of care issue. Thus he said: With respect to the Uninfected Persons’ claim for compensation for a purely psychological injury, the case at bar does not fall within a recognized category of duty of care.377

And a little further on: Because of the absence of direct Canadian authority, in my opinion, it is necessary to determine whether Lakeridge owes the Uninfected Persons a duty of care to prevent the psychological injury that would be an incident of giving the Uninfected Persons notification of exposure to an infectious disease.378

However, Sharpe JA was clearly of the view that McLachlin CJ’s judgment in Mustapha v Culligan of Canada Ltd379 had mandated an approach under which the kind of damage in issue had nothing to do with the duty issue: While some of the earlier cases may have treated the issue of whether damages for psychological injury may be recovered as involving the duty of care, as I read Mustapha v Culligan …, whether the plaintiff has sustained compensable damages is a separate and distinct issue not to be conflated with the question of whether a duty of care exists.380

[7.790] Following the approach clearly stated in a leading case by an influential Chief Justice, it thus appears that Canadian courts now regard psychiatric injury as a remoteness issue. While this is not necessarily a novel approach,381 it is out of step with the approach adopted in other jurisdictions and may result in Canadian courts not having the flexibility to deal with novel psychiatric injury situations when they arise. The orthodox approach to duty accepts that it is not simply a question of whether there is a relevant relationship between the parties that, if it exists, means that there is a duty to take care not to cause any kind of damage recognised by the law. Instead, many factors are relevant to the identification of whether a duty exists, including the kind of damage suffered, along with other factors such as the manner of its infliction. Taken to its logical conclusion, the Canadian approach would relegate liability for economic loss to an issue of remoteness, which seems an 376

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [32]–[33].

377

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [190].

378

Healey v Lakeridge Health Corporation 2010 ONSC 725 at [194].

379

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

380

Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248 at [34].

381

See [7.730].

278

Part III: Liability for Mental Harm

[7.800]

unlikely result.382 In the psychiatric injury context, the relevance of the kind of damage could be demonstrated by many cases, but two contrasting leading cases are particularly instructive. In the English case of White v Chief Constable of South Yorkshire Police,383 the question was whether police officers on duty at the FA Cup semi-final at Hillsborough could recover for post-traumatic stress disorder suffered as a result of their involvement. It is clear that the defendant as their employer (or technically, as the equivalent of an employer, because police officers, though not employees, are in a position analogous to employees) owed them a duty to take reasonable care in respect of their physical safety. However, the House of Lords refused to accept that the defendant owed a duty to the officers to take reasonable care to prevent them from suffering psychiatric injury. Lord Steyn said: “It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty … be under a duty not to cause the employee psychiatric injury.”384 In contrast, Windeyer J of the High Court of Australia in Mount Isa Mines Ltd v Pusey385 held that the defendant as the plaintiff’s employer owed him a duty of care that extended to psychiatric as well as physical injury: “Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be.”386 [7.800] Does it matter whether questions of liability for psychiatric injury are treated at the stage of duty or remoteness? Both are essentially policy devices for limiting the scope of negligence liability. However, the fact remains that in practically all cases involving psychiatric injury the issues have been analysed as falling under the issue of duty. It is suggested that there is good reason for this. Psychiatric injury cases are of many different kinds, each raising different kinds of policy issues. The remoteness approach, under which the sole question is whether the damage was of a foreseeable kind, cannot do justice to the subtlety of the policy issues that are involved in many of the cases. It was possible to solve the problem in Mustapha v Culligan of Canada Ltd387 by the application of a simple foreseeability approach, but there are many cases where the question is much more complex.388 Will remoteness alone offer Canadian courts sufficient flexibility for the satisfactory resolution of 382

LN Klar, Tort Law (5th ed, Carswell, Toronto, 2012), Ch 7 appears to treat liability for economic loss as a duty of care problem.

383

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

384

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497; see also at 505 per Lord Hoffmann. 385

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

386

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404.

387

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

388

For example, in Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248, the precise issue complained of by the applicants was that they had suffered “psychological injury” as a result of being notified that there was a possibility that they might have been

[7.800]

7 Duty and Other Elements of Liability

279

psychiatric injury issues? As yet, this is something that it is impossible to foresee.

infected with TB, and the anxiety of waiting until tests established whether they were infected or not. In other words, this was a case of “fear for the future”; an allegation of a present mental injury suffered as a result of contemplating whether some risk to which they had been exposed would materialise at some time in the future. The current approach of Canadian courts seems unlikely to identify the special characteristics of such cases: compare eg Anderson v Wilson (1999) 175 DLR (4th) 409, discussed at [29.560]. Note also Nespolon v Alford (1998) 161 DLR (4th) 646, a case cited by Perell J, where the Ontario Court of Appeal failed to recognise that this was a case where the plaintiff’s psychiatric injury result from the defendant negligently injuring himself: see [15.260].

Chapter 8

Normal Fortitude [8.10] INTRODUCTION ............................................................................................................... 281 [8.20] THE TRADITIONAL RULE .............................................................................................. 281 [8.90] PROBLEMS WITH THE TRADITIONAL RULE .......................................................... 287 [8.150] A NEW INTERPRETATION OF NORMAL FORTITUDE ......................................... 291 [8.200] NORMAL FORTITUDE UNDER THE CIVIL LIABILITY ACTS ............................. 294 [8.240] NORMAL FORTITUDE IN ENGLISH LAW ............................................................... 297 [8.280] NORMAL FORTITUDE AND THE THIN SKULL RULE ......................................... 299

INTRODUCTION [8.10] For many years, the common law has affirmed the principle that liability for psychiatric injury depends on such injury being foreseeable to a person of normal (or ordinary) fortitude. This rule applied not only in Australia but also in England and elsewhere. In Tame v New South Wales,1 the High Court took the opportunity to reconsider the rule, and a majority of the court held this was not a separate requirement, but simply an application of the ordinary foreseeability test. However, the Civil Liability Acts have reinstated the orthodox version of the rule, which has also recently been upheld by the Supreme Court of Canada.2 Prior to these developments, a controversial House of Lords case created another new version of the rule, limited to primary victim cases,3 but there has been no support for this elsewhere. All these matters are reviewed in this chapter, along with the relationship between the normal fortitude rule and the principle that tortfeasors must take their victims as they find them.

THE TRADITIONAL RULE [8.20] It is not uncommon for defendants facing psychiatric injury claims to argue that the claimant has no cause of action because he or she is possessed of so unusual a character or disposition as to be of abnormal mental personality, and psychiatric injury would not be foreseeable to a person of ordinary robustness. Do victims of negligently inflicted psychiatric damage who are particularly susceptible to psychiatric illness as a result of some pre-existing defect in their emotional make-up face any greater hurdles to recovery than plaintiffs of ordinary disposition? 1

Tame v New South Wales (2002) 211 CLR 317.

2

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

3

Page v Smith [1996] AC 155.

282

Part III: Liability for Mental Harm

[8.30]

[8.30] A good example is furnished by the facts of the leading Australian case. In Tame v New South Wales,4 Mrs Janet Tame claimed to have suffered a psychotic depressive illness as a result of a police mistake in entering a reading of 0.14 against her name on a road accident report form that was communicated to her via the insurance company and her solicitor, who telephoned her to ask if she had been drinking at the time of the accident. Mrs Tame, who was violently opposed to drinking and driving, was horrified and indignantly denied it. She immediately phoned the police, and was told that it was a mistake and had already been corrected. Unfortunately, it caused her to suffer a personality change, and she became obsessed by what had happened. The evidence at trial was that her illness stemmed from the effect of the mistake on a vulnerable personality.5 In such a case, one option might be to require her to show that the illness was one that would have been suffered by a person of normal emotional fibre. Alternatively, defendants may be expected to take some account of those who have some sort of special susceptibility to mental injury. Much may depend on what the defendant knows about the plaintiff. [8.40] Irrespective of whether the claimant is robust or particularly sensitive, the start position in assessing liability for mental damage is identical, namely reasonable foreseeability of psychiatric injury as a result of the tortfeasor’s negligent breach of duty.6 Clearly, there can be no recovery if this criterion is absent. In determining this question the traditional approach has been to refer to the hypothetical person of ordinary resilience and “phlegm” rather than to those possessed of greater or less fortitude than the general population.7 In Bourhill v Young8 Lords Wright and Porter were clearly of the view that it would be unreasonable to expect defendants to bear in mind the extraordinarily sensitive victim. There the plaintiff, who was a woman in the latter stages

4

Tame v New South Wales (2002) 211 CLR 317.

5

For another example, see Powell v Boladz [1998] Lloyd’s Rep Med 116, where parents of a 10-year-old boy who died in hospital from a rare disease claimed damages, inter alia, in respect of the removal of two documents from his medical file and the substitution of two others; though, as Stuart-Smith LJ said (at 122), it was “far from clear that the substitution of CSS/2 for CSS/1 made any material difference to the medical history, and the plaintiffs do not plead any case to the effect that the substitution of F2 for F1 did so” (the only major difference between F1 and F2 being that the original document was typed on A5 paper, the substitute document on A4), the plaintiffs became convinced that there had been a “cover-up”, and the first plaintiff alleged that this caused him to suffer a psychiatric illness. 6

See [7.390]–[7.440], [7.600].

7

The ordinary fortitude test is part of the general foreseeability issue: Morgan v Tame (2000) 49 NSWLR 21 at [13] per Spigelman CJ (though his Honour suggests it may also be relevant to “proximity”); Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [68] per Ipp J; Page v Smith [1994] 4 All ER 522 at 549 per Hoffmann LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 477 per Lord Goff of Chieveley. 8

Bourhill v Young [1943] AC 92.

[8.60]

8 Normal Fortitude

283

of pregnancy, suffered nervous shock and subsequently gave birth to a stillborn child after hearing a collision involving a motorcyclist who was killed. Lord Wright stated: What is now being considered is the question of liability, and this, I think, in a question whether there is a duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility. … It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee. What danger of particular infirmity that would include must depend on all the circumstances, but generally, I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard. The test of a plaintiff’s extraordinary susceptibility, if unknown to the defendant, would in effect make him an insurer.9

Similarly, Lord Porter considered: It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm.10

[8.50] In the important Australian High Court case of Jaensch v Coffey11 Brennan J also opined that this threshold enquiry is based on normal standards of susceptibility. His Honour stated: [R]easonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. … Some general guidelines apply. The first guideline is this: the question “whether there is a duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility”: per Lord Wright in Bourhill v Young. Unless a plaintiff’s extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility.12

Gibbs CJ simply proceeded on the basis that psychiatric injury “is not recoverable unless an ordinary person of normal fortitude in the position of the plaintiff would have suffered some shock”.13 [8.60] These principles have now been affirmed in the important judgment of McLachlin CJ in a leading decision of the Supreme Court of 9

Bourhill v Young [1943] AC 92 at 110.

10

Bourhill v Young [1943] AC 92 at 117.

11

Jaensch v Coffey (1984) 155 CLR 549.

12

Jaensch v Coffey (1984) 155 CLR 549 at 568.

13

Jaensch v Coffey (1984) 155 CLR 549 at 556. Note that the respondent in this case had, before her marriage, led an unhappy and deprived life, suffering abuse as a child. By reason of these events she was more than usually dependent on both her husband and the stability of her marriage, with the consequence that she had an exceptional predisposition to

284

Part III: Liability for Mental Harm

[8.70]

Canada, Mustapha v Culligan of Canada Ltd.14 The problem of ordinary fortitude was clearly raised by the facts of the case. Mr Mustapha and his family drank only bottled water supplied by the defendant. When he saw a dead fly and part of another in an unopened full bottle of water, Mr Mustapha developed a major depressive disorder, his symptoms including nightmares about flies and an aversion to water, refusing to shower or to drink coffee made with water. At first instance Brockenshire J awarded damages for psychiatric injury, holding that it was foreseeable that if the defendant supplied bottled water containing dead flies to people such as Mr Mustapha, they might suffer some kind of nervous shock.15 However, this decision was reversed by the Ontario Court of Appeal, which held that the judge had adopted the wrong test. Instead of asking whether psychiatric injury was foreseeable to a person such as the plaintiff, the judge should have asked whether psychiatric injury was foreseeable to the hypothetical person of ordinary fortitude.16 On this test, the plaintiff had failed to prove his case. The Supreme Court on appeal affirmed this decision. McLachlin CJ said: [I]n order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” …. There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr Mustapha’s “previous history” and “particular circumstances” … including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.17

[8.70] Courts have repeatedly applied the test laid down in these leading statements of principle and have held that psychiatric injury has to be foreseeable to a person of ordinary fortitude. This principle has been

“neurotic upset, anxiety and depression”. However, the trial judge held that her predisposition was controlled and that she was a person of normal fortitude. That finding made it right, the High Court ruled, to infer that the threshold inquiry had been established. See Deane J’s comments at 609–610. 14

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114.

15

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123.

16

Mustapha v Culligan of Canada Ltd (2006) 275 DLR (4th) 473.

17

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114 at [18]. For McLachlin CJ’s approach in treating the issue as one of remoteness, see [7.750]; on her classification of the damage as “personal injury”, see [6.330]–[6.340].

[8.70]

8 Normal Fortitude

285

affirmed by courts in Australia,18 England,19 Canada,20 and other common law jurisdictions,21 including the United States.22 Submissions to the contrary — for example, that the test should be subjective and not

18

See eg Loffo v Giang (unreported, NSWCA, No 429 of 1986, 13 December 1990); Wodrow v Commonwealth (1993) 45 FCR 52 at 73 per Gallop and Ryan JJ; Mavor v Hall (1995) 14 SR (WA) 163 at 167 per Judge O’Sullivan QC; Midwest Radio Ltd v Arnold (1999) EOC 92-970 at 79,190 per McPherson JA and Williams J; Morgan v Tame (2000) 49 NSWLR 21 at [16] per Spigelman CJ, at [134] per Mason P; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [7] per Malcolm CJ, at [69] per Ipp J; Finn v Queensland Ambulance Service [2000] QSC 472 at [33] per Dutney J; Taylor v Canterbury Municipal Council [2000] NSWSC 1093; Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465 at [50] per Wilcox J; AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [116] per Heydon JA, at [188] per Davies AJA; Hancock v Nominal Defendant [2002] 1 Qd R 578 at [39] per Davies JA, at [102] per Byrne J; Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 at [27] per Davies AJA. In New South Wales v Seedsman (2000) 217 ALR 583 at [169], Mason P said that there was no need to determine whether the ordinary fortitude test applied in the employer–employee context because that threshold was passed in the instant case.

19

See eg McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 9, 14 per Stuart-Smith LJ; Vernon v Bosley [1997] 1 All ER 577 at 583 per Stuart-Smith LJ, at 599 per Evans LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 462–463 per Lord Griffiths; McNern v Metropolitan Police Commissioner (unreported, Eng CA, 18 April 2000). 20

Prior to Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114, the leading authority was Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [69], [74] per McEachern CJBC; note also Baltruweit v Rubin 2005 CanLII 24744 at [19] per Kealey J (on facts, no negligence). There is now a line of cases adopting the Mustapha principle: Hussack v School District No 33 (Chilliwack) (2009) 97 BCLR (4th) 330 at [136] per Boyd J, affirmed Hussack v Chilliwack School District No 33 2011 BCCA 258; Frazer v Haukioja (2010) 317 DLR (4th) 688 at [58] per Laforme J; Deros v McCauley (2011) 84 CCLT (3d) 324 at [17] per Gerow J.

21

Ireland (see Fletcher v Commissioners of Public Works [2003] 1 IR 465, at 480 per Keane CJ, at 491 per Geoghegan J); Isle of Man: see Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 at 442–443 per Deemster Corrin. 22

For an important early statement, see Spade v Lynn & B Rail Co 47 NE 88 (Mass 1897) at 89 per Allen J: “Not only the transportation of passengers and the running of trains, but the general conduct of business and of the ordinary affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength. If, for example, a traveller is sick or infirm, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and therefore requiring precautions which are not usual or practicable for travelling in general, notice should be given, so that, if reasonably practicable, arrangements may be made accordingly, and extra care be observed. But as a general rule a carrier of passengers is not bound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness.” This statement was quoted by Phillimore J in Dulieu v White & Sons [1901] 2 KB 669 at 685–686, who added: “Aliter [otherwise] in this case, where the plaintiff is not a passenger or a traveller.” For more recent affirmations see eg Williamson v Bennett 112 SE 2d 48 (NC 1960); Kaufman v Miller 414 SW 2d 164 (Tex 1967); Sinn v Burd 404 A 2d 672 (Pa 1979); Culbert v Sampson’s Supermarkets Inc 444 A 2d 433 (Me 1982); Meyers v Hot Bagels Factory Inc 721 NE 2d 1053 (Ohio 1999).

286

Part III: Liability for Mental Harm

[8.80]

objective,23 or that a certain proportion of the population has a predisposition to mental illness24 — have been expressly rejected. [8.80] According to the ordinary fortitude test, where “normal” folk would not foreseeably have suffered harm, the unusually sensitive victim has no prospect of recovery unless it can be shown that the defendant knew or ought to have known of his or her sensitivity.25 An example from Ireland is A v C,26 where at six o’clock in the morning, a bulldozer driver employed by the defendant (the plaintiff’s brother-in-law) started to demolish a wall at the back of the farmhouse in which the defendant knew the plaintiff and her young child were sleeping. The wall, which had been built to separate the farm from the defendant’s property, had been the subject of dispute between the parties. The plaintiff was alerted by the noise, came out in her nightdress and tried to stop the demolition, becoming hysterical. Her entire concern was for the safety of her child. Laffoy J held that she could recover damages for her resulting psychiatric condition. It was material that the plaintiff had a history of depression and had spent time at a psychiatric hospital, facts that were known to the defendant. Imposing liability where there is evidence of special knowledge alerting the tortfeasor to the secondary victim’s particular susceptibility is justifiable since accountability flows from the application of the “reasonable person” test to the particular defendant’s circumstances, including the circumstances of his or her knowledge. It must be remembered that in this situation the relevant threshold test is the foreseeability of psychiatric injury to the plaintiff (or a person in his or her position), not the foreseeability of harm to the average citizen. The defendant will, however, seldom be possessed of such knowledge, with the result that actionable negligence will rarely arise where persons of a normal nervous resolve would have remained unaffected by the defendant’s actions. In Miller v Royal Derwent Hospital Board of 23

See Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465 at [50] per Wilcox J.

24

See Loffo v Giang (unreported, NSWCA, No 429 of 1986, 13 December 1990), where Meagher JA said that if this submission were correct “a department store could not safely hold annual sales for fear that a person with a pre-existing mental illness may unwittingly visit the store and suffer aggravation to that illness when confronted by crowds of avid bargain hunters”.

25

See Bourhill v Young [1943] AC 92 at 110 per Lord Wright; Jaensch v Coffey (1984) 155 CLR 549 at 568 per Brennan J; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406–407 per Windeyer J. Note also Bunyan v Jordan (1936) 36 SR (NSW) 350 at 355–356 per Jordan CJ; PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 245. For United States authority, see Corgan v Muehling 574 NE 2d 602 (Ill 1991).

26

A v C [2007] IEHC 120. For another example of a case where the plaintiff’s mental state was made known to the defendant, see Dickinson v Jones Alexander & Co [1993] 2 FLR 521; this may also be the explanation of Fleming v Toltz [2000] NSWSC 606 (model suffered psychiatric injury as result of inappropriate medical treatment, and her career was affected: liability imposed despite pre-existing personality disorder). The fact that a person has not reacted adversely on a previous occasion does not mean that psychiatric injury is necessarily an unforeseeable consequence of further exposure: New South Wales v Fahy (2006) Aust Torts Rep 81-865, affirmed on other grounds in New South Wales v Fahy (2007) 232 CLR 486.

[8.90]

8 Normal Fortitude

287

Management27 Zeeman J, in considering the liability of a hospital authority to a nurse for psychiatric injury alleged to have been caused by failure to provide professional counselling following the death of a patient which the nurse had unwittingly brought about, referred to aspects of the plaintiff’s personal history that might have suggested that she was a person particularly vulnerable to traumatic events. However, he held that since the defendant was ignorant of this, the duty owed to the plaintiff was to be determined on the basis that she was a person of normal susceptibility.28

PROBLEMS WITH THE TRADITIONAL RULE [8.90] Judging liability by reference to the standard of a reasonable person of ordinary firmness is problematic in a number of respects.29 It has been questioned, for example, whether injury to unusually susceptible plaintiffs is always unforeseeable. It may not, in particular circumstances, be unreasonable to demand that persons keep those with peculiar emotional sensitivities in mind. One example suggested in older cases is that the likelihood of the presence of a pregnant and therefore particularly sensitive woman in the vicinity of the tortfeasor’s act or its aftermath is high,30 though we might now dissent from the proposition that a woman is particularly sensitive purely through being pregnant. A better example might be the possibility of the presence of vulnerable persons recovering from some personal loss, traumatic experience or grieving in relation to some previous matter. The point is that it is not inevitably correct to catalogue scenarios of this nature as beyond the bounds of reasonable foresight.

27

Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271.

28

See also Loffo v Giang (unreported, NSWCA, No 429 of 1986, 13 December 1990); Wodrow v Commonwealth (1993) 45 FCR 52; Midwest Radio Ltd v Arnold (1999) EOC 92-970; New South Wales v Rogerson (2007) Aust Torts Rep 81-926; McFarlane v EE Caledonia Ltd [1994] 2 All ER 1; Powell v Boladz [1998] Lloyd’s Rep Med 116; McNern v Metropolitan Police Commissioner (unreported, Eng CA, 18 April 2000).

29

See D Butler, “Susceptibilities to Nervous Shock: Dispensing with the Mythical “Normal Person”” (1997) 1 Mac LR 107.

30

Indeed in Bourhill v Young’s Executor 1941 SC 395 at 438 Aitchison LJC described it as “almost … an obvious fact”. See also Mann Boudoir Car Co v Dupre 54 F 646 (1893) at 652 per McCormick J (“This theory … would require every pregnant woman to refrain from travel”); Watt v Rama [1972] VR 353 at 360 per Winneke CJ and Pape J; PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 241–242. Note Haley v London Electricity Board [1965] AC 778 where the plaintiff, who was blind, suffered injury through falling into a trench in the street that had been excavated by the defendant. The Board had taken precautions sufficient to protect ordinary sighted passers-by, but they were inadequate to ensure the safety of blind people. The House of Lords held that the number of blind people going about the streets of London alone (there were over 7,300 blind people registered in the London area) was sufficient to require the defendant to have them in contemplation and to take appropriate precautions.

288

Part III: Liability for Mental Harm

[8.100]

[8.100] A small concession of this nature was made by Brennan J in Jaensch v Coffey.31 It seems that in assessing whether some species of psychiatric illness are predictable, the existence of any special circumstance likely to render a shock-inducing event particularly emotionally damaging, such as a blood relationship between an accident victim and an observer, is to be taken into account. Following the statement of general principle quoted at [8.50], Brennan J said: [I]f it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance – for example, the parent of a child injured in a road accident who comes upon the scene – the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce.32

[8.110] It also seems that in applying the ordinary fortitude test, some personal features may properly to be taken into account, for example cultural background and beliefs. In Ibrahim (A Minor) v Muhammad,33 the unfortunate case of the five-year-old Turkish Cypriot boy circumcised at a public ceremony in accordance with the dictates of the Muslim faith, where the doctor removed rather more of the penis than he should have, and the parents sued for psychiatric injury, Taylor J said that “when one says ‘a person of reasonable fortitude’ one has to have in mind a Moslem parent of reasonable fortitude witnessing the particular type of injury inflicted in the circumstances in which it was witnessed”. However, in other similar cases courts have taken such factors into account at the subsequent stage of the enquiry when, having determined that psychiatric injury is foreseeable, they are examining whether the defendant is liable for the unforeseeable extent of the injury under the rule that defendants must take plaintiffs as they find them.34 [8.120] It is the inherent difficulty of determining what is to be viewed as a “normal standard of susceptibility” that raises the most concern with a rule that often operates to deny relief to supersensitive persons. In truth, there is a widely varying threshold of individual tolerance to psychiatric disturbance. Lord Wright himself acknowledged the vagueness of the test, ruling out a more precise definition for fear of undesirable limitations,35 a somewhat ironic rationale given the insurmountable obstacle to recovery this standard can present for the special claimant. The artificial distinction 31

Jaensch v Coffey (1984) 155 CLR 549.

32

Jaensch v Coffey (1984) 155 CLR 549 at 568–569. See also Maijet v Santam Ltd [1997] 4 All SA 555 (C) (mother came upon her dying nine-year-old son lying in road: her close relationship with her son was a complicating factor in her depressive illness, but the court concluded that compensation was payable for the full extent of her injuries).

33

Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984).

34

See [8.320].

35

Bourhill v Young [1943] AC 92 at 110.

[8.120]

8 Normal Fortitude

289

necessitated by this test has not gone unnoticed either in England or Australia. In Chadwick v British Railways Board,36 a rescue case involving a rail disaster, Waller J stressed that: The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities.37

Although the susceptibility issue did not arise on the facts, Windeyer J in Mount Isa Mines Ltd v Pusey38 was also moved to emphasise that: The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. … However, I need say no more about the position of persons prone to suffer shock, for the present plaintiff is not such a person. I wish only to guard myself for the future by saying that, as at present advised, I am not convinced that the defendant in cases of this sort can escape liability simply by showing that, unknown to him, a person who has suffered harm was easily harmed.39

His Honour did, however, qualify his views, conceding the possibility that public policy may in some circumstances dictate a refusal of relief for supersensitive sufferers. Leaving the question open, Windeyer J stated: What I have said relates only to cases such as the present, industrial actions – or to road accidents, resulting from negligence. I do not doubt that in some other situations the policy of the law prevents a man being liable for nervous shock suffered by susceptible persons. That is because men are not expected to go about their lawful occasions in such a way that they will not disturb the peace of mind of persons easily upset, unless in particular cases they were aware, or should have been aware, of the frailty and susceptibility of a “neighbour”.40

36

Chadwick v British Railways Board [1967] 1 WLR 912.

37

Chadwick v British Railways Board [1967] 1 WLR 912 at 922. The problem of drawing this line is also illustrated by Cook v Swinfen [1967] 1 WLR 457 where a plaintiff prone to breakdowns suffered nervous shock when, owing to her solicitor’s negligence, divorce proceedings did not progress as expected. The English Court of Appeal considered such deterioration in health to be an unforeseeable consequence of the defendant’s failure, treating the plaintiff as particularly susceptible to nervous shock. Similarly, in Duwyn v Kaprielian (1978) 94 DLR (3d) 424 a mother’s shock and extreme hysterical reaction at coming upon an accident scene involving her screaming young son (who was in fact physically unharmed) was not viewed as reasonably foreseeable. It could be attributed to a particular hypersensitivity to emotional upset stemming from an earlier traumatic experience involving injury to her two-year-old brother. For an example of a case where the court drew the line in favour of the plaintiff see Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271: Donovan J viewed the existence of pre-accident neurasthenia, which was worsened and accelerated by the accident, as irrelevant to the question of liability (although it did bear on the assessment of damages issue: see [17.160]). 38

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

39

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 405–406. Note also Barwick CJ’s comments at 390.

40

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406–407.

290

Part III: Liability for Mental Harm

[8.130]

[8.130] The delicate nature of the classification task left to the courts is compounded by the uncertainty as to whether the hypothetical “normal” citizen is possessed of any of the particularities of the claimant in question. For example, do the courts look to the emotional disposition of the ordinary child or elderly pensioner if the victim of psychiatric injury is among these classes? Or is it the case that such plaintiffs will always be viewed as being of particular susceptibility and therefore more unlikely to recover? It is submitted that the former view must prevail and the circumstances of the individual claimant must be considered if the “ordinary phlegm” approach is utilised. This appears to have been the attitude of the Ontario Court of Appeal in Duwyn v Kaprielian41 which considered that a four-month-old plaintiff could not, on the basis of his young age alone, be categorised as abnormally sensitive. Some support for this approach may also be gleaned from Vasta J’s focus in Mellor v Moran42 on the fact that the death of the plaintiff child’s mother occurred “when [she] was at an age when children are particularly vulnerable” and his rejection of the contention that damages for psychiatric harm to children should be lower than those awarded to adults because a child is, on one view, more emotionally resilient than an adult. [8.140] Despite the reservations raised by some judges and the difficulties of distinction associated with the utilisation of the normally robust person test as a standard for the determination of the existence of a duty of care, this approach has prevailed in both England and Australia. In Brice v Brown43 the plaintiff had had a hysterical personality disorder since early childhood, but this manifested itself only rarely, enabling her to lead a happy and socially accepted life. Things changed when a taxi in which she and her daughter were passengers collided with a bus. This caused her mental state to worsen considerably, leading to bizarre behaviour including attempts to commit suicide and pleading with people to cut her head off, periodically disappearing for weeks on end (when she probably behaved like a prostitute), spending most of her time in one room, eating food left out for her by her family and urinating on the floor. Stuart-Smith J held that she was entitled to damages in respect of all the consequences of the accident, but only on the basis that in the circumstances the defendant should have foreseen psychiatric injury to her, classifying the plaintiff for this purpose as a person of normal disposition and phlegm.44 This attitude was confirmed in Queensland in Chapman v Lear.45 There a Vietnam veteran predisposed to psychiatric 41

Duwyn v Kaprielian (1978) 94 DLR (3d) 424 at 439–440 per Morden JA.

42

Mellor v Moran (1985) 2 MVR 461 at 462–463.

43

Brice v Brown [1984] 1 All ER 997, noted by C Gearty [1984] CLJ 238.

44

Brice v Brown [1984] 1 All ER 997 at 1006–1007. See also McLoughlin v O’Brian [1983] 1 AC 410 at 429 per Lord Russell of Killowen, at 436–437 per Lord Bridge of Harwich; Attia v British Gas plc [1988] QB 304 at 311 per Dillon LJ (where for the purposes of the determination of a preliminary issue the plaintiff was assumed to be of normal disposition).

45

Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988). But see Petrie v Dowling [1992] 1 Qd R 284 at 287 where Kneipp J was of the view that, in contrast to the

[8.160]

8 Normal Fortitude

291

illness as a result of permanent post-traumatic stress disorder due to his war experiences suffered a psychological disturbance and severe personality upheaval after being told of his son’s accident and seeing him in a post-operative state in hospital. Although the son ultimately recovered without any ill effects, the plaintiff was awarded $15,000 for the shock-induced aggravation of his personality disorder.46 Williams J accepted the statements made in Jaensch v Coffey,47 ruling that, given the existence of the father–son relationship, it was reasonably foreseeable by the defendant that some psychiatric injury to an ordinary person in the plaintiff’s position would result as a consequence of his negligent infliction of injury to the boy.

A NEW INTERPRETATION OF NORMAL FORTITUDE [8.150] Prior to Tame v New South Wales,48 Australian courts had generally adopted the orthodox version of the normal fortitude rule, namely, that what it was proper for the reasonable person to see depended on a normal standard of susceptibility, unless the defendant knew otherwise.49 In Mrs Tame’s case, where it appeared that, unlike the plaintiff, a person of normal mental robustness would not have suffered any form of psychiatric injury,50 this loomed as a major difficulty in the path of granting recovery. [8.160] saying:

At first instance Garling DCJ managed to find in her favour,

I am satisfied it was foreseeable that an injured driver who was not at fault in the accident would, or could, seek compensation and that the insurance company would, or could, rely to an extent and indeed to a great extent on the information contained in the police report and it was important for that reason to be accurate when filling it in. It is also in my opinion foreseeable that a person of good character who was careful not to drink and drive, who had a vulnerable personality, may suffer a psychological injury by being told that the form recorded that she had a high blood alcohol reading and further, that that English courts, the High Court could not be said to have finally decided that proof that the plaintiff is of normal fortitude is a condition of recovery. With respect, it is submitted that the better view is that their Honours’ statements in Jaensch v Coffey (1984) 155 CLR 549 do in fact identify this as a prerequisite to relief, save where the plaintiff’s special susceptibilities are known: see [8.50], [8.100]. 46

The court noted that other events subsequent to the accident would have contributed to the aggravation of the plaintiff’s condition, eg his daughter’s fall from her bicycle causing a blood clot requiring neurosurgery, but these had occurred subsequent to the commencement of proceedings and in any event the plaintiff subconsciously attributed all his disabilities to his son’s accident. Williams J rejected the contention that the accident to the boy was responsible for a nervous breakdown suffered three years later. The medical evidence revealed that the aggravation of his disorder caused by the son’s accident would have dissipated by that time and that the later breakdown was entirely due to his combat service.

47

Jaensch v Coffey (1984) 155 CLR 549 at 568–569 per Brennan J: see [8.100].

48

Tame v New South Wales (2002) 211 CLR 317.

49

See [8.50], [8.70].

50

For the facts, see [8.30].

292

Part III: Liability for Mental Harm

[8.170]

information had gone to other people and that such a reaction to this careless act could have been foreseen by the officer at or about the time he was filling in the form.51

It is arguable that this was the wrong approach: that the defendant, by being asked to assume what might happen to a person with a vulnerable personality, was being judged by too exacting a standard. The police officers concerned had, it seems, never met Mrs Tame and had no knowledge of her psychological make-up. When the defendant appealed to the New South Wales Court of Appeal,52 psychiatric injury was held to be a different kind of injury from bodily injury, and the orthodox test was emphatically reasserted. Spigelman CJ, after a meticulous examination of the relevant authorities, said that the trial judge had applied the wrong test.53 It was not foreseeable that a person of normal fortitude would have suffered any injury of the kind suffered by Mrs Tame: there was no basis for concluding that any reaction, other than one of a qualitatively different kind, such as anger or distress, was foreseeable in a person of normal fortitude.54 [8.170] When this case and the Western Australian appeal in Annetts v Australian Stations Pty Ltd55 were considered by the High Court,56 the court took the opportunity to reconsider the traditional rule in the light of the doubts and difficulties that had been raised in the earlier case law, and four of the seven judges held that the traditional test was not quite correct. Gummow and Kirby JJ, combining to give the leading judgment, said that the attention given to the notion of ordinary fortitude in the courts below might suggest that a plaintiff had no action unless he or she was an individual of normal fortitude. Tracing this idea back to its original expression in Lord Wright’s judgment in Bourhill v Young,57 it became plain that the reference to the notional person of normal fortitude was “the application of a hypothetical standard that assists the assessment of the reasonable foreseeability of harm, not an independent pre-condition or bar to recovery”. Their Honours continued: However, it does not follow that it is a pre-condition to recovery in any action for negligently inflicted psychiatric harm that the plaintiff be a person of “normal” emotional or psychiatric fortitude or, if peculiarly susceptible, that the defendant know or ought to have known of that susceptibility. The statement by Spigelman CJ in the Court of Appeal in Tame that a plaintiff “cannot recover for ‘pure’ psychiatric damage unless a person of ‘normal fortitude’ would suffer psychiatric damage by the negligent act or omission” 51

Tame v Morgan (1998) Aust Torts Rep 81-483 at 65,203.

52

Morgan v Tame (2000) 49 NSWLR 21.

53

Morgan v Tame (2000) 49 NSWLR 21 at [13]–[21].

54

Morgan v Tame (2000) 49 NSWLR 21 at [32].

55

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

56

Tame v New South Wales (2002) 211 CLR 317.

57

Bourhill v Young [1943] AC 92 at 109–110: see [8.40].

[8.190]

8 Normal Fortitude

293

should not be accepted. Windeyer J observed in Pusey58 that the notion of a “normal” emotional susceptibility, in a population of diverse susceptibilities, is imprecise and artificial. The imprecision in the concept renders it inappropriate as an absolute bar to recovery. Windeyer J also pointed out that the contrary view, with its attention to “normal fortitude” as a condition of liability, did not stand well with the so-called “eggshell skull” rule in relation to the assessment of damages for physical harm. Analysis by the courts may assist in assessing the foreseeability of the relevant risk. The criterion is one of reasonable foreseeability. Liability is imposed for consequences which the defendant, judged by the standard of the reasonable person, ought to have foreseen. … [B]ecause the criterion is an objective one, what is postulated is a general (and contemporary) standard of susceptibility. It is in that context that references in judgments of this Court to hypothetical “ordinary” or “reasonable” standards of susceptibility in psychiatric harm are to be understood. However, the concept of “normal fortitude” should not distract attention from the central inquiry, which is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful. It may be that in some circumstances, the risk of a recognisable psychiatric illness to a person who falls outside the notion of “normal fortitude” is nonetheless not far-fetched or fanciful. If that is so, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to the risk …. Where the plaintiff’s response to the defendant’s conduct is so extreme or idiosyncratic as to render the risk of that response far-fetched or fanciful, the law does not require the defendant to guard against it.59

[8.180] Gleeson CJ and Gaudron J appeared to adopt a similar view. Gleeson CJ said that the courts refer to a normal standard of susceptibility as one of a number of general guidelines in judging reasonable foreseeability,60 and Gaudron J said that normal fortitude was not the sole criterion of liability, but was ordinarily a convenient means of determining whether the risk of psychiatric injury was foreseeable.61 However, the other three judges clearly endorsed the normal fortitude test as a separate rule.62 McHugh J specifically approved the judgment of Spigelman CJ, and Hayne J said normal fortitude was a very important limitation on the duty of care in psychiatric injury cases and should not be abandoned. [8.190] Even though a majority of the court thus adopted a more flexible interpretation of the ordinary fortitude requirement, this made no ultimate difference to the result of Mrs Tame’s case. Their Honours were united in holding that on the facts a reasonable person in the position of the police officer in question would not have foreseen that his carelessness involved a risk of psychiatric harm to Mrs Tame. The difference between 58

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 405–406.

59

Tame v New South Wales (2002) 211 CLR 317 at [199]–[201].

60

Tame v New South Wales (2002) 211 CLR 317 at [16].

61

Tame v New South Wales (2002) 211 CLR 317 at [62].

62

Tame v New South Wales (2002) 211 CLR 317 at [91], [109]–[118] per McHugh J, at [273]–[283] per Hayne J, at [333]–[334] per Callinan J.

294

Part III: Liability for Mental Harm

[8.200]

the judges is crystallised by the way they formulated this conclusion. Gummow and Kirby JJ, for example, said that it was not reasonably foreseeable that a person in the position of Mrs Tame would sustain a recognisable psychiatric injury,63 while McHugh J said that it was not reasonably foreseeable that such injury would be suffered by a person of normal fortitude.64 It may be that the difference in the tests will not often lead to a different result; but in this case the majority of the High Court attempted to take an important step forward by dismantling one of the barriers thought to have been part of the former law.

NORMAL FORTITUDE UNDER THE CIVIL LIABILITY ACTS [8.200] It now seems that this was a Pyrrhic victory: the new test has been repudiated and the old test has reasserted itself. This has not come about by any change of heart within the High Court itself. The new test was consistently endorsed, even by those in the minority in Tame v New South Wales.65 The return to the older view has been brought about as a result of the language adopted by a Commonwealth report reviewing the law of negligence and the legislative acceptance of its recommendations. [8.210] The decision in Tame v New South Wales66 was published in September 2002, at the height of Australia-wide concern about the so-called “insurance crisis”. The panel appointed by the Commonwealth government to review the law of negligence was instructed to report by 30 September.67 The report was therefore able to refer to the discussion of what it called the law relating to “pure mental harm” in the High Court’s recent decision. It said that the claim in Tame failed because “(in the words of Gummow and Kirby JJ), the plaintiff’s reaction was ‘extreme and idiosyncratic’ … and not such as a person of ‘normal fortitude’ would have suffered”,68 and that the basic idea underlying the decision was that “people vary in terms of psychological vulnerability, and that, as a general rule, it is unreasonable to expect others to take greater precautions than would be necessary to protect the normally vulnerable (that is, 63

Tame v New South Wales (2002) 211 CLR 317 at [233].

64

Tame v New South Wales (2002) 211 CLR 317 at [120].

65

Tame v New South Wales (2002) 211 CLR 317. See Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [98] per Hayne J, at [119] per Callinan J; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [33] per McHugh, Gummow, Hayne and Heydon JJ, at [55] per Callinan J. See also Cerebos (Australia) Ltd v Koehler [2003] WASCA 322 at [51] per Hasluck J. It seems that Whitlam J in Commonwealth v Mewett (2003) 200 ALR 679 was in error in saying at [119] that Tame v New South Wales established that a duty of care to avoid mental harm would be owed only where such harm was foreseeable to a person of normal fortitude.

66

Tame v New South Wales (2002) 211 CLR 317.

67

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002): see also [2.230].

68

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.10.

[8.220]

8 Normal Fortitude

295

people of ‘normal fortitude’)”.69 It recommended that there should be a “legislative statement of what we consider to be the current state of the law about when a duty is owed to take care to avoid causing pure mental harm”. That statement would embody a number of principles, one of which was that A person (the defendant) does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.70

[8.220] The Civil Liability Acts in six Australian jurisdictions have implemented this recommendation.71 In these jurisdictions, therefore, the traditional version of the normal fortitude rule has been resurrected.72 The principle that if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude is specifically preserved.73 In Queensland and the Northern Territory, however, where the common law has been retained, the law is still as stated in Tame v New South Wales.74 On one view, it might be said that this change came about because of a wrong reading of the High Court’s judgment; on the other hand, it can be argued that, however it was achieved, the retention of the normal fortitude rule as a discrete rule was a desirable outcome because it is more consistent with the traditional test. In the words of Stanley JA in Anwar v Mondello Farms Pty Ltd:75 Pursuant to s 33 normal fortitude is a control mechanism in the determination of whether a duty to take care not to cause a plaintiff mental harm exists. It controls whether it is reasonable to require a defendant to have in contemplation the risk of mental harm being suffered by a particular kind of plaintiff. It is not predicated on what Gleeson CJ referred to in Tame as the delusion that there is a “normal” person with whose emotional and psychological qualities those of any other person may readily be compared. Rather it is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require defendants to foresee the possibility of them suffering mental harm or to take care to avoid such harm. 69

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.15.

70

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.28 (emphasis added).

71

Civil Law (Wrongs) Act 2002 (ACT), s 34(1); Civil Liability Act 2002 (NSW), s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2002 (Tas), s 34(1); Wrongs Act 1958 (Vic), s 72(1); Civil Liability Act 2002 (WA), s 5S(1). 72

See Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [26] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; note also Wright v Optus Administration Ltd [2015] NSWSC 160 at [84] per Campbell J.

73

See Civil Law (Wrongs) Act 2002 (ACT), s 34(1); Civil Liability Act 2002 (NSW), s 32(4); Civil Liability Act 1936 (SA), s 33(3); Civil Liability Act 2002 (Tas), s 34(4); Wrongs Act 1958 (Vic), s 72(3); Civil Liability Act 2002 (WA), s 5S(4). 74

Tame v New South Wales (2002) 211 CLR 317.

75

Anwar v Mondello Farms Pty Ltd (2015) 123 SASR 321 at [97].

296

Part III: Liability for Mental Harm

[8.230]

In the result, there may not be all that much difference between the two positions. In cases such as Mrs Tame’s the result is likely to be the same whichever test is applied. [8.230] As an illustration of the approach of Australian courts to normal fortitude under the Act, we may consider Manthe v BHP Billiton Iron Ore Pty Ltd.76 The plaintiff suffered mental harm when an iron ore train was derailed and he narrowly avoided being struck by one of the carriages.77 When asked to sign a pre-employment health assessment form, he had said he did not suffer from nervous disorders, but in fact he had been exposed to trauma during combat experiences while doing military service in South Africa. The defendant argued that it could not have been foreseen that a person of normal fortitude would suffer a recognised psychiatric illness in the circumstances of the case, but Curthoys DCJ found that the test was satisfied: even if the plaintiff was a person of less than normal fortitude, psychiatric injury to a person of normal fortitude was foreseeable in the circumstances of this accident. The fact that the defendant had no knowledge of the plaintiff’s situation was not material.78 The duty having been established, the judge proceeded to apply the principle that the defendant had to take the plaintiff as it found him.79 By contrast, in Hollier v Sutcliffe,80 where the plaintiff claimed damages for psychiatric injury brought about by a negligently inserted contraceptive implant, the defendant argued that the injury arose in consequence of the plaintiff’s “idiosyncratic vulnerabilities”, and that a person of normal fortitude would not have experienced a psychiatric reaction. RA Hulme J held that neither negligence nor causation had been established, but even if these elements had been present the plaintiff could not have succeeded — not because she was not a person of normal fortitude, but because in the circumstances of the case it was not foreseeable that a person of normal fortitude would have suffered a psychiatric illness.81 In Winbank v Casino Canberra Ltd,82 where a croupier was affected by successive incidents involving casino patrons, though mental harm was not foreseeable on the first occasion, the fact that it happened meant that on the second occasion the known vulnerability

76

Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160.

77

The plaintiff was struck by iron ore, and suffered some physical injuries, but it was held that the physical injuries were not caused by the derailment.

78

Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 at [192]–[200]. See also Kuehne v Warren Shire Council (2011) 180 LGERA 383 at [197] per Elkaim DCJ.

79

Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 at [201]. See [8.280].

80

Hollier v Sutcliffe [2010] NSWSC 279.

81

Hollier v Sutcliffe [2010] NSWSC 279 at [220]–[232].

82

Winbank v Casino Canberra Ltd [2012] ACTSC 169.

[8.240]

8 Normal Fortitude

297

principle applied. It has been held that the statutory test applies in the same way in cases of both pure and consequential mental harm.83

NORMAL FORTITUDE IN ENGLISH LAW [8.240] In England, there is now an important qualification to the ordinary fortitude rule: it only applies in secondary victim cases. The case responsible for this new development was Page v Smith,84 a controversial case in this and many other respects.85 The facts were different from the ordinary run of psychiatric injury cases in that the plaintiff was not the passive witness of an accident to another but was personally involved: he was the victim of a minor car accident that caused no physical injury but aggravated the chronic fatigue syndrome from which he had periodically suffered, with the result that he became unable to carry on in his employment. On an orthodox approach to the case, the fact that psychiatric injury was not foreseeable would have ruled out any duty of care, and this was the approach taken by the English Court of Appeal.86 In the House of Lords, however, Lord Lloyd of Berwick, with the concurrence of two other members of the court, held that the law imposed a less onerous test on primary victims — those who were “directly involved in the accident, and well within the range of foreseeable physical injury”. In such cases, foreseeability of any form of physical injury was enough to establish a duty of care. Various consequential rules were also held to be different in this situation, among them the rule that the defendant had to foresee psychiatric injury to a person of ordinary fortitude. Lord Lloyd said: Nor in the case of a primary victim is it appropriate to ask whether he is a person of “ordinary phlegm”. In the case of physical injury there is no such requirement. The negligent defendant, or more usually his insurer, takes his victim as he finds him. The same should apply in the case of psychiatric injury. There is no difference in principle, as Geoffrey Lane J pointed out in Malcolm v Broadhurst [1970] 3 All ER 508, between an eggshell skull and an eggshell personality. Since the number of potential claimants is limited by the nature of the case, there is no need to impose any further limit by reference to a person of ordinary phlegm. Nor can I see any justification for doing so.87 83

AX v Ashfield Municipal Council [2012] NSWDC 32 (child injured toe on broken tile in swimming pool, claimed for physical injuries plus mental harm consequent on inability to play football; held, not suffering from mental harm but merely “adolescent turmoil”, but assuming mental harm had been suffered, it was to be approached in the same manner as for pure mental harm).

84

Page v Smith [1996] AC 155. See WVH Rogers, “Page v Smith: Shock, Foresight and Vulnerable Personalities” (1995) 3 TLJ 149.

85

See [3.50]–[3.230], [7.450]–[7.520], [24.190]–[24.290].

86

Page v Smith [1994] 4 All ER 522.

87

Page v Smith [1996] AC 155 at 189. This principle was applied by the House of Lords in Simmons v British Steel plc [2004] PIQR P33 at [18] per Lord Hope of Craighead, at [53]–[56] per Lord Rodger of Earlsferry.

298

Part III: Liability for Mental Harm

[8.250]

[8.250] Elsewhere in this work88 it has been contended that Lord Lloyd’s new approach to primary victims was anomalous, contrary to principle and supported by little in the way of authority. It was strongly opposed by the two remaining members of the court, Lord Keith of Kinkel and Lord Jauncey of Tullichettle. Lord Goff of Chieveley, in his well-reasoned dissenting judgment in White v Chief Constable of South Yorkshire Police,89 criticised the case as a remarkable departure from generally accepted principles.90 As his Lordship said, before this case the requirement of reasonable fortitude was regarded as being of general application, both in primary and in secondary victim cases, and the debate related not to its applicability in the former kind of case but to whether it was a desirable rule across the whole area of psychiatric injury. Lord Goff preferred the approach recommended by the English Law Commission,91 which had expressed dissatisfaction with Page v Smith:92 No reason is given in Page v Smith [1996] AC 155 for now including the test of reasonable fortitude among the control mechanisms relating to secondary victims, thereby restricting the test to claims by this class of claimant. In any event since, as I see it, the test of reasonable fortitude constitutes part of the inquiry whether psychiatric injury is reasonably foreseeable, it should logically also arise in cases concerned with primary victims. … There is certainly debate about the proper role of this test in cases of psychiatric injury, though none of this is reflected in Page v Smith. At all events, for the purposes of the present appeals, which are concerned with primary victims, I am content to proceed on the basis proposed by the Law Commission … that the reasonable fortitude or “customary phlegm” test is “best interpreted as meaning nothing more than that, in deciding whether psychiatric illness was reasonably foreseeable … one can take into account the robustness of the population at large to psychiatric illness.”93

[8.260] It appears that some lower courts have attempted to minimise the damage done by Page v Smith.94 For example, in Vernon v Bosley (No 1),95 Stuart-Smith LJ said that in the case of a primary victim “the defendant is only liable if it is reasonably foreseeable that a person of ordinary phlegm would so suffer”.96 Though his Lordship dissented on the ultimate result of the case, there is no suggestion that the other judges

88

See [3.50]–[3.80], [3.130]–[3.150].

89

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

90

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 473–480. His Lordship suggested that the majority in Page v Smith may have misunderstood the eggshell skull rule (at 476).

91

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 5.21–5.26.

92

Page v Smith [1996] AC 155.

93

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 477.

94

Page v Smith [1996] AC 155.

95

Vernon v Bosley (No 1) [1997] 1 All ER 577.

96

Vernon v Bosley (No 1) [1997] 1 All ER 577 at 583.

[8.280]

8 Normal Fortitude

299

in the English Court of Appeal repudiated this formulation.97 In Hegarty v EE Caledonia Ltd98 Brooke LJ was also dealing with the position of a primary victim when he said that a reasonable person in the position of the defendant “should have foreseen that a person of ordinary fortitude in the plaintiff’s position would reasonably be in such fear of immediate personal injury to himself as to suffer shock-induced psychiatric illness”.99 These dicta notwithstanding, until either the Law Lords or the legislature see fit to intervene, the position in England must be as stated by Lord Lloyd in Page v Smith. [8.270] Elsewhere, fortunately, the innovations introduced by Page v Smith100 have generally been resisted.101 It is clear that this repudiation embraces the approach to ordinary fortitude along with all the other novel doctrines adopted by Lord Lloyd.102

NORMAL FORTITUDE AND THE THIN SKULL RULE [8.280] At first glance, the normal susceptibility standard appears irreconcilable with the long established principle of negligence that tortfeasors must take their victims as they find them — the so-called “thin skull”, “eggshell skull” or “talem qualem” rule.103 The locus classicus for this rule is the judgment of Kennedy J in Dulieu v White & Sons.104 His Lordship stated: 97

See Vernon v Bosley (No 1) [1997] 1 All ER 577 at 599 per Evans LJ, affirming the ordinary fortitude rule.

98

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259.

99

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 266. Page v Smith was distinguished as involving a person directly involved in the accident and well within the range of foreseeable physical injury.

100

Page v Smith [1996] AC 155.

101

See [3.230] (Australia), [3.380] (Canada), [3.550] (South Africa), [3.680] (Ireland), [3.720] (Singapore). Note also [3.760] (United States).

102

Note Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) at 64, where Navsa J said there was no need to resort to the distinction drawn by Lord Lloyd as respects normal fortitude and the “thin skull” rule. However, in T v Kan Ki Leung [2002] 1 HKLRD 29 at [74], Deputy Judge Muttrie appears to have uncritically adopted the English rule as expressed in Page v Smith.

103 See the concern expressed by Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406 at the apparent conflict between limiting actions to those possessed of normal mental makeup and the eggshell skull rule. 104

Dulieu v White & Sons [1901] 2 KB 669. See also Smith v Leech Brain & Co Ltd [1962] 2 QB 405; Beavis v Apthorpe (1962) 80 WN (NSW) 852; Robinson v Post Office [1974] 1 WLR 1176; Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501; Commonwealth v McLean (1996) 41 NSWLR 389 at 406–407 per Handley and Beazley JJA; Athey v Leonati [1996] 3 SCR 458. The Wagon Mound (No 1) remoteness test (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388) in no way displaces this principle. See generally AM Linden, “Down with Foreseeability! Of Thin Skulls and Rescuers” (1969) 47 Can BR 545; PJ Rowe, “The Demise of the Thin Skull Rule?” (1977) 40 MLR 377. The leading United States authority is Vosburg v Putney 50 NW 403 (Wis 1891); for a more recent discussion see the judgment of Posner J in Stoleson v United States 708 F 2d 1217 (1983), especially at 1220–1223.

300

Part III: Liability for Mental Harm

[8.290]

If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all,105 if he had not had an unusually thin skull or an unusually weak heart.106

[8.290] These seemingly conflicting concepts do, however, lie comfortably side by side. It is clear that a claim for psychiatric injury is not actionable until the plaintiff incurs psychiatric damage caused or contributed to by the tortfeasor as a result of a breach of a duty owed by him or her to the plaintiff. Only once this has been proved is the defendant bound to take the victim as he or she finds him or her. As Johnson JA stated in the Canadian case of Pollard v Makarchuk,107 “susceptibility to injury of a particular type creates no liability where liability does not otherwise exist”. In White v Chief Constable of South Yorkshire Police,108 Lord Griffiths summarised the relationship between the two principles by saying: The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals. This is not to be confused with the “eggshell skull” situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected. It is a threshold test of breach of duty; before a defendant will be held in breach of duty to a bystander he must have exposed them to a situation in which it is

105

It has been suggested that in saying it was no answer that the plaintiff would have suffered no injury at all, Kennedy J went too far: “[T]here must be a breach of duty owed to the claimant and if no damage at all could have been foreseen to a person of normal sensitivity and the claimant’s abnormal sensitivity was unknown to the defendant, then he is not liable” (WE Peel and J Goudkamp (eds), Winfield & Jolowicz on Tort (19th ed, Sweet & Maxwell, London, 2014), p 189).

106

Dulieu v White & Sons [1901] 2 KB 669 at 679. See also Chester v Waverley Corporation (1939) 62 CLR 1 at 9 per Latham CJ, at 26 per Evatt J. For a United States perspective see Purcell v St Paul City Railway Co 50 NW 1034 (Minn 1892); Sloane v Southern California Rail Co 44 P 320 (Cal 1896).

107 Pollard v Macarchuk (1958) 16 DLR (2d) 225 at 230. See also Bourhill v Young [1943] AC 92 at 109–110 where Lord Wright remarked, after adverting to certain forms of hypersensitivity, “these questions go to ‘culpability’, not ‘compensation’”; Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) at 779 per Botha JA; Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) at 342 per Berman JA. 108

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[8.310]

8 Normal Fortitude

301

reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury.109

[8.300] Thus, although the “thin skull” rule cannot operate to avoid or override the initial requirement of foreseeability of actionable damage, it can operate to extend liability to embrace the additional and unforeseen aggravated sequels of the foreseeable injury that are attributable to the secondary victim’s vulnerability. Deane J in Jaensch v Coffey110 has confirmed that the fact that the psychiatric injury sustained by a tort victim: may have been more likely or more severe in [the plaintiff’s] case than in the case of a person of a different disposition does not absolve the defendant of liability in negligence in respect of it.

Thus, it was held irrelevant in Chapman v Lear111 that the plaintiff father and war veteran was more vulnerable to stress and that his reaction to his son’s trauma was magnified to a greater degree than could have been anticipated, and in Lisle v Brice112 it was likewise irrelevant that the plaintiff’s vulnerability to stress increased the extent of her psychiatric reaction to her husband’s injury in an accident and subsequent suicide.113 [8.310] English courts have adopted similar principles. Stuart-Smith J in Brice v Brown,114 for example, agreed that it is immaterial “that a completely normal person would not have suffered the consequences that

109 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 462–463. See also Havenaar v Havenaaar [1982] 1 NSWLR 626 at 631 per Glass JA; Morgan v Tame (2000) 49 NSWLR 21 at [23] per Spigelman CJ. 110

Jaensch v Coffey (1984) 155 CLR 549 at 610. See also PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 241. Nor, for example, could the tortfeasor successfully assert that liability for the cost of psychiatric treatment should be halved on the basis that a normal individual, being mentally and emotionally more robust than the plaintiff, would have been cured in half the time: see PQR Boberg, Annual Survey of South African Law 1973 (Juta, Cape Town, 1974), p 139.

111

Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988).

112

Lisle v Brice [2000] QDC 228. An appeal, limited to the fatal accident claim, was dismissed: Lisle v Brice [2002] 2 Qd R 168.

113

Note also Bassanese v Martin (1982) 31 SASR 461 where the plaintiff’s depressive illness, although consequent on her husband’s death, was due in part to pre-existing causes stemming from severe epilepsy and intellectual deterioration. Liability was admitted, the issue turning on the assessment of damages. Eaton v Pitman (1991) 55 SASR 386 raised the issue of a pre-existing condition suffered by a rescuer: the plaintiff, a nurse who helped to rescue an injured cyclist, was able to recover for the aggravation of her pre-existing spondylolisthesis because her presence at the scene of the accident was foreseeable. Doherty v New South Wales [2010] NSWSC 450 involved a police officer constantly exposed to death and other scenes of trauma; Price J at [289] applied the eggshell skull rule to hold that he was entitled to compensation for all of his injuries, even if the extent of those injuries might not have been foreseeable.

114

Brice v Brown [1984] 1 All ER 997 at 1007.

302

Part III: Liability for Mental Harm

[8.310]

the plaintiff in fact suffered”.115 Similarly in Galt v British Railways Board116 Tudor Evans J ruled that a train driver who feared he was going to strike two men on the track in front of him was entitled to recover for increased damage caused by his pre-existing symptomless condition that predisposed him to myocardial infarction (a heart attack).117 As MacKinnon LJ remarked in the odd case of Owens v Liverpool Corp,118 where mourners at a funeral were shocked by the possibility of the corpse of a relative falling from a hearse onto the road in front of them: It may be that the plaintiffs are of that class which is peculiarly susceptible to the luxury of woe at a funeral so as to be disastrously disturbed by an untoward accident to the trappings of mourning. But one who is guilty of negligence to another must put up with the idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no answer to a claim for a fractured skull that its owner had an unusually fragile one.119

There is also a plentiful supply of authorities in other jurisdictions, for example Canada,120 the United States,121 Scotland122 and South Africa.123 115 See also Mason v Campbell (unreported, Eng QBD, 7 November 1988) where as a result of being attacked and bitten by an Alsatian dog the plaintiff, who was mentally and physically disabled, developed a significant phobia about Alsatian dogs. This was said to be a terrifying incident for a man such as the plaintiff. 116

Galt v British Railways Board (1983) 133 New LJ 870.

117

See also Malcolm v Broadhurst [1970] 3 All ER 508 where the plaintiff’s pre-existing nervous condition was aggravated by her husband’s physical and mental injuries (eg changed personality and behaviour) sustained in the same accident. She was entitled to compensation for her disability because exacerbation of her nervous susceptibility was a foreseeable consequence of serious injury to her husband through the defendant’s carelessness. Note also Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984) where the psychiatric illness suffered by a father as a result of witnessing a negligent circumcision on his son was aggravated by a pre-existing psychiatric condition; Kralj v McGrath [1986] 1 All ER 54 where the more drastic psychiatric effect attributable to grief suffered by a woman following the death of her brain-damaged newborn son was compensable; Arrowsmith v Beeston (unreported, Eng CA, QBENF 97/0755/C, 18 June 1998) where the plaintiff’s physical injury and post-traumatic stress disorder following an accident was aggravated by his pre-existing vulnerability to stress. 118

Owens v Liverpool Corporation [1939] 1 KB 394.

119

Owens v Liverpool Corporation [1939] 1 KB 394 at 400–401. (Evatt J, in his dissenting judgment in Chester v Waverley Corporation (1939) 62 CLR 1 at 27, said of this statement: “In truth, MacKinnon LJ is denying the possibility of such cases whenever the defendant should foresee that one or more of a class may be injured by his carelessness. A duty to take care to avoid injuring a person who has some peculiar physical or nervous weakness may be brought into existence where the special circumstances are known to the defendant. But where a class or group may be endangered by carelessness, the defendant’s sphere of duty can seldom be contracted by denying a duty to weak and nervous members of the group.” For further comment, see Bourhill v Young [1943] AC 92 at 110 per Lord Wright; Goodhart AL (1944) 8 CLJ 265 at 271.) In Mortiboys v Skinner [1952] 2 Lloyd’s Rep 95 Willmer J said at 103: “[I]f the person who is injured unhappily has poor powers of recuperation so much the worse for the wrongdoer. Quite clearly, the victim who makes the poorer recovery prima facie is entitled to larger damages than the happier victim who recovers quickly.” 120

See eg Varga v John Labatt Ltd [1956] OR 1007 at 1022 per Wells J; Holian v United Grain Growers Ltd (1980) 112 DLR (3d) 611 at 622–623 per Morse J; Varanese v Campbell Estate (1991) 102 NSR (2d) 104 at 119 per Chipman JA; Bechard v Haliburton Estate (1991) 84 DLR (4th) 668

[8.320]

8 Normal Fortitude

303

[8.320] The principle is wide enough to cover the particular family situation in which the plaintiff lived, as shown by Nader v Urban Transit Authority of New South Wales,124 where a 10-year-old plaintiff suffered moderate injuries in an accident and as a result of the over-protective concern of his parents developed a hysterical reaction known as Ganser Syndrome. The New South Wales Court of Appeal held that this illness was reasonably foreseeable as a consequence of physical injury, but McHugh JA indicated that he would also have held in the plaintiff’s favour by applying the principle that defendants must take the plaintiff as they find him or her to the boy’s particular psychological and familial situation, saying: “I think that the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.”125 Other cases suggest that this includes the family and cultural setting in which the plaintiff lived. In Kavanagh v Akhtar,126 the plaintiff, an Indian Muslim who had settled in Australia, suffered injury while shopping at the defendant’s premises, and in consequence of her injury was unable to care for her long hair, and at 681 per Griffiths JA; Vanek v Great Atlantic & Pacific Co of Canada [1997] OJ No 3304 at [16] per Cosgrove J (the decision was reversed on other grounds: Vanek v Great Atlantic & Pacific Co of Canada (1999) 180 DLR (4th) 748). Note also Young v Burgoyne (1981) 122 DLR (3d) 330 and Beaulieu v Sutherland (1986) 35 CCLT 237 where the plaintiffs had a history of emotional instability, in the latter case compounded by marital problems and a passive-dependent personality; on the facts they failed to establish conclusively that they had suffered psychiatric injury. Contrast, however, Brown v Hubar (1974) 45 DLR (3d) 664 where Grant J, in determining the duty of care issue, focused on the plaintiff’s background (he had fought in wars, seen many of his friends killed and wounded and was convalescing from a heart attack when he learnt of his daughter’s death) rather than first examining whether psychiatric injury was foreseeable to persons of normal emotional disposition; the approach in this case was criticised by McKay J in Ashley Estate v Goodman [1994] OJ No 1672 at [17]. Cormier CJQBD in McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214 also seemed to concentrate on the plaintiff’s pre-existing anxiety depression due to separation from her husband when analysing her claim for shock caused by the bacterial infection of her children from pet turtles bought in the defendant’s store. Approaching psychiatric injury cases from the question of plaintiff sensitivity is contrary to general principles of negligence. 121

See eg Miley v Landry 582 So 2d 833 (La 1991) (plaintiff suffered from schizoaffective disorder, dramatic change in her condition following automobile accident). Note also Steinhauser v Hertz Corporation 421 F 2d 1169 (1970); Brackett v Peters 11 F 3d 78 (1993); Poole v Copland Inc 498 SE 2d 602 (NC 1998).

122

See eg Gilligan v Robb 1910 SC 856 where a young boy set a dog on a cow that was frightened and rushed into a house, severely shocking the plaintiff who was with her three-week-old baby; Walker v Pitlochry Motor Co 1930 SC 565 at 569 per Lord Mackay; Graham v Paterson 1938 SC 119 at 131 per Lord Mackay.

123

See eg Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A); Boswell v Minister of Police 1978 (3) SA 268 (E) (note that this case involved intentional infliction of shock: see [28.70]); Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) (the shock victim’s pre-existing hypertension so greatly increased the extent of the harm produced by seeing a car containing his two young children roll towards the side of a bridge that he suffered a stroke and died three days later in hospital).

124

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501.

125

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 537.

126

Kavanagh v Akhtar (1998) 45 NSWLR 588.

304

Part III: Liability for Mental Harm

[8.330]

so cut it off without her husband’s consent, contrary to their religion. This action angered her husband, and ultimately led to the marriage breaking down and the plaintiff suffering a psychiatric illness as a result. The New South Wales Court of Appeal held that these were consequences that resulted from the accident, and that the damages award should therefore include a component to cover the distress, illness and suffering inherent in psychiatric injury. Mason P said: The principle that a tortfeasor takes the victim as he or she is found is not absolute and unqualified. However, I see no reason why the appellant should not take the respondent in the family and cultural setting that she lived …. Equality before the law puts a heavy onus on the person who would argue that the “unusual” reaction of an injured plaintiff should be disregarded because a minority religious or cultural situation may not have been foreseeable.127

The same principle had earlier been adopted at first instance in Roussos v Australian Postal Commission,128 where the plaintiff’s husband had been killed, and the plaintiff injured, in a car accident as a result of the defendant’s negligence. The plaintiff recovered damages for the full extent of her post-accident psychiatric condition, the court rejecting the defendant’s argument that its extent was greater than could reasonably have been anticipated because the plaintiff had followed traditional Greek cultural habits such as wearing black and going through a long period of mourning. The approach of these cases has an obvious relevance not only in Australia but in all modern multicultural states.129 [8.330] Can a plaintiff recover in the slightly different situation where physical damage has been exaggerated or magnified in severity as a result of a particular susceptibility to psychiatric illness (for example, where excessive anxiety over physical injuries increases their disabling effect)? In Moricz v Grundel Boilermaking & Engineering Works130 the plaintiff was incapacitated as a result of an anxiety neurosis concerning minor work-related physical injuries. In the absence of intentional malingering defendants will be held liable, as the defendant was in this case, for loss stemming from such neurotic conditions. Indeed, some judges have made even greater sympathetic allowances for the subjective weaknesses of shock claimants, going so far as to say that recovery will be permitted even if there is evidence of conscious malingering provided it exists side by side with genuine neurosis attributable to the injury in question.131 A 127

Kavanagh v Akhtar (1998) 45 NSWLR 588 at 601.

128

Roussos v Australian Postal Commission (unreported, NSWSC, 2 November 1994).

129

See also Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984), discussed at [8.110].

130

Moricz v Grundel Boilermaking & Engineering Works [1963] SASR 112 at 114 per Travers J, referring to the claimant’s “unfortunate kind of defeatist personality”. A similar Canadian case is Bower v Mohawk Oil Co Ltd (1986) 48 Sask R 1. 131

See Corporation of the City of Woodville v Balassone [1968] SASR 147 at 153 per Bray CJ, at 154–155 per Bright and Walters JJ, where a workman was held to be entitled to the continuation of workers’ compensation payments; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 at 359 per White J.

[8.340]

8 Normal Fortitude

305

similar English case is James v Woodall Duckham Construction Co Ltd.132 The plaintiff carpenter fell about 35 feet whilst at work due to the negligence of his defendant employer. He suffered severe pain after the accident which the medical evidence revealed could not be attributed to any physical cause but was due to anxiety over the incident, in particular the ensuing compensation claim. There was evidence that the plaintiff’s suffering would continue until the action for damages was settled or determined by the court. Recovery was allowed, although in this case it was reduced because of a lengthy delay in commencing proceedings.133 Of interest too is Hoffmueller v Commonwealth134 where the defendant was also held responsible for the effect of its carelessness on the claimant’s peculiar emotional make-up. In this case, a plaintiff’s pre-existing obsessional personality disorder flared into a persistent severe postaccident psycho-neurotic condition requiring treatment for nine years until the trial. There was evidence that his predisposition made him vulnerable to upsets and neurotic breakdown but he had managed to live his life without treatment prior to the accident. In ordering a new trial to consider damages, the Supreme Court of New South Wales concluded, inter alia, that there was a causal link between the accident and the symptoms exhibited by the plaintiff and that mental illness was a foreseeable consequence of the collision. The British Columbia Court of Appeal in Enge v Trerise135 was also prepared to award compensation to a 16-year-old girl who developed a schizophrenic condition revolving around a bad scar on her forehead resulting from a car accident. Following the accident she withdrew from society, suffered from acute depression and paranoia, heard “voices” and became abnormally preoccupied with her scar, drawing irrational conclusions about it including the belief that people thought it signified that she was sexually approachable. Ruling that this type of emotional disturbance was not too remote a consequence of the defendant’s negligence, the court held that the scar precipitated her breakdown, which was unlikely to have developed in its absence.136 [8.340] There is some authority for the proposition that damages may also be recoverable where excessive worry about the pecuniary 132

James v Woodall Duckham Construction Co Ltd [1969] 1 WLR 903.

133

Note also Roome v Smith Ltd (unreported, Eng CA, 3 July 1956) (following fall, plaintiff, a potential hysteric from birth, suffered deep nervous hysteria); Williams v Jones Balers (unreported, Chester Assizes, 30 November 1964) (following accident, machine operator had “hysterical paralysis” of left hand — had impression that his fingers were sticking out of his wrist and had to look at his hand to know that it was there). Compare O’Brien v EH Burgess Ltd (unreported, Eng CA, 12 November 1953) (plaintiff developed anxiety neurosis after being hit on head by brick and would only undertake light work; the English Court of Appeal confirmed the trial judge’s finding that this was a supervening neurosis attributable to a deficiency in the plaintiff’s make-up and not to injury).

134

Hoffmueller v Commonwealth (1981) 54 FLR 48.

135

Enge v Trerise (1960) 26 DLR (2d) 529; see also Regush v Inglis (1962) 36 WWR 661.

136

There was expert evidence that the plaintiff was suffering from a latent schizophrenic condition prior to the accident. Note also Tamplin v Star Lumber & Supply Co 824 P 2d 219

306

Part III: Liability for Mental Harm

[8.350]

ramifications of physical injury and incapacity causes actual mental or further physical suffering. In Mitchell v Clancy137 a serious arm injury caused the plaintiff such worry about his ability to support his family that he developed a nervous condition leading to a duodenal ulcer requiring surgery. Philip J considered that the damage arising in connection with the ulcer and the operation was not too remote a consequence of the negligence to be recoverable. The same outcome was reached in North Carolina in Lockwood v McCaskill138 where a plaintiff predisposed to amnesia recovered for a severe memory blackout brought on by mental distress and financial worries after a car accident. Some courts, however, have expressed concern over the causation and foreseeability issues that this situation potentially raises — a New Zealand judge opining in Marra v New Zealand Refrigerating Co Ltd,139 a workers’ compensation case, that “a mental state cannot be said to result from an injury unless it is directly related to such injury [and it] is not enough if the mental state is caused by worry and anxiety over inability to work or over fear of the consequences of an injury”.140 It is submitted that the former view should prevail. So long as psychiatric harm eventuates, it should not matter whether it does so via this sort of indirect route. Anxiety about the financial consequences of physical injury is an entirely natural reaction to physical debilitation, and psychiatric illness stemming from this is clearly foreseeable. [8.350] Returning to the more usual situations where claimant susceptibility is in issue, provided that some recognisable type of psychiatric illness is reasonably foreseeable as a result of the defendant’s lack of care, it is no bar to recovery that the particular form of damage in fact suffered was not.141 The courts do not insist on specificity of foresight allowing recovery for any form of psychiatric loss actually incurred. Just as foresight of the precise medically condition is irrelevant, so also is (Kan 1991) where the jury was able to consider as an element of a mental damage claim the anguish a six-year-old plaintiff might suffer if she worried during her teenage years about the effects of the very serious physical injuries sustained when a 150-pound roll of vinyl flooring fell on her head. 137

Mitchell v Clancy [1960] Qd R 62, affirmed by the High Court in Mitchell v Clancy [1960] Qd R 532.

138

Lockwood v McCaskill 138 SE 2d 541 (NC 1964).

139

Marra v New Zealand Refrigerating Co Ltd [1963] NZLR 432.

140

Marra v New Zealand Refrigerating Co Ltd [1963] NZLR 432 at 434 per Dalglish J. See also Palamara v Fragameni (unreported, WASC, No 89 of 1983, 13 October 1983) where the plaintiff’s worry concerning his ability to support his family and his financial uncertainty produced a neurosis that increased his perception of his physical injuries. This mental condition was further aggravated by treatment (eg epidural injections) that caused new symptoms. Although Burt CJ left the question open whether the mental condition must be directly related to the original negligence, his Honour’s words, on one reading, indicate a preference for the “direct” rule, worry and anxiety over the consequences of a physical injury being insufficient to ground a claim. On the question of foreseeability see Bunyan v Jordan (1937) 57 CLR 1 at 16 per Dixon J. 141

See [7.660].

[8.360]

8 Normal Fortitude

307

foresight of the precise mental or psychological process or “precise events leading to the administration of shock”.142 [8.360] It has been suggested that the incidence of potential for psychiatric injury amongst the community is perhaps higher than that for physical injury or “thin skulls”.143 Demographic considerations aside, the two are treated the same in the eyes of the law. A number of authorities have recognised that rationally no distinction can be drawn between eggshell bodies and eggshell minds — the thin skull rule applies to the psychiatric fallout from the accident in exactly the same way as it does to physical injuries sustained therein.144 In Wyld v Bertram & Coats,145 a South Australian case, Bray CJ stated: I think that the man with the fractured eggshell skull not only gets damages for his loss, but full damages, without any discount for his greater potentiality to injury …. The predisposition is to be ignored; the inevitable operation of pre-existing causes is to be taken into account.

In Pipikos v Brown & Sons Pty Ltd146 his Honour repeated these sentiments, stating: I am unable to distinguish for the purpose in hand the case of a man with an eggshell skull who has an abnormal susceptibility to fracture of the skull from the case of a man with a psychiatric weakness who has an abnormal susceptibility to psychiatric damage.

He continued: As I have said, I cannot distinguish between a predisposition to psychiatric harm and a predisposition to physical harm. It seems to me that the question is of even greater practical importance in the former case, since predispositions to physical harm are probably less common than predispositions to psychiatric

142

Jaensch v Coffey (1984) 155 CLR 549 at 563 per Brennan J. See also Brice v Brown [1984] 1 All ER 997 at 1007 per Stuart-Smith J; Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 512 per McHugh JA. 143

Young v JD Coates Pty Ltd (unreported, NSWCA, CA No 171 of 1988, 5 October 1990) at 9 per Mahoney JA.

144

Varanese v Campbell Estate (1991) 102 NSR (2d) 104 at 119 per Chipman JA. See also Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 681 per Griffiths JA. In this case, although the plaintiff had no pre-existing mental instability, the Ontario Court of Appeal assumed that as a result of a car accident the plaintiff had suffered post-traumatic stress disorder that was then significantly exacerbated by witnessing a motorcyclist who had been injured in the first accident being run over by a second vehicle as he lay helpless on the road. She was held entitled to recover damages for more extensive mental illness due to this “unusual susceptibility”. Though it is extremely unlikely that a recognised trauma-induced disorder (as distinct from a normal emotional reaction) will in fact develop almost instantaneously, thereby immediately rendering a person vulnerable to subsequent stressors (see [5.100]–[5.160], [12.260]), the case does illustrate the occasional indiscriminate operation of the thin skull rule. 145

Wyld v Bertram & Coats [1970] SASR 1 at 5–6.

146

Pipikos v Brown & Sons Pty Ltd [1970] SASR 508 at 514.

308

Part III: Liability for Mental Harm

[8.370]

harm. It may well be that all men have some psychic weakness susceptible to the right pressure at the right time in the right circumstances.147

Significantly, however, Bridge and Wells JJ were not prepared to extend the thin skull principle relevant in conventional physical medicine to the area of psychiatric medicine where (at least at that time) psychiatric knowledge was less developed, although they did not definitively decide the matter.148 But more recently in Prakash v Malkog149 the South Australian Full Court unanimously approved the recognition by the trial judge that a pre-disposition to psychiatric harm should be reflected in an award of damages. The plaintiff’s existing psychiatric illness was exacerbated for 12 months as the result of a motor vehicle accident. By then, medical treatment had returned him to a psychiatric condition compatible with his pre-accident state, although he was left more vulnerable to future exacerbations of that condition. A second accident again caused a worsening of his psychiatric condition for a three-month period, and increased vulnerability to future stress. He recovered damages from each defendant for the effects of the accidents on his mental condition, awards with which the Full Court refused to interfere. [8.370] Other courts have adopted a similar attitude. In England, in Tuckey v R & H Green & Silley Weir Ltd,150 a comparatively minor injury to the plaintiff at work resulted in traumatic neurosis (for which the defendant admitted liability). The plaintiff was “a man of almost eggshell nervous disposition, and so a slight accident was capable of precipitating a neurotic condition”.151 In Australia, in Storm v Geeves152 a mother’s history of neurosis increased the effect of the shock of seeing her daughter pinned beneath a truck but in light of the parent–child relationship did not render her magnified mental damage too remote. Similarly, in Benson v Lee153 there was evidence that a mother who was informed of her child’s involvement in an accident, ran to the scene and suffered shock had been prone to mental illness. Lush J, however, ruled that her abnormality was 147

Pipikos v Brown & Sons Pty Ltd [1970] SASR 508 at 515. See also Sobiecka v Blanton [1960] Qd R 152 at 164 per Stanley J; Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347 at 358 per White J; Hoffmueller v Commonwealth (1981) 54 FLR 48 at 52 per Glass JA. In Negretto v Sayers [1963] SASR 313 a susceptible plaintiff recovered for a nervous breakdown attributable to her being knocked down by a car, but failed in relation to a second that was considered to be a reaction to her giving birth. Her physical injuries had not been serious but, due to a pre-existing tendency to mental disorder, she developed a post-concussional psychosis and was admitted to a mental hospital. She was later discharged, but re-admitted a year later on becoming pregnant. Chamberlain J considered that the eggshell skull rule was still good law and awarded damages for the period ending on the date when she was first discharged. Note also Zumeris v Testa [1972] VR 839. 148

Pipikos v Brown & Sons Pty Ltd [1970] SASR 508 at 519–520.

149

Prakash v Malkog (unreported, SASC, Nos 516 and 517 of 1989, 6 June 1990).

150

Tuckey v R & H Green & Silley Weir Ltd [1955] 2 Lloyd’s Rep 619.

151

Tuckey v R & H Green & Silley Weir Ltd [1955] 2 Lloyd’s Rep 619 at 620 per Pearson J. Note also Bailey v Hain Steamship Co Ltd [1956] 1 Lloyd’s Rep 641. 152

Storm v Geeves [1965] Tas SR 252 at 268–269 per Burbury CJ.

153

Benson v Lee [1972] VR 879.

[8.380]

8 Normal Fortitude

309

not so pronounced as to take it beyond the bounds of reasonable foresight,154 considering that it should be treated in the same way as predisposition in physical injury cases. He stated: Only reasons of policy can justify the adoption of a different rule in “nervous shock” cases, and since [the decision in Mount Isa Mines Ltd v Pusey155] those reasons cannot be regarded as decisive. There may, however, be cases in which an unusual susceptibility is such as to take the consequences suffered by the plaintiff outside the boundaries of reasonable foresight.156

In Canada, in Yoshikawa v Yu,157 the plaintiff’s injuries resulting from a motor vehicle accident did not resolve as expected, and the plaintiff was diagnosed as suffering from a somatic pain disorder. The British Columbia Court of Appeal said that there was no difference in law between an eggshell skull and an eggshell personality, and the defendant should be held liable for the damage suffered, though damages should be reduced to reflect the fact that her personality was partly the cause of her suffering.158 [8.380] It is clear also that, as with personal injury claims,159 the onus is on the defendant to lead evidence that the claimant was predisposed to the psychiatric injury proved to have been caused by the defendant’s breach of duty. This was emphasised by Gibbs CJ in Jaensch v Coffey,160 and reaffirmed in Petrie v Dowling161 and more recently in Skea v NRMA Insurance Ltd.162 In Petrie, Kneipp J considered that though a mother who suffered shock-related mental illness after learning her daughter had been knocked from her bicycle and killed by a car had undergone electroconvulsive therapy whilst a teenager, this did not lead to the conclusion 154

See also Chadwick v British Railways Board [1967] 1 WLR 912 where the fact that a rescuer had suffered psycho-neurotic symptoms 16 years before a rail disaster did not reveal anything in his personality to put him outside the contemplation of the reasonable man. He was not treated as a susceptible plaintiff. 155

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

156

Benson v Lee [1972] VR 879 at 881. His Honour’s words were adopted by Williams J in Gannon v Gray [1973] Qd R 411 at 414. See also Love v Port of London Authority [1959] 2 Lloyd’s Rep 541 at 545 per Edmund Davies J; Sayers v Perrin (No 3) [1966] Qd R 89 at 94–96 per Sheehy ACJ; Malcolm v Broadhurst [1970] 3 All ER 508 at 511 per Geoffrey Lane J; Bishop v Arts & Letters Club of Toronto (1978) 83 DLR (3d) 107. 157

Yoshikawa v Yu (1996) 21 BCLR (3d) 318.

158

See also Gindis v Brisbourne (1997) 39 BCLR (3d) 64; Lew v Fenkarek (1997) 40 BCLR (3d) 361. Note Lenoard v British Columbia Hydro & Power Authority (1964) 49 DLR (2d) 422 at 428 per Wilson CJSC.

159

See Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Pastras v Commonwealth [1967] VR 161; Edwards v Hourigan [1968] Qd R 202. 160

Jaensch v Coffey (1984) 155 CLR 549 at 556.

161

Petrie v Dowling [1992] 1 Qd R 284 at 287 per Kneipp J. See also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 405–406 per Windeyer J; Benson v Lee [1972] VR 879 at 881 per Lush J; Gannon v Gray [1973] Qd R 411 at 414 per Williams J. 162

Skea v NRMA Insurance Ltd [2005] ACTCA 9 at [5] per Crispin J, at [95]–[98] per Lander J.

310

Part III: Liability for Mental Harm

[8.380]

that she had displayed depressive tendencies rendering her prone to psychiatric injury.

Chapter 9

Circumstances of the Case: Relationship to Accident Victim [9.10] INTRODUCTION ................................................................................................................ 311 [9.40] RELATIONSHIP: THE COMMON LAW ....................................................................... 312 [9.40] General principles ............................................................................................................... 312 [9.130] The case law ...................................................................................................................... 318 [9.220] United States ...................................................................................................................... 326 [9.230] RELATIONSHIP: THE CIVIL LIABILITY ACTS ......................................................... 328 [9.250] A CASE STUDY: ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE ............................................................................................................................... 329 [9.260] The first instance decision ............................................................................................... 330 [9.290] English Court of Appeal .................................................................................................. 332 [9.340] House of Lords .................................................................................................................. 336 [9.380] The aftermath of Alcock .................................................................................................. 339 [9.410] Possible reform of the close ties principle ................................................................... 341 [9.440] “MERE BYSTANDERS” ................................................................................................... 343

INTRODUCTION [9.10] This and the next two chapters (Chapters 10 and 11) concentrate on the most characteristic kind of psychiatric injury case, namely the “secondary victim situation” where the plaintiff sues for the infliction of psychiatric harm caused by witnessing, or experiencing in some other way, an accident or near-accident to another, usually a close relative. This chapter discusses the issue of relationship to the accident victim, together with the connected problem of “mere bystanders”. [9.20] The existence of a close relationship between secondary and primary victim is one of the most important variables in determining whether a duty of care exists — indeed, in Australia, since the High Court’s decision in Tame v New South Wales1 holding that other factors such as direct perception and sudden shock are not essential, the quality of the relationship has been the only important factor moderating the general need to establish reasonable foreseeability of psychiatric injury. 1

Tame v New South Wales (2002) 211 CLR 317.

312

Part III: Liability for Mental Harm

[9.30]

(In contrast, in England and most other jurisdictions, “control mechanisms” such as the need for proximity and personal perception have been retained.) Under the Australian Civil Liability Acts, not much has changed. The nature of the relationship between the plaintiff and any person killed, injured or put in peril is listed as one of the circumstances that must be considered in determining whether the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken.2 [9.30] Ever since secondary victim cases began to appear, courts have debated whether the need for some form of close relationship is essential, or whether there are circumstances in which “mere bystanders” — persons who have no relationship with the accident victim, but happen to be present and see the accident occur — are owed a duty of care. Though this issue has been much discussed, it is hard to identify a case in which an action by an unrelated bystander has been successful.

RELATIONSHIP: THE COMMON LAW General principles [9.40] During the embryonic stages of the development of the action for psychiatric injury, the issue of relationship never arose. When liability for nervous shock was first recognised in England in Dulieu v White & Sons3 in 1901, Kennedy J held that compensable shock had to arise “from a reasonable fear of immediate personal injury to oneself”;4 accordingly, there was no role for any third party to play.5 With the demise of this restriction, which commenced with the decision of the English Court of Appeal in Hambrook v Stokes Bros in 1925,6 judicial focus was redirected to search for new methods to reduce the potentiality for liability and the scope for manufactured claims. This caused courts to conduct a stringent examination of the bonds between the parties involved. [9.50] Ever since then, conventional doctrine has dictated that in order to recover for psychiatric injury the plaintiff and the person killed, injured 2

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(c); Civil Liability Act 2002 (NSW), s 32(2)(c); Civil Liability Act 1936 (SA), s 33(2)(a)(iii); Wrongs Act 1958 (Vic), s 72(2)(c); Civil Liability Act 2002 (WA), s 5S(2)(c). The Tasmanian legislation does not contain this provision: see [2.290].

3

Dulieu v White & Sons [1901] 2 KB 669: see [2.40], [24.30].

4

Dulieu v White & Sons [1901] 2 KB 669 at 675.

5

Note also Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, where the Privy Council refused to recognise liability for nervous shock, and Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428, the first case to recognise liability for nervous shock. In these cases, as in Dulieu v White, shock and psychiatric illness were induced through fear of physical injury to the claimant, and so there was no relationship for the courts to scrutinise. This continues to be the case where the plaintiff is a primary victim who can show that he or she was within the area of personal danger (see Chapter 24), or otherwise at risk of suffering personal injury: see eg Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668, discussed at [21.170]. 6

Hambrook v Stokes Bros [1925] 1 KB 141: see [2.50].

[9.60]

9 Circumstances of the Case: Relationship to Accident Victim

313

or put in peril by the negligent defendant must be in a special kind of relationship, one that is close and intimate. In the words of Gibbs CJ in Jaensch v Coffey,7 “Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery”. Traditionally, the courts focused on immediate familial ties, restricting recovery to those within the special relationships of spouses and child and parent.8 The common law’s concentration on these two particular categories of relatives was confirmed by the House of Lords in Alcock v Chief Constable of South Yorkshire Police.9 The question is whether the law deemed these to be the only categories of relationship that give rise to a right to recover, as a matter of judicial policy, or whether the identification of those relationships that are “close and intimate” simply depends on the principle that mental harm is reasonably foreseeable where a relationship satisfies such criteria. Gibbs CJ’s statement quoted above perhaps lends some support to the first view,10 but there are several important judicial endorsements of the second.11 Either way, the relationship between the parties will be relevant to the existence of a duty of care. [9.60] The need for a special type of familial relationship has never been absolute. According to Windeyer J in Mount Isa Mines Ltd v Pusey:12 The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. This allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognised only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body. What began as an exception in favour of relatives to a doctrine now largely abandoned has now 7

Jaensch v Coffey (1984) 155 CLR 549 at 555 per Gibbs CJ.

8

This approach resulted in a reluctance to pursue claims relating to persons outside these categories. This is illustrated by Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172, where a husband suffered psychiatric injury when a large sandstone block crushed a car containing his wife and her parents. He confined his claim to loss consequent on the death of his wife, no action being brought in respect of his in-laws. 9

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. See particularly at 399 per Lord Ackner, at 411 per Lord Oliver of Aylmerton, at 420 per Lord Jauncey of Tullichettle.

10

Ordinarily, the policy justification would be thought of as founded upon the closeness of the family relationship and the likelihood of severe emotional injury occurring as a result of experiencing the tragic death of or injury to a family member. Note TT Uhl, “Bystander Emotional Distress: Missing an Opportunity to Strengthen the Ties that Bind” (1995) 61 Brooklyn L Rev 1399 at 1409, suggesting that negligently inflicted bystander emotional distress protects an interest important to society as well as individuals, namely the importance of strong family relationships.

11

Jaensch v Coffey (1984) 155 CLR 549 at 605–606 per Deane J, at 569–570 per Brennan J; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397 per Lord Keith of Kinkel, at 415–416 per Lord Oliver of Aylmerton.

12

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404. See also Walsh J at 416–417.

314

Part III: Liability for Mental Harm

[9.70]

been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct.

Windeyer J invoked this principle to justify extending recovery to particular categories of plaintiffs who lack familial ties with the victim, such as rescuers and fellow-workers.13 These cases might once have been seen as evidence of the law’s preparedness to extend the category of those able to recover for shock suffered on witnessing an accident to another beyond the boundaries of close family members, but they are now generally explained as turning on different principles, involving the classification of these plaintiffs as primary victims,14 and in some quarters this has resulted in tighter restrictions on recovery.15 However, there may be other categories of potential secondary victim plaintiffs. As discussed at [9.460]–[9.480], courts from Hambrook v Stokes Bros16 onwards have been prepared to contemplate the possibility that, at least in exceptional circumstances, an unrelated bystander who witnessed an accident to another might have a cause of action.17 [9.70] Focusing first of all on the attitude of Australian courts, it should be noted that the important judgment of Brennan J in Jaensch v Coffey18 maintained that the categories of claimants are not closed. Similar sentiments were expressed by Windeyer J in the judgment quoted at [9.60].19 Consistent with this philosophy, as long ago as 1965 Burbury CJ of the Supreme Court of Tasmania approved the extension of the categories of relationship to include brothers and sisters.20 Even earlier, legislatures in three Australian jurisdictions deemed it appropriate to extend the limits of recoverability of compensation for psychiatric injury and in particular to expand the range of potential plaintiffs.21 Liability for causing injury was extended to include mental or nervous shock suffered by a parent or spouse of the person killed, injured or put in peril, simply because of the existence of the relationship, whether they saw the accident happen or not, and “parent” was defined to include “father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another”. Other members of the family were given a right to recover if a family member was killed, injured or put in peril within their sight or hearing: “member of the family” was defined to 13

See Chapters 19, 25–26.

14

See [3.90]–[3.100].

15

See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

16

Hambrook v Stokes Bros [1925] 1 KB 141.

17

See Hambrook v Stokes Bros [1925] 1 KB 141 at 157–158 per Atkin LJ, quoted at [9.470].

18

Jaensch v Coffey (1984) 155 CLR 549 at 571.

19

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404.

20

Storm v Geeves [1965] Tas SR 252: see [9.140].

21

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1), copied by Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 22; Law Reform (Miscellaneous Provisions) Act (NT), s 23. The New South Wales provision has now been repealed; for the current legislation in the Australian Capital Territory and the Northern Territory, see [13.40].

[9.90]

9 Circumstances of the Case: Relationship to Accident Victim

315

mean “the husband, wife, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used”, and “child” was defined to include “son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis”.22 [9.80] In England also, the important judgment of Lord Wilberforce in McLoughlin v O’Brian23 refused to limit the class of eligible claimants: As regards the class of persons [whose claim should be recognised], the possible range is between the closest of family ties — of parent and child, or husband and wife — and ordinary bystander. Existing law recognises the claims of the first; it denies that of the second. … In my opinion, these positions are justifiable, and since the present case falls within the first class, it is strictly unnecessary to say more. I think, however, that it should follow that other cases involving less close relationships must be very carefully scrutinised. I cannot say that they should never be admitted. The closer the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and place, and the nature of the accident.

[9.90] In spite of this statement, prior to the decision in Alcock v Chief Constable of South Yorkshire Police,24 lower courts in England appear to have assumed that recovery was limited to the two closest categories of relationship — parents and spouses.25 This was clearly how Hidden J at first instance understood the law, although he argued strongly for the expansion of the categories to include brothers and sisters.26 His Lordship expressed the justification for this approach in terms of foreseeability: English law, as we have seen, permits only those within the relationship of spouse and parent so to recover. The reasons for this are abundantly clear. It is only in cases where the relationship is of the closest known to man that it is reasonably foreseeable that the doing of physical harm to the one may cause mental harm amounting to true psychiatric illness to the other. It has … been considered that in the spectrum of human relationships ranging from the closest of ties known to man, through all degrees of relationship to that of the mere bystander, it is only in the former in that it is reasonably foreseeable that such damage may follow. For all other relationships it is reasonably foreseeable that the possession of “reasonable phlegm”, as the law puts it, will prevent the onset of a psychiatric illness.27 22

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(5).

23

McLoughlin v O’Brian [1983] 1 AC 410 at 422 per Lord Wilberforce.

24

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

25

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 319.

26

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 337–338: see [9.260]–[9.270].

27 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 337. Similar justifications were offered by Parker LJ in the Court of Appeal at 337 and Lord Jauncey of Tullichettle in the House of Lords at 359. See also McLoughlin v O’Brian [1983] 1 AC 410 at 422 per Lord Wilberforce.

316

Part III: Liability for Mental Harm

[9.100]

[9.100] However, all this has now receded into the past. In one of the most encouraging developments in psychiatric damage law in recent years, the House of Lords in Alcock v Chief Constable of South Yorkshire Police28 recognised that the law could no longer support an approach that arbitrarily demarcated between different categories of relationship, thereby condemning the suits of remoter claimants to failure without consideration of their individual merits. Instead, what now matters is the particular relationship and whether it displays the required characteristics of love and affection. On the relationship issue Alcock is a case of the greatest importance, not only because of the variety of relationships and circumstances that were brought before the House of Lords, but also because of the fundamental change of approach that it endorsed. The case is considered in detail at [9.250]–[9.370]. [9.110] One of the most important effects of the decision in Alcock v Chief Constable of South Yorkshire Police29 is that English law and Australian law are now closely aligned in the approach they adopt to the relationship issue. In Gifford v Strang Patrick Stevedoring Ltd,30 McHugh J in the High Court commented incisively on the implications of this aspect of the Alcock decision, especially in the light of the post-Alcock decision of the High Court in Tame v New South Wales31 rejecting the requirement of direct perception, leaving reasonable foreseeability of psychiatric injury based on the closeness of the relationship as essentially the only remaining criterion of liability for this kind of harm. In this case, the High Court held that the three teenage children of a wharf labourer killed in an accident at work were owed a duty of care in respect of the psychiatric injuries that they suffered as a result of their father’s death. In order to state the Australian law, McHugh J went back to first principles — to Lord Atkin’s question: “Who, then, in law is my neighbour?”32 In a passage that deserves extended quotation, he said: The question, then, is whether the relevant principles of the law of negligence required a finding that the respondent owed the children a duty of care to prevent psychiatric injury. That depends on whether the children were “neighbours” in Lord Atkin’s sense of that term. Were they so closely and directly affected by Strang’s relationship with their father that Strang ought reasonably to have had them in contemplation when it directed its mind to the risk of injury to which it was exposing their father? That Strang negligently caused the death of their father is conceded. So it is unnecessary in this case to determine whether a risk of physical harm to the father existed and if so, whether it could reasonably be disregarded. It is necessary, however, to determine whether exposing the father to that risk gave rise to a risk that the children would suffer nervous shock and whether that risk to the children could reasonably be disregarded. 28

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

29

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

30

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269.

31

Tame v New South Wales (2002) 211 CLR 317.

32

Donoghue v Stevenson [1932] AC 562 at 580.

[9.110]

9 Circumstances of the Case: Relationship to Accident Victim

317

The answer to these questions lies in the nature of the relationship between the children and their father. The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer psychiatric injury on learning of the injury or death, or on observing the suffering of that person. Actions for nervous shock by such persons are common. So common and so widely known is the phenomenon that a wrongdoer must be taken to have it in mind when contemplating a course of action affecting others. Accordingly, for the purpose of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin’s sense includes all those who have a close and loving relationship with the person harmed. … It is the closeness and affection of the relationship – rather than the legal status of the relationship – which is relevant in determining whether a duty is owed to the person suffering psychiatric harm. The relationship between two friends who have lived together for many years may be closer and more loving than that of two siblings. There is no policy justification for preventing a claim for nervous shock by a person who is not a family member but who has a close and loving relationship with the person harmed or put in peril. In a claim for nervous shock at common law, the reasonable foresight of the defendant extends to all those with whom the victim has or had a close and loving relationship. Whether such a relationship exists in a particular case will often be a matter for evidence although, as Lord Keith pointed out …, in some cases the nature of the relationship may be such that it may be presumed. As s 4 of the Law Reform (Miscellaneous Provisions) Act recognises, the children of a person who is killed, injured or put in peril are especially likely to suffer nervous shock upon learning that their parent has suffered harm. Ordinarily, the love and affection between a parent and child is such that there is a real risk that the child may suffer mental injury on being informed of the harm to, or observing the suffering of, the parent. The ordinary relationship between parent and child is so close and loving that a wrongdoer cannot reasonably disregard the risk that the child will suffer mental injury on being informed that his or her parent has been harmed or put in peril as a result of the wrongdoer’s negligence. Nor can the wrongdoer reasonably disregard some other close and loving relationships. Husband and wife, sibling and sibling, de facto partners and engaged couples, for example, almost invariably have close and loving relationships. No doubt the parties to such relationships may sometimes be estranged. Despite this possibility, however, so commonly are these relationships close and loving that a wrongdoer must always have such persons in mind as neighbours in Lord Atkin’s sense whenever the person harmed is a neighbour in that sense. To require persons in such relationships to prove the closeness and loving nature of the relationship would be a waste of curial resources in the vast majority of cases. The administration of justice is better served by a fixed rule that persons in such relationships are “neighbours” for the purposes of the law of nervous shock and the defendant must always have them in mind. Similarly, the wrongdoer must always have in mind any person who can establish a close and loving relationship with the person harmed.33

It seems that McHugh J would even go further. His Honour continued: 33

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269 at [46]–[50].

318

Part III: Liability for Mental Harm

[9.120]

Although a close and loving relationship with the person harmed brings a person within the neighbour concept, it is not a necessary condition of that concept. In some cases, a relationship, short of being close and loving, may give rise to a duty to avoid inflicting psychiatric harm. A person is a neighbour in Lord Atkin’s sense if he or she is one of those persons who “are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected”. If the defendant ought reasonably [to] foresee that its conduct may affect persons who have a relationship with the primary victim, a duty will arise in respect of those persons. The test is, would a reasonable person in the defendant’s position, who knew or ought to know of that particular relationship, consider that the third party was so closely and directly affected by the conduct that it was reasonable to have that person in contemplation as being affected by that conduct?34

[9.120] Whatever the differences that exist as regards other aspects of liability for psychiatric injury, the law in Australia and England, and indeed in other Commonwealth jurisdictions also, is substantially unified in its approach to the relationship issue. The following account therefore makes use of authorities not only from these two countries but from Canada and elsewhere. The United States is somewhat different, because the diversity of approach of the different State laws means that decisions from a particular State may not express principles that hold good elsewhere. The United States therefore receives separate treatment.

The case law [9.130] Most cases, both in Australia and elsewhere, have involved the immediate familial nucleus: the successful plaintiffs have been either spouses, parents or children.35 The leading endorsements of the close ties 34 35

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269 at [51].

The youngest child plaintiff to recover damages for psychiatric injury to a parent appears to have been the six-year-old girl in Osadchy v Braun (1991) 72 Man R (2d) 286 who was a passenger in the back seat of her parents’ car when the defendant’s car collided with it. She saw her mother covered in blood, was frightened and suffered a post-traumatic neurosis. The fact that she was in the car may well have contributed to the court’s decision. Note also DeBoyrie v Drenth [1982] OJ No 869, where an Ontario High Court judge refused to overturn a Small Claims Court finding in favour of a three-year-old child, though suggesting that the evidence was “tenuous”. Courts have generally not been satisfied that psychiatric injury is foreseeable in cases involving small children. In Australia, the issue received full consideration in Marchlewski v Hunter Area Health Service [1998] NSWSC 771, where the court rejected a claim that three-year-old Delores had suffered an emotional injury as a result of the death of her four-week-old sister after an obstructed labour due to the defendant’s negligence, saying that it was highly unlikely that a child of that age would suffer the “sudden sensory perception” then thought to be a prerequisite of liability. Claims by very young children were also rejected in Hanley v Keary (unreported, ACT SC, SC No 674 of 1989, 28 January 1992) (children aged three and six); Public Trustee v Commonwealth (unreported, NSW SC, No 10962 of 1985, 8 June 1994) (two-year-old daughter). It is possible that primary victim plaintiffs may be younger: in Duwyn v Kaprielian (1978) 94 DLR (3d) 424 an action for psychiatric injury brought on behalf of a four-month-old boy who was in a car with his grandmother when it was run into by the defendant was successful, but this may be an exceptional case. In G v North Tees Health Authority [1989] FCR 53, a six-year-old girl recovered damages for psychiatric injury caused by the defendant’s negligence in reporting

[9.140]

9 Circumstances of the Case: Relationship to Accident Victim

319

principle have made little or no difference in this respect.36 However, this has not always been religiously adhered to: there is a substantial body of authority extending recovery to various other relatives that helped to create precedent for the changed approach already described. An early example is Owens v Liverpool Corporation,37 in which the English Court of Appeal awarded compensation to the mother, uncle, cousin and husband of the cousin of a deceased person whose coffin was overturned during a funeral possession and nearly ejected from the hearse. The court did not question the appropriateness of allowing each of these relatives to recover.38 More recently, in an Irish case,39 where a young girl was killed and her brother injured, the grandparents took the phone call and went to the scene of the accident, and were joined later by the mother and her de facto partner. All four claimed damages. Liability was not in issue in any of these cases, but it was held that they were barred by limitation. [9.140] Two important cases illustrate the preparedness of Australian courts to widen the categories of relationship in respect of which damages for psychiatric injury are recoverable to include brothers and sisters. In the Tasmanian case of Storm v Geeves,40 the plaintiff’s three children were waiting for a school bus when one daughter was hit and killed by a negligently driven truck. The remaining daughter and son were physically unharmed and the boy ran home to fetch his mother who returned to find the first daughter pinned helplessly beneath the wheels of the vehicle. The mother, brother and living sister claimed compensation for psychiatric illness. Damages were awarded to both the mother and brother and, while on the facts Burbury CJ was unconvinced that the girl had suffered a recognisable and therefore compensable psychiatric illness, his Honour was willing to include the sister within the categories of claimants potentially able to recover.41 Most recently, Nettle J of the High Court of Australia has added his endorsement to a brother’s claim. In King v Philcox,42 the plaintiff’s brother was a passenger in a car involved in a collision late one afternoon, and sustained injuries from which he died a that her vaginal swab was contaminated by male sperm, a mistake only discovered after several days of painful and intrusive investigations. In AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1, the English Court of Appeal affirmed that young children cannot claim unless it is shown that they have suffered a recognisable psychiatric illness: normal human emotions of a transient nature do not justify an award of damages, and there is no justification for applying a lesser test to an infant. 36

Examples from Australian cases include Ah Tong v Wingecarribee Council [2003] NSWCA 381 (parents); Pareezer v Coca-Cola Amatil [2004] NSWSC 825 (wife, child); Hanlon v Hanlon [2006] TASSC 1 (wife and mother); Monie v Commonwealth [2007] NSWCA 505 (wife).

37

Owens v Liverpool Corporation [1939] 1 KB 394, noted by CA Wright (1939) 17 Can BR 56.

38

The case was criticised by the House of Lords in Bourhill v Young [1943] AC 92, but in the light of the subsequent development of the law of psychiatric injury this criticism may not be justified.

39

McCoy v Keating [2011] IEHC 260.

40

Storm v Geeves [1965] Tas SR 252.

41

Storm v Geeves [1965] Tas SR 252 at 266–267.

42

King v Philcox (2015) 89 ALJR 582.

320

Part III: Liability for Mental Harm

[9.150]

few hours later. The plaintiff drove through the intersection on five occasions that evening, each time noting that an accident had occurred, but not realising that his brother was involved. He was told of his brother’s death some hours later, and subsequently developed a depressive disorder. The primary issue for the court was whether the plaintiff could bring himself within the limits of the mental harm provisions of the Civil Liability Act 1936 (SA), but Nettle J prefaced this issue by considering what the position would be at common law.43 He had no problem with accepting that the relationship between two brothers was close enough to fulfil the “close ties” requirement. He said: “In terms of the relationship between the deceased and the claimant, although the relationship between siblings might be presumed not to be as close as it is between husband and wife, the ordinary expectation as to ties between siblings makes it just as foreseeable that the death of one brother could impact severely on the mental health of the other as it is that the death of a husband may impact on the mental health of his wife.”44 [9.150] There are many similar decisions from other jurisdictions. In England, recovery by siblings is supported by a number of lesser-known cases. In Mortiboys v Skinner45 four elderly women claimed compensation, inter alia, for nervous disorders stemming from a collision between the Devonshire Maid, a motor boat on which they had been travelling, and a paddle steamship. Two other passengers were drowned and in both cases they were sisters of one or other of the surviving plaintiffs. Thus, in addition to the shock of the collision, immersion in the water off Brixham Harbour, and their own escape from drowning, the surviving plaintiffs had, as Willmer J expressly noted, experienced the shock of being present at the death of a sister. Damages were awarded for their overall shock and consequent psychiatric disabilities, no distinction being drawn between that suffered as a result of a sister’s death and the accident itself.46 In Shaw v Mills47 a young girl was awarded damages for psychiatric injury caused by the shock of seeing her mother and youngest sister killed before her eyes by a motorcycle and sidecar when all three were walking together along the footpath. Significant also is Turbyfield v Great Western Railway

43

In accordance with the approach approved in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [24] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

44

King v Philcox (2015) 89 ALJR 582 at [88]. For other Australian cases where recovery was granted to siblings, see Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 (claim by parents and brothers); Halvorsen v Dobler [2006] NSWSC 1307 (claim by parents and sister).

45

Mortiboys v Skinner [1952] 2 Lloyd’s Rep 95.

46

Note also Moores v Dixon (unreported, Manchester County Ct, 26 September 1991) where a sister and twin brothers all suffered psychiatric injury through concern for each other’s safety when a car crashed into the sitting room of their house while they were watching television. Though they all received slight physical injuries, the principal claim was for “nervous shock”.

47

Shaw v Mills (unreported, Eng CA, 7 March 1961).

[9.160]

9 Circumstances of the Case: Relationship to Accident Victim

321

Co48 where the twin sister of a girl who was injured (and who died nine days later) due to the negligent driving of a horse and dray by a servant in the employment of the defendant recovered £25 for the shock of witnessing the accident. In Canada, the British Columbia Supreme Court in Cameron v Marcaccini49 was not moved to question a young woman’s right to claim for shock incurred from witnessing her sister’s death and injury to her niece in a road accident in which she also suffered physical injury. In Ontario, in Howes v Crosby,50 when a five-year-old girl was run over by a car when walking to her grandparents’ house with her mother, brother and sister, the brother and sister as well as the mother were entitled to compensation;51 and in Szeliga Estate v Vanderheide52 two elderly sisters recovered damages for the death of a third sister in a car accident — one of them was involved in the accident and the other attended the hospital immediately afterwards.53 In Scotland, although Lord Murray of the Outer House in Harvey v Cairns54 rejected the claim of a brother for the shock and emotional effect of witnessing the death of his sister who had stepped in front of an oncoming vehicle, he did not do so on the basis of the pursuer’s connection with the primary victim.55 A decision of the South African Appellate Division, Bester v Commercial Union Versekeringsmaatskappy van SA Bpk,56 also recognises the rights of siblings to redress, allowing a young boy to recover for an anxiety neurosis stemming from the sight of his younger brother’s death under the wheels of a carelessly driven car. [9.160] In one of the most important examples of recent years, an Irish court has held that it is reasonably foreseeable that psychiatric injury may result from being confronted by the death or serious injury of a brother or sister. In Cuddy v Mays,57 Declan Cuddy was working as a hospital porter when the five victims of a road accident were brought in. All were 48 Turbyfield v Great Western Railway Co (1937) 54 TLR 221. Note, however, that these and other “peculiar” damages (eg £21 for funeral expenses) had been agreed upon prior to the proceedings; the only question for Greaves LJ was one of liability. 49

Cameron v Marcaccini (1978) 87 DLR (3d) 442. The case concerned assessment of damages, liability having been admitted.

50

Howes v Crosby (1984) 6 DLR (4th) 698.

51

The mother’s damages were reduced for contributory negligence because although she had been walking hand-in-hand with her daughter, she had allowed her daughter to walk on the side of the footpath nearest the road, and they had their backs to oncoming traffic.

52

Szeliga Estate v Vanderheide [1992] OJ No 2856. Again, liability was admitted.

53

Note also Davis (Litigation guardian of) v McFarlane [1997] OJ No 6137, where a seven-year-old girl witnessed an accident in which her twin sister was badly injured. The judgment was confined to procedural issues.

54

Harvey v Cairns 1989 SLT 107.

55

Three reasons were given: absence of a causal link, an inability to distinguish the symptoms experienced by the boy from those appropriate to a loss of society award, and lack of a factual basis for the claim.

56

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A).

57

Cuddy v Mays [2003] IEHC 103.

322

Part III: Liability for Mental Harm

[9.170]

well-known to him. His brother and his two cousins were already dead, and his sister and a lifelong family friend were severely injured. Once he recognised the victims, he was advised by another staff member to leave the casualty department, but he had to go to the mortuary to help identify the bodies. He was especially distressed by the condition of his dead brother, and the severe head injuries that his sister had suffered. Kearns J rejected a defence submission that the categories of person able to recover should not be extended to brothers and sisters. Psychiatric injury to a sibling, he said, was not outside the limits of reasonable foreseeability. It made no difference that the plaintiff was at the hospital in his capacity as a member of the hospital staff: he claimed as a brother, not as an employee or rescuer. [9.170] Recent cases, perhaps influenced by the change in attitude stemming from the House of Lords decision in Alcock v Chief Constable of South Yorkshire Police,58 have made it clear that half-brothers and half-sisters can fall into the category of those owed a duty of care, in addition to siblings of the whole blood. A leading example, McCarthy v Chief Constable of South Yorkshire Police,59 involved two half-brothers who were both in the crowd at Hillsborough on the day of the match, having travelled from Liverpool to support their team in the FA Cup semi-final: John was awarded damages for post-traumatic stress disorder resulting from Ian’s death. In Victoria, in Gannon v Transport Accident Commission,60 compensation under the Transport Accident Act 1986 (Vic) was awarded in respect of the death of a half-brother — who was also a father-figure. These cases confirm earlier instances that show that courts have generally been prepared to recognise step relationships,61 as does a Canadian decision, Sutton v Pelley,62 where a plaintiff recovered for psychiatric injuries sustained on witnessing the aftermath of an accident in which her step-daughter perished.63 Foster children are certainly regarded as being within the recognised categories.64 One of the plaintiffs in Alcock, Denise Hough, had fostered her young brother who died in the tragedy, but this fact was assumed at all stages not to prejudice her claim. Stephenson LJ in the English Court of Appeal in McLoughlin v O’Brian65 raised the question whether adoptive and illegitimate relationships ought to be included 58

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

59

McCarthy v Chief Constable of South Yorkshire Police (unreported, Eng QBD, 11 December 1996): see also [9.390].

60

Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997).

61

Step relationships were expressly included in the Australian statutes giving secondary victims of accidents a right of recovery additional to whatever rights they might have at common law: see [13.120].

62

Sutton v Pelley [1993] OJ No 2429.

63

Note, however, Elliott v Bali Bungy Co [2002] NSWSC 906, where Young CJ in Eq said that “a step-sister would not normally be a person that one would have in contemplation”.

64

See Hinz v Berry [1970] 2 QB 40; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 385 per Nolan LJ.

65

McLoughlin v O’Brian [1981] QB 599 at 606.

[9.190]

9 Circumstances of the Case: Relationship to Accident Victim

323

within the permitted categories. In McLinden v Richardson,66 a mother of an adopted child brought an action against the driver of a van that had run over the child. In allowing proof before answer Lord Wheatley made no mention of the fact that the child was adopted and proceeded on the basis that it made no difference to the actionability of the claim. The issue of illegitimate children has never been analysed, but it seems inconceivable today that there would be any barrier to recovery on the ground that a relationship was an illegitimate one rather than a legitimate blood relationship. [9.180] In addition, the focus on the husband–wife bond has, on occasion, been extended to include de facto spouses. The Tasmanian Supreme Court in Klug v Motor Accidents Insurance Board,67 for example, did not resort to the issue of relationship to defeat a claim for shock and a pathological grief disorder suffered on the death of the plaintiff’s de facto wife. Canadian judges also have not been averse to diluting the conventional insistence on the “closest of human ties” as a prerequisite to recovery for shock-induced psychiatric injury. In Beecham v Hughes68 the plaintiff’s claim for psychiatric illness in the form of reactive depression arising out of his de facto wife’s injuries sustained in a car crash was not ruled out by the British Columbia Court of Appeal on the basis that the parties were not in lawful wedlock. [9.190] There is some early Scottish authority for the proposition that fiancés may recover for shock-related injuries in certain circumstances, at least where there is evidence also of psychiatric injury through fear for personal safety. In Currie v Wardrop69 a young woman and her fiancé were walking on the grass verge of the roadway arm-in-arm when they were both knocked down from behind by an omnibus. The man was severely injured and the woman, although not physically struck, was shocked, both through apprehension for her own safety and that of her companion, to the extent that she developed tachycardia70 and tremors. The majority of the Court of Session concluded that once it was established that there is a good ground of action for nervous shock sustained in consequence of apprehension as to one’s own well-being, it was immaterial whether this was aggravated by alarm about the safety of a fiancé involved in the traumatic incident in question. Recovery could be had for shock stemming from both sources.71 In the wake of Alcock v Chief Constable of 66

McLinden v Richardson 1962 SLT (Notes) 104.

67

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134.

68

Beecham v Hughes (1988) 52 DLR (4th) 625.

69

Currie v Wardrop 1927 SC 538.

70

Rapid heartbeat (more than 100 beats per minute); racing of the heart, increased pulse rate.

71 Subsequent developments in Scotland indicate that the limitation in Dulieu v White & Sons [1901] 2 KB 669 that troubled the court no longer restricts recovery in that jurisdiction: see McLinden v Richardson 1962 SLT (Notes) 104; Bain v Kings & Co Ltd 1973 SLT (Notes) 8; Harvey v Cairns 1989 SLT 107. Consequently Currie v Wardrop may be stronger authority in

324

Part III: Liability for Mental Harm

[9.200]

South Yorkshire Police,72 it seems clear that engaged persons will be allowed to recover for psychiatric injury caused by witnessing or otherwise experiencing the death or injury of their fiancé. The House of Lords suggested that one of the Hillsborough plaintiffs, Alexandra Penk, who lost her fiancé in the tragedy, provided an excellent example of the kind of close and loving relationship that they had in mind,73 and a leading South African case has now granted recovery to a young woman who watched as her fiancé was struck down by a passing car.74 [9.200] Some courts have been prepared to go even further and grant recovery to claimants who sustain mental damage on the death, injury or imperilment of a close friend. In Kohn v State Government Insurance Commission75 Bray CJ of the South Australian Supreme Court felt no compulsion to bar the psychiatric injury claim of the seriously injured girlfriend of a young man killed in a road accident. Although the evidence revealed that she hoped to marry the deceased, they were not formally engaged and thus the case can only be viewed as authority for extension of the relationship criterion in respect of friends, albeit extremely close ones, rather than fiancés. In Ring v Bourgeois,76 by contrast, where the plaintiff claimed damages for psychiatric harm suffered as the result of the death of Marianne Huyer, a PhD student cycling home from her laboratory, though he testified that they had “confessed our love for each other”, the evidence was that they had continued to live separately, except for a short period when he lived in her room because he was unemployed. The British Columbia Supreme Court held that the relationship was insufficient for the plaintiff to receive compensation under the Family Compensation Act 1996 (BC). The psychiatric injury claim failed on the ground that the plaintiff did not witness the accident or its aftermath. The court did not rule on the relationship issue in the psychiatric injury context, but it is not clear beyond doubt that the relationship would have been regarded as close enough. [9.210] Turning to more platonic friendships, it is noteworthy that in Rowe v McCartney77 although the plaintiff failed in her claim for shock induced by guilt at having granted a friend permission to drive her high favour of fiancés’ rights to sue than may be apparent at first glance. For a Canadian case see Brown v Matheson (1990) 97 NSR (2d) 428 where damages for shock and consequent serious psychiatric injury stemming from the death of her fiancé in a car accident were subsumed within the plaintiff’s personal injury award, no reference being made to the relationship between her and the deceased for the purposes of the actionability of the psychiatric component. Note also Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141 at 151 per Haines J. 72

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

73

See [9.370].

74

Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).

75

Kohn v State Government Insurance Commission (1976) 15 SASR 255.

76

Ring v Bourgeois [1998] BCJ No 2576.

77

Rowe v McCartney [1976] 2 NSWLR 72.

[9.210]

9 Circumstances of the Case: Relationship to Accident Victim

325

powered car that he negligently crashed, thereby rendering himself a quadriplegic, the New South Wales Court of Appeal gave no indication that she faced any barrier to compensation due to the fact that her relationship with the defendant was not a familial one. She was unsuccessful not because he was her friend, but on the grounds that injury was not reasonably foreseeable and the damage suffered was too remote.78 There are a few cases where courts have speculated about the position of close friends,79 and one or two where emotional injury due to the loss of a friend appears to have been an element in the damages awarded;80 however, these authorities need to be considered in the light of a recent case from Northern Ireland81 where the claimant was walking with her close friend Marian, with their babies in buggies and Marian’s three-year-old son, and the son was struck down in front of their eyes by the defendant’s motor vehicle. The claimant was unable to recover for her resulting depressive illness because according to Coghlin J, applying the

78 Note also Trenholm v H & C Trucking Ltd (2014) 342 NSR (2d) 273 where the plaintiff recovered damages for psychiatric injury when she and two friends were walking along a highway after their car had broken down and one friend was struck by the defendant’s truck and killed. Liability was admitted. It seems that survivor guilt was an element: the plaintiff felt guilty because she was the one who had asked the deceased to come with them; she got a tattoo in his memory. However, she was close enough to have been in personal danger, and could therefore have been considered a primary victim. There was no discussion of whether the relationship was sufficiently close to have allowed the plaintiff to recover as a secondary victim. 79

Eg Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141, where Haines J speculated about the position of close friends (at 151); Beaulieu v Sutherland (1986) 35 CCLT 237 where Legg J did not have to consider whether the relationship between two workmates who were “good” but not “close” friends was sufficient to give rise to liability because he held that the plaintiff did not suffer a recognisable psychiatric illness; Crocker v British Coal Corporation (1995) 29 BMLR 159, which arose out of the Aberfan disaster in 1966, when the slag heap from the local coal mine collapsed onto the village school: many years later, the plaintiff sued for psychiatric injury based on the loss of two close school friends, but Mance J dealt mainly with the limitation issues and ultimately refused to exercise his discretion to allow the action to proceed; Gregg v Ashbrae Ltd [2005] NIQB 37, where the plaintiff saw a wall collapse on his long-standing friend and work colleague, but the damages awarded were based not on his relationship with the deceased but on the fact that he was an involuntary participant.

80

Newby v General Lighterage Co Ltd [1954] 2 Lloyd’s Rep 625, affirmed in Newby v General Lighterage Co Ltd [1955] 1 Lloyd’s Rep 273, where a barge adrift on a river at night collided with a rowing eight, and the plaintiff, one of the members of the crew, suffered nervous injury due principally to the death of another crew member; Ross v Bowbelle and Marchioness (unreported, Admiralty Registrar, 18 June 1991) where a passenger on a riverboat that sank suffered depression and post-traumatic stress disorder due in part to loss of a friend but also due to her own involvement and unsuccessful attempt to rescue another passenger; Fullowka v Royal Oak [2004] NWTSC 66, where the plaintiff recovered damages at first instance for psychiatric injury caused by viewing the body parts of a co-worker and close friend (but negligence and causation were found lacking on appeal: see Fullowka v Pinkerton’s of Canada Ltd [2010] 1 SCR 132).

81

McDaid v Snodgrass [2009] NICA 18.

326

Part III: Liability for Mental Harm

[9.220]

principles in Alcock v Chief Constable of South Yorkshire Police,82 the relationship was not sufficiently close and intimate to bring her within the necessary degree of proximity.

United States [9.220] Though Commonwealth courts are substantially uniform in their approach to determining the range of relatives who satisfy the “close ties” requirement, the same cannot be said of the United States, where there are wide differences of opinion between the various State jurisdictions, to some extent dependent on the other restrictions they impose, such as whether they adhere to the zone of danger limitation or permit bystander recovery on a wider basis,83 and whether “emotional distress” requires proof of some form of physical or psychiatric harm.84 At one end of the spectrum there are authorities that permit recovery by a wide range of relatives;85 at the other extreme are cases that impose a strict limitation to immediate family members related by blood or marriage.86 With this warning in mind, authorities permitting various categories of relatives to recover damages for emotional distress suffered through witnessing an accident to a close relative may be briefly examined. While most cases involve parental and spousal relationships, it is clear, as the leading case of Dillon v Legg87 shows, that brothers and sisters are considered to be within the type of relationship justifying a right to litigate.88 Some courts have been prepared to recognise 82

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

83

See [3.770]–[3.780].

84

See [6.160].

85

Eg Barnhill v Davis 300 NW 2d 104 (Iowa 1981) (all within the second degree of consanguinity or affinity); Gates v Richardson 719 P 2d 193 (Wy 1986) (all those who are able to bring a wrongful death action). Note Eskin v Bartee 262 SW 3d 727 at 740 per Koch J: “The required relationship between the plaintiff and the deceased or injured person is not necessarily limited to relationships by blood or marriage. While a parent-child relationship, a spousal relationship, a sibling relationship, or the relationship among immediate family members provides sufficient basis for a claim, other intimate relationships such as engaged couples or step-parents and step-children will also suffice. The burden is on the plaintiff to prove the existence of the close and intimate personal relationship.” For a list of relevant factors, see St Onge v MacDonald 917 A 2d 233 (NH 2007). 86

Eg Grotts v Zahner 963 P 2d 480 (Nev 1999). See DG Bassi, “It’s All Relative: A Graphical Reasoning Model for Liberalising Recovery for Negligent Infliction of Emotional Distress beyond the Immediate Family” (1996) 30 Valparaiso UL Rev 913. For an exhaustive summary of the United States case law, see Annotation, “Relationship between Victim and Plaintiff-Witness as affecting Right to Recover under State Law for Negligent Infliction of Emotional Distress due to Witnessing Injury to Another where Bystander Plaintiff is not Member of Victim’s Immediate Family” 98 ALR 5th 609 (DJ Gilsinger).

87 88

Dillon v Legg 441 P 2d 912 (Cal 1968).

See also eg Hopper v United States 244 F Supp 314 (1965); Shepard v Superior Court In and For Alameda County 142 Cal Rptr 612 (1977); Landreth v Reed 570 SW 2d 486 (Tex 1978); Burke v Pan American World Airways Inc 484 F Supp 850 (1980); Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983); Goncalvez v Patuto 458 A 2d 146 (NJ 1983); Bovsun v Sanperi 461 NE 2d 843 (NY 1984); James v Lieb 375 NW 2d 109 (Neb 1985); Ebarb v Woodbridge Park Association

[9.220]

9 Circumstances of the Case: Relationship to Accident Victim

327

relationships akin to sibling relationships, for example a Texas case where recovery was allowed in favour of an uncle who witnessed an injury to his nephew, but it was clearly important to the decision that the uncle resided in the nephew’s household;89 and there are cases where less close family relationships have been held sufficient.90 There are cases that have extended the range of recovery to relationships of the half blood,91 step relationships,92 foster children93 and illegitimate children.94 Some American courts have permitted fiancées to recover,95 but recovery by 210 Cal Rptr 751 (1985); Gates v Richardson 719 P 2d 193 (Wyo 1986); Wright v City of Los Angeles 268 Cal Rptr 309 (1990); note also Garrett v City of New Berlin 362 NW 2d 137 (Wis 1985), decided under an exception to Wisconsin’s zone of danger rule, now abolished: see Bowen v Lumbermens Mutual Casualty Co 517 NW 2d 432 (Wis 1994). 89

Garcia v San Antonio Housing Authority 859 SW 2d 78 (Tex 1993). Compare Trapp v Schuyler Construction 197 Cal Rptr 411 (1983) where two children who witnessed their first cousin drown in a swimming pool were denied relief for emotional distress notwithstanding that they enjoyed a relationship akin to that of siblings; see also Blanyar v Pagnotti Enterprises Ltd 679 A 2d 790 (Pa 1996).

90

Eg Genzer v City of Mission 666 SW 2d 116 (Tex 1983) (damages for mental distress awarded to the grandparents of a girl killed in a fireworks mishap); Kriventsov v San Rafael Taxicabs Inc 229 Cal Rptr 768 (1986) (uncle recovered in relation to the hit and run death of his nephew). Note, however, Lafferty v Manhasset Medical Center Hospital 429 NE 2d 789 (NY 1981) (lower court decision allowing woman to recover for emotional distress caused by witnessing the death of her mother-in-law from the transfusion of mismatched blood reversed on appeal); Trombetta v Conkling 626 NE 2d 653 (NY 1993) (niece who witnessed accident to aunt unable to recover, even though this particular relationship more like a mother and child relationship). Both of these cases applied New York’s version of the zone of danger rule, under which the plaintiff must be within the zone of risk of bodily harm, though the emotional distress may be occasioned by fear for the safety of another. But other courts applying the principles of bystander recovery may well make the same decisions on the issue of relationship, as confirmed by Moon v Guardian Postacute Services Inc 116 Cal Rptr 2d 218 (2002) (son-in-law not “closely related” to mother-in-law for purposes of bystander claim for negligent infliction of emotional distress). 91

Eg Gaston v Flowers Transportation 675 F Supp 1036 (1987).

92

Eg Grandstaff v Borger 767 F 2d 161 (1985) (police officers mistakenly shot and killed claimant’s stepfather); Meredith v Hanson 697 P 2d 602 (Wash 1985); Strickland v Deaconess Hospital 735 P 2d 74 (Wash 1987); Freeman v City of Pasadena 744 SW 2d 923 (Tex 1988).

93

Eg Mobaldi v Board of Regents of University of California 127 Cal Rptr 720 (1976); compare Ramirez v Armstrong 673 P 2d 822 (NM 1983) (claim of girl living with deceased’s family rejected, there being no evidence that the deceased occupied a legitimate position in loco parentis). In Leong v Takasaki 520 P 2d 758 (Haw 1974), where a ten-year-old boy recovered after witnessing the death of his “foster grandmother” (stepfather’s mother), the court said that Hawaiian and Asian families had long maintained strong family ties among members of the extended family group (“ohana”).

94

In United Services Auto Association v Keith 953 SW 2d 365 (Tex 1997) a mother was held entitled to recover for emotional distress consequent on the death of her natural daughter. The decision was reversed on appeal in United Services Auto Association v Keith 970 SW 2d 540 (Tex 1998), but on the ground that the mother was not at the scene when the accident occurred.

95

Eg Pieters v B-Right Trucking Inc 669 F Supp 1463 (1987); Yovina v Big Bubba’s BBQ 896 A 2d 161 (Conn 2006) (fiancée, to whom plaintiff had given kidney, killed by intoxicated driver); but compare Grotts v Zahner 989 P 2d 415 (Nev 1999); Biercevicz v Liberty Mutual Insurance Co 865 A 2d 1267 (Conn 2004); Smith v Toney 862 NE 2d 656 (Ind 2007).

328

Part III: Liability for Mental Harm

[9.230]

friends has generally been ruled out.96 De facto relationships have produced wide differences of opinion, even within particular jurisdictions. Though some early decisions granted damages to unmarried cohabitants,97 in the 1980s there was a backlash against recovery in such cases.98 However, more recent decisions suggest that the courts may now be taking a more liberal attitude, and in an important New Jersey decision the court ruled in favour of an unmarried cohabitant on the basis that the relationship was intimate and familial in character.99

RELATIONSHIP: THE CIVIL LIABILITY ACTS [9.230] Under the Civil Liability Acts, one of the circumstances of the case that is taken into account in determining whether there is a duty of care not to cause mental harm to another is the nature of the relationship between the plaintiff and any person killed, injured or put in peril.100 The section does not impose any limitations on the classes of relatives who are within the permitted degrees of recovery, nor does it mandate the adoption of a “close ties” or any other test. Moreover, as the High Court pointed out in Wicks v State Rail Authority (NSW),101 the sections do not prescribe any particular consequence as following from the presence or absence of this or any of the other listed circumstances. However, it should be noted that in four of the six jurisdictions with mental harm 96

See eg Beanland v Chicago R I & P R Co 480 F 2d 109 (1973); Kately v Wilkinson 195 Cal Rptr 902 (1983); Trapp v Schuyler Construction 197 Cal Rptr 411 (1983) (a “close relationship” “does not include friends, housemates or those standing in a ‘meaningful relationship’”); Keen v Louisiana Farm Bureau Insurance Co 583 So 2d 835 (La 1991); Smith v Kings Entertainment Co 649 NE 2d 1252 (Ohio 1994); Fitzpatrick v Copeland 80 SW 3d 297 (Tex 2002); Hislop v Salt River Project Agricultural Improvement and Power District 5 P 3d 267 (Ariz 2000) (co-worker and friend electrocuted, plaintiff within zone of danger as required in Arizona).

97

Eg Ledger v Tippitt 210 Cal Rptr 814 (1985); Binns v Fredendall 513 NE 2d 278 (Ohio 1987).

98

See eg Drew v Drake 168 Cal Rptr 65 (1980) (but note the strong dissent by Poche J at 66–67 rejecting the majority’s “adherence to an older morality as the key to the courtroom”); Hastie v Rodriguez 716 SW 2d 675 (Tex 1986); Ferretti v Weber 513 So 2d 1333 (Fla 1987); Elden v Sheldon 758 P 2d 582 (Cal 1988), on which see TM Cavenaugh, “A New Tort in California: Negligent Infliction of Emotional Distress (For Married Couples Only)” (1990) 41 Hastings LJ 447; Sollars v City of Albuquerque 794 F Supp 360 (1992); Lindsey v Visitec Inc 804 F Supp 1340 (1992). Almost certainly the reluctance to recognise the legitimacy of heterosexual cohabitee relationships in this context would also be evident (perhaps even more strongly) with respect to homosexual and lesbian cohabitees who attempt to sue for shock and psychiatric harm consequent on death, injury or imperilment to their partners, but this situation has not arisen for discussion in the case law. 99

Dunphy v Gregor 642 A 2d 372 (NJ 1994); see also Smith v Bell Sports Inc 934 F Supp 70 (1996); Graves v Estabrook 818 A 2d 1255 (NH 2003). See CC Kureshi, “The Extension of the Bystander Liability Doctrine for Emotional Distress to Unmarried Cohabitants: A Critique of Dunphy v Gregor” (1996) 48 Rutgers L Rev 497; ME Green, “Who Knows Where the Love Grows: Unmarried Cohabitants and Bystander Recovery for NIED” (2009) 44 Wake Forest L Rev 1093.

100

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(c); Civil Liability Act 2002 (NSW), s 32(2)(c); Civil Liability Act 1936 (SA), s 33(2)(a)(iii); Wrongs Act 1958 (Vic), s 72(2)(c); Civil Liability Act 2002 (WA), s 5S(2)(c). The Tasmanian legislation does not contain this provision: see [2.290]. 101

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [23].

[9.250]

9 Circumstances of the Case: Relationship to Accident Victim

329

legislation, other provisions in effect impose limitations on particular classes of relationship by imposing requirements of witnessing or presence at the scene of the accident that apply to all cases except “a close member of the family”, a person in a “close relationship with the victim”, or specified relatives — the provisions vary from one State to another.102 [9.240] It appears that there was no intention to depart from the approach adopted by the common law, and so it will still be possible to rely on statements of general principle such as that of McHugh J in Gifford v Strang Patrick Stevedoring Ltd,103 and on cases decided at common law — not only in Australia but in England and elsewhere,104 since as pointed out at [9.110], similar principles are adopted. Cases decided under the Civil Liability Acts strongly suggest that nothing much has changed. In practically all the successful cases, the plaintiffs have been spouses, parents, children or siblings.105 In King v Philcox,106 the leading High Court case on the interpretation of the mental harm provisions in the Civil Liability Act 1936 (SA), the brother of the deceased ultimately failed to recover, but on the ground that he did not meet the requirement that he be “present at the scene of the accident when the accident occurred”, not due to any lack of closeness in the relationship. Nettle J made it clear that the relationship was close enough to satisfy the “close ties” requirement at common law.107

A CASE STUDY: ALCOCK V CHIEF CONSTABLE OF SOUTH YORKSHIRE POLICE [9.250] Alcock v Chief Constable of South Yorkshire Police,108 the first round of test litigation spawned by the Hillsborough football disaster, is important not only because of the high profile nature of the case and the scale of the tragedy, but because of the number of different family relationships and combinations of situations presented to the court and the urgent need revealed by the case for a new strategy for dealing with 102

See [13.300], [13.440]–[13.450], [13.480].

103

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269 at [46]–[51]: see [9.110].

104

With the probable exception of the United States.

105

See Waverley Council v Ferreira [2005] NSWCA 418 (father); Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109 (mother); Goddard v Central Coast Health Network [2013] NSWSC 1932 (mother); Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185 (father and mother); Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 (wife). Note also Kuehne v Warren Shire Council (2011) 180 LGERA 383 (father and brother), reversed on appeal on other grounds in Warren Shire Council v Kuehne [2012] NSWCA 81; McKenna v Hunter & New England Local Health District (2014) Aust Torts Rep 82-158 (mother, sister), reversed on appeal on other grounds in Hunter & New England Local Health District v McKenna (2014) 253 CLR 270. In Goddard v Central Coast Health Network, it seems the deceased’s de facto partner would have recovered damages had he been able to establish a recognised psychiatric illness.

106

King v Philcox (2015) 89 ALJR 582.

107

King v Philcox (2015) 89 ALJR 582 at [88]: see [9.140].

108

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

330

Part III: Liability for Mental Harm

[9.260]

the relationship issue — a need eventually answered when the case reached the House of Lords. Varying degrees of judicial dissatisfaction with the previous approach prevailing in England were discernible at all three levels of the proceedings, and the judgments revealed subtle differences in the extent to which the judges were prepared to abandon the restraints of the past. It is informative therefore to consider in detail the varying attitudes of and methods adopted by each of the courts that considered these claims. Table 9.1 Alcock v Chief Constable of South Yorkshire Police Plaintiff

Relationship to Victim

Stephen Jones Brother Joseph Kehoe Grandfather Son-in-law Harold Copoc Father Brenda Sister Hennessy Brian Brothers Harrison William Father Pemberton Alexandra Fiancee Penk Robert Brother Spearrit Uncle John O’Dell Uncle Karen Hankin Wife Catherine Sister Jones Agnes Copoc Mother Denise Hough Sister Maureen Mother Mullaney Robert Alcock Brother-in-law Peter Friend Coldicutt

What happened to victim Died Died Died Died Died

Proximity

QB

CA

HL

TV Radio Recorded TV TV TV

W L

L L

L L

W W

L L

L L

Died

Present

W

L

L

Died

–

–

Died

In coach, told, W saw TV TV L

L

L

Injured

TV

W

L

–

L W L

L L L

– – L

Died Died Injured

Present TV Told, radio, recorded TV TV TV TV

W W W

L L L

L L –

Died Injured

Present Present

L L

L L

L –

Died Uninjured Died Died

W = Duty recognised L = Duty not recognised

The first instance decision [9.260] Hidden J at first instance took a small but nevertheless significant step forward. The 16 carefully chosen plaintiffs represented a wide cross-section of those suffering the ill-effects of the actual or feared loss or injury of others close to them. They included spouses, parents, brothers, sisters, uncles, grandfathers, brothers-in-law, fiancées and friends, most of whom, genuine loss or not, were according to the law as then understood beyond the bounds of assistance. Confirming that injury by shock to parents and spouses had long been recognised as foreseeable, Hidden J went further: in contrast to the handful of previous decisions

[9.260]

9 Circumstances of the Case: Relationship to Accident Victim

331

that had allowed recovery outside these groups, glossing over the relationship issue, his Lordship in a landmark decision (in England at least) considered that the common law was ready to cast the net a little wider to embrace brothers and sisters of those killed, injured or imperilled through negligent acts or omissions. Duties of care were owed to these claimants also, since the police could reasonably foresee that mental injury could be caused to siblings of the victims by their carelessness. The rationale behind this extension seems to have been twofold: a desire to make it possible for all those within the immediate familial nucleus to sue and a belief that siblings are somehow closer than other relatives (or even spouses) based predominantly on the time spent together. His Lordship stated: I can see no basis in logic, or in law, why [the relationship of brother and sister] should be excluded. If we take, as an example, a family of four consisting of a mother, father, son and daughter, each of the four is already within the line for certain purposes. The mother and father are within that line downward towards their children. They are also within that line in their relationship as husband and wife. The son and daughter are, again, within that line in that their relationship upwards to their parents entitles their parents to come within the line. Although no case was cited to me where a child had succeeded in a claim for psychiatric illness occasioned by the injury or death of a parent caused by the defendant’s negligence, the mirror image of claims by a parent for such damage to a child, I cannot think that the principle would be different. …[109] Once there are two or more children of a family it is the normal and hoped for … course of events, that they grow up together through their years as tiny tots on into their teens, and further on into adulthood. … It is the normal instance of family life as to which any defendant is properly fixed with reasonable foreseeability, that the relationships between mothers and fathers, sons and daughters are of the closest known to mankind. Further, when children have grown up together and have got to their late teens or early twenties, their brothers and sisters will usually be the very people with whom they have spent virtually their entire lives; the human beings they know best apart from their parents. That is a general remark which can be applied to all groups. … Those young [married men who were at the game] will have known their wives a far shorter length of time than they have known their brothers or sisters. All those young men will be at the stage in their lives when their ties to their family – their original family – not just to their fathers and mothers, but

109

No reference was made to Shaw v Mills (unreported, Eng CA, 7 March 1961) where a young girl recovered damages for psychiatric injury caused when her mother was killed before her eyes, or the Queensland case of Mellor v Moran (1985) 2 MVR 461, where a young girl recovered for psychiatric injury after the death of her mother in a car accident. Note also Gregory v Government Insurance Office of New South Wales (unreported, NSWSC, No 13756 of 1985, 1 March 1991) (son recovered damages for shock and consequent psychiatric harm caused by viewing the horrific injuries suffered by his father under the wheels of a large truck).

332

Part III: Liability for Mental Harm

[9.270]

also to their brothers and sisters, will be of the strongest. They will have had the longest number of years to grow into adulthood, and the least number of years to go their separate ways.110

[9.270] The net would be cast no further, however; the inclusion of brothers and sisters within the class of persons able to recover for psychiatric injury meant that the common law had “reached the margin of what the process of logical progression would allow”.111 Thus, whilst prepared to deviate to some degree from the traditional position, in the final analysis Hidden J resorted to a strategy of arbitrary demarcation. His Lordship felt compelled to bar the claims of grandfathers, uncles, brothers-in-law, fiancées and friends notwithstanding that “nobody doubts the love of the latter group”112 and his appreciation of “the closeness, the fondness, the love and affection which can flow in all of [these] other relationships”.113 His Lordship stated: Such love can be strong and compelling, but the various relationships are not so immediate, in my view, as to make it reasonably foreseeable to a defendant that psychiatric illness, rather than grief and sorrow, would follow death or damage to the loved one.114

[9.280] While Hidden J’s innovation, albeit confined, was welcome, it surely cannot be accepted that the common law is unable to foresee recognisable psychiatric harm to other admittedly loving and caring relatives and friends through the defendant’s failure to take care. Moreover, it cannot be assumed as a matter of law that siblings are inevitably more intimately linked than those within the remaining categories. Rather than making class presumptions, focus should be on the individual claimant. Brothers and sisters separated at an early age or even those who live together for years but do not get on can hardly be said to enjoy the bond that, for example, young lovers do. Intimacy should be regarded as a question of fact in every circumstance, something that, as we will see, the House of Lords subsequently insisted upon.

English Court of Appeal [9.290] In contrast to Hidden J, the Court of Appeal opined that inquiry into the closeness of relationships, in terms of love and affection, is an appropriate and essential judicial exercise. However, any advance that Hidden J had achieved was substantially nullified by their Lordships’ return to conservatism and limitation of the categories of those entitled to recover to the traditional classes in almost all cases. Persons outside the categories of spouse or parent were excluded on the basis advanced by 110

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 337–338.

111

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 338.

112

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 339.

113

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 338.

114

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 338–339. On Hidden J’s reasoning the uncle who was filming the botched circumcision in Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984) (see [5.380]), could not have recovered if he had suffered psychiatric injury.

[9.300]

9 Circumstances of the Case: Relationship to Accident Victim

333

Lord Wilberforce in McLoughlin v O’Brian,115 namely that in relation to claimants with marital or filial ties the presumption was that the love and affection normally exhibited within such relationships was of such a degree that psychiatric injury by shock was reasonably foreseeable to members of ordinary fortitude, but persons in more remote relationships should be expected to withstand shock without injury. This rationale does not seem justifiable: persons in more remote relationships are equally likely to be mentally affected by seeing their loved ones involved in trauma. Significantly, none of the cases discussed at [9.130]–[9.210] where courts had shifted the traditional focus away from spouses and parents, save for Storm v Geeves,116 were cited by the Court of Appeal. [9.300] All three Court of Appeal judges considered the presumption of love and affection to be rebuttable by evidence that the particular parent or spouse exhibited no such emotion towards the impact victim. Thus, status as a biological parent or being in lawful wedlock would not guarantee a shock victim a day in court. As Parker LJ observed: What, for example, of the mother who has handed over her 16-year-old child to foster parents shortly after its birth, has never seen it or communicated with it or inquired after it ever since? It is submitted that these matters need not and cannot be canvassed. If a mother in fact suffers nervous shock from witnessing the death of her child the very fact, it is said, establishes the correctness of the presumption. I do not accept this. The mother may witness the death of a child without even knowing it is hers and may suffer nervous shock, not because it was her child but because she was not possessed of ordinary phlegm. What also of the husband and wife who are still legally married but have been parted for years and are well known to hate each other?117

Similarly, Nolan LJ stated: There is no support in law or in logic for the proposition that an uncaring parent or spouse should stand in any different position from a stranger. It follows that in so far as the defendants’ appeals are based upon the judge’s inclusion of all brothers and sisters within the requisite proximity of relationship I would feel bound to allow them.118

Although it will be a rare case where, for example, a mother whose child is an accident victim but who has not had contact with the child since birth claims for shock-related injury,119 there is force in the argument that should such a claim ever be made the mother should stand in no better position than a stranger. Her biological relationship when viewed in the light of such enduring remoteness rightly entitles her to no greater claim 115

McLoughlin v O’Brian [1983] 1 AC 410 at 422.

116

Storm v Geeves [1965] Tas SR 252, discussed at [9.140]. Hidden J referred to this case and also to Currie v Wardrop 1927 SC 538, discussed at [9.190].

117

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 359–360.

118

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 385. See also at 376 per Stocker LJ. 119

Indeed Stocker LJ referred to it as “such an unlikely situation that it need hardly be considered”: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 376.

334

Part III: Liability for Mental Harm

[9.310]

to compensation than any other member of the public. Of course, it must be open to her to prove the existence of an affectionate (if distant) bond but such emotional ties cannot and should not be assumed. This “negative” development can thus be rationally justified, though its articulation does reflect the Court of Appeal’s willingness to formulate methods for cutting down even further the categories of claimants able to recover, rather than extending them. [9.310] There were, however, some encouraging signs in some of the judgments: and this is where their Lordships diverged in opinion. Parker LJ remained steadfastly loyal to the past, refusing to canvass the possibility of additional species of claimant. His Lordship would not extend the presumption made in relation to spouses and parents to other plaintiffs, opining that defendants should not reasonably be expected to contemplate that there will or may be amongst those affected by their acts or omissions persons other than those within recognised categories or exceptions who are likely to suffer psychiatric harm. Thus, although Parker LJ conceded that a godfather or friend who has taken on the care and custody of a small baby on the death of its parents and has brought it up as his own would appear to be “every bit as deserving as the parent”, and that it was logical that one of two people who had lived together as man and wife for 30 years but who had remained unmarried due to legal, religious, moral or philosophical impediments should be treated in the same manner as a legal spouse, he was not prepared, in the perceived absence of some legal justification, to allow common sense to prevail in these types of fact situations.120 Stocker and Nolan LJJ adopted a more liberal attitude. The retention of a degree of flexibility in Lord Wilberforce’s obiter dictum in McLoughlin v O’Brian121 led their Lordships to rule that in the most exceptional cases the categories of those entitled to recover could be extended on evidence that a similar degree of love, care and affection for the victim to that exhibited by a spouse or parent was shown by the non-traditional claimant in question. In such circumstances the plaintiff should be treated as being in the same position vis-à-vis the victim as members of the conventional classes. The potentially protracted evidencegathering investigations and the possible resultant delay and complication of already difficult cases was acknowledged but not considered a sufficient reason to abandon this strategy.122 [9.320] Both judges decided that as Hidden J had not scrutinised the brothers’ and sisters’ feelings they could not be automatically entitled to recover, falling as they did outside the traditional categories. Had he done so, the facts may have justified an extension and entitled them to recover in accordance with the principle outlined at [9.290]. However, their Lordships differed on the question of the scope of the extension of the 120

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 360.

121

McLoughlin v O’Brian [1983] 1 AC 410 at 422: see [9.80].

122

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 375 per Stocker LJ, at 385 per Nolan LJ.

[9.330]

9 Circumstances of the Case: Relationship to Accident Victim

335

categories entitled to recover on proof of care, love and affection similar to that of a parent or spouse. Stocker LJ confined it on policy bases to those within some familial relationship: [C]onsider the case where the victim’s parents are dead and the victim himself was brought up by grandparents who have fulfilled the parental role since early infancy. A careful scrutiny might, in such a case, involve no more than the assertion and proof of those facts. The same position might be established without difficulty in the case of other relationships. … In my view, foreseeability of psychiatric illness through shock to persons should not be extended to persons who do not have any family relationships, even if such persons did as a fact entertain feelings of love and affection towards the victim. If such persons … are included within the ambit of those to whom a duty is owed, then a duty might be owed to the whole world and thus impose a duty which would place an intolerable burden on a tortfeasor.123

[9.330] Nolan LJ, in the most liberal judgment delivered, could identify no impediment in principle to going even further and including friends whose love and care for the impact victim is akin to that of the normal parent or spouse. Uninfluenced by the indeterminate liability concerns that had restrained Stocker LJ, his Lordship stated: I see no difficulty in principle in requiring a defendant to contemplate that the person physically injured or threatened by his negligence may have relatives or friends whose love for him is like that of a normal parent or spouse, and who in consequence may similarly be closely and directly affected by nervous shock. … The identification of the particular individuals who come within that category, like that of the parents and spouses themselves, could only be carried out ex post facto, and would depend upon evidence of the “relationship” in the broad sense which gave rise to the love and affection. … I see no reason in principle why identification should not be possible on a case by case basis. I have in mind such examples as the grandparents or uncles and aunts who, upon the premature death of the parents, bring up the children as their own; or Mrs Hinz (see Hinz v Berry [1970] 2 QB 40) whose feelings for her foster children were assumed without question to be the same as those for her natural children. I have in mind also the judgment of Burbury CJ in Storm v Geeves [1965] Tas SR 252 at 266 in which he felt able to identify the brother and sister as well as the mother as coming within the scope of the duty of care, and was further able to find on the evidence that whereas the mother and the brother had suffered nervous shock caused by the defendant’s acts or omissions, the sister had not. … I have no means of knowing whether [a certain grandmother who reared her grandson as a son] satisfies the conditions for bringing her within the scope of the duty of care, but in so far as the extent of the duty depends upon proximity in terms of personal relationship I can see no reason in principle why she should be excluded. … I cannot agree with [Hidden J] that the line should be drawn around what is called the nuclear family. The criterion is loving care, not blood relationship, still less legal relationship. Unfortunately, people within those relationships do not always care for each other. Fortunately people outside those relationships often care for each other very much.124 123

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 375, 378.

124

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 384–385.

336

Part III: Liability for Mental Harm

[9.340]

Of all the positions taken to this point, that of Nolan LJ was the most preferable, serving as the springboard to the abandonment of a limitation on liability imposed during an earlier era.

House of Lords [9.340] Nolan LJ’s philosophy found favour with the House of Lords,125 which adopted a practical approach, completing the dissolution of the logically indefensible conventional stance. Rather than retreat to the conformity of the past, their Lordships recognised (at least in the context of the relationship issue) that “good sense”126 dictated that the scope of the cause of action be expanded considerably. They did not view public policy as demanding the existence of a marital or filial relationship as a pre-condition to liability. There was a unanimous refusal to limit the class of claimants by reference to these specific bonds, focus being directed instead on the factual question of the closeness of the particular parties in terms of love and affection. Lord Keith of Kinkel, for example, said: As regards the class of persons to whom a duty may be owed to take reasonable care to avoid inflicting psychiatric illness through nervous shock sustained by reason of physical injury or peril to another, I think it sufficient that reasonable foreseeability should be the guide. I would not seek to limit the class by reference to particular relationships such as husband and wife or parent and child. The kinds of relationships which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendship, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years. It is common knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at real risk of psychiatric illness if the loved one is injured or put in peril. The closeness of the tie would, however, require to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases.127

It seems that it is in the case of the traditional relationships — husbands and wife, and parent and child — that this presumption operates. [9.350] Their Lordships agreed with the Court of Appeal that the presumed existence of strong emotional ties between spouses and parents and their issue must, in practice, be rebuttable.128 More importantly, they 125

Per Lords Keith of Kinkel, Ackner, Oliver of Aylmerton and Jauncey of Tullichettle (Lord Lowry concurring).

126

Bourhill v Young [1943] AC 92 at 110 per Lord Wright; Jaensch v Coffey (1984) 155 CLR 549 at 572 per Brennan J.

127 128

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397.

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397; see also at 403 per Lord Ackner. Would the likelihood of rebuttal be any greater where there are several children in a family, as opposed to a case where the accident victim is an only child? Their Lordships did not allude to this issue, but there may be scope for argument that slightly stronger evidence would be required to rebut the presumption in the latter situation. Note Morton v Wiseman 1989 SCLR 365 at 370 where “the whole of the pursuer’s case was implicitly based on the fact that she had no other child”.

[9.360]

9 Circumstances of the Case: Relationship to Accident Victim

337

endorsed the suggestion advanced by Stocker and Nolan LJJ that where the “primary” (accident) victim and “secondary” (shock) victim share an intimacy comparable to that normally (but not always) found within marital or blood relationships they should be treated in the same manner. Lord Oliver of Aylmerton said: I see no logic and no virtue in seeking to lay down as a matter of “policy” categories of relationship within which claims may succeed and without which they are doomed to failure in limine. So rigid an approach would, I think, work great injustice and cannot be rationally justified. Obviously a claim for damages for psychiatric injury by a remote relative of the primary victim will factually require most cautious scrutiny and faces considerable evidentiary problems. Equally obviously, the foreseeability of such injury to such a person will be more difficult to establish than similar injury to a spouse or parent of the primary victim. But these are factual difficulties and I can see no logic and no policy reason for excluding claims by more remote relatives. Suppose, for instance, that the primary victim has lived with the plaintiff for 40 years, both being under the belief that they are lawfully married. Does she suffer less shock or grief because it is subsequently discovered that their marriage was invalid? The source of the shock and distress in all these cases is the affectionate relationship which existed between the plaintiff and the victim and the traumatic effect of the negligence is equally foreseeable, given that relationship, however the relationship arises.129

[9.360] Significantly, the House of Lords did not share Stocker LJ’s hesitancy to carry the “love and affection” analysis through to its logical conclusion. Their Lordships emphasised that, outside the traditional categories, sufficiently strong emotional bonds may not only exist between remote relatives but also friends and lovers. As Lord Keith pointed out, closer and stronger ties may be found, for example, in the case of engaged couples than between persons who have been married for years.130 Thus, it is clear that the search for proof of love and affection is not to be confined, as Stocker LJ would have it, to those with some familial link to the accident victim, but in appropriate circumstances will operate, as Nolan LJ postulated, to assist a much wider sphere of associates. Ultimately, arbitrary categorisation and exclusion has been replaced by an insistence on the investigation of the nature of every relationship before the court. The remoter the tie between the parties, the closer is the attention required. The merits of individual claimants, rather than their particular status, now determine whether compensation will be forthcoming. Lord Jauncey of Tullichettle stated: I would respectfully agree with Lord Wilberforce131 that cases involving less close relatives should be very carefully scrutinised. That, however, is not to say they must necessarily be excluded. The underlying logic of allowing claims of parents and spouses is that it can readily be foreseen by the tortfeasor that if they saw or were involved in the immediate aftermath of a serious accident or disaster they would, because of their close relationship of love and affection with the victim, be likely to suffer nervous shock. There may, however, be others whose ties of relationship are as strong. I do not consider that it would be profitable to try and define who such others might be or to draw any dividing line between one degree of relationship and another. To draw such a line would necessarily be arbitrary and lacking in logic. In my view the proper approach is to examine each case on its own facts in order to see whether the 129

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 415–416.

130

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397.

131

In McLoughlin v O’Brian [1983] 1 AC 410 at 422.

338

Part III: Liability for Mental Harm

[9.370]

claimant has established so close a relationship of love and affection to the victim as might reasonably be expected in the case of spouses or parents and children. If the claimant has so established and all other requirements of the claim are satisfied he or she will succeed since the shock to him or her will be within the reasonable contemplation of the tortfeasor. If such relationship is not established the claim will fail.132

Similarly, Lord Ackner emphasised that: Whether the degree of love and affection in any given relationship, be it that of relative or friend, is such that the defendant, in the light of the plaintiff’s proximity to the scene of the accident in time and space and its nature, should reasonably have foreseen the shock-induced psychiatric illness, has to be decided on a case by case basis.133

The House of Lords referred, as the Court of Appeal had done, to the inevitable evidentiary difficulties associated with this process of scrutinisation but apparently did not view them as insurmountable.134 The precise methodology to be utilised to establish the requisite tie of relationship in the case of remoter relatives and friends was not articulated, the only guidance offered being that of Lord Ackner who spoke of comparing the love and affection between these claimants and the tort victim to “that of the normal parent, spouse or child of the victim”,135 and Lord Jauncey who made a similar reference.136 The wisdom of the use of the concept of normality as a yardstick to establish “sufficiently close” ties of love and affection is perhaps open to question. For example, does the “normal” family today comprise both a mother and a father, and do they have to be married to each other and reside under the same roof? Again, it is not necessarily clear why the bond between friends or cousins, for example, should be assessed by reference to the most formal relationships. [9.370] Those appellants outside the traditional relational categories who were present at the football ground and thus satisfied this aspect of the proximity requirement (Brian Harrison, who lost two brothers, and Robert Alcock, who lost a brother-in-law), failed in their actions due to the absence of any evidence of an especially close tie of love and affection with the relevant primary victims. Nor did such bonds exist in relation to those plaintiffs whose brothers and grandsons were killed but who were not at the ground (and whose claims would thus have failed for other reasons in any event). The mere fact of these particular relationships (brother, brother-in-law, grandson) did not suffice to ground recovery. Apparently, a “normal” degree of brotherly love for an accident victim will not entitle a psychiatrically damaged sibling to recover from the tortfeasor. An “abnormal” tie (missing in Brian Harrison’s case) is required in order to render this type of loss reasonably foreseeable and 132

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 422.

133

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 404.

134

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 415 per Lord Oliver of Aylmerton. 135

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 403.

136

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 422.

[9.390]

9 Circumstances of the Case: Relationship to Accident Victim

339

recoverable. This rather narrow approach to the sibling issue may be thought unsatisfactory: had there been an opportunity at first instance to adduce evidence to substantiate the nature of the relationships in question, the outcome could have been different. This issue is pursued at [9.410]–[9.430]. However, it is clear from Lord Keith’s judgment that the category of the “presumptive relationship” is not closed. His Lordship held that the mere presence of the bond of engagement was sufficient to attract the presumption of intimacy. Thus, Alexandra Penk, the appellant who lost her fiancé, was viewed as having had the closest feelings of love and affection for the deceased (there being no evidence to rebut this presumption137), failing in her claim only because of the way news of his death was communicated to her.138

The aftermath of Alcock [9.380] Looking back over the 25 years that have elapsed since the House of Lords decision, it is clear that its new approach to the question of which relationships satisfy the foreseeability test and so give a secondary victim a right to claim damages for psychiatric injury (assuming all other requirements are fulfilled) has been taken as settling the law on this issue. In most cases the plaintiffs continue to fall into the closest relationship categories of spouses and parent–child, though even here courts often remark that an individual relationship was especially close.139 However, Alcock v Chief Constable of South Yorkshire Police140 has clearly opened the way for courts to accept that psychiatric injury is foreseeable to various persons who would not have come within the permitted categories under the previous law or indeed do not have any family relationship as such with the immediate accident victim. [9.390] One such instance is particularly closely related to the decision in Alcock v Chief Constable of South Yorkshire Police,141 because it involves another victim of the Hillsborough disaster in respect of whom proceedings were brought separately. McCarthy v Chief Constable of South 137

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398.

138

That is, by way of live television: see [11.710]–[11.860].

139

For Australian examples, see Reeve v Brisbane City Council [1995] 2 Qd R 661 (action by wife in respect of death of husband in accident at work: according to Lee J at 667 the relationship was close and “indeed the evidence suggests that the reliance which the plaintiff placed on their conjugal ties and the support which she derived from them was even greater than may be expected in the usual case”); Cubbon v Roads and Traffic Authority of New South Wales (2004) Aust Torts Rep 81-761 (action by three adult children in respect of the death of their mother and sister: as Sheller JA in the New South Wales Court of Appeal noted at 65,964, the judge found that each plaintiff had enjoyed a close and loving relationship with both the mother and the sister). See also Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 (action for psychiatric injury by mother in respect of her adult daughter’s death due to medical negligence: Amarjeet JC noted at 328 that there was “a very close bond” between them, and at 319–320 that according to the evidence the daughter was “the plaintiff’s sole confidante with whom she shared all her worries”).

140

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

141

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

340

Part III: Liability for Mental Harm

[9.400]

Yorkshire Police142 concerned an action for psychiatric injury by John McCarthy brought about by the death of his half-brother Ian on the Leppings Lane terraces. Both were keen supporters of Liverpool. Ian was the fifth child of John’s mother by her second husband. Ian looked on his half-brother John as a father-figure — indeed, it was John who had suggested that his youngest half-brother should be named “Ian”.143 Though John did not live with them, this was only because the house was crowded and there was more room at his grandparents’ house nearby. On the day of the match John, who already had a ticket for the North Stand, found that he could get hold of a spare ticket and so he persuaded the bus driver to call at Ian’s house on the way so that he could give it to him. Ian travelled to the ground with another brother, Joseph, who also had a ticket for the Leppings Lane terraces. John watched from the North Stand as the tragedy unfolded, knowing that his two half-brothers were in the terraces from which the bodies were being extracted. Later, Joseph met a friend of John’s on the pitch and John learnt that Ian was dead. Sachs J said that while it might appear that the evidence about the nature of the relationship was all one way, this was because it was all one way. The case was clearly distinguishable from the cases of Brian Harrison and Robert Alcock,144 where the relationships were much less close. [9.400] Alcock v Chief Constable of South Yorkshire Police145 has clearly been an important influence in Australia, notably as an inspiration for the important statement of McHugh J in Gifford v Strang Patrick Stevedoring Ltd146 already quoted. Another interesting case that seems to be inspired by the new approach of the House of Lords in Alcock is the decision of the South African Supreme Court of Appeal in Road Accident Fund v Sauls147 permitting a fiancé to recover. The plaintiff and her fiancé did some shopping and then returned to their parked car. The plaintiff was sitting in the front passenger seat, and her fiancé was standing by the door of the driver’s seat. Seeing an oncoming vehicle, he decided that it would not be prudent to open the door at that moment, and leaned against the door with the front part of his body pressed against the car, waiting for the other vehicle to pass. Unfortunately it struck him and he fell forward in front of his car. The plaintiff saw the deathly pallor of his face, and thought that he had been killed or seriously injured. In fact, his injuries were not serious, but the plaintiff was in shock and was subsequently diagnosed with post-traumatic stress disorder that became chronic and unlikely to improve. The court held that psychiatric injury was foreseeable in the circumstances, and as regards the class of persons to whom a duty could be owed, foreseeability alone was a sufficient guide. 142

McCarthy v Chief Constable of South Yorkshire Police (unreported, Eng QBD, 11 December 1996). 143

After Ian St John, the Liverpool footballer.

144

See [9.370].

145

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

146

Gifford v Strang Patrick Stevedoring Ltd (2003) 214 CLR 269 at [46]–[51]: see [9.110].

147

Road Accident Fund v Sauls 2002 (2) SA 55 (SCA).

[9.420]

9 Circumstances of the Case: Relationship to Accident Victim

341

Adopting the principles stated by Lord Keith in Alcock,148 the class should not be limited by reference to particular relationships, but the keynote was whether there were close ties of love and affection, a test amply satisfied in the case of an engaged couple.

Possible reform of the close ties principle [9.410] The major criticism of the “close ties of love and affection” approach adumbrated by the House of Lords has been directed at the division between those relationships in respect of which such ties may be presumed, and those where it requires positive proof. It may be argued that the limitation of the former category to parental and spousal relationships adopts an excessively narrow approach, and requiring siblings to prove that they had an abnormally close and loving relationship may make it unduly difficult for those in “normal” sibling relationships to establish a right to recover for psychiatric injury. True it is that the “quality of brotherly love is well known to differ widely — from Cain and Abel to David and Jonathan”,149 but it may be questioned whether psychiatric injury can be regarded as unforeseeable in all but the most unusual cases. The McCarthy brothers, for example, clearly satisfied the test,150 but one wonders whether their relationship was truly exceptional, or whether with different evidence some of the other Hillsborough plaintiffs, such as Brian Harrison, would have been able to show a sufficiently close relationship. In the first edition of this book, the authors suggested that relationships between children within the immediate familial nucleus should be elevated to the status afforded to spousal and parental links,151 namely the presumed existence of love and affection, always rebuttable by evidence to the contrary. The authors did not advocate the imposition of an irrebuttable presumption that such damage is always reasonably foreseeable as between siblings, for it is a sad fact that some have a closer rapport with strangers than each other. What was suggested was that the typical bond in this situation makes the suffering of psychiatric illness to one reasonably foreseeable if the other is killed, injured or imperilled. No change in approach was suggested in relation to other relations, for example in-laws or grandchildren, where evidence of a unique and especially close tie should continue to be required to be shown. [9.420] Since these suggestions were first aired, others have added their criticisms of the details of the approach in Alcock v Chief Constable of South Yorkshire Police,152 notably Thomas J of the New Zealand Court of Appeal 148

See [9.340].

149

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 406 per Lord Ackner. Contrary to Lord Ackner’s assumption, the biblical figures David and Jonathan were not brothers, but their relationship displayed the characteristics identified by Lord Ackner. Jonathan was the son of King Saul. He made a pact with David to love him as his own soul: see 1 Samuel 18: 3. 150 McCarthy v Chief Constable of South Yorkshire Police (unreported, Eng QBD, 11 December 1996). 151

Note Hidden J’s comments in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 337–338: see [9.260]. 152

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

342

Part III: Liability for Mental Harm

[9.430]

in his dissenting judgment in van Soest v Residual Health Management Unit,153 influenced by the writings of Professor Jane Stapleton:154 [A]though adding some flexibility to the law, I cannot accept that the rebuttable presumptions introduced in Alcock are helpful. It is presumed that the necessary ties will exist in the case of parents, spouses, and for Lord Keith of Kinkel and Lord Oliver of Aylmerton, engaged couples, whilst a negative rebuttable presumption is adopted in respect of siblings, more remote relatives, and friends. Such a categorization, of course, may be entirely unrealistic in any given circumstances. As Professor Stapleton asks at p 95, “Is it not a disreputable sight to see brothers of Hillsborough victims turned away because they had no more than brotherly love towards the victim?” … It has been pointed out that the benefits of this modest flexibility must be weighed against the harrowing evidential consequences as plaintiffs try to prove that their love for the victim was strong enough … to justify liability while the defendants attempt to undermine such arguments. Will it not be a grotesque sight to see relatives scrabbling to prove their especial love for the deceased in order to win money damages and for the defendant to have to attack that argument?155

[9.430] Influenced by arguments such as these, the two major United Kingdom reports recommending statutory reforms to the law on recovering damages for psychiatric injury both suggested statutory schemes incorporating a much wider-ranging presumption. In 1998, the English Law Commission recommended that particular categories of plaintiff should be able to establish a duty of care based merely on the fact of a close family relationship, without any need to satisfy other criteria such as presence at the scene or the aftermath or direct perception, other cases continuing to be regulated by common law principles. It was recommended that there should be a “fixed list” of relationships where a close tie of love and affection should be deemed to exist, and a plaintiff would then have to prove merely that it was reasonably foreseeable that he or she might be caused to suffer a recognisable psychiatric illness in the circumstances of the case. The fixed list should consist of spouses, parents, children, siblings and cohabitants (defined as persons who had lived together as husband and wife, or the equivalent same-sex relationship, for at least two years). Plaintiffs outside the list could still prove that a close tie of love and affection existed with the immediate victim. Interestingly, the Law Commission addressed the issue of when such a relationship had to be present, recommending that the requirement should be satisfied either at the time of the defendant’s act or omission or the onset of the plaintiff’s psychiatric illness.156 The Scottish Law Commission in their 2004 Report approached the question a little differently. Proposing a general restriction on recovery where a victim suffered a mental disorder by witnessing or learning of an incident in which he or she was not directly involved, it recommended that this restriction should not apply if at the time of the incident the victim had a close relationship with the immediate victim. For this purpose a close 153

van Soest v Residual Health Management Unit [2000] 1 NZLR 179.

154

See J Stapleton, “In Restraint of Tort” in P Birks (ed), The Frontiers of Liability (Oxford University Press, Oxford, 1994), Vol 2, p 83.

155 156

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [118].

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendations 13–15.

[9.450]

9 Circumstances of the Case: Relationship to Accident Victim

343

relationship meant the type of relationship that exists between persons bound to each other by strong ties of affection, loyalty or personal responsibility. There would be a list of persons who should be presumed to have a close relationship for this purpose: it would consist of spouses, cohabitants of the same or different sexes, parents and children, persons who have been accepted by other persons as children of their family, grandparents and grandchildren, siblings and persons who have the characteristics of siblings as they have been brought up together in the same household.157 This was a rather wider list than the Law Commission’s proposed equivalent. Each proposal, by reducing the number of cases in which evidence of the closeness of the relationship has to be put in issue, effectively met the points made at [9.410]. Unfortunately, it seems that neither proposal will now be implemented.158

“MERE BYSTANDERS” [9.440] Persons lacking the requisite natural or social link with the person killed, injured or imperilled through the defendant’s negligence have generally been relegated to the category of accident victim to whom no duty is owed. Traditional doctrine dictated that defendants were not required to go about their business in such a way as to avoid shocking such “mere bystanders”. As Lord Porter stated obiter in Bourhill v Young,159 disapproving of the suggested inclusion of the stranger: It is not every emotional disturbance or every shock which should have been foreseen. The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may from time to time be expected to occur in them, including the noise of a collision and the sight of injury to others, and is not to be considered negligent towards one who does not possess the customary phlegm.

Similarly Lord Wilberforce in McLoughlin v O’Brian160 was moved to exclude ordinary bystanders on the basis that either: such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large.

[9.450] This reasoning was endorsed by the English Court of Appeal in Alcock v Chief Constable of South Yorkshire Police.161 Though prepared to canvass the possibility that non-spouses and non-parents might recover in 157

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), recommendations 8–10. 158

See [3.290], [3.630].

159

Bourhill v Young [1943] AC 92 at 117. Note that although the pregnant fishwife in this case was unrelated to the deceased motorcyclist and did not know him the rejection of her claim turned on questions of reasonable foreseeability: see [7.340].

160 161

McLoughlin v O’Brian [1983] 1 AC 410 at 422.

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 359–361 per Parker LJ, at 377–379 per Stocker LJ, at 384–385 per Nolan LJ.

344

Part III: Liability for Mental Harm

[9.460]

unusual circumstances, the court expressly rejected counsel’s submission that any person can recover if the scene is sufficiently horrific.162 However, it is possible to argue that the approach of courts to psychiatric injury suits should be uniform regardless of the identity of the particular claimant, basing recovery on normal standards of susceptibility, causation, foreseeability and proximity issues and not pre-empting it by reference to the status of individual victims. In the words of one learned commentator, writing more than sixty years ago: [T]he answer … must depend on the nature of the accident, and it is contrary to human experience to say that in no circumstances is it reasonably foreseeable that one who sees a violent accident will receive a dangerous shock. If the person threatened is a husband, wife or child of the person receiving the shock, the foreseeability is, of course, greater than in other circumstances, but it is a gloomy view of human nature which suggests that the sight of the death or injury of someone else cannot create such a shock. It must always be a question of reasonable foresight, and this cannot depend on arbitrary categories.163

[9.460] One of the most encouraging features of the House of Lords decision in Alcock v Chief Constable of South Yorkshire Police164 was that the judgments revealed an appreciation of the illogicality of an absolute and arbitrary bar. Confessing to having difficulties with the classification theory, Lords Keith, Ackner, Oliver and Jauncey could distil no reason in principle for the common law’s longstanding refusal to sanction bystander 162

For example, the pursuer in Bourhill v Young [1943] AC 92 was an unrelated bystander and as such would not be entitled to compensation. Note also Smith v Johnson (unreported, Eng QBD, January 1897, cited in Wilkinson v Downton [1897] 2 QB 57 at 61 per Wright J) where a man who saw another killed by the defendant’s negligence and incurred psychiatric injury not from fear of self-harm but from witnessing the trauma was denied compensation on the ground that this species of injury was too remote a consequence of the negligence. For United States cases where mere bystanders failed to recover, see eg Eyrich for Eyrich v Dam 473 A 2d 539 (NJ 1984) (plaintiff watched while her husband attempted to rescue neighbour’s child from escaped circus leopard); Covello v Weis Markets Inc 610 A 2d 50 (Pa 1992) (police officer saw man being crushed to death in industrial compactor); Jorgensen v BF Yenney Construction Co Inc 679 NYS 2d 775 (1998) (plaintiff watched underground fuel tank explode across street from his office, killing five people); Pizarro v 421 Port Associates 739 NYS 2d 152 (2002) (elevator passenger witnessed elevator malfunction resulting in decapitation of man waiting for elevator); Satchfield v RR Morison & Son Inc 872 SW 2d 661 (Miss 2004) (plaintiff witnessed gasoline explosion that killed six people). 163

AL Goodhart, “The Shock Cases and Area of Risk” (1953) 16 MLR 14 at 25 (though J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478 at 496 n 13, argued that this approach was not consistent with medical experience). Certainly, it seems most unlikely that a court would ever accept that a person not related to the accident victim might foreseeably suffer psychiatric injury merely through hearing of a serious accident to another. Quinta Communications SA v Warrington [1999] EWCA 2264 provides a graphic illustration: the singer Michael Jackson, due to give a concert at Ostende on 31 August 1997, allegedly collapsed when he heard of the death of Princess Diana in a car accident in Paris, and subsequently exhibited symptoms of post-traumatic stress disorder. The concert was cancelled, and the concert organisers succeeded in recovering under their insurance policy for loss of profits. It is difficult to see how an action for psychiatric injury could succeed in such circumstances.

164

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[9.470]

9 Circumstances of the Case: Relationship to Accident Victim

345

relief in any circumstances. Their Lordships declined categorically to rule out potential bystander claims, envisaging situations where the circumstances of catastrophe would be particularly emotionally agitating even to innocent strangers.165 Nor has this possibility been overlooked by Australian courts. Brennan J was alive to it in Jaensch v Coffey,166 observing that the categories of claimant are not closed and pointing out that the prerequisite criteria to a cause of action, while more easily satisfied in the case of parent and child or husband and wife, also: furnish the framework of principle within which the courts determine whether a particular claim by a bystander or by a plaintiff in “a less close relationship” with a physically injured victim is to be allowed.167

In a leading case a Canadian judge has also adverted to the possibility that, in appropriate cases, bystanders witnessing accidents to strangers might be owed a duty of care. Griffiths JA, giving the judgment of the Ontario Court of Appeal in Bechard v Haliburton Estate,168 suggested that “it is reasonably foreseeable that witnessing a horrifying or gruesome accident … might well upset the average sensitive bystander”.169 However, in ruling on the existence of a duty, the court relied principally on the fact that the defendant had indirectly performed a role analogous to that of a rescuer. [9.470] There appears to be no Commonwealth decision permitting ordinary onlookers who perceive traumatic and distressing events to recover.170 However, there are important dicta in favour of bystander recovery. Almost 80 years ago Atkin LJ in Hambrook v Stokes Bros171 expressed a preference for assessing every claim on its merits: Personally I see no reason for excluding the bystander in the highway who receives injury in the same way from apprehension of or the actual sight of injury to a third party. There may well be cases where the sight of suffering will directly and immediately physically shock the most obdurate heart. 165

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397 per Lord Keith of Kinkel, at 403 per Lord Ackner, at 416 per Lord Oliver of Aylmerton, at 421–422 per Lord Jauncey of Tullichettle. Note also Currie v Wardrop 1927 SC 538 at 555 per Lord Murray. 166

Jaensch v Coffey (1984) 155 CLR 549 at 571. See also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404–405 per Windeyer J, at 416–417 per Walsh J.

167

Jaensch v Coffey (1984) 155 CLR 549 at 571. Brennan J attached significance to the tortfeasor’s role in how the bystander arrived on the scene, saying that “It would be an exceptional case if it could be found that the attendance of other persons at the scene of an accident is the result of the defendant’s negligence” (at 570). However, their Lordships in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 did not focus on this as an explanation for the potential rarity of bystander recovery.

168

Bechard v Haliburton Estate (1991) 84 DLR (4th) 668.

169

Bechard v Haliburton Estate (1991) 84 DLR (4th) 668 at 681.

170

Note, however, the 1992 settlement of a claim arising out of the 1977 Granville train disaster in New South Wales, where the plaintiff, a passenger on the train, suffered from manic depressive psychosis after seeing fellow passengers crushed to death when the carriage ceiling collapsed “like a deck of cards” under the weight of a falling overhead bridge: see “Granville deal”, The Australian, 18 February 1992.

171

Hambrook v Stokes Bros [1925] 1 KB 141 at 157–158.

346

Part III: Liability for Mental Harm

[9.480]

It seems also that Lord Bridge of Harwich in McLoughlin v O’Brian172 was more open to the notion of stranger relief than Lord Wilberforce, or the English Court of Appeal in Alcock v Chief Constable of South Yorkshire Police;173 according to Lord Bridge, the courts “should resist the temptation to try yet once more to freeze the law in a rigid posture which would deny justice to some who … ought to succeed”.174 It is significant that his Lordship expressed difficulty in distinguishing in principle the position of a rescuer who would not be automatically prevented from suing,175 from that of a mere spectator, citing the example of an uninjured or slightly injured accident victim who takes no part in any rescue operations that unfold but is present at the scene for some time observing the goings on around him or her while waiting for transport home. After prolonged criticism Atkin LJ’s words eventually found favour. His sentiments were expressly endorsed by Lord Ackner in Alcock v Chief Constable of South Yorkshire Police:176 [H]ow do you explain why the duty is confined to the case of parent or guardian and child and does not extend to other relations of life also involving intimate associations; and why does it not eventually extend to bystanders? As regards the latter category, while it may be very difficult to envisage a case of a stranger, who is not actively and foreseeably involved in a disaster or its aftermath, other than in the role of rescuer, suffering shock-induced psychiatric injury by the mere observation of apprehended or actual injury of a third person in circumstances that could be considered reasonably foreseeable, I see no reason in principle why he should not, if in the circumstances, a reasonably strong-nerved person would have been so shocked.

Lord Ackner postulated one vivid example where he would not be prepared to rule out a claim by a passer-by shocked and mentally injured by the distressing scene: where he or she witnesses a petrol tanker careering out of control into a school in session and bursting into flames.177 [9.480] It appears that Australian judges have remained willing to contemplate the possibility of recovery by unrelated bystanders in

172

McLoughlin v O’Brian [1983] 1 AC 410 at 442–443.

173

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

174

McLoughlin v O’Brian [1983] 1 AC 410 at 443.

175

See Chapter 25.

176

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 403.

177

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 403. Note a compelling case from South Africa, Potgieter v Rangasamy [2011] ZAECPEHC 36, where the plaintiff was a teacher on board a bus carrying the school netball team that was involved in an accident in which three of the children died. The plaintiff was flung out of the bus. She had to phone the parents of the three dead girls and visit the injured in hospital. The plaintiff recovered damages for emotional shock, Sandi J emphasising that in South African law there were no limits as far as relationships were concerned. It is of course important that the plaintiff was the teacher, not a stranger, and that she was involved in the accident.

[9.480]

9 Circumstances of the Case: Relationship to Accident Victim

347

exceptional circumstances of this nature.178 In Reeve v Brisbane City Council,179 Lee J referred to Atkin LJ’s bystander hypothetical and its acceptance by the House of Lords, drawing an analogy with the possibility of recovery by a close relative who did not witness the accident: So it is that in the present case the close relationship between the plaintiff and the victim may supply the necessary nexus notwithstanding the absence of any physical connection with or independent perception of the accident or its aftermath; and so it is with the hypothetical case postulated by Atkin LJ in Hambrook v Stokes Brothers and accepted by three of their Lordships in Alcock, that the physical connection of the by-stander with the accident and the causal link established by his direct perception of the distressing events, may supply the necessary proximity and render it unnecessary for the courts to require, as a matter of policy, any pre-existing relationship between the by-stander and victim, or the by-stander and the defendant, to control the ambit of reasonable foresight. In the former case the control lies in the closeness of the relationship, actual or presumptive, between the plaintiff and victim, in the latter case it lies in the causal connection between the accident and its consequences enhanced by the severity of those events and the closeness of the plaintiff to them.180

More recently, McHugh J in Gifford v Strang Patrick Stevedoring Pty Ltd181 has made it plain that Australian law still contemplates the possibility that persons who witness an accident to another may still have a right to sue even in the absence of any relevant relationship. In the passage immediately following that quoted at [9.110] in which he dealt with the situation where there was a close and loving relationship between the parties, he said: In other cases, an association with the primary victim or being in their presence may be sufficient to give rise to a duty to take reasonable care to protect a person from suffering psychiatric harm. This will often be the case where the person suffering psychiatric harm saw or heard the harm-causing incident or its aftermath. As members of this court pointed out in Tame, in determining whether the psychiatric injury suffered was reasonably foreseeable, relevant considerations may include whether the person who suffers that injury directly perceived the distressing incident or its aftermath or suffered a sudden shock. If so a duty to take care may exist even though the primary victim and the person suffering psychiatric harm had no pre-existing relationship.182

Nothing in the statutory provisions on mental harm invalidates this proposition. 178

Though the fact that the plaintiff is a participant rather than a mere bystander remains an important fact in favour of recovery: in FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 Mason P at 267 noted that what distinguished the respondent in that case from the “mere bystander” was the immediacy of his involvement in the accident: see [26.110].

179

Reeve v Brisbane City Council [1995] 2 Qd R 661.

180

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 674. It has to be admitted that Lee J’s judgment was heavily influenced by the general proximity principle subsequently abandoned by the High Court: see [7.150]–[7.170]. 181

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

182

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [51].

348

Part III: Liability for Mental Harm

[9.490]

[9.490] In contrast, British courts have retreated from the possibility contemplated in Alcock v Chief Constable of South Yorkshire Police,183 and have seemingly ruled out the possibility that a secondary victim lacking the requisite close ties of love and affection can ever be owed a duty of care. The key case is McFarlane v EE Caledonia Ltd,184 a decision of the English Court of Appeal concerning a claim by a painter who worked on board the North Sea oil rig Piper Alpha, but was off duty in his bunk in the support vessel Tharos on the night of 6 July 1988, when a series of explosions caused the destruction of the rig and the deaths of 167 men. The plaintiff witnessed the scene for the next hour and three-quarters until he was evacuated by helicopter. The Tharos attempted to render assistance, but never got closer than 100 metres to the scene. The plaintiff claimed damages for psychiatric illness suffered as a result of witnessing these events. The Court of Appeal held that he could recover as a primary victim if he was within the zone of physical danger,185 or although not actually in the danger area reasonably thought he was because of the sudden and unexpected nature of the event, or came into the danger zone later as a rescuer. None of these criteria were satisfied on the facts. It might be thought that there would be some possibility of a duty of care based simply on the fact that he was on the scene and witnessed the tragedy, based on the dicta of three of their Lordships in Alcock, especially since the scale of the disaster seemed to match Lord Ackner’s petrol tanker example. But the Court of Appeal rejected any such possibility. Stuart-Smith LJ said: The whole basis of the decision in Alcock v Chief Constable of the South Yorkshire Police is that where the shock is caused by fear of injury to others as opposed to fear of injury to the participant, the test of proximity is not simply reasonable foreseeability. There must be a sufficiently close tie of love and affection between the plaintiff and the victim. To extend the duty to those who have no such connection, is to base the test purely on foreseeability. It seems to me that there are great practical problems as well. Reactions to horrific events are entirely subjective; who is to say that it is more horrific to see a petrol tanker advancing out of control on a school, when perhaps unknown to the plaintiff none of the children are in the building, but are somewhere safe, than to see a child or a group of children run over on a pedestrian crossing? There must be few scenes more harrowing than seeing women and children trapped at the window of a blazing building, yet many people gather to witness these calamities. 183

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

184

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1, noted by KF Tan (1995) 111 LQR 48; J Blaikie, “Nervous Shock: Traumatised Fellow Workers and Bystanders” 1994 SLT 297. See also J Murphy, “Negligently Inflicted Psychiatric Harm: A Re-Appraisal” (1995) 15 LS 415; D Oughton and J Lowry, “Liability to Bystanders for Negligently Inflicted Psychiatric Harm” (1995) 46 NILQ 18. 185

Note also Catron v Lewis 712 NW 2d 245 (Neb 2006), holding that a boat operator who witnessed a jet ski strike a tube being pulled by his boat, killing the rider, had no cause of action. Given the lack of any intimate family relationship with the victim, the plaintiff could only recover if he could show he was in the zone of danger (which the Nebraska court referred to as a “direct victim” case: on this line of cases, see [18.190]–[18.240]).

[9.510]

9 Circumstances of the Case: Relationship to Accident Victim

349

In my judgment both as a matter of principle and policy the court should not extend the duty to those who are mere bystanders or witnesses of horrific events unless there is a sufficient degree of proximity, which requires both nearness in time and place and a close relationship of love and affection between plaintiff and victim.186

This decision was applied by Judge Wheatley QC in the Outer House of the Scottish Court of Session in Robertson v Forth Road Bridge Joint Board (No 2).187 Two men watched their friend and work colleague blown out of a truck as they crossed the bridge, to be killed as he struck the girders below. Judge Wheatley held that no duty was owed to the two men, whether as friends, work colleagues or ordinary bystanders. McFarlane was a much more horrific occurrence but there was no duty in that case either.188 [9.500] This appears to be yet another situation where the English and Australian courts now differ in their approach.189 The latest Australian pronouncements seem to be content to rely purely on principles of foreseeability, consistently with the attitude taken to recovery by close relatives; English courts, however, while coming close to saying that as regards the class of persons owed a duty of care foreseeability is the only relevant criterion,190 have retreated to the position that the issue of close ties of love and affection is also a policy requirement and that physical proximity in space and time is also relevant. This means that the unrelated bystander will not be numbered among those owed a duty of care in English law. [9.510] In the first edition of this book, it was suggested that the exceptional sorts of situation akin to Lord Ackner’s petrol tanker example 186

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 14.

187

Robertson v Forth Road Bridge Joint Board (No 2) 1994 SLT 568, a decision subsequently confirmed by the Inner House: Robertson v Forth Road Bridge Joint Board 1995 SC 364. 188

In Fagan v Goodman (unreported, Eng QBD, 30 November 2001) Turner J rejected the claim of a woman who said she was left mentally scarred by witnessing a police motorcyclist’s death in a road accident, after a seven-day trial, on the ground that she had failed to prove any significant injury. A preview of the case suggested that it could have broken new ground, presumably by recognising a right of action for unrelated bystanders: see F Gibb, “Crash witness sues for damages”, The Times, 15 November 2001.

189

Canadian courts have come close to permitting recovery by bystanders in exceptional circumstances. In Falbo v Coutts [2000] BCSC 434 the court suggested in general terms that a motorist could recover as a secondary victim when she suffered a shock-related injury on seeing a the body of a motorcyclist fly past her car window; however, the plaintiff had been involved in the accident and the court also suggested that she could recover as a primary victim. In A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351 the plaintiff was driving when a vehicle behind him approaching at high speed swerved into another lane to avoid him and hit an oncoming vehicle. The plaintiff spent time attempting to assist both drivers, each of whom died. Though the plaintiff could clearly be classified as a rescuer, Butler J at [34] discussed the situation on ordinary foreseeability grounds, asking whether the accident was sufficiently horrific that a court could conclude that psychiatric injury was foreseeable to a person of ordinary fortitude. Damages were awarded. 190 See Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 397 per Lord Keith of Kinkel, quoted at [9.340].

350

Part III: Liability for Mental Harm

[9.510]

were perhaps more common than his prediction suggested.191 It seemed that in a considerable improvement on the previous state of affairs, the Law Lords in Alcock v Chief Constable of South Yorkshire Police192 had finally removed some of the arbitrary barriers to relief for shock-related injury. It now seems that English courts are not prepared to go anything like this far. As Lord Ackner’s example shows, there may well be exceptional situations where psychiatric injury to unrelated bystanders is entirely foreseeable. Though Australian courts have never actually granted recovery in such circumstances, it is submitted that they are right to leave the door open.

191

See NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), pp 131–132. Also discussed was the interesting conundrum of whether a stranger who mistakenly believes that the person who has been killed, injured or endangered in an accident is someone known or dear to them is entitled to redress for resultant psychiatric harm. A Massachusetts court has seen fit to turn down a plaintiff’s claim in such circumstances on foreseeability grounds: Barnes v Geiger 446 NE 2d 78 (Mass 1983). 192

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

Chapter 10

Proximity of Time and Space [10.10] INTRODUCTION ............................................................................................................. 351 [10.30] DEVELOPMENT OF THE COMMON LAW ............................................................... 352 [10.30] The presence requirement ............................................................................................... 352 [10.60] The aftermath doctrine .................................................................................................... 354 [10.90] Extension of the aftermath doctrine .............................................................................. 356 [10.120] Australian developments after Jaensch v Coffey ...................................................... 358 [10.140] THE CURRENT AUSTRALIAN LAW ........................................................................ 360 [10.140] The common law ............................................................................................................ 360 [10.170] The Civil Liability Acts .................................................................................................. 363 [10.190] AFTERMATH: DIFFERENT APPROACHES ............................................................. 365 [10.200] The Alcock case ............................................................................................................... 365 [10.280] Some particular scenarios .............................................................................................. 370 [10.420] United States .................................................................................................................... 384 [10.450] Conclusion ........................................................................................................................ 388

INTRODUCTION [10.10] Ever since Hambrook v Stokes Bros,1 the case in which the law first recognised that in appropriate circumstances a defendant who negligently killed, injured or endangered another might owe a duty of care to a witness of the event who suffered nervous shock as a result of viewing these happenings, the proximity of the shock victim to the accident in space and time has been an important factor in determining that duty. As explained at [10.60]–[10.110], the law’s original insistence that the plaintiff both be present and perceive the accident with his or her unaided senses has been progressively modified: the law of most jurisdictions now recognises that presence at the immediate aftermath of the accident may be sufficient to satisfy the proximity requirement. [10.20] The aftermath doctrine is beset with difficulties, and in Tame v New South Wales2 the Australian High Court saw the logic of a simpler alternative by recognising that a duty of care can exist even when the 1

Hambrook v Stokes Bros [1925] 1 KB 141.

2

Tame v New South Wales (2002) 211 CLR 317.

352

Part III: Liability for Mental Harm

[10.30]

shock victim was never present at the accident or its aftermath but suffered psychiatric injury through receiving news of the accident from another. A similar step had been taken a few years earlier by the Supreme Court of Appeal of South Africa.3 This does not mean, however, that the aftermath principle has become irrelevant: it remains possible to establish the existence of a duty by reference to the aftermath principle, if the facts fit. The Civil Liability Acts expressly provide that whether the plaintiff witnessed, at the scene, another person being killed, injured or put in peril is one of the circumstances of the case to be taken into account in determining whether the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken.4 This chapter examines the development of the aftermath principle, its relevance in current Australian law, and the approaches adopted in different jurisdictions to the various problems raised by the attempt to impose limitations in the name of physical and temporal proximity.

DEVELOPMENT OF THE COMMON LAW The presence requirement [10.30] As already related,5 cases such as Hambrook v Stokes Bros,6 which overruled the “Kennedy limitation”7 and held that a plaintiff outside the zone of danger could recover for shock caused by fear for the safety of others, stressed the elements of presence at the scene of the accident and perception of it with one’s own unaided senses (as opposed to being informed by someone else).8 However, later cases gradually relaxed those requirements, as noted by Hidden J in Alcock v Chief Constable of South Yorkshire Police:9 3

Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

4

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(b); Civil Liability Act 2002 (NSW), s 32(2)(b); Civil Liability Act 1936 (SA), s 33(2)(a)(ii); Wrongs Act 1958 (Vic), s 72(2)(b); Civil Liability Act 2002 (WA), s 5S(2)(b). The Tasmanian legislation does not contain this provision: see [2.290]. 5

See [2.50].

6

Hambrook v Stokes Bros [1925] 1 KB 141.

7

Dulieu v White & Sons [1901] 2 KB 669 at 675 per Kennedy J.

8

Modern cases where close relatives have recovered damages based on presence at the scene include Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465 (Mr and Mrs Magnus saw plane on which their son had just taken off lose altitude and crash; compare Davis v Scott (1998) 76 SASR 361 where the facts were similar but the owner of the plane was not vicariously liable, a decision upheld by the High Court (Scott v Davis (2000) 204 CLR 333, noted by P Handford (2001) 9 Tort L Rev 97), and Glen v Korean Airlines Co Ltd [2003] QB 1386 where the plaintiffs were not related to the aircraft passengers); Karamanolis (Next friend of) v McAllister [1980] OJ No 219 (parents saw daughter partially scalped when hair got caught in drive chain of go-kart); Rayner Estate v Patterson [1982] OJ No 450 (daughter saw father trapped under wheel of bus); McNichol Estate v Mardell (1983) 43 AR 274, appeal allowed on other grounds in McNichol Estate v Mardell [1984] AJ No 2514 (husband standing beside wife when shot in hunting accident); Frank v Cox (1988) 84 NSR (2d) 370 (wife saw husband struck and killed when he got out of car to help another driver). Note also Young v

[10.30]

10 Proximity of Time and Space

353

From the review of the various authorities which I have sought to make, it can be seen that, once it was established that a claim for damages lay for nervous shock resulting from a fear not for one’s own safety, but for that of someone else, the courts originally demanded of the plaintiff both presence at the scene and sight of the event. Gradually those rigid requirements were relaxed to extend to presence near the scene without any actual sight of the accident.10

In recent years the presence limitation has increasingly been called into question. As Lord Bridge of Harwich said in McLoughlin v O’Brian,11 once the zone of danger limitation is crossed there is no logical reason for limiting the defendant’s duty to persons in physical proximity to the place where the accident occurred.12 Moreover, close relatives who are not actually present at the accident to see or hear it with their own eyes or ears, unless they happen on the scene shortly afterwards by chance13 or in their capacity as members of the emergency services,14 are going to learn of it by being told by someone else. Given that the emphasis in the cases now seems to be on the relationship between the plaintiff and the primary Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 161–162 per Hobhouse LJ (plaintiff present when fellow-employee electrocuted; he was a secondary victim but was owed a duty by virtue of being an employee: see [19.320]). 9

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 340.

10

For examples of cases where the plaintiff was present at the scene but did not directly witness the traumatic event in question see Owens v Liverpool Corporation [1939] 1 KB 394 (only one of the four claimants actually saw the collision between the tram and the hearse which upset the coffin); Vana v Tosta [1968] SCR 71 (driver did not see his wife ejected from their vehicle on impact with another car, but discovered her badly injured and bleeding on the ground a short while later); Diakogiorgic v Anastasas (unreported, Qld SC, No 179 of 1972, 4 November 1974), noted (1975) 49 ALJ 188 (mother on opposite side of the road to her husband and two children became aware that they had been struck by an oncoming vehicle only after hearing her daughter scream); Kralj v McGrath [1986] 1 All ER 54, discussed at [10.230]; Whitty v Hackney Borough Council (unreported, Eng QBD, 5 February 1987) (woman heard 21-month-old son shriek, turned round to see him lying prostrate in a pall of smoke, having been electrocuted by touching broken illuminated sign). That one may be present without perceiving an incident is evidenced also by United States case law: see eg Bliss v Allentown Public Library 497 F Supp 487 (1980) (mother turned to see child lying underneath fallen statue); Gonzalez v New York City Housing Authority 580 NYS 2d 760 (1992) (mother fainted as lift doors opened between floors and did not see daughter fall to her death); see also Krouse v Graham 562 P 2d 1022 (Cal 1977); Justus v Atchison 565 P 2d 122 (Cal 1977); Neff v Lasso 555 A 2d 1304 (Pa 1989).

11

McLoughlin v O’Brian [1983] 1 AC 410 at 439.

12

See also Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 87 per Ward J, though note the reversal of this decision by the English Court of Appeal in Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n in the light of the disapproval expressed by the House of Lords in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

13

See eg Calascione v Dixon (1993) 19 BMLR 97 (mother of accident victim came upon scene of accident as she was returning home from shopping, but did not realise her son was involved); Kemppainen (Litigation guardian of) v Winter [1997] OJ No 632 (father came upon scene of accident to daughter as he returned home from work).

14

See eg Greatorex v Greatorex [2000] 1 WLR 1970 (father was fire officer, attended single-vehicle accident and found that son was the victim); Anderson v St Pierre (1987) 46 DLR (4th) 754 (member of fire and rescue department summoned to accident found daughter lying motionless in ditch). See also [25.440].

354

Part III: Liability for Mental Harm

[10.40]

accident victim as the key factor in determining whether psychiatric injury is foreseeable in the circumstances, are any other limits to recovery appropriate, and if so how are they to be drawn? These questions have exercised the attention of the courts in many cases over the last 30 years. [10.40] The requirement that the plaintiff be present at the accident and perceive it through his or her own unaided senses caused difficulty right from the start. In Hambrook v Stokes Bros,15 Mrs Hambrook’s estate recovered on the basis that, as the truck went past her and crashed into a house, she suffered shock and injury through fear for the safety of her children. But that fear was that an accident had already happened, an accident that she was not there to see. She went to the scene, discovered that there had been an accident, and that a little girl had been injured. She went to the hospital, and found that the injured girl was indeed her daughter. No doubt all this contributed to the injury she suffered, but liability to her was based on her perception at the moment the truck went by her. In other cases plaintiffs were unable to recover because they were not present at the crucial moment. In Chester v Waverley Corporation,16 a mother suffered psychiatric harm through seeing the body of her son recovered from a water-filled trench, but it was held that the council, which had left the trench unprotected, owed her no duty of care to prevent causing such injury. It would have been different if she had been there to see him fall in. In King v Phillips,17 a mother who heard a scream, looked out of her window and saw her son, as she thought, disappear under the wheels of a taxi was not given damages because it was not foreseeable that she might be watching from such a position and suffer emotional injury. But of course her response to the occurrence was to get to the scene of the accident as fast as she could, and on the way there she met her son running towards her and discovered that he had escaped physically unscathed.18 [10.50] What cases like these show is that relatives who do not happen to be present when the accident occurs are likely to arrive there shortly afterwards, and the whole experience may well result in distressing consequences in the form of shock and psychiatric illness. It seems artificial to make presence at a particular point in time the crucial factor in determining whether any duty is owed.

The aftermath doctrine [10.60] It is in response to such problems that the law has developed what is now known as the “aftermath” doctrine — a plaintiff whose relationship with the accident victim satisfies the criteria laid down by the law, and who suffers psychiatric injury from direct perception of the 15

Hambrook v Stokes Bros [1925] 1 KB 141.

16

Chester v Waverley Corporation (1939) 62 CLR 1.

17

King v Phillips [1953] 1 QB 429.

18

The Scottish case of McLinden v Richardson 1962 SLT (Notes) 104 is very similar, the only distinction being that the vehicle had in fact injured the child.

[10.80]

10 Proximity of Time and Space

355

accident or its immediate aftermath, is within the boundaries of foreseeability and may recover. In the words of Lord Lowry, the need for presence at the accident scene in psychiatric injury cases “has been consigned to the lumber room of rejected legal fallacies”.19 The aftermath doctrine might well have been applied in the cases dealt with at [10.40] if they were to have occurred today. [10.70] The aftermath doctrine originated in a series of cases in which the courts held that it was foreseeable that a plaintiff not present at the scene of the accident would arrive shortly afterwards. Perhaps the first case was Boardman v Sanderson20 in 1964, where a father and his son had accompanied a friend to a garage to collect his car. The father went into the garage office, leaving his son outside. The friend, in backing the car out of the garage, negligently ran over the son’s foot. The father heard his screams and immediately ran to his son. These events caused the father to suffer nervous shock. The court said that the defendant knew the father was only a few yards away and could foresee that in such circumstances he would immediately come to the scene. The next year in an Australian case, Storm v Geeves,21 the potential of this idea was extended: a young girl was run over by a truck and killed while waiting for a bus close to her home, and her brother rushed inside the house to fetch his mother, who suffered shock and consequent emotional injury due to the sight of her daughter’s crushed body. The court held that she could recover, because, as in Boardman v Sanderson, it was foreseeable that the circumstances would bring her to the site of the accident. In Mount Isa Mines Ltd v Pusey22 the plaintiff was quite close to where the accident took place, and heard the explosion that caused it; in Chadwick v British Railways Board23 the plaintiff was at his home 200 yards away from the scene of a train crash. Both went to the rescue and recovered damages for the psychiatric injury they suffered as a result. In each case it was accepted that the arrival of rescuers was entirely foreseeable. [10.80] By the early 1970s some courts were beginning to use the word “aftermath” to describe the basis of the defendant’s liability. In Canada in Marshall v Lionel Enterprises Inc,24 a wife recovered damages when she 19

O’Dowd v Secretary of State for Northern Ireland [1982] NI 210 at 214.

20

Boardman v Sanderson [1964] 1 WLR 1317, noted by G Dworkin (1962) 25 MLR 353; (1965) 81 LQR 3. Note also two Australian cases with very similar facts: Government Insurance Office of New South Wales v Maroulis (unreported, NSWCA, CA Nos 274 and 275 of 1988, 6 April 1990) (plaintiff and husband crossing street to visit nephew, plaintiff had gone ahead and entered house, heard loud noise and rushed outside to find husband lying unconscious in gutter after being hit by car); Gregory v Government Insurance Office of New South Wales (unreported, NSWSC, No 13756 of 1985, 1 March 1991) (plaintiff, whose father was at other side of their caravan, heard sound of breaking glass as truck passed by and went round to find his father lying in the road, badly injured).

21

Storm v Geeves [1965] Tas SR 252.

22

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

23

Chadwick v British Railways Board [1967] 1 WLR 912.

24

Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141.

356

Part III: Liability for Mental Harm

[10.90]

came upon her husband who had been injured in a snowmobile accident. The court rejected a submission that the shock she suffered was the result of viewing the aftermath rather than the accident itself. In Australia in Benson v Lee,25 a mother at home 100 yards away was summoned to the scene of the accident where she saw her unconscious son, and was later informed at the hospital that he was dead. Lush J formulated liability in the following terms: [W]hat is, at the present time, required, is, I think, a direct perception of some of the events which go to make up the accident as an entire event, and this includes seeing the immediate aftermath of the accident, even if, for example, the impact or explosion is neither seen nor heard.26

Other courts were utilising the aftermath concept in all but name. In Fenn v City of Peterborough,27 for example, a man who arrived home minutes after a gas explosion destroyed his house, killed his three children and seriously injured his wife was held entitled to recover for psychiatric injury.28

Extension of the aftermath doctrine [10.90] The doctrine received the endorsement of the House of Lords in McLoughlin v O’Brian,29 where it was extended to a case in which the plaintiff did not go to the scene of the accident, but to the hospital, where she saw the injured members of her family still covered in mud and oil, and crying and screaming. The leading statement of the principles approved by their Lordships appears in the judgment of Lord Wilberforce: As regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the “nervous shock”. Experience has shown that to insist on direct and immediate sight or hearing

25

Benson v Lee [1972] VR 879, noted (1973) 47 ALJ 206.

26

Benson v Lee [1972] VR 879 at 880 (emphasis added).

27

Fenn v City of Peterborough (1976) 73 DLR (3d) 177. The further appeals in this case did not involve psychiatric injury issues: sub nom Consumers’ Gas v Peterborough (1979) 104 DLR (3d) 174; Consumers’ Gas v Peterborough [1981] 2 SCR 613.

28

For cases where the claimant came to the aftermath of the accident but was denied compensation on other grounds see Brown v Hubar (1974) 45 DLR (3d) 664 (plaintiff, having been requested by phone to come and pick up his daughter who had been involved in an accident, arrived to find her lying lifeless under a blanket), criticised by AM Linden, Canadian Tort Law (4th ed, Butterworths, Toronto, 1988), p 371 (the passage does not appear in the latest edition); W Binchy, “Annual Survey of Canadian Law, Part 2, Torts – II” (1977) 9 Ottawa LR 339 at 350–351; Duwyn v Kaprielian (1978) 94 DLR (3d) 424 (woman returned to her car, which contained her baby and mother, and found someone had smashed into it, and a general commotion); Young v Burgoyne (1981) 122 DLR (3d) 330 at 336 per Hallett J: “There is no logical reason to require as a condition of obtaining an award that the plaintiff be present at the time the [primary] victim sustains the injury.”

29

McLoughlin v O’Brian [1983] 1 AC 410.

[10.110]

10 Proximity of Time and Space

357

would be impractical and unjust and that under what might be called the “aftermath” doctrine, one who, from close proximity, comes very soon on the scene, should not be excluded.30

[10.100] Two years later this doctrine was adopted, and indeed extended, by the High Court of Australia in Jaensch v Coffey.31 In this case also, the plaintiff went not to the scene of the accident but to the hospital, where her seriously injured husband had undergone major surgery and was still on the danger list. The facts were not quite like those of McLoughlin v O’Brian,32 where the plaintiff arrived within about two hours of the accident and saw her family before they had been treated and cleaned up. Mrs Coffey saw the extent of her husband’s injuries on the day of the accident and was there for a long period the following day. Some days later it became apparent that she had suffered psychiatric illness. The High Court was willing to accept the aftermath doctrine. In the words of Deane J: The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment.33

[10.110] Their Honours, however, were not prepared to endorse all of the limitations placed on the concept by Lord Wilberforce. Gibbs CJ reserved his opinion as to the correctness of Lord Wilberforce’s comment to the effect that there must be close proximity in space as well as in time, and that the shock must come through sight or hearing of the event or its immediate aftermath.34 Brennan J suggested that these considerations were relevant but were not principles limiting liability.35 Deane J in an important passage saw two possible rationales for the distinction between cases where psychiatric injury was sustained as a result of direct observation at the scene of the accident and its aftermath and cases where the psychiatric injury was sustained from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident: 30

McLoughlin v O’Brian [1983] 1 AC 410 at 422.

31

Jaensch v Coffey (1984) 155 CLR 549.

32

McLoughlin v O’Brian [1983] 1 AC 410.

33

Jaensch v Coffey (1984) 155 CLR 549 at 607–608. Note also the earlier case of White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982) where parents of a teenage girl rendered unconscious in an accident recovered damages for psychiatric injury caused by a combination of being told of the accident and seeing her in hospital, where she lay unconscious for four days. On the problems of this case see [11.170].

34

Jaensch v Coffey (1984) 155 CLR 549 at 555.

35

Jaensch v Coffey (1984) 155 CLR 549 at 572.

358

Part III: Liability for Mental Harm

[10.120]

One such rationale lies in considerations of physical proximity, in the sense of space and time, between the accident and its immediate aftermath on the one hand and the injury on the other. The other lies in considerations of causal proximity in that in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath, such as the actual occurrence of death or injury in the course of it, whereas, in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person. The choice between one or other or a combination of these two distinct rationales may obviously be of importance in the more precise identification of any essential criteria of the existence of the requisite duty relationship. On balance, I have come to the conclusion that the second, which justifies the line of demarcation by a reference to considerations of causal proximity, is to be preferred as being the less arbitrary and the better attuned both to legal principle and considerations of public policy.36

Australian developments after Jaensch v Coffey [10.120] The limits of the High Court’s approach were put to the test in a decision of the Queensland Supreme Court. In Spence v Percy37 the plaintiff’s daughter (who was blind) suffered serious injuries in an accident caused by the defendant’s negligence. She remained in a pitiable vegetative state for the next three years, and death was inevitable, though when it did occur it was somewhat unexpected. The plaintiff, who saw her daughter on the day following the accident and spent much time in the hospital during the ensuing years, maintained an unreasonable expectation that she would recover. When she died, the plaintiff suffered shock which produced a psychiatric illness. The trial judge, Derrington J, adopting the principles laid down by the High Court in Jaensch v Coffey,38 was prepared to accept that the aftermath had no temporal connotation, and held that “because the plaintiff has established that she suffered a psychiatric illness directly caused by shock of the death of her daughter as the inevitable aftermath of her injury she should succeed”.39 The Full Court allowed the appeal and said that the injury suffered here was not part of the aftermath. Shepherdson J interpreted Deane J’s judgment as holding that the aftermath extended no further than the conclusion of “immediate post-accident treatment”,40 but he did not offer an explanation of the ambit of this concept. Williams J said that the High Court did not define aftermath, but the context of the case indicated that it had a 36

Jaensch v Coffey (1984) 155 CLR 549 at 606–607.

37

Spence v Percy (1990) Aust Torts Rep 81-039 (Derrington J); Spence v Percy (1991) Aust Torts Rep 81-116 (Full Court). An application for special leave to appeal to the High Court was subsequently refused: see Spence v Percy (unreported, Aust HC, No B27 of 1991, 13 December 1991). Note J Meredith, “Step by Cautious Step — A Recent Finding on Nervous Shock” (1991) 21 QLSJ 427. 38

Jaensch v Coffey (1984) 155 CLR 549.

39

Spence v Percy (1990) Aust Torts Rep 81-039 at 68,041.

40

Spence v Percy (1991) Aust Torts Rep 81-116 at 69,081. Would it, for example, extend beyond the initial cleaning and bandaging of the wounded in McLoughlin v O’Brian [1983] 1 AC 410?

[10.130]

10 Proximity of Time and Space

359

temporal connotation, and the proximity test would not be satisfied where there was a “significant time lapse”,41 a term on which his Honour did not elaborate. De Jersey J agreed that the aftermath could not be regarded as extending to this situation three years later.42 It is clear that the Full Court were most reluctant to extend the aftermath doctrine to events that happened at a time long removed from the initial injury suffered by the daughter.43 It is interesting, however, to note that “aftermath” is defined in the Oxford English Dictionary without any temporal connotation (apart from implying subsequence to the causal event) but only one of consequence.44 Though Derrington J at first instance gave some weight to this,45 Williams J was not swayed by the dictionary meaning.46 But if the aftermath problem is put aside the logic of the trial judge’s decision cannot be refuted. Given the nature of the injuries suffered, the daughter’s eventual death was inevitable. That the mother might suffer psychiatric injury as a result of that death, after years of watching and hoping for a recovery, was entirely foreseeable. [10.130] Spence v Percy is a case like McLoughlin v O’Brian47 and Jaensch v Coffey48 in that the plaintiff arrived at the hospital as soon as she could, but unlike those decisions in that this was the commencement of a long period of anxiety and uncertainty as to the ultimate outcome of the tortfeasor’s negligence, culminating in the daughter’s eventual death. The aftermath doctrine does not seem to be able to accommodate this kind of case, as a leading Canadian decision illustrates.49 In Rhodes v Canadian 41

Spence v Percy (1991) Aust Torts Rep 81-116 at 69,087.

42

Spence v Percy (1991) Aust Torts Rep 81-116 at 69,089. Note also Pratt and Goldsmith v Pratt [1975] VR 378, a case decided before McLoughlin v O’Brian [1983] 1 AC 410 and Jaensch v Coffey (1984) 155 CLR 549, where a mother suffered psychiatric harm some weeks after seeing the extent of her daughter’s injuries and was held unable to recover.

43

Note also White v Lidl UK GmbH [2005] EWHC 871 (QB), where the claimant’s psychiatric injury was caused by the deceased’s suicide six months after the accident. It was held that this was not part of the aftermath.

44

The Oxford English Dictionary (2nd ed, 1989) defines the term as “a state or condition left by a (usu[ally] unpleasant) event or some further occurrence arising from it”.

45

Spence v Percy (1990) Aust Torts Rep 81-039 at 68,041.

46

Spence v Percy (1991) Aust Torts Rep 81-116 at 69,087.

47

McLoughlin v O’Brian [1983] 1 AC 410.

48

Jaensch v Coffey (1984) 155 CLR 549.

49

Note also two English cases involving major disasters. In Singh v London Underground Ltd (unreported, Eng QBD, 24 April 1990) the plaintiff learnt on television of the fire at the King’s Cross underground station in London on 18 November 1987, knowing that the route home taken by three members of her family would have brought them through the station at the time of the fire. Her anxiety mounted as the hours passed and they did not return, until she was told next day of their deaths. As a result she suffered a psychiatric illness. Refusing an application for trial by jury, the court recognised that to hold the defendant liable would require an extension of the principles laid down by McLoughlin v O’Brian [1983] 1 AC 410. In Crocker v P & O European Ferries (Dover) Ltd (unreported, Eng QBD, 3 December 1990), an action was brought by 64 relatives of passengers and crew members on the Herald of Free Enterprise which sank with tragic loss of life at Zeebrugge on 6 March 1987. The plaintiffs

360

Part III: Liability for Mental Harm

[10.140]

National Railway,50 the British Columbia Court of Appeal gave a narrow construction to Deane J’s theory of causal proximity. The plaintiff’s son was killed in the Hinton train crash in Alberta in 1986, one of 23 who died in one of Canada’s worst railway disasters. The plaintiff first heard of the crash on the radio in British Columbia, and endured many hours of extreme anxiety before learning that her son was among the victims. By the time she was able to see the scene of the accident, eight days had elapsed. She was never able to see her son’s body. Her experience was made worse by being denied access to the crash site, missing the memorial service through being given wrong directions, and receiving her son’s remains from the undertaker by ordinary mail. As a result the plaintiff suffered severe depression and other signs of mental and emotional disturbance. Maczko J was prepared to award damages based on Deane J’s doctrine of causal proximity, even though the plaintiff had not directly perceived the accident or its immediate aftermath.51 The Court of Appeal, however, allowed the defendant’s appeal. Taylor JA (Wood JA concurring) said that the concept of causal proximity ought to be taken to exclude indirect injury such as that caused by visiting the scene some days later. Wallace JA, questioning the usefulness of causal proximity, rejected the plaintiff’s claim on other proximity and policy grounds.52 Thus where, for various good reasons, a substantial period of time elapses before the claimant arrives at the accident site — for example, because it is not immediately clear that a relative was a victim, or because of misinformation or misdirection by the relevant authorities, or the time taken to travel — the aftermath doctrine will not assist.

THE CURRENT AUSTRALIAN LAW The common law [10.140] Since the High Court’s decision in Tame v New South Wales53 holding that direct perception is no longer an essential requirement of liability for psychiatric injury,54 Australian cases no longer have to rely on the aftermath principle. Courts presented with situations such as those discussed at [10.130] no longer have to explore the limits of proximity requirements. Instead, they are now able to accept that in such circumstances it is foreseeable that relatives of the accident victim may suffer psychiatrically because of the uncertainty of the situation, over a claimed damages for alleged psychiatric illness suffered as a result of the shock sustained on learning of the disaster and the death of loved ones. The court allowed a lead action involving a few plaintiffs to enable the determination of common issues of law, including the question of proximity, and fact. 50

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

51

Rhodes v Canadian National Railway (1989) 36 BCLR (2d) 1.

52

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 265. Macfarlane JA agreed with both Taylor and Wallace JJA. Southin JA concurred in the result on different grounds.

53

Tame v New South Wales (2002) 211 CLR 317.

54

Fully dealt with in Chapter 11; see also [2.150].

[10.150]

10 Proximity of Time and Space

361

shorter or longer period, until their worst fears are confirmed, and that in such circumstances their injury stems from the initial communication of the news rather than any connection with the aftermath. There could not be a better illustration of this than the case that caused the High Court to reconsider its attitude to the proximity and direct perception issues. Annetts v Australian Stations Pty Ltd, one of the two appeals heard by the High Court in Tame v New South Wales, involved the disappearance of 16-year-old James Annetts and his companion in the desert in the far north of Western Australia. James’s parents had to endure a four-month period of not knowing what had happened, ended by the eventual discovery of the bodies. Even on the most liberal application of the aftermath principle, there was no way in which the parents could have satisfied the proximity requirements, because until the bodies were discovered it was not known what had happened and there was no known accident site to attend. Although the parents made several visits to Western Australia they never went to the accident site or saw the body, only identifying their son’s remains from a photograph. Yet it was clearly foreseeable that the parents would suffer psychiatric injury as a result of the failure by James’s employers to take proper care of him, given their close relationship with their young son, together with the assurances they had received that James would be properly looked after. [10.150] Even before the High Court’s decision in this case, lower courts in Australia had showed a preparedness to abandon the restrictions of proximity of time and space. One such case is Magnus v South Pacific Air Motive Ltd,55 where the aeroplane bearing Mr Maxwell’s son and the rest of the Scots College school band crashed shortly after take-off from Sydney Airport. Mr Maxwell had not gone to see his son off, but had simply put him on the bus. Since he was due to fly out himself that evening, he phoned the airport to make inquiries about his flight, referred to the “DC3 to Norfolk Island” and was told that all they knew was that the plane had slipped off the runway. Puzzled, he made further phone calls, and the police told him that 24 people had been recovered from the plane. He decided to drive to the airport, and was met by the father of another boy who told him that he should phone his wife and prepare her for the worst. When he telephoned, his wife told him that the school had phoned to say that the boys were safe. Wilcox J held that Mr Maxwell had suffered a psychological injury, though it was not as serious as that suffered by other parents such as Mr and Mrs Magnus, who had seen the plane go down. Without any detailed inquiry whether Mr Maxwell had been present at the aftermath, the judge awarded damages, reflecting the different circumstances of the various parties in the level of damages awarded. Another good illustration is Hancock v Nominal Defendant,56 where the plaintiff’s son was killed in a horrific motor vehicle accident late at night. The victim had been decapitated, and no final identification 55

Magnus v South Pacific Air Motive Ltd [2001] FCA 465.

56

Hancock v Nominal Defendant [2002] 1 Qd R 578.

362

Part III: Liability for Mental Harm

[10.160]

could be made until the dental records had been checked. The plaintiff first heard of the accident when his former mother-in-law phoned him the next morning. He had to wait until mid-afternoon before the identification was made. There was medical evidence to the effect that confrontation with the accident by hearing news of the event could be even greater than by seeing the accident or its aftermath, and the Queensland Court of Appeal held that a duty of care could be owed to a close relative who suffered psychiatric injury even if they had only been told about it. These cases show that now Australian law does not have to rely on the aftermath principle, in cases of psychiatric injury caused by mounting uncertainty a much more just result can be achieved. [10.160] Since the decision in Tame v New South Wales,57 there have been cases where the fact situations would have brought the plaintiffs within the limits of the aftermath principle as recognised by the pre-Tame cases, but the plaintiffs have been able to recover damages for their psychiatric injury without any necessity for the court to refer to the aftermath issues. In one case, the plaintiff was present when his younger brother amputated his arm while operating a wood chipping machine but did not see the incident, only becoming aware what had happened when turning round on hearing his brother’s screams.58 This is a very obvious case and the plaintiff would have been able to recover damages even before the development of the aftermath principle. However, there are other cases where the plaintiff was close by and was on the scene within minutes,59 and another case where a wife received news that her husband had been shot and arrived at the hospital at the same time he did, seeing him with a towel covering his face and blood all over his clothing and body.60 There are yet other cases where the details about proximity are sketchy or absent — showing that providing the relationship is close enough and the requirements of foreseeability are satisfied, closeness in space and time is no longer a crucial issue.61 Hanlon v Hanlon,62 a case arising out of a family boating tragedy on Arthur’s Lake in Tasmania, provides a particularly good illustration of the mounting uncertainty problem. The defendant, his son Craig and Craig’s two young sons, Sam and Joel, went out fishing in the defendant’s boat. The defendant made a sharp turn to starboard, the boat tipped violently to port, and all the occupants except Joel were thrown out. Craig and Sam were drowned. The plaintiff, expecting the return of the fishing party, walked down to the boat ramp, where some other people told her that there were two little boys in the 57

Tame v New South Wales (2002) 211 CLR 317.

58

Evans v Rivett Arboricultural & Waste Equipment Hire Pty Ltd [2005] SADC 172.

59

Eg Pareezer v Coca-Cola Amatil [2004] NSWSC 825; Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 (parents’ claim); Elliott v Andrew [2009] SADC 31.

60

Monie v Commonwealth [2003] NSWSC 1141.

61

Ah Tong v Wingecarribee Council [2003] NSWCA 381; Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 (brothers’ claim); Dobler v Halvorsen [2006] NSWSC 1307.

62

Hanlon v Hanlon [2006] TASSC 1.

[10.170]

10 Proximity of Time and Space

363

lake. Sometime later, she was told that Joel was safe but Sam was missing. Hopes of finding him alive gradually faded. The effect of this tragic experience on the plaintiff was exacerbated by Joel’s subsequent behaviour and her deteriorating relationship with her husband’s family. She was diagnosed with an anxiety disorder, for which damages were awarded.

The Civil Liability Acts [10.170] In five of the six jurisdictions with Civil Liability Act provisions setting out the scope of liability for mental harm, one of the circumstances to be taken into account is whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril.63 These provisions are in rather different terms from the recommendations in the Ipp Report, which set out five circumstances to be taken into consideration rather than the four in the legislation, including “whether the plaintiff was at the scene of shocking events, or witnessed them or their aftermath” and “whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses”.64 The purpose of the mental harm recommendations in the Ipp Report was to set out a legislative statement of the current state of the law,65 and the two propositions quoted above were intended to reflect two different issues identified by the common law, the proximity of time and space issue dealt with in this chapter and the means of communication issue that is the subject of Chapter 11. However, the New South Wales legislation, which was the first in the field, condensed the two statements into one, and the other jurisdictions followed suit for the sake of uniformity.66 It might be thought that the provisions as enacted place undue emphasis on witnessing the accident taking place, and if this were a legislative requirement (as opposed to merely being a circumstance to be taken into account) it might be thought to have the potential to destroy much that has been achieved by the aftermath doctrine. However, as the 63

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(b); Civil Liability Act 2002 (NSW), s 32(2)(b); Civil Liability Act 1936 (SA), s 33(2)(a)(ii); Wrongs Act 1958 (Vic), s 72(2)(b); Civil Liability Act 2002 (WA), s 5S(2)(b). The Tasmanian legislation does not contain this provision: see [2.290].

64

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendation 34. In King v Philcox (2015) 89 ALJR 582, French CJ, Kiefel and Gageler JJ at [19] noted the significance of the absence of any reference to aftermath in the legislation. 65

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.28.

66

A consultation draft of the Civil Liability Amendment (Personal Responsibility) Bill was released on 3 September 2002, and a revised version was introduced into the New South Wales Parliament on 23 October 2002: see New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 2002, 5764 (Bob Carr, Premier). The Act was assented to on 28 November 2002. A meeting of finance Ministers in November 2002 approved draft provisions based on the New South Wales legislation: see eg Western Australia, Parliamentary Debates, Legislative Assembly, 20 March 2003, 5693 (Mark McGowan, Parliamentary Secretary). Tasmania, Parliamentary Debates, House of Assembly, 24 June 2003 (Judy Jackson, Minister for Justice); South Australia, Parliamentary Debates, Legislative Council, 15 October 2003, 350 (Paul Holloway, Minister for Agriculture, Food and Fisheries).

364

Part III: Liability for Mental Harm

[10.180]

High Court made clear in Wicks v State Rail Authority (NSW),67 the sections do not prescribe any particular consequence as following from the presence or absence of this or any of the other listed circumstances. The High Court in this case was mainly concerned with the equivalent words in another section that limited the cases in which persons not in a close relationship with the person killed, injured or put in peril could recover damages.68 The court adopted an enlightened construction of the requirement that the plaintiff had to witness, at the scene, a person being killed, injured or put in peril, holding that two police officers who were called to the scene of a major train crash and proceeded to extract victims from broken carriages and move them to safety were not debarred from recovering damages because the victims continued to be in peril (whether of physical or mental harm) during the rescue process.69 Though the High Court was dealing with a different provision with a different purpose, the interpretation of the words presumably still holds good when considering the same words in the context of the circumstances relevant to determining when a duty of care exists.70 More generally, it is to be hoped that courts examining whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril as one of the circumstances relevant to the existence of a duty of care will take note of the process of development of the common law on aftermath and not concentrate rigidly on whether the plaintiff witnessed the accident. Californian case law reviewed at [10.430]–[10.440] shows how many steps had to be retraced when the Supreme Court reverted to a strict witnessing requirement. [10.180] So far, there are no signs that courts construing the Civil Liability Act duty provisions are doing anything different from what they would have done at common law. Cases where the plaintiff was present and saw the accident happen,71 or saw the aftermath at the scene of the accident72 or in hospital, or had to view the victim’s body in hospital73 or 67

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [23].

68

Civil Liability Act 2002 (NSW), s 30(2).

69

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [44]–[49]. Compare the more restrictive approach adopted at first instance sub nom Wicks v Railcorp [2007] NSWSC 1346 at [79]–[80] per Malpass Assoc J, and in the New South Wales Court of Appeal sub nom Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [74]–[77] per Beasley JA (Giles JA concurring), where it was held that the plaintiffs did not witness anyone being killed, injured or put in peril, but only the aftermath. See further [13.320]–[13.360].

70

Eg Civil Liability Act 2002 (NSW), s 32(2)(b).

71

Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 (wife saw husband reverse over edge of multi-storey car park when crash barrier disintegrated). 72

Kuehne v Warren Shire Council (2011) 180 LGERA 383 (brother’s claim) (reversed on other grounds: Warren Shire Council v Kuehne [2012] NSWCA 81); note also the claim of the victim’s partner in Goddard v Central Coast Health Network [2013] NSWSC 1932, disallowed due to inability to prove a recognised psychiatric illness.

73

Goddard v Central Coast Health Network [2013] NSWSC 1932 (mother’s claim).

[10.200]

10 Proximity of Time and Space

365

at the morgue,74 are reasonably straightforward. However, the lack of any proximity to the accident in space and time does not appear to cause problems, since there are also cases where plaintiffs were never present at the accident scene or the aftermath, but heard about what happened from someone else, and have no difficulty in presenting a case for recovery.75 In the most important case decided so far, King v Philcox,76 Nettle J at least appears to have accepted that Ryan Philcox, who drove past the scene of an accident on five occasions on the same evening without realising that his brother Scott was the victim, had a sufficient connection with the aftermath77 — though at common law, in the light of the High Court’s decision in Tame v New South Wales,78 this was no longer a vital consideration. However, the requirement of s 53 of the Civil Liability Act 1936 (SA) that in order to recover damages for mental harm a brother had to be “present at the scene of the accident when the accident occurred” barred his claim.

AFTERMATH: DIFFERENT APPROACHES [10.190] Outside Australia, most other common law jurisdictions have retained policy limitations based on the need for some proximity, in time and space, between secondary victim plaintiffs and the injury to the immediate victim that caused them to suffer psychiatric injury. In England, the leading decision on the limits of the aftermath principle, as on much else, is Alcock v Chief Constable of South Yorkshire Police,79 and an analysis of that case provides an introduction to the different kinds of aftermath problem experienced by the courts. While there is a broad measure of consistency, it is possible to see indications of differences of approach in different jurisdictions: the rather narrow approach evidenced by Alcock contrasts with the somewhat more liberal attitude displayed by the courts in Australia, Canada and elsewhere.

The Alcock case [10.200] Alcock v Chief Constable of South Yorkshire Police80 was the action brought by relatives of those killed or injured in the Hillsborough football disaster. The situation had some affinity with Rhodes v Canadian National Railway,81 dealt with at [10.130] — another case involving a mass disaster. Some of the Alcock plaintiffs were at the ground where the tragedy took place. Others went there to try and find out what had become of missing 74

Kuehne v Warren Shire Council (2011) 180 LGERA 383 (father’s claim) (reversed on other grounds: Warren Shire Council v Kuehne [2012] NSWCA 81). 75

See [11.420].

76

King v Philcox (2015) 89 ALJR 582.

77

King v Philcox (2015) 89 ALJR 582 at [90].

78

Tame v New South Wales (2002) 211 CLR 317.

79

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

80

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

81

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248: see [10.130].

366

Part III: Liability for Mental Harm

[10.210]

relatives, and in some cases visited the temporary mortuary that had been set up. Some went to local hospitals in search of loved ones. Others simply waited at home for news.82 In all these cases, it was simply the scale of the disaster that prevented immediate contact with the dead and injured. It was the strain of searching, and the agony of waiting and not knowing, that caused the psychiatric injury alleged to have been suffered by the plaintiffs. [10.210] As respects the plaintiffs who originally learnt of the sad happenings at Hillsborough on television or radio, there can be no suggestion that those who could do no more than wait for news of the fate of their loved ones in any real sense came to the aftermath of the accident. Others, however, travelled to Sheffield to search for friends and relatives. Robert Spearrit went there late on the evening of the day in question, and found his brother in the intensive care unit in hospital and his nephew’s body in the temporary mortuary at Hillsborough. Stephen Jones also went to the temporary mortuary, and found his parents there in tears because his brother was dead. Yet others, having undergone a period of waiting, were eventually informed of the death of their relative and had to go to the ground to identify the dead body. In addition, those plaintiffs who were at the ground had to go through the same process of searching and then waiting for news. One made an unsuccessful search among the dead bodies, and another had to identify a victim late that night. The prevailing law necessitated an attempt to apply the aftermath doctrine to these very varied circumstances. [10.220] Hidden J at first instance, because he was prepared to find that those plaintiffs who watched on simultaneous television were, in a sense, present at the match and were thus within the ambit of foreseeability and owed a duty of care,83 did not have to pronounce on this issue and in fact expressly refrained from doing so.84 [10.230] The English Court of Appeal, who took a different attitude to the television issue, were forced to examine this problem. It was not prepared to regard cases where plaintiffs had had the responsibility of identifying the body at the mortuary as part of the aftermath.85 This cast some doubt on the decision of Mantell J in Hevican v Ruane86 a few months earlier. In that case, the plaintiff was caused to suffer psychiatric injury by, inter alia, seeing the body of his dead son in the mortuary approximately three hours after he was killed along with other members of his school soccer team in a bus accident. Mantell J had held that this damage was recoverable even though it was stretching language to say 82

See Table 9.1 at [9.250] for details of the individual cases.

83

See [11.720]–[11.740].

84

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 344.

85

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 363 per Parker LJ, at 387 per Nolan LJ. 86

Hevican v Ruane [1991] 3 All ER 65.

[10.240]

10 Proximity of Time and Space

367

that the condition was caused by coming upon the immediate aftermath. For Parker LJ in the Hillsborough case, however, there would be liability only if the plaintiff had to identify the body as part of the immediate aftermath of the accident.87 According to the evidence, the earliest identification took place at about midnight, nearly nine hours after the start of the match and 10 or more after the gates were opened, and so this requirement was not met. Still less, it seems, was the English Court of Appeal prepared to countenance the process of searching and waiting as bringing plaintiffs within the aftermath. Even the aftermath at the hospital — the immediate issue in McLoughlin v O’Brian88 — was, it seems, to be interpreted narrowly. Parker LJ stressed that this was to be regarded as part of the catastrophe because none of the victims had been cleaned up or attended to.89 It seems that his Lordship may be suggesting that if victims have received preliminary treatment they can no longer be said to be within the aftermath of an accident, but while they remain “begrimed with dirt and oil”90 relatives or others shocked by viewing their condition are not excluded from a potential cause of action. This seems very difficult to justify. Moreover, where injuries are sustained not as a result of an external accident but through medical negligence, especially those that occur behind closed doors within a hospital, relatives are unlikely ever to view the victim before he or she has been properly attended to. The right to sue should not hinge on such extraneous considerations. There is at least one case that suggests that the aftermath at the hospital may be considerably longer than the hour or two suggested by McLoughlin v O’Brian. In Kralj v McGrath91 a baby was injured at birth through an obstetrician’s negligence. The mother recovered for shock damage sustained through watching over the baby for a period of eight weeks as it gradually weakened and died. The plaintiff in this case was actually present “at the scene” of the negligent event, but she was unaware of the injury to the child at the time because it was delivered by caesarean section. [10.240] The House of Lords in Alcock v Chief Constable of South Yorkshire Police92 also had to examine the aftermath problem. As a result of the approach adopted by their Lordships, the aftermath principle in England has almost certainly been confined within narrower limits than those allowed by the High Court in Jaensch v Coffey.93 Whereas the High Court in that case expressed reservations as to the correctness of Lord Wilberforce’s statements in McLoughlin v O’Brian94 that there must be 87

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 363.

88

McLoughlin v O’Brian [1983] 1 AC 410.

89

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 358.

90

McLoughlin v O’Brian [1983] 1 AC 410 at 417 per Lord Wilberforce.

91

Kralj v McGrath [1986] 1 All ER 54: see [22.300]–[22.320].

92

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

93

Jaensch v Coffey (1984) 155 CLR 549.

94

McLoughlin v O’Brian [1983] 1 AC 410 at 422.

368

Part III: Liability for Mental Harm

[10.250]

close proximity in space as well as in time, and that shock must come through sight or hearing of the event or its immediate aftermath,95 the House of Lords endorsed these limitations. Lord Ackner,96 for example, repeated the words of Lord Wilberforce97 and emphasised his statement that the facts in McLoughlin v O’Brian, where the plaintiff first viewed the primary victims about two hours after the accident, were on the margin of what the process of logical progression from case to case would allow. Similarly, Lord Oliver of Aylmerton expressed the view that McLoughlin v O’Brian represented an extension not “wholly free from difficulty”,98 and his Lordship may arguably have restricted the aftermath doctrine still further. He stressed the need for the plaintiff to be present at the scene or in the “more or less immediate vicinity”, and for a “close temporal connection” between the event and the plaintiff’s perception of it99 — criteria that he did not define. Later in his judgment he said: No case prior to the hearing before Hidden J from which these appeals arise has countenanced an award of damages for injuries suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant’s breach of duty to the primary victim nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time. The necessary element of proximity between plaintiff and defendant is furnished, at least in part, by both physical and temporal proximity and also by the sudden and direct visual impression on the plaintiff’s mind of actually witnessing the event or its immediate aftermath. … In my opinion, the necessary proximity cannot be said to exist where the elements of immediacy, closeness of time and space, and direct visual or aural perception are absent.100

[10.250] The specific question of the plaintiffs who had to identify the dead body of a relative was dealt with by Lord Ackner and Lord Jauncey of Tullichettle. Lord Ackner said that it was clear from McLoughlin v O’Brian101 that the subsequent identification of a dead body could be part of the immediate aftermath, but the earliest identification in the instant case took place some eight hours after the accident and this could not be described as part of the immediate aftermath.102 But to focus on hours and minutes in this type of situation is fallacious. It cannot be asserted that the trauma of viewing a dead child is any less horrific after eight or nine hours than two. Anguish of this gravity does not dissipate as rapidly as this. Consider, for example, a parent on holiday overseas who receives a phone call that his or her son has been killed and returns on the next 95

See [10.110].

96

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 404–405.

97

McLoughlin v O’Brian [1983] 1 AC 410 at 419.

98

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

99

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411.

100

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 416–417.

101

McLoughlin v O’Brian [1983] 1 AC 410.

102

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 404–405.

[10.260]

10 Proximity of Time and Space

369

available flight to view the body a week later. Providing all the other prerequisites of liability are satisfied, it should be no more difficult to allow recovery than if the parent had been able to call at the mortuary within a couple of hours of the death. Lord Jauncey, having labelled attempts to define “the immediate aftermath” as a “fruitless exercise”, took an even narrower view of the identification issue: In these appeals the visits to the mortuary were made no earlier than nine hours after the disaster and were made not for the purpose of rescuing or giving comfort to the victim but purely for the purpose of identification. This seems to me to be a very different situation from that in which a relative goes within a short time after an accident to rescue or comfort a victim. I consider that not only the purpose of the visits to the mortuary but also the times at which they were made take them outside the immediate aftermath of this disaster.103

It seems that in addition to concentrating on the time lapse between death and viewing a body his Lordship was attempting to introduce a further restriction on recovery by suggesting that viewing the body purely for purposes of identification can never be part of the aftermath. The implication seems to be that courts consider the viewing of a body as somehow less emotionally disturbing than seeing an injured person who is still alive, albeit possibly seriously injured. In addition, his Lordship overlooks the distinction between those who go to a mortuary knowing for a fact that a loved one has died to go through the formality of identifying the body, and those who have the distressing task of searching through rows of corpses not knowing whether the one they seek is alive but hoping and praying that they will not find that person’s body. Clearly this latter exercise, whatever its outcome, is every bit as likely to cause psychiatric harm as viewing the less serious after-effects of physical injury. [10.260] Interestingly, some of their Lordships even viewed the cases of the four plaintiffs who were in the West Stand and saw the events with their own eyes as cases raising aftermath issues. Lord Keith of Kinkel and Lord Jauncey accepted these cases as falling into the presence category,104 but Lord Oliver said: In the case of both Brian Harrison and Robert Alcock, although both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual. In my judgment, the necessary proximity was lacking in their cases too.105

It seems that His Lordship was suggesting a return on policy grounds to the strict requirements of presence and perception as originally outlined 103

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 424.

104

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 404 per Lord Keith of Kinkel, at 421, 424 per Lord Jauncey of Tullichettle. 105

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

370

Part III: Liability for Mental Harm

[10.270]

in Hambrook v Stokes Bros.106 Lord Ackner’s view of these cases is difficult to ascertain. He said that “[o]nly two of the plaintiffs before us were at the ground”, but then discussed the case of Robert Alcock as turning on the proximity of identification in time and space.107 Later, however, he admitted that Alcock was present at the ground and suggested that his case turned on the point of relationship to the accident victim.108 [10.270] Another interesting problem in the Hillsborough case concerns William Pemberton, the plaintiff who had travelled with his son to Hillsborough by coach, intending to stay in the coach while it was parked at the ground during the match. As a result of what he was told about the chaos unfolding inside, he watched the live coverage on the coach television. He later searched for his son and eventually identified his body in the mortuary very late in the evening. Hidden J held that he had a cause of action on the basis that he was within the proximity of time and space.109 It is noteworthy that he was the one plaintiff against whom no appeal was taken,110 but it seems most unlikely that the English Court of Appeal or the House of Lords would have agreed with Hidden J’s view of this claim for relief.

Some particular scenarios [10.280] More than two decades since the House of Lords decision in Alcock v Chief Constable of South Yorkshire Police,111 courts in various jurisdictions continue to grapple with the limits of the aftermath doctrine.112 The problems can be illustrated by an analysis of the various situations in which aftermath issues arise. 106

Hambrook v Stokes Bros [1925] 1 KB 141.

107

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 404–405.

108

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 405–406. The approach of the House of Lords to the situation of the plaintiffs present in the ground should be compared with McCarthy v Chief Constable of South Yorkshire Police (unreported, Eng QBD, 11 December 1996), where the plaintiff was also in another part of the ground, and watched as the tragedy unfolded in the Leppings Lane terraces, knowing two of his half-brothers were there. Soon afterwards, he met a friend on the pitch, and was told that his half-brother Joseph was dead. Sachs J awarded damages to the plaintiff for his resulting post-traumatic stress disorder. He had no problem in holding that the plaintiff was sufficiently proximate to the events in question. There was a “seamless series of events”, and for this reason the case was distinguishable from those of Brian Harrison and Robert Alcock. It is suggested that the decision was right, but it is hard to see how it can be satisfactorily distinguished from the other cases. The main difference was that McCarthy found out very quickly what had happened to his half-brother, whereas Harrison and Alcock had to endure a much longer period of uncertainty. Sachs J was of course obliged to reconcile his decision with that of the House of Lords. It is submitted that it is the decisions in the cases of Harrison and Alcock that are out of line. 109

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 339.

110

On this issue, note the comments of Judge LJ (dissenting) in Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 287.

111 112

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

One Canadian judge has voiced his dissatisfaction: in Harvey v Porter (1998) 170 Nfld & PEIR 333 at [24] Hickman CJ said: “[T]he act of reckless driving of a motor vehicle which is

[10.290]

10 Proximity of Time and Space

371

[10.290] Dealing first with the situation in which relatives or loved ones arrive at the accident scene within a short time of the accident, see the injuries or the victim’s body and suffer psychiatric injury, decisions from Australia,113 Canada,114 and elsewhere115 have almost always held that the plaintiff will be within the aftermath principle and will be able to recover damages116 — at least if there is still something to see.117 The

so imminently dangerous can reasonably be expected to inflict nervous shock and result in damages upon the next-of-kin of a victim even though such next-of-kin did not witness the actual impact or view the scene of the accident shortly thereafter.” 113 See eg Hartmann v Nominal Defendant (unreported, NSWSC, No CLD 15634 of 1985, 20 February 1987); Scrase v Jarvis (1998) Aust Torts Rep 81-471 (daughter killed in bus accident, parents on scene within minutes and saw body in road); see also Maiorana v Zammit (unreported, NSWCA, No 110 of 1987, 29 February 1988) (plaintiff on scene of accident to son within minutes and so would have satisfied aftermath requirement at common law, but the case may have been decided under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) under which in the case of a parent, relationship is the sole requirement); Bigeni v Finch (unreported, NSWSC, No 16165 of 1992, 8 April 1998) (mother inside house, on scene within a minute or two, but Motor Accidents Act 1988 (NSW), s 77 allowed award of damages to parent whether or not present at scene); compare Spence v Biscotti (1999) Aust Torts Rep 81-513; Hoinville-Wiggins v Connelly [1999] NSWCA 263, both cases involving teachers who went to the aftermath of an accident: in each case there was no liability because the Motor Accidents Act 1988 (NSW), s 77 required plaintiffs other than close relatives to be present when the accident happened. In Pham v Lawson (1997) 68 SASR 124 the plaintiff, told by neighbours that the police had been trying to contact her to tell her about an accident to her daughter, went via the site of the accident on her way to the hospital: it was held that her right to recover did not depend on coming within the aftermath principle: see [11.280]–[11.290]. 114

See eg Rayner Estate v Patterson [1982] OJ No 450 (husband trapped under wheels of bus, wife on scene within minutes); Howes v Crosby (1984) 6 DLR (4th) 698 (grandparents summoned to accident scene from their house nearby); McCartney v Andrews [1987] OJ No 1092 (wife had left car and walked to where they proposed to plant trees, heard crash and returned to find husband lying dead on road); Sutton v Pelley [1993] OJ No 2429 (daughter killed and wife injured in accident, husband arrived on scene soon afterwards); Ashley Estate v Goodman [1994] OJ No 1672 (family members died in accident, other family members in another vehicle arrived on scene within minutes); Stegemann v Pasemko 2007 BCSC 1062 (when wife failed to call for lift home from ski hill, husband drove towards ski hill and came across scene of accident); Ulmer v Weidmann 2011 BCSC 130 (wife summoned by telephone, arrived at scene of accident within minutes). Compare Ring v Bourgeois [1998] BCJ No 2576 (plaintiff rode by accident scene but did not discover that his close friend was the victim). 115

See eg Maijet v Santam Ltd [1997] 4 All SA 555 (C) (plaintiff told one of her children had been injured in accident, ran to scene and found body of nine-year-old son lying in road). Note also McCoy v Keating [2011] IEHC 260 (grandparents summoned by phone to scene of accident; request for extension of time, liability seemingly not in issue).

116 117

See also the cases discussed at [10.70]–[10.80].

See eg Anderson v Smith (1990) 101 FLR 34, where the plaintiff arrived at the pool in which her daughter had almost drowned to find it empty, the daughter having been taken to hospital; Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748 (parents rushed to school after told that daughter was ill after drinking contaminated soft drink, but by the time they arrived the school had handled the crisis and “what the Vanek parents saw and experienced was a fairly ordinary situation”).

372

Part III: Liability for Mental Harm

[10.300]

same will apply where the primary victim comes to the plaintiff.118 English decisions to the same effect include Vernon v Bosley (No 1),119 where a father was called to the scene of an accident in which the car containing his children had gone off the road and into a river, and witnessed an unsuccessful rescue attempt,120 and Greatorex v Greatorex,121 where the plaintiff was a fire officer who was summoned to the scene of an accident to find that his son was the accident victim. In the former case the plaintiff was awarded damages; in the latter case, the aftermath requirement was satisfied but Cazalet J found against the plaintiff on other grounds.122 His Lordship noted that the facts were much stronger than McLoughlin v O’Brian,123 both as regards timing and location, in that Mr Greatorex was on the scene much more quickly than the hour or so that it took Mrs McLoughlin to get to the hospital:124 convincing evidence that English courts will rigidly apply the limitations of time and space laid down in the leading cases.125 [10.300] McLoughlin v O’Brian126 and Jaensch v Coffey127 established that relatives who go to the hospital instead of the accident scene are also within the aftermath. This must be correct — as Brennan J has said, liability “cannot rationally be made to depend upon a race between a spouse and an ambulance”.128 However, it seems that the English courts will impose very narrow limits to the aftermath principle in this situation. Mrs McLoughlin was at the hospital within about two hours of the accident and saw her husband and children before they had been 118

Bain v Kings & Co Ltd 1973 SLT (Notes) 8 is illustrative. There a young boy covered in tar after an explosion, who “resembled a black bundle”, ran home to his mother who suffered a nervous reaction. Instead of the shock victim “coming to the aftermath” the aftermath came to the shock victim. Note also Cote v Litawa 71 A 2d 792 (NH 1950) where the defendant, whose car struck a little girl, carried the child to her house and handed her to her mother. Recovery was denied because, adopting the principle of Palsgraf v Long Island Railroad Co 162 NE 99 (NY 1928), no duty to the mother had been established. 119

Vernon v Bosley (No 1) [1997] 1 All ER 577.

120

See, however, Vernon v Bosley (No 2) [1997] 1 All ER 614.

121

Greatorex v Greatorex [2000] 1 WLR 1970.

122

See [15.170].

123

McLoughlin v O’Brian [1983] 1 AC 410.

124

Greatorex v Greatorex [2000] 1 WLR 1970 at 1976–1977.

125

Note that in Duncan v British Coal Corporation [1997] 1 All ER 540, at the time when one of the employees for whom the plaintiff was responsible was crushed to death at the coal face, the plaintiff was 275 metres away and arrived on the scene within four minutes, but there was no suggestion that he might be within the aftermath, even though in Frost v Chief Constable of South Yorkshire Police [1998] QB 254, decided together with this case, the English Court of Appeal recognised that employers owed their employees a duty to take reasonable care not to cause psychiatric injury — a decision later overturned by the House of Lords sub nom White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 126

McLoughlin v O’Brian [1983] 1 AC 410.

127

Jaensch v Coffey (1984) 155 CLR 549.

128

Jaensch v Coffey (1984) 155 CLR 549 at 578.

[10.310]

10 Proximity of Time and Space

373

attended to. Alcock v Chief Constable of South Yorkshire Police129 indicated that a strict stopwatch approach will be adopted: none of the plaintiffs in that case who journeyed from Liverpool to various hospitals in and around Sheffield arrived soon enough to be within the immediate aftermath of the accident, because they were all well outside the time limit. Another seemingly harsh decision is Tan v East London and City Health Authority:130 Mr Tan, summoned to the hospital because his wife was having an elective caesarean section and problems occurred, arrived one and a half hours later because that was how long it took him to journey from his home across London to the hospital, and yet it was held that it was too late — even though the hospital knew he would be coming. In addition to the time factor, the nature of the involvement at the hospital is relevant. In Taylorson v Shieldness Produce Ltd,131 the deceased’s parents only saw him briefly in the ambulance and on a trolley being rushed to the intensive care unit, and did not see him again until about 24 hours later, when he was on a life support machine. It was held that their connection with the shocking events was insufficiently immediate, and to grant them recovery for psychiatric injury would be an extension of the principles laid down in Alcock.132 [10.310] Even if the first instance decision in Spence v Percy133 is disregarded, it seems that Australian courts have been prepared to take a more expansive attitude in such cases. In Jaensch v Coffey134 itself, it was several hours before Mrs Coffey saw her husband in hospital, and in Orman v Harrington135 the plaintiff did not visit her daughter in hospital until the next day but still recovered damages.136 A clear case on the other side of the line is Chiaverini v Hockey,137 which held that a wife who saw her husband delivered at home on crutches and wearing a surgical collar following out-patient treatment at a hospital could not claim that this was 129

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

130

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389.

131

Taylorson v Shieldness Produce Ltd [1994] PIQR P329.

132

For an earlier English case where a more liberal approach was taken see Kralj v McGrath [1986] 1 All ER 54, discussed at [10.230]. 133

Spence v Percy (1990) Aust Torts Rep 81-039.

134

Jaensch v Coffey (1984) 155 CLR 549.

135

Orman v Harrington (unreported, SASC, No 296 of 1990, 30 April 1990).

136

There was no dispute about proximity at the trial. Note also Maxwell v Mather (unreported, NSWSC, No 14790 of 1983, 16 December 1988) where a husband and wife were told that their three daughters had been injured in an accident, and when they arrived at the hospital there was a delay before they could see their daughters because their condition was being assessed, though during this time they heard them screaming: damages were awarded for psychiatric injury without discussion of the aftermath issue, probably under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) where this issue is not relevant, although there is no mention of the statute. In Stark v FAI General Insurance Co Ltd (unreported, Qld SC, W No 840 of 1998, 1 May 1999) the plaintiff went to hospital and saw his daughters’ injuries: he was refused an extension of time to sue, but there appears to have been no question about him being within the aftermath. 137

Chiaverini v Hockey (1993) Aust Torts Rep 81-223.

374

Part III: Liability for Mental Harm

[10.320]

part of the immediate aftermath of the accident.138 Not so clear is Buljabasic v Ah Lam,139 where a wife and daughter claimed to have suffered psychiatric injury on seeing the accident victim lying in a hospital bed some hours after the accident. Priestley JA in an ex tempore judgment appeared to be mainly concerned to hold that there was no sudden shock, and did not clearly rule whether or not this was part of the immediate aftermath, suggesting however that the aftermath could not be longer than a day or two. Likewise, Canadian courts readily accept that relatives who view their loved ones’ injuries in hospital satisfy the aftermath requirement.140 If most of the cases are relatively straightforward, Khaze v Routledge141 is perhaps a little more revealing. Having been told that her daughter had been injured in a motor vehicle accident, the plaintiff attended at the hospital. She was advised that her daughter had renal failure, but it appears that she did not see her until later when she was in a coma. White J shortly accepted that she came within the aftermath principles of McLoughlin v O’Brian142 and would be able to recover damages at common law.143 [10.320] The Irish courts take a very positive attitude to the aftermath problem, as shown by two leading Irish cases that have been dealt with in detail in Chapter 3.144 The first was the decision of Denham J in the High Court in Mullally v Bus Éireann,145 where the plaintiff’s husband and three sons were involved in a major bus accident, and the plaintiff was telephoned and asked to come at once. The situation was complicated by the fact that two of her boys were in one hospital and her husband in 138

There are even cases where the aftermath requirement appears to have been completely disregarded. See Mellor v Moran (1985) 2 MVR 461, in which it appears that the plaintiff was not present at any time and yet was awarded damages: Vasta J plainly overlooked the requirements of Jaensch v Coffey (1984) 155 CLR 549. Again, in Swan v Williams (Demolition) Ltd (1987) 9 NSWLR 172, the plaintiff was not present at any time and yet liability was admitted. Note also Fullowka v Royal Oak [2004] NWTSC 66, where the plaintiff came on the scene of a fatal blast shortly after it happened, and saw the body parts of co-workers, including one who was a close friend. Damages were awarded on the basis that psychiatric injury was foreseeable, without discussion of issues of aftermath or proximity of relationship. (For further proceedings, see [9.210].)

139

Buljabasic v Ah Lam (unreported, NSWCA, CA No 40417 of 1996, 3 September 1997).

140

See eg Cox v Fleming (1993) 13 CCLT (2d) 305, appeal dismissed in Cox v Fleming (1995) 15 BCLR (3d) 201 (parents permitted to see dying son in emergency room); Dube (Litigation guardian of) v Penlon Ltd (1994) 21 CCLT (2d) 268 (parents allowed to see son shortly after incident in operating theatre). Compare Ring v Bourgeois [1998] BCJ No 2576 where the plaintiff went to hospital and was told his girlfriend had been injured, and identified her by her watch, but did not see her before she died: not being at the immediate aftermath and lack of the requisite close relationship combined to deny recovery. 141

Khaze v Routledge [1996] OJ No 1855.

142

McLoughlin v O’Brian [1983] 1 AC 410.

143

The decision involved s 266 of the Insurance Act, RSO 1990, c I-8, part of the Ontario no-fault motor accident compensation scheme, which replaced the right to sue for damages at common law: see [13.630]. 144

See [3.660]–[3.670].

145

Mullally v Bus Éireann [1992] ILRM 722.

[10.330]

10 Proximity of Time and Space

375

another. When she reached the hospital to which her sons had been taken, she beheld a scene that “looked like a hospital out of a war film”. The second case was the decision of the Supreme Court in Kelly v Hennessy.146 The plaintiff’s husband and their two daughters were severely injured in an accident. The plaintiff was told of the accident by telephone and was taken to hospital by car. On hearing of the accident she immediately went into shock and was ill on the way to the hospital, but her condition was gravely aggravated on seeing the state of her family. In each case, it was held that the plaintiff had satisfied the aftermath requirements. In the first case, Denham J said that the case was within the parameters set by McLoughlin v O’Brian.147 That the time lapse between accident and perception of aftermath was twice that taken by Mrs McLoughlin to reach and view her family was inconsequential. There was no suggestion that the case was at the margin of recovery: Denham J simply adopted a commonsense attitude to the situation rather than being preoccupied with the problem of limiting liability. In the second case, Lavan J at first instance accepted the decision of Denham J as strongly persuasive and on appeal the Supreme Court accepted that it was appropriate to award damages where the plaintiff came upon the immediate aftermath of an accident, either at the scene or in hospital, without any detailed investigation into the time at which the plaintiff arrived at the hospital, or what she saw there. [10.330] South African courts have adopted a similarly encouraging approach to the aftermath question. As in Australia, the abolition of the direct perception requirement means that physical proximity to the initial traumatic occurrence is no longer necessary in every case; however, the fact that a plaintiff has come into the presence of the accident victim is still a relevant consideration in many cases. One particularly good recent example is Ng Pan Hing v Road Accident Fund,148 where the deceased, who lived in Canada, and her five sisters had come to Cape Town to celebrate their brother’s birthday, and all were involved in a serious accident. The deceased died of her injuries six days later in hospital. Her husband and her daughter flew from Canada to be at her bedside and were able to spend a little time with her before she died. The daughter claimed damages for psychiatric injury. Binns-Ward J made it clear that even though she had learnt what had happened before she arrived in Cape Town she was not a “hearsay victim”,149 but an ordinary secondary victim who had come to be with her mother at the hospital and therefore had personal experience of the effect of her injuries: “The trauma of hearing that her mother had been grievously injured in a collision was followed by a period of direct exposure to her mother’s final suffering and 146

Kelly v Hennessy [1995] 3 IR 253.

147

McLoughlin v O’Brian [1983] 1 AC 410.

148

Ng Pan Hing v Road Accident Fund [2014] 2 All SA 186 (WCC).

149

Someone who suffered psychiatric injury as a result of the effects of hearing about an accident to a close relative, according to the terminology used in Barnard v Santam Bpk 1999 (1) SA 202 (SCA): see [3.550].

376

Part III: Liability for Mental Harm

[10.340]

death.”150 It will be readily apparent that the need to travel from Western Ontario to Cape Town meant that many hours elapsed before she arrived at the hospital: however, unlike the approach now adopted by English courts, which require presence at the aftermath within an hour or two, the time taken in this case clearly presented no problem. If it is foreseeable that relatives will come to the hospital to be at the bedside of an injured family member, then it is surely foreseeable that on occasions they may have to travel long distances to do so. What matters is that they get there as quickly as they can. [10.340] As to the question of identification of a dead body, the English courts have again taken a rather narrow attitude. As already noted, the House of Lords in Alcock v Chief Constable of South Yorkshire Police151 held that, by analogy with McLoughlin v O’Brian,152 identification had to be part of the immediate aftermath if recovery was to be allowed, and Lord Jauncey of Tullichettle would confine the law still further, opining that if the relative was merely identifying a dead body, rather than visiting the victim to provide comfort and care, this of itself would take him or her outside the immediate aftermath.153 Subsequent English decisions confirm the generally narrow approach of English law. For example, in Taylor v Somerset Health Authority154 identifying her husband’s body in the mortuary did not bring the plaintiff within the aftermath of the accident. In Palmer v Tees Health Authority155 the plaintiff was prevented from seeing the body of her murdered daughter Rosie when it was discovered, and did not see it until sometime later, three days after her daughter had been abducted. This was clearly outside the immediate aftermath, and the fact that she had been prevented from viewing the body earlier made no difference.156 [10.350] Australian courts have generally held that seeing the body is not regarded as part of the immediate aftermath,157 but two decisions on

150

Ng Pan Hing v Road Accident Fund [2014] 2 All SA 186 (WCC) at [55].

151

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

152

McLoughlin v O’Brian [1983] 1 AC 410.

153

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 424: see [10.250].

154

Taylor v Somerset Health Authority (1993) 16 BMLR 63.

155

Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447, affirmed in Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351. 156

Note, however, Mellor v Sheffield Teaching Hospital NHS Trust [2004] EWHC 780 (QB) where the plaintiff had summoned an ambulance but his wife died following cardiac arrest on the way to hospital, and the husband was profoundly shocked when he saw her body with her tongue sticking out of her mouth. Gross J was prepared to award damages on the basis that the husband had suffered more than ordinary grief. No psychiatric injury cases were discussed.

157

See Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992) (wife advised not to see body of dead husband because of his extensive injuries, recovered

[10.350]

10 Proximity of Time and Space

377

deaths in custody suggest a slightly more encouraging view.158 In Quayle v New South Wales,159 after Mark Quayle hanged himself in a police cell, his family were informed and later the same day, as his brothers were walking in the street, a police van drew up and they were asked to identify the body. Gregory declined to do so, but John complied with this request. Several family members were allowed to recover for psychiatric injury,160 but in the case of John and probably of Gregory these events — not least, the way in which they were confronted with this task in the street, rather than being asked to go to the mortuary — strengthened their claim. In Sloss v New South Wales,161 the plaintiff also succeeded in recovering damages for psychiatric injury resulting from being told that her son had been murdered in prison and having to identify his body. It is submitted that it is not only in situations such as these that seeing the dead body of a relative should be regarded as forming part of the aftermath. In Cipri v Famelli162 the plaintiffs’ daughter had been battered to death with an axe by her husband; the plaintiffs were summoned by telephone to their daughter’s house and informed of her death, but it was some hours before they were allowed to enter, and only the husband saw the body, lying in a pool of blood with the head smashed beyond recognition. He and his wife both viewed the body later at a funeral parlour, by which time an artificial face had been substituted for the head. As parents, they did not have to prove that they had been present at the aftermath in order to claim damages for psychiatric injury under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW);163 but in such circumstances, the husband, at least, would surely be regarded as present at the immediate aftermath of the accident: the fact that he was viewing damages under Law Reform (Miscellaneous Provisions) Act 1955 (ACT) but not at common law). Note also Pippos v Craig [1993] 1 VR 603 at 611 per Southwell J (action for psychiatric injury caused by seeing deceased father’s body in funeral parlour, but new trial ordered on other issues). 158 Note also Butcher v Motor Accidents Board (1984) Victorian Motor Accidents Cases 72-026 (CCH) where the plaintiff suffered psychiatric illness after seeing the body of her dead son in hospital. She had already been told of his death, and the body had been identified by the doctor for whom she worked as a secretary. It was held that compensation was recoverable. However, the issue in dispute was limited to whether the appellant was a person who sustained injuries arising out of the use of a motor car under the Motor Accidents Act 1973 (Vic). In the words of the Motor Accidents Tribunal, “[t]o say that the personal injury was not caused by the driving of a motor vehicle but by being told about an accident and visiting a child in the hospital, etc, is to introduce subtleties rather than apply broad and practical conceptions”. The Tribunal refused to follow the earlier case of Reid v Motor Accidents Board (1982) Victorian Motor Accidents Cases 74-135 (CCH) (mother told that child severely injured, went to hospital, saw him on life support system; no recovery for depressive illness on ground that the injuries did not arise out of the use of a motor vehicle, but were caused by her being told of the accident and subsequently seeing her son). 159

Quayle v New South Wales (1995) Aust Torts Rep 81-367, noted by NJ Mullany (1996) 4 Tort L Rev 96.

160

See [11.240].

161

Sloss v New South Wales [1999] NSWSC 995.

162

Cipri v Famelli (unreported, NSWSC, No 13802 of 1989, 16 December 1993).

163

There is no mention of the Act, but presumably the claim was made under it.

378

Part III: Liability for Mental Harm

[10.360]

his daughter’s dead body rather than seeing her lying injured would make no difference.164 The position is broadly the same in Canada. While in a number of cases it has been held that viewing the body of the deceased in hospital does not bring the plaintiff within the aftermath of the accident,165 there are some circumstances where the result will be different, as in Szeliga Estate v Vanderheide166 where two elderly sisters were passengers in the defendant’s vehicle, and an accident occurred in which one of them was killed and the other severely injured. A third sister who was not involved was summoned to the hospital to identify the mutilated body of her dead sister, and suffered post-traumatic stress disorder as a result. McNeely J held that “wherever the line of limitation should be drawn, if indeed it need be drawn at all, Mrs Samila is entitled to recover that part of her damages which can be found to have been caused by her viewing her sister’s body and the nervous shock and resulting consequences”. [10.360] It has already been noted that the aftermath principle is not well suited to accommodating the distressing cases where the psychiatric illness suffered by the relative of an accident victim is due principally to uncertainty about that person’s fate — maybe because of the scale of the disaster, or perhaps because for other reasons the outcome remains uncertain for some hours, or perhaps days or weeks. Indeed, it was just such a situation — the case of James Annetts and his companion lost in the desert in outback Western Australia — that caused the High Court of Australia in Tame v New South Wales167 to abandon the need for proximity of time and space and direct perception. Cases such as Alcock v Chief Constable of South Yorkshire Police168 and Rhodes v Canadian National Railway169 are potent illustrations of the way in which such situations can impact on those who fear for the safety of their loved ones: it is arguable that situations that involve not knowing and having to endure the anxious wait are more likely to have adverse psychiatric consequences than those where what has happened is immediately apparent. The English authorities show that having to rely on the aftermath rules is unlikely to do justice in such a situation. In Palmer v Tees Health 164

See also Mills v Central Sydney Area Health Service [2002] NSWSC 728 where the plaintiff was required to attend a morgue to identify the remains of her deceased son, which consisted only of a severed head, and suffered psychiatric injury. Master Harrison was of the view that a duty of care would be owed, but this was based not so much on aftermath as on Australian High Court authority (Tame v New South Wales (2002) 211 CLR 317) recognising a duty of care to absent plaintiffs told of the death of a loved one. Other aspects of this case are noted by N Witzleb (2003) 11 Tort L Rev 135.

165

See eg Talibi v Seabrook (1995) 177 AR 299; Devji v Burnaby (District) (1999) 180 DLR (4th)

205. 166

Szeliga Estate v Vanderheide [1992] OJ No 2856.

167

Tame v New South Wales (2002) 211 CLR 317.

168

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

169

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248: see [10.130].

[10.370]

10 Proximity of Time and Space

379

Authority,170 four-year-old Rosie Palmer was abducted from her home, sexually abused, murdered and her body mutilated. Her mother claimed that she knew within 15 minutes of discovering Rosie was missing that something was very wrong, but she had to endure the agony of not knowing what had happened until her daughter’s body was eventually discovered, and even then she was not allowed to see it because of its condition, and it was only three days after the abduction that she was eventually allowed to see the body in the mortuary. She sued the defendant authority, who had responsibility for the care of the person responsible for this crime, for negligence causing her to suffer posttraumatic stress disorder and pathological grief reaction. Gage J and the English Court of Appeal both held that the proximity requirements were not satisfied in that she was not present to view the immediate aftermath of what had happened. In Tranmore v TE Scudder Ltd,171 a building on which the defendant demolition contractors were working collapsed, and the plaintiff’s son, who was one of the defendant’s employees, was buried under rubble. His father was told of the accident 90 minutes later when he returned home from work, and was on the scene within half an hour. The emergency services were there trying to clear the rubble; it seemed to the plaintiff that they were not doing sufficient, but he was prevented from entering the site and was only allowed to enter two hours later, when it had become clear that his son was dead. As a result, the father suffered psychiatric injury. It was argued on his behalf that it was not known whether his son was alive or dead, and that he was witnessing a catastrophe that was still continuing, but the English Court of Appeal refused to take this uncertainty element into account, holding that under the Alcock requirements he was not present at the immediate aftermath within the two hours or thereabouts from the time the accident happened that represented the limit of what the law allowed. Roch LJ said: In this case the plaintiff was not present at the scene of the accident nor was he more or less in the immediate vicinity. He did not witness the death of or the extreme danger to his son. Nor is this a case where the plaintiff has with his own eyes witnessed the injury to and the suffering of the primary victim with whom he has a close relationship of affection. Two hours passed between the collapse of the building and the plaintiff’s arrival at the site. The combination of these features in my judgment, deprives this case of the immediacy required before the necessary proximity can be said to exist. This case is close to but, in my opinion, just beyond the lines drawn by the decided cases.172

[10.370] In some cases, however, there has been a more favourable outcome. In Calascione v Dixon,173 the plaintiff came upon the scene of the accident in which her son was injured as she returned home from 170

Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447, on appeal Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351.

171

Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895, noted by NJ Mullany (1999) 115 LQR

30. 172

Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895 at [15]. See also at [36] per Brooke LJ.

173

Calascione v Dixon (1993) 19 BMLR 97.

380

Part III: Liability for Mental Harm

[10.370]

shopping. However, she did not realise that her son was involved, even though she asked police at the scene whether the victim had been riding a moped, as her son did, and received a negative answer. She remained uneasy, drove to her son’s home, was taken by police officers to the hospital, and after a period of waiting was informed that her son was dead. She asked to see him, and was distressed at the state of his body. She was awarded damages for post-traumatic stress disorder (but not for her pathological grief disorder, which was held to be attributable to later events). Neill LJ held that the facts fell within the limits laid down by the House of Lords in McLoughlin v O’Brian.174 But for her chance appearance at the scene of the accident, it is not clear that she would have satisfied the aftermath requirements. In Scotland, it appeared that the Court of Session was also prepared to adopt an enlightened approach in Young v MacVean.175 The pursuer was due to meet her son at the gym, but on the way there saw the scene of a bad accident. On arrival at the gym, not finding her son, she asked the staff to make a tannoy announcement. She heard that a 20-year-old boy had been injured, and then found missed calls from her daughter on her phone. She began to wonder whether her son might have been the accident victim, and was eventually approached by the police who asked whether her son had a tattoo. When she said he did, she was told he was dead. Lady Rae in the Outer House of the Court of Session was able to hold that the control mechanisms for secondary victim cases were satisfied.176 However, on appeal, the Inner House allowed the defender’s reclaiming motion and held that the pursuer was unable to recover as a secondary victim.177 Influenced by the recent decision of the English Court of Appeal in Taylor v A Novo (UK) Ltd178 and Lord Dyson MR’s emphasis on exact compliance with the control mechanisms, the court said that for a psychiatrically injured person such as the pursuer to qualify as a secondary victim in respect of the death of a primary victim, she must have been present more or less at the time and place of the event which caused the death and her injury must have been caused by the sudden perception though her own senses of the primary victim’s fate.179 In this case, this meant coming upon the aftermath of the accident with full knowledge of her son’s involvement; learning retrospectively of that involvement was not enough. This case confirms that the aftermath principle, as interpreted in the United Kingdom, cannot accommodate cases of mounting anxiety over an extended period which are just as likely to result in psychiatric harm as those where the plaintiff suddenly comes upon the aftermath of the accident. 174

McLoughlin v O’Brian [1983] 1 AC 410.

175

Young v MacVean [2014] CSOH 133.

176

She referred to the analysis of the English Court of Appeal in Taylor v A Novo (UK) Ltd [2014] QB 150. On the exacting nature of the Court of Appeal’s approach, see [3.300]–[3.320], [10.400].

177

Young v MacVean [2015] CSIH 70.

178

Taylor v A Novo (UK) Ltd [2014] QB 150.

179

Young v MacVean [2015] CSIH 70 at [13] per Lord Brodie.

[10.390]

10 Proximity of Time and Space

381

[10.380] The courts have also had to deal with the limits of the aftermath principle in the context of medical negligence cases, a situation reviewed in detail at [22.150]–[22.750].180 In the earlier cases, an orthodox approach was generally adopted: the courts asked questions such as how long it was before the plaintiff viewed the results of the “accident”,181 and in the context of mishaps during the birth process generally assumed that the mother was a secondary rather than a primary victim.182 For a while, the English courts displayed an encouraging willingness to see the medical negligence situation as special. It appeared that they were prepared to accept that a medical emergency that may last for some hours or days could be one seamless event rather than a series of isolated happenings,183 and that in the birth mishap situation not only the mother but also in some situations the father could be viewed as a primary victim.184 [10.390] Galli-Atkinson v Seghal185 raised the hope that English judges might be prepared to take a more liberal attitude to the aftermath problem — it appeared that the medical negligence cases had provided the impetus for a more general recognition that an event and its aftermath could be made up of a number of components, provided the happenings alleged to constitute the aftermath retained sufficient proximity to the event.186 Mrs Galli-Atkinson’s daughter was killed in a road accident. The claimant learnt of the accident and attended the scene about an hour afterwards, but was prevented by police officers from crossing the tape cordoning off the scene, and one officer told her that her daughter was dead. She became hysterical and collapsed. There was no evidence that she saw anything of the scene apart from the cordoning tapes. Subsequently, she went to the mortuary and saw her daughter’s body, including some of her disfiguring injuries, although the worst injuries were hidden by a blanket. This again produced an extreme reaction on the claimant’s part. It was accepted on all sides that she had suffered psychiatric injury, but the trial judge held that the shock had to be 180

Note also Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995), suggesting that where cases have to be resolved by reference to the aftermath principle, there is some recognition that medical negligence cases perhaps require a different approach to the strict temporal and spatial limits applied to accident cases.

181

See eg Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389, dealt with at [10.300], [22.440]–[22.450]. 182

See [22.180].

183

See eg Tredget v Bexley Health Authority [1994] 5 Med LR 178; Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227, affirmed by the English Court of Appeal: Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49. 184

See eg Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

185

Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285.

186

Note also the dictum of Lord Slynn of Hadley in W v Essex County Council [2001] 2 AC 592 at 601: “[I]t seems to me that the concept of ‘the immediate aftermath’ of the incident has to be assessed in the particular factual situation. I am not persuaded that in a situation like the present the parents must come across the abuser or the abused ‘immediately’ after the sexual incident has terminated.” For discussion of this case see [21.300].

382

Part III: Liability for Mental Harm

[10.400]

occasioned by seeing the accident or its aftermath, and was not prepared to accept what happened in the mortuary as part of the aftermath, and concluded that the shock stemmed from what she had been told by the police. On appeal, it was argued that this was too narrow a view: the event and its immediate aftermath consisted of a whole series of events from the time of the accident until the claimant saw the body in the mortuary. Further, there was no evidence to justify the conclusion that the psychiatric injury stemmed entirely from what she was told. This argument was accepted by the English Court of Appeal. Latham LJ said: I do not consider that we are restricted by what Lord Ackner said in Alcock to a frozen moment in time. As Lord Wilberforce in McLoughlin recognised from the passage that he cited from Benson v Lee, an event itself may be made up of a number of components. This was accepted by this court in the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792. Likewise, in my judgment, can the aftermath, provided that the events alleged to constitute the aftermath retain sufficient proximity to the event. Indeed, the decision in McLoughlin’s case can only be justified if the events in the hospital, when Mrs McLoughlin went to the hospital, are taken together as providing the trigger, if that is the right description, for the shock which produced the psychiatric illness. In the present case, the immediate aftermath, in my view, extended from the moment of the accident until the moment that the appellant left the mortuary.187

[10.400] This welcome reappraisal had the potential for far-reaching implications, and might have enabled a better result to be reached in a number of past decisions of the English courts.188 However, its limits were made apparent in the latest decision of the English Court of Appeal, Taylor v A Novo (UK) Ltd.189 The claimant’s mother sustained injuries in an accident at work caused by a fellow-employee who caused a stack of racking boards to tip over on top of her. Three weeks later, at home, she unexpectedly collapsed and died as a result of deep vein thrombosis and a pulmonary embolism that had been caused by the original injuries. The claimant witnessed her mother’s collapse and death and was later diagnosed as suffering from psychiatric illness in the form of posttraumatic stress disorder, for which she claimed damages. At first instance the County Court judge found that the relevant “event” that caused the damage was the mother’s sudden death, that there was no gap between the death and the original injury, and that the claimant’s injury was a reasonably foreseeable consequence of the defendant’s negligence. The defendant appealed, arguing that the relationship between the parties was insufficiently proximate since the claimant had not been present at the scene of the accident or its immediate aftermath. The Court of Appeal 187

Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285 at [25]–[26].

188

See eg Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447, on appeal Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351; Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895, discussed at [10.360].

189

Taylor v A Novo (UK) Ltd [2014] QB 150.

[10.410]

10 Proximity of Time and Space

383

agreed. Lord Dyson MR, giving the judgment of the court, referred to the common features of secondary victim cases identified by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police190 that had become known as the “control mechanisms”, and emphasised the need for all of them to be present. Here, the element of physical and temporal proximity was lacking. The line of case law development culminating in Galli-Atkinson v Seghal191 provided no assistance. The trial judge had said that the ultimate collapse was a new event; however, Lord Dyson agreed with the defence argument that looking for a proximate event was the wrong approach. Instead, it was necessary to look for proximity of relationship. In most cases, this was satisfied by proving physical or temporal proximity to the event and its aftermath, because in most cases there was only one relevant event, but it was incorrect to elevate proximity to the event to be the test: what was crucial was to show proximity between the secondary victim and the tortfeasor. It was impossible to regard the death as the sole relevant event, because the defendant’s negligence had two consequences separated by three weeks in time. Allowing the claimant to recover damages in this case would open up the possibility of secondary victims recovering damages months or even years after the original accident. Proximity to a secondary victim could not be stretched this far. Lord Dyson MR was clearly much influenced by the generally restrictive attitude of English courts, and in particular the policy imperatives that weighed with Lord Steyn in White v Chief Constable of South Yorkshire Police which his Lordship had summed up in the words “Thus far and no further”.192 Subsequent cases confirm the limiting effect of this decision. The “seamless event” argument now looks unlikely to succeed save in truly exceptional circumstances such as those in Galli-Atkinson v Seghal,193 and in the medical sphere now appears to have been completely ruled out.194 [10.410] Clearly, in jurisdictions that adhere to the proximity requirement, there have to be some limitations, and Taylor v A Novo (UK) Ltd195 fell outside them. However, from the standpoint of Australian law (which has abandoned such limitations), this is simply the latest case in a long line which illustrates that requiring proximity in space and time simply results in invidious distinctions.

190

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

191

Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285.

192

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 500.

193

See eg Berisha v Stone Superstore Ltd 2014 WL 6862531 (claimant’s partner injured at work, claimant remained at his hospital bedside until he died two days later: the court held that the claimant was not present at the immediate aftermath and the “sequence of events” argument was not open).

194

See [22.570]–[22.580].

195

Taylor v A Novo (UK) Ltd [2014] QB 150.

384

Part III: Liability for Mental Harm

[10.420]

United States [10.420] If the characteristic approach of the English courts is to place strict limits on the aftermath principle, an influential decision of the Supreme Court of California suggests total repudiation. It will be recalled that the leading case of Dillon v Legg,196 in which the Californian Supreme Court recognised the possibility of recovery for emotional injury by plaintiffs who were not themselves within the zone of physical danger, identified contemporaneous observance as one of the factors involved in a decision whether emotional harm was foreseeable. There has been an enormous disparity in the treatment this particular consideration has received in the various United States jurisdictions.197 Some of the subsequent cases held that this first Dillon guideline did not prevent recovery where plaintiffs saw only the aftermath of the accident, either at the scene198 or at hospital,199 before there had been any substantial change to the scene or the victim’s condition — contemporaneous observance being only a factor in determining foreseeability and not an inflexible requirement. However, other States placed great emphasis on direct perception of the shock-inducing event.200 196

Dillon v Legg 441 P 2d 912 (Cal 1968).

197

See Annotation, “Immediacy of Observation of Injury as affecting Right to Recover Damages for Shock or Mental Anguish from Witnessing Injury to Another” 99 ALR 5th 301 (DJ Gilsinger).

198

See eg Landreth v Reed 570 SW 2d 486 (Tex 1978) (plaintiff may not have been present when sister was drowning in pool, but was present when she was brought from the pool and attempts were made to resuscitate her); General Motors Corporation v Grizzle 642 SW 2d 837 (Tex 1982) (mother came on accident scene “moments” after collision); Pearsall v Emhart Industries Inc 599 F Supp 207 (1984) (plaintiff arrived home to find house ablaze and bodies of her husband and children); City of Austin v Davis 693 SW 2d 31 (Tex 1985) (father found body of his missing son at bottom of air shaft in mental hospital where son had been inmate); Tommy’s Elbow Room Inc v Kavorkian 727 P 2d 1038 (Alaska 1986) (parents arrived at accident scene and saw dying daughter being dragged by her hair from wrecked car).

199

Ferriter v Daniel O’Connell’s Sons Inc 413 NE 2d 690 (Mass 1980) (visit to hospital rather than accident site is within aftermath); Henley v Department of State Highways & Transportation 340 NW 2d 72 (Mich 1983) (recovery denied where parents went to hospital five hours after accident); Champion v Gray 478 So 2d 17 (Fla 1985) (mother saw daughter’s body at accident scene, collapsed and died on the spot); Beck v Department of Transportation and Public Facilities 837 P 2d 105 (Alaska 1992) (mother rushed to scene of accident but was prevented by rescue workers from approaching wrecked vehicle containing her injured daughter, and did not see her until later at hospital); compare Mattingly v Sheldon Jackson College 743 P 3d 356 (Alaska 1987) where the plaintiff was more than 150 miles away from the scene of an accident to his son and “had to steel himself during his flight to Sitka”. In Champion v Gray 478 So 2d 17 (Fla 1985) at 20, the Florida Supreme Court expressed the view that seeing the injured person in the hospital shortly after the event “reaches the outer limits of the required involvement”. 200

See eg Cabone v Melba Ice Cream Co 423 So 2d 739 (La 1982) (husband arrived home to find family choking, frothing at mouth from escaping ammonia); Schmeck v City of Shawnee 647 P 2d 1263 (Kan 1982) (mother learnt of daughter’s injuries an hour after accident and went immediately to hospital); Oberreuter v Orion Industries Inc 342 NW 2d 492 (Iowa 1984) (plaintiff did not observe her husband and son severely burned when antenna they were holding touched electrical line); Crenshaw v Sarasota County Public Hospital Board 466 So 2d 427 (Fla 1985) (recovery denied to parent of stillborn child who did not see the body which

[10.430]

10 Proximity of Time and Space

385

[10.430] The extremes of interpretation are no better illustrated than in California itself, where the pendulum swung sharply back and forth,201 as illustrated by the divergences of view expressed by the Supreme Court in Ochoa v Superior Court (County of Santa Clara).202 In 1989, the liberal approach was called into question in that State. In Thing v La Chusa203 the Supreme Court took the opportunity to review the law in this area in the was mutilated after it was placed with hospital laundry); Acevedo v Essex County 504 A 2d 813 (NJ 1985) (seeing son’s exhumed body with four bullet wounds in the head insufficient); Brooks v Decker 516 A 2d 1380 (Pa 1986) (no recovery even though father overtook ambulance and arrived at scene of his son’s accident before it); Mazzagatti v Everingham 516 A 2d 672 (Pa 1986) (mother was 1 mile from the scene of her child’s accident); Detroit Automobile Inter-Insurance Exchange v McMillan 406 NW 2d 232 (Mich 1987) (mother arrived one hour after daughter was removed from her damaged vehicle); Freeman v City of Pasadena 744 SW 2d 923 (Tex 1988) (stepfather first saw his injured stepson in an ambulance); McCarthy v City of Cleveland Heights 583 NE 2d 981 (Ohio 1989) (mother and brother of arrested person who committed suicide in jail could not recover because not present when suicide occurred); Bernard v State Department of Transportation & Development 563 So 2d 282 (La 1990) (plaintiff informed of son’s car accident two hours later, went straight to hospital); McKethean v WMATA 588 A 2d 708 (DC 1991) (father was one block away when car hit daughter, granddaughter and friends); Cameron v Pepin 610 A 2d 279 (Me 1992) (parents arrived at hospital soon after accident to son to see him “cut, bloody and battered”). 201

The aftermath principle was adopted in eg Archibald v Braverman 79 Cal Rptr 723 (1969) (mother arrived moments after an explosion which injured her son); Nazaroff v Superior Court In and For County of Santa Cruz 145 Cal Rptr 657 (1978) (mother who heard neighbour scream rushed to defendant’s yard to see her son being pulled from swimming pool and participated in unsuccessful resuscitation attempts); Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985) (parents of boy who died from pneumonia in juvenile hall through lack of adequate medical treatment, medical personnel ignoring his worsening illness, did not see his death); see also Krouse v Graham 562 P 2d 1022 (Cal 1977); Nevels v Yeager 199 Cal Rptr 300 (1984). It was rejected in eg Deboe v Horn 94 Cal Rptr 77 (1971) (wife did not see her injured husband until she arrived at hospital); Powers v Sissoev 114 Cal Rptr 868 (1974) (mother saw daughter 30–60 minutes after she was struck by truck); Hair v County of Monterey 119 Cal Rptr 639 (1975) (plaintiffs denied recovery for emotional distress stemming from damage suffered by their son following oral surgery, notwithstanding that mother had accompanied him to hospital, had been in waiting room when surgery performed and had seen him afterwards, because neither plaintiff observed injuryproducing event, ie the surgery itself); Arauz v Gerhardt 137 Cal Rptr 619 (1977) (mother arrived at scene within five minutes of collision); Hoyem v Manhattan Beach City School District 585 P 2d 851 (Cal 1978) (plaintiff saw son in hospital a few hours after accident); Parsons v Superior Court for County of Monterey 146 Cal Rptr 495 (1978) (parents arrived at scene of accident in which their daughters were killed “before the dust had settled”); Hathaway v Superior Court of Fresno County 169 Cal Rptr 435 (1980) (parents found their electrocuted six-year-old son lying in puddle of water within minutes of the accident); Madigan v City of Santa Ana 193 Cal Rptr 593 (1983) (plaintiffs arrived at automobile collision scene 15 minutes afterwards and before victim’s body was removed); see also Vanguard Insurance Co v Schabatka 120 Cal Rptr 614 (1975); Ebarb v Woodbridge Park Association 210 Cal Rptr 751 (1985); Hurlbut v Sonora Community Hospital 254 Cal Rptr 840 (1989).

202

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985). Bird CJ at 22 criticised the majority’s holding that recovery was permitted when there was observation of the defendant’s conduct and contemporaneous awareness that it was causing harm as substituting one arbitrary limitation for another. 203

Thing v La Chusa 771 P 2d 814 (Cal 1989). See Comment, “Thing v La Chusa: Public Policy Demands a Limitation on the Bystander Recovery for Infliction of Emotional Distress” (1990) 17 W St UL Rev 499.

386

Part III: Liability for Mental Harm

[10.440]

light of what it saw as the uncertainty created by the cases following Dillon v Legg204 and concern with the social cost of liability for emotional injury. It held, by a majority, that the three factors identified in Dillon v Legg should be strictly reinterpreted as limitations on the scope of recovery, since “the societal benefits of certainty in the law, as well as traditional concepts of tort law, dictate limitation of bystander recovery of damages for emotional distress”.205 The court was unimpressed with foreseeability as a limiting device — in the words of Eagleson J, “there are clear judicial days on which one can foresee forever”.206 In particular, the court held that the plaintiff must be present at the scene of an injury-producing event at the time it occurs. It therefore denied recovery to a mother who was close by the scene of an accident to her son but who did not see or hear it, even though, when told of the accident, she had rushed to the scene, where she saw her son’s bloody and unconscious body. Given the influence of Californian law on American jurisprudence, this decision seems likely to retard the future development of liability for psychiatric harm in the United States. [10.440] The hardline approach now being taken by Californian courts is illustrated by Fife v Astenius207 where the argument that “contemporaneous” perception of the injury-producing event does not mean “simultaneous” perception but rather perception within a short period of time was rejected — parents and brothers of the accident victim heard the impact and were on the scene within seconds but could not recover because their perception of the accident was not simultaneous and they did not know at the moment of impact that a member of their family was being injured.208 Another graphic example is Martin By and Through Martin v United States209 where negligent supervision allowed six-year-old Jennifer Martin to be abducted from a day care centre outing and raped. A federal court applying Californian law held that neither her mother nor her sister could recover for emotional distress. The mother 204

Dillon v Legg 441 P 2d 912 (Cal 1968).

205

Thing v La Chusa 771 P 2d 814 (Cal 1989) at 815. However, the decision is limited to the “bystander” problem, and has no application to cases where the plaintiff is independently owed a duty of care: see Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992), discussed at [18.230].

206

Thing v La Chusa 771 P 2d 814 (Cal 1989) at 830.

207

Fife v Astenius 284 Cal Rptr 16 (1991).

208

See also Wright v City of Los Angeles 268 Cal Rptr 309 (1990); Breazeal v Henry Mays Newhall Memorial Hospital 286 Cal Rptr 207 (1991); Zuniga v Housing Authority of Los Angeles 48 Cal Rptr 2d 353 (1996); Souza v City of Antioch 62 Cal Rptr 2d 909 (1997). Compare Ortiz v HPM Corporation 285 Cal Rptr 728 (1991) (liability would exist only if accident considered still to have been happening when trapped body discovered); Wilks v Hom 3 Cal Rptr 2d 803 (1992) (mother present at explosion, instantly knew of likely severe damage to child, even though she did not see or hear her being injured); Chen v Superior Court (Prudential Homes Corporation) 62 Cal Rptr 2d 526 (1997) (parents in another room when they heard storage cabinet in kitchen crash to floor, inflicting fatal injuries on daughter; court said that there was no requirement that initial few seconds of injury-causing event be witnessed visually). 209

Martin By and Through Martin v United States 779 F Supp 1242 (1991).

[10.440]

10 Proximity of Time and Space

387

(who was of course not present) was not the direct victim of negligence since the supervision was not conduct directed at her, and the sister, who was also on the outing, did not know what was happening at the time the abduction took place.210 It seems that not only are the courts insisting that plaintiffs be on the scene at the crucial time, but also that they appreciate what is going on. In Golstein v Superior Court211 the requirement of contemporaneous observance was insisted upon notwithstanding that the tortious act in question was, as the court acknowledged, incapable of being sensorily perceived. The parents of a boy with curable cancer were denied relief for emotional distress caused by his death from an overdose of radiation treatment because they did not, and could not, witness the injury-inducing event. However, despite the current trend, one decision has taken a more enlightened view. In Re Air Crash Disaster near Cerritos, California, on August 31, 1986,212 the United States Court of Appeals for the Ninth Circuit granted recovery to a plaintiff who arrived at her home minutes after a plane had crashed into it and saw it engulfed in flames. She did not see the crash, but knew instantly that her family were being burned, and it was on this basis that the court felt itself able to distinguish Thing v La Chusa213 and Fife v Astenius. A number of other jurisdictions, influenced by Thing v La Chusa, now deny recovery unless the relative who suffered emotional distress was witness to the accident occurring;214 others continue to recognise the aftermath principle.215

210 See also Evan F v Hughson United Methodist Church 10 Cal Rptr 2d 748 (1992) (sister of child sexually molested by pastor could not recover because she did not appreciate that his actions caused injury to her brother). 211

Golstein v Superior Court 273 Cal Rptr 270 (1990).

212

In Re Air Crash Disaster near Cerritos, California, on August 31, 1986 967 F 2d 1421 (1992).

213

Thing v La Chusa 771 P 2d 814 (Cal 1989).

214

See eg Bowen v Lumbermens Mutual Casualty Co 517 NW 2d 432 (Wis 1994); Clohessy v Bachelor 675 A 2d 852 (Conn 1996); Lehmann v Wieghat 917 SW 2d 379 (Tex 1996); United Services Automobile Association v Keith 970 SW 2d 540 (Tex 1998); Mealey v Marella 744 A 2d 1226 (NJ 1999); Paves v Corson 765 A 2d 1128 (Pa 2000); Rodriguez v Riddell Sports Inc 242 F 3d 567 (2001); Lions Eye Bank of Texas v Perry 56 SW 3d 872 (Tex 2001); Blackmon v American Home Products Corporation 267 F Supp 2d 667 (2003); Mississippi State Federation of Colored Women’s Club Housing for Elderly in Clinton Inc v LR 62 So 3d 351 (Miss 2010) (plaintiff’s 11-year-old daughter raped while visiting at father’s apartment, no recovery because first two factors identified in Dillon v Legg 441 P 2d 912 (Cal 1968) — being near scene, and shock resulting from sensory and contemporaneous observance — were absent); Entergy Mississippi v Acey 153 So 3d 670 (Miss 2014) (mother arrived on scene a few minutes after her daughter was electrocuted when playing on cotton picker underneath sagging power line; court again denied recovery because these Dillon factors were not present). 215

See eg Simmons v Hartford Insurance Co 786 F Supp 574 (1992); Beck v Department of Transportation & Public Facilities 837 P 2d 105 (Alaska 1992); Cox v Delaware Electric Cooperative Inc 823 F Supp 241 (Del 1993); RD v WH 875 P 2d 26 (Wy 1994); Dunn v Gentry 653 So 2d 783 (La 1995); Gabaldon v Jay-Bi Property Management Inc 925 P 2d 510 (NM 1996); Roitz v Kidman 913 P 2d 431 (Wyo 1996); Stump v Ashland Inc 499 SE 2d 41 (WVa 1997); Chester v Mustang Manufacturing Co 998 F Supp 1039 (1998); Hegel v McMahon 960 P 2d 424 (Wash 1998); Groves v Taylor 729 NE 2d 569 (Ind 2000); Craig v Driscoll 781 A 2d 440 (Conn 2001); Greene v Young

388

Part III: Liability for Mental Harm

[10.450]

Conclusion [10.450] Whether interpreted restrictively or in a more expansive way, the aftermath requirement will continue to cause problems, because it cannot deal satisfactorily with the many difficult borderline cases that have arisen and will continue to arise.216 It seems that the courts will not rule out a claim simply because the claimant was given some information about what had happened before he or she arrived at the aftermath of the accident — after all, unless they arrive there by chance, they would otherwise have no means of knowing about it — but the balance between what they see and what they are told may make all the difference. What of the plaintiff who goes to the scene but cannot get close enough to see what is happening and is told later that a relative has been killed or injured?217 Consider, for example, a train crash on a bridge or a fire in an underground railway station218 around which police have erected barriers, where people race frantically to the scene to find out what has happened to those they know were on board or there, and can see the emergency services at work but are unable to get any closer or find out any further information. What about a plaintiff who is advised not to go to the accident scene because of the danger?219 What about a plaintiff who is informed that a relative has been injured in an accident and is too overcome with shock and grief to go to the scene at all,220 or who due to 54 P 3d 734 (Wash 2002). Note Colbert v Moomba Sports Inc 176 P 3d 497 (Wash 2008) (father of drowning victim who arrived at scene of drowning and saw daughter’s body being recovered from water did not satisfy requirement of being present at scene of accident or “shortly thereafter”). 216

“The immediate aftermath test is a crude means of determining temporal proximity. It results in invidious distinctions”: van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [110] per Thomas J (dissenting). Blanchard J, speaking for the majority, said (at [72]) that the English approach as laid down in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 “can preserve sufficient flexibility”. Even so, an English judge, Stuart-Smith LJ in Vernon v Bosley (No 1) [1997] 1 All ER 577 at 582 said of the damages awarded in that case: “[I]t is nevertheless surprising at first blush that the difference between witnessing the tragedy, in the sense that the plaintiff came upon the scene during the rescue attempt, and hearing of it at a distance, should result in an award of £11/3m.”

217

See eg De Franceschi v Storrier (1988) 85 ACTR 1 (where the plaintiff recovered damages, probably because she saw her son in intensive care after being told the extent of his injuries); Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895, discussed at [10.360].

218

For a psychiatric injury case arising out of the fire at King’s Cross London underground station in 1987 see Singh v London Underground Ltd (unreported, QBD, 24 April 1990), discussed at [10.130]. 219

In Monie v Commonwealth [2007] NSWCA 230, the plaintiff was having dinner with friends when he received a telephone call from his aunt saying his father had been shot by an employee at their farm, and advising him to stay away because the shooter was still at large.

220

An instance put by Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 608–609. See also FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476 at 494. In Reeve v Brisbane City Council [1995] 2 Qd R 661 at 671, Lee J asked: “[O]n what rational basis can there be imposed a duty to take reasonable care to avoid a foreseeable risk of injury by means of nervous shock in respect of a person willing and able to attend the scene of the accident or its aftermath but not in respect of a

[10.460]

10 Proximity of Time and Space

389

a pre-existing disability (for example, one which confines him or her to a bed or a wheelchair) is physically incapable of doing so? What of the plaintiff who goes to hospital but cannot see the accident victim because he or she is undergoing surgery, and is then told that they have died?221 Further problems can be postulated. What if the circumstances of the negligence are such that there will be a long delay before anyone can arrive at the accident site, as for example where a plane crashes in the wilds of Northern Canada in the middle of winter and weeks or months pass before bodies can be retrieved from beneath the ice and snow?222 Fact situations like these show how difficult it is to set rational limits to the aftermath doctrine. Moreover, it is ill-equipped to deal with cases such as Rhodes v Canadian National Railway223 and Alcock v Chief Constable of South Yorkshire Police,224 where plaintiffs are caught up in the chaos and confusion of large-scale catastrophes where it is inevitable that a clear picture of the true facts will not emerge for some time. There will be, in addition, many cases where there is simply no aftermath to perceive. Reference to the concept in these situations is futile.225 [10.460] Much depends on whether the courts are now willing to accept that plaintiffs who suffer psychiatric injury through being told of the accident, without having seen something of the aftermath, may recover — an issue considered below in Chapter 11. If the limitation barring recovery in such cases is removed, as advocated in the first edition of this book, person unwilling or by circumstances out of their control unable to attend?” In Macartney v Islic [1996] OJ No 411, on appeal sub nom Macartney v Warner (2000) 183 DLR (4th) 345, the plaintiff was at home when she heard a loud crash and saw ambulances go by: she said she did not go to the scene because she knew her son had died, and saw his body later at hospital. The decision on her psychiatric injury claim was ultimately inconclusive (see Macartney v Warner (2000) 183 DLR (4th) 345 at 374); but should the plaintiff’s refusal to attend the scene have made a difference to her claim? 221

In Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988), the plaintiff was unable to see his son before an operation was performed, but the court accepted that the defendant owed him a duty. In Anderson v Smith (1990) 101 FLR 34 the plaintiff could not see her daughter in hospital straight away because efforts were being made to revive her following a near drowning. The court said that there was no less proximity in time and space than in Jaensch v Coffey (1984) 155 CLR 549. In Petrie v Dowling [1992] 1 Qd R 284, the plaintiff was told at hospital that her daughter was dead. The defendant did not argue that the plaintiff was outside the aftermath. See also Rowe Estate v Hanna (1989) 102 AR 88; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, reversed by the English Court of Appeal in Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n, where a mother was summoned to hospital by her husband to be told that their son had been crushed to death in an industrial accident and due to the state of the body was not permitted by him to view it. 222

The leading Australian case provides a graphic example at the opposite end of the climatic spectrum. In Annetts v Australian Stations Pty Ltd, heard by the High Court together with Tame v New South Wales (2002) 211 CLR 317, James Annetts and another boy became lost in the Gibson desert in the far north of Western Australia in the middle of the Australian summer and their bodies were not discovered for four months. 223

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

224

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

225

See [11.610].

390

Part III: Liability for Mental Harm

[10.460]

and as has now happened in Australia and South Africa, it follows that the aftermath doctrine is an inappropriate limiting mechanism, and becomes no more than a factor that strengthens the case for recognition of a duty of care in certain kinds of case. Jurisdictions that retain the requirements of temporal and spatial proximity, as England still does, still have to confront the problems of the aftermath principle.

Chapter 11

Means of Communication [11.10] INTRODUCTION .............................................................................................................. 391 [11.30] THE TRADITIONAL RULE ............................................................................................ 392 [11.30] Origins ................................................................................................................................. 392 [11.90] Qualifications to the traditional rule ............................................................................. 395 [11.90] Breach of pre-existing duty ....................................................................................... 395 [11.120] Combined “told and saw” cases ............................................................................ 399 [11.140] Discontent with the traditional rule ............................................................................ 400 [11.200] AUSTRALIAN LAW ...................................................................................................... 405 [11.200] The common law ............................................................................................................ 405 [11.210] Direct perception rejected by lower courts .......................................................... 406 [11.320] The conservative reaction ........................................................................................ 415 [11.370] Direct perception rejected by the High Court ..................................................... 419 [11.410] The Civil Liability Acts .................................................................................................. 422 [11.440] THE LAW ELSEWHERE ............................................................................................... 424 [11.440] Rejection of the direct perception requirement ......................................................... 424 [11.460] Retention of the direct perception requirement ........................................................ 426 [11.560] Criminal injuries compensation cases ......................................................................... 433 [11.600] Comment and criticism .................................................................................................. 437 [11.640] SPECIFIC SITUATIONS ................................................................................................. 440 [11.640] Trauma by telephone ...................................................................................................... 440 [11.700] Television and radio ....................................................................................................... 443 [11.710] Live transmissions .................................................................................................... 444 [11.870] Recordings .................................................................................................................. 453 [11.910] New modes of communication .................................................................................... 456

INTRODUCTION [11.10] As discussed in Chapter 10, the traditional approach of the courts to nervous shock claims by secondary victims was to require not only closeness of relationship to the immediate accident victim but also a degree of physical closeness in space and time to the accident or other incident in which the immediate victim was killed, injured or put in peril. Being told about it by someone else, as opposed to personal perception, was not enough. Though courts in many jurisdictions retain such rules,

392

Part III: Liability for Mental Harm

[11.20]

Australian law has overcome them. In Tame v New South Wales,1 the High Court of Australia rejected the alleged need for “direct perception”. As a result Australian law is distinctively different from the law in most other common law countries, and the presence or absence of direct perception is no more than a factor to be taken account in assessing the general foreseeability issue. However, a small qualification is necessary, because in some jurisdictions the Civil Liability Acts re-impose requirements of direct perception except in cases involving close relatives. [11.20] This chapter first reviews the traditional rule and its limitations. Next, it examines the common and statute law in Australia. It then sets the Australian position in comparative context by reviewing the experience of other jurisdictions. Finally, it reviews some specific examples, such as telephone or television, that could perhaps be said to provide an experience that is “as good as being there”.

THE TRADITIONAL RULE Origins [11.30] What strikes one immediately on a survey of the psychiatric injury cases is that in nearly all successful claims shock was suffered either as a result of the plaintiff’s direct and unaided perception of the traumatic event or of the combined effect of what he or she perceived and what was communicated at the scene or its aftermath. Traditionally, the absence of personal perception, even where there is an intimate relationship between the parties, has doomed a shock-related claim to failure. Communication of bad news by a third party (whether orally or in writing) was not enough to create a duty of care.2 This conservative attitude towards “distant shock”3 is reflected in a number of older English authorities but is perhaps best illustrated by Hambrook v Stokes Bros.4 There, the pregnant plaintiff saw the defendant’s unattended truck rolling out of control down a hill. Her three children had just walked up the same street in the direction from which the truck had come. Although she could not see what happened to them she feared the worst, immediately rushing to the scene, where bystanders informed her that a child answering her daughter’s description had been struck. This shocked her 1

Tame v New South Wales (2002) 211 CLR 317.

2

This chapter discusses recovery against the person whose negligence was responsible for the traumatic event, as opposed to the possibility of a claim against the communicator of bad news, which is discussed in Chapter 28. 3 The term used by JG Fleming: see C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2010), p 184. See also JG Fleming, “Distant Shock in Germany (And Elsewhere)” (1972) 20 AJCL 485. Fleming was critical of the “doctrinal fragility” of this and other suggested limiting markers, describing them as “infirmities, difficult if not impossible to support with any pretence to a rational system”: JG Fleming (1994) 2 Tort L Rev 202 at 203, in a review of NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993). 4

Hambrook v Stokes Bros [1925] 1 KB 141.

[11.60]

11 Means of Communication

393

to such an extent that she had a severe haemorrhage and died two months later. Her husband brought a fatal accident claim. The English Court of Appeal considered that if she had lived the plaintiff could have maintained a successful action, but only on the basis that the shock resulted from what she herself had sensed and not from something told to her.5 [11.40] Likewise in King v Phillips,6 where a mother suffered shock after hearing her child scream and looking out of a window to see a taxi reversing and her child’s tricycle underneath it, Denning LJ stated: Some cases seem plain enough. A wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account. … But … a mother who suffers from shock by hearing or seeing, with her own unaided senses, that her child is in peril … may be able to recover from the negligent party.7

[11.50] Although there was some equivocation amongst the majority, it was reaffirmed, at least by Lord Wilberforce, in McLoughlin v O’Brian8 that shock by third party communication as opposed to direct visual or aural appreciation of a distressing event or its aftermath does not give rise to liability. Although Mrs McLoughlin heard of the accident involving her family before she saw its results in hospital, her shock stemmed only from that later perception and it was on that basis that the House of Lords ruled that a duty of care was owed to her. In what is now the leading English case, Alcock v Chief Constable of South Yorkshire Police,9 their Lordships again endorsed the traditional attitude to shock-related damage claims, this time unanimously ruling out liability for communication-induced shock and related psychiatric harm. [11.60] The extreme caution with which the courts have proceeded in this area can also be seen in Canadian cases. That psychiatric injury claims will not be actionable when shock stems solely from bad news

5

Hambrook v Stokes Bros [1925] 1 KB 141 at 152 per Bankes LJ, at 159 per Atkin LJ, at 165 per Sargant LJ. See also Bourhill v Young [1943] AC 92 at 103 per Lord Macmillan. For a more in-depth discussion see AL Goodhart, “The Shock Cases and Area of Risk” (1953) 16 MLR 14 at 18–19; J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478 at 486–490; PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 204–205. 6

King v Phillips [1953] 1 QB 429.

7

King v Phillips [1953] 1 QB 429 at 441. See further AL Goodhart, “Emotional Shock and the Unimaginative Taxicab Driver” (1953) 69 LQR 347. See also Lord Denning MR’s comments in Hinz v Berry [1970] 2 QB 40 at 42. 8

McLoughlin v O’Brian [1983] 1 AC 410 at 422–423 per Lord Wilberforce. Contrast Lord Bridge of Harwich at 442, discussed at [9.130]. 9

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see [11.490]–[11.500].

394

Part III: Liability for Mental Harm

[11.70]

given by a third party is supported by Abramzik v Brenner.10 There the husband of the plaintiff told his wife that two of their children (as well as two of the defendant’s children) had been killed by a freight train at a level crossing after the defendant, who had been driving the children to church, negligently drove in front of it. In refusing the wife’s claim for nervous shock on the basis of an absence of reasonable foreseeability,11 the Saskatchewan Court of Appeal12 stressed that unlike the husband (who did not suffer psychiatric injury and therefore made no claim), the wife never went to the scene or saw the bodies of her children. Liability cannot arise, it was said, in these circumstances. [11.70] Australian courts also were originally reluctant to allow recovery in situations where there is no personal perception, doubting whether shock sustained merely upon hearing distressing news is sufficient to ground a claim. Although the case did not require excursion into the “told” issue, Windeyer J in Mount Isa Mines Ltd v Pusey13 took the opportunity to state: I repeat that in this case we are concerned with only one kind of occurrence causing nervous shock – a plaintiff employee in a factory seeing at the scene of accident there disastrous and pitiful consequences for another man. I need express no opinion and wish to guard against it being thought that I express any opinion on what would be the result if the facts were significantly different. In particular I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news. That, however, seems to me remote from this case, and not to avail the appellant. No doubt the plaintiff’s learning that the man who had been burnt had died added to his distress of mind: but it was not the sole or prime cause of it.

[11.80] Even Evatt J’s now seemingly preferred dissent in Chester v Waverley Corporation14 stressed the need for plaintiff perception. While rejecting the majority decision to refuse relief on reasonable foreseeability grounds to a mother who suffered shock from witnessing the recovery of 10

Abramzik v Brenner (1967) 65 DLR (2d) 651, noted by JS Williams (1968) 46 Can BR 515; HJ Glasbeek (1969) 47 Can BR 96. For similar cases see Dietelbach v Public Trustee (1973) 37 DLR (3d) 621; Babineau v MacDonald (No 2) (1975) 59 DLR (3d) 671; Bourque v Surrette (1978) 23 NBR (2d) 357; Rowe Estate v Hanna (1989) 102 AR 88. Note also the effect of Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248. 11

However, Glasbeek was critical of this finding, arguing that “nothing could have been more readily foreseen than that nervous shock would be suffered by this plaintiff”: HJ Glasbeek (1969) 47 Can BR 96 at 104.

12

Reversing Sirois J who awarded damages: Abramzik v Brenner (1965) 54 DLR (2d) 639.

13

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407.

14

Chester v Waverley Corporation (1939) 62 CLR 1.

[11.90]

11 Means of Communication

395

her dead son from a water-filled trench, his Honour considered that she could only succeed if her mental injury was due to emotional distress caused by the circumstances existing from the moment when her search brought her to the trench up to the time when her child’s body was removed therefrom. … [T]he plaintiff is not disentitled to recover merely because she came to the scene of the fatality after her child had fallen into the trench, provided that her shock and suffering were due in the main to what she realised from her own unaided senses during the period I have defined.15

Similar sentiments were expressed by Lush J in Benson v Lee:16 [W]hat is, at the present time, required, is … a direct perception of some of the events which go to make up the accident as an entire event, and this includes seeing the immediate aftermath of the accident, even if, for example, the impact or explosion is neither seen nor heard.17

Qualifications to the traditional rule Breach of pre-existing duty [11.90] Despite these statements it is not accurate to assert that there have been no cases where compensation has been given for psychiatric illness caused by third party communication. The “told” rule against recovery is not absolute, an exception coming into play where there is a breach of a pre-existing duty owed to the plaintiff. The need for actual perception was disregarded in Schneider v Eisovitch18 where the plaintiff was told, after regaining consciousness, of her husband’s death in an accident in which they had both been involved, and suffered shock as a result. Rejecting the argument that the plaintiff could not recover because she sustained a solely communication-induced injury, Paull J pointed out that she had been owed a duty by the defendant driver not to cause her physical injury and that duty had been broken. It followed on from the then-prevailing Re Polemis19 remoteness test that the defendant was liable for all direct consequences of his breach irrespective of their foreseeability. His Lordship said: [O]nce a breach of duty is established the difference between seeing and hearing is immaterial. Hearing can be just as direct a consequence as seeing. The fact that, owing to unconsciousness … a period of time elapsed before the 15

Chester v Waverley Corporation (1939) 62 CLR 1 at 43. Note also Bunyan v Jordan (1936) 36 SR (NSW) 350 where Jordan CJ at 353 clearly assumed that shock must be perceived through the claimant’s own sensory system.

16

Benson v Lee [1972] VR 879.

17

Benson v Lee [1972] VR 879 at 880. Note also Spencer v Associated Milk Services Pty Ltd [1968] Qd R 393 where Lucas J ruled that it was not reasonably foreseeable that a 17-year-old son would suffer emotional deterioration when told upon regaining consciousness of his parents’ deaths in a car accident.

18

Schneider v Eisovitch [1960] 2 QB 430, noted by HW Burnett (1960) 38 Can BR 615; JA Jolowicz [1960] CLJ 156. See PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 206.

19

Re Polemis and Furness, Withy & Co [1921] 3 KB 560.

396

Part III: Liability for Mental Harm

[11.100]

news was heard, makes no difference provided that the news was a consequence which flowed directly from the breach of duty towards the plaintiff. … The fact that the defendant by his negligence caused the death of the plaintiff’s husband does not give the plaintiff a cause of action for the shock caused to her; but the plaintiff, having a cause of action for the negligence of the defendant, may add the consequences of shock caused by hearing of her husband’s death.20

[11.100] This reasoning was adopted in Australia in a case that was almost factually identical, even in the light of the Wagon Mound (No 1)21 foreseeability test of remoteness that had superseded Re Polemis.22 In Andrews v Williams23 the plaintiff, who had been driving and was rendered unconscious through a collision, was told a few days later of the death of her mother who had been a passenger. Delivering the judgment of the Victorian Supreme Court Winneke CJ stated: If nervous shock resulting from sight of the mother’s death was, as we think it was, a reasonably foreseeable consequence of the [defendant’s] negligent driving, we see no justification in logic or principle for saying that because the [plaintiff] did not become aware of the death for several days on account of unconsciousness or illness, the shock resulting therefrom was not likewise reasonably foreseeable. In our view, in such case the nervous shock … was just as much a reasonably foreseeable consequence of the [defendant’s] negligent driving as shock resulting from sight of the death would itself have been.24

So too in Kohn v State Government Insurance Commission,25 where a seriously injured teenage girl suffered psychiatric injury on being informed of her boyfriend’s death in a car accident, Bray CJ was of the view that: It is now, I think, established that a plaintiff injured in an accident can recover damages for nervous shock and resultant physical or mental ill health caused by the death in the same accident of someone dear to him or her, even if that death is not directly witnessed or remembered by the plaintiff but only subsequently reported.26 20

Schneider v Eisovitch [1960] 2 QB 430 at 441–442.

21

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

22

Re Polemis and Furness, Withy & Co [1921] 3 KB 560.

23

Andrews v Williams [1967] VR 831.

24

Andrews v Williams [1967] VR 831 at 834. But note that two Queensland decisions denied recovery in similar circumstances: see Shewan v Sellars (No 1) [1963] QWN 19, where the plaintiff was told in hospital of the very serious injuries to his wife and child (who had been blinded and mentally incapacitated) and, blaming himself, began to suffer an anxiety neurosis; and Spencer v Associated Milk Services Pty Ltd [1968] Qd R 393.

25 26

Kohn v State Government Insurance Commission (1976) 15 SASR 255.

Kohn v State Government Insurance Commission (1976) 15 SASR 255 at 256. See also Hamlyn v Hann [1967] SASR 387 at 404 per Mitchell J where the plaintiff, who though after the accident was sufficiently conscious to speak and to be able to hear his children crying could not “put things together”, was awarded $3,000 (in addition to the statutory solatium) for the shock and depression he suffered on learning a few days later that his wife and one of their children had perished; Gannon v Gray [1973] Qd R 411 at 414 per Williams J; Tsanaktsidis v

[11.110]

11 Means of Communication

397

A similar situation arose in British Columbia in Kwok v British Columbia Ferry Corporation.27 The plaintiff, on vacation with his family, was at the helm of his pleasure craft when it collided with a ferry due, in the main, to the ferry captain’s negligence. The plaintiff’s boat capsized and when pulled from the water he was told that his wife and one of his three children had drowned, and that another was critically injured. Recovery was granted, no reference being made to the way he learnt of the deaths and injury.28 [11.110] In each of these cases the shock victim was injured in the same accident as the deceased and the question thus arises whether the involvement of the plaintiff in the accident is necessary to invoke the exception. Are non-participants equally able to recover for psychiatric injury caused entirely by the communication of bad news? Bray CJ left the question open in Kohn v State Government Insurance Commission,29

Oulianoff (1980) 24 SASR 500 at 501 per Mitchell J. Note also Regan v Harper [1971] Qd R 191: the report does not make it clear whether the plaintiff in this case, who suffered relatively minor injuries, remained conscious and actually witnessed the injury to his wife and two children. However, given that he could only have become aware of the seriousness of the injuries to his family (in particular, the brain damage to the younger child) at a later date, compensation awarded to him for a severe psychic trauma can be regarded as within the principle enunciated in the above cases: see H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, Sydney, 2002), pp 182–183. In Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 a woman developed a psychological reaction and morbid depression leading to suicide as a result of, inter alia, witnessing fatal injuries to her husband and father in an accident (in which she also received serious injuries) and learning of the father’s death later. The case was not litigated as a psychiatric injury case and no point was taken that the knowledge that he had been killed was acquired from what she had learnt later, the whole of her anxiety state being compensable within her personal injury claim. 27

Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318. In the United States, damages have sometimes been awarded in similar situations: see eg Apache Ready Mix Co v Creed 653 SW 2d 79 (Tex 1983); but contrast Turner v Williams 762 NE 2d 70 (Ill 2001); Cox v Moore 805 So 2d 277 (La 2001).

28

Note other cases that involve a situation like Schneider v Eisovitch [1960] 2 QB 430, even though the court does not advert to this fact: Mavor v Hall (1995) 14 SR (WA) 163 (plaintiff injured in accident while passenger in car driven by her husband, later told in hospital that husband would not survive: the defendant admitted liability); Yu v Yu (1999) 48 MVR (3d) 285 (mother and daughter injured due to father’s negligent driving, mother suffered psychiatric injuries when told of daughter’s death: Clancy J went to great lengths to invoke policy issues and extend the aftermath principle in order to allow the mother to recover, instead of resorting to Schneider v Eisovitch).

29

Kohn v State Government Insurance Commission (1976) 15 SASR 255 at 256–257. See also Diakogiorgic v Anastasas (unreported, Qld SC, No 179 of 1972, 4 November 1974), noted (1975) 49 ALJ 188, where the plaintiff, although present at the accident scene, was uninvolved in the sense that she was not injured by the negligently driven vehicle that killed her husband and injured her two children as they tried to cross the road. She had been standing on the footpath and did not even see the accident, only becoming aware of it on hearing her daughter scream and not learning of her husband’s death until the following day. She was awarded $3,000 compensation for psychiatric harm caused by her presence at the scene, notwithstanding that she did not actually see the collision. Although on the facts

398

Part III: Liability for Mental Harm

[11.110]

although his comments in Battista v Cooper30 suggest that he would not be prepared to extend recovery in this manner. However, providing the criteria of proximity and reasonable foreseeability are satisfied, it is submitted that there is no convincing argument against allowing recovery for shock caused solely by communication to a person not involved in the negligent activity in question, where there is some kind of prior relationship with the defendant. Some support for this proposition may be found in Brown v Mount Barker Soldiers’ Hospital Inc.31 A hospitalised new mother resting in a ward was informed that her baby had suffered burns whilst in the children’s nursery, that is, during a period when they had been separated. Resort to Hambrook v Stokes Bros32 did not assist the defendant. Focusing on the hospital’s duty to take proper medical care of child and mother, Piper J held for the plaintiff notwithstanding that she had not been present when the fire started: Here the defendant in taking charge of Mrs Brown as a patient assumed a care of her involving the need to avoid, so far as reasonably practicable, all things that might prejudice her health or comfort, or increase her need for exertion or care. It would be a breach of duty, actionable if followed by damage, to tell her untruly that her child had been burnt. As the truthfulness of the statement was owing to negligence, the truthfulness was no legal excuse for doing harm by telling her — it was a necessary consequence of the negligence that she had to be told.33 she failed to recover for what was considered to be an abnormal grief reaction to her husband’s death, nothing was said by Lucas J to suggest that, had there been evidence of psychiatric injury, her non-involvement coupled with the oral communication of bad news would have barred a claim. 30

Battista v Cooper (1976) 14 SASR 225 at 230. Note, however, that this case was concerned with intentional rather than negligent wrongdoing. For discussion of this aspect of the decision see [30.280].

31

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128, noted by SH Skipper (1934) 8 ALJ 286.

32 33

Hambrook v Stokes Bros [1925] 1 KB 141.

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128 at 130. For discussion of this case in the context of the pre-existing relationship between the parties, see [22.150]–[22.160]. An analogous case is Cherry (Guardian) v Borsmann (1991) 75 DLR (4th) 668, dealt with at [22.600], where the defendant was negligent in the performance of an abortion and the plaintiff’s pregnancy was not terminated. By the time she was informed she was still pregnant, it was too late for a lawful termination. The baby was born with severe and permanent disabilities. It was held that the doctor owed a duty of care and was liable in damages. Skipp J had no hesitation in coming to this conclusion even though the mother’s injuries stemmed from the traumatic experience of being told of her daughter’s injuries. Harriton v Macquarie Pathology Services Pty Ltd (1998) Aust Torts Rep 81-489 is very similar: the plaintiff’s daughter was born severely disabled and suffering from rubella embryopathy due to the defendant’s medical negligence, and the plaintiff claimed that it was learning of this that caused him to suffer psychiatric injury. Master Harrison did not see this as an issue preventing her from extending the limitation period. (For further proceedings brought on behalf of the daughter, see Harriton v Stephens (2006) 226 CLR 52.) To the same effect is APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633, dealt with at [29.80]–[29.130], where the plaintiff suffered a psychiatric reaction after being treated with a drug manufactured by the defendant that exposed her to the possibility of a terminal illness, and Harper J held that she could have a good cause of action, even though she became aware of the exposure

[11.130]

11 Means of Communication

399

Combined “told and saw” cases [11.120] While the authorities refused to entertain the possibility of recovery for shock and psychiatric illness induced solely by being told distressing news, for many years it has been accepted without question that damage resulting from the combined effect of personal perception and third party communication is compensable. Psychiatric injury frequently comes about because of a number of contributing reasons and so long as hearing bad news is not the only one the plaintiff is not barred from relief. Deane J in Jaensch v Coffey confirmed this,34 adding that aggravation of an existing psychiatric injury by being told of the deterioration or death of another will “neither preclude recovery nor require apportionment between different causes”.35 [11.130] This point applies with particular force to telephone communications. The telephone, revolutionary a hundred years ago, has now become the standard means by which people communicate with each other when they are not close enough to talk face to face. As such, it is the quickest way of communicating news, pleasant or unpleasant. It is therefore not surprising that in some of the combined told and saw cases through being told about it. Note also Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992), where a mother sued for negligent infliction of emotional distress as a result of injury to her baby during delivery: the court allowed recovery on the basis that the mother was the “direct victim” of the hospital’s negligence because the physician owed her a pre-existing duty: see [18.220]. 34

Jaensch v Coffey (1984) 155 CLR 549 at 609; Dawson J at 613 made the same point. See also Hambrook v Stokes Bros [1925] 1 KB 141 at 159 per Atkin LJ; Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 at 16–17 per Wanstall ACJ; Chiaverini v Hockey (1993) Aust Torts Rep 81-223 at 62,259 per Sheller J. There are many cases in which psychiatric injury has been caused by the combined impact of a report of a traumatic event and the subsequent observation of its aftermath: for Australian examples, see Storm v Geeves [1965] Tas SR 252; Benson v Lee [1972] VR 879; Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988); De Franceschi v Storrier (1988) 85 ACTR 1; Gibson v Trueba (unreported, NSWSC, No 19749 of 1986, 2 November 1990); Greco v Arvind (unreported, NSWSC, No 14595 of 1990, 24 February 1995); Marinko v Masri [1999] NSWCA 364; Monie v Commonwealth [2007] NSWCA 230 (mother’s claim); for overseas cases see Chadwick v British Railways Board [1967] 1 WLR 912; Hevican v Ruane [1991] 3 All ER 65; Strong v Moon (1992) 13 CCLT (2d) 296. Contrast the much more restrictive attitude manifested in some United States cases, eg Hewitt v Chadwick 760 SW 2d 333 (Tex 1988) where parents who learnt of an accident to their daughter and then saw her in hospital were adjudged to have no remedy; Benavides v County of Wilson 955 F 2d 968 (1992) where (in a case of intentional infliction of emotional distress) it was held that the fact that a wife was told of her husband’s paralysis from a fall in jail, before she saw him, disentitled her from recovering.

35

Jaensch v Coffey (1984) 155 CLR 549 at 609. See also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407 per Windeyer J; Kralj v McGrath [1986] 1 All ER 54. It appears that this is the position even if the communication of bad news is the overwhelming factor leading to a psychiatric illness: see Richards v Baker [1943] SASR 245, where a mother recovered for injury caused by the initial shock of witnessing her son being struck by the defendant’s car, aggravated by the news of his subsequent death. Damages were assessed on the basis that the additional injury should be included notwithstanding that the severity of the plaintiff’s illness was predominantly a result of the boy’s death. Note, however, Shewan v Sellars (No 1) [1963] QWN 19; PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 209.

400

Part III: Liability for Mental Harm

[11.140]

the initial news has been communicated by telephone, followed by closer involvement nearer the scene of the accident. In such cases, the fact that the plaintiff’s first knowledge of injury to a loved one came via telephone makes no difference, as the case law demonstrates. In Orman v Harrington,36 for example, in the words of Mullighan J, on the night Kerry Harrington was involved in a car accident, “the telephone rang with the message dreaded by all parents”. Kerry’s mother visited her badly injured daughter in hospital the next day, and the accident caused her to suffer anxiety, distress and shock. Liability for this damage was denied, but only on the ground that it did not amount to recognisable psychiatric harm as required by the law. In Jinks v Cardwell37 a woman was summoned by telephone to hospital to be informed that her husband, a mental patient, had drowned in a bath. The plaintiff recovered for the emotional harm she suffered, which was exacerbated by the fact that the doctor suggested that her husband had committed suicide.38

Discontent with the traditional rule [11.140] As just discussed at [11.90]–[11.130], some inroads have been made on the traditional rule in the form of parasitic recovery for communication-caused psychiatric injury on the basis of a pre-existing duty of care, and acceptance of cases where the harm results from the combined effect of being told and seeing for oneself. In addition to these qualifications, there have been some notable expressions of discontent with the “unaided perception” limitation on liability. In contrast to Lord Wilberforce, Lord Bridge of Harwich in McLoughlin v O’Brian39 cautioned against an inflexible attitude towards claims by shock victims who were not present at the accident or its aftermath, alluding to the injustices that could result. His Lordship stated: [I]t seems to me inescapable that any attempt to define the limit of liability by requiring, in addition to reasonable foreseeability, that the plaintiff claiming damages for psychiatric illness should have witnessed the relevant accident, should have been present at or near the place where it happened, should have come upon its aftermath and thus have had some direct perception of it, as 36

Orman v Harrington (unreported, SASC, No 296 of 1990, 30 April 1990).

37

Jinks v Cardwell (1987) 39 CCLT 168, reversed in part on other grounds, sub nom Jinks v Abraham (unreported, Ont CA, Doc Nos CA 181/87, 195/87, 23 June 1989). 38

See also Butcher v Motor Accidents Board (1984) Victorian Motor Accidents Cases 72-026 (CCH); Marchlewski v Hunter Area Health Service [1998] NSWSC 771; Sloss v New South Wales [1999] NSWSC 995; Saad v Gosford City Council [2007] NSWSC 643; Goddard v Central Coast Health Network [2013] NSWSC 1932; For overseas examples see Brown v Hubar (1974) 45 DLR (3d) 664; Talibi v Seabrook (1995) 177 AR 299; Thompson v Attorney General (Canada) (2008) 85 BCLR (4th) 78; Mullally v Bus Éireann [1992] ILRM 722; Swartbooi v Road Accident Fund [2012] 3 All SA 670 (WCC). United States cases include Mazzagatti v Everingham 516 A 2d 672 (Pa 1986); Simmons v Hartford Insurance Co 786 F Supp 574 (1992); Stump v Ashland Inc 499 SE 2d 41 (WVa 1997); contrast Hickman By and Through Womble v McKain 446 SE 2d 80 (NC 1994) where the plaintiff learnt of an accident to his mother by telephone, and then saw her in the emergency room, but his severe emotional distress was held unforeseeable.

39

McLoughlin v O’Brian [1983] 1 AC 410.

[11.150]

11 Means of Communication

401

opposed to merely learning of it after the event, should be related in some particular degree to the accident victim — to draw a line by reference to any of these criteria must impose a largely arbitrary limit of liability. … [L]et me give [an example] to illustrate what injustice would be wrought by any such hard and fast lines of policy as have been suggested. … [C]onsider the plaintiff who learned after the event of the relevant accident. Take the case of a mother who knows that her husband and children are staying in a certain hotel. She reads in her morning newspaper that it has been the scene of a disastrous fire. She sees in the paper a photograph of unidentifiable victims trapped on the top floor waving for help from the windows. She learns shortly afterwards that all her family have perished. She suffers an acute psychiatric illness. That her illness in these circumstances was a reasonably foreseeable consequence of the events resulting from the fire is undeniable. Yet, is the law to deny her damages as against a defendant whose negligence was responsible for the fire simply on the ground that an important link in the chain of causation of her psychiatric illness was supplied by her imagination of the agonies of mind and body in which her family died, rather than by direct perception of the event?40

[11.150] The necessity for a distinction between perception-produced and communication-produced shock and psychiatric illness was questioned also by some members of the High Court in Jaensch v Coffey.41 Whereas Brennan J stressed the necessity for perception-produced damage,42 Gibbs CJ was reluctant to commit himself on this issue, reserving his opinion on whether shock must arise through the sight or sound of the event or its aftermath. The law, his Honour said, “must continue to proceed in this area step by cautious step”.43 Deane J, pointing out that the rule had not “enjoyed unqualified support”44 in either England or Australia and citing Schneider v Eisovitch45 and Andrews v Williams,46 also viewed the issue as an open one. His Honour was sceptical of the logic behind the traditional attitudes, observing: 40

McLoughlin v O’Brian [1983] 1 AC 410 at 442. The communication of shocking news by writing does not seem to have arisen on many occasions. For a rare example see Barnes v Commonwealth (1937) 37 SR (NSW) 511, discussed at [28.60], where shock was caused as a result of reading a letter stating that a husband had been admitted to a mental asylum. As Lord Bridge’s example illustrates, psychiatric injury is just as likely to be suffered through this medium as any other. Suppose that a person asked to give a confidential reference writes an extremely unfavourable and grossly unfair report and negligently sends it to the subject of the reference rather than to its proper recipient. It could be argued that in this situation any resultant psychiatric harm should be compensable.

41

Jaensch v Coffey (1984) 155 CLR 549.

42

Jaensch v Coffey (1984) 155 CLR 549 at 567. In Anderson v Smith (1990) 101 FLR 34 at 49–50 Nader J observed that one may readily conceive of situations in which a vivid oral account of a traumatic event by a third party could produce shock. His Honour noted that “there is uncertainty as to whether shock induced by oral description would suffice”, but preferred Brennan J’s approach to Deane J’s decision to leave the question open.

43

Jaensch v Coffey (1984) 155 CLR 549 at 555.

44

Jaensch v Coffey (1984) 155 CLR 549 at 608.

45

Schneider v Eisovitch [1960] 2 QB 430.

46

Andrews v Williams [1967] VR 831.

402

Part III: Liability for Mental Harm

[11.160]

It is somewhat difficult to discern an acceptable reason 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 just been killed that she is unable to attend at the scene while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a wife who attends at the scene of the accident or at its aftermath at the hospital when her husband has suffered serious but not fatal injuries.47

This reasoning is entirely convincing. The fact that trauma is orally induced should not be considered as trivialising its impact, or operate to defeat claims based on it.48 [11.160] Even before these careful reservations of opinion there were indications (apart from the emergence of the pre-existing duty exception already dealt with49) that the traditional limitation on recovery might ultimately fade away. In Fagan v Crimes Compensation Tribunal,50 an intentional wrongdoing case, the High Court drew no distinction, for criminal compensation purposes, between children who discovered their mother’s murdered body and the appellant, a child who did not see the body but was picked up from school by relatives rather than his mother, learning of her death later. Although their Honours agreed that tortious principles were inapplicable under the Criminal Injuries Compensation Act 1972 (Vic), Brennan J in particular was of the view that it was foreseeable, in the tortious sense, that the appellant would suffer “nervous shock”.51 The case may be interpreted as suggesting the presence of a duty owed to those who suffer nervous shock and psychiatric illness solely by hearing of the accident.52 The approach taken by the High Court in Fagan has 47

Jaensch v Coffey (1984) 155 CLR 549 at 608–609. Dawson J at 612–613 took a generally similar view, and Murphy J at 556 appeared to suggest that learning of a loved one’s injuries would be sufficient for liability.

48

Deane J’s dictum encouraged the court to find in the plaintiff’s favour in Hanley v Keary (unreported, ACTSC, No 674 of 1989, 28 January 1992), a case decided under the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), as to which see [13.30]. Note also Public Trustee v Commonwealth (unreported, NSWSC, No 10962 of 1985, 8 June 1994), where a husband and wife and their infant son died when an aeroplane crashed on taking off from Kingsford Smith Airport. The wife’s mother suffered shock on learning of her daughter’s death and recovered damages for psychiatric injury. Though an absent parent would have a cause of action under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), there is no mention of the Act, and Abadee J appears to have approached the issue from a common law perspective, drawing support from Deane J.

49

See [11.90]–[11.110].

50

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666.

51

Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 680. Note S Lebovici, “Observations on Children Who Have Witnessed the Violent Death of One of their Parents: A Contribution to the Study of Traumatization” (1974) 1 Int Rev Psychoanalysis 117; CP Malmquist, “Children Who Witness Parental Murder: Posttraumatic Aspects” (1986) 25 J Am Acad Child Psychiatry 320.

52

It is true, however, that the shock also resulted from a more direct experience in that his mother failed to collect him from school. See P Handford, “Shock and Policy: McLoughlin v O’Brian” (1983) 15 UWAL Rev 398 at 408.

[11.180]

11 Means of Communication

403

been adopted in subsequent criminal injuries compensation cases involving absent secondary victims.53 [11.170] Another decision of the early 1980s — though a rather odd one — that appears to give support to this proposition is White v Butcher54 where parents of a teenage girl first heard of a serious accident to their daughter from a police officer who came to their house late one night. They went straight to the hospital, to find her lying unconscious. She did not recover consciousness for the next four days. Both parents suffered psychiatric injury as a result of these experiences. Though they did see her in hospital, Maxwell J appeared to accept without question that this harm stemmed from what they were told, even more so than from what they later saw. His Honour ruled that, once liability to the daughter was established, judgment should be entered for the parents in their actions, subject only to proper proof of “nervous shock”. This laconic acceptance of the parents’ case is puzzling, since a psychiatric injury claim brought by persons such as the parents in this case proceeds on very different principles from a personal injury action by the accident victim. Though the judgment nowhere so suggests, it is possible that the case was in fact brought as a statutory nervous shock claim,55 under which liability to parents does not in any way depend on presence but merely on relationship. It is not easy to see why in New South Wales parents would have preferred to claim under the common law.56 [11.180] Three more recent cases, each decided in a different country, also lent support to the proposition that damages might be granted for psychiatric illness resulting purely from the receipt of distressing news. However, the three courts concerned seem to have failed to appreciate the significance of their decisions which were reached with no discussion of the issues involved. In the New South Wales case of X and Y (By Her Tutor X) v Pal,57 a specialist gynaecologist and obstetrician negligently 53

See Re Fripp (1996) 125 FLR 456 (father and mother of 23-year-old woman stabbed to death outside nightclub were awakened in the middle of the night to be told of their daughter’s death; both were awarded compensation for psychiatric injury); HK v South Australia (unreported, SAFC, No SCGRG 96/1511, 7 March 1997) (HK and her father found HK’s de facto husband in bed with HK’s 14-year-old sister; both were awarded compensation for psychiatric injury).

54

White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982).

55

Under s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW): see [13.30].

56

See also Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 where the plaintiff appears to have been informed of, rather than at the scene or aftermath of, his wife’s and her parents’ deaths when a 630-kilogram sandstone block crushed their car. However an admission of liability prevented examination of the limitations on recovery. Moreover it is unclear whether the husband’s claim was based on s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), under which the means of communication is unimportant: see [16.120]. Another New South Wales case, Budget Rent-a-Car Systems Pty Ltd v Van der Kemp (unreported, NSWCA, CA No 7 of 1984, 21 December 1984), is also equivocal on the communication issue. A husband suing “at common law” who was told of his wife’s death recovered for resultant mental harm, McHugh JA making no mention of s 4 of the 1944 Act.

57

X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26.

404

Part III: Liability for Mental Harm

[11.180]

failed to screen a mother-to-be for syphilis before the birth of her first baby, who died a month later. She was advised that there was no reason why she should not become pregnant again. Her second child was born dysmorphic and mentally retarded and tests after the birth revealed that both child and mother were suffering from syphilis, and that the mother had been infected at some time prior to her first pregnancy. When told these facts, the mother became distraught, was deeply shocked and suffered psychiatric harm. Although attention was chiefly devoted to the claim made on behalf of the baby, the New South Wales Court of Appeal awarded damages to the mother for psychiatric injury suffered as a consequence of the child being born with syphilis without examining in any detail the authorities on this area or even alluding to the means of communication debate.58 In Heighington v Ontario,59 Holland J in the Ontario High Court held that the plaintiffs, who became aware only through having been told that their homes had been built on land contaminated with radioactive waste, were entitled to recover damages if they were able to adduce evidence of recognisable psychiatric illness.60 Perhaps the strongest of the three supportive authorities is the Supreme Court of Nebraska’s decision in Haselhorst v State.61 While express discussion of the sufficiency of purely oral communication was absent here also, the court did address the corollary issue of contemporaneous perception of trauma. An action was brought by the parents of a foster child against, inter alia, the Department of Social Services alleging that they had suffered psychiatric problems in the form of enduring adjustment disorders arising out of the negligent placement with them of a known violent and unstable 15-year-old boy who physically and sexually abused the couple’s four younger children. In a decision that goes against the general trend in the United States,62 the majority 58

Note also Bassanese v Martin (1982) 31 SASR 461 where Zelling J interpreted McLoughlin v O’Brian [1983] 1 AC 410 as making it irrelevant that the plaintiff was not present when her husband was stabbed by the jealous lover of his mistress and suffered shock through hearing of the incident. This analysis, however, takes no account of the aftermath doctrine as extended by their Lordships in that case: see [10.90]. In Mellor v Moran (1985) 2 MVR 461, where a young child recovered for psychiatric illness on the death of her mother in a car accident, it is not obvious from the judgment what the injury-inducing stimulus was. Presumably the child was not at the scene or aftermath and learnt of her mother’s death only by what she was told later but the matter is not free from doubt. In any event, Brennan and Deane JJ’s comments in Jaensch v Coffey (1984) 155 CLR 549 were ignored.

59

Heighington v The Queen in Right of Ontario (1987) 41 DLR (4th) 208.

60

Holland J’s decision on liability issues was affirmed by the Ontario Court of Appeal: Heighington v Ontario (1989) 61 DLR (4th) 190. There was no appeal on damages issues.

61

Haselhorst v State 485 NW 2d 180 (Neb 1992). See also Nichols v Busse 503 NW 2d 173 (Neb 1993).

62

See [11.550]. Note also Prince v Pittston Co 63 FRD 28 (1974), noted (1975) 63 Geo LJ 1179, where the defendant’s motion for summary judgment was dismissed in a case where 30 plaintiffs claimed damages for emotional distress caused by hearing of a flood disaster in Buffalo Creek where they lived. They had been absent at the time of the disaster. The court noted that none of the residents could be denied recovery as a matter of law solely on this ground. Following the denial of summary judgment the parties announced a settlement. For

[11.200]

11 Means of Communication

405

considered it immaterial that the parents had not witnessed or heard the violation of their children and, significantly for present purposes, in upholding the imposition of liability implied that their acquisition of knowledge of it solely through the reports of third parties was not fatal to the psychiatric injury claims. What was important was the fact that the parents had suffered and would continue to suffer from significant mental damage requiring intensive therapy, not the way they had come to suffer it.63 [11.190] Wilks v Haines64 too, while it resists construction as authority supportive of liability for “told only” mental damage, is worthy of consideration in this context. The plaintiff, who was a dormitory supervisor in a home for intellectually handicapped children, suffered shock and resultant psychiatric injury when two work colleagues were murdered and a third injured by an intruder. She appears to have been denied recovery not because her mental injury was due to being told about her colleagues’ fate, but because it stemmed from a realisation that it should have been her. Loveday J gave no indication that where shock is caused as a result of what happens to another, the fact that it is induced by communication only will operate to bar relief.

AUSTRALIAN LAW The common law [11.200] Until the 1990s, no court had broken through the shackles of the older law to hold unambiguously that psychiatric injury caused solely by communication of news of an accident befalling a loved one, unassisted by any subsequent closer involvement at the scene or elsewhere, could give rise to a duty of care. This barrier was first breached in 1991 by two English first instance judges,65 but the English initiative was soon snuffed out.66 However, from 1992 onwards, Australian first instance judges began to take the bold step of recognising that lack of direct perception was not necessarily a decisive obstacle to the existence

a similar procedural ruling see Cook v General Cable Corporation 728 F Supp 38 (1989). On the Buffalo Creek disaster see GM Stern, “The Anguish of Buffalo Creek” (1977) 13 Trial 41; R Rabin, “Dealing with Disasters: Some Thoughts on the Adequacy of the Legal System” (1978) 30 Stan L Rev 281. 63

There is a striking similarity between this case and W v Essex County Council [2001] 2 AC 592, dealt with at [21.300], both as regards the facts of the case and the willingness of the court to disregard orthodox limitations to reach a sensible result.

64

Wilks v Haines (1991) Aust Torts Rep 81-078.

65

Hevican v Ruane [1991] 3 All ER 65; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73.

66

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

406

Part III: Liability for Mental Harm

[11.210]

of a duty.67 These decisions were soon affirmed by important judgments in intermediate appellate courts in three States.68 Despite something of a reaction at this level,69 the Australian High Court eventually confirmed that direct perception was not an essential ingredient of psychiatric injury liability, and that in cases where such harm was reasonably foreseeable in the circumstances the fact that it was caused by communication of news to someone distant from the scene was no more than a factor to be taken into account in the overall assessment.70 In so holding, Australia’s highest court was taking the same step as that already taken by its South African equivalent three years earlier.71 As this accumulation of important authority suggests, courts in the 21st century are now prepared to accept that it is appropriate to permit recovery for “distant shock”.72 Direct perception rejected by lower courts [11.210] The first Australian case to come out in support of this new approach was Petrie v Dowling,73 a decision of Kneipp J in the Queensland Supreme Court. Focusing on the reservations expressed by Deane J in Jaensch v Coffey,74 his Honour, in a ground-breaking decision, ruled that in certain circumstances a plaintiff can recover for shock and psychiatric injury caused solely by what he or she has been told and not contributed to in any way by anything the plaintiff perceived. Although previously compensation had been awarded for nervous damage due to a combination of factors including the communication of news of an accident,75 never before had a claimant clearly recovered for shock caused entirely by what was told to him or her. In this case the plaintiff’s friends came to see her at work and informed her that her daughter had been knocked from her bicycle and hospitalised with gravel rash and concussion. On arriving at the hospital the plaintiff, trying to make light of the situation, quipped “she isn’t dead, is she?” to which a nurse replied “I’m afraid so”. Kneipp J found for the plaintiff, considering that in an appropriate case it is sufficient that it be proved that shock and consequent illness follows on the receipt of distressing news. Of course, a 67

Petrie v Dowling [1992] 1 Qd R 284; Reeve v Brisbane City Council [1995] 2 Qd R 661; Quayle v New South Wales (1995) Aust Torts Rep 81-367. See NJ Mullany, “Negligently Inflicted Psychiatric Injury and the Means of Communication of Trauma – Should It Matter?” in NJ Mullany and AM Linden (eds), Torts Tomorrow: A Tribute to John Fleming (LBC Information Services, Sydney, 1998), p 162.

68 Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1; Pham v Lawson (1997) 68 SASR 124; Hancock v Nominal Defendant [2002] 1 Qd R 578. 69

Morgan v Tame (2000) 49 NSWLR 21; Annetts v Australian Stations Pty Ltd (2000) 23 WAR

35. 70

Tame v New South Wales (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

71

Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

72

The term used by JG Fleming: see [11.30].

73

Petrie v Dowling [1992] 1 Qd R 284.

74

Jaensch v Coffey (1984) 155 CLR 549: see [11.150].

75

See [11.120]–[11.130].

[11.230]

11 Means of Communication

407

decision in any particular case must depend on the circumstances. In the present case the plaintiff attended at the hospital, no doubt distressed at the fact that her daughter had been in an accident but in the belief that she had not sustained serious injury, only to be told bluntly that her daughter had died. In these circumstances … the plaintiff is entitled to recover.76

[11.220] The reference to the way the plaintiff was told about the death perhaps suggests that the mode of communication may have been seen as an important consideration to be taken into account in determining whether the facts grounded recovery. However, this has not been a factor in subsequent cases,77 and this must be correct. Irrespective of whether a plaintiff is informed callously or without compassion or has bad news broken gently and with care, the manner in which the information is conveyed should be seen as immaterial. The vital point is that once it has been accepted that, on principle, psychiatric injury caused solely by what is told is capable of being compensated, the precise nature that the communication took is irrelevant if such damage has in fact been suffered as a result. [11.230] The Supreme Court of Queensland continued to lead the way along this particular path of development with another valuable decision in Reeve v Brisbane City Council78 a few years later. In a judgment that attempted to apply the general proximity doctrine developed by the High Court from the mid-1980s onwards79 to the problem of negligently caused psychiatric injury, Lee J concluded that liability for such harm was not dependent on direct perception by the plaintiff of the accident or its aftermath: there could be a sufficient relationship of proximity where there was a close relationship between the plaintiff and the immediate accident victim, even though the plaintiff had merely been informed of the accident and its tragic consequences.80 The immediate accident victim was Mr Reeve, who was employed as a cleaner at the Carina Bus Depot. He was killed when a bus driver negligently ran him over. Mrs Reeve, the plaintiff, was informed of the accident later that day. She never visited the depot, and did not see her husband’s body until a few days later, when she visited the funeral parlour. It was alleged that she suffered depression and nervous shock as a result of being informed of his death. Lee J approached the issue through an extended discussion of the general proximity requirement, and the three elements inherent in any psychiatric injury claim as identified by Lord Wilberforce in McLoughlin v O’Brian:81 relationship, proximity to the accident, and the means by which the shock was caused. There was no doubt that the relationship between the 76

Petrie v Dowling [1992] 1 Qd R 284 at 286–287.

77

Recovery for the negligent communication of bad news is dealt with in Chapter 28.

78

Reeve v Brisbane City Council [1995] 2 Qd R 661.

79

See [7.150].

80

However, liability was ultimately denied because it could not be established that the psychiatric injury was shock-induced: see [12.40].

81

McLoughlin v O’Brian [1983] 1 AC 410: see [7.250].

408

Part III: Liability for Mental Harm

[11.230]

plaintiff and her husband was close, perhaps even more so than in the usual case of husband and wife; the question was whether this was enough, or whether the necessary proximity was satisfied only in the presence of all three criteria. He put the question this way: [O]n what rational basis can there be imposed a duty to take reasonable care to avoid a foreseeable risk of injury by means of nervous shock in respect of a person willing and able to attend the scene of the accident or its aftermath but not in respect of a person unwilling or by circumstances out of their control unable to attend? How can the plaintiff’s unfortunate presence at or fortuitous absence from the scene of the accident or its aftermath be said in all cases to necessarily affect the nature of the defendant’s negligent actions or his responsibility for the consequences of them? It is only if an acceptable answer to these questions can be found that there can, in my opinion, be any justification for an inflexible condition of the nature suggested.82

His answer was that, in view of Deane J’s emphasis on causal proximity in his seminal judgment in Jaensch v Coffey,83 the second and third limitations, which were based on the now-outdated notion that there should be some physical limitation on the area of recovery, were no longer relevant. He said: [I]f the pre-existing relationship between the plaintiff and the victim coupled with any present causal proximity, whether that causal proximity arises out of the direct perception of the accident or the communication of the distressing events removed from those events, is so strong to supply the necessary proximity, I see no need for any physical proximity between the plaintiff and the accident scene.84

Deane J had expressed doubts about the policy basis of the physical proximity limitation, saying that it was difficult to discern why a public policy rule should preclude recovery in the case of a mother who was so devastated at the news that her husband and children had been killed that she was unable to go to the scene while permitting recovery to a wife who attended the accident scene or the aftermath in hospital where her husband had suffered serious but not fatal injuries.85 Lee J would not stop at this point: I would go one step further and suggest that any such policy is impossible to discern. An additional example, applicable to the circumstances of this case, in which similar considerations would apply would be that of a victim who is not injured but rather killed instantaneously thus affording no opportunity for the plaintiff to view the accident or its aftermath. Is a plaintiff to be denied recovery because the defendant’s negligence was so gross as to cause instantaneous death? I think not. There could be no question that the liability of the defendant will go unchecked. As I have mentioned, it is necessarily constricted by the existence of the closest of relations with the victim and the factual finding that the illness truly related from the shock of the perception. If 82

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 671–672.

83

Jaensch v Coffey (1984) 155 CLR 549.

84

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 674.

85

Jaensch v Coffey (1984) 155 CLR 549 at 608–609.

[11.240]

11 Means of Communication

409

the relationship can be so categorised, I see no reason why attendance at the scene of the accident or its aftermath manifested in some direct or independent perception of that scene is, as a matter of law, required. Of course, if the relationship between the plaintiff and the victim is not so strong other factors will by necessity come into play if the requisite proximity is to be established. In particular, I have no doubt that a person without close ties to the victim, either actual or presumptive, who merely hears of the distressing events would have no cause of action, on the basis that, when considered in terms of the total proximity between the plaintiff and the defendant, it is insufficient to found a duty of care.86

It was simply a matter of balancing the various factors present in the case: [O]ne might readily conceive of a case in which the distressing events as relayed to the plaintiff could affront even the most steadfast of minds, notwithstanding the communication of those events in a setting removed from the accident or its aftermath. In short, each of the factors must be considered and balanced but clearly one or some may be present with such force to push that balance in favour of the plaintiff notwithstanding the absence of another or others.87

[11.240] The Queensland cases affirming liability for communicationcaused psychiatric injury were soon joined by a decision of the New South Wales District Court, Quayle v New South Wales.88 Mark Quayle hanged himself in his cell at Wilcannia Police Station while in custody. He had been suffering due to withdrawal from alcohol, and his brother Gregory took him to hospital for assistance, but instead of being treated was turned over to the police, who put him in a cell. The next day, Constable Coombs, in a police van, pulled up beside Gregory in the street and told him that Mark had hanged himself. Gregory went with him to their home and told their mother and Gerald, Gregory’s twin brother. Later, Gregory and another brother, John, were walking into town when a police van stopped and Constable Coombs asked them to identify Mark’s body, which was in the van.89 Gregory declined to do so, but John complied with the request. Mrs Quayle, Gregory, Gerald and John all suffered psychiatric injury on hearing of Mark’s death, no doubt contributed to by the circumstances of the death and, in the case of Gregory and John, the way in which they were asked to identify the body. All four claimed damages against the police and the hospital. In addition to damages at common law, Mrs Quayle was able to invoke the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which gave a cause of action to a parent whether or not present at the scene.90 In the case of the three brothers, however, the fact that they suffered shock on being told of 86

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 674–675.

87

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 675.

88

Quayle v New South Wales (1995) Aust Torts Rep 81-367, noted by NJ Mullany (1996) 4 Tort L Rev 96.

89

It seems that this was the order in which the two events happened, though one passage in the judgment (at 62,796) may suggest otherwise.

90

See [13.30].

410

Part III: Liability for Mental Harm

[11.250]

the tragedy (which of necessity they could not have seen because it had taken place in a police cell), would under the older law have doomed their claims to failure. However, Hosking DCJ held that the defendants were liable to all four plaintiffs. He was satisfied that there was evidence that each claimant had suffered recognisable psychiatric injury, that it was caused by a want of due care on the part of the defendants, and that the compelling circumstances of each case justified granting recovery. The judgment does not contain a detailed discussion of the law involved. With one exception, the only citation of authority was a statement that a claim based on “nervous shock on report” was not inconsistent with the principles of Jaensch v Coffey91 as enunciated by Gibbs CJ and Deane J. In the case of John, it could perhaps be argued that psychiatric injury resulted from the combined effect of being told of his brother’s death and soon afterwards having to identify his body in the van; but as for the mother and the other two brothers, the medical evidence was clear that it was the communication of the news of Mark’s death that caused them to suffer psychiatric injury, and the judge simply accepted that this was foreseeable in the circumstances, and that it was appropriate that the defendants should be held liable. [11.250] The other authority that Hosking DCJ was able to refer to was the judgment of Kirby P in the then-unreported case of Coates v Government Insurance Office of New South Wales92 in the New South Wales Court of Appeal. His Honour noted that Kirby P’s observations were obiter and made in a dissenting judgment, and therefore strictly speaking did not bind him, but as he said “it would be surely unthinkable that, in the absence of any binding authority, one sitting at my level of the judicial hierarchy would not gratefully accept the guidance of a judge who is the most senior judicial officer in the State save the Chief Justice”.93 Kirby P’s important judgment in the Coates case, the first of a number of appeal court decisions to recognise liability for told-only psychiatric injury, was one of the most strongly persuasive statements in favour of expanding the boundaries of recovery to cover such cases. [11.260] The plaintiffs in Coates v Government Insurance Office of New South Wales94 were the 14-year-old son and 11-year-old daughter of a truck driver killed in a motor vehicle accident while driving his truck to Brisbane, due to the carelessness of a car driver. Steven Coates was informed of his father’s death by police officers who came to the house where he was staying with friends. His mother and his sister Suzanne, who were at a netball carnival in Sydney, were told by police when they returned home. They were thus physically remote from the accident scene and had no contact with the occurrence other than by being informed of 91

Jaensch v Coffey (1984) 155 CLR 549.

92

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, noted by D Mendelson (1995) 3 JLM 8. 93

Quayle v New South Wales (1995) Aust Torts Rep 81-367 at 62,800.

94

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

[11.270]

11 Means of Communication

411

it. Both children were badly affected by their father’s death and claimed damages in the New South Wales District Court. Liability was denied on the ground that neither child could be shown to have suffered a recognisable psychiatric illness. Strangely, the fact that they had no physical connection with the accident, other than being informed of it, was not argued; nor was the judge referred to the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). However, on appeal it was argued that the statutory regime precluded reliance on the common law, and by a notice of contention the respondents sought to raise the issue of lack of direct perception. Kirby P, with Clarke JA tentatively agreeing and Gleeson CJ not deciding, held that the Act did not prevent plaintiffs relying on the common law, but Gleeson CJ and Clarke JA dismissed the appeal on the ground relied on by the trial judge, that there was no recognisable psychiatric injury. Kirby P dissented on this issue,95 but the most important aspect of the case for present purposes is that he also took the opportunity to state that recovery was not precluded because the plaintiff was not within sight or hearing of the event or its immediate aftermath. The other judges shortly discussed this issue but said that it was not necessary to decide it.96 [11.270] Kirby P said that on the Australian authorities, including Jaensch v Coffey,97 the issue of recovery for communication-induced nervous shock suffered by relatives remained open. He proceeded to examine whether there were good reasons for excluding recovery in such cases. He said: I concede the difficulty of drawing lines on policy grounds to restrict the exposure of tortfeasors to liability for nervous shock caused by a message of injury or death consequential upon the tort. However, provided the requisite factors of foreseeability and proximity98 are demonstrated, the logic which traditionally prohibits recovery where a plaintiff has been told of the incident and its effects, as opposed to directly perceiving the incident, is unsustainable: see NJ Mullany & PR Handford, Tort Liability for Psychiatric Damage: The Law of “Nervous Shock” (1993) Sydney, The Law Book Co Ltd, at 160. I accept, with respect, the logic of Deane J’s comments on the issue in Jaensch v Coffey (at 608) …. Rather, I suggest, it is clearly foreseeable that, the young, loving children, at least, of a particular person seriously injured or killed will shortly be informed of the injuries or death and may, in certain cases, then suffer such a serious instance of “nervous shock” as to warrant holding the tortfeasor liable. Damage to such persons is certainly foreseeable in the ordinary course of human experience. In some cases that damage may take the form of nervous shock. The artificiality of restricting recovery to perceptions derived directly 95

See [6.220].

96

See Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 5–7 per Gleeson CJ, at 22–23 per Clarke JA.

97 98

Jaensch v Coffey (1984) 155 CLR 549.

Clearly a reference to the general proximity doctrine then endorsed by the High Court, rather than physical proximity.

412

Part III: Liability for Mental Harm

[11.280]

from active, physical proximity to the happening of the tort, or to its immediate aftermath, has been pointed out in numerous cases and academic commentary.99

It might be rational and manageable, though it would also be harsh, to draw a line and exclude from recovery all third party claims for psychiatric injury; but it would be neither rational nor manageable to draw the lines of recovery based on presence, or direct perception by sight and sound, or the precise legal relationship between the claimant and the immediate victim: The law should now recognise that, at least from a medical understanding of the outdated legal denomination of “nervous shock”, it is as much the direct emotional involvement of the plaintiff in an accident or perilous situation, as his or her physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage. … There is no binding Australian authority to control the decision of this Court on this point. There is no reason of legal principle or policy to exclude reasonably foreseeable damage to persons such as the appellant children of the deceased person. I would therefore not be prepared to exclude them from recovery for proved “nervous shock” simply because they were not in the sight or hearing of the event which led to their father’s death or its “immediate aftermath”, whatever that phrase may precisely mean.100

[11.280] To Kirby P’s support for allowing recovery to plaintiffs who suffered psychiatric injury on being informed of a tragic accident to loved ones was very soon added the unanimous view of the South Australian Full Supreme Court in Pham v Lawson.101 Mrs Lawson suffered “nervous shock and grief” on hearing of the death of her seven-year-old daughter Ashley in a road accident. Her husband had gone to fetch Ashley and her four-year-old brother home from their grandparents’ house late at night, and a neighbour telephoned her to say that the police had been trying to wake her to inform her of the accident. She was driven to hospital via the site of the accident, and saw the lights of vehicles there. At the hospital she saw her injured husband, and also her son, who was uninjured but told her graphic details of what had happened to Ashley. She insisted on dressing her deceased daughter for her funeral, and while she was doing 99

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 9–10. Kirby P went on to highlight the importance of telephonic communications in transmitting shocking news: see [11.650].

100

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 11. One indicator of the influence of Kirby P’s judgment in this case may be NSW Insurance Ministerial Corporation v Gomes (unreported, NSWCA, CA No 40052 of 1996, 26 October 1998). The plaintiff was told by police who arrived at his home early one morning that his father had been killed instantly when his taxi had been involved in a head-on collision. The plaintiff appears to have gone to the morgue, but had no other contact with the accident or its aftermath. He suffered a grief reaction that caused schizophrenia. Liability was admitted. It seems this can only be because Kirby P’s views were accepted as correct by the defence; since the plaintiff was not present, he had no cause of action under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).

101

Pham v Lawson (1997) 68 SASR 124, noted by D Butler (1998) 6 TLJ 195.

[11.290]

11 Means of Communication

413

so blood flowed out of the body. She had a very special attachment to Ashley — indeed, her initial reaction on seeing her uninjured son was that he should have been the one to die, not her daughter. She was later diagnosed as suffering a bereavement reaction complicated by posttraumatic stress disorder. At first instance, she was awarded damages against the negligent driver, who appealed on a number of grounds including that the judge should have found that her psychiatric condition was caused by learning of her daughter’s accident from a police officer, and that he had failed to exclude from the assessment grief and the consequences that flowed from it. [11.290] The Full Court dismissed the appeal, but reduced the damages to reflect the fact that grief and bereavement were not compensable.102 On the communication issue, it was accepted that the trial judge had identified seven stressors: being woken and being told by the police that her child was dead, being driven to hospital and seeing the lights at the scene of the accident, seeing her husband at the hospital, being told by her son how her daughter’s body had been flung out of the car, the blood flowing out of the body when she was dressing her for the burial, a visit by the police to take a statement at the time of the funeral, and being told about the details of the accident by a police officer. Lander J, who gave the principal judgment, concluded on a review of the authorities that Whether in any particular case a duty of care is owed is a matter of fact. The finding that a duty of care exists is more likely when the person is a relative who attended at the scene of the accident and perceived himself or herself the injury to the loved one. The existence of the duty of care becomes less likely as all of the matters which are important for its existence become more remote. So that if the relative was not at the scene or does not attend at the scene then there is less likelihood of the determination of a duty of care as that person has less direct involvement in space and time and therefore less direct perception of the injuries suffered by the person for whom that relative cares. It is a matter of degree. It is a matter of common sense when the stage is reached that a court must say there can be no duty of care in a given case because the involvement of the person who suffered the nervous shock is not sufficiently close in terms of relationship, involvement or perception. That stage is reached when the facts of the case demonstrate that it is not appropriate to erect a duty of care.103

Lander J held that though the fourth to seventh stressors were irrelevant, a combination of the first three stressors was sufficient to establish the existence of a duty. This being so, there was no need to deal with the appellant’s argument that the only operative stressor was being told by the police of the death of her daughter: the case was not one where the psychiatric injury was occasioned only by receipt of the communication of her daughter’s death. But in case the matter went further and he was 102

On this aspect of the case, see [4.150]. The court also discussed the effect of the Wrongs Act 1936 (SA), s 35A: see [13.200]–[13.210]. 103

Pham v Lawson (1997) 68 SASR 124 at 144.

414

Part III: Liability for Mental Harm

[11.300]

thought wrong about the effect of the stressors, he held that even if the injury had been caused solely by such communication a duty of care could nevertheless exist: There is no doubt that it is foreseeable that if a tortfeasor injures or kills a child that child’s mother might suffer injury in receiving the information of the injury or death. There is no reason in logic to exclude those persons from claims for nervous shock. The reason to deny them a right to claim lies in policy in restricting the liability of a tortfeasor to the direct consequences of his or her tort and to those who were in some way close in relationship to the person injured or killed, or were at the aftermath, which includes the hospital.104

Petrie v Dowling105 and Coates v Government Insurance Office of New South Wales106 were cited in support of this proposition. Importantly, though Cox J reserved his opinion on the issue, Lander J’s judgment was fully concurred in by Bollen J. [11.300] In 2001, a third State appeal court added its support to the growing body of appellate authority in favour of recognising recovery for told-only mental harm.107 The Queensland Court of Appeal in Hancock v Nominal Defendant108 held that a person who negligently caused injury or death to another owed a duty to take care not to cause psychiatric injury to a plaintiff who was not present but was merely told about it, at least where there was a close tie of love and affection between the plaintiff and the immediate accident victim. The plaintiff’s son was killed in a late-night motor vehicle accident while a passenger in a friend’s car. The circumstances were particularly horrifying, in that one of the bodies had been decapitated. Identification was impossible until dental records could be checked. The plaintiff first heard of the accident via a telephone call from his former mother-in-law the following morning, and had to endure the uncertainty of not knowing until mid-afternoon when the identification was finally made. He was very close to his son, despite difficulties in his marriage and his divorce from his son’s mother. He suffered an acute stress reaction and post-traumatic stress disorder, and sued the Nominal Defendant for damages caused by the negligent driver. Important evidence was given by a psychiatrist who said that psychological damage did not result only from confronting the event by being present, but that such confrontation could include news of the event, which for some people might be more horrific than being there. The defendant was adjudged liable, and the Court of Appeal unanimously dismissed the appeal. 104

Pham v Lawson (1997) 68 SASR 124 at 148.

105

Petrie v Dowling [1992] 1 Qd R 284.

106

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

107

Note also the obiter dictum in favour of direct perception by MF McNamara, Deputy President, in Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997): for this case, see [13.250].

108

Hancock v Nominal Defendant [2002] 1 Qd R 578.

[11.320]

11 Means of Communication

415

[11.310] The authorities for and against the proposition were fully considered, but the court preferred the views expressed by other appellate courts in Coates v Government Insurance Office of New South Wales109 and Pham v Lawson110 and in the earlier Queensland first instance decisions in Petrie v Dowling111 and Reeve v Brisbane City Council.112 Davies JA, in the leading judgment, after a wide-ranging review of all the authorities, Australian and overseas, concluded: In my opinion, unless there are strong policy grounds for stultifying the development of the common law in this area, the requirement of direct perception of the relevant incident or its immediate aftermath should not be accepted, at least where there are close ties of affection between the plaintiff and the person injured or killed, notwithstanding its acceptance by the House of Lords113 and by Brennan J and, apparently, by Dawson J.114 The difficulty expressed by Deane J in accepting such a requirement, the reasoning of Kirby P in Coates, the rhetorical questions posed by Lee J in Reeve and the evidence in this case show that there is no logical or medical basis, in determining liability, for any distinction to be made between psychiatric injury caused by being told of an horrific accident to a loved one and one caused by seeing or hearing that accident or being present at its aftermath. Moreover the invention of the artificial and uncertain aftermath doctrine has already demonstrated the unnecessarily restrictive nature of the arbitrary rule.115

Suggested policy considerations such as the risk of indeterminate liability were decisively rejected. Apart from foreseeability and causation, the most important factor relevant to recovery was the closeness of the tie of love and affection between the plaintiff and the victim. Where that tie was very close, no further control mechanism was needed. This case confirmed the strong line of Queensland authority in favour of accepting that a duty could exist in cases of communication-caused shock.116 The conservative reaction [11.320] At the close of the 20th century, some appellate judges began to adopt a more conservative approach to the authorities on this issue. In Western Australia, the Full Court of the Supreme Court refused to follow 109

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

110

Pham v Lawson (1997) 68 SASR 124.

111

Petrie v Dowling [1992] 1 Qd R 284.

112

Reeve v Brisbane City Council [1995] 2 Qd R 661.

113

In Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see [11.490].

114

In Jaensch v Coffey (1984) 155 CLR 549.

115

Hancock v Nominal Defendant [2002] 1 Qd R 578 at [84].

116

Note also Smithwick v Queensland [2001] QSC 175, where the judge initially refused the plaintiff leave to include a claim for psychiatric injury because the plaintiff did not perceive either the incident or its aftermath, on the basis of what he understood to be the law. The Queensland Court of Appeal decided Hancock v Nominal Defendant [2002] 1 Qd R 578 a week later and on the plaintiff again applying for leave to amend, it was granted. Dutney J held that the only reason for refusal was the absence of direct perception. There was no reason to put the plaintiff to the cost of an appeal if a Court of Appeal decision had resulted in a change in understanding of what the common law was, making the first decision obsolete.

416

Part III: Liability for Mental Harm

[11.330]

the other State decisions, and this caused the New South Wales Court of Appeal to adopt a more cautious approach. Though Queensland and South Australia never deviated from the more liberal view, these differences clearly required resolution, which was ultimately provided by the High Court when it heard the appeals in each of the cases in question. [11.330] The Western Australian case, Annetts v Australian Stations Pty Ltd,117 was from the first destined to be a cause célèbre.118 In August 1986, 16-year-old James Annetts left his family home in Binya in New South Wales to go and work as a jackaroo on the defendant’s cattle station at Flora Valley, about 40 kilometres south-east of Halls Creek, in the Kimberley District in the far north of Western Australia. Before allowing him to leave home, his mother telephoned his prospective employers to seek assurances about the conditions under which he would be working, and was told that he would work under constant supervision, be properly fed and well looked after. However, seven weeks after his arrival, he was sent to an outlying part of the station 100 kilometres away, to work alone as a caretaker. After a few weeks of this, he and Simon Amos, another teenager employed by the defendant on another property, decided to run away. The first his parents knew of this was when the police phoned them on 6 December 1986 to tell them that James was missing. Mr Annetts collapsed and Mrs Annetts took over the conversation. In January 1987 they visited Halls Creek and were shown some of their son’s belongings, including a hat covered in blood. For the next four months they waited anxiously for news, constantly telephoning the police in Halls Creek and making several further visits there in an effort to obtain more information. Eventually, on 26 April 1987, they received another fateful telephone call: the vehicle driven by James had been found bogged in the desert. Later the same day, they were informed that the bodies of the two teenagers had been found. Mr Annetts again flew to Halls Creek and identified James’ remains from a photograph. James had died on or about 4 December 1986 of dehydration, exhaustion and hypothermia, and it appeared that Simon had shot himself. Having gone all the way to the High Court to establish their right to be heard in the coronial inquiry,119 Mr and Mrs Annetts sued their son’s employers for damages for psychiatric injury, and the duty question was dealt with as a preliminary issue. [11.340] Heenan J at first instance held that psychiatric injury was foreseeable in the circumstances, but that foreseeability alone was not enough.120 While he did not in terms rule that direct perception was necessary, he applied the approach of the South Australian Full Court in 117

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

118

See eg “Parents sue over jackaroo’s death”, “The West Australian”, 10 November 1995.

119

See Annetts v McCann (1990) 170 CLR 596.

120

Annetts v Australian Stations Pty Ltd [2000] WASC 104.

[11.350]

11 Means of Communication

417

Pham v Lawson121 that the existence of a duty becomes less likely as all of the matters that are important for its existence become more remote. Here the parties were separated from the accident in time and space, and by the fact that the knowledge was imparted by telephone, not by a sudden sensory perception by persons directly involved. Though their relationship was close, their perception of events was remote, and there was not enough to give rise to a duty of care. It was probably inevitable that a first instance judge would reach such a conclusion, given the absence of Western Australian authority. Although the judgment does not always distinguish clearly between the issues of aftermath, means of perception and sudden shock, it at least adopted a sympathetic approach in that it accepted that psychiatric injury was foreseeable in such circumstances, and ruled against the duty by reference to the flexible approach adopted in Pham rather than any doctrinaire adoption of direct perception. [11.350] The Full Court were much more conservative and uncompromising in their rejection of the plaintiff’s case.122 To begin with, fault was found with the plaintiffs’ pleadings. Ipp J (in a judgment supported by Malcolm CJ, Pidgeon J agreeing with both judgments) said that it was not clear whether the plaintiffs’ argument was that they suffered psychiatric injury immediately on receipt of the initial phone call, or as a result of the whole process of uncertainty over the ensuing months culminating in the final discovery of the bodies. He was forced to deal with the matter by considering each of these alternatives in turn.123 He adopted the general standpoint that in an area where the law was not yet certain, it was the task of an intermediate appellate court to be conservative.124 Unlike Heenan J at first instance, neither Ipp J nor Malcolm CJ was prepared to concede that psychiatric injury was foreseeable in the circumstances of the case, whichever of the two alternative assumptions was correct. On the first scenario, on the basis of what the plaintiffs were told — that their son had disappeared — a reasonable parent might suffer anxiety and grief but not psychiatric injury. As for the second alternative, it was not reasonably foreseeable that a parent of normal fortitude would suffer psychiatric injury on being told of the death of a 16-year-old child.125 This was enough to decide the case, but Ipp J, with Malcolm CJ concurring, went on to hold that the added element of “proximity” was lacking also, because there was no direct perception. The court was minded to follow Windeyer J in Mount Isa Mines Ltd v Pusey,126 Brennan J in Jaensch v Coffey127 and the conservative 121

Pham v Lawson (1997) 68 SASR 124.

122

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

123

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [34]–[46]. See also Malcolm CJ at [2]–[10].

124

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [47].

125

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [78]–[85] per Ipp J, at [13] per Malcolm CJ. 126

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407.

418

Part III: Liability for Mental Harm

[11.360]

view espoused by the House of Lords in the English Hillsborough cases128 rather than the more liberal Australian authorities. On the facts, there was no direct involvement with the accident, apart from identifying the body and viewing a hat with blood on it. On the first scenario, there was no geographical proximity; on the second, if the nine hours’ delay before the Hillsborough victims saw the bodies was too long, clearly four months was way outside the limit.129 [11.360] This decision set up a chain reaction when the New South Wales Court of Appeal next had occasion to consider the direct perception issue in Gifford v Strang Patrick Stevedoring Ltd.130 Though Hodgson JA gave the major judgment, it is perhaps noteworthy that one of the other members of the court was Ipp AJA, on a judicial exchange to New South Wales.131 The case concerned the death of a worker run over by a forklift truck. His wife (from whom he was separated) was informed at her place of work soon afterwards, and her three children were told the sad news at home, in her presence, later that day. All were shocked and distressed. They were discouraged from seeing the body because of its condition. All four sued for damages for psychiatric injury. In part, the judgments were concerned with whether the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4 or the Workers Compensation Act 1987 (NSW), s 151P displaced the common law.132 Leaving these issues aside, the wife’s claim was rejected on the ground that she could not prove that she had suffered psychiatric injury, as distinct from some lesser emotional state, and the sons’ claims failed because of lack of direct perception. It was held that the views of Windeyer and Brennan JJ and the other authorities discussed by the Full Court in Annetts v Australian Stations Pty Ltd133 should prevail. The hardline attitude adopted by the New South Wales Court of Appeal in this case was reflected in later New South Wales decisions.134

127

Jaensch v Coffey (1984) 155 CLR 549 at 567.

128

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 129 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [105]–[125] per Ipp J, at [14]–[19] per Malcolm CJ. 130

Gifford v Strang Patrick Stevedoring Ltd (2001) 51 NSWLR 606. Direct perception was not an issue in its previous decision in Morgan v Tame (2000) 49 NSWLR 21.

131

He subsequently became a permanent member of the New South Wales Court of Appeal.

132

See [16.80]–[16.100].

133

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

134

See Simms v Western Sydney Area Health Service [2001] NSWSC 795, where Master Malpass said of a husband’s claim for psychiatric injury caused by his son being born with cerebral palsy that in the light of Gifford it was “a modest one having slender prospects of success” (at [22]). In AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619, Heydon JA at [161] took the opportunity to refer briefly to the contrary views, although there had been no argument on the issue.

[11.380]

11 Means of Communication

419

Direct perception rejected by the High Court [11.370] The conflict in the Australian authorities at Full Court and Court of Appeal level was finally resolved by the High Court in its ground-breaking 2002 decision in Tame v New South Wales,135 in which the appeal from the Western Australian decision in Annetts v Australian Stations Pty Ltd136 was heard together with Mrs Tame’s appeal against the decision of the New South Wales Court of Appeal rejecting her claim for psychiatric injury arising from the negligent insertion of a wrong breathalyser reading in an accident report form (a case which did not raise the direct perception issue).137 Together, these two cases allowed the High Court to reconsider almost every aspect of the law relating to negligently caused psychiatric injury. [11.380] The High Court unanimously overturned the decision of the court below in Annetts v Australian Stations Pty Ltd,138 holding that Mr and Mrs Annetts were owed a duty of care. Five of the seven judges held that the direct perception requirement should no longer be considered an essential ingredient of a duty of care in psychiatric injury cases. A sixth judge, Callinan J, retained it, but in an attenuated form.139 In the other judgment, McHugh J took a view of the case that enabled him to bypass the issue.140 In the fullest discussion of the issue, Gummow and Kirby JJ in their joint judgment said that the direct perception limitation had never been authoritatively adopted by the High Court. In Jaensch v Coffey,141 the only judge to endorse it had been Brennan J. Gibbs CJ had expressly reserved his position, Deane J had doubted the need for direct perception, Murphy J appeared to suggest that learning of a loved one’s injuries 135

Tame v New South Wales (2002) 211 CLR 317: see P Handford, “Psychiatric Injury: The New Era” (2003) 11 Tort L Rev 13.

136

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

137

See Morgan v Tame (2000) 49 NSWLR 21.

138

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

139

Tame v New South Wales (2002) 211 CLR 317 at [365]. His formulation of the requirement is complex and difficult to understand: “I would regard a requirement of direct perception as being no more than a requirement that, by one or other of the senses, a ‘bilaterally related person’ perceive, or come to know of, or realise, at the time of, or as soon as is practicable after its occurrence, a shocking event or its shocking aftermath. So long as, in the case of non-contemporaneity, the lapse of time would not have caused a person of normal fortitude to have reached a settled state of mind about the event, the temporal connection will be capable of existing.” It is submitted that in view of the other judgments this statement is of no account and can be disregarded. Elliott v Bali Bungy Co [2002] NSWSC 906 is an example of how confusion may result from relying on Callinan J’s statement, which Young CJ in Eq said at [41] was “as good a guidance to the ratio as anything else in the case”. Having quoted the above passage, his Honour commented (at [42]): “It follows that the mere informing of the deceased’s relatives of their death will not be enough. Nor probably would be the viewing of the body when it was brought back to NSW days later. That would not be the immediate aftermath of the accident.” With respect, it is suggested that this misses the fundamental importance of the decision in Tame v New South Wales.

140

See [22.70].

141

Jaensch v Coffey (1984) 155 CLR 549.

420

Part III: Liability for Mental Harm

[11.390]

would be sufficient and Dawson J did not conclusively reject such a proposition. A review of the case law in lower Australian courts and overseas revealed similar differences. In their Honours’ view, any rule that made liability for psychiatric injury conditional on the geographical or temporal distance of the plaintiff from the distressing phenomenon, or on the means by which the plaintiff acquired knowledge of that phenomenon, was apt to produce arbitrary outcomes and exclude meritorious claims. Affirming a point often made in both the legal and the psychiatric literature, they said that the most significant causal factor in psychiatric illness cases was not direct perception or the manner in which the horror of the event was conveyed, but the relationship between the plaintiff and the accident victim.142 Their Honours concluded: Distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge concerning that phenomenon, may be relevant to assessing reasonable foreseeability, causation and remoteness of damage in a common law action for negligently inflicted psychiatric illness. But they are not in themselves decisive of liability. To reason otherwise is to transform a factor that favours finding a duty of care in some cases into a general prerequisite for a duty in all cases. This carries with it the risk of attribution of disproportionate significance to what may be no more than inconsequential circumstances.143

Gleeson CJ concurred in this judgment,144 Gaudron J suggested that direct perception imposed limitations inconsistent with Lord Atkin’s neighbour principle,145 and Hayne J agreed with the direction taken in the other judgments.146 [11.390] There is no doubt that, once the need for direct perception has been put aside, this was a strong case for the recognition of a duty of care: the closeness of the relationship between Mr and Mrs Annetts and their 16-year-old son, together with the assurances made to them, without which they would not have allowed him to go and work in a remote part of Western Australia thousands of kilometres from home, clearly demonstrated the foreseeability of psychiatric injury.147 It is not clear that the High Court would necessarily have affirmed earlier decisions in which there was no similar previous relationship, such as Petrie v Dowling,148 where the mother who was told that her daughter was dead 142

Tame v New South Wales (2002) 211 CLR 317 at [222].

143

Tame v New South Wales (2002) 211 CLR 317 at [225].

144

Tame v New South Wales (2002) 211 CLR 317 at [18].

145

Tame v New South Wales (2002) 211 CLR 317 at [51]: see Donoghue v Stevenson [1932] AC 562 at 580.

146

Tame v New South Wales (2002) 211 CLR 317 at [256]–[272].

147

For another typically Australian bush scenario, note “State sued over boy’s croc death”, The West Australian, 19 March 2016. A mother whose child was taken into State care was said to be suing the Department for Child Protection and Family Support over his “foreseeable” death: the child had run away from a children’s camp and was trying to get back to a remote Aboriginal community when he was attacked by a crocodile.

148

Petrie v Dowling [1992] 1 Qd R 284: see [11.210].

[11.400]

11 Means of Communication

421

had no previous connection with the hospital. However, the expansion brought about by the High Court in Tame v New South Wales149 is nevertheless considerable, as shown by its subsequent decision on the appeal from the New South Wales Court of Appeal’s decision in Gifford v Strang Patrick Stevedoring Pty Ltd.150 Though there was an existing employment relationship between the deceased and his employer, there was no real equivalent of the assurances given to Mr and Mrs Annetts to connect Strang Patrick Stevedoring with the members of Mr Gifford’s family, and yet the High Court had no hesitation in recognising that the logic of their earlier decision meant that Mr Gifford’s three children were each owed a duty of care.151 In effect, an employer can now be reasonably expected to foresee that if death or serious harm befalls the worker as a result of employer negligence psychiatric injury to family members may result.152 Likewise, it appears that close family members of persons killed or seriously injured in motor vehicle accidents will not have great difficulty in showing that they were owed a duty of care not to cause them psychiatric injury, even though they were nowhere near the scene of the accident. In Cubbon v Roads and Traffic Authority of New South Wales,153 three adult children of Dorothy Cubbon claimed damages for psychiatric injury suffered as a result of the deaths of their mother and their sister Maree in a road accident. In the initial decision, given before the High Court judgments in Tame and Gifford, liability was denied because of the absence of direct perception; once those judgments had been handed down, leave to appeal was given on the basis that the trial judge had applied the wrong test, and the New South Wales Court of Appeal without much difficulty found in the plaintiffs’ favour. [11.400] The present Australian position, therefore, is that liability for negligently caused psychiatric injury is now largely a matter of foreseeability, and direct perception is no longer an essential requirement.154 This is not to say that it is now irrelevant in the application of the foreseeability test, simply that there is no rule excluding a duty of care where direct perception is not present. In cases where the plaintiff is within the aftermath according to established principles, this can still be a key factor in establishing foreseeability; but in cases such as 149

Tame v New South Wales (2002) 211 CLR 317.

150

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, noted by P Handford (2003) 11 Tort L Rev 127. Note Mills v Central Sydney Area Health Service [2002] NSWSC 728, suggesting that in the light of the granting of special leave in Gifford, a psychiatric injury claim by the son of a murder patient had a chance of succeeding and should go to trial. 151

The case was remitted to the New South Wales District Court for assessment of damages: see Gifford v Strang Patrick Stevedoring Pty Ltd [2007] NSWCA 50.

152

The implications of this are further explored at [22.50]–[22.140].

153

Cubbon v Roads and Traffic Authority of New South Wales (2004) Aust Torts Rep 81-761.

154

See eg New South Wales v Napier [2002] NSWCA 402 at [67] per Mason P; Whayman v Motor Accidents Insurance Board [2003] TASSC 149; Skea v NRMA Insurance Ltd (2005) 43 MVR 495 at [102] per Lander J.

422

Part III: Liability for Mental Harm

[11.410]

Annetts v Australian Stations155 and Gifford v Strang Patrick Stevedoring Pty Ltd,156 where the plaintiff is nowhere near the accident site and psychiatric injury is entirely communication-caused, the close ties of love and affection establish foreseeability and there is no need for any other factor.157

The Civil Liability Acts [11.410] In five of the six jurisdictions with Civil Liability Act provisions setting out the scope of liability for mental harm, one of the circumstances to be taken into account is whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril.158 Since witnessing at the scene is not a requirement of liability under these provisions, it can be said that the legislation allows a court, when determining whether the defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness if reasonable care were not taken, to take into account the means by which a person becomes aware that another person has been killed, injured or put in peril, and to make a finding of liability if the test is met even in the absence of direct perception. Interpreting the legislation in this way would be consistent with the Australian common law. There was no intention on the part of the Ipp Report to recommend any narrowing of the common law as expressed by the High Court in Tame v New South Wales,159 and its recommendation for a legislative statement of the current state of the law made it clear that whether the plaintiff witnessed shocking events or their aftermath with his or her own unaided senses was a relevant factor, alongside whether the plaintiff was at the scene of the events or witnessed them or their aftermath.160 The way in which these two factors were condensed into one, with a resultant emphasis on witnessing, at the scene, persons being killed, injured or put in peril, has been related in Chapter 10.161 [11.420] Though there are clear differences between the legislation as enacted and the Ipp Report’s recommendation, it is suggested that whether the plaintiff witnessed the events happening at the scene is still 155

Ie the Annetts appeal in Tame v New South Wales (2002) 211 CLR 317.

156

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

157

Cases where defendants were held liable to family members who were told of an accident to a close relative, and who did not at any time go to the scene, include Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 (brothers’ claim); Gosling v Lorne Foreshore Committee of Management Inc [2009] VSCA 228. Note also McKenzie v Lichter [2005] VSC 61 (liability admitted).

158

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(b); Civil Liability Act 2002 (NSW), s 32(2)(b); Civil Liability Act 1936 (SA), s 33(2)(a)(ii); Wrongs Act 1958 (Vic), s 72(2)(b); Civil Liability Act 2002 (WA), s 5S(2)(b). The Tasmanian legislation does not contain this provision: see [2.290].

159

Tame v New South Wales (2002) 211 CLR 317.

160

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendation 34. 161

See [10.170].

[11.430]

11 Means of Communication

423

only a factor: consistently with the process of common law development, the legislation should still permit a finding of liability in the absence of direct perception if the court is satisfied that the foreseeability test has been met. This is confirmed by the growing body of case law applying the mental harm provisions. There are now several cases where courts have allowed recovery under the statutes despite the absence of direct perception. In Waverley Council v Ferreira,162 for example, Martin Ferreira, aged 12, died when he fell through a skylight in the roof of a building in a park used as a part-time play centre. His father suffered mental harm when told of Martin’s death. The council accepted that it owed a duty not to cause him mental harm under s 32 of the Civil Liability Act 2002 (NSW). The New South Wales Court of Appeal confirmed that the council was in breach of this duty of care and liable to pay damages.163 Anthony v Australian Native Landscapes164 is another good example, especially so in that, unlike Waverley Council v Ferreira, liability under s 32 was not conceded. In this case a young trainee was cleaning a conveyor machine blocked with green waste mulch when his arm was dragged into the moving roller, severing it at the shoulder. His mother suffered shock when told of the accident, and was diagnosed as suffering from a dysthymic disorder and a panic disorder. The defendant denied that it owed her a duty, or that it was in breach, but the court found that there had been a breach of the duty under s 32. [11.430] There is one important qualification. Though the Ipp Report did not so recommend,165 four jurisdictions introduced additional legislative provisions narrowing the scope of liability for mental harm,166 so undoing some of the previous common law development. The provisions all differ in their details, but in general the effect is that in cases where the relationship between the plaintiff and the primary victim does not satisfy the legislative requirements about close ties of relationship, plaintiffs have to witness, at the scene, a person being killed, injured or put in peril (New South Wales and Victoria), or be present at the scene when the accident occurs (South Australia); in Tasmania, presence at the aftermath is sufficient. What is common to the legislation in all four jurisdictions is that non-relatives who do not satisfy these requirements 162

Waverley Council v Ferreira [2005] NSWCA 418.

163

See also Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185. Damages were also awarded in McKenna v Hunter & New England Local Health District (2014) Aust Torts Rep 82-158, but the decision was reversed by the High Court on the ground that the hospital’s duties under the Mental Health Act 1990 (NSW) were inconsistent with owing a duty of care to relatives: Hunter & New England Local Health District v McKenna (2014) 253 CLR 270.

164

Anthony v Australian Native Landscapes [2008] NSWDC 109.

165

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), paras 9.19–9.28. 166

Civil Liability Act 2002 (NSW), s 30; Civil Liability Act 1936 (SA), s 53; Civil Liability Act 2002 (Tas), s 32; Wrongs Act 1958 (Vic), s 73.

424

Part III: Liability for Mental Harm

[11.440]

cannot recover. These provisions — already the subject of two High Court decisions167 — are dealt with in detail in Chapter 13.

THE LAW ELSEWHERE Rejection of the direct perception requirement [11.440] Australia is not the only jurisdiction to abandon the need for direct perception in secondary victim cases. The Australian High Court was able to take account of a similarly important development in South African law, namely the decision of the Supreme Court of Appeal in Barnard v Santam Bpk.168 Once upon a time, South Africa had definitively affirmed the need for direct perception.169 Though at one time the development of liability for psychiatric injury had proceeded more slowly in South African law than elsewhere, it has caught up in recent years,170 and in 1999 South Africa became the first jurisdiction to abandon the direct perception requirement. In Barnard, the plaintiff’s 13-year-old son was a passenger in a bus involved in a collision with a car, sustained serious injuries and died shortly afterwards. A few hours later, the plaintiff’s husband informed her that he had received a telephone call from a doctor at the hospital telling him that their son had died. The news had a devastating effect on her both at the time and long afterwards, and she sued for damages for “serious nervous shock” and its effects. The Transvaal trial court was asked to determine whether the shock amounted to damages recoverable in law. The defendant argued that the plaintiff had not been present at the scene, and that the shock was not foreseeable. Mainly because in his view the element of foreseeability was not present, the trial judge decided in the defendant’s favour.171 The Supreme Court of Appeal allowed the appeal, holding that it was foreseeable that the plaintiff might suffer nervous shock in the circumstances of the case, and that the law should not exclude “hearsay claims”. Van Heerden DCJ reviewed the authorities, noting particularly the differences between England, which gave no remedy in such circumstances,172 and the more sympathetic approach of Australian law. He rejected the trial judge’s approach to the foreseeability issue, saying that he had taken into account policy questions that were irrelevant to foreseeability. Such issues fell to be reviewed under the heading of legal causation (roughly equivalent to 167

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; King v Philcox (2015) 89 ALJR 582.

168

Barnard v Santam Bpk 1999 (1) SA 202 (SCA), noted by J Burchell (1999) 116 SALJ 697; NJ Mullany (2000) 116 LQR 29; J Neethling, Annual Survey of South African Law 1999 (Juta, Cape Town, 2000), p 251. The decision was cited by the Queensland Court of Appeal in Hancock v Nominal Defendant [2002] 1 Qd R 578.

169

See Waring & Gillow Ltd v Sherborne 1904 TS 340 where recovery was denied to a wife who suffered shock on receiving a report of her husband’s death. 170

See [3.540]–[3.550].

171

Barnard v Santam Bpk 1997 (4) SA 1032 (T), noted by J Neethling, Annual Survey of South African Law 1997 (Juta, Cape Town, 1998), p 264.

172

See [11.460]–[11.510].

[11.450]

11 Means of Communication

425

remoteness and duty issues in the common law).173 Among the suggested policy reasons, Van Heerden DCJ examined and specifically rejected fears of a flood of litigation and the possibility of simulated claims. In the Full Court decision in Annetts v Australian Stations Pty Ltd,174 Ipp J downplayed the significance of the decision, saying that in South Africa the law of negligence was based on the Roman lex Aquilia, under which foreseeability was limited only by causation and public policy and proximity played no role.175 The views of a judge trained in the South African system are entitled to great respect; but the Barnard decision relies heavily on Australian authorities and seems perfectly in tune with developments in common law jurisdictions. The case closely resembles the facts of Gifford v Strang Patrick Stevedoring Pty Ltd176 and many other cases where secondary victims receive information about the death or injury of loved ones and suffer traumatic injury in consequence. Like that case, it takes an enlightened view. It is only in comparatively rare cases that the relative’s suffering will be so extreme as to amount to a recognisable psychiatric illness; where it does so, the close ties of love and affection make such illness foreseeable, and this should be enough to ground liability, without imposing artificial restrictions based on geographical and spatial proximity or the means by which the relative learns of the occurrence. [11.450] There is also some indication that New Zealand may be prepared to follow the path of Australian law. The matter was briefly discussed in the pre-Tame v New South Wales177 case of van Soest v Residual Health Management Unit.178 The case concerned claims by next-of-kin in respect of negligent treatment by a public hospital, and the plaintiffs’ claims failed because they were unable to show recognisable psychiatric illness. However Blanchard J, giving the majority judgment, discussed the elements of secondary victim liability, and said: As for physical proximity, we would reserve the position. It may well be that, as the English law commission recommends, the restrictions based on physical and temporal proximity to the accident or misadventure and the means by which the plaintiff learned of it should be removed or relaxed, and that Alcock and subsequent English cases will be seen to be unnecessarily restrictive. On this point the criticisms in Kirby P’s judgment in Coates cannot be lightly dismissed.179 173

However, in Hing v Road Accident Fund [2014] 2 All SA 186 (WCC) at [20], Binns-Ward J emphasised that Barnard v Santam Bpk 1999 (1) SA 202 (SCA), did not simply hold that liability was based on foreseeability, and that policy considerations determined whether there was a sufficient causative connection between the wrong and the consequent psychiatric injury. 174

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

175

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [102].

176

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

177

Tame v New South Wales (2002) 211 CLR 317.

178

van Soest v Residual Health Management Unit [2000] 1 NZLR 179.

179

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [74].

426

Part III: Liability for Mental Harm

[11.460]

Thomas J, the dissenting judge, who was in favour of greatly expanded liability for psychiatric injury, would clearly have agreed. When a suitable opportunity arises, New Zealand courts may well use the decision in Tame to build on this foundation.

Retention of the direct perception requirement [11.460] Though Australia and South Africa have been prepared to take the important step of abandoning the direct perception requirement, many other jurisdictions have so far refused to follow suit. In particular, the House of Lords, speaking for England (plus Scotland and Northern Ireland), has decisively ruled in favour of the need for some sort of physical proximity between the plaintiff and the accident, and against liability for psychiatric injury based solely on the communication of distressing news. [11.470] In the early 1990s, two English first instance judges took the bold step of recognising liability for communication-caused psychiatric injury. The first was Mantell J in Hevican v Ruane,180 where the plaintiff’s favourite son — “the apple of his eye” — was killed when the school minibus in which he was travelling collided with a lorry due to the negligence of the minibus driver. The plaintiff was told shortly after the collision that the minibus had been involved in a serious accident and he was driven to a police station where he was informed that his son was dead, and then saw the body in the mortuary. He was diagnosed as suffering from reactive depression preventing him from returning to work. Mantell J found in his favour, despite the fact that he was not present at the immediate aftermath of the accident, and even though his psychological injury was brought about through a series of communications by others, as a result of which he gradually realised that his son was dead. His Lordship stated: It would seem … that by reference to general principle alone there is no reason why a plaintiff who sustains a mental shock as a predictable result of learning of a loved one’s death or injury and in consequence becomes ill either in the mind, as here, or in the body, for example by suffering a heart attack, should not recover damages against a defendant whose negligent act caused the death or injury.181

[11.480] Similarly, Ward J in Ravenscroft v Rederiaktiebølaget Transatlantic182 was prepared to “row my puisne sculling boat across [the] strong tide”183 of judicial sentiment rejecting liability for communicationcaused psychiatric injury. He awarded £16,500 for a prolonged depressive condition brought about when a husband told his wife that their son had been crushed to death by a shuttle wagon while working on a ship’s 180

Hevican v Ruane [1991] 3 All ER 65.

181

Hevican v Ruane [1991] 3 All ER 65 at 71.

182

Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73, noted by J Steele (1993) 56 MLR 244.

183

Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 87.

[11.500]

11 Means of Communication

427

cargo deck. Imagining the state of the body the husband had refused to allow the plaintiff to see it. The judge considered that the wife’s absence from the accident scene or its aftermath and thus the lack of direct sensory perception did not serve to bar her claim, there being no public policy consideration preventing recovery.184 [11.490] However, these initiatives came to an abrupt end with the decision of the House of Lords in Alcock v Chief Constable of South Yorkshire Police.185 In this case, the courts at all levels were generally unsympathetic to such deviations from traditionalism. Hidden J rejected the claim of a sister who learned indirectly of her brother’s death without having directly perceived the traumatic event in question or its aftermath. When the case was appealed to the English Court of Appeal, the members of the court were unanimous in refusing to endorse the extensions approved by Ward and Mantell JJ, focusing on Lord Wilberforce’s insistence on direct sensory perception in McLoughlin v O’Brian.186 Parker LJ said: A person who informs a parent of a victim of his death or multiple injuries cannot be held liable for obvious reasons and the wrongdoer cannot in my view be held liable for psychiatric illness resulting from what the parent is told. In so holding I respectively differ from the decision of Ward J. … It is, moreover, to be noted that in McLoughlin v O’Brian [1983] 1 AC 410 the House of Lords proceeded on the basis that liability resulted from what the plaintiff had seen on arrival in the hospital on being told of the accident, not on the information of the accident which had led to her presence there.187

[11.500] This conservative reaction culminated in the decision of the House of Lords, which confirmed that in English law there is no compensation for psychiatric injuries that stem from being informed of, or reading or hearing about, a traumatic incident, even if such damage could reasonably have been foreseen,188 and expressed “serious doubt”189 as to

184

Unfortunately, his Lordship reached this conclusion through an extended use of the notion of sensory impact (as to which see Jaensch v Coffey (1984) 155 CLR 549 at 565–567 per Brennan J, discussed at [10.30]). Adopting a view of “hearing” a traumatic event different from the conventional understanding of that term as utilised in cases such as Bourhill v Young [1943] AC 92, Ward J considered listening to bad news an insult to that sense and the “sight” of an empty son-less home equally impacting on the mother’s sense of vision: Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 78.

185 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Note also the English Court of Appeal’s comments in H v Home Office (The Times, 7 May 1992). 186

McLoughlin v O’Brian [1983] 1 AC 410 at 422–423.

187

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 363; see also at 379 per Stocker LJ and at 386 per Nolan LJ who expressed similar views.

188

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400 per Lord Ackner; see also at 416 per Lord Oliver of Aylmerton, at 423 per Lord Jauncey of Tullichettle. Note also two cases decided during the progress of the litigation in Alcock, involving respectively the King’s Cross underground station fire in London and the Herald of Free Enterprise sinking at Zeebrugge, where relatives suffered psychiatric injury as a result of being told of the deaths of loved ones: see Singh v London Underground Ltd (unreported, Eng QBD, 24 April

428

Part III: Liability for Mental Harm

[11.510]

the correctness of the first instance decisions in Hevican v Ruane190 and Ravenscroft v Rederiaktiebølaget Transatlantic.191 In the light of a perceived lack of good policy reasons for change, their Lordships unanimously adhered to Lord Wilberforce’s philosophy rather than incorporating the flexibility campaigned for by Lord Bridge of Harwich,192 categorising psychiatric injury sustained in the absence of direct visual or aural perception as non-actionable.193 As a result of the disapproval of the decision expressed by the House of Lords, Ravenscroft was reversed by the English Court of Appeal.194 [11.510] In the years since Alcock v Chief Constable of South Yorkshire Police,195 lower court decisions have confirmed its restrictive effect. If a plaintiff cannot satisfy the requirements of the aftermath doctrine, there is no remedy: psychiatric injury caused by being informed of a tragic event involving a loved one does not give rise to a duty. Palmer v Tees Health Authority196 is a good example. Four-year-old Rosie Palmer was abducted, sexually abused and murdered. Her mother’s anxiety mounted from the moment she discovered she was missing; three days later she was informed that her body had been found, but even though she was close by she was not allowed to see it, and did not see her daughter until she identified the body in a post-mortem room. Gage J held that she was not present at the immediate aftermath and so was not owed a duty of care. As a result of Alcock, psychiatric injury caused by the three days of anxious waiting, and then by being informed of her daughter’s death, gave her no cause of action. The English Court of Appeal197 affirmed the decision on the ground that the plaintiff was unable to establish a duty of care by reference to the three Caparo criteria,198 in particular for policy reasons of the kind that prevailed in Hill v Chief Constable of West 1990); Crocker v P & O European Ferries (Dover) Ltd (unreported, Eng QBD, 3 December 1990). The judgments deal with preliminary procedural issues. In the former case the court indicated that to find the defendant liable would require an extension of the principles in McLoughlin v O’Brian [1983] 1 AC 410. 189

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398 per Lord Keith of Kinkel; see also at 401 per Lord Ackner, at 418 per Lord Oliver of Aylmerton. 190

Hevican v Ruane [1991] 3 All ER 65.

191

Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73.

192

McLoughlin v O’Brian [1983] 1 AC 410 at 442.

193

Shock-induced illness caused by observation through binoculars or telescopes, instanced by Hidden J, was not expressly excluded by their Lordships, and it cannot be argued that it was ruled out by implication. If harm to known individuals is perceived through binoculars or a telescope, as for example where a bird watcher walking through hills near his home looks back through his binoculars and sees his wife run over by a car, recovery of damages should be governed by exactly the same rules as if the occurrence had been seen with the naked eye.

194

Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n.

195

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

196

Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447.

197

Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351.

198

Caparo Industries plc v Dickman [1990] 2 AC 605: see [7.180].

[11.520]

11 Means of Communication

429

Yorkshire,199 where the House of Lords held that police do not ordinarily owe a duty of care in connection with the investigation of crime.200 However, Stuart-Smith LJ also held that the claim failed to meet the requirements for establishing a secondary victim psychiatric injury claim. The rule that there is no liability for communication-caused shock meant that no duty was owed to Mrs Taylor, who was informed that her husband had had a heart attack, and had been taken to hospital and had died, and then saw his body in the mortuary,201 or Mr Tan, who rushed across London when informed that complications had occurred when his wife was in the delivery room, arriving after the baby had died in the womb (but being present during the caesarean necessary to remove the body):202 in each case they were adjudged not to have been present during the immediate aftermath, and so any psychiatric injury suffered as a result of being informed of the emergency was non-actionable. In a different context, Mr Hunter, who had been working with another worker in the mine when a problem occurred and had left to get help when a loud explosion occurred that killed his colleague, learnt of the death via a loudspeaker announcement:203 according to the majority view, he was not near enough to the scene to be regarded as present, which meant that he was just like any other plaintiff who suffered shock through being informed of a tragic event by others. The latest English Court of Appeal decision reviewing the requirements for liability in secondary victim cases specifically endorses the need for plaintiffs to satisfy all the recognised control mechanisms, including the need for the plaintiff to be present at the scene of the accident or at the aftermath shortly afterwards and for the psychiatric injury to arise from witnessing the death of or injury or extreme danger to the primary victim.204 [11.520] England is not alone in refusing to remove the traditional restrictions and permit liability for communication-induced shock. Canadian courts also have continued to affirm the orthodox approach.205 For example, in Strong v Moon206 an 11-year-old girl was dropped off at 199

Hill v Chief Constable of West Yorkshire [1989] AC 53.

200

See [21.420].

201

Taylor v Somerset Health Authority (1993) 16 BMLR 63: see [22.330]–[22.370].

202

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389: see [22.440]–[22.480]. 203

Hunter v British Coal Corporation [1999] QB 140: see [26.180]–[26.210].

204

Taylor v A Novo (UK) Ltd [2014] QB 150. Note that the issue of personal perception was not raised in Keeley v Pashen [2005] RTR 139, where the plaintiff claimed damages for psychiatric injury caused by hearing that her husband had been run over and killed by a disgruntled taxi-driver. The defendant admitted negligence. The issue for the court was whether the insurers were liable to satisfy the judgment. It was held that since the husband and the other passengers who had got out of the car were the defendant’s last fare for the evening, prior to driving home, he was no longer driving for hire or reward at the critical time. 205

For earlier Canadian decisions, see [11.60].

206

Strong v Moon (1992) 13 CCLT (2d) 296.

430

Part III: Liability for Mental Harm

[11.530]

school by her mother, and minutes later was informed by other children that her mother had been involved in an accident and was “road pizza”. The plaintiff suffered an intense emotional reaction, not stilled by learning a few hours later that her mother was not badly hurt. Her claim was ruled out because she was not present at the scene, and did not visit the aftermath. Yet on the view now adopted by Australian courts, it was surely foreseeable that a negligent injury to a mother outside the school gates might cause serious psychiatric harm to the child she had just taken to school. Again, in Talibi v Seabrook207 the defendant negligently ran over the plaintiff’s elderly mother as she attempted to cross the road near the plaintiff’s workplace in Edmonton. The plaintiff was in Athabasca, and was advised of the accident by telephone. He hurried back to Edmonton, and went to the hospital, to be told that his mother had died. Later, he went back to the scene to try to reconstruct the accident. He claimed damages for a reactive depression caused by these events, but the claim was refused because he was not present at the immediate aftermath. The court acknowledged that the harm was foreseeable, but said that there had to be limitations on foreseeability in the name of proximity. It expressly followed the more restrictive views espoused by Lord Wilberforce and other judges in McLoughlin v O’Brian,208 rather than the more open approach of Lord Bridge.209 [11.530] A more recent decision confirms that there has been no alteration in the Canadian approach to the direct perception requirement. In Thompson v Attorney General (Canada),210 Sherry Heron, who was in hospital having been diagnosed with multiple sclerosis, told her mother and her sister Lisa that she wished to divorce her husband. The husband heard of this and made threats against his wife. The hospital were informed and asked to provide protection. However, the husband was able to make his way into the hospital and shot his wife and his mother-in-law, shooting himself three days later. Various damages claims were brought by relatives against the hospital, including a claim by Lisa for psychiatric injury suffered as a consequence of the deaths. Lisa was told of the shooting on the day it happened, and requested police protection. She was diagnosed as suffering from post-traumatic stress disorder and depression. For the purpose of the proceedings it was assumed that the defendant had breached the relevant standard of care. It 207

Talibi v Seabrook (1995) 177 AR 299.

208

McLoughlin v O’Brian [1983] 1 AC 410.

209

Other decisions consistent with the approach adopted in these cases include Devji v Burnaby (District) (1998) 158 DLR (4th) 747, affirmed in Devji v Burnaby (District) (1999) 180 DLR (4th) 205 (plaintiffs informed of fatal injury by police, attended hospital, viewed body); Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748 (parents did not see child ingest contaminated fruit juice, by time they arrived at school all was fairly normal). Note, however, Leckie Estate v Stevenson (1997) 56 Alta LR (3d) 431 (Master refused to strike out claim by relatives told of a fatal accident, saying that foreseeability could not be narrowed to cases where the plaintiff saw the accident, or the body a short time afterwards). 210

Thompson v Attorney General (Canada) (2008) 85 BCLR (4th) 78.

[11.540]

11 Means of Communication

431

was argued that this was not simply a case of hearing of the event after it had happened, but one where the murder had been preceded and following by alarming and horrifying circumstances, which meant that psychiatric injury was foreseeable, and that in the light of developments in Australia and elsewhere, the Supreme Court, which was about to hear the appeal in Mustapha v Culligan of Canada Ltd,211 might be persuaded to remove the direct perception requirement. However, Allan J held that the law had been settled by the two leading British Columbia decisions in Rhodes v Canadian National Railway212 and Devji v Burnaby (District),213 which endorsed locational proximity as an essential requirement. She said: There is no question that the distinction between seeing a loved one tragically killed and being told of that fact may appear to be an unfair and arbitrary distinction. However, policy-based considerations have limited the ambit of recovery against tortfeasors. … Such limits cannot be said to be arbitrary in the sense that the limits apply to all plaintiffs. As a result, although a plaintiff such as Ms Thompson may suffer loss as a result of the defendants’ conduct, the law does not permit all losses to be compensated.214

Nothing in the ultimate decision of the Supreme Court suggests that there has been a change to this rule.215 [11.540] Another jurisdiction that so far continues to require some sort of physical proximity to the traumatic event and to exclude liability for told-only shock is Ireland, where the leading case is Kelly v Hennessy.216 The plaintiff was told by telephone that her husband and two daughters had been severely injured in a road accident. She immediately went into shock, and was taken to hospital to see her family, who were in an appalling condition: her husband and one of her daughters suffered permanent brain damage. Over the ensuing weeks and months, she went constantly to the hospital, and then took on the role of caring for her husband and daughter. These events caused her to suffer long term post-traumatic stress disorder. Given that the facts suggested that the plaintiff went into shock immediately on receipt of the tragic news, there was perhaps some potential for developing a more liberal approach to communication-caused psychiatric injury. At the same time, it was clear 211

Mustapha v Culligan of Canada [2008] 2 SCR 114.

212

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

213

Devji v Burnaby (District) (1999) 180 DLR (4th) 205.

214

Thompson v Attorney General (Canada) (2008) 85 BCLR (4th) 78 at [33]. It is unfortunate that one of the reasons given by Allan J was that allowing recovery in such circumstances would “open the floodgates”; however, her Ladyship pointed out other examples of arbitrary distinctions, such as the cap on non-pecuniary damages imposed by the Supreme Court of Canada in the so-called “trilogy” of cases in 1978: Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229; Thornton v Board of School Trustees of School District No 57 (Prince George) [1978] 2 SCR 267; Arnold v Teno [1978] 2 SCR 287. 215

For other affirmations of the Canadian approach see Latimer v Canadian National Railway Co 2007 CanLII 5689; Piper Estate v Mitsubishi Heavy Industries Ltd 2009 BCSC 1363. 216

Kelly v Hennessy [1995] 3 IR 253.

432

Part III: Liability for Mental Harm

[11.550]

that the plaintiff had been present at the immediate aftermath of the accident in the hospital. In the Supreme Court, Hamilton CJ ruled that the law permitted the recovery of damages for psychiatric illness in a secondary victim case provided the victim was a person with whom the person had a close relationship and the plaintiff came upon the immediate aftermath of the accident, either at the scene or in hospital. It seems clear that while the aftermath doctrine is more liberally interpreted in Ireland than on the other side of the Irish Sea, some sort of physical proximity to the accident is still a requirement, and that there is no duty where psychiatric injury results solely from news imparted by others. A similar rule applies in Hong Kong. In Tsang Mei Ying v Lam Pak Chiu,217 the plaintiff’s husband was killed in an accident. His mother, who had previously looked after the plaintiff’s children, suffered depression as a result and was unable to cope, so the plaintiff had to give up her employment to care for the children herself. At first instance, the plaintiff succeeded in recovering damages for her lost earnings under the Fatal Accidents Ordinance, but on appeal it was held that the argument could only succeed if the mother’s services in looking after the children were a benefit that the husband brought to the family. Even if this were so, which was doubtful, the loss did not come within the admissible category of nervous shock claims. Applying the principles laid down in McLoughlin v O’Brian,218 Rogers JA held that the mother had no proximity to the accident, nor was she affected other than being told of the injury. [11.550] United States authority also continues to uphold the traditional principle that there is no liability for shock caused by orally communicated distressing news.219 For example, in a Wisconsin case, a nine-year-old child was told by his mother that his father had died in an accident, and next day saw a newspaper photograph of his father’s covered body being removed from the scene; however, no recovery was possible because he did not personally observe the accident.220 There are many other examples.221 The principle is observed even in cases where the facts are 217

Tsang Mei Ying v Lam Pak Chiu [2000] 1 HKLRD 883.

218

McLoughlin v O’Brian [1983] 1 AC 410.

219

For exceptions, see [11.180]. Note the bizarre argument of the plaintiff in the Californian case of Burke v Pan American World Airways Inc 484 F Supp 850 (1980) who claimed to have suffered emotional injuries while at home in California through “extrasensory empathy” at the time her twin sister was killed in a plane crash in the Canary Islands. The court held that the plaintiff failed to state a cause of action. Despite her claim to have known at the moment of the crash that her sister had died, she did not know the circumstances until informed by third parties at a later date.

220 221

Rosin v Fort Howard Corporation 588 NW 2d 58 (Wis 1998).

Bernier v Board of County Road Commissioners 581 F Supp 781 (1983) (mother learnt of accident to son two hours afterwards); Acevedo v Essex County 504 A 2d 813 (NJ 1985) (father told that son had died from bullet wounds to head); De Los Santos v Saddlehill Inc 511 A 2d 721 (NJ 1986) (parents learnt that five-year-old daughter had been crushed to death in elevator); Ledford v Delta Airlines Inc 658 F Supp 540 (1987) (husband told of crash of plane on which his wife was passenger); Burrus v Grange Mutual Companies 545 NE 2d 83 (Ohio 1989) (mother told of child’s death in accident); Hoover v Recreation Equipment Corporation 792

[11.560]

11 Means of Communication

433

very distant from those of the typical accident scenario, for example a California case where a mother was told that her child had been abducted from a day care centre and raped, but was denied recovery because of the absence of personal perception.222 In States that still adhere to Dillon v Legg,223 where presence and direct perception are merely two of the factors to be taken into account, along with relationship, courts may well decline to recognise a duty if these two factors are absent.224

Criminal injuries compensation cases [11.560] Jurisdictions that have remained firmly committed to the direct perception requirement when dealing with damages claims may sometimes adopt a different approach when dealing with claims for criminal injuries compensation. These cases can provide interesting insights on the rationale for limiting liability in the tort context. The United Kingdom created a scheme of criminal injuries compensation in 1964, under which compensation was paid on an ex gratia basis for personal injury or death directly attributable to crimes of violence.225 The scheme was revised in 1990.226 R v Criminal Injuries Compensation Board, ex F Supp 1484 (1991) (mother received telephone call informing her that son injured in playground accident); Chamberlain v State through Department of Transport and Development 624 So 2d 874 (La 1993) (neither parent present at scene when child died in swimming accident, learnt of it afterwards from others); Rideau v Jefferson County 902 F Supp 115 (1995) (brother only 100 yards away when heard gunshots, told that sister had been shot, saw her dead body being placed in ambulance, but no recovery under Texas law); Re Air Crash at Belle Harbor, New York on November 12, 2001 450 Fed Supp 2d 432 (2006) (father not present and therefore unable to recover when plane crashed into his house, killing his family). For medical negligence examples, see [22.630]. One way to avoid the contemporaneous observation requirement is to invoke the direct victim doctrine (see [18.190]–[18.240]): see eg Stacy v Rederiet Otto Danielsen AS 609 F 3d 1033 (2010). 222

Martin By and Through Martin v United States 779 F Supp 1242 (1991). See also HLO ex rel LEO v Hossle 381 NW 2d 641 (Iowa 1986) (parents told that their children had been sexually abused by neighbour); Huddleston v Infertility Center of America Inc 700 A 2d 453 (Pa 1997) (plaintiff not present when sperm donor father of her child abused and murdered child, but informed by third person, unable to recover for emotional distress); Summers ex rel Dawson v St Andrews Episcopal School Inc 759 So 2d 1203 (Miss 2000) (parents did not see child allegedly molested by classmates); Ritchhart v Indianapolis Public Schools 812 NE 2d 189 (Ind 2004) (mother of disabled student transported to wrong school, but not physically injured: mother could not recover for emotional distress because not present). 223

Dillon v Legg 441 P 2d 912 (Cal 1968): see [3.780].

224

See eg Entergy Mississippi Inc v Acey 153 So 3d 670 (Miss 2014) (mother arrived on scene a few minutes after daughter electrocuted when playing on cotton picker underneath sagging power line: court held plaintiff could not recover because the first two factors identified in Dillon v Legg 441 P 2d 912 (Cal 1968) were absent).

225

The scheme was to be construed not as a statute but as a public announcement of what the government was willing to do to compensate victims of crimes of violence: R v Criminal Injuries Compensation Board, ex parte Warner [1986] 2 All ER 478 at 480 per Lawton LJ.

226

An attempt to introduce a tariff in 1994 resulted in the scheme being declared unlawful: see R v Secretary for the Home Department; Ex parte Fire Brigades Union [1995] 2 AC 513. The Criminal Injuries Compensation Act 1995 (UK) provided for the setting up of a new scheme by subordinate legislation.

434

Part III: Liability for Mental Harm

[11.570]

parte K,227 an application under the revised scheme, was the first case in which a court was asked to consider whether psychiatric illness suffered by a secondary victim as a result of being told that a crime of violence had been committed on a primary victim could be said to be “directly attributable” to that crime. The applicants were the mother and stepfather of a young girl who was the victim of serious sexual assaults by the stepfather’s father. Neither was aware of the assaults until the girl revealed what had happened. The applicants were both subsequently diagnosed as suffering from a reactive depression. Their application for compensation had been refused on the ground that it was not directly attributable to a crime of violence, and Dyson J refused to grant the application for judicial review.228 In effect, the question at issue was whether the court, in a criminal injuries compensation context, was prepared to take the step that the House of Lords had refused to take in Alcock v Chief Constable of South Yorkshire Police,229 and approve the payment of compensation for psychiatric injury resulting from learning about a serious assault on a close relative. His Lordship emphasised the negligence analogy, pointing out that the approach adopted in those cases was not simple foreseeability, and likewise the issue in the present context was not one to be resolved by foreseeability principles. At common law, the applicants would have had no cause of action, and therefore it would be unusual to hold that they were entitled to compensation in such circumstances, since the legislation required not just that the shock be attributable to a crime of violence, but that it be directly attributable. [11.570] Given the English negligence case law, Dyson J’s decision was to be expected. However, he suggested that it might be different if the girl had told her mother in graphic detail about the assault almost immediately after it had occurred — it would be almost as if the mother had witnessed it herself.230 This qualification is yet another illustration of the difficulty of confining secondary victim cases by reference to the aftermath concept. The girl told her mother about the assault only a few days later — should that interval of time make all the difference? And is it not artificial to make recovery turn on whether or not the assault was witnessed, or as good as witnessed? Sexual predators generally choose a moment when they are alone with their victim. The impact on a close relative such as a mother is not lessened by the fact of hearing about it afterwards. In such situations, requiring the third party to witness what happened, or come upon the aftermath, makes no sense.231 227

R v Criminal Injuries Compensation Board, ex parte K [1998] 1 WLR 1458.

228

An application for leave to appeal was refused: R v Criminal Injuries Compensation Board, ex parte Kent [1998] EWCA Civ 1399. 229

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

230

R v Criminal Injuries Compensation Board, ex parte K [1998] 1 WLR 1458 at 1463.

231

The Criminal Justice Act 1988 (UK) replaced the non-statutory scheme with a statutory scheme that for the first time gave victims who satisfied the legislative requirements a right to compensation. Under this scheme, an application based on facts such as those in R v

[11.580]

11 Means of Communication

435

[11.580] Northern Ireland has had a criminal injuries compensation scheme since 1968.232 In O’Dowd v Secretary of State for Northern Ireland,233 a case briefly dismissed by Dyson J,234 the Northern Ireland Court of Appeal responded much more positively to the problem of shock-related injury resulting from being told about, as distinct from being present and witnessing, a crime of violence. Two masked gunmen burst into a man’s home, shot dead two of his sons and his brother, and seriously injured him. Another son returned home to be met at the door by his mother, who had been in the house at the time but had not been shot. She told him what had happened and to fetch his uncle who lived about a mile away. The son returned with his uncle and two more of his brothers who had been at the uncle’s house. All four entered to find the three bodies and the father lying wounded in a pool of blood. His three sons claimed compensation for psychiatric injury, as did a son of the uncle who had been in his own house 3 miles away at the time of the shooting and ran to the scene soon after he heard of the tragedy. They successfully appealed to the Northern Ireland Court of Appeal from the decision of Gibson J in the High Court denying the claims. Lord Lowry LCJ expressly rejected the contention that mental damage can only be considered directly attributable to a criminal offence if the applicant was present at the time of its commission and suffered injury through personal perception of it.235 Criminal Injuries Compensation Board, ex parte K [1998] 1 WLR 1458 could not have succeeded. Lord Steyn in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 492 referred to the “restrictive rule” in s 109(2) of this Act that provided that: Harm to a person’s mental condition is only a criminal injury if it is attributable – (a) to his having been put in fear of immediate physical injury to himself or another; or (b) to his being present when another sustained a criminal injury other than harm to his mental condition. Readers of this passage in Lord Steyn’s judgment would assume that this rule became law in 1988 and was still in force at the time of White’s case, but this is incorrect, because the statute was never brought into operation. 232 Criminal Injuries to Persons (Compensation) Act (NI) 1968 (UK); see now the Criminal Injuries Compensation (Northern Ireland) Order 1988 (UK). See DS Greer “A Statutory Remedy for Nervous Shock?” (1986) 21 Ir Jur (ns) 57. 233

O’Dowd v Secretary of State for Northern Ireland [1982] NI 210.

234

The case was cited to Dyson J on the issue of what was an effective cause. Dyson J said that at this point Lord Lowry was discussing causation generally, without regard to the limitation imposed by the word “directly”, and in any case the application before him was by way of judicial review: R v Criminal Injuries Compensation Board, ex parte K [1998] 1 WLR 1458 at 1462. 235

It has been suggested that this decision was generally consistent with the guidelines that had been laid down for psychiatric injury at common law by McLoughlin v O’Brian [1983] 1 AC 410, in that the claimants were close relatives of the primary victims and suffered nervous shock as a result of what they saw and heard at the scene and its immediate aftermath: see DS Greer, “Criminal Injuries Compensation for Nervous Shock: Freezing the Law in a Rigid Posture?” (1992) 43 NILQ 396 at 397. However, some subsequent decisions went beyond these guidelines, and soon after Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 steps were taken to restrict the scope of potential claims. Article 5(12) of the Criminal Injuries Compensation (Northern Ireland) Order 1988 (UK), as amended, now provides that no compensation shall be paid to any person in respect of any injury caused by mental

436

Part III: Liability for Mental Harm

[11.590]

[11.590] Some Canadian jurisdictions have criminal injuries compensation schemes of a kind generally similar to the English model. The Canadian case law makes it clear that third parties who suffer nervous shock as a result of a crime of violence committed against a close relative may be compensated under the legislation, whether or not they are present at the scene or see it happen. One of the leading cases is Dixon v Nova Scotia (Criminal Injuries Compensation Board),236 where a mother saw a television news item about the murder of someone who she believed, correctly as it turned out, was her son. As a result she suffered a major debilitating depression and made a claim for criminal injuries compensation. The Appeal Division of the Nova Scotia Supreme Court held that she was a person “injured” by the crime within the meaning of s 6 of the Compensation for Victims of Crime Act 1975 (NS) and was entitled to relief. This conclusion was reached with the aid of a detailed review of the case law on tortiously caused psychiatric injury. The court said that the mere fact that the plaintiff was not present at the murder or its immediate aftermath was not fatal to her claim, since the Act imposed no limits of time and space. The case offers an interesting contrast with the reluctance of English courts to award tort damages for psychiatric harm resulting from negligence inflicted through the medium of a television broadcast.237 An Ontario court confirmed that it would take a similar attitude to a claim by a relative who did not witness the crime. In Noel v Ontario (Criminal Injuries Compensation Board),238 the applicant’s son was stabbed to death, and the applicant made a claim inter alia for compensation for nervous shock suffered as a consequence of the murder. The Board refused compensation on the technical ground that a doctor’s report did not refer to the Board’s test for nervous shock. The Divisional Court of the General Division of the Ontario Court of Justice allowed an appeal from this decision, Keenan J stating that Mr Noel was a victim, and that he had suffered an injury as defined by the Act, because he had suffered nervous shock. The fact that he had not been present was simply not an issue.

reaction to the act arising out of which the application for compensation is made, or to the consequences of that act, unless the injury amounts to a serious and disabling mental disorder, and the applicant sustained the injury by virtue of being present when the act was committed. In Curry v Secretary of State [1991] 11 NIJB 12, the applicant was watching television with her family when they heard shooting and a crash. After the shooting had ceased, they went outside to investigate and found that a police car had been ambushed by gunmen and two police officers had been shot and seriously injured. They telephoned for an ambulance, and the applicant stayed with the wounded officers for half an hour until it arrived. Her claim for compensation was rejected on the ground that she had not been present when the act out of which her application arose was committed. 236

Dixon v Nova Scotia (Criminal Injuries Compensation Board) (1988) 52 DLR (4th) 335.

237

See [11.700]–[11.860].

238

Noel v Ontario (Criminal Injuries Compensation Board) [1998] OJ No 708.

[11.600]

11 Means of Communication

437

Comment and criticism [11.600] Despite the fact that England and some other jurisdictions persist in distinguishing between cases where the relative is on the scene and those where he or she is absent, it is submitted that this is misguided, and that the Australian and South African approach is a much more rational solution. As Deane J observed in Jaensch v Coffey:239 The most important explanation of nervous shock resulting from injury to another is the existence of a close, constructive and loving relationship with that person (a “close relative”) and … it is largely immaterial whether the close relative is at the scene of the accident or how he or she learns of it.240

Nothing has occurred in the 30 years since this judgment to invalidate this important point. The traditional position has been based on the premise that nervous shock suffered by direct insult to the sensory system is somehow more impacting than that suffered on being told of distressing news. This may be true in many cases, but it will not always be so, as Lord Bridge’s example in McLoughlin v O’Brian241 illustrates. It is conceivable that the impact on the nervous system of being told of particularly debilitating injuries, especially those that by their nature may occur without the spilling of blood or the breaking of bones, can be as great as (if not greater than) direct perception through attendance at the accident scene. For example, a parent’s nightmare on learning at the hospital of their son’s permanent quadriplegia as a result of a swimming pool accident may well be more intense than discovery of the injured child at the edge of the pool. Even Lord Oliver of Aylmerton, a proponent of the “direct perception” theory, has conceded, in a heavily policyinfluenced judgment, that: 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 eyewitness at the inquest as it is in a case where she learns of it at a hospital immediately after the event. Nor can it be the mere suddenness or unexpectedness of the event, for the news brought by a policeman hours after

239

Jaensch v Coffey (1984) 155 CLR 549 at 600.

240

See also DJ Leibson, “Recovery of Damages for Emotional Distress Caused by Physical Injury to Another” (1976–1977) 15 Journal of Family Law 163 at 196; H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 107 who commented: “In several cases it is assumed as beyond argument that the psychic impact of the victim’s injuries [is] more intense for a plaintiff who was at the scene than for one who heard or read about them later. Yet this is typically true only of the primary reactions [momentary fright etc], not of the fundamental and enduring secondary ones [psychiatric injury], which are more strongly correlated with closeness of relationship.”

241

McLoughlin v O’Brian [1983] 1 AC 410 at 442: see [11.140]. See also the examples given by FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476 at 491–493.

438

Part III: Liability for Mental Harm

[11.610]

the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene.242

[11.610] Moreover, a strict application of the “told” rule would exclude compensation in cases where there is no accident or immediate aftermath to attend. Imagine, for example, the effect on the partner of a spouse of learning that the spouse has contracted the AIDS virus. Is the partner to be denied recovery because he or she was not present at the time of a careless screening of blood which was later transfused, or at the scene of an adulterous liaison?243 (Even if present at these events the partner would more than likely not appreciate that a tortious act involving a breach of a duty of care owed to him or her was being committed.) Or suppose a couple learns that a hospital has negligently permitted their newborn baby to be taken home by third parties under the mistaken belief that it was the third parties’ child,244 or has negligently failed to prevent their baby being abducted.245 And what if a body cannot ever be recovered, say where a person is lost overboard on a fishing trip far from land, or is completely destroyed, for example in an industrial accident, or is hidden by the tortfeasor?246 Seeking refuge in the aftermath doctrine cannot achieve justice in such cases. Those who are visually or aurally impaired are also unfairly prejudiced by the traditional restriction on the means of communication. Is the blind and deaf parent who is present at the scene of an accident to his or her child to be denied recovery for shock and psychiatric injury suffered on learning about it later from a friend, merely through being incapable of perceiving such an event in the way the majority of the population does? [11.620] Judicial retreat to the sanctity of public policy arguments to deny the pragmatic and logical expansion of liability in this context is an 242 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411. Note also Hinz v Berry [1970] 2 QB 40 at 43 per Lord Denning MR, suggesting that the plaintiff would have suffered some damage if her husband had been killed in an accident even though she was 50 miles away. 243

In Homer v Long 599 A 2d 1193 (Md 1992) it was held that a husband had no claim for intentional infliction of emotional distress against a psychiatrist who seduced his wife because the husband was not present when the seduction occurred!

244

This occurred in Carter v Lake Wales Hospital Association 213 So 2d 898 (Fla 1968). See also Espinosa v Beverley Hospital 249 P 2d 843 (Cal 1952) (mother who was given wrong baby at hospital failed to recover for consequent mental anguish because she had not suffered actual physical harm as result of defendant’s want of care); Wishard Memorial Hospital v Logwood 512 NE 2d 1126 (Ind 1987) (newborn babies switched, but liability for emotional distress denied on ground that placing baby in arms of someone who was not her mother did not constitute impact to infant or parents necessary to support such action). For a South African example, see Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W), discussed at [22.720]–[22.740]. 245

In Johnson v Jamaica Hospital 467 NE 2d 502 (NY 1984) the abducted baby was returned four and a half months later. Incredibly, one of the bases on which the court denied recovery to the parents was that they had not been within the “zone of danger” at the time of the abduction! 246

Evatt J in Chester v Waverley Corporation (1939) 62 CLR 1 at 35 opined that the fact that a body is never recovered should not allow a tortfeasor to escape liability.

[11.620]

11 Means of Communication

439

unimpressive tactic. Fears of limitless liability are greatly exaggerated. Nor would awarding damages in these cases leave the door open to fraud because: To sustain a claim based on nervous shock, no matter what the circumstances in which the shock was received, a plaintiff would be bound to submit himself or herself over a protracted period to the close scrutiny of psychiatrists well able to detect humbug.247

Significantly, in New South Wales, the Australian Capital Territory and the Northern Territory, when the ambit of liability for “mental or nervous shock” was extended by statute many years ago,248 the legislature had no qualms about permitting close relatives to recover even though they were not present at the scene of the accident. Under these provisions parents and spouses (defined to include step-parents, grandparents, and persons in loco parentis, and more recently, cohabitees) were allowed to recover for shock caused on being informed that a relative has been killed, injured or put in peril. In State Rail Authority of New South Wales v Sharp249 the plaintiffs’ daughter was killed in the Granville train disaster in Sydney. It was not until the next day that they were informed of her death but this presented no obstacle to their claim for relief under the New South Wales statute. The contrast between the readiness with which the court accepted this plea and the problems encountered by courts contending with the common law “told” rule is marked. The New South Wales Court of Appeal found it unnecessary even to enter the means of communication debate.250 More recent examples of recovery under the New South Wales legislation include a successful claim by a young mother for extreme grief reaction to the drowning of her three-year-old son in an effluent water storage tank even though she did not witness the accident and learnt of it through a police officer.251 The position is similar under other Australian legislation such as the Transport Accidents Act 1986 (Vic).252

247

Hevican v Ruane [1991] 3 All ER 65 at 71 per Mantell J.

248

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1); Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 24; Law Reform (Miscellaneous Provisions) Act (NT), s 25: see [13.30]. In New South Wales this legislation has now been replaced by Pt 3 of the Civil Liability Act 2002 (NSW), but the Australian Capital Territory and Northern Territory provisions remain in force. 249 State Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240. Note that liability was admitted. 250

Nor was any concern over this issue articulated by the court when granting damages under the Act in similar circumstances in Smee v Tibbetts (1953) 53 SR (NSW) 391.

251

Smith v Email Ltd (unreported, NSWSC, No CLD S16572 of 1982, 14 March 1986); see also Worboys v Hamill (unreported, NSWSC, No 11216 of 1984, 3 February 1988); Manufacturers Mutual Insurance Ltd v Hooper (1988) 5 ANZ Insurance Cases 60-849; Reitsma v Government Insurance Office of New South Wales (unreported, NSWSC, No 13879 of 1985, 31 March 1989); Hayes v Southern Sydney Area Health Service (unreported, DCNSW, Nos 7071, 17540 of 1990, 13 August 1996). 252

Note also cases decided under the Transport Accidents Act 1986 (Vic): see [13.250].

440

Part III: Liability for Mental Harm

[11.630]

[11.630] The inescapable conclusion is that claims of this nature are within “the reasonable area for the imposition of liability”.253 If a plaintiff has suffered a compensable type of injury due to the defendant’s negligent breach of a duty owed to him or her the plaintiff should recover irrespective of whether the particular facts surrounding the loss can be pigeon-holed into traditional, and it is submitted outdated, categories. The justifiability of allowing recovery in circumstances where there is no direct sensory perception was advocated by Goodhart as long ago as 1953: It has been argued that if recovery were permitted in these circumstances, then there would be a great number of fabricated cases, and that it is dangerous to open the door too wide. It is exceedingly doubtful whether this is true. If it were true, it would hardly be a justifiable ground for denying a right to recover to persons who had genuinely suffered in such a way. The reason for denying recovery in these circumstances is, I believe, a more rational one. It is based on the ground that an ordinary person who hears about an accident will not have the same violent physical reaction as one who has actually witnessed it. I may read in the newspaper a detailed account of an accident, but this will obviously not have the same effect on me as witnessing the accident at first hand. The ground for excluding liability in these circumstances is therefore based on ordinary experience. But even here it would be dangerous to state the rule in too categorical a manner because there may be special circumstances which may make it reasonably foreseeable that mere repetition will cause such a shock.254

SPECIFIC SITUATIONS Trauma by telephone [11.640] As already noted, the telephone is now the standard means by which people communicate with each other when they are not close enough to talk face to face. The telephone has been around since the late 19th century, but the late 20th century saw an equally revolutionary development with the invention of the mobile telephone. No longer was it necessary to be in one’s home or office, or to find the nearest telephone kiosk, to communicate with someone many miles away; today, at least in developed countries, nearly everyone carries with them a means by which they can instantly get in touch with other people anywhere on the globe. [11.650] In this context, the traditional rule that there is no liability for psychiatric injury caused by the impact of news transmitted by someone else, as opposed to being present at the accident or its aftermath and

253

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 411 per Lord Oliver of Aylmerton. 254

See AL Goodhart, “The Shock Cases and Area of Risk” (1953) 16 MLR 14 at 25.

[11.670]

11 Means of Communication

441

perceiving through one’s own senses, seems very out of date.255 As Kirby P forcefully pointed out in Coates v Government Insurance Office of New South Wales:256 The suggested rule is … hopelessly out of contact with the modern world of communications. If any judge has doubts about this, he or she should wander through 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 the catastrophe would be. This is the reality of the world in which the law of nervous shock must now operate.257

[11.660] His Honour also noted the relationship foreseeability test and modern modes of communication:

between

the

[H]earing by telephone, or by later oral message, can, in today’s world, be just as foreseeable and just as directly related to the wrong sued upon as if the vulnerable observer had received the shocking perception by his or her own eyes and ears at the moment of the relevant wrong. The rule of actual perception is in part a product of nineteenth century notions of psychology and psychiatry. In part, it was intended as a shield of policy against expanding the liability of wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century modes of communicating information.258

It can perhaps be added that another social change has taken place. In days gone by, when most people lived in small communities and did not move around very much, relatives were usually close at hand and able to come swiftly to the accident scene. In today’s world, the reality is very different. People may live and work in many different places during their lifetime, and their closest relatives are as likely to be on the opposite side of the world as in the next street. [11.670] In this context, not only is news communicated by telephone often the prelude to closer involvement at the scene of the accident:259 it needs to be accepted that the telephone may be the primary means by which people receive news of a catastrophe the shock of which causes them to suffer psychiatric injury. The leading cases now provide ample testimony of this. There could not be a better example than Annetts v Australian Stations Pty Ltd:260 telephone was the means by which James Annetts’s parents, at their home in New South Wales, received news of 255

And yet English cases continue to reject cases of psychiatric injury resulting from news transmitted by telephone, instead requiring personal perception at the scene or the aftermath: see eg Brock v Northampton General Hospital NHS Trust [2014] EWHC 4244 (QB).

256

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 11.

257

The point can be illustrated by two graphic examples. On 7 July 2005, a man was talking to his wife on her mobile phone while she was on a bus in Tavistock Square, London, when he heard the explosion of the bus being blown up by a terrorist bomb; on 22 July 2011, many young people on Utøya Island in Norway were in constant contact with their parents by phone as Anders Breivik went on a murderous rampage, shooting 69 victims.

258

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 10.

259

See [11.130].

260

Tame v New South Wales (2002) 211 CLR 317.

442

Part III: Liability for Mental Harm

[11.680]

his disappearance and then of his death on the opposite side of the Australian continent. In Barnard v Santam Bpk261 in South Africa, and Kelly v Hennessy262 in Ireland, a telephone call was the primary means by which news was imparted which resulted in serious mental harm, even if it was followed by closer involvement at the hospital. There are many similar examples in the modern case law. [11.680] One question which remains unresolved is whether there is liability for psychiatric injury sustained solely as the result of bad news communicated by telephone.263 This might have arisen in Annetts v Australian Stations Pty Ltd,264 if it had been clear that the plaintiffs were alleging that they suffered psychiatric injury as a result of the initial telephone call.265 Though the issue did not arise for decision in Coates v Government Insurance Office of New South Wales,266 Kirby P’s judgment clearly suggests what the answer ought to be. Though United States authority has generally resisted liability for communication-caused emotional distress, it is interesting that the only cases in which the issue of trauma by telephone has arisen are American cases. In Kelley v Kokua Sales & Supply Ltd,267 the court denied recovery to the estate of a man who died of a heart attack in California immediately after hearing by telephone of the deaths of his daughter and granddaughter and the serious injury of another daughter in a car accident in Hawaii, on the ground that he was not located within a reasonable distance of the scene of the accident. The same reasoning was employed to reach a similar decision in the subsequent case of Cohen v McDonnell Douglas Corporation.268 The plaintiff heard on the radio of a plane crash. Knowing that his brother was on the plane, he telephoned his mother in Massachusetts to give her the tragic news. The mother experienced chest pains and died of a heart attack two days later, but the court held that “at all pertinent times Nellie Cohen was more than 1,000 miles from the scene of the crash”, and that “the manner in which she learned of her son’s death precludes the imposition of liability.”269

261

Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

262

Kelly v Hennessy [1995] 3 IR 253.

263

This is to be distinguished from liability for the negligent conveying of bad news, discussed in Chapter 28.

264

Tame v New South Wales (2002) 211 CLR 317.

265

For the two alternative scenarios said to be open on the pleadings, see [11.350].

266

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

267

Kelley v Kokua Sales & Supply Ltd 532 P 2d 673 (Haw 1975).

268

Cohen v McDonnell Douglas Corporation 450 NE 2d 581 (Mass 1983).

269

Cohen v McDonnell Douglas Corporation 450 NE 2d 581 (Mass 1983) at 589. Note also Hoover v Recreation Equipment Corporation 792 F Supp 1484 (1991) (mother informed by telephone that child injured by falling off slide in school playground).

[11.700]

11 Means of Communication

443

[11.690] Another Hawaiian case, six years after Kelley v Kokua Sales & Supply Ltd,270 takes a different attitude. In Campbell v Animal Quarantine Station,271 a telephone call informed the plaintiffs of the death of their dog “Princess” as a result of the defendant’s negligence in transporting her in an unventilated van on a hot day. The six plaintiffs all suffered emotional distress, damage which was compensable under Hawaiian law.272 Even though the family learnt of the accident by telephone and were never present at the scene, the Supreme Court of Hawaii found the proximity requirement satisfied. The need for close geographical location imposed by the court in Kelley v Kokua posed no problem since “plaintiffs and their dog were [both] located within Honolulu.”273 Although this case may raise a few eyebrows, in so far as there was a lack of emphasis placed on the telephonic communication of the news the decision is refreshingly positive. As the court impliedly recognised, development of the law of psychiatric injury should not be hindered by an undue concern about the ways shock can occur. Whether it be as a result of having been there, by telling someone face to face, through writing, by telegraph or fax, by telephone, or any other modern form of communication really should make no difference to the likely success of a claim for psychiatric damage medically proved on the balance of probabilities to have been induced by the negligence of the tortfeasor. The law, like technology, must move with the times.

Television and radio [11.700] As the analysis at [11.460]–[11.550] reveals, the law in some jurisdictions is still grappling with the question of whether communication of the news of an accident through a third party, as opposed to being near and perceiving the event through one’s own unaided senses, is sufficient. But modern society has produced legal complications unimaginable to courts dealing with nervous shock claims in the era of Victorian Railways Commissioners v Coultas.274 Technology has advanced to such a degree that new and previously unforeseen means of communicating distressing and shocking news have become commonplace. Though news may be communicated orally and face to face, or in writing, it may now also be imparted by telephone (as discussed at [11.640]–[11.690]) or radio.275 In addition, the plaintiff may see the disaster on television, either broadcast live or on recorded news pictures. It was inevitable, therefore, that the 270

Kelley v Kokua Sales & Supply Ltd 532 P 2d 673 (Haw 1975).

271

Campbell v Animal Quarantine Station 632 P 2d 1066 (Haw 1981). See AT Kido and E Quintal, “Campbell v Animal Quarantine Station: Negligent Infliction of Mental Distress” (1982) 4 U Haw L Rev 207. 272

See [6.160].

273

Campbell v Animal Quarantine Station 632 P 2d 1066 (1981) at 1069.

274

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

275

Note also the possibility that one may hear an accident happen over the telephone and so in a sense be present, in a not dissimilar way to watching a live television broadcast. In Hickey v National League of Professional Baseball Clubs 565 NYS 2d 65 (1991) the plaintiff’s

444

Part III: Liability for Mental Harm

[11.710]

courts would have to review the traditionally restrictive rules denying relief in the absence of direct perception and adjudicate upon the acceptability of these new means of information transfer. Live transmissions [11.710] Lord Wilberforce in McLoughlin v O’Brian,276 in holding that the shock must come through sight or hearing of the event or its immediate aftermath, speculated whether some equivalent of sight or hearing, such as simultaneous television, would be sufficient.277 As Hidden J said in Alcock v Chief Constable of South Yorkshire Police,278 these words proved to be tragically prophetic.279 The events which took place at Hillsborough at the FA Cup semi-final between Liverpool and Nottingham Forest were broadcast live to many parts of the country,280 and nine of the 16 first instance plaintiffs suffered psychiatric illness through seeing these events on television as they took place, knowing that their loved ones were in the Leppings Lane terraces.281 The issue thus presented for decision was one which had not been raised in any previous case in any Commonwealth jurisdiction — whether the plaintiffs could recover for shock and consequent psychiatric harm sustained through the medium of television. The potential for this problem to arise has existed since the advent of live outside broadcasts.282 It grows greater as television technology advances. As Andrews remarked in 1987: fiancé, a baseball umpire, had a heart attack when talking to her over the telephone. Her claim for emotional distress against his employers, based on the allegation that the attack had been caused by the punishing schedule imposed on him, was ruled out on the ground of lack of contemporaneous observance. 276

McLoughlin v O’Brian [1983] 1 AC 410.

277

McLoughlin v O’Brian [1983] 1 AC 410 at 423.

278

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 335.

279

Note also Singh v London Underground Ltd (unreported, Eng QBD, 24 April 1990) where the plaintiff suffered psychiatric illness as a result of seeing scenes of the King’s Cross underground station fire on television, knowing that her family were likely to be involved, and being told of their deaths the next day. Refusing a request for trial by jury, the court intimated that to allow the plaintiff to recover for this illness would require an extension of the principles of McLoughlin v O’Brian [1983] 1 AC 410.

280

The match was not to be broadcast live, but highlights were to be shown later. However, events at any ground where there was some significant incident would be shown live on the BBC afternoon sports program “Grandstand”: see Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 352 per Parker LJ.

281

See Table 9.1 at [9.250]. There was another plaintiff who saw the events live on television in a coach at the ground, but Hidden J did not treat this as a television case. There was no appeal to the English Court of Appeal against his decision with respect to this plaintiff: see [10.270]. Of the remaining plaintiffs, four were present at the ground, and two heard television and radio reports of the tragedy: see [11.870]. Two of the four plaintiffs present at the ground and six of the nine who saw the events on television proceeded with appeals to the House of Lords, together with the two who suffered shock through hearing television and radio reports.

282

The BBC Charter of 1927 gave the BBC the right to have its own reporters at the scene of important events. The first sports outside broadcasts, both in England and Australia, date

[11.730]

11 Means of Communication

445

It is … increasingly foreseeable that the broadcast media will, with everincreasing efficiency and speed, arrive at the scene of a catastrophic event and will broadcast coverage of the event in progress, or, as in the case of the recent space shuttle disaster, that the media will broadcast a catastrophe inadvertently during routine coverage of a news event.283

[11.720] Live television broadcasts are different from most other means of communication. The viewer watching at home can see and (through the effects microphone) hear what is happening. Is this the same as being there, so that the principles of the “presence” cases apply?284 Hidden J thought so, and awarded damages to those television-watching plaintiffs who were within the recognised degrees of relationship to the trauma victims.285 The English Court of Appeal disagreed.286 The House of Lords concurred in the result reached by the Court of Appeal, though on rather different grounds.287 [11.730] Hidden J analysed in some detail the differences between the way in which an event is seen by an eyewitness and a watcher of television: The eyewitness receives images at the back of his eye of events that are taking place immediately before him in his presence. The watcher of television does not. For the eyewitness those images are seen as life size, for the television viewer they are not. The eyewitness can change those images by altering his field of vision, by the turn of a head or the movement of his body by, for instance, moving closer to the scene. The watcher of television is unable to do that, for whichever way he moves, the images on the screen will be the same, albeit seen at a different angle. The eyewitness is seeing something which is taking place actually where he is. The television watcher is enhancing his sight by “borrowing” the images collected by the lens of a camera somewhere else. That camera lens, metaphorically, transports him from his actual physical position to the different location of the camera, and allows him to receive at the back of his eyes the images he would receive were he standing in the position from the 1920s: see J Arlott, “The Story of Cricket on the Air”, in B Johnston (ed), Armchair Cricket 1968 (BBC, London, 1968), pp 10–11; C Martin-Jenkins, Ball by Ball: The Story of Cricket Broadcasting (Grafton Books, London, 1990), Chs 1–2. 283

KK Andrews, “The Next Best thing to Being There?: Foreseeability of Media-Assisted Bystanders” (1987) 17 Sw UL Rev 65 at 81–82. The reference is to the ill-fated Challenger space shuttle flight in 1986, in which seven astronauts met their deaths as the result of a mishap during take-off, an event watched on live television by millions. An earlier example is the assassination of United States President John F Kennedy in Dallas, Texas, in November 1963: the motorcade in which the President was riding was being televised. It was surely foreseeable that relatives or certain others watching these events might suffer psychiatric injury.

284

See generally KK Andrews, “The Next Best thing to Being There?: Foreseeability of Media-Assisted Bystanders” (1987) 17 Sw UL Rev 65.

285

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 340–344.

286

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 361–363 per Parker LJ, at 379–380 per Stocker LJ, at 385–387 per Nolan LJ. 287

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398 per Lord Keith of Kinkel, at 405 per Lord Ackner, at 417 per Lord Oliver of Aylmerton, at 423 per Lord Jauncey of Tullichettle.

446

Part III: Liability for Mental Harm

[11.740]

of the camera. He may, in fact, metaphorically be slightly nearer the camera when one makes allowance for the power to focus. In a sense his metaphorical feet are mid-way between the camera and the image. His is a similar position to that of the watcher through binoculars, or a telescope, whose metaphorical feet have been moved closer to the object than his actual feet, and who is seeing a picture which he could not possibly receive from his actual position. I accept at once that in the case of the watcher through binoculars, or a telescope, it may be said that it is only the detail of what he is seeing which he could not see from his actual position. That detail, however, may disclose to his sight something which he could not see without the binoculars, such as the concealed figure of a man. Hence, binoculars, like television, may allow a person to see something in a distant position which he could not have seen with his own unaided eyesight. … Thus the television watcher in those circumstances is aware that he is augmenting his own eyesight by the lens of a camera in a distant position, but that his eyes are receiving, through the intervention of that camera lens, images of what is actually happening as he sees them.288

[11.740] As his Lordship pointed out, the picture seen by a television watcher is determined by third parties — camera operators and producers — and accompanied by a commentary which may provide additional information not apparent from the picture. However, for Hidden J it was the visual image which was all-important: “It is what is fed to the eyes which makes the instant effect upon the emotions, and the lasting effect upon the memory.”289 The defendant knew that the match would be televised and could foresee that live pictures might be shown in circumstances such as those which happened. Watchers on television, viewing the disaster, were just as likely to suffer psychiatric harm through fear for the safety of loved ones as those looking on from elsewhere in the ground. Hidden J therefore concluded that observation through simultaneous television of the disaster scenes at Hillsborough was sufficient to satisfy the test of proximity of time and space.290 [11.750] The English Court of Appeal took a very different view, and rejected the claims of all the television-watching plaintiffs. Their arguments seem to be characterised by a determination to hold, for policy reasons, that those who suffered shock and mental injury through viewing on television should not recover, even though both Parker and Stocker LJJ accepted that it was foreseeable that the scenes at Hillsborough would be broadcast both live and as recorded news items, and that among the millions watching would be relatives of those in the Leppings Lane terraces.291 Parker LJ argued that the television watcher actually gained a better appreciation of what was happening than a viewer at the match: 288

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 341–342.

289

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 343.

290

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 343.

291

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 362 per Parker LJ, at 379 per Stocker LJ.

[11.770]

11 Means of Communication

447

The mother in the West Stand sees only that which she can see through her own eyes from her position in that Stand. The watcher of television sees what the cameras and producer choose between them to broadcast. They may, and probably will, move from one part of the scene to another which seem best to convey the increasing horror of what was taking place. Zoom lenses will be used, not to record and send out pictures of mangled corpses or dreadfully injured persons, but simply to demonstrate to the viewer more clearly what was happening than could be appreciated by an actual watcher. A watcher from the far end of the North Stand would, for example, see and appreciate far less of what was happening than a television viewer 60 miles away or perhaps even hundreds or thousands of miles away. Such a watcher might not appreciate that there was anything more than the crowd trouble which regrettably occurs all too often at football matches, whereas the television viewer would at an early stage realise the true position.292

In addition Stocker LJ expressed the view that: No person present can view events more or less simultaneously from several different viewpoints. The fact that the television transmission does so (there were at least four cameras in different locations at Hillsborough) in itself requires some form of editorial or selective process in a decision which cameras be operated at any given moment. The broadcast is likely to, and in this case did, include commentary which may itself be emotive. The “zoom” lens enables an incident to be viewed in close-up, even though individual victims are excluded from such close-ups.293

[11.760] One cannot but agree that the camera often gives a better view than that enjoyed by the spectator at the match — we are all better informed about a doubtful LBW or a borderline offside decision when watching the game on our television screens than if we are at the ground, a good way removed from the incident and perhaps viewing from the wrong angle — but surely this is an argument in favour of recovery and not against. Colour pictures, and the close-up views available through the most up-to-date technology, coupled with incisive commentary, will have a greater impact on the mind than perception from a distance through one’s own unaided senses. Indeed, it can be argued that the likelihood of psychiatric harm might even be increased by feelings of helplessness and frustration at not being there and the inability to render assistance to loved ones.294 [11.770] The English Court of Appeal’s other arguments seem equally unconvincing. Parker LJ, assuming that the conveying of information by television was the same as other cases of communication by a third party, suggested that if a duty was owed in such circumstances the reporter could be liable for causing psychiatric harm,295 but this surely confuses the position of the communicator and the person responsible for the 292

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 362.

293

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 379.

294

L Lomax, “Closing the Floodgates” (1991) 141 New LJ 664.

295

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 363.

448

Part III: Liability for Mental Harm

[11.780]

original negligence.296 Both Parker and Stocker LJJ were concerned that the television broadcast might be seen all over the world, so enormously enlarging the time and space limitation,297 but this is nothing more than a re-run of the hackneyed “floodgates” argument, which did not impress Hidden J,298 who pointed out that it is only in cases where injury by shock is foreseeable — and only where the viewer is within the necessary degree of relationship — that recovery will be allowed. [11.780] Nolan LJ was a little more encouraging than the other members of the Court of Appeal. He said that he would not exclude the possibility in principle of a duty of care extending to the viewers of a television program.299 He cited as an example a publicity-seeking organisation which made arrangements for a party of children to go up in a balloon, and for the event to be televised so their parents could watch. If through the organisers’ carelessness the balloon crashed, in Nolan LJ’s opinion it would be hard to deny that they were under a duty not to cause psychiatric injury to the parents. Nolan LJ evidently regarded this case as different from the one before him, in that it was arranged for the purpose of being televised. In his view, in Alcock v Chief Constable of South Yorkshire Police “the element of immediate and horrifying impact on the viewer does not seem … to have been established either as being reasonably foreseeable or as having happened”.300 Whilst his Lordship’s preparedness to countenance recovery in certain circumstances is to be commended, his focus on purpose seems of questionable significance when assessing issues of foreseeability. It may be preferable to highlight the fact that Nolan LJ’s example postulated the liability of those who organised the televising of the event, whereas the issue in Alcock was the liability of the original tortfeasor to persons who suffered psychiatric injury through watching the television broadcast.301 [11.790] Nolan LJ’s judgment, and his balloon example, seem to be the source of the rather different reasoning on the basis of which the House of Lords dismissed the appeals of those who suffered shock and injury through watching the live television broadcasts. The House of Lords was 296

As to liability for the communication of bad news, see Chapter 28.

297

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 362 per Parker LJ, at 379 per Stocker LJ. 298

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 343. Nor were such arguments received with enthusiasm by the House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 at 421 per Lord Wilberforce, at 424–425 per Lord Edmund-Davies, at 429 per Lord Russell of Killowen, at 431 per Lord Scarman, at 442 per Lord Bridge of Harwich. 299

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 386.

300

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 386.

301

EC Lim identified a third situation: persons whom he labels “secondary tortfeasors” who take it upon themselves to disseminate scenes of a disaster to others via mobile phone. He referred to the Boston marathon bombings on 15 April 2013, which “generated a flurry of activity on the Internet”: EC Lim, “Proximity, Psychiatric Injury and the Primary/Secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age” (2014) 23 Nottingham LJ 1 at 13.

[11.800]

11 Means of Communication

449

not concerned with the technical differences between the watcher at the ground and the watcher on television. Only Lord Jauncey of Tullichettle referred to these arguments, and not at any length.302 Nor did concerns about opening the floodgates feature as strongly in their judgments in this context as they did in the Court of Appeal’s reasoning. The major point, one made in all four main judgments, was that the broadcast scenes did not depict the suffering of recognisable individuals and that it would have been contrary to the broadcasting code of ethics to do so: what is seen is now the crucial consideration.303 In the words of Lord Keith of Kinkel: [T]he viewing of these scenes cannot be equiparated with the viewer being within “sight or hearing of the event or of its immediate aftermath”, to use the words of Lord Wilberforce [1983] 1 AC 410 at 423B, nor can the scenes reasonably be regarded as giving rise to shock, in the sense of a sudden assault on the nervous system. They were capable of giving rise to anxiety for the safety of relatives known or believed to be present in the area affected by the crush, and undoubtedly did so, but that is very different from seeing the fate of the relative or his condition shortly after the event. The viewing of the television scenes did not create the necessary degree of proximity.304

[11.800] Lord Oliver of Aylmerton pointed out that, because the transmitted image did not portray the suffering of particular persons, it was not the sole basis for the psychiatric injury of the viewers: As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability. … [A]ny further widening of the area of potential liability to cater for the expanded and expanding range of the media of communication ought, in my view, to be undertaken rather by Parliament, with full opportunity for public debate and representation, than by the process of judicial extrapolation.305 302

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 423.

303

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398 per Lord Keith of Kinkel, at 405 per Lord Ackner, at 417 per Lord Oliver of Aylmerton, at 423 per Lord Jauncey of Tullichettle. 304

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398.

305

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

450

Part III: Liability for Mental Harm

[11.810]

Arguably, on one interpretation of his Lordship’s words he would be prepared to countenance recovery where viewing television results in an immediate, as opposed to a delayed, shock. If his objection lies not with the medium of television per se, but rather with the nature of its effect in particular instances on particular individuals, this focus is highly debatable.306 It is not clear that this is what Lord Oliver intended to say, but his combined discussion of the means of communication and the need for sudden shock leaves the matter in some doubt. [11.810] Despite their unwillingness to concede that those who viewed the scenes on television were owed a duty of care in the particular circumstances of the case, their Lordships did make the encouraging suggestion that there will be cases where, in the words of Lord Oliver, “the element of visual perception may be provided by witnessing the actual injury to the primary victim on simultaneous television”.307 Lords Ackner and Oliver specifically affirmed Nolan LJ’s example of an accident occurring during the broadcasting of a balloon flight,308 on the basis that in such a case the pictures would convey the suffering of known and recognisable individuals. Lord Ackner suggested that there were many other situations in which the impact of simultaneous television pictures would be as great, if not greater, than the actual sight of the accident.309 [11.820] Though the decision was not cited to their Lordships, it is interesting to note that their attitude to the cases of those who suffered emotional injury through viewing the live television broadcast mirrors the approach taken by the Supreme Court of California in a leading United States decision. In Scherr v Las Vegas Hilton,310 the plaintiff claimed damages for emotional distress suffered while watching a live television news broadcast of a fire at the defendant’s hotel, where her husband was staying. The husband was injured in the fire, but the broadcast only showed the outside of the burning hotel and included no view of any injured or endangered people. The court held that the defendant was not under any liability. It was said that the decisive question in this case is whether the plaintiff, through whatever medium, received a sudden and severe shock by actually and contemporaneously witnessing not just the fire but the infliction of injuries upon her husband.311 306

The sudden shock issue is dealt with in Chapter 12.

307

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

308

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 405 per Lord Ackner, at 417 per Lord Oliver of Aylmerton. Lord Jauncey of Tullichettle at 423 expressly refrained from commenting on Nolan LJ’s statement. 309

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 405 per Lord Ackner. In contrast to Nolan LJ neither Lord Ackner nor Lord Oliver employed the concept of purpose in relation to the television issue as a reason for allowing or denying recovery. 310

Scherr v Las Vegas Hilton 214 Cal Rptr 393 (1985). Note the factually similar example given by Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410 at 442. 311

Scherr v Las Vegas Hilton 214 Cal Rptr 393 (1985) at 394–395.

[11.850]

11 Means of Communication

451

[11.830] In Alcock v Chief Constable of South Yorkshire Police,312 Lord Ackner suggested that had scenes showing the sufferings of recognisable individuals been broadcast, contrary to the code of ethics, this would have constituted a novus actus interveniens breaking the chain of causation between the defendant’s alleged breach of duty and the psychiatric illness suffered by the plaintiffs.313 This argument was accepted by the trial court in Scherr v Las Vegas Hilton,314 but the Californian Supreme Court, which viewed the intervention of the news media as a “red herring”,315 did not agree that it represented any breaking of the causal link. Stocker LJ in the English Court of Appeal in Alcock v Chief Constable of South Yorkshire Police316 made a somewhat similar point by suggesting, rather enigmatically, that the activities of the camera operator, producers and commentator constituted a novus actus interveniens. However, given that the broadcast was foreseeable, these persons were all doing exactly what they could be expected to do and what it was their job to do. The attitude of the Californian Supreme Court seems to be an appropriate response to Stocker LJ’s suggestion. [11.840] If the claims of the television-watching plaintiffs are to be dismissed, then the grounds for doing so adopted by the House of Lords are much to be preferred to those of the English Court of Appeal. Nonetheless, there are considerable difficulties with them. First, they rest on the basis that the suffering of recognisable individuals was not depicted and that to do so would be contrary to the broadcasting code of ethics. It is not easy to see how there could be any guarantee that such pictures might not be shown, at least inadvertently. Moreover, there was evidence that at least some of the plaintiffs saw particular individuals. Stephen Jones saw bodies and believed them to be dead, and Maureen Mullaney actually saw her sons in a section of the crowd where there were casualties, though fortunately, as it turned out, they survived without serious injury.317 [11.850] More fundamentally, if the reason for rejecting the claims of the plaintiffs who suffered psychiatric injury through watching the scenes on television is that they did not see injuries to recognisable individuals, but only generalised scenes of the overcrowded terraces and unfolding chaos, causing worry and anxiety for the safety of people known to be involved but not causing shock by communicating the fate of particular individuals, how is the position of such plaintiffs different from that of those who were present elsewhere in the ground? Some of the judges appreciated this 312

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

313

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 405. Interestingly, counsel for the plaintiffs conceded this point. 314

Scherr v Las Vegas Hilton 214 Cal Rptr 393 (1985).

315

Scherr v Las Vegas Hilton 214 Cal Rptr 393 (1985) at 395.

316

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 380.

317

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 386.

452

Part III: Liability for Mental Harm

[11.860]

problem, none more clearly than Lord Oliver, who, discussing the cases of Brian Harrison and Robert Alcock, said: [A]lthough both were present at the ground and saw scenes which were obviously distressing and such as to cause grave worry and concern, their perception of the actual consequences of the disaster to those to whom they were related was again gradual.318

On this basis he ruled that the necessary proximity was lacking in their cases also.319 However, all the other judges in the House of Lords accepted that those plaintiffs present at the ground could have recovered if they had satisfied the relationship criteria.320 Parker LJ in the English Court of Appeal also pointed out that most of those present at the ground would see and appreciate less of what was happening than those watching on television,321 and that Brian Harrison, the only successful plaintiff at first instance who was at the ground, did not witness the death of his brothers.322 The other Court of Appeal judges were content to hold that it was sufficient for such plaintiffs to be present at the scene or its immediate aftermath.323 It was Hidden J who explained the seeming contradiction inherent in these various opinions.324 He said that the law originally required both presence at the scene and sight of the accident, but this was gradually relaxed so as to extend to presence near the scene without actual sight of the accident. The acceptance of the aftermath doctrine constituted a further relaxation. [11.860] If, then, the law is content to accept that presence at the scene, without actual sight of the accident, satisfies the proximity of time and space, it is hard to maintain that television viewers, who are also in a sense “present” at the scene, cannot recover unless they have actual sight of the harm suffered by a particular loved one. The House of Lords has limited the potential for widespread liability by resort to a policy justification, but its approach artificially separates the way trauma is perceived from the closeness of the bond between the parties and seems to ignore the power of the television picture and the state of the police’s knowledge. Given that the police knew for a positive fact that television cameras were taking pictures of the match into houses all over the country, it was foreseeable that many people, including the friends and 318

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

319

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 417.

320

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398 per Lord Keith of Kinkel, at 405–406 per Lord Ackner, at 424 per Lord Jauncey of Tullichettle. Lord Ackner, however, in an earlier part of his judgment (at 404–405) treated the case of Robert Alcock, who was present at the ground, as an aftermath case turning on the time of identification of the body. 321

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 362.

322

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 357.

323

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 379 per Stocker LJ, at 386 per Nolan LJ. 324

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 340.

[11.870]

11 Means of Communication

453

relatives of spectators in the crowd, would see the broadcast — as the judges at all levels accepted. If the feelings of desperate anxiety and dread foreboding of the likely consequences of what was taking place before their eyes for known individuals known to be there are enough to cause those present elsewhere in the crowd to suffer shock and psychiatric injury, even without exact knowledge of those consequences, the position of those watching the panic and desperation on television can be no different. The television viewers were just as much aware of and involved in what was happening as if they were actually there at the match.325 Recordings [11.870] Two plaintiffs suffered psychiatric injury through hearing the news on radio and seeing recorded television pictures of the tragedy. It appears that at least in one case, that of Catherine Jones who lost a brother, it was the television news coverage that was effectively the cause of the harm, but this was the culmination of a process of discovery which began with stories this plaintiff heard while out shopping and was fuelled by hearing radio reports. The other plaintiff, Joseph Kehoe, whose grandson and son-in-law were killed, first heard the news on radio and later saw recorded pictures on television.326 Hidden J rejected the claims of both plaintiffs on the ground that they were not within the requisite 325

The 11 September 2001 terrorist attacks in the United States and their aftermath were given worldwide live television coverage. Note Burnett v Al Baraka Investment and Development Corporation 274 F Supp 2d 86 (2003), an action by family members and representatives of the victims against persons and entities funding and supporting the terrorist organisation Al Qaeda that carried out the attacks: Robertson J, holding that the plaintiffs stated a valid claim for intentional infliction of emotional distress, said: “Family members here were not physically present at the World Trade Center, or at the Pentagon, or at Shanksville, but the whole world was virtually present, and that is enough.” The claim was upheld by the United States District Court sub nom In re Terrorist Attacks on September 11, 2001 349 F Supp 2d 765 (2005).

326

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 339–340 per Hidden J, at 354 per Parker LJ. In Klein v New South Wales [2004] NSWSC 837, relatives of a man shot and killed by the police sued for psychiatric injury caused inter alia by seeing on television and in newspapers graphic images depicting the events in question. Master Harrison refused to strike out these allegations and allowed the case to go to trial. See R Rajendran, “Told Nervous Shock: Has the Pendulum Swung in Favour of Recovery by Television Viewers?” (2004) 9 Deakin LR 731. Hidden J dismissed an appeal from the Master’s decision: Klein v New South Wales [2005] NSWSC 1341, but the New South Wales Court of Appeal struck out the claim on the ground that recognising a duty in such a case would be inconsistent with police functions: Klein v New South Wales (2006) Aust Torts Rep 81-862. Note also that the plaintiff in Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 first heard news of the train accident in which her son died in a radio report. Although her claim was denied, significantly it was not because of this fact. In Piper Estate v Mitsubishi Heavy Industries Ltd 2009 BCSC 1363, the plaintiff’s husband was one of the pilots of an aircraft that crashed shortly after take-off. She was informed shortly afterwards, but over the next few days saw several TV news bulletins showing images of the crash site. The plaintiff’s claim for psychiatric injury was ruled out on the basis of Canadian authorities requiring direct perception: see [11.530]. It was not foreseeable that the plaintiff would suffer shock as a result of subsequently viewing television news coverage on more than one occasion.

454

Part III: Liability for Mental Harm

[11.880]

proximity of time and space.327 This rejection was confirmed by the English Court of Appeal328 and by the House of Lords.329 Even if it be accepted (as it was by Hidden J, but not by the Court of Appeal or the House of Lords) that those who viewed the live transmission could be regarded as being present, these plaintiffs did not fall into that category. Nor could they be considered as within the aftermath. [11.880] American cases have reached a similar result. In Saunders v Air-Florida Inc330 the plaintiff asserted that he had suffered emotional shock when he saw film on television of a plane striking the car in which his son was crossing a bridge over the Potomac river, killing him. The court ruled that the father’s injuries were too remote and unforeseeable to be actionable because the news coverage had not been live, but recorded. The court said that even if he had been able to see contemporaneous transmissions of the accident it was highly doubtful that he would have been able to discern before impact that the car on the bridge was his son’s car. In Gain v Carroll Mill Co Inc331 members of the family of a person killed in an accident claimed damages for emotional injury suffered when they learnt of the occurrence through viewing recorded news pictures on television. Liability was denied on the ground that the plaintiffs were not present either at the accident or at the aftermath. The court said that mental distress where the plaintiffs were never present was “unforeseeable as a matter of law”.332 [11.890] But just as information can be effectively, accurately and graphically communicated in writing or by word of mouth, it can be so communicated by news broadcasts on television, radio and other media. 327

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 340.

328

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 380 per Stocker LJ, at 386 per Nolan LJ. Parker LJ makes no specific mention of these plaintiffs. 329

The House of Lords judgments do not deal with these cases in any detail. Lords Keith of Kinkel, Ackner and Oliver of Aylmerton make no separate mention of them. Lord Jauncey of Tullichettle commented: “If a claimant watching a simultaneous television broadcast does not satisfy the requirements of proximity it follows that a claimant who listens to the wireless or sees a subsequent television recording falls even shorter of the requirement”: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 423.

330

Saunders v Air-Florida Inc 558 F Supp 1233 (1983).

331

Gain v Carroll Mill Co Inc 787 P 2d 553 (Wash 1990).

332

In Ledford v Delta Airlines Inc 658 F Supp 540 (1987) the defendant was held to be under no liability to a plaintiff who saw recorded news pictures of an air crash involving a plane on which his wife had been a passenger, having previously learnt of the crash through other sources. Note also Saxton v McDonnell Douglas Aircraft Co 428 F Supp 1047 (1977) (defendant, manufacturer of a DC10 aircraft that crashed in Paris in 1974, killing 346 people, not liable for emotional distress suffered by woman as a result of television, radio and newspaper publicity about the accident, in which her son and daughter-in-law were killed, and her resultant suicide); Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991) (media and other secondhand reports about psychologically devastating events insufficient basis for imposition of liability); Daigrepont v Louisiana State Racing Commission 663 So 2d 840 (La 1994) (parents who did not witness accident to son, but viewed videotape of it at hospital, could not recover damages under Louisiana statute under which they had to “view an event”: see [13.590]).

[11.900]

11 Means of Communication

455

The essential question is whether, in the circumstances of the case, it is foreseeable that plaintiffs who hear of a tragedy by such means will suffer psychiatric injury as a result. If this fundamental requirement can be established, then in such cases, as in many other cases of communicationinduced shock, a claim should be theoretically possible if damage eventuates. It is the sustaining of compensable loss and not the medium by which it was brought about that the common law should regard as crucial. On the facts of the Hillsborough case, it could surely be contemplated that those who heard on radio or television news broadcasts that many people had been killed would be in great fear for the safety of loved ones known to be there and might suffer psychiatric injury as a result. As Hidden J said, “[i]t was not merely reasonably foreseeable, it was a pound to a penny”333 that all over Liverpool television sets would be switched on and watched by people anxiously awaiting the latest news of the match. No doubt there were also many listening on radio. The horror of events can be graphically conveyed by television pictures, whether recorded or live. Radio descriptions can be equally effective in giving the listener a mental picture of events which are taking or have taken place. It could therefore be argued that the two plaintiffs who suffered psychiatric injury through hearing the news on radio and viewing recorded pictures on television should have been able to recover damages; their cases are exactly the same as the other cases of communication-induced shock discussed in this chapter. In these, as in every other case discussed so far, what matters is whether psychiatric injury is foreseeable in the circumstances. The existence of a close relationship is probably the most powerful factor in such a finding, but neither presence at the accident or its aftermath nor any other factor should be regarded as an essential precondition to liability, if the foreseeability criterion is satisfied. [11.900] Some evidence in favour of these contentions is provided by a Canadian case, Dixon v Nova Scotia (Criminal Injuries Compensation Board).334 A mother saw a television news item about the murder of someone whom she believed, correctly as it turned out, to be her son. As a result she suffered a major debilitating depression and made a claim for criminal injuries compensation. The Appeal Division of the Nova Scotia Supreme Court held that she was a person “injured” by the crime within the meaning of s 6 of the Compensation for Victims of Crime Act 1975 (NS) and was entitled to relief. This conclusion was reached with the aid of a detailed review of the case law on tortiously induced psychiatric injury. The court said that the mere fact that the plaintiff was not present at the murder or at its immediate aftermath was not fatal to her claim, since the Act imposed no limits of time and space. Granted, this case involves the interpretation of a statutory provision, and also an intentional wrong; but the readiness of the judges to accept that it is appropriate to award 333

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 344.

334

Dixon v Nova Scotia (Criminal Injuries Compensation Board) (1988) 52 DLR (4th) 335.

456

Part III: Liability for Mental Harm

[11.910]

compensation for psychiatric damage inflicted through a television broadcast is striking. It is reminiscent of the attitude displayed to the nervous shock statutes by the Australian courts which remained unperturbed by issues which have been problematic for courts in other jurisdictions.335 Each of these statutory approaches to compensation for shock-induced harm offers an interesting contrast to the present state of the common law.

New modes of communication [11.910] Technology continues to evolve with great rapidity, and new modes of communication unimagined when this book was first published are now commonplace, thanks to computers, smartphones and other devices. Emails and text messages are familiar to all, and can incorporate photographs as well as text, since mobile phones, tablets and so on now come equipped with a camera. Pictures can be beamed by means of webcams; and messages, photographs and videos can be uploaded instantaneously via services such as Facebook, Twitter and Instagram. These will not necessarily amount to instantaneous transmissions, in the sense of the distinction between live transmissions and recordings made when discussing television and radio at [11.720] and [11.870]. However, some new developments do permit instantaneous communication: for example, some applications of Facebook and Twitter, and communication services such as Skype and Facetime, enable people to see something happening live even though it may be taking place on the other side of the world. In such circumstances, whereas a generation ago only a television station could beam events onto the screen of a watcher as they happen, now this can be done by any individual equipped with a smartphone or similar communication device.336 Social media now constitutes a major source of news for many people. Such communications are not censored in the same way as traditional media. Whereas television stations, for example, are subject to broadcasting codes of ethics and would not show scenes of suffering of recognisable individuals, there is nothing to stop such images being disseminated by social media. Indeed, it can be argued that such communications are even more instantaneous than traditional media: a single bystander with a smartphone and a Twitter account could easily scoop multinational media outlets who are still trying to contact their nearest correspondents.337 The courts have not yet had to confront the question of liability for mental harm resulting from these 21st century modes of communication, but it can confidently be expected that before very long they will have to do so.

335

See [11.620].

336

See EC Lim, “Proximity, Psychiatric Injury and the Primary/Secondary Tortfeasor Dichotomy: Rethinking Liability for Nervous Shock in the Information Age” (2014) 23 Nottingham LJ 1. The possibilities include the use of a drone carrying a camera.

337

The assistance of Stephen Handford and Corina Brooks in writing this paragraph is gratefully acknowledged.

Chapter 12

Sudden Shock [12.10] INTRODUCTION ............................................................................................................. 457 [12.30] THE SUDDEN SHOCK RULE ....................................................................................... 458 [12.30] Origins in Australia .......................................................................................................... 458 [12.90] Acceptance elsewhere ...................................................................................................... 462 [12.140] Sudden shock and subsequent care ............................................................................ 465 [12.200] UNDESIRABLE CONSEQUENCES OF THE SUDDEN SHOCK RULE .............. 469 [12.270] QUALIFICATIONS TO THE SUDDEN SHOCK RULE .......................................... 473 [12.270] Fact situations where the rule does not apply .......................................................... 473 [12.350] Mental harm combining with physical harm ............................................................ 478 [12.370] Primary victim’s condition contributing to continuing effect of initial shock .... 479 [12.410] REJECTION IN AUSTRALIA ....................................................................................... 482 [12.410] The common law ............................................................................................................ 482 [12.460] The Civil Liability Acts .................................................................................................. 486 [12.470] REJECTION ELSEWHERE ............................................................................................ 488 [12.550] CONCLUSION ................................................................................................................ 494

INTRODUCTION [12.10] Over the last 30 years, with the gradual expansion of the range of situations in which the law was prepared to recognise a duty to take care not to cause psychiatric injury, a new control device has come to the fore. It has been suggested that as a prerequisite to recovery, a tort victim suffering from a recognisable psychiatric illness must have become so afflicted as a result of a sudden shock. According to this view, it is not sufficient that the defendant’s negligence has brought about a gradual onset of mental injury, or resulted in an accumulation of circumstances that, although individually harmless, are a sufficient hazard to health in combination to lead to a deterioration in psychiatric and emotional well-being; there is no liability unless the harm occasioned by the tortfeasor’s carelessness involved a sudden impact to the senses. In other words, what is crucial is not so much the recognisability of the species of damage but the way it is sustained. [12.20] Since its invention in the early 1980s, the sudden shock rule has played a leading role in the shaping of psychiatric damage law.1 Though 1 See H Teff, “The Requirement of “Sudden Shock” in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Tort L Rev 44.

458

Part III: Liability for Mental Harm

[12.30]

often criticised, it has been many times affirmed by the courts. In some jurisdictions, such as England, it still serves as an important limitation on the ambit of recovery in such cases.2 In other jurisdictions, such as Australia and South Africa, it has now been eradicated, at least as an essential requirement of liability,3 but remains a relevant factor, not least in Australia where the Civil Liability Acts list whether or not the mental harm was suffered as the result of a sudden shock as a circumstance to be taken into account in determining whether a duty of care exists in respect of pure mental harm.4 This chapter discusses the origins, justifiability and extent of the sudden shock rule. It then examines the current position in Australia, plus other jurisdictions where attempts have been made to eradicate it.

THE SUDDEN SHOCK RULE Origins in Australia [12.30] The sudden shock rule seems to owe its origin to the judgment of Brennan J in Jaensch v Coffey,5 which suggested that in cases of negligently inflicted psychiatric illness, causative issues arise and there is a need to isolate and focus on the damage-inducing phenomenon.6 His Honour said: A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by “shock”. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.7

“Shock” was defined as: the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential.8 2

See Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, discussed at [12.90], [12.530].

3 See Tame v New South Wales (2002) 211 CLR 317, discussed at [12.410]–[12.440]; Barnard v Santam Bpk 1999 (1) SA 202 (SCA), discussed at [12.470]. 4

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(a); Civil Liability Act 2002 (NSW), s 32(2)(a); Civil Liability Act 1936 (SA), s 33(2)(a)(i); Civil Liability Act 2002 (Tas), s 32(2)(a); Wrongs Act 1958 (Vic), s 72(2)(a); Civil Liability Act 2002 (WA), s 5S(2)(a).

5

Jaensch v Coffey (1984) 155 CLR 549.

6

It appears that the principle was not part of the older law: Heenan J in Annetts v Australian Stations Pty Ltd [2000] WASC 104 at [19] noted that Evatt J in his dissenting judgment in Chester v Waverley Corporation (1939) 62 CLR 1 at 35 expressed resistance to a requirement of sudden sensory perception. 7

Jaensch v Coffey (1984) 155 CLR 549 at 565.

8

Jaensch v Coffey (1984) 155 CLR 549 at 567.

[12.40]

12 Sudden Shock

459

So, on this view, there must be a recognisable psychiatric illness, but in addition, in the absence of negligently inflicted physical damage, it must have been induced by a sudden shock to the plaintiff’s sensory system.9 [12.40] Once Brennan J had triggered the sudden shock debate by affirming the need for psychiatric injury to be shock-induced, Australian courts generally followed this lead.10 This was particularly noticeable in the important series of cases in which Australian courts freed themselves from the limitations of traditional doctrine by recognising that in appropriate circumstances close relatives could have a remedy for psychiatric injury caused by hearing of the death or injury of loved ones in an accident, rather than by directly perceiving the accident or the aftermath with their own senses:11 the leading decisions retained the sudden shock limitation. In Reeve v Brisbane City Council12 Lee J, adopting the then-prevalent proximity doctrine, saw no problem in recognising that the wife of a council employee run over and killed by a bus in the bus depot where he worked might be owed a duty of care in respect of her resulting psychiatric injury even though she did not herself see what happened but was informed of it by others, but in a surprise last-page dénouement found against the plaintiff because her illness was not shock-induced as required by Brennan J.13 In Pham v Lawson,14 where Lander J, delivering the judgment of the South Australian Full Court, also decided that told-only psychiatric injury was nevertheless sufficient to ground a claim (although on the facts he did not have to rely on this to find in the plaintiff’s favour), his Honour affirmed that the essence of a psychiatric injury claim was that it involved a sudden event. Significantly, he confessed himself unable to see the logical basis behind such a rule, but concluded that it was a policy requirement imposed to prevent recovery by the class of persons referred to by Brennan J, such as the worn-down spouse and the distraught parent.15 On the facts, Mrs Lawson satisfied the sudden shock requirement. In addition to these two cases,

9 Note that the other members of the court did not expressly adopt the sudden shock requirement. Deane J did not express a concluded opinion on the matter: Jaensch v Coffey (1984) 155 CLR 549 at 601. Gibbs CJ at 551 stated his general agreement with Deane J. Neither Murphy J nor Dawson J considered the issue. 10

Note, however, Dunn v Commonwealth (unreported, NSWSC, Nos 13409, 13393 and 13395 of 1993, 15 December 1994), one of the Voyager cases, where Dunford J said that post-traumatic stress disorder could develop some years after the shocking event and still sound in damages, and that there was nothing in Brennan J’s judgment in Jaensch v Coffey (1984) 155 CLR 549 to the contrary, provided that there was both the psychiatric illness and the shock that caused it.

11

See [11.210]–[11.310].

12

Reeve v Brisbane City Council [1995] 2 Qd R 661.

13

See Reeve v Brisbane City Council [1995] 2 Qd R 661 at 677.

14

Pham v Lawson (1997) 68 SASR 124.

15

Pham v Lawson (1997) 68 SASR 124 at 149: for Brennan J’s examples, see [12.140].

460

Part III: Liability for Mental Harm

[12.50]

there are many others in which Australian courts have affirmed the sudden shock rule in the context of accidents causing psychiatric injury to close relatives.16 [12.50] Australian courts have also upheld the sudden shock principle in other contexts,17 for example in medical cases.18 A particularly graphic illustration of the difference that sudden shock can make is Woods v Lowns,19 where the defendant, a doctor who refused to come and treat a boy suffering an epileptic fit, was sued not only by the boy but also by his parents, who each claimed damages for psychiatric injury. The mother was close by, and could be said to have been present at the aftermath; the father was not with them, but suffered shock when informed of the news — under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), he did not have to be present in order to recover damages.20 Badgery-Parker J turned down the claim of the mother on the ground that there was no sudden shock: there was no identifiable occasion on which she was made suddenly aware of her son’s plight. In the father’s case, however, because there was evidence of sudden impact on a particular occasion four or five weeks afterwards, when he was told of the extent of his son’s brain damage, damages were awarded. This case shows that the sudden shock rule also applies under the statutory cause of action found in New South Wales and elsewhere.21 It strongly suggests that the rule may often have a capricious operation, with much turning on the evidence. 16

See Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992); Chiaverini v Hockey (1993) Aust Torts Rep 81-223; FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442; Buljabasic v Ah Lam (unreported, NSWCA, No 40417 of 1996, 3 September 1997); Davis v Scott (1998) 76 SASR 361 (affirmed by the High Court, dealing only with vicarious liability issues, in Scott v Davis (2000) 204 CLR 333); Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [12] per Malcolm CJ, at [70]–[77] per Ipp J.

17

In Morgan v Tame (2000) 49 NSWLR 21, where it seems that the plaintiff was a primary victim (though the case is very difficult to classify), the sudden shock rule was upheld by Mason P at [145]–[159], but Spigelman CJ at [67], after a full review of the authorities, reserved his position. The sudden shock rule was applied in two primary victim cases dealing with explosions at Maralinga: see Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994); and Dinnison v Commonwealth (unreported, Fed Ct, No NG 572 of 1991, 4 March 1994). 18

See Strelec v Nelson (unreported, NSWSC, No 12401 of 1990, 13 December 1996); Marchlewski v Hunter Area Health Service [1998] NSWSC 771 (the appeal to the New South Wales Court of Appeal, Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268, dealt only with questions of damages); Tori v Greater Murray Health Service [2002] NSWSC 186. In Greco v Arvind (unreported, NSWSC, No 14595 of 1990, 24 February 1995), though the facts were consistent with gradual rather than sudden shock, liability was not contested and there is no discussion of the issue. 19

Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995): the reported version, Woods v Lowns (1995) 36 NSWLR 344, deals only with the son’s claim.

20 21

See [13.120].

As previously held in Chiaverini v Hockey (1993) Aust Torts Rep 81-223: see [13.150]. In Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997) it was said that there was no need to decide whether the Transport Accident Act 1986 (Vic) (see [13.250]) required proof of sudden shock.

[12.70]

12 Sudden Shock

461

[12.60] In applying the sudden shock limitation, no distinction has been drawn by the courts between the different bases for sudden and unexpected shock. It does not appear to matter, for example, whether the shock victim’s mind was agitated by horror (as will be the case in most rescuer claims22) or fright or terror (suffered, for example, where an accident is narrowly averted23) so long as the stimuli in question had an instantaneous rather than a progressive effect.24 It is the result of a traumatic event, namely the nature of its impact on the human psyche, rather than the reason for the nervous response that is important. [12.70] A leading American commentary has supplied a convincing summary of the reasons for the comparatively recent emergence of the sudden shock rule. According to Dobbs, Hayden and Bublick: Courts initially thought of emotional distress in terms of fright or shock precipitated by a particular act or event. Perhaps because early cases involved a physical risk to the plaintiff, or because the terms themselves suggested physical danger, courts initially conceived of the emotional harm cases very largely in terms of a sudden physical risk to the plaintiff that did not quite eventuate in bodily harm. The zone of danger rule reflected or reinforced this conception of emotional harm by emphasizing immediate physical danger. Thus even when the older requirements of impact and physical manifestation have been gradually discarded, some courts may exclude recovery when the plaintiff’s emotional distress is not the result of fear or shock from a near-impact, a sudden event, or threat of immediate and sudden physical injury. Some seem to have consciously created such a rule, and some scholars support it. Others have done the same thing by applying the zone of danger rule to cases in which danger was not the reason for emotional harm in the first place.25

Hodgson JA’s judgment in Gifford v Strang Patrick Stevedoring Pty Ltd26 in the New South Wales Court of Appeal proceeded along somewhat similar lines.27 He said that it was not clear from the authorities whether a sudden sensory perception could be experienced in circumstances where a person was neither directly exposed to nor involved in the immediate aftermath of the injury or death of another. This question is extremely significant: in the context of the recent direction taken by the law in 22

See Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Chadwick v British Railways Board [1967] 1 WLR 912 and other rescuer cases dealt with in Chapter 25. It is foreseeable, however, that in addition to or instead of feeling horrified by what he or she witnesses, a rescuer may suffer shock and psychiatric injury through fear of the danger of physical injury to himself or herself or to fellow-rescuers in attempting to assist at the accident scene.

23

See eg King v Phillips [1953] 1 QB 429; Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271; and the older authorities where the plaintiff suffers shock through fear of harm to himself or herself, best illustrated by Dulieu v White & Sons [1901] 2 KB 669: see Chapter 24.

24

See eg Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

25

DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, pp 596–597. The last sentence is a reference to various cases dealing with emotional harm stemming from medical negligence.

26

Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606.

27

See also Morgan v Tame (2000) 49 NSWLR 21 at [47] per Spigelman CJ.

462

Part III: Liability for Mental Harm

[12.80]

Australia, opening up recovery to persons who are not present and yet suffer psychiatric injury through hearing of an accident to a close relative, such an application of the sudden shock rule would have the potential indirectly to restore the requirement of direct perception. Fortunately, however, Hodgson JA firmly ruled out such an interpretation, saying “in my opinion the better view is that there can be mental or nervous shock without direct perception of the situation itself or its immediate aftermath”.28 He was able to support this view by citing important pronouncements by Windeyer and Deane JJ.29 [12.80] One interesting issue is how the sudden shock rule should be appropriately characterised. On the face of it, it would seem to be essentially causative in nature, dealing with the way in which the psychiatric illness is occasioned. This was the view taken in the first edition of this book,30 which suggested that this was the way Brennan J saw it in Jaensch v Coffey.31 The same argument was put to the Full Supreme Court of Western Australia by counsel for the respondent in Annetts v Australian Stations Pty Ltd,32 suggesting that sudden shock had nothing to do with duty of care but went to the nature of actionable damage, causation and the aetiology of disorder. Ipp J did not agree. In his view, Brennan J’s judgment established that the question whether a plaintiff suffered psychiatric injury through shock formed part of the inquiry whether psychiatric injury was reasonably foreseeable.33

Acceptance elsewhere [12.90] In Alcock v Chief Constable of South Yorkshire Police,34 the House of Lords approved the approach of Brennan J in Jaensch v Coffey35 and thus gave general recognition to the need to differentiate between immediate trauma-induced psychiatric harm and “delayed shock”. Lord Ackner, for example, said, echoing the words of Brennan J: “Shock”, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates

28

Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at [68]–[69].

29

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407 per Windeyer J; Jaensch v Coffey (1984) 155 CLR 549 at 608–609 per Deane J. 30

See NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), p 192.

31

Jaensch v Coffey (1984) 155 CLR 549. This view is also clearly endorsed by Zuber J in Dube (Litigation guardian of) v Penlon (1994) 21 CCLT (2d) 268 at [145].

32

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

33

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [75]. See, however, Tame v New South Wales (2002) 211 CLR 317 at [272] per Hayne J, expressing a different view.

34

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 396 per Lord Keith of Kinkel, at 401 per Lord Ackner, at 416–417 per Lord Oliver of Aylmerton. 35

Jaensch v Coffey (1984) 155 CLR 549.

[12.100]

12 Sudden Shock

463

the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.36

The Law Lords stressed that in all the previous cases the injuries for which damages were claimed arose from sudden or unexpected shock rather than through the process of accumulation. While the facts of the prior authorities bear out these statements, until the express reference made by the House of Lords judicial comment on this requirement was notably absent in England. It seems that their Lordships took the view that courts had always assumed that it was a necessary prerequisite of liability.37 [12.100] In the two decades or more since Alcock v Chief Constable of South Yorkshire Police,38 the sudden shock requirement has been consistently affirmed by English courts. Several examples are furnished by conventional secondary victims cases involving road accidents and the like, such as Calascione v Dixon39 where the plaintiff claimed damages for various forms of psychiatric injury as a result of the death of her 20-year-old son. Although she had been present at the accident scene, she had not realised that it was her son who was involved; feeling uneasy about him, she went to his house and was then driven by police officers to the hospital, where after a period of waiting she was informed that her son was dead. Though she was within the aftermath, her claim was ruled out on the ground that it had not been induced by a sudden shock, but was gradual. Neill LJ, referring to Lord Ackner’s judgment in Alcock, said “one starts from the position that in this branch of the law damages are not recoverable for psychiatric illness unless they were induced by shock”.40 In addition, in a notable series of decisions involving medical negligence (where courts were faced with the additional difficulty that there was frequently no “external, traumatic, event”,41 and were often dealing with events that took place over an extended period rather than the very short time involved in a typical traffic accident) an important ground of decision was the lack of shock-induced injury.42 The pervasiveness of the sudden shock requirement is underlined by Palmer v Tees Health Authority,43 the case in which the mother of four-year-old 36

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401.

37

Note Rorrison v West Lothian College [1999] ScotCS 212 per Lord Reed: “The requirement that there be ‘shock’ does not appear to have been referred to in earlier cases in England and Wales or in Scotland, although it was in practice a feature of such cases.”

38

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

39

Calascione v Dixon (1993) 19 BMLR 97.

40

Calascione v Dixon (1993) 19 BMLR 97 at 104. See also Taylorson v Shieldness Produce Ltd [1994] PIQR P329; Vernon v Bosley (No 1) [1997] 1 All ER 577, especially at 584 per Stuart-Smith LJ.

41

See Taylor v Somerset Health Authority (1993) 16 BMLR 63 at 66 per Auld J.

42

See [22.290]–[22.590], where these cases are considered in detail.

43

Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447, appeal dismissed Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351.

464

Part III: Liability for Mental Harm

[12.110]

Rosie Palmer suffered psychiatric injury after her daughter was abducted, sexually assaulted and murdered. Her case was rejected because she was unable to show presence at the immediate aftermath of the accident. It is noteworthy that a consultant psychiatrist prepared a medical report in which he said that by the time the police were initially telephoned, within 15 minutes of the plaintiff discovering that Rosie had gone missing, she had suffered an instantaneous shock rather than a more gradual assault on her nervous system.44 The sudden shock issue was not discussed either by Gage J or the English Court of Appeal, but the report looks very like an attempt to ward off the sudden shock objection.45 [12.110] Support for the sudden shock rule is not confined to England and Australia. A Canadian case where the plaintiff failed to recover on this ground is Dube (Litigation guardian of) v Penlon Ltd.46 Parents claimed nervous shock damages after their infant child suffered brain damage and became a quadriplegic following an anaesthetic overdose during minor surgery. Zuber J in the Ontario General Division, discussing the limits on the foreseeability principle that applied in psychiatric injury cases, quoted Lord Ackner in Alcock v Chief Constable of South Yorkshire Police47 for the proposition that the recognisable psychiatric illness that was a prerequisite for recovery had to be shock-induced. Courts in Alberta and British Columbia have also rejected plaintiff claims on the ground that there was no sudden shock.48 [12.120] In Ireland, it is settled law that in order to recover damages for psychiatric injury the injury must be shock-induced. This was one of the five essential elements of liability outlined by the Supreme Court in the leading case of Kelly v Hennessy.49 There is some evidence that the sudden shock rule will not be applied in an inflexible way. In Devlin v National Maternity Hospital,50 it was alleged that the defendant hospital wrongfully carried out a post-mortem on a stillborn child and removed and retained 44

See Palmer v Tees Health Authority [1998] Lloyd’s Rep Med 447 at 451 per Gage J.

45

English cases referring to the sudden shock rule in other contexts include Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146, discussed at [19.320] (plaintiff suing employer, court differed as to whether plaintiff was primary or secondary victim: Evans LJ at 150 referred to “shock-induced injury”); Storey v Charles Church Developments plc (2001) 73 Con LR 1 (claim for psychiatric injury based on defective building: no liability because illness not shock-induced); Ward v Leeds Teaching Hospitals NHS Trust [2004] Lloyd’s Rep Med 530 (claim by father for death of daughter in hospital, 48 hours after being admitted for removal of wisdom teeth).

46

Dube (Litigation guardian of) v Penlon Ltd (1994) 21 CCLT (2d) 268, followed in Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743.

47

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401.

48

Brown (Next friend of) v University of Alberta Hospital (1997) 145 DLR (4th) 63; Ring v Bourgeois [1998] BCJ No 2576.

49

Kelly v Hennessy [1995] 3 IR 253. The presence of sudden shock was admitted in Courtney v Our Lady’s Hospital Ltd [2011] 2 IR 786 (plaintiff witnessed baby’s rapid deterioration in hospital).

50

Devlin v National Maternity Hospital [2008] 2 IR 222.

[12.140]

12 Sudden Shock

465

organs without the consent of the parents, who did not discover this until two years later. The mother alleged that she had suffered psychiatric illness on learning what had happened. Denham J was prepared to accept that her illness was shock-induced. [12.130] A number of United States jurisdictions uphold the sudden shock requirement.51 One leading decision is Vosburg v Cenex Land O’Lakes Agronomy Co,52 where a mother suffered poisoning and other illnesses as a result of contact with toxic substances in the course of her employment as a worker in a warehouse that stored agricultural herbicides and pesticides. Her children failed to recover against her employer for emotional distress sustained as a result seeing their mother’s suffering, because there was no allegation that the mother suffered the injury suddenly, and the manner in which the children became aware of the injuries was not sudden, shocking or startling. United States cases also exclude liability for emotional distress that stems from the subsequent contemplation of the victim’s suffering: even when there is some sort of sudden event, damages will usually be limited to emotional distress immediately resulting from that event, excluding anything that happens subsequently.53

Sudden shock and subsequent care [12.140] It appears that the sudden shock requirement was inspired by the problem of psychiatric harm brought about by the long-term effects of caring for badly injured relatives. Brennan J in Jaensch v Coffey54 proffered two examples of cases where the element of sudden shock would be lacking and recovery would therefore be denied: The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.

As can be seen, both fall into the subsequent care category. Deane J also referred to this problem: [I]t would seem reasonably clear that the requisite duty relationship will not, on the present state of the law, exist in a case where mere psychiatric injury results from subsequent contact, away from the scene of the accident and its 51

According to M Phillips, “Drawing the Line: Missouri Adopts the Zone of Danger Rule for Bystander Emotional Distress” (1991) 56 Mo L Rev 1183 at 1192, “Courts adopting even the most liberal theory of bystander recovery still require the mental injury to stem from a traumatic shock, as opposed to chronic stress.”

52

Vosburg v Cenex Land O’Lakes Agronomy Co 513 NW 2d 870 (Neb 1994). For other examples see Whitaker v Mullinax 628 So 2d 222 (La 1993); Fernandez v Walgreen Hastings Co 968 P 2d 774 (NM 1998); Finnegan ex rel Skoglind v Wisconsin Patients Compensation Fund 666 NW 2d 797 (Wis 2003).

53

See DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, p 597 n 1.

54

Jaensch v Coffey (1984) 155 CLR 549 at 565.

466

Part III: Liability for Mental Harm

[12.150]

aftermath, with a person suffering from the effects of the accident. An example of psychiatric injury suffered as a result of such post-accident contact is that which may result from the contact involved in the nursing or care of a close relative during a period subsequent to immediate post-accident treatment.55

[12.150] There are plenty of examples of this type of non-compensable situation. One of the earliest is the pre-Jaensch v Coffey56 case of Pratt and Goldsmith v Pratt57 where the Full Court of the Victorian Supreme Court denied relief to a mother who suffered mental illness through caring for her daughter and seeing her in the years that followed the accident. As Adam and Crockett JJ explained: [A]lthough the seriousness of the daughter’s injuries was immediately known and their irreparable nature appreciated soon afterwards, it was only after the passage of some weeks, if not months, that a medically recognisable condition of some mental origin affected the mother, and perhaps more importantly, … it was only after a similarly substantial period that there first occurred the events that were causally connected with the mother’s subsequent neurasthenic condition.58

[12.160] Similarly, in Anderson v Smith59 the plaintiff’s daughter was brain-damaged as a result of a near-drowning. In an action for psychiatric injury against the pool owners (the plaintiff’s mother and father60) recovery was denied on the ground that there was no evidence to suggest that the plaintiff’s “phobic anxiety depression disorder” was caused by a sudden shock to her sensory system. The plaintiff was not near the pool at the time of the accident, having gone to a hotel with friends for a drink, and witnessed nothing capable of inducing a psychiatric disorder when she arrived there later, the unconscious child having been plucked from the water and taken to hospital. Nor, the medical evidence revealed, was her illness the result of a shock on hearing the oral description of what had happened to her daughter. Rather, Nader J considered that the “insurmountable barrier” to relief faced by the plaintiff was that her 55

Jaensch v Coffey (1984) 155 CLR 549 at 606.

56

Jaensch v Coffey (1984) 155 CLR 549.

57

Pratt and Goldsmith v Pratt [1975] VR 378.

58

Pratt and Goldsmith v Pratt [1975] VR 378 at 382. Note that even if caring friends and relatives, such as the mother in this case, incur expense in rendering voluntary services it is the plaintiff and not the carers who has the right to recover compensation, because the purpose of the award is to compensate the need created by the injury: this principle, originally stated in Donnelly v Joyce [1974] QB 454, was affirmed by the High Court in Griffiths v Kerkemeyer (1977) 139 CLR 161 and Kars v Kars (1996) 187 CLR 354.

59 60

Anderson v Smith (1990) 101 FLR 34.

It was the plaintiff’s mother who was negligent in that she failed to close a back door properly, so that the 14-month-old child was able to leave the house and fall into the swimming pool in the yard. (It was conceded that no case had been made out against the plaintiff’s father.) Interestingly, the grandmother was called as a witness for the plaintiff. This is explicable by the fact that she was covered by insurance, though this will often be lacking in cases involving injuries on private property due to a failure to supervise: see H Luntz, “Torts” in R Baxt and G Kewley (eds), Annual Survey of Australian Law 1990 (Law Book Co, Sydney,1991), p 125.

[12.170]

12 Sudden Shock

467

psychiatric syndrome was caused by a 15-month prolonged contact with her daughter in hospital between the date of the accident and the child’s death due to septicaemia, chest infection and diminished cough reflex.61 A number of stressful events occurred during that period, commencing with her being informed by police in the hotel that there had been an accident at her mother’s home, what she was later told about her daughter’s prospects, the sight of the daughter, her understanding of the gravity of the situation, her continued daily caring for her daughter for a considerable period, seeing her day after day in hospital, her eventual death and the quashing of the plaintiff’s false hopes and expectations for a recovery. [12.170] The same sentiments have been expressed where the harm complained of does not in fact appear to have developed to such an extent as to be classified as a psychiatric disorder. This is evident from Andrewartha v Andrewartha62 where the plaintiff’s wife was rendered a quadriplegic as the result of a car accident negligently caused by the defendant. Following her eight-month stay in hospital, the husband decided that rather than institutionalise his wife he would care for her at home with the assistance of two live-in housekeepers and visiting nursing attendants. Sadly, however, the wife remained unresponsive to care and uncommunicative, displaying no interest in the husband. Over the years this took its toll on him. He claimed damages for, inter alia, distress and the gradual development of psychological depression as a result of the constant care of his wife and the stress, sadness and loneliness associated with it, and at first instance recovered damages. On appeal, the Full Court of the South Australian Supreme Court ruled, following Jaensch v Coffey,63 that allowing recovery in negligence for depressive illness on these facts was contrary to authority and was not open on the pleadings in any event. As White J pointed out, referring to the remarks of Deane J quoted at [12.140], if the plaintiff’s contention was accepted it would mean that: all defendants who cause harm to victims living with sisters or friends in a close, loving relationship should contemplate that the victim’s close relations and friends may become, in the long term, proportionately distressed and even psychiatrically ill after caring for the victim for a long time.64

Thus, in Australia a firm line was drawn between the situation where the plaintiff suffers psychiatric injury through a sudden shock and cases of gradual onset of subsequent psychiatric illness through constant contact with, and care of, a badly injured victim.65 61

Note that the plaintiff was awarded $10,000 for solatium pursuant to s 10(3)(f) of the Compensation (Fatal Injuries) Act (NT).

62

Andrewartha v Andrewartha (1987) 44 SASR 1.

63

Jaensch v Coffey (1984) 155 CLR 549.

64

Andrewartha v Andrewartha (1987) 44 SASR 1 at 4.

65

See also Davis v Scott (1998) 76 SASR 361, where parents saw a plane carrying their 11-year-old son crash: one issue in determining the appropriate measure of damages was distinguishing between the mental consequences of seeing their son immediately after the

468

Part III: Liability for Mental Harm

[12.180]

[12.180] A similar line has been drawn in the Canadian case law. The plaintiff in Beecham v Hughes66 was injured in two separate accidents in two years, the first of which also involved his de facto wife. He sought compensation for psychiatric injury in the form of reactive depression arising out of his wife’s injuries. The medical evidence indicated, however, that the depression was not caused by the shock of either accident or the sight of the severe injuries sustained by his wife in the first accident. Rejecting the claim on the basis of an absence of causal proximity, the British Columbia Court of Appeal stressed that the plaintiff’s loss stemmed from intervening events in his life, namely his inability to “accept the fact that his wife [would] not again be the person she was before the [first] accident”.67 It was the continuing and debilitating effect of viewing his wife in a state utterly unlike her pre-accident condition that served as a constant reminder of what they had lost and eroded the plaintiff’s emotional fibre.68 In Ireland also, it has been made clear that recovery is not available for mental injuries attributable to the damaging effects of caring for injured relatives. In the leading case of Kelly v Hennessy,69 where the plaintiff had taken on the role of daily caring for her badly injured husband and daughter over a protracted period, and was diagnosed with post-traumatic stress disorder and severe depression, it was argued that these illnesses were caused by the damaging effects of the post-accident situation, but the Supreme Court upheld the award of damages on the basis that the plaintiff had suffered psychiatric injury in the immediate aftermath of the accident.70

accident and of coping with his subsequent disability. The appeal to the High Court, which dealt only with the vicarious liability of the owner for the pilot’s negligence, was dismissed: Scott v Davis (2000) 204 CLR 333. Note Buljabasic v Ah Lam (unreported, NSWCA, CA No 40417 of 1996, 3 September 1997), where the New South Wales Court of Appeal in an extempore judgment appears to have affirmed the sudden shock rule, but which in essence rules against the relatives in a subsequent care situation; Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995), where a claim for psychiatric injury suffered by parents due to the effects of caring for their disabled son was abandoned. 66

Beecham v Hughes (1988) 52 DLR (4th) 625.

67

Beecham v Hughes (1988) 52 DLR (4th) 625 at 664 per Taggart JA (Carrothers JA concurring). See also at 667 per Lambert JA.

68

Note also Cameron v Marcaccini (1978) 87 DLR (3d) 442; Szeliga Estate v Vanderheide [1992] OJ No 2856; Brown (Next friend of) v University of Alberta Hospital (1997) 145 DLR (4th) 63. In O’Neill v Campbell (1995) 161 NBR (2d) 1 a first instance judge awarded damages for depression caused by subsequent care without reference to the authorities. In the first instance proceedings in Rumley v British Columbia [2001] 3 SCR 184, the defendant argued that those plaintiffs who claimed to have suffered psychiatric injury as a result of sexual abuse of family members had suffered damage as a result of observing subsequent behaviour changes, rather than of the abuse itself: see LR v British Columbia (unreported, BCSC, Docket C980463, 30 October 1998).

69 70

Kelly v Hennessy [1995] 3 IR 253.

For an English case where no damages were awarded for shock caused to the plaintiff by the trauma of watching his son die, see Toth v Ledger [2002] PIQR P1. In Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317, where a mother recovered damages from the doctor whose

[12.200]

12 Sudden Shock

469

[12.190] If Brennan J’s statement in Jaensch v Coffey71 had been interpreted simply as marking out the subsequent care cases as one kind of fact situation that was beyond the limits of psychiatric injury recovery — which was all that Deane J had sought to say — then it could perhaps have been regarded as unobjectionable. But Brennan J derived from his particular examples a more general requirement that psychiatric injury must be shock-induced, and this was adopted in the case law in all the major jurisdictions. So, for example, in Rhodes v Canadian National Railway,72 where the facts did not involve post-accident care and counsel of a loved one, but the gradual realisation that a close relative had died, the British Columbia Court of Appeal emphasised the need for shock and psychiatric injury to be sustained through a direct impact upon the senses by some event fraught with terror or horror.73 Over a period of several days, the plaintiff gradually became convinced that her son had died in a train crash in Alberta, receiving little co-operation from the authorities in her attempts to discover the truth about his fate, including directing her to the wrong crash site and memorial service. As a result, the plaintiff suffered psychiatric injury. It was held that indirect psychiatric damage of this nature stemming from her reaction to the consequences for her son of the tortfeasor’s want of care did not sound in damages.

UNDESIRABLE CONSEQUENCES OF THE SUDDEN SHOCK RULE [12.200] The adoption of a rule requiring a sudden shock to the sensory system rule has had a number of undesirable consequences. One important case that highlights the limitations of this requirement and its inability to accommodate the vast number of complex psychiatric illnesses is the decision of the New South Wales Court of Appeal in Campbelltown City Council v Mackay.74 A young married couple sued a local council, two engineers and a contractor for, inter alia, psychiatric injury allegedly suffered as a result of the deterioration of their “dream home” in the form of cracking and displacement. After the plaintiffs negligent performance of an operation caused her daughter’s death, Amarjeet JC at 333 expressly distinguished the situation of “caregivers of the primary victims of negligence in ordinary cases, where the toll taken on them over a period of time of watching their close relatives suffer causes a nervous illness”. 71

Jaensch v Coffey (1984) 155 CLR 549 at 565.

72

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

73

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 251 per Macfarlane JA, at 264–265 per Wallace JA, at 272–273 per Southin JA, at 297 per Taylor JA (Wood JA concurring). 74

Campbelltown City Council v Mackay (1989) 15 NSWLR 501. Note, however, that the respondents’ concession that success in this claim depended upon proving that the psychiatric injury resulted from a sudden affront to their psyches, coupled with the comments in Jaensch v Coffey (1984) 155 CLR 549, prevented the court from thoroughly reviewing the boundaries of liability for psychiatric injury in this context. In Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [75], Gillard J said that this concession was based on a misunderstanding of the issues in Jaensch v Coffey.

470

Part III: Liability for Mental Harm

[12.210]

moved out, a demolition order was issued, the wife gave birth to a stillborn child, then developed a psychiatric illness, and the marriage broke down. Subsequently, the husband also developed a psychiatric illness. As well as awarding damages for the collapse of their home and consequential loss, Smart J granted relief for the plaintiffs’ psychiatric injury on the basis that they had suffered mental illness as a result of the sudden perception of property damage.75 In an appeal confined to the latter issue, the Court of Appeal disagreed with Smart J’s finding but upheld the award on the ground that compensation for vexation, distress and inconvenience suffered as a result of the property damage could be supported. [12.210] The court was clearly unimpressed by the plaintiffs’ contention that the injury-inducing phenomenon was the perception that severe structural damage had occurred to their home. They had undoubtedly suffered a recognisable psychiatric illness but not as a result of one isolated shocking incident. In truth, the psychiatric conditions of the claimants were the result of a combination of factors and not of the perception of property damage. McHugh JA (with whom Kirby P and Samuels JA agreed) stated: In an action for nervous shock it is not enough, as Brennan J pointed out in Jaensch v Coffey, that the psychiatric illness was the foreseeable result of the defendant’s conduct. The illness must be the result of a shock caused by the perception of a phenomenon for which the defendant is responsible. Here the shock-inducing phenomenon was the stillbirth operating on a mind which had already been subjected to much worry, fear and stress as the result of the “collapse” of the house. What is missing from the present case is any evidence that prior to the stillbirth [the wife] was suffering from any psychiatric condition. Indeed, the evidence establishes that notwithstanding the pressures and stresses she was able to cope. … In my opinion the evidence shows that the severe depressive disorder was the result of the stillbirth and that, although the “collapse” of the house was a contributing factor, that phenomenon did not produce a shock which brought on a psychiatric illness.76

[12.220] A similar finding was reached in relation to the husband. Kirby P was particularly sceptical of the plaintiff’s artificial attempts to blame the movement of their home on a particular night for their entire course of psychological problems. His Honour was critical of the stagnant state of the law in this context that forced claimants to try to “squeeze their claims into outmoded formulae”.77 Its artificialities, he said, pressure expert witnesses to “distort opinions on what they may feel to be legitimate claims out of deference to outmoded formulations of the legal basis of entitlement to recovery”.78 It appeared that Kirby P, at least, were 75

For discussion of mental harm suffered as a result of property damage see Chapter 27.

76

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 509.

77

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503.

78

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503–504. Note Bassanese v Martin (1982) 31 SASR 461 where it was recognised that although the plaintiff’s depressive illness was consequent upon the murder of her adulterous husband by a jealous suitor of the

[12.240]

12 Sudden Shock

471

he free to do so, would eliminate this requirement as not being fundamental to the cause of action; subsequently, following his elevation to the High Court bench, his Honour played a decisive part in the eventual rejection of sudden shock, as will be seen.79 [12.230] Kirby P emphasised that, from a medical perspective, the “shock” element is inappropriate to deal with the nature of psychiatric disorders: it will operate to exclude many deserving claims. As his Honour pointed out: [P]sychiatric injury, more than most, is very unlikely to result from the single impact upon the psyche of the claimant of an isolated event. Since the tort of nervous shock was fashioned, there have been substantial advances in the understanding of human psychology. It is highly artificial to imprison the legal cause of action for psychiatric injury in an outmoded scientific view about the nature of its origins. The causes of action at common law should, in my opinion, be released from subservience to 19th century science. [P]sychological injury is a … complex process. It is rarely (if ever) explicable as the result of an isolated “shock”.80

[12.240] Similar sentiments were forcefully expressed by Henry LJ in the English Court of Appeal in Frost v Chief Constable of South Yorkshire Police,81 the claim by a number of police officers for post-traumatic stress disorder resulting from their involvement on duty at Hillsborough on the day of the match. His Lordship, discussing the alleged requirement of sudden shock, did not see Lord Ackner’s dictum in the first Hillsborough case as an obstacle to the recognition of the medical realities: [T]he length of the exposure and the circumstances of the exposure was the trauma that caused the psychiatric illnesses, rather than any sudden and immediate “shock”. In so far as this conclusion may seem in conflict – and myself I do not think that it is – with Lord Ackner’s dicta … in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 401, that: “‘shock’ in the context of this cause of action involves the sudden appreciation … of a horrifying event,” this is simply an example of what Lord Ackner referred to at p 399: an expansion of “the liability for shock-induced psychiatric illness … due to a better understanding of mental illness and its relationship to shock.” To make the meaning clear, I would have preferred to use the word “trauma” for “shock” …. But what matters is not the label on the trigger for psychiatric damage, but the fact and foreseeability of psychiatric damage, by whatever process.82 husband’s mistress, it was also due in part to causes existing prior to that sudden and impacting shock. She had long been emotionally fragile due to severe epilepsy and intellectual deterioration. Although a defendant must take the victim as found (see [8.280]–[8.380]), the court rejected attempts to present as matters justifying an award of damages symptoms that were present prior to the husband’s death. Compare also Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988): see [8.140]. 79

See [12.430].

80

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503.

81

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

82

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271.

472

Part III: Liability for Mental Harm

[12.250]

[12.250] These are by no means the only judicial criticisms of the traditional stance taken by the law on the sudden shock issue. Appellate judges both in England and Australia have suggested that there is little logic in the sudden shock requirement.83 In Strelec v Nelson,84 Smart J of the New South Wales Supreme Court was clearly sympathetic to the views of Kirby P in Campbelltown City Council v Mackay85 but said that he had to apply the present law. On the facts, he was able reach the right result by finding that there was a sudden shock. [12.260] The initial reaction to traumatic stimulus is automatic and instinctive, commonly taking the form of fear, grief or anger and varying in intensity depending upon the stimulus and individual concerned. No damages can be awarded for these responses. Nor can one recover for instant and initial shock: it is subsequent, more lasting and healththreatening human responses that are compensable as “nervous shock” — or in more modern terms, as psychiatric injury or mental harm.86 It will be extremely rare that this type of reaction will be triggered by the initial transient sensations normally experienced when trauma is perceived. Rather, mental damage of this sort commonly occurs as a result of a later realisation of the true severity or consequences of the trauma or a continued inability to cope with the situation in question. As one commentator has observed, “the consensus of modern medical opinion is that lasting [and compensable] damage does not occur in ‘normal’ individuals as a result of emotional shock, however severe”.87 Significantly, even in Jaensch v Coffey88 itself the wife did not exhibit any psychiatric complaints until about a week after the second visit to the hospital to view her injured husband when she realised that he could actually die. Similarly, in Mount Isa Mines Ltd v Pusey89 the plaintiff’s rare schizophrenic reaction to seeing two fellow workmen horribly burnt did not manifest itself until approximately four weeks later.90 If the enduring and compensable psychic impact does not normally result from a momentary dramatic event it is therefore inappropriate to insist on an immediate and significant consequence such as a “sudden sensory perception” as a 83

See Sion v Hampstead Health Authority [1994] 5 Med LR 170 at 173 per Staughton LJ; Pham v Lawson (1997) 68 SASR 124 at 149 per Lander J.

84

Strelec v Nelson (unreported, NSWSC, No 12401 of 1990, 13 December 1996).

85

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

86

See [4.10]–[4.40], and Chapters 4–5 generally.

87

See J Havard, “Reasonable Foresight of Nervous Shock” (1956) 19 MLR 478 at 482. Note also H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 106–108; Comment, “Negligently Inflicted Mental Distress: The Case for an Independent Tort” (1971) 59 Geo LJ 1237 at 1248–1253.

88

Jaensch v Coffey (1984) 155 CLR 549.

89

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

90

Contrast Young v Burgoyne (1981) 122 DLR (3d) 330 where the Nova Scotia Supreme Court declined to award damages to a woman who did not sustain psychiatric injury until nine months after an “emotional upset”. The language adopted by the court does not make it clear whether this was regarded as a sudden shock to her sensory system.

[12.280]

12 Sudden Shock

473

prerequisite to recovery. Such insistence, in the absence of a change in the law barring relief for transient emotions like grief, sorrow, anger or an initial shock, will mean that plaintiffs with recognisable psychiatric illnesses will more often than not go uncompensated.91

QUALIFICATIONS TO THE SUDDEN SHOCK RULE Fact situations where the rule does not apply [12.270] As has been noted, the sudden shock rule has been affirmed across a wide range of psychiatric injury cases. However, there are important exceptional categories of action where it has been judicially stated that the rule does not apply. One such category is where an employee is claiming against his or her employer for damages for psychiatric injury caused by work stress.92 Such a case is very different from the traditional secondary victim scenario: there are only two parties, and there is a prior relationship between them. Judges from several jurisdictions have suggested that sudden shock is not a necessary ingredient of the employer’s liability to the employee in this situation. [12.280] In Australia, in the important Victorian case of Sinnott v FJ Trousers Pty Ltd,93 Gillard J agreed with a submission made by counsel for the plaintiff that Brennan J’s statement in Jaensch v Coffey94 only applied in secondary victim cases, saying that when read in context Brennan J was not seeking to lay down a principle of general application, and his statement did not exclude a plaintiff from recovering damages for purely mental illness consequent upon negligence by his employer.95 In two judgments delivered on the same day, Mason P of the New South Wales Court of Appeal agreed. In Morgan v Tame,96 he suggested that the traditional position on sudden shock sat uneasily with cases where liability had been recognised despite the absence of a sudden assault on the nervous system, but said that they were distinguishable on the basis that the particular relationship between the parties contained additional factors that established the necessary proximity. In particular, in occupational stress cases the employer’s general duty to provide a safe system of work was sufficient to generate a duty even in the absence of control factors such as sudden shock. In New South Wales v Seedsman97 he elaborated on this issue, pointing out that although the English case law also upheld the general sudden shock requirement, this had not prevented the courts from recognising liability for work stress despite the 91

See H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 108.

92

For detailed treatment of such cases see Chapter 20. The law also treats other psychiatric injury cases involving employer and employee rather differently: see Chapter 19.

93

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124.

94

Jaensch v Coffey (1984) 155 CLR 549 at 565: see [12.30].

95

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [86]–[87].

96

Morgan v Tame (2000) 49 NSWLR 21 at [154].

97

New South Wales v Seedsman (2000) 217 ALR 583 at [157]–[160].

474

Part III: Liability for Mental Harm

[12.290]

absence of that factor in cases such as Walker v Northumberland County Council,98 and suggesting that Australian law was to the same effect.99 [12.290] Irish and Scottish cases have expressly confirmed that there is no need for a requirement of sudden shock in work stress cases. In Ireland, Judge McMahon in Curran v Cadbury (Ireland) Ltd,100 in the course of a detailed review of psychiatric injury law in the employment context, suggested that when the Irish Supreme Court had affirmed the general sudden shock requirement in Kelly v Hennessy101 it did not have the work stress cases in mind,102 and he specifically affirmed the correctness of the Walker v Northumberland County Council103 line of cases.104 In Scotland, the issue received a detailed examination in Cross v Highlands and Islands Enterprise,105 a case of suicide by a senior training manager (employed by the defendant) due to a depressive disorder. On the facts it was not proved that this was caused by stress at work. However, Lord Macfadyen rejected a defence argument that there could be no liability in a work stress case because there was no sudden shock, and that Walker was wrongly decided because it had ignored this requirement.106 This argument was based on Lord Steyn’s statement in White v Chief Constable of South Yorkshire Police107 that it was a non sequitur to say that because an employer was under a duty to an employee not to cause physical injury, as a necessary consequence the employer also owed a duty not to cause psychiatric injury; another basis was the general need for shock-induced injury upheld by Lord Ackner in Alcock v Chief Constable of South Yorkshire Police.108 Lord Macfadyen said that the defender’s position on this issue was unsound. The common law duty of an employer to take reasonable care for an employee’s safety and health and provide a safe system of work should extend to include a duty to take reasonable care not to subject the employee to working conditions that were foreseeably likely to cause psychiatric illness. This view had been accepted in Walker, but was not conclusive because this issue had not been specifically argued, the 98

Walker v Northumberland County Council [1995] ICR 702.

99

See also Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 at [27] per Davies AJA.

100

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343.

101

Kelly v Hennessy [1995] 3 IR 253: see [12.180].

102

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 352.

103

Walker v Northumberland County Council [1995] ICR 702.

104

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 349.

105

Cross v Highlands and Islands Enterprise 2001 SLT 1060.

106

See also Fraser v State Hospitals Board for Scotland 2001 SLT 1051, where the pursuer, a charge nurse, alleged that her punishing work schedule resulted in a depressive illness. Though her claim was rejected, Lord Carloway made it clear that there could be liability in a case where the disorder resulted from a series of events. The decision is clearly inconsistent with any suggestion that the sudden shock rule should apply in such cases.

107

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497: see [19.340].

108

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[12.300]

12 Sudden Shock

475

judge instead concentrating on the foreseeability issue. Contrary to the opinion of Lord Steyn, this approach did not involve a non sequitur: The non sequitur that Lord Steyn identified was to proceed from a narrower base, namely a duty not to cause physical injury, to the conclusion that there is also a duty not to cause psychiatric injury. If the starting point is instead the broad duty to avoid causing reasonably foreseeable harm generally, foreseeable physical harm and foreseeable psychiatric harm can be seen as two sub-categories of the general category of foreseeable harm, and in that event, it seems to me to be reasonable to ask if there is any logical reason for treating the sub-categories differently from each other. … There may of course exist a sound reason for treating the risk of psychiatric injury differently from the risk of physical injury. But unless there is such sound reason, it is in my view right in principle to treat the risk of psychiatric injury in the same way as the risk of physical injury.109

Lord Macfadyen went on to say that the defender’s submission was based on the argument that the law had determined that psychiatric injury was a special category that was required to be treated differently. But the outdated expression “nervous shock” was not the only type of psychiatric injury from which employers had a duty to protect their employees. Lord Ackner’s view had to be read in the context in which it was expressed, namely a secondary victim case, where the law had concluded that there was a need for additional controls.110 The ratio of White was that the existence of an employment relationship between the wrongdoer and a secondary victim did not exclude the application of the Alcock controls in cases of the sort to which those controls applied, but the Alcock controls did not apply to the case of a primary victim. His Lordship’s detailed refutation of the need for sudden shock in work stress cases lends powerful support to the Australian authorities. [12.300] The sudden shock requirement has also been rejected as inappropriate in cases where the plaintiff claims to have suffered psychiatric injury through fear of what will happen in the future, for example because of exposure to the possibility that he or she will develop a deadly disease such as Creutzfeldt-Jakob Disease (CJD), AIDS, asbestosis or mesothelioma111 — diseases that have a long latency period and in some cases cannot be detected until they occur, but in all cases result in an inevitable and unpleasant death. In the leading Australian case, APQ v Commonwealth Serum Laboratories Ltd,112 Harper J dismissed an application for summary judgment by the defendant, which had manufactured a drug from human pituitary gonadotrophins with which the plaintiff had been treated. It subsequently became apparent that this had exposed her to the risk of contracting CJD. She alleged that this had caused her to suffer severe stress syndrome, severe psychiatric reaction, 109

Cross v Highlands and Islands Enterprise 2001 SLT 1060 at [60].

110

See also Fraser v State Hospitals Board for Scotland 2001 SLT 1051 at [126].

111

See Chapter 29.

112

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633, dealt with in more detail at [29.80]–[29.130].

476

Part III: Liability for Mental Harm

[12.310]

depression, anxiety and shock. His Honour held that it could not be said that the claim had no prospect of success. Foreseeability of psychiatric injury was clearly established and the absence of a close temporal connection between the negligent act, its consequences and the plaintiff’s awareness of those consequences did not place the case outside the categories of those in which the law recognised a duty of care in respect of psychiatric injury. A defence based on the lack of sudden shock was specifically rejected. Harper J said that, with the exception of the old case of Dulieu v White & Sons,113 the only support for the requirement that psychiatric injury be shock-induced came from secondary victim cases, and in Dulieu Kennedy J’s limitation that shock had to arise from reasonable fear for one’s own safety had not been supported by other judges and had long since been abandoned. His Honour was prepared for present purposes to accept the need for sudden shock in secondary victim cases (though he pointed out that Brennan J’s position had not received support in the other judgments); but such a case was very different from the case before the court: [O]ne cannot say that such “shock” is so clearly a necessary element of the present plaintiff’s cause of action that she cannot succeed unless it is proved. The shock suffered by someone who is informed without any prior warning that she (or he) might contract a particularly undesirable disease could seldom, if ever, be said to arise from a “sudden sensory perception of a person, thing or event”. Yet it might well be so distressing that it affronts or insults the mind and thereby causes a recognisable psychiatric illness. This being so, it is difficult to understand why the absence of the sudden sensory perception of a person, thing or event should make the difference between a cause of action on the one hand and no cause of action on the other, where in each instance psychiatric harm has been caused. Unless I have sadly misunderstood the present plaintiff’s claim, this case is not analogous to that of the worn-out spouse or the parent of the brain-damaged child.114

[12.310] Similar views were expressed by Morland J in dealing with a similar fact situation in the English case of CJD Group B Plaintiffs v Medical Research Council.115 The defendant had argued that the plaintiffs, who also claimed to have suffered psychiatric injury because of the fear that they had contracted CJD, did not satisfy the secondary victim requirements and could not recover as primary victims because their psychiatric injury was not the result of a sudden shocking event. His Lordship held that the plaintiffs were not primary victims in the sense in which that category had been interpreted in Page v Smith,116 but were owed a duty of care because of the doctor–patient relationship between the parties. Sudden shock was irrelevant: it was foreseeable that the risk of CJD becoming a reality could occur within a huge time span, and that patients could 113

Dulieu v White & Sons [1901] 2 KB 669.

114

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [26].

115

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161, dealt with in more detail at [29.250]–[29.210]. 116

Page v Smith [1996] AC 155.

[12.330]

12 Sudden Shock

477

discover they were at risk at any time over a long period.117 The defence argument failed to persuade the judge that APQ v Commonwealth Serum Laboratories Ltd118 should not be followed. [12.320] The sudden shock rule has also been said to be inappropriate in cases dealing with fear of other diseases. In Fritz v Queensland Corrective Services Commission119 Derrington J, in the course of refusing to strike out a claim by a prisoner incarcerated in a section of a gaol reserved for prisoners with AIDS and HIV that fear that he too might develop such a disease caused him to suffer psychiatric injury, held that sudden shock was not a requirement in such a case, saying “it would be remarkable if a party could recover damages for psychiatric harm caused by sudden fear of death, say by crushing, but not if the fear grew to the same or greater intensity because it was slow in its realisation.”120 [12.330] Finally, note should be taken of the dissenting judgment of Sir Thomas Bingham MR in the English Court of Appeal in X v Bedfordshire County Council,121 a case concerned with the liability of a local government authority and a psychiatrist employed by it for not taking sufficient steps to prevent sexual abuse of children. The majority ruled that the claim should be struck out, but his Lordship adopted the contrary view. He specifically rejected a defence submission, based on Lord Ackner’s speech in Alcock v Chief Constable of South Yorkshire Police,122 that the psychiatric disorder suffered by the child was not sufficient for a negligence claim, saying that authoritative though that statement was, he questioned whether it could be held to preclude a claim by a child for psychiatric disorder in the circumstances of the present case if that claim was otherwise soundly based. One of his reasons was that “the temptation of seeking to freeze the law in a rigid posture” should be resisted; in view of the diversity of approach among the major common law jurisdictions, “it seems unlikely that the last word has been said in this difficult and contentious area.”123 Though at the time this judgment represented a pocket of isolated resistance against an otherwise universal 117

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 166.

118

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

119

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995), dealt with in more detail at [29.440]–[29.460].

120

Note also Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994), a case of fear of cancer resulting from presence at the Maralinga atomic tests, where it was argued that sudden shock was only relevant in secondary victim cases: Foster J (at [197]) held that this matter should await a case where it necessarily arose for determination. In Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994), a case of psychiatric injury caused by fear of asbestos-related disease, Seaman J did not see the sudden shock rule as an obstacle in the way of awarding damages, but the psychiatric injury issues were not considered in detail.

121

X v Bedfordshire County Council [1995] 2 AC 633.

122

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

123

X v Bedfordshire County Council [1995] 2 AC 633 at 664. Staughton LJ at 669 said there was no need to express an opinion on this matter, and Peter Gibson LJ did not refer to it.

478

Part III: Liability for Mental Harm

[12.340]

denial of liability in such cases, the picture is now very different,124 and it would be difficult to predict with confidence, even in England, that the sudden shock rule would now be a ground on which such authorities could rely. [12.340] In light of the cases discussed at [12.270]–[12.330], the alleged sudden shock rule is far from a universal rule applicable in all psychiatric injury cases. The fact that there are particular categories of case in which it has been considered inappropriate should raise considerable doubt whether the rule has validity in any area of psychiatric injury law — especially given that its origins are both recent and somewhat questionable.

Mental harm combining with physical harm [12.350] As long as the sudden shock rule continued to be upheld, the only hope for relief for persons suffering psychiatric harm caused by something other than a sudden shock to the senses (that is, the overwhelming majority of sufferers of this type) was if, in addition to sustaining mental injury, they have had the misfortune of sustaining bodily injury or incurring damage to property. In an action for physical injury a plaintiff is entitled to recover for consequential psychiatric illness without the need to establish that it was the result of a shock caused by the sudden perception of some phenomenon for which the defendant is responsible. It is sufficient that the mental condition is the reasonably foreseeable result of the defendant’s negligence. The same is true of an action for property damage.125 As the New South Wales Court of Appeal confirmed in Campbelltown City Council v Mackay,126 the plaintiff is entitled to recover for personal harm (including psychiatric illness) that is the reasonably foreseeable result of the defendant’s negligent damage to that property. But as McHugh JA noted: Proof that mental illness is the reasonably foreseeable result of negligent damage to property may often be more difficult to establish than proof that it is the reasonably foreseeable result of the negligent infliction of personal injury. But the same principles of causation and remoteness apply whether the cause of action in tort is for damage to property or harm to person.127

[12.360] The greater restrictions placed on recovery in non-consequential psychiatric injury cases appear to have gone uncriticised. The result of this division seems to lack a certain logic: as Campbelltown City Council v Mackay128 illustrates, the common law had reached the anomalous position where in an action for consequential psychiatric injury it recognised the mental damage claims of those whose property has 124

See the detailed treatment at [21.240]–[21.320].

125

See eg Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 511 per McHugh JA; Perry v Sidney Phillips & Son [1982] 1 WLR 1297; Brickhill v Cooke [1984] 3 NSWLR 396.

126

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

127

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 511.

128

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

[12.370]

12 Sudden Shock

479

gradually deteriorated but rejected claims based on the gradual worsening of the health of a relative. Nader J in Anderson v Smith129 could see no foundation or policy reason for a stricter control mechanism in the latter type of case, viewing it as unreasonable “for the law to vest the artificial (created by positive law) relationship of property to owner with a greater capacity for the infliction of compensable injury to the owner than the natural relationship of infant to mother has for the infliction of such injury to the mother”. His Honour urged the law to take another “cautious step”130 and to allow recovery for the gradual onset of psychiatric illness thereby putting parents of injured infant children on the same footing at least as owners of property who sue for consequential damage. As will be seen at [12.430], the highest Australian court has now heeded his call.

Primary victim’s condition contributing to continuing effect of initial shock [12.370] As has been shown at [12.140], the sudden shock rule appears to owe its origin to judicial reluctance to compensate plaintiffs whose mental injuries stem from the difficulties of caring for a badly injured accident victim, such as a brain-damaged child. Although worry or anxiety for the condition of a seriously injured loved one and psychiatric illness resulting from subsequent care situations of this kind are not compensable, the primary victim’s condition may contribute to the continuing effect of any initial shock to the nervous system that a plaintiff suffered at the time of the injury or within a sufficiently short time thereafter.131 The distinction is an important one. This was emphasised by Miles CJ in De Franceschi v Storrier132 where the daughter and two of the 129

Anderson v Smith (1990) 101 FLR 34 at 51.

130

A reference to Jaensch v Coffey (1984) 155 CLR 549 at 555 per Gibbs CJ: “The law must continue to proceed in this area step by cautious step.” Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 403 used similar language.

131

This is to be distinguished from the situation that arose in McLaren v Bradstreet (1969) 113 SJ 471 where the victims’ recovery from shock-related complaints was retarded by the neurotic condition of their mother (who was not the primary victim). She encouraged constant discussion about the consequences of their accident and produced a morbid atmosphere in the home that prevented the natural healing process taking place. The English Court of Appeal refused to take this into account, Widgery LJ saying that the tortfeasor had to take the plaintiff as he found him but not the plaintiff’s family.

132

De Franceschi v Storrier (1988) 85 ACTR 1. Note also White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982) where the trauma suffered by parents as a result of an accident to their teenage daughter was greatly aggravated by her post-accident behaviour — “she acted as if she were from time to time two or three different people”, and would often be violent and use abusive language to her parents; Government Insurance Office of New South Wales v Maroulis (unreported, NSWCA, CA No 274 and 275 of 1988, 6 April 1990) where the psychiatric injury suffered by the plaintiff was greatly exacerbated by the experience of living with her injured husband after the accident; and the slightly different case of Richards v Baker [1943] SASR 245 where a mother who was compensated for the shock of witnessing injury to her child was granted an additional sum for the aggravation of her condition as a consequence of his subsequent death.

480

Part III: Liability for Mental Harm

[12.380]

three sons of the plaintiff were seriously injured by a wayward driver whilst they were waiting for their school bus. It was approximately five years before it was known that the daughter would survive the accident, with the consequence that the plaintiff’s psychiatric disorder sustained as a result of her initial shock was prolonged, or to put it another way, its harmful effect was continued. During that period she was never able to take an “emotional break” from the trauma. The continuing psychiatric consequences would, the Chief Justice ruled, be compensable up to the point where they transmuted into irrecoverable natural parental concern. The drawing of the line between the compensable results of nervous shock and non-compensable natural concern was recognised as a necessary, albeit highly artificial, exercise. Nevertheless the case reinforces the notion that, on the view of the law as stated by Brennan J, in the absence of an initial sudden and dramatic impact a plaintiff will be denied relief for any mental damage he or she sustains. But once there is medical evidence of such harm damages may be collected for persisting or increasingly debilitating psychiatric harm that comes about due to the ensuing poor condition of the primary accident victim — as the latter’s health fails to improve or deteriorates, so may the former’s, with a consequent effect on the compensation award.133 [12.380] The same issue arose in England in S v Distillers Co (Biochemicals) Ltd134 where a mother who took thalidomide during pregnancy recovered damages for the shock and resultant psychiatric injury caused by her son being born without arms. Hinchcliffe J held that the daily reminder involved in caring for the boy could increase the damages for the shock of the birth of a deformed child. The outcome would have been different if the shock and psychiatric harm had only developed over a period of time as the full consequences of the calamity were brought home to the plaintiff.135 In Whitmore v Euroways Express Coaches Ltd136 also, the plaintiff recovered £2,000 for both the immediate and the continuing “shock” (that lasted for eight weeks) suffered as a consequence of her husband’s injuries in a coach accident in France and their continuing debilitating effects.137 In the Irish case of Mullally v Bus 133

Consider the fact situation in Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318 where a severely shocked and traumatised father, having already lost his wife and one child in a boating accident, had to make the “wrenching” decision, after a two-day bedside vigil, to discontinue life support and allow a second child to die. 134

S v Distillers Co (Biochemicals) Ltd [1969] 3 All ER 1412.

135

But compare Kralj v McGrath [1986] 1 All ER 54, discussed at [12.510], where shock occurred gradually rather than in one initial impact. 136

Whitmore v Euroways Express Coaches Ltd (The Times, 4 May 1984). Note that this case is controversial in that Comyn J was moved to award compensation for “shock” that was “ordinary” in nature rather than “psychiatric”: see [6.250].

137

Note also Malcolm v Broadhurst [1970] 3 All ER 508 where a woman’s (pre-existing) nervous disorder was aggravated by her husband’s injuries sustained in the same car accident and their effect on him.

[12.390]

12 Sudden Shock

481

Éireann,138 the sight of the prolonged suffering of the plaintiff’s son, who received terrible head injuries in a bus accident and died nine months later, was clearly a factor that aggravated the psychiatric damage suffered by the plaintiff as a result of viewing the hospital aftermath. However, a Scottish court has refused to award damages for the retardation of the process of recovery from an initial assault on the nervous system. In Wood v Miller139 a woman who sustained physical injury in a motorcycle accident in which her husband was involved averred that as a result of the likelihood of her husband suffering from the effects of his injuries for an indefinite period, her nervous anxiety condition would continue, with a consequent adverse effect on her health. Lord Wheatley saw no difference between this situation and one where a wife is shocked after an accident upon ascertaining the nature and extent of her husband’s injuries. Accordingly, his Lordship viewed the continuing complaint as irrelevant. It is submitted that the fact that shock is suffered at the time of the accident, rather than later, does make these instances significantly distinct and that the approach of the Australian, English and Irish courts is to be preferred. [12.390] The key to these cases is the continuation or aggravation of the shock victim’s condition (following the initial impact to the nervous system) caused by constant contact with a badly injured or incapacitated relative. Where the accident victim is dead there is no room for such a claim, however distressing the problem of adjusting to a new life without him or her may be.140 In Schneider v Eisovitch141 a woman learnt upon regaining consciousness of her husband’s death in a car accident in which she was also injured. She recovered for psychiatric injury caused by the shock of the accident itself that resulted in the physical injuries to herself and the shock of the discovery in hospital that her husband was dead. However, she recovered nothing for her subsequent neurotic state attributable to continuing mental stress, tension and the strain of having to adjust her life after his death. The ensuing mental condition and neurodermatitis was not part of the shock caused by the death of her husband, although it continued to contribute to that condition. Similarly, in Hinz v Berry142 only one of five factors identified as having contributed to the plaintiff’s prolonged and severely depressed state was compensable, namely the original shock of witnessing the accident that claimed her husband’s life and injured her children. Relief could not be had for grief and sorrow, anxiety about the welfare of the injured children, the financial 138

Mullally v Bus Éireann [1992] ILRM 722.

139

Wood v Miller 1958 SLT (Notes) 49.

140

But see Bagley v North Herts Health Authority (1986) 136 New LJ 1014 where Simon Brown J took into account the continuing nature of a psychiatric condition in assessing damages for negligence resulting in a stillbirth. 141

Schneider v Eisovitch [1960] 2 QB 430: see [11.90].

142

Hinz v Berry [1970] 2 QB 40: see [2.60], [4.30].

482

Part III: Liability for Mental Harm

[12.400]

stress of losing a breadwinner or the difficulties of adjusting to a new life as these were injury-contributing problems that surfaced after the initial shocking trauma.143 [12.400] Expert medical testimony is not always cut and dried. Evidence may often be equivocal as to the precise cause of the psychiatric condition, especially in the permanent care situation. Such was the case in Spence v Percy144 where a mother suffered psychiatric injury after the death of her daughter who had lain in a comatose state for three years as a result of a motor accident. The question arose whether the plaintiff’s injury had been caused by the sudden shock of hearing about her daughter’s death or as a result of a build-up of the tension and stress occasioned by the constant care required during the previous three years combined with an inability to adjust to the emptiness of life that the death of a child brings. Derrington J at first instance held that there had been a sufficiently sudden perception to ground recovery. Though on appeal his decision to award damages of $36,000 was reversed due to an absence of the requisite degree of proximity,145 the Full Court of the Queensland Supreme Court was divided on the question whether the mother’s mental illness was a direct result of the impact of learning of the death, de Jersey J concluding it was, Williams J that it was not and Shepherdson J not deciding. There was evidence that the plaintiff had suffered some shock caused by the initial sight of her daughter three years previously, but the claim was limited to that suffered after her death. Thus, it was unnecessary to consider whether a separate claim distinct from the consequences of the death could be maintained. Apart from illustrating the often inconclusive and conflicting nature of medical evidence and the difficulty of always accurately pinpointing the injury-inducing factors, the case serves as a good reminder that it must always be determined exactly what the plaintiff is claiming for — illness from an initial shocking event, or illness suffered as the severity and gravity of the event dawned on them subsequently.

REJECTION IN AUSTRALIA The common law [12.410] In 1984, in Jaensch v Coffey,146 the case in which Brennan J first formulated the requirement that the injury should be shock-induced, Deane J, while not specifically upholding this requirement, recognised that there had to be some limits on an unqualified test of reasonable foreseeability, otherwise there would be no basis for excluding cases such as those who suffered mental harm through constant social contact with 143

See the comments of Lord Denning MR at 42 and Lord Pearson at 44.

144

Spence v Percy (1990) Aust Torts Rep 81-039 (Derrington J); Spence v Percy (1991) Aust Torts Rep 81-116 (FC). 145

See [10.120].

146

Jaensch v Coffey (1984) 155 CLR 549.

[12.420]

12 Sudden Shock

483

an accident victim subsequent to the accident. However, he suggested that it was conceivable that “if left to develop by analogy and logical necessity on a case by case basis, the common law in Australia may eventually change to the extent that it comes to recognize liability in some or all of such cases”.147 Over the ensuing years the sudden shock rule, though generally upheld by first instance and intermediate appeal courts in line with the dictates of precedent, was subjected to important criticisms, both academic148 and judicial, notably by Kirby P in Campbelltown City Council v Mackay.149 In 2002, in Tame v New South Wales,150 when the Australian High Court was given another opportunity to examine the law relating to psychiatric injury, it repudiated the sudden shock requirement. [12.420] There were two cases before the High Court. In Tame v Morgan,151 where Mrs Tame claimed that she suffered a psychiatric illness as a result of the negligence of a police officer in entering a false breathalyser reading on an accident report form, Garling J in the District Court of New South Wales, who found in her favour, rejected the need for sudden shock, though this may perhaps have been simply his response to a defence argument that the effect on the plaintiff “was not a sudden impact but rather nothing more than a sense of temporary outrage or hurt”.152 However the New South Wales Court of Appeal allowed the appeal,153 and Mason P, after a detailed review of the authorities, affirmed the sudden shock requirement,154 although Spigelman CJ specifically refrained from basing his judgment on this issue.155 In the other case, 147

Jaensch v Coffey (1984) 155 CLR 549 at 602.

148

See eg H Teff, “The Requirement of “Sudden Shock” in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Tort L Rev 44, and the first edition of this book: NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), pp 202–206.

149

Campbelltown City Council v Mackay (1989) 15 NSWLR 501: see [12.200]–[12.230]. Note also Hancock v Nominal Defendant [2002] 1 Qd R 578 at [41] per Davies JA: “It follows, in my opinion, that the first element comprehended by the phrase ‘sudden sensory perception’ was decided against the appellant by factual findings which are unassailable …. It is therefore unnecessary for this Court to consider whether, as Brennan J held in Jaensch …, a sudden assault on the senses is a necessary element in proof of liability for psychiatric injury in a case of this kind. I would therefore prefer to leave this question open until it is necessary to decide it. However, it will be necessary to refer to the difficulty in reconciling that view with modern knowledge of psychiatric illness.” 150

Tame v New South Wales (2002) 211 CLR 317.

151

Tame v Morgan (1998) Aust Torts Rep 81-483.

152

Tame v Morgan (1998) Aust Torts Rep 81-483 at 65,204.

153

Morgan v Tame (2000) 49 NSWLR 21.

154

Morgan v Tame (2000) 49 NSWLR 21 at [145]–[159].

155

Morgan v Tame (2000) 49 NSWLR 21 at [67]. For other judgments in which the issue was left open, see Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 5 per Gleeson CJ; AMP General Insurance Ltd v Roads and Traffic Authority (2001) Aust Torts Rep 81-619 at [159] per Heydon JA.

484

Part III: Liability for Mental Harm

[12.430]

Annetts v Australian Stations Pty Ltd,156 where 16-year-old James Annetts and his companion left their place of employment in the far north of Western Australia and his parents in New South Wales were alerted to his disappearance by a telephone call, both Heenan J and the Full Court157 upheld the sudden shock requirement, Ipp J in the main judgment again arriving at such a conclusion after a full review of the case law.158 [12.430] The High Court, by contrast, decisively rejected the view that there had to be a sudden shock.159 Gummow and Kirby JJ, who gave the most important judgment, went back to the source of this rule, the judgment of Brennan J in Jaensch v Coffey.160 In a penetrating analysis, their Honours suggested that the reason for this limitation was Brennan J’s fear that “If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings … might be held liable”. However, none of the other judges had endorsed this limitation, it had no root in principle, and it was arbitrary and inconsistent. Its lack of scientific validity, and its capricious results, were exposed in the following passage: Assuming that the other elements of the cause of action have been made out, liability in negligence, for which damage is the gist of the action, should turn on proof of a recognisable psychiatric disorder, not on the aetiology of that disorder. Yet, on the present state of authority in the English Court of Appeal, a parent who observed an adult child deteriorate over fourteen days whilst being negligently treated in the defendant hospital, and then die, must be denied recovery in respect of the negligence of the hospital because the parent’s psychiatric harm was not induced by “shock” and the death when it came was “expected”. Again, parents who stayed in hospital with their fourteen year old son for two days and until his life support was switched off were denied recovery because their psychiatric illness was not caused by “shock” but from grief at his death.161

Their Honours pointed to powerful arguments in favour of the rejection of the requirement, including the views of the English Law Commission in favour of abolishing it,162 its rejection by the South African Supreme Court of Appeal,163 the existence of areas of psychiatric damage law such as the work stress cases that formed an exception to the general

156

Annetts v Australian Stations Pty Ltd [2000] WASC 104.

157

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.

158

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [70]–[77]; see also at [12] per Malcolm CJ. 159

Tame v New South Wales (2002) 211 CLR 317.

160

Jaensch v Coffey (1984) 155 CLR 549.

161

Tame v New South Wales (2002) 211 CLR 317 at [208], citing Sion v Hampstead Health Authority [1994] 5 Med LR 170 and Taylorson v Shieldness Produce Ltd [1994] PIQR P329. 162

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 5.28–5.33.

163

Barnard v Santam Bpk 1999 (1) SA 202 (SCA): see [12.470].

[12.440]

12 Sudden Shock

485

principle,164 and the association between the sudden shock requirement and the now-discredited “impact rule”:165 The “sudden shock” rule has some affinity with the requirement in several United States jurisdictions that the psychiatric harm be accompanied by some physical “impact”, that is, bodily contact with the plaintiff as a result of the defendant’s conduct. This has produced a line of authority in which liability turns upon the artificial identification of some trivial impact on the plaintiff. To require proof of “sudden shock” is often to mandate a similarly contrived search for an identifiable “triggering event”. This is because the distinction upon which the “sudden shock” rule pivots is often illusory. On one view, both Mrs Tame and Mr and Mrs Annetts sustained, or may have sustained, a “sudden shock” when they were told respectively of the erroneous Traffic Collision Report and the disappearance or death of their son. … Moreover, does satisfaction of the requirement of “sudden shock” depend on self-serving evidence by the plaintiff or on expert evidence? If it be the latter, liability may turn on the colloquial description of a state of mind that has no recognised medical meaning.166

[12.440] Gummow and Kirby JJ’s conclusion that sudden shock should not be accepted as a precondition for recovery in cases of negligently inflicted psychiatric illness was endorsed by three other judgments, those of Gleeson CJ,167 Gaudron J168 and Hayne J,169 with McHugh J, on the view he took of the case, finding it unnecessary to deal with the issue170 and only Callinan J adopting a more conservative position.171 There can be no doubt that this is a progressive development. The fact that the shock was sudden rather than gradual remains relevant as a factor in the overall determination whether psychiatric injury was reasonably foreseeable (as subsequently confirmed by the Civil Liability Acts) but the absence of sudden shock no longer mandates a decision in favour of the defendant.172 In Australia, the artificial interpretations of the facts and the unfortunate outcomes that the sudden shock rule brought about ought now to be a thing of the past. 164

See [12.270]–[12.290].

165

For the impact rule see [2.10].

166

Tame v New South Wales (2002) 211 CLR 317 at [212]–[213].

167

Tame v New South Wales (2002) 211 CLR 317 at [18].

168

Tame v New South Wales (2002) 211 CLR 317 at [66].

169

Tame v New South Wales (2002) 211 CLR 317 at [272].

170

Tame v New South Wales (2002) 211 CLR 317 at [72].

171

Tame v New South Wales (2002) 211 CLR 317 at [363]. However, Callinan J, adopting a somewhat idiosyncratic interpretation, found sudden shock established on the facts of Annetts: “There was a perception. The news of it came, as it were, ‘out of the blue’. The contents of the first telephone call must have come as a thunderclap to the applicants. It was perceived by hearing. It was a communication of an horrific event. Every subsequent communication and viewing were successive thunderclaps, perceived by hearing and seeing, separately and cumulatively capable of causing nervous shock”: at [364]. 172

See eg New South Wales v Napier [2002] NSWCA 402 at [67] per Mason P.

486

Part III: Liability for Mental Harm

[12.450]

[12.450] The decision in Tame v New South Wales173 may even have resulted in a softening of the rule that there is no liability for psychiatric injury caused by subsequent contact with a badly injured accident victim unless it can be viewed as a continuing effect of the initial shock. In Skea v NRMA Insurance Ltd,174 the plaintiff was at work when she received a telephone call telling her that her husband had been involved in a motor vehicle accident. Her husband, who was in a badly distressed state, then spoke to her, saying that their children had been in the vehicle with him and he did not know where they were. The plaintiff hastened to the scene and found that her children had been badly injured. The plaintiff became more and more distressed after the accident and was eventually diagnosed as suffering from a major depressive disorder and associated post-traumatic stress disorder. Lander J said that on a proper reading of the medical evidence, the plaintiff was continuing to suffer from the effects of the initial shock caused by witnessing the aftermath of the accident, aggravated by caring for her seriously ill husband and daughter — her son had recovered from his injuries after a short time.175 His Honour stressed that Australian common law no longer limited damages for psychiatric injury to cases where the injury was caused by a sudden shock.176 As long as injury relating to grief and sorrow was discounted, the aggravation and exacerbation caused to the plaintiff by caring for her family was a foreseeable event for which she was entitled to be compensated.177

The Civil Liability Acts [12.460] In the six jurisdictions with Civil Liability Act provisions setting out the scope of liability for mental harm, the first of the circumstances to be taken into account is whether or not the mental harm was suffered as the result of a sudden shock.178 It would seem that the role of sudden shock under the Acts is no different from the post-Tame v New South Wales179 Australian common law, under which sudden shock, though no longer essential to liability, remained a relevant factor in assessing foreseeability. The case law under the Acts does not tell us a lot 173

Tame v New South Wales (2002) 211 CLR 317.

174

Skea v NRMA Insurance Ltd (2005) 43 MVR 495.

175

Skea v NRMA Insurance Ltd (2005) 43 MVR 495 at [35].

176

Skea v NRMA Insurance Ltd (2005) 43 MVR 495 at [104]. Compare the first instance decision, Skea v NRMA Insurance Ltd [2003] ACTSC 59, where Connolly J at [14] suggested that the sudden shock rule remained good law even after Tame v New South Wales, but it seems that his Honour was mainly concerned to emphasise the continuing importance of the distinction between compensating for the impact of the accident and for the long-term impact of caring for the injured person. 177

Skea v NRMA Insurance Ltd (2005) 43 MVR 495 at [116].

178

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(a); Civil Liability Act 2002 (NSW), s 32(2)(a); Civil Liability Act 1936 (SA), s 33(2)(a)(i); Civil Liability Act 2002 (Tas), s 32(2)(a); Wrongs Act 1958 (Vic), s 72(2)(a); Civil Liability Act 2002 (WA), s 5S(2)(a).

179

Tame v New South Wales (2002) 211 CLR 317.

[12.460]

12 Sudden Shock

487

more. In some cases where liability has been imposed, the sudden shock requirement is clearly satisfied, as in Lee v Carlton Crest Hotel (Sydney) Pty Ltd180 where the plaintiff saw her husband reverse their car over the edge of a multi-storey car park as the result of an inadequate crash barrier; in others, sudden shock has been present but liability has been denied for other reasons. One case where it was noted that sudden shock was absent was Wicks v Railcorp:181 here again, liability was denied, but principally for other reasons,182 and when the case went to the High Court the decision of the first instance judge and the New South Wales Court of Appeal was reversed.183 The analysis of the High Court in this case tells us a little about the role of sudden shock in the statutory provisions. The High Court notes that this, like all the other listed circumstances, is only one of several circumstances that bear on whether a defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness, and so the occurrence of sudden shock is neither a necessary nor a sufficient condition for a finding that a duty existed.184 Nor does the legislation prescribe any particular consequence as following from the presence or absence of any of these circumstances.185 The High Court also noted that “sudden shock” in s 32 of the Civil Liability Act 2002 (NSW) clearly had a different meaning from “mental or nervous shock” as used in ss 29 and 30.186 Overall, what has to be established is that the plaintiff suffered a recognised psychiatric illness: this may or may not have occurred by means of a sudden shock. The case law documents the role played by sudden shock in this context. Section 29, in which the term “mental and nervous shock” appears, was carried over from the older New South Wales legislation,187 and the same term was used in s 30 for reasons that are not immediately apparent. Nettle J in King v Philcox188 noted that in contrast to “mental or nervous shock”, the natural and ordinary meaning of “mental harm” as used in the Civil Liability Act 1936 (SA) — and presumably all the other Civil Liability Acts as well — “was not in terms restricted to something in the 180

Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at [128] per Beech-Jones J.

181

Wicks v Railcorp [2007] NSWSC 1346 at [68] per Malpass Assoc J.

182

It was held that the plaintiffs did not witness, at the scene, persons being killed, injured or put in peril as required by Civil Liability Act 2002 (NSW), s 30.

183

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

184

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [27] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 185

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [23] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 186

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The High Court suggested that “mental or nervous shock” could be understood as referring to a consequence, and “sudden shock” as an event or a cause. 187

See [13.30].

188

King v Philcox (2015) 89 ALJR 582.

488

Part III: Liability for Mental Harm

[12.470]

nature of a sudden and disturbing adverse mental impact”.189 All in all, it seems that as regards the sudden shock issue the legislation simply continues the approach of the Australian common law.

REJECTION ELSEWHERE [12.470] Only four years before the decision in Tame v New South Wales,190 the South African Supreme Court of Appeal had taken a similar step in the leading decision of Barnard v Santam Bpk,191 the facts of which have many points of similarity with the claim of Mr and Mrs Annetts. The plaintiff’s 13-year-old son was a passenger in a bus that was involved in a collision with a car, caused by the car driver’s negligence. The son sustained serious injuries and died shortly afterwards. A few hours later, the plaintiff’s husband received a telephone call from a doctor at the hospital telling him that his son was dead, and he told his wife. The news had a devastating effect on her both at the time and for long afterwards, and she suffered a serious nervous shock. The case came to court on the preliminary issue of whether, assuming the plaintiff had suffered a recognised psychiatric trauma, she had a good cause of action. Reversing the trial judge, the Supreme Court of Appeal held that a reasonable person would foresee that in such circumstances the plaintiff might suffer nervous shock, and that the law would not exclude “hearsay claims” such as this on causation or other grounds. On the sudden shock issue, Van Heerden DCJ said: It must be assumed that the appellant in fact suffered nervous shock with concomitant psychological trauma. For purposes of convenience I shall refer to such a state of affairs merely as nervous shock. For the sake of clarity, however, I wish to mention that I do not exclude the possibility that damages can be recovered in a case in which a person has suffered a psychological injury which has not been caused by nervous shock. In fact, there is undoubtedly much merit in the view that “nervous shock”’ is not only an outdated term without any specific psychiatric meaning, but that it can also be misleading, and that the only relevant question is whether a plaintiff has suffered recognisable psychological injury.192

[12.480] Australia and South Africa are not the only jurisdictions to free themselves from this unwarranted restriction. Significantly, some American States had already recognised that the requirement of a sudden shocking event was an unnecessary limitation on mental damage suits. In Ochoa v Superior Court (County of Santa Clara),193 the parents of a young boy in the custody of juvenile hall (a custodial institution for juvenile 189

King v Philcox (2015) 89 ALJR 582 at [77].

190

Tame v New South Wales (2002) 211 CLR 317.

191

Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

192

Barnard v Santam Bpk 1999 (1) SA 202 (SCA) at 208–209, citing NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), pp 14–15.

193

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985). N See Quay-Smith, “The Negligent Infliction of Emotional Distress: A Critical Analysis of Various Approaches to the Tort in the Light of Ochoa v Superior Court” (1986) 19 Ind L Rev 809; E McFadden,

[12.490]

12 Sudden Shock

489

offenders) who died from bilateral pneumonia due to a lack of adequate medical treatment alleged that they had suffered severe mental distress as a result of the defendant’s medical neglect. They did not actually see their son’s death, nor was it sudden, the boy having died after being extremely ill for four days. The Supreme Court of California considered that the sudden shock rule arbitrarily limits liability when there is a high degree of foreseeability of shock to the plaintiff and the shock flows from an abnormal event, and, as such, unduly frustrates the goal of compensation – the very purpose which the cause of action was meant to further.194

Likewise in Wargelin v Sisters of Mercy Health Corporation,195 the parents of a stillborn child claimed damages for emotional distress caused by the negligence of hospital staff, including an intern who had failed to recognise the signs of lifelessness and had “presented the child to the mother in a manner reserved for successful deliveries”, and witnessing subsequent attempts at resuscitation. The Michigan Court of Appeals recognised that mental disturbance was a foreseeable consequence not only of “sudden and brief events” such as automobile accidents but also of the cumulative effect of a series of events, such as those surrounding the stillbirth of the child in the instant case.196 More recently, in Larsen v Banner Health System,197 a mother was allowed to recover for emotional distress arising from the discovery, 43 years later, that the hospital where she gave birth had sent her home with the wrong baby. According to a leading commentary, this “looks very much like a species of misinformation or misrepresentation and not like a sudden traumatic event”.198 [12.490] Courts in some other jurisdictions have also made tentative inroads in this area. In Canada, in the British Columbia Court of Appeal “Ochoa v Superior Court: One Step Forward and Two Steps Back for Bystander Tort Law?” (1986) 21 Tort & Ins LJ 672; PR Bernal, “Dillon to Ochoa: The Elusive Foreseeability of Emotional Distress” (1987) 27 Santa Clara L Rev 91. Note also Thing v La Chusa 771 P 2d 814 (Cal 1989) (see [3.790], [10.430]) at 824–825 where the Supreme Court of California referred to the case in this context without disapproval. 194

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985) at 7. Ochoa went against a previous line of contrary authority in California: see eg Jansen v Children’s Hospital Medical Center of East Bay 106 Cal Rptr 883 (1973); Hair v County of Monterey 119 Cal Rptr 639 (1975); Mobaldi v Board of Regents of University of California 127 Cal Rptr 720 (1976); Justus v Atchison 565 P 2d 122 (Cal 1977); Nazaroff v Superior Court In and For County of Santa Cruz 145 Cal Rptr 657 (1978).

195

Wargelin v Sisters of Mercy Health Corporation 385 NW 2d 732 (Mich 1986).

196

Other States have taken a similar stance: see eg Sim’s Crane Service Inc v Reliance Insurance Co 514 F Supp 1033 (1981); Wilson v Galt 668 P 2d 1104 (NM 1983); Hoard v Shawnee Mission Medical Center 662 P 2d 1214 (Kan 1983); Wisniewski v Johns-Manville Corporation 812 F 2d 81 (1987). 197 198

Larsen v Banner Health System 81 P 3d 196 (Wyo 2003).

DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, para 394 n 4.

490

Part III: Liability for Mental Harm

[12.500]

decision in Beecham v Hughes,199 although Taggart JA (Carrothers JA concurring) quoted at length from Brennan J’s judgment in Jaensch v Coffey200 stressing the need for a shock-inducing event, significantly Lambert JA stated emphatically: I do not consider that there is any one key which opens the door to a simple and straightforward answer. … [T]he psychological injury does not have to arise from a specific “shock”. There is no single question which solves the problem. There is no single limiting factor other than the composite answer.201

In the New Zealand case of Rowe v Cleary,202 a wife recovered damages in tort from a solicitor who had been sued for professional negligence by her husband. The delays caused by the defendant’s incompetence, and the growing realisation that the financial stability of herself and her family was in danger, caused her to suffer a decline in mental health for which she required medical treatment. It was held that the defendant owed her an independent duty in tort. It seems clear that the damage to her health was gradual, rather than the result of a sudden event. This case may perhaps turn on the fact that the plaintiff was claiming against someone with whom she was in an existing professional relationship, but Thomas J in his dissenting judgment in van Soest v Residual Health Management Unit203 was generally critical of the sudden shock rule, saying that what qualified as a sudden shock was highly uncertain.204 The majority did not state a position on the issue. [12.500] Courts in two jurisdictions have gone so far as to reject the sudden shock rule. In each instance, the cases differed from the normal run of secondary victim suits. In Singapore, Amarjeet JC in Pang Koi Fa v Lim Djoe Phing,205 a case of medical negligence, rejected the sudden shock rule by reference to the Californian decision in Ochoa v Superior Court (County of Santa Clara)206 and distinguished the fact situation in the case before him — a mother who had urged her daughter to have an operation, which was negligently performed by the defendant, and then had to watch her daughter die a slow and horrible death — from that of relatives who suffer because of subsequent contact with an accident victim.207 Another decision to reject the sudden shock rule is Ward v 199

Beecham v Hughes (1988) 52 DLR (4th) 625 at 651–652.

200

Jaensch v Coffey (1984) 155 CLR 549 at 565.

201

Beecham v Hughes (1988) 52 DLR (4th) 625 at 665.

202

Rowe v Cleary [1980] NZ Recent Law 71.

203

van Soest v Residual Health Management Unit [2000] 1 NZLR 179.

204

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 at [110], [114].

205

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

206

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985).

207

Note, however, Ngiam Kong Seng v Lim Chiew Hock [2008] SGCA 23 at [120], where Phang JA, dealing with a more conventional secondary victim situation, suggested that the sudden shock rule might require legislative attention.

[12.510]

12 Sudden Shock

491

Ballaughton Estate (1975) Ltd208 from the Isle of Man, where the plaintiff’s daughter began to suffer from respiratory complaints that were eventually traced to a defective chimney, and the combined stress of dealing with her daughter’s illness and the chimney problem caused the plaintiff to suffer a depressive illness. Deemster Corrin noted that “the court is not considering a sudden negligent incident such as a road traffic accident, but the long, slow mysterious illness of a girl of 14 with the mother constantly present and at times literally driven out of her mind with worry”.209 Nonetheless, he was prepared to find that the defendant could reasonably foresee that mental harm could result to a mother of a normal constitution in these particular circumstances. The case is distinguishable from the cases of subsequent caring envisaged by Brennan J in Jaensch v Coffey210 because, in much the same way as the plaintiff in Pang Koi Fa was claiming against the negligent doctor, Mrs Ward was suing the builder responsible for the defective chimney that was the ultimate source of all her problems. [12.510] Even in England, first instance judges have occasionally been prepared to free themselves from the sudden shock limitation, although unfortunately subsequent appellate pronouncements have retraced this advancement. In Kralj v McGrath211 the plaintiff was admitted to hospital to give birth to twin boys, the first birth going smoothly. Complications arose, however, with respect to the second twin, Daniel. He was in a transverse position and the defendant obstetrician elected, inter alia, without anaesthetising Mrs Kralj, to perform an episiotomy212 and to put his arm inside her in an attempt to manipulate the baby’s position, causing her to suffer excruciating pain. A caesarean section was ultimately performed and Daniel was born in an extremely debilitated state, suffering brain damage found to have been caused after the birth of the first twin, and subsequently died. The plaintiff successfully claimed damages from the doctor for the “nervous shock” caused by the consequences of what happened to Daniel. What is special about this case, which was concerned mainly with aggravated damages, is that the plaintiff’s state was not caused by any immediate impact,213 or fear of

208

Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428.

209

Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 at 442.

210

Jaensch v Coffey (1984) 155 CLR 549.

211

Kralj v McGrath [1986] 1 All ER 54. See N Grace, “Doctors, Damages and Nervous Shock” (1986) 2 PN 46.

212 213

A surgical incision of the vulvar orifice for obstetrical purposes.

Although there was physical impact to Mrs Kralj in that the defendant inserted his arm into her vagina, the “nervous shock” did not stem from this.

492

Part III: Liability for Mental Harm

[12.520]

impact, to the plaintiff or her son but accrued gradually over a period of eight weeks before his death, as a result of the fear and concern of watching him slowly die.214 [12.520] More recently, two first instance judges were prepared to move the boundaries of psychiatric injury law forward to permit recovery for damage to the psyche arising from a series of cumulative incidents rather than one isolated sudden and nerve-racking event. In Hevican v Ruane,215 the plaintiff’s son was killed whilst a passenger in a school bus when it collided with a truck as a result of the bus driver’s negligence. He brought an action against the driver’s estate for damages for his nervous shock in the form of continued reactive depression. The case is significant in that the plaintiff recovered notwithstanding that the shock took the form of a gradual realisation in stages that his son was dead. The father suffered a recognisable psychiatric illness as a predictable result of the cumulative effect of learning sometime after the accident that his son was involved, being told later that his son had been killed, and viewing his body, “not disfigured in any way”, in the mortuary at the local hospital. Relief was granted even though the father was not present at the immediate aftermath of the collision and it was not foreseeable that the nervous shock suffered would result in continuing psychiatric illness. Mantell J opined: It would seem, therefore, that by reference to general principle alone there is no reason why a plaintiff who sustains a mental shock as a predictable result of learning of a loved one’s death or injury and in consequence becomes ill either in the mind, as here, or in the body, for example by suffering a heart attack, should not recover damages against a defendant whose negligent act caused the death or injury.216

In Ravenscroft v Rederiaktiebølaget Transatlantic,217 in a judgment subsequently reversed by the English Court of Appeal,218 Ward J, having expressed some reservations with Brennan J’s words, stated: If, as we are urged to do by Attia v British Gas, we cease to use the inaccurate and misleading expression “nervous shock”, then I see no reason why some notion of shock, especially one which is not to be understood in terms of “recognisable psychiatric illness”, is to be reintroduced as an element in the chain of causation.219

214

Note also Bagley v North Herts Health Authority (1986) 136 New LJ 1014 where a woman suffered psychiatric illness arising from the birth of her stillborn child due to a hospital’s failure to perform blood tests during pregnancy when it was known that she suffered from blood incompatibility, and to intervene by caesarean section to ensure an early delivery.

215

Hevican v Ruane [1991] 3 All ER 65.

216

Hevican v Ruane [1991] 3 All ER 65 at 71.

217

Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73.

218

Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n.

219

Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 at 77–78.

[12.540]

12 Sudden Shock

493

[12.530] Nolan LJ in Alcock v Chief Constable of South Yorkshire Police220 would have none of this, however. Although he acknowledged that certain psychiatric illnesses could manifest themselves gradually, he held that these particular varieties of mental harm were presently uncompensable in an action for nervous shock unaccompanied by physical or property damage. Rejecting the cumulative approach, his Lordship stated: [T]o my mind the expression “nervous shock”, as used in the decided cases, connotes a reaction to an immediate and horrifying impact. I have no doubt that the kinds of psychiatric illness to which nervous shock may give rise could equally be brought about by an accumulation of more gradual assaults upon the nervous system, but the law as it stands does not appear to me to provide for the latter category.221

Regrettably, the House of Lords confirmed that dilution of the common law’s insistence on a violent agitation of the mind will not be tolerated in England. Refusing to countenance psychiatric injury stemming from a dawning consciousness over an extended period as founding a claim in damages, their Lordships reinforced the need to identify a sudden rather than gradual assault on the nervous system.222 Lord Oliver of Aylmerton considered that: Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover [psychiatric] injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.223

[12.540] Since this case, there has been important criticism of the sudden shock rule from several sources, judicial and otherwise. The compelling statement of Henry LJ in the English Court of Appeal in Frost v Chief Constable of South Yorkshire Police224 recognising the medical reality of the way in which psychiatric illness occurs has already been noted. Shortly after the Court of Appeal decision, the Law Commission subjected the sudden shock requirement to a rigorous analysis225 and concluded that it was unnecessary and should be abolished.226 Significantly, when 220

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

221

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 387.

222

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 398 per Lord Keith of Kinkel, at 401 per Lord Ackner, at 411, 416–417 per Lord Oliver of Aylmerton. 223

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 416.

224

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271: see [12.240].

225

See Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 5.29–5.33. 226 Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), recommendation 7.

494

Part III: Liability for Mental Harm

[12.550]

Frost went to the House of Lords, none of the Law Lords referred to the sudden shock issue, except for Lord Goff of Chieveley in his dissenting judgment, who said: I add in parenthesis that the nature of PTSD illustrates very clearly the need to abandon the requirement of nervous shock in these cases, and to concentrate on the requirement that the plaintiff should have suffered from a recognised psychiatric illness.227

Despite all this powerful ammunition, it appears that the view stated in Alcock v Chief Constable of South Yorkshire Police228 still represents the position of the English courts. The recent decision of the English Court of Appeal in Taylor v A Novo (UK) Ltd229 confirms as much: Lord Dyson MR emphasised that all the control mechanisms, including sudden shock, had to be satisfied. That case has been the catalyst for a series of clinical negligence cases insisting on the need for sudden shock in the form of a “horrifying event”.230

CONCLUSION [12.550] In the first edition of this book, it was suggested, with respect, that the English position as set out in Alcock v Chief Constable of South Yorkshire Police231 was unconvincing; now, over 20 years later, in the light of the important decisions of the highest courts in Australia and South Africa which have systematically exposed the lack of scientific basis and the unfortunate effects of the sudden shock principle, the shortcomings of the traditional rule are even more apparent. In those jurisdictions which still adhere to the sudden shock requirement, it appears that once again groundless fears of uncontrolled liability are preventing desirable and long overdue modifications of principle. No basis other than policy is advanced for the veto of this particular variety of mental illness. Apart from encouraging claim distortion and being medically too imprecise to cater for the vast majority of psychiatric abnormalities, it seems obvious that a person may suffer as much of an emotional and psychological disturbance from seeing (or learning of) a loved one’s deterioration or slow death as from seeing him or her killed or injured suddenly and unexpectedly, or coming upon the aftermath. Indeed, there is a strong argument for saying that helplessly witnessing another die a protracted or agonising death, or withering away from disease or injury, will give rise to a far more severe nervous reaction.232 Relatives of cancer or AIDS 227

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 489.

228

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

229

Taylor v A Novo (UK) Ltd [2014] QB 150 at [27]; see also at [6]–[7].

230

See [22.570]–[22.580].

231

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

232

As AL Goodhart stated (“Emotional Shock and the Unimaginative Taxicab Driver” (1953) 69 LQR 347 at 352), with reference to the comments of Denning LJ in King v Phillips [1953] 1 QB 429: “[I]t is not immediately obvious why a mother should receive less of a shock when she sees her child being slowly run over than when it is done rapidly.”

[12.550]

12 Sudden Shock

495

victims would no doubt testify to this. Moreover, the requirement that a sensory-impacting shock be present is, in truth, totally superfluous to a claim for “nervous shock”. A plaintiff recovers in these situations not for a shock to the system but for particular medical consequences of that shock, that is, any “recognisable psychiatric illness” that results.233 Once a causal link between the defendant’s actions and the plaintiff’s injury is proved, the precise nature of the injury-producing phenomenon is immaterial. That it started life as grief, sorrow, worry or anger is not to the point.234 The unnecessary “shock” requirement stems, no doubt, from the inaccurate and misleading language of this category of claim.235 If the artificialities and imprecise terminology were to be cast aside, the true basis of claims for mental harm, and the irrelevance of concepts such as sudden shock, would be better appreciated.

233 See eg the use of the consequential sense of “nervous shock” in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394–395 per Windeyer J and Brennan and Deane JJ’s careful choice of words in Jaensch v Coffey (1984) 155 CLR 549. 234

For a case where it was held that a child’s grief at the death of her mother had developed into depression amounting to a psychiatric illness see Mellor v Moran (1985) 2 MVR 461. Note also Mitchell v Clancy [1960] Qd R 62, affirmed by the High Court in Mitchell v Clancy [1960] Qd R 532, where worry over ability to support a family after a serious arm injury led to a nervous condition and in turn to a duodenal ulcer requiring surgery; Palamara v Fragameni (unreported, WASC, No 89 of 1983, 13 October 1983). See [4.120]–[4.160]. 235

On the crudeness of the expression “nervous shock”, see H Teff, “Liability for Negligently Inflicted Nervous Shock” (1983) 99 LQR 100 at 107; FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476 at 476–477; [4.10]–[4.20].

Chapter 13

Statutory Extensions and Restrictions [13.10] INTRODUCTION ............................................................................................................. 497 [13.30] STATUTORY EXTENSIONS ............................................................................................ 498 [13.190] PRE-2002 STATUTORY RESTRICTIONS .................................................................... 509 [13.190] Road accidents ................................................................................................................. 509 [13.260] Work accidents ................................................................................................................ 515 [13.290] RESTRICTIONS UNDER THE CIVIL LIABILITY ACTS ......................................... 516 [13.300] New South Wales ............................................................................................................ 517 [13.440] Victoria .............................................................................................................................. 524 [13.450] Tasmania ........................................................................................................................... 524 [13.480] South Australia ................................................................................................................ 526 [13.570] SOME COMPARISONS ................................................................................................. 531 [13.570] Louisiana .......................................................................................................................... 531 [13.630] Ontario .............................................................................................................................. 534

INTRODUCTION [13.10] In the years before the Second World War, the common law in Australia seemed to be restricted by the dead hand of the Privy Council decision in Victorian Railways Commissioners v Coultas1 denying any liability for psychiatric injury. What was needed was a means of bypassing that decision. Some States enacted legislation to nullify the effect of the Coultas case, and in 1944 New South Wales went further: the Law Reform (Miscellaneous Provisions) Act gave statutory rights to relatives that went much further than the common law as at that stage of its development. Similar legislation was later enacted in the two mainland Territories. [13.20] By the last years of the 20th century, the common law had caught up with and perhaps outstripped the statutory provisions, and some were beginning to suggest that some sort of legislative restriction was necessary. Starting in the 1980s, some Australian legislatures enacted legislation restricting recovery for psychiatric injuries in road and work accident situations. From 2002 onwards, in the wake of an “insurance crisis”, the Civil Liability Acts enacted general reforms to the law of 1

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

498

Part III: Liability for Mental Harm

[13.30]

negligence and adopted statutory statements of key principles,2 including, in all jurisdictions except Queensland and the Northern Territory, statements of the law relating to mental harm.3 Four of the six jurisdictions took the opportunity to enact additional provisions restricting the scope of common law liability for psychiatric injury. This chapter deals with the legislative provisions that first extended and more recently restricted the scope of the ordinary law.

STATUTORY EXTENSIONS [13.30] At the time of the Second World War, the law of liability for psychiatric injury in Australia was in an unsatisfactory state. In Chester v Waverley Corporation,4 an appeal from the Supreme Court of New South Wales, the High Court had confirmed that it was bound by the Privy Council decision in Victorian Railways Commissioners v Coultas5 and so denied liability for the grievous shock suffered by a mother who watched while the body of her son was retrieved from a trench which had become filled with water due to recent heavy rain.6 To avoid the restrictive effects of the case law,7 the New South Wales Parliament made statutory provision for personal injury arising from “mental or nervous shock”. Already, the legislatures in Victoria and South Australia had sought to evade the Coultas decision by enacting legislation providing that the plaintiff in a personal injury action “shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock”.8 The Law Reform (Miscellaneous Provisions) Act 1944 (NSW) adopted a similar provision,9 but then went on to provide that: 2

See [7.540], [7.580].

3

See [2.240]–[2.370].

4

Chester v Waverley Corporation (1939) 62 CLR 1.

5

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

6

See D Mendelson, The Interfaces of Medicine and Law: The History of the Liability for Negligently Caused Psychiatric Injury (Nervous Shock) (Ashgate Dartmouth, Aldershot, 1998), pp 138–142 for details of how the shock affected not only Mrs Chester but the whole family.

7

See the second reading speech of Hon RR Downing, Minister for Justice, in the Legislative Council: New South Wales Parliamentary Debates (1944), Vol 176 at 826, 829–831, 835–837. As this speech reveals, another decision that was influential during the progress of the legislation through the Parliament was Bourhill v Young [1943] AC 92 (even though the Minister misinterpreted the facts of the case (at 829): according to his account, the death of John Young, which caused Mrs Bourhill to suffer shock, was caused by another motorist, not John Young himself). For judicial discussion of the Parliamentary history of the legislation, see Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 192–193 per Priestley JA; Chiaverini v Hockey (1993) Aust Torts Rep 81-223 at 62,261 per Sheller JA; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [35] per McHugh J, at [76]–[77] per Gummow and Kirby JJ. 8

Wrongs Act 1958 (Vic), s 23 (originally enacted 1932); Wrongs Act 1936 (SA), s 28 (originally enacted 1939). Section 23 of the Wrongs Act 1958 (Vic) is still in force; s 28 of the Wrongs Act 1936 (SA) was repealed by the Law Reform (Ipp Recommendations) Act 2004 (SA), s 46.

9

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 3. A similar provision was later enacted in the Australian Capital Territory and the Northern Territory: Law Reform

[13.40]

13 Statutory Extensions and Restrictions

499

The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by: (a) a parent or the husband or wife of the person so killed, injured or put in peril; or (b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family.10

Similar provisions were enacted in the Australian Capital Territory in 1955 and the Northern Territory in 1956.11 Later amendments added de facto spouses to those in the first category.12 [13.40] By 2002 the common law was almost as wide as the statutory provisions,13 and the High Court decision in Tame v New South Wales14 by repudiating the requirement of direct perception eliminated practically all the remaining gaps. By this time legislatures were concerned to restrict rather than expand the common law, and the New South Wales Parliament led the way. The Civil Liability Act 2002 (NSW) now codifies the duty of care in cases involving “mental harm”,15 and the older statutory provisions on nervous shock were replaced by new provisions that sought to restrict the ambit of the common law.16 However, the 1944 provisions still have some effect: s 3 was re-enacted,17 and s 4 continues to (Miscellaneous Provisions) Act 1955 (ACT), s 23; Law Reform (Miscellaneous Provisions) Act (NT), s 24. For an example of the application of these provisions see Richards v Baker [1943] SASR 245. In the other three jurisdictions, it appears that Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 was simply bypassed: see Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 395 per Windeyer J. 10

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1).

11

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 24; Law Reform (Miscellaneous Provisions) Act (NT), s 25. For a general discussion of this legislation see PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 248–254. On the procedural provisions in the legislation see Thiele v Batten [1962] NSWR 1426. One interesting limitation on the scope of these provisions was that they only applied to actions in the higher courts, namely the Supreme and District Courts in New South Wales and the Supreme Courts in the Australian Capital Territory and the Northern Territory: see Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(4); Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 24(5); Law Reform (Miscellaneous Provisions) Act (NT), s 25(5). The Civil Law (Wrongs) Act 2002 (ACT) does not now contain any such limitation. 12

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(5) (as amended 1984); Law Reform (Miscellaneous Provisions) Act (NT), s 23 (as amended 1991); Civil Law (Wrongs) Act 2002 (ACT), s 31 (replacing the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), s 24).

13

See D Butler, “Nervous Shock at Common Law and Third Party Communications: Are Australian Nervous Shock Statutes at Risk of Being Outflanked?” (1996) 4 TLJ 120.

14

Tame v New South Wales (2002) 211 CLR 317.

15

See [2.280].

16

See [13.300].

17

Civil Liability Act 2002 (NSW), s 29: see Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [17]–[18] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

500

Part III: Liability for Mental Harm

[13.50]

apply despite its repeal in cases in which the 2002 Act does not apply.18 The Australian Capital Territory followed New South Wales in codifying the duty of care in mental harm cases, but the 1955 provisions were re-enacted without substantial alteration.19 In the Northern Territory, where no mental harm legislation has been enacted, the 1956 provisions are still in force.20 These provisions, therefore, are still important in each of the three jurisdictions, despite anything that has happened since; furthermore, they are worth discussing because they are part of the history of the Australian law, and acted as a spur to common law development. [13.50] Just as the common law does, these statutes require the plaintiff to prove that the defendant’s act, neglect or default21 caused him or her to suffer “mental or nervous shock”.22 As at common law,23 damages are not awarded for mere grief or anguish,24 but the fact that the injury

18

The Civil Liability Act 2002 (NSW), Sch 1, cl 11 provides: “Part 3 of the Law Reform (Miscellaneous Provisions) Act 1944 continues to apply despite its repeal to and in respect of civil liability that is excluded from the operation of Part 3 of this Act by section 3B.” On its effect in workplace claims, see N Foster, “Psychiatric Injury Following Workplace Trauma or Death: Actions by Fellow-Workers and Relatives in New South Wales” (2004) 12 Tort L Rev 59. I am indebted to Barbara McDonald and Neil Foster for assistance with understanding these intricate provisions.

19

Civil Law (Wrongs) Act 2002 (ACT), Pt 3.2, including s 36 on extension of liability.

20

Law Reform (Miscellaneous Provisions) Act (NT), Pt VII, including s 25 on extension of liability. 21

Though most cases involve negligence, the Act also applies to harm caused intentionally: Cipri v Famelli (unreported, NSWSC, No 13802 of 1989, 16 December 1993) (plaintiff’s daughter battered to death with axe by her husband); New South Wales v McMaster (2015) 328 ALR 309 (action by mother and sister of man shot by police officers).

22 In Annetts v Australian Stations Pty Ltd, one of the two appeals decided by the High Court in Tame v New South Wales (2002) 211 CLR 317, the plaintiffs suffered psychiatric injury in New South Wales but the New South Wales statute was inapplicable because the reference to a person being “killed, injured or put in peril” should be taken to be a reference to a matter or thing occurring in New South Wales: Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [70] per Gummow and Kirby JJ. This appears to be the reason why the parents did not sue in New South Wales under the Civil Liability Act 2002 (NSW). Had they been able to do so, they could have recovered damages under s 4(1)(a), and the High Court would never have been called to rule on the direct perception issue. For further comment on conflict of laws aspects of psychiatric injury, see Commonwealth v Dinnison (1995) 56 FCR 389 at 393–396 per Gummow and Cooper JJ; JLR Davis, “Is There Still Scope for Forum Shopping after John Pfeiffer v Rogerson?” (2000) 20 Aust Bar Rev 107 at 112–113; note also Spence v Biscotti (1999) 151 FLR 350; Elliott v Bali Bungy Co [2002] NSWSC 906. 23 24

See [4.10]–[4.60].

Macpherson v Commissioner for Government Transport (1959) 76 WN (NSW) 352; Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 at 193–194 per Priestley JA; De Franceschi v Storrier (1988) 85 ACTR 1 at 6 per Miles CJ; Roads & Traffic Authority v Jelfs (2000) Aust Torts Rep 81-583 at [36] per Mason P. In Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, the New South Wales Court of Appeal differed on whether the plaintiffs had crossed the threshold from mere grief to psychiatric injury: Gleeson CJ at 4 and Clarke JA at 20 held that they had not suffered more than grief, but Kirby P at 14–15 reached

[13.60]

13 Statutory Extensions and Restrictions

501

eventually healed is no barrier to recovery.25 The most important difference from general negligence liability is that the common law foreseeability test is replaced by a statutory formula.26 In some cases the mere existence of a family relationship gives rise to the plaintiff’s right to sue, and in others that right depends on a combination of relationship and presence. The legislation assumes that injury by shock to a parent, husband or wife is not an unlikely consequence where a child, wife or husband has been killed, injured or otherwise endangered.27 [13.60] There has been speculation whether the statute requires the proof of a breach of duty to the person killed, injured or put in peril as a condition of liability to the plaintiff.28 However, the High Court of Australia in Scala v Mammolitti29 held that the statute creates a new duty of care owed to the plaintiff and that liability to the accident victim is immaterial.30 Thus in cases where wives have recovered damages under the statutory provisions for shock caused by the death of a family member, this has been held to be a breach of an independent duty owed to the wife,31 and husbands are therefore able to claim damages for medical expenses32 (and could formerly claim for loss of consortium).33 Another consequence of this ruling as to duty is that contributory negligence by the primary accident victim does not reduce the damages awarded to plaintiffs suing under the statute.34 a different conclusion. In Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606, the New South Wales Court of Appeal rejected Mrs Gifford’s claim on the ground that her suffering did not amount to psychiatric injury: see at [50]–[51] per Hodgson JA. 25

See Public Trustee v Commonwealth (unreported, NSWSC, No 10962 of 1985, 8 June 1994); Reinhardt v Huan (1996) 24 MVR 58.

26

Anderson v Liddy (1949) 49 SR (NSW) 320 at 323 per Jordan CJ; Armytage v Commissioner for Government Transport [1972] 1 NSWLR 331; State Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240; Chiaverini v Hockey (1993) Aust Torts Rep 81-223 at 62,263 per Sheller JA.

27

Scala v Mammolitti (1965) 114 CLR 153 at 159–160 per Taylor J.

28

See the discussion by PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 251–253.

29

Scala v Mammolitti (1965) 114 CLR 153.

30

Note also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 408 per Windeyer J: “[L]iability for nervous shock, resulting from the sight of another person’s injury or peril negligently caused, is not a by-product as it were of liability to that other person. The shock-producing event is a tort to the plaintiff.”

31

Contrast, however, Armytage v Commissioner for Government Transport [1972] 1 NSWLR 331 at 339 per Brereton J: “[T]he cause of action … is based, not on breach of the duty owed to the plaintiff, but on breach of a duty owed to the plaintiff’s deceased spouse.”

32

Smee v Tibbetts (1953) 53 SR (NSW) 391.

33

State Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240 (note that the husband also claimed damages under the statute). The right to sue for loss of consortium has now been abolished in most Australian jurisdictions: see RP Balkin and JLR Davis, Law of Torts (5th ed, LexisNexis Butterworths, Chatswood, New South Wales, 2013), pp 695–696; by contrast, it has been extended to wives in Queensland and South Australia. 34

See [16.140].

502

Part III: Liability for Mental Harm

[13.70]

[13.70] The legislation contemplates the traditional situation of the secondary victim cases — that A by negligently killing, injuring or imperilling B has caused shock to B’s relative C.35 The statutes do not deal with the older variety of nervous shock case where the plaintiff suffers psychiatric harm through fear of injury to himself or herself.36 Nor do they have any application where B (or B’s agent37) is responsible for causing his or her own death or injury. In these situations liability continues to be a matter for the common law.38 [13.80] In cases where one person suffers psychiatric injury as the result of another being killed, injured or put in peril by a third party, varying views have been expressed about the relationship between the claim at common law and the claim under the Act. One view is that the Act supersedes the common law, giving plaintiffs only one alternative. Windeyer J in Mount Isa Mines Ltd v Pusey39 provided some support for this position. He said obiter that in New South Wales “it may be that … by reason of an expressio unius, it is only a member of the family who can sue for nervous shock caused by the sight of a tortious injury to someone else”.40 However, it appears that Windeyer J was in the minority: a clear preponderance of authority supports the view that the purpose of the Act was to extend the common law, rather than to supersede it. Even here, it is theoretically possible to suggest that there can be two views. Plaintiffs could be regarded as having two claims that existed side by side, allowing them to choose one but not both.41 However, most judicial pronouncements appear to support the view that the statute simply extends the common law in particular respects. For example, Kitto J in Scala v Mammolitti42 said that the statute “lays down a general rule of

35

Thus it had no application in Stergiou v Stergiou (1987) Aust Torts Rep 80-082, where there was no family relationship between the plaintiff and the accident victim. Note also the settlement of a claim at common law by a man who suffered a recognisable psychiatric illness as a result of seeing injuries to fellow-passengers in the Granville train disaster in Sydney: see “Granville deal”, The Australian, 18 February 1992.

36

As typified by Dulieu v White & Sons [1901] 2 KB 669.

37

See Ball v Winslett [1958] SR (NSW) 149.

38

See Chapters 24 (fear of injury to self), 15 (tortfeasor as primary victim).

39

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

40

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 408. See CS Phegan (1971) 45 ALJ 428 at 430: “New South Wales lawyers may be surprised at his Honour’s suggestion that a plaintiff in circumstances similar to [Pusey’s] case may have no action in that State.” See also Jaensch v Coffey (1984) 155 CLR 549 at 556–557 where Murphy J appeared to assume that the New South Wales Act operated to limit the scope of recovery at common law.

41

See Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 22 per Clarke JA, referring to “the proposition that following the enactment of s 4 a plaintiff could elect whether to sue under its terms or in accordance with the common law”.

42

Scala v Mammolitti (1965) 114 CLR 153.

[13.100]

13 Statutory Extensions and Restrictions

503

liability as an addition to existing rules of liability”,43 and there were a number of other statements to the same effect.44 [13.90] In June 2003 — by which time the legislation had been repealed for most purposes by the New South Wales Parliament — the issue was finally resolved by the High Court in Gifford v Strang Patrick Stevedoring Pty Ltd.45 Mr Gifford, the father of the three plaintiffs, was crushed to death by a forklift truck negligently driven by a fellow employee. The news of his death was conveyed to his wife (from whom he was separated) and his three children. All four claimed damages for psychiatric injury against Mr Gifford’s employer. The issue under discussion was placed squarely before the court as a result of the respondent’s argument (which was accepted at first instance) that the Act replaced the common law and accordingly the children had no claim because their father had not been killed within their sight or hearing. (Had their mother been able to prove psychiatric injury, she would have had a good claim, because spouses fell into a different statutory category.) The New South Wales Court of Appeal disagreed with the District Court, holding that the Act came to extend the rights recognised by the common law rather than to replace them, and the High Court unanimously agreed (Callinan J perhaps with some reluctance). [13.100] Gleeson CJ and McHugh J placed particular emphasis on the wording of the statute (“shall extend to include liability”) as justifying this interpretation.46 Gleeson CJ also said that the alternative view would ignore aspects of the common law as developed down to 1944, such as liability to rescuers, that had already been recognised in Evatt J’s dissenting judgment in Chester v Waverley Corporation.47 The judgment of McHugh J48 and the joint judgment of Gummow and Kirby JJ,49 with 43

Scala v Mammolitti (1965) 114 CLR 153 at 157, and see also at 159 per Taylor J.

44

Eg Anderson v Liddy (1949) 49 SR (NSW) 320 at 323 per Jordan CJ; Smee v Tibbetts (1953) 53 SR (NSW) 391, noted by B Hill (1954) 1 Syd LR 412; Rowe v McCartney [1975] 1 NSWLR 544 at 549 per Sheppard J; Stergiou v Stergiou (1987) Aust Torts Rep 80-082; Wilks v Haines (1991) Aust Torts Rep 81-078 at 68,652–3 per Loveday J; Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992) at 53 per Master Hogan; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 8 per Kirby P, at 22 per Clarke JA (tentatively); Knight v Pedersen [1999] NSWCA 333 at [24] per Priestley, Beazley and Stein JJA; FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 at [11] per Mason P. In Jaensch v Coffey (1984) 155 CLR 549 at 611 Deane J referred to the statutory provisions but said it was unnecessary to consider this issue; see also Chiaverini v Hockey (1993) Aust Torts Rep 81-223 at 62,263 per Stein JA. 45

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, noted by P Handford (2003) 11 Tort L Rev 127. See also New South Wales v Thomas [2004] NSWCA 52 at [63] per Handley JA.

46

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [16] per Gleeson CJ, at [33] per McHugh . 47

Chester v Waverley Corporation (1939) 62 CLR 1.

48

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [37].

49

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [75]–[81].

504

Part III: Liability for Mental Harm

[13.110]

which Hayne J concurred,50 are of particular interest in that they make use of the purposive approach to statutory interpretation now mandated by statute in all Australian jurisdictions,51 and the rules that allow much readier reference to extrinsic materials such as Parliamentary debates.52 These judgments recounted the Parliamentary history of the legislation and the political compromise that resulted in the division between the two classes of relatives. The debates make it clear that it was intended as a beneficial provision that expanded the rights of close family members, rather than restricting or codifying them. McHugh J also referred to the presumption that a statute was not intended to alter common law rights,53 and his own comment in Malika Holdings Pty Ltd v Stretton54 that caution was now needed in applying this presumption since statutes regularly enact laws that infringe the common law rights of individuals. The court had to construe the legislation in its ordinary and natural meaning, having regard to its context and the purpose of the enactment. Applying these principles to the present case, the answer was clear: “There is not a word in the Law Reform (Miscellaneous Provisions) Act that suggests that its purpose was to abolish generally the common law right to bring an action for damages for nervous shock.”55 [13.110] At the time when the statutes, and in particular the New South Wales statute, were passed, they represented a considerable advance on the common law. Over the ensuing years, the boundaries of liability at common law were considerably extended.56 In spite of this, the statutes

50

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [96].

51

See eg Interpretation Act 1987 (NSW), s 33.

52

See eg Interpretation Act 1987 (NSW), s 34.

53

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36].

54

Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28].

55

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [42]. McHugh J referred to the statement of Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 408 quoted at [13.80], although Windeyer J was possibly a little more ambivalent than McHugh J’s judgment might suggest. 56

In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [80], Gummow and Kirby JJ pointed out that the adoption by the New South Wales legislature in 1944 of a particular understanding of the common law at that point in time does not control the further development of the common law. Nor would the passing of a statute to put right a perceived shortcoming in the common law foreclose the further development of the common law to deal with new shortcomings as they were discovered. Callinan J was perhaps more cautious about the effect of judicial law reform: “The difficulty arises because the common law as stated, certainly as stated by this Court is, by a legal fiction, to be regarded as always having been the law, when in practice and truth the law has been different up to the moment of the pronouncement of this Court’s decision” (at [129]). His Honour expressed concern about those who had relied on the previously understood state of the law, but said that unfortunately no means had yet been found of giving a landmark decision prospective effect only. See also Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 6 per Gleeson CJ.

[13.130]

13 Statutory Extensions and Restrictions

505

still allowed plaintiffs to recover in cases where this was not possible at common law, at any rate prior to 2002.57 [13.120] This is most obvious in the case of the first category of plaintiffs under the statute. If a parent or husband or wife of the person killed, injured or put in peril suffers shock as a result of the accident, they can recover whether or not they were present at the accident or its aftermath.58 What matters is not how they learnt of the accident, but their relationship to the accident victim — the statute in effect presumes that certain close relatives might well suffer psychiatric injury consequent on the accident.59 The importance of this category is underlined by the interpretation provisions,60 which make it clear that “parent” covers not only natural parents but step-parents and grandparents and persons in loco parentis, and the later amendments that extended the Acts to include those who lived together as domestic partners though not married to each other.61 All this went far beyond the common law. Some of the persons in this category are unlikely to be able to recover at common law.62 [13.130] The second statutory category, which deals with other family members, is more restrictive, because it requires that they should be

57

That is, prior to Tame v New South Wales (2002) 211 CLR 317.

58

For examples of recovery by absent parents or spouses who suffered shock when informed of the accident, see Bradford Kendall Foundries Ltd v Ryder (unreported, NSWCA, No 144 of 1985, No 176 of 1986, 4 June 1987); Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992) (mother’s claim); Quayle v New South Wales (1995) Aust Torts Rep 81-367 (mother told of son’s death in custody allowed to recover both under statute and at common law); Woods v Lowns (unreported, No 15676 and 15678 of 1992, 9 February 1995) (absent father allowed to claim — the report in Woods v Lowns (1995) 36 NSWLR 344 omits the parts of the judgment dealing with the parents’ claims for shock); Hayes v Southern Sydney Area Health Service (unreported, DCNSW, Nos 7071, 17540 of 1990, 13 August 1996); Roads & Traffic Authority v Jelfs [1999] NSWCA 179. See also [13.170]. Note Hodgson JA’s obiter dictum in Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at [69]–[73] suggesting that in such cases a requirement of direct perception of the accident or its immediate aftermath was not imported via the sudden shock requirement (see [12.70]). Handley JA at [1] and Ipp JA at [76] reserved their position on this issue. 59

See [11.620].

60

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(5); Law Reform (Miscellaneous Provisions) Act (NT), s 23; Civil Law (Wrongs) Act 2002 (ACT), s 32; Civil Law (Wrongs) Act 2002 (ACT), s 29.

61

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(5) (“husband” and “wife” include persons who live together on a bona fide domestic basis); Law Reform (Miscellaneous Provisions) Act (NT), s 23 (“member of the family” includes a de facto partner). The Civil Law (Wrongs) Act 2002 (ACT), s 32 simply refers to “a domestic partner”; as originally enacted in 2002, the section (originally numbered s 29) provided that “family member” includes a spouse and a person, whether of the same sex or a different sex, living in a de facto marriage relationship; the Legislation (Gay, Lesbian and Transgender) Amendment Act 2003 (ACT) deleted the reference to spouses and substituted “domestic partner”. 62

A grandfather, for example, was one of those denied recovery in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

506

Part III: Liability for Mental Harm

[13.140]

within sight or hearing of the accident.63 There does not appear to be any way in which the words of the statute can be interpreted to include the aftermath of the accident, rather than the accident itself.64 The statute, after all, was enacted before the development of the aftermath doctrine. However, the family members who may recover in such circumstances again include some who may still be unable to recover at common law. According to the interpretation provisions in New South Wales, “member of the family” meant a husband, wife, parent, child, brother, sister, half-brother or half-sister, and there are similar provisions in the two Territories.65 As discussed elsewhere, the common law now emphasises the importance of the individual relationship and has abandoned arbitrary rules based on the category of relative. However, there is still a most important difference between the common law and the Australian statutes. Under the statutes, family members within the stated categories have an automatic right to recover for shock, if they are present at the scene of the accident to the relative. At common law, they can recover only if the relationship satisfies the criterion of very close love and affection specified by the House of Lords. Brian Harrison, one of the plaintiffs in Alcock v Chief Constable of South Yorkshire Police66 who lost his brother, failed to satisfy this criterion. He would have recovered under the Australian statutes. [13.140] It appears that the only cases in which the common law would provide a remedy to shocked relatives of the primary accident victim when the statutes would not are those where relatives other than spouses and parents are present at the aftermath, rather than the accident itself, or learn of the accident from others in situations where the common law permits recovery. [13.150] In 1993, the New South Wales Court of Appeal in Chiaverini v Hockey67 imposed an important limitation on the scope of recovery under the Acts by ruling that there was no liability in the absence of sudden shock. This was an unlooked-for extension of the common law sudden shock rule that can be traced to Brennan J’s interpretation of the case law in Jaensch v Coffey.68 In Chiaverini, a wife claimed against two defendants who negligently injured her husband in two separate car accidents for 63

Cases in which children’s claims under the statutes were ruled out on this ground include Hanley v Keary (unreported, ACTSC, No 674 of 1989, 28 January 1992); Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1; Knight v Pedersen [1999] NSWCA 333; Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606, on appeal Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. These cases also consider the position of the children at common law.

64

Note Marchlewski v Hunter Area Health Service [1998] NSWSC 771 (BC9804890) at 41 per Dowd J.

65

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(5); Civil Law (Wrongs) Act 2002 (ACT), s 32; Law Reform (Miscellaneous Provisions) Act (NT), s 23.

66

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

67

Chiaverini v Hockey (1993) Aust Torts Rep 81-223.

68

Jaensch v Coffey (1984) 155 CLR 549.

[13.170]

13 Statutory Extensions and Restrictions

507

mental illness allegedly associated with his injuries. It appears that she learnt of both accidents when her husband was delivered to her at home on crutches and wearing a supportive collar. She failed both at first instance and on appeal because she was unable to prove that her psychiatric complaint was due to an identifiable shock to her nervous system. The medical evidence indicated that it was not caused by stimuli that formed part of the accidents or their aftermath but by more remote consequences. In the view of the Court of Appeal, the absence of a sudden perception of a shocking event and the fact that the plaintiff’s reactive depression stemmed instead from observing her husband’s incapacity, continuing disability, emotionally crippling dependence on her, and the inadequate settlement of his personal injury claim were fatal to her action both at common law and under the New South Wales Act. The court considered that if sudden shock was a requirement of the common law, it was an inescapable conclusion that it was also required by the statute. [13.160] It is submitted that the effect of the Act is not so clear-cut. While clearly there has to be evidence of some form of psychiatric injury before statutory liability can be imposed, there is nothing to indicate that such damage has to be attributable to a sudden shock, save for the use of the term “mental or nervous shock”. It is suggested that even in 1944 this terminology was intended to convey psychiatric injury generally with little attention being devoted by the drafters to whether compensable mental injury was caused solely by the sudden perception of trauma or brought on also by the accumulation of factors over a period of time. Though the applicability of the sudden shock requirement has been affirmed in subsequent cases,69 its rejection at common law by the High Court in Tame v New South Wales70 highlights the inappropriateness of grafting it onto the statutory claim. More recently, the High Court in Wicks v State Rail Authority (NSW)71 has confirmed that “sudden shock” as used in the Civil Liability Act 2002 (NSW) is something different from, and more limited than, “mental or nervous shock” as used in provisions carried over from the older New South Wales legislation. Presumably, when the opportunity arises, a court will follow the lead of the two High Court cases and reject the doctrine of Chiaverini v Hockey.72 [13.170] Given the importance of the issues arising under the legislation, one might have expected that in cases where it was being invoked it would always have been expressly referred to, but this has by no means always been so. In a number of cases, parents who were not present to see 69

See Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995); Buljabasic v Ah Lam (unreported, NSWCA, CA 40417/96, 3 September 1997); Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606; note also Hanley v Keary (unreported, ACTSC, SC No 674 of 1989, 28 January 1992).

70

Tame v New South Wales (2002) 211 CLR 317.

71

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [30]–[31] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 72

Chiaverini v Hockey (1993) Aust Torts Rep 81-223.

508

Part III: Liability for Mental Harm

[13.170]

an accident to their children,73 and wives or husbands who were not present when their spouses were killed or injured,74 were awarded damages; in a few instances, there might have been a possible argument that they were present within the immediate aftermath,75 but nothing was made of this. These parties must have recovered damages under s 4(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), and yet the Act was never mentioned. There were other cases where there were two or more claimants, one of whom was a parent or spouse who could claim under s 4(1)(a), and the remainder were children who could claim only under s 4(1)(b), and no claimant saw the accident; in these cases the court apparently awarded damages to the parent or spouse under the Act and dealt with the children’s claim according to the common law, but again there is no mention of the Act.76 There even seem to be a few instances where the plaintiff’s legal advisers ignored the existence of the Act and simply brought a claim at common law, and it was only the court that adverted to the existence of the statute. This appears to be what happened

73

See eg Madigan v Hughes [1999] NSWSC 183; Towne v Prospect County Council [2000] NSWCA 270. Note also Reinhardt v Huan (unreported, NSWCA, No 40552 of 1995, 12 July 1996) (new trial on damages); Delaney v Leighton Interlink [2000] NSWCA 151 (no liability on causation grounds). 74

See eg Budget Rent-a-Car Systems v Van der Kemp (unreported, NSWCA, CA No 7 of 1984, 21 December 1984) (McHugh JA classified the claim as one brought “at common law” and did not allude to the Act, but the husband was told of his wife’s death, and it seems that he must have recovered under the Act); Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 (admission of liability prevented examination of limits on recovery); Andrews v Government Insurance Office of New South Wales (unreported, NSWSC, No 15992 of 1985, 2 December 1988) (liability admitted); Nominal Defendant v Bogic [2000] NSWCA 164. Note also Amcor Ltd v Watson [2000] NSWCA 21 (dealing with agreement to compromise claim).

75

See eg White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982), discussed at [11.170] (parents went to hospital, saw daughter lying unconscious); Maiorana v Zammit (unreported, NSWCA, No 110 of 1987, 29 February 1988) (mother went to accident scene and saw son lying under car); Maxwell v Mather (unreported, NSWSC, No 14790 of 1983, No 9232 of 1983, 16 December 1988) (parents went to hospital during period of immediate post-accident treatment: liability admitted); Cipri v Famelli (unreported, NSWSC, No 13802 of 1989, 16 December 1993) (father saw body of murdered daughter in pool of blood, both parents saw body in funeral parlour). Note also Hicks v Edser (unreported, NSWCA, No 40698/92, 23 April 1996) (mother saw son in injured state: limitation period extended).

76

See eg Public Trustee v Commonwealth (unreported, NSWSC, No 10962 of 1985, 8 June 1994) (parents died in air crash, action by children and wife’s mother); Buljabasic v Ah Lam (unreported, NSWCA, CA 40147/96, 3 September 1997) (action by wife and two daughters of injured man); Mills v Central Sydney Area Health Service [2002] NSWSC 728 (action by mother and son of deceased). Note also NSW Insurance Ministerial Corporation v Gomes (unreported, NSWCA, CA 40052/96, 26 October 1998), where the defendant admitted liability to a son who suffered schizophrenia as the result of a grief reaction consequent on the death of his father; though he went to the morgue to see his father’s body, it is hard to see how he could have recovered at common law (prior to Tame v New South Wales (2002) 211 CLR 317), and he had no claim under s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) because he was not present at the scene.

[13.200]

13 Statutory Extensions and Restrictions

509

in Coates v Government Insurance Office of New South Wales,77 where a claim was made on behalf of two children of a truck driver who suffered mental harm after being told that he had been killed in a motor vehicle accident. (Another puzzling feature of this case is that the plaintiffs’ case as presented did not seem to envisage any problem arising from the lack of direct perception.) [13.180] It might be thought frustrating that some of the most fundamental issues involved in the interpretation of the legislation originating with the New South Wales Act of 1944 were authoritatively settled by the High Court only after the legislation had already been consigned to history by the New South Wales Parliament. However, the legislation endures in the Australian Capital Territory and the Northern Territory, and lives on in New South Wales for certain purposes, and so the case law on the New South Wales 1944 Act and its equivalents continues to be of value. These statutes have played an important part in the development of Australian psychiatric injury law.

PRE-2002 STATUTORY RESTRICTIONS Road accidents [13.190] It has been suggested that whereas earlier legislative intervention in the law of torts expanded liability on the basis that judges were too conservative and pro-defendant, By about 1980 the process of statutory intervention to overcome what was seen as conservatism by the judiciary in awarding damages to plaintiffs had ceased. From the 1980s to the present time, legislative intervention has been based on the alternative assumption that the judiciary was too plaintiff-oriented. … Throughout Australia, major parts of the law of negligence have been removed from the decision-making authority of the judiciary.78

This process has been at work in the law of psychiatric damage. Beginning in the mid-1980s, some Australian jurisdictions legislated to limit the ambit of psychiatric injury claims in road and work accident cases. [13.200] The first such provision was enacted in South Australia. Section 35A(1) of the Wrongs Act 1936,79 enacted in 1986, provided that: Notwithstanding any other law, where damages are to be assessed for or in respect of injury arising from a motor accident, the following provisions apply: … 77

Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 (see at 16 per Clarke JA). Note also the mother’s claim for shock-related injury in X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26: see [11.180]. 78

JJ Spigelman, “Negligence: The Last Outpost of the Welfare State” (2002) 76 ALJ 432 at 438.

79

This Act was renamed the Civil Liability Act in 2003, but the amending legislation (the Law Reform (Ipp Recommendations) Act 2004 (SA)) also repealed s 35A, and so the text continues to refer to the Wrongs Act when discussing this section.

510

Part III: Liability for Mental Harm

[13.210]

(c) no damages shall be awarded for mental or nervous shock except in favour of – (i) a person who is physically injured in the accident, who was the driver of or a passenger in or on a motor vehicle involved in the accident or who was, when the accident occurred, present at the scene of the accident; or (ii) a parent, spouse or child of a person killed, injured or endangered in the accident.80

“Parent” was defined to include a father, mother, grandfather, grandmother, step-father and step-mother, and “child” had a corresponding meaning.81 [13.210] Like the more general legislative provisions dealt with at [13.30]–[13.180], this enactment accepted that certain close relatives might suffer psychiatric injury irrespective of whether they were present at the accident. But this category was carefully limited: for example, brothers and sisters who were not present at the scene of the accident were not included. Relatives apart, recovery for psychiatric injury was restricted to persons who were physically injured in the accident whether as a driver of or passenger in a vehicle or as a pedestrian or other road user.82 No allowance was made for trauma victims unrelated to the injured parties who were present but physically uninjured. It is clear that, unlike the earlier provisions in New South Wales and the two Territories, this provision aimed to restrict common law liability.83 In Pham v Lawson,84 the respondent argued that all she had to establish in order to be entitled to damages was that she was the parent of a child who was killed in a motor accident and that she suffered nervous shock, but Lander J disagreed, saying that the intention of s 35A of the Wrongs Act 1936 (SA) was not to extend the circumstances in which a claim for nervous shock might be brought, but to impose limitations on the scope of such actions and the persons who were entitled to claim.85 However, s 35A only applied in cases of motor vehicle accidents. Many cases of psychiatric injury occur in other situations. Although there may be good policy reasons behind the desire to limit liability in road accident situations, creating an artificial difference in the ambit of psychiatric injury recovery seems very 80

Note the attempt by the Special Magistrate in Orman v Harrington (unreported, SASC, No 296 of 1990, 30 April 1990) to apply the section in that case even though it had not come into operation at the time of the accident.

81

Wrongs Act 1936 (SA), s 3A.

82

See Awad v Bebnowski [2002] SADC 157, discussed at [14.100].

83

The purpose of the legislation, introduced in the wake of Jaensch v Coffey (1984) 155 CLR 549, was not to significantly alter the law as it currently stood, but to prevent any further expansion of this head of damage: South Australia, Parliamentary Debates, Legislative Council, 27 November 1986, 2410; see Philcox v King (2014) 119 SASR 71 at [58] per Sulan J; King v Philcox (2015) 89 ALJR 582 at [16] per French CJ, Kiefel and Gageler JJ, at [50] per Keane J, at [122] per Nettle J.

84

Pham v Lawson (1997) 68 SASR 124.

85

Pham v Lawson (1997) 68 SASR 124 at 145.

[13.230]

13 Statutory Extensions and Restrictions

511

unsatisfactory. The provision was ultimately superseded by more general restrictions on recovery for mental harm.86 [13.220] Two provisions were enacted in New South Wales. Section 77 of the Motor Accidents Act 1988 provided that: No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of – (a) a person who suffered injury in the accident and who – (i) was the driver of or a passenger in or on a vehicle involved in the accident; or (ii) was, when the accident occurred, present at the scene of the accident; or (b) a parent, spouse, brother, sister or child of the injured person or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric injury and not merely a normal emotional or cultural grief reaction.87

As was the case under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), “spouse” included a de facto spouse.88 Section 141 of the Motor Accidents Compensation Act 1999 (NSW) was in similar terms. The 1999 Act applied to injuries sustained in motor vehicle accidents on or after 5 October 1999. The 1988 Act continued to apply to accidents before that date. Some provisions in these Acts continue to apply after the enactment of the Civil Liability Act 2002 (NSW),89 but ss 77 and 141 have been superseded by the Civil Liability Act provisions on mental harm.90 [13.230] The 1988 Act restored common law liability in road accident cases after it had been abolished by the Transport Accidents Compensation Act 1987 (NSW), but aimed to reduce costs by limiting the scope of liability and the damages that could be awarded.91 These two sections did not create a cause of action, but limited the scope of the cause of action available at common law and under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW).92 Damages for psychiatric injury could not be recovered except in two classes of case. In the first category were persons who suffered injury in the accident and were either the driver of or a 86

Wrongs Act 1936 (SA), s 24C (enacted by the Wrongs (Liability and Damages for Personal Injury) Amendment Act 2002 (SA)), a provision later carried forward into the current legislation, dealt with at [13.480].

87

Motor Accidents Act 1988 (NSW), s 77.

88

Motor Accidents Act 1988 (NSW), s 3(1).

89

Which commenced on 20 March 2002.

90

Civil Liability Act 2002 (NSW), s 3B.

91

Hoinville-Wiggins v Connelly [1999] NSWCA 263 at [14] per Giles JA.

92

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 at 63,338 per Handley JA; Hoinville-Wiggins v Connelly [1999] NSWCA 263 at [20]–[21] per Giles JA; AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales [2001] NSWCA 186 at [157] per Heydon JA.

512

Part III: Liability for Mental Harm

[13.230]

passenger in a vehicle involved in the accident,93 or were present at the scene when the accident occurred. In Aboushadi v CIC Insurance Ltd,94 the conductor on the Indian Pacific was allowed to recover for psychiatric injury resulting from witnessing an accident between the train and a truck.95 The argument that he was not entitled to damages because he had not suffered physical injury was rejected, Handley JA saying that the distinction between ordinary physical injury and psychiatric injury was illusory, and that the defendant’s argument would make para (a)(ii) of s 77 of the Motor Accidents Act 1988 (NSW) redundant.96 The court also rejected the argument that this was not a motor accident: it qualified because of the involvement of the truck, and possibly also of the train.97 In the second category were parents,98 spouses,99 siblings and children. In a way similar to the 1944 Act and the South Australian legislation, this provision recognised the likelihood that close relatives might suffer severe emotional harm on the death or injury of a loved one, irrespective of whether they were present at or near the scene of the accident.100 However, a new limitation was introduced. There was no liability unless they had suffered a demonstrable psychological101 or psychiatric injury and not merely a normal emotional or cultural grief reaction. Two cases offer interesting illustrations of the significance of the limitation imposed by this provision. In Dandashli v Dandashli,102 the plaintiff was injured when the car in which she was a passenger, driven by her uncle, collided with a telegraph pole. She was also in his car when he was involved in another accident. She claimed that as a result she suffered post-traumatic stress disorder and depression, and also that the experience either precipitated or aggravated her schizophrenia. The New South Wales Court of Appeal upheld the trial judge’s conclusion that her psychotic condition as observed by a doctor in 1994 was merely part of a continuum of illness that commenced before the first accident. Priestley JA’s judgment suggests that she would have been entitled to damages at 93

See eg Dandashli v Dandashli [2000] NSWCA 273 (passenger: no liability because sufficient injury not established).

94

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384.

95

See also Government Insurance Office of New South Wales v Aboushadi (1999) Aust Torts Rep 81-531, dealing with later accidents in which the plaintiff was involved.

96

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 at 63,339.

97

Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384 at 63,338. Note also AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales [2001] NSWCA 186, where it appears to have been accepted that the Act applied where an employee was injured when unloading rolls of plastic from a truck.

98

See eg Bigeni v Finch (unreported, NSWSC, No 16165 of 1992, 8 April 1998).

99

See eg Nominal Defendant v Bogic [2000] NSWCA 164.

100

Relatives in this category who are told of the death or injury may recover, see eg Nominal Defendant v Bogic [2000] NSWCA 164.

101

On “psychological injury”, see [4.20].

102

Dandashli v Dandashli [2000] NSWCA 273.

[13.240]

13 Statutory Extensions and Restrictions

513

common law, but was denied them by the Act.103 In Sahin v Carroll,104 on the other hand, the plaintiff, a Turkish girl who married an Australian in Turkey, was due to join him in Australia but he was killed before she could do so. She fainted when she heard the news. According to Turkish tradition, once a girl married, her husband’s parents had to care for her, and so she came to Australia nonetheless, and sued the wrongdoer. Spender AJ formed the view that she had exaggerated the depth of her reaction to her husband’s death, and that although there was grief there was no depressive or reactive illness, merely a normal emotional or cultural grief reaction. [13.240] The difference between the two categories, and the limitations imposed by the provision as compared with common law, were clearly shown by Spence v Biscotti105 and Hoinville-Wiggins v Connelly,106 two cases involving teachers. In Spence, a teacher at a high school in Queanbeyan, New South Wales, was summoned to the scene of an accident where a Year 9 student driving a car had injured another student, and gave comfort and counsel. She sued the car driver, the car owner and her employer for damages for the psychiatric injury she suffered as a result of this experience. It was held that she could not recover. Though she had clearly been present at the aftermath, in common law terms, she had not been present at the scene of the accident when it occurred.107 In this case, just over half an hour elapsed before the plaintiff arrived at the accident scene; in Hoinville-Wiggins, the accident occurred outside the primary school of which the plaintiff was principal, and he was on the scene within minutes, comforting the driver and administering CPR to the injured pedestrian (who died nonetheless), and yet again recovery was denied because he was not present when the accident took place. These decisions clearly show how the restrictive policy of the Act limited the scope of recovery for mental harm. They contrast starkly with Bigeni v Finch,108 where the plaintiff’s daughter was injured in an accident outside their house, and the plaintiff was able to recover on showing that she had suffered psychiatric injury: it was not necessary to make out a case based on presence at the aftermath.

103

Dandashli v Dandashli [2000] NSWCA 273 at [3]–[5].

104

Sahin v Carroll (unreported, NSWSC, No 13161 of 1991, 3 August 1995).

105

Spence v Biscotti (1999) 151 FLR 350.

106

Hoinville-Wiggins v Connelly [1999] NSWCA 263.

107

The plaintiff sued in the Australian Capital Territory. The primary reason for the decision was that under the then-prevailing conflict of laws rules for torts, the plaintiff could not sue in the ACT because the lex loci delicti was different in kind from the law of the forum, common law liability for psychiatric injury having been superseded by the Motor Accidents Act 1988 (NSW).

108

Bigeni v Finch (unreported, NSWSC, No 16165 of 1992, 8 April 1998).

514

Part III: Liability for Mental Harm

[13.250]

[13.250] Three Australian States have no-fault compensation systems for road accident cases.109 In Victoria and the Northern Territory, the scheme replaces common law liability, which has been abolished;110 in Tasmania, the common law survives, with the result that a victim who can prove fault on the part of another can recover extra compensation.111 In Victoria, the legislation provided compensation for injuries caused by a transport accident, including nervous shock, provided that the injury was a “serious injury”.112 The earlier case law showed that in psychiatric injury cases some common law limitations did not necessarily apply. Thus, a woman told of the death of her son in a road accident recovered compensation on proof of a sufficient causal connection,113 and a like decision was reached in Gannon v Transport Accident Commission,114 where the plaintiff saw a television report of a road fatality and was then told that the victim was his half-brother, who had acted as a father-figure to him. The court confirmed that under the Act what mattered was the establishment of a causal connection, and foreseeability and remoteness had no part to play. Following this decision, the legislation was amended in 2000 to require that the nervous shock be suffered by a person who was directly involved in a transport accident or witnessed the accident or the immediate aftermath.115 Accordingly, in Solity v Transport Accident Commission,116 it was held that a mother who suffered mental injury when informed by police that her son had been killed in a collision with a train could not recover compensation. Another decision, Morgan v Transport Accident Commission,117 hinted at a possible extension of the common law in a different direction: the husband of a woman seriously injured in a car crash, also himself injured in the accident, suffered psychiatric impairment as a result of coping with his wife’s injuries over the ensuing months and years. The judgment suggested that compensation might be available for psychiatric injury caused by the stress of caring for a loved one, but of course in this case the applicant was himself also injured. 109

Over the last few years, all jurisdictions have enacted additional compensation schemes for catastrophic motor vehicle injuries: see eg Motor Accidents (Lifetime Care and Support) Act 2006 (NSW).

110

Transport Accident Act 1986 (Vic), replacing the Motor Accidents Act 1973 (Vic) which did not abolish common law claims; Motor Accidents (Compensation) Act (NT).

111

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas).

112

Transport Accident Act 1986 (Vic), s 93(2).

113

Butcher v Motor Accidents Board (1984) Victorian Motor Accidents Cases 72-026; contrast Reid v Motor Accidents Board (1982) Victorian Motor Accidents Cases 74-135. Cases decided under the Motor Accidents Act 1973 (Vic) continue to be applicable: see Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997). 114

Gannon v Transport Accident Commission (unreported, Vic AAT, No 1995/17514, 1997).

115

By amending the definition of injury in s 3(1) of the Transport Accident Act 1986 (Vic).

116

Solity v Transport Accident Commission [2007] VCAT 749.

117

Morgan v Transport Accident Commission (unreported, Vic AAT, No 1995/40538, June 1998).

[13.270]

13 Statutory Extensions and Restrictions

515

Work accidents [13.260] Some Australian States have limited or eliminated common law liability for work injuries. This is an issue that is closely related to the different political philosophies of opposing parties: in Victoria, for example, common law claims for work injuries were abolished by a Liberal government in 1997 and restored by a Labor government in 1999.118 At the present time, common law actions are barred in the Northern Territory and subject to various restrictions in other jurisdictions.119 These provisions generally cover all kinds of personal injury actions. [13.270] Specific restrictions applying to psychiatric injury claims are rare, but one such provision formerly in force in New South Wales was s 151P of the Workers Compensation Act 1987, which provided that no damages for psychological or psychiatric injury can be awarded except in favour of the injured worker or a parent, spouse, brother, sister or child of the injured or deceased worker who, as a consequence of the injury or death, had suffered “a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction”.120 The close relationship between this provision and those in the Motor Accidents Act 1988 (NSW) and Motor Accidents Compensation Act 1999 (NSW) will be evident. This provision was in issue in the High Court in Gifford v Strang Patrick Stevedoring Pty Ltd.121 In view of the holding by the trial judge that the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) applied to the exclusion of the common law, the plaintiffs had argued before the New South Wales Court of Appeal that whatever the effect of the 1944 Act, s 151P preserved the common law claim. The High Court was unanimous in holding that the Court of Appeal had rightly rejected this argument. Correctly interpreted, the provision was to be read not as creating a new cause of action but as limiting the circumstances in which common law damages for psychiatric injury could be awarded in work accident cases. In the words of McHugh J, “The relevant parts of the legislation assume the existence of rights of action for nervous shock arising out of workplace injuries and confine the right to claim damages in such actions to injured workers and their immediate family members.”122 This 118

See H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, Sydney, 2002), p 463.

119

See Australian Torts Reporter (CCH Australia Ltd), para 13-000.

120

Note, however, the Workcover Queensland Act 1996 (Qld), s 34, excluding from the definition of injury a psychiatric or psychological disorder arising out of reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment or the worker’s expectation or perception of reasonable management action being taken against the worker: see Finn v Queensland Ambulance Service [2000] QSC 472 at [43] per Dutney J. 121 122

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [44]. Gifford was followed in Kimberly-Clark Australia Pty Ltd v Thompson [2006] NSWCA 264 at [65]–[66] per Basten JA.

516

Part III: Liability for Mental Harm

[13.280]

interpretation is supported by s 151, which preserves common law and other liability in respect of an injury to a worker that exists independently of the Act, except to the extent that the Act otherwise expressly provides.123 [13.280] In 2012, s 151P was repealed and replaced by a provision that no damages for pure mental harm may be awarded against an employer in respect of the death of or injury to a worker if the pure mental harm arises wholly or partly from mental or nervous shock in connection with the death of or injury to the worker unless the pure mental harm is a work injury (that is, and injury to a worker or another worker).124 This section rules out claims for injuries that are not a work injury, and claims by relatives of an injured or deceased worker because their injuries are not work injuries. This means that if the action in Gifford v Strang Patrick Stevedoring Pty Ltd125 had been brought after the coming into force of this legislation, the children would not have been able to claim.

RESTRICTIONS UNDER THE CIVIL LIABILITY ACTS [13.290] The most important legislative provisions on mental harm are those enacted by the Civil Liability Acts from 2002 onwards: the legislation in the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and Western Australia126 now contains statutory statements of the post-Tame v New South Wales127 common law as recommended by the Ipp Report.128 The Ipp Report considered whether there should be further restrictions on liability for pure mental harm, including possibly a “list of eligible relationships”, but made no recommendation to this effect — in part, because of the difficulty of justifying a list of relationships in a principled way.129 However, four jurisdictions — New South Wales, Victoria, Tasmania and South Australia — took the opportunity to enact additional limitations on liability, with the aim of confining the law within narrower limits than those approved by the High Court or the Ipp recommendation. In essence, the legislation in these jurisdictions creates a distinction between relatives and others, 123

Does this mean that Mr Pusey, who went to the aid of two fellow-workers who were badly injured in a mine accident, could not have claimed damages for psychiatric injury if these events had taken place in New South Wales under this legislative regime? (See Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.) It seems that this was the view of McHugh J, but it may nevertheless not be quite correct: See N Foster, “Psychiatric Injury Following Workplace Trauma or Death: Actions by Fellow-Workers and Relatives in New South Wales” (2004) 12 Tort L Rev 59 at 59–61.

124

Workers Compensation Act 1987 (NSW), s 151AD.

125

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

126

See [2.240]–[2.370].

127

Tame v New South Wales (2002) 211 CLR 317.

128

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendation 34. 129 Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), paras 9.19–9.27.

[13.300]

13 Statutory Extensions and Restrictions

517

requiring presence at the accident scene for all plaintiffs except those who have a close family relationship with the primary accident victim. The position thus reached resembles a proposal made 30 years ago, in the era when lower courts in Australia were beginning to jettison the requirement of personal perception in the wake of the invitation to do so extended by Deane J in Jaensch v Coffey:130 Professor Trindade suggested that the aftermath requirement should be dispensed with for those who have a close tie of relationship or care with the accident victim, while retaining it for other plaintiffs.131 Unfortunately, the legislative provisions in these four jurisdictions are each different from each other. Noting that two jurisdictions (the Australian Capital Territory and Western Australia) enacted mental harm provisions without including additional restrictions of this kind, and the remaining two jurisdictions (the Northern Territory and Queensland) did not see a need to enact mental harm provisions in any form, the restrictive sections about to be discussed sounded the death knell for any hopes of unity in Australian mental harm law.

New South Wales [13.300]

Section 30 of the Civil Liability Act 2002 (NSW) provides:

(1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.

“Close member of the family” is defined to mean a parent or other person with parental responsibility, a spouse or partner, a child or stepchild or any other person for whom the victim has parental responsibility, or a brother, sister, half-brother, half-sister, step-brother or step-sister.132 The section was clearly designed to restrict the scope of liability as recognised by the common law after Tame v New South Wales.133 In contrast to the earlier New South Wales legislation, which said that the defendant’s liability “shall extend to include” the specified cases,134 this legislation rules out those who do not qualify. 130

Jaensch v Coffey (1984) 155 CLR 549 at 608–609: see [11.150].

131

FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476 at 499–500.

132

Civil Liability Act 2002 (NSW), s 30(5).

133

Tame v New South Wales (2002) 211 CLR 317. In Burke v New South Wales [2004] NSWSC 725 at [61], Master Malpass, referring to the second reading speech, said that “A clear intention is expressed to limit inter alia liability for pure mental harm arising from shock”.

134

See [13.30].

518

Part III: Liability for Mental Harm

[13.310]

[13.310] Section 30(2) provides that unless the plaintiff is a “close member of the family” as defined,135 the plaintiff is not entitled to recover damages for pure mental harm unless he or she witnessed, at the scene, the immediate victim being killed, injured or put in peril. The emphasis on witnessing a person being killed, injured or put in peril might suggest that there is no room for the common law concept of aftermath, and that unless the non-relative plaintiff sees the accident as it happens liability will be denied. Early indications were that the words had to be read in this very narrow fashion. In Burke v New South Wales,136 the matter arose in the context of an application for extension of the limitation period. The plaintiff claimed to have suffered psychiatric injury as a result of witnessing the destruction of a ski lodge at Thredbo in the landslide that took place on 30 July 1997. The case was complicated by a conflict between the plaintiff’s evidence as set out in an affidavit and the statements he had earlier made to the police and the coronial inquest. According to the affidavit, he had been visiting friends at the lodge a short time before the tragedy and witnessed its destruction from a short distance away, knowing that his friends were inside, including his closest friend who was killed. He then stated that he went to the wrecked building, experiencing the ground still moving beneath his feet, and was involved in rescue attempts. Even on this version of the story, it is not self-evident that the plaintiff witnessed persons being killed, injured or put in peril. However, according to the statements he made to the police and at the inquest, he did not witness the destruction of the lodge but, from some distance away, heard a noise that turned out to be the noise of the landslide. He then ran back towards the lodge and discovered what had happened. In oral evidence to the court, the plaintiff largely abandoned the statements made in his affidavit. Master Malpass concluded that he could not be regarded as a credible or reliable witness. In order to determine whether there was a case for extending the limitation period, the Master had to satisfy himself that the plaintiff had a cause of action, and in determining this issue the Master relied on the version of the facts given to the police and at the inquest. Noting that the New South Wales legislation had limited the scope of recovery at common law, he said that it could not possibly be contended that the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril. The result may well have been different if those inside the lodge had been family members, rather than close friends: in such a situation, it would have been unnecessary to rely on s 30(2)(a). 135

For cases expressly recognising that particular relatives are “close members of the family” as defined, see Waverley Council v Ferreira [2005] NSWCA 418 at [6] per Spigelman CJ (father); Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109 at [31] per Hungerford ADCJ (mother); Lane v Northern NSW Local Health District [2013] NSWDC 12 at [312] per Williams DCJ, affirmed Lane v Northern NSW Local Health District (No 3) (2015) Aust Torts Rep 82-194 (daughters); Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280 at [128] per Beech-Jones J (wife). 136

Burke v New South Wales [2004] NSWSC 725.

[13.340]

13 Statutory Extensions and Restrictions

519

[13.320] This, however, was only a decision at first instance. The meaning of the words “witnessed, at the scene” has now been authoritatively determined by the High Court in Wicks v State Rail Authority (NSW),137 the leading case on the interpretation of s 30. This was a claim by two police officers, Wicks and Sheehan, who attended the scene of a major train derailment at Waterfall, New South Wales in January 2003. The train had been severely damaged, and it had brought down some power lines that were draped across it. Seven passengers had been killed and others injured. The plaintiffs rendered assistance, moved bodies, and rescued the injured. As a result, both developed psychiatric injuries, including post-traumatic stress disorder and major depressive disorder, and sued for damages. [13.330] In respect of each claim, the parties agreed that liability depended on three issues: (1) whether the defendant owed the plaintiff, a rescuer, a duty of care; (2) whether the plaintiff witnessed, at the scene, victims of the derailment being killed, injured or put in peril as required by s 30(2); and (3) whether the plaintiff’s attendance at the derailment caused him to suffer a recognised psychiatric illness. Malpass Assoc J at first instance (sub nom Wicks v Railcorp138) and the New South Wales Court of Appeal (sub nom Sheehan v State Rail Authority (NSW)139) both took the view that the case could be determined by answering the second question, without ruling on the issues of duty of care or causation. [13.340] In the New South Wales Court of Appeal the majority (Beazley JA, Giles JA agreeing) held that the plaintiffs had failed to show that they witnessed, at the scene, a person being killed, injured or put in peril. Beazley JA, applying the ordinary meaning of the words and emphasising the immediacy of the words used, said that s 30 required that the plaintiff witness a victim being killed, injured or put in peril.140 More controversially, her Honour sought to interpret the legislation by comparison with its Tasmanian equivalent, which referred to the plaintiff witnessing, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed, injured or put in peril, drawing the conclusion that the New South Wales provision therefore excluded the possibility of being present at the aftermath of the accident.141 She held that rescuers such as the plaintiffs could not recover damages because on the facts they did not witness anyone being killed, injured or put in peril: The derailment was what put the victims in peril by the respondent’s act or omission. When the appellants arrived the derailment, as the incident which 137

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60, noted by P Handford (2010) 18 Tort L Rev 125. 138

Wicks v Railcorp [2007] NSWSC 1346.

139

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028, noted by P Handford (2010) 18 Tort L Rev 5. 140

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [37], [74].

141

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [77].

520

Part III: Liability for Mental Harm

[13.350]

killed, injured and put in peril passengers in the train, was over; there was no consequential event such as the falling of the stanchion knocked loose in the collision. The process of victims being put in peril had ended, and the appellants witnessed what some cases and the Ipp Report refer to as the aftermath.142

[13.350] McColl JA (dissenting) pointed out the dangers of statutory interpretation by reference to the different wording of a statute in another jurisdiction.143 She constructed a powerful and detailed argument in favour of a more liberal interpretation. In her view, it was wrong to conclude that s 30 required the appellants to be present at the time of the principal causal event (the derailment). She arrived at this conclusion following a detailed examination of the legislative history of the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) (which had inserted the mental harm provisions in the Civil Liability Act 2002 (NSW)), comparing it with its equivalents in other jurisdictions and its 1944 New South Wales antecedent. Section 30 could not be given the restricted operation contended for by the respondents because it did not prescribe a temporal relationship between the events the plaintiff had to witness and the event that caused them. The appellants did not have to be present when the relevant “act or omission” occurred, but only when the victim was “being killed, injured or put in peril”.144 [13.360] In favour of the majority ruling, it might be argued that the statute does not single out rescuers, but would include anyone who witnessed the victim being killed, injured or put in peril. It could also be argued that the restriction in s 30 is reasonable because it does not apply to close family members, so preserving the common law approach for the category of secondary victims who are most likely to make claims. However, the majority decision still seemed to be unsatisfactory. Unlike the common law, which could single out rescuers and treat them differently from other bystanders, the statute perforce adopted a broad-brush approach, and Australian rescuers were much worse off as a result. [13.370] Fortunately, the High Court of Australia has now provided a much more liberal interpretation of the words in question. In a case now known as Wicks v State Rail Authority (NSW),145 the High Court, in a unanimous judgment, reversed the decision of the New South Wales Court of Appeal. It did not in terms adopt the dissenting arguments of McColl JA, though they may have exercised some influence. Instead, in a judgment notable for its brevity, the High Court reached its conclusion

142

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [76].

143

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [120].

144

Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 at [144].

145

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

[13.380]

13 Statutory Extensions and Restrictions

521

based on a close reading of the words of the Act.146 It was again argued that there was no need to decide the duty of care and causation issues, and that the matter turned on interpretation of s 30. The High Court in the end accepted this approach, because both sides supported it, though the judgment states clearly that it was open to the court to decide the duty of care issue had it chosen to do so.147 [13.380] The respondent again argued that neither appellant had witnessed, at the scene, the victim being killed, injured or put in peril. It was suggested that the words of the section meant that in order to recover “a plaintiff must have observed, at the scene, an event unfolding that included, perhaps culminated in, another’s death, injury or being put in peril”. For good measure, the respondent further submitted that a plaintiff had to show that the psychiatric injury complained of was caused by observation of what was happening to a particular victim.148 The High Court emphatically rejected both these submissions and held that the interpretation of the words in s 30(2)(a) adopted by the majority in the New South Wales Court of Appeal was incorrect. It could not be assumed that all cases of death, injury or being put in peril are events that begin and end in an instant; the consequences of the derailment took time to play out. Even if all the deaths happened instantaneously, this was not so in case of those who had been injured or put in peril: • Not all the injuries were suffered during process of derailment: it could be inferred that some suffered further injury during the rescue process. • It could be readily inferred that many suffered psychiatric injuries as result of what happened, including what happened during the rescue process. • Even if it was not possible to draw either of these inferences, those who had been on the train remained in peril (for example, from fallen electrical cables draped over carriages).149 The plaintiffs therefore witnessed, at the scene, a victim or victims being killed, injured or put in peril as result of the defendant’s negligence: “Contrary to State Rail’s submission, the expression ‘being … put in peril’ should not be given a meaning more restricted than that conveyed by the ordinary meaning of the text”.150 There was no need to show that their psychiatric injuries were caused by observation of what was happening to 146

It said that extrinsic material such as the Ipp Report and the second reading speech was of no assistance: Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [41] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

147

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [33]–[35] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

148

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [40] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 149

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [44]–[49] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

150

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [50] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

522

Part III: Liability for Mental Harm

[13.390]

a particular victim.151 It having been determined that s 30 provided no bar to the plaintiffs’ claim, the case was remitted to the Court of Appeal for the duty and causation issues to be decided. [13.390] The High Court’s ruling on the meaning of the words “witnessed, at the scene, the victim being killed, injured or put in peril” in s 30 presumably also applies to the similar words in s 32, even though s 32 does not impose limitations on recovery but instead sets out circumstances relevant to the determination of whether the defendant owed a duty of care not to cause mental harm. It presumably also applies to the interpretation of the provisions similar to s 32 in other jurisdictions.152 [13.400] The High Court’s decision is controversial in at least one respect. It does not appear that any court has previously suggested that a duty to take care not to cause psychiatric injury can be based on witnessing psychiatric injury to another.153 However, it needs to be borne in mind that even if the plaintiff satisfies the requirements of s 30, no duty of care is owed unless he or she satisfies the test set out in s 32. This point is perhaps not as apparent as it should be because the courts below refrained from deciding the duty issue.154 [13.410] The High Court emphasised that the limitation in s 30 only applied to a subset of pure mental harm cases.155 This is made clear by s 30(1), according to which the section applies to the liability of the defendant for pure mental harm to the plaintiff arising wholly or partly from mental or nervous shock156 in connection with a third person (the victim) being killed, injured or put in peril by the act or omission of the defendant.157 The court noted that all parties, both at trial and in the New South Wales Court of Appeal, had assumed that the claims of each 151

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [53] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 152

It seemed likely that the New South Wales Court of Appeal’s decision in Sheehan v State Rail Authority (NSW) (2009) Aust Torts Rep 82-028 would have had the same effect: see CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, holding that first instance judges should follow a decision of the intermediate appellate court of another State on issues of common law unless it was thought “plainly wrong”. 153

This and other aspects of the decision have been criticised: see D Mendelson, A Torre and M D’Rosario, “Economic Impact of Wicks v State Rail Authority (NSW)” (2010) 18 JLM 221 at 221–230.

154

For the High Court’s view of the relationship between ss 30 and 32, and between s 32 and duty of care at common law, see [2.470].

155

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [29], [31] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 156

Which has a meaning different from “sudden shock”, and may be understood as referring to a consequence, whereas “sudden shock” may be understood as referring to an event or cause: Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 157 Garling J in McKenna v Hunter & New England Health District (2013) Aust Torts Rep 82-158 at [204]–[205] emphasised that the phrase “killed, injured or put in peril” referred

[13.430]

13 Statutory Extensions and Restrictions

523

appellant were to be characterised in this way. However, the judgment implies that this was not the only possible characterisation. In Alcock v Chief Constable of South Yorkshire Police,158 Lord Oliver of Aylmerton exposed the difference between plaintiffs who are involved as participants (often referred to as primary victims) and those who are “no more than the passive and unwilling witness of injury caused to others” (secondary victims). His Lordship placed rescuers in the former class, and so Wicks v State Rail Authority (NSW)159 could possibly have been analysed as one not falling within s 30. The same might apply to other primary victim situations, such as employer–employee cases and other situations where there is some sort of prior relationship between defendant and plaintiff. [13.420] Some evidence of the limitations that s 30(1) places on the scope of s 30(2) is provided by Petrovski v Serco Sodexo Defence Services Pty Ltd.160 The plaintiff, a driver employed by Serco, was performing duties under a contract with the Australian Defence Force (ADF) that required him to drive a group of cadets to a location where they were suddenly confronted with an apparent massacre and had to carry out a rescue operation. In fact, the “massacre” was another group of cadets performing a role-play, but the plaintiff thought that it was all real: nobody had bothered to tell him that it was just an exercise. He developed a psychiatric illness as a result. The plaintiff’s base was in the Australian Capital Territory, but the incident occurred in New South Wales. It was agreed that the claim against Serco fell to be adjudicated by the law of the Territory, but the liability of the Commonwealth in respect of the claim against the ADF had to be determined by the law of New South Wales.161 The important difference between the two was that in New South Wales s 30 of the Civil Liability Act 2002 restricted liability to non-relatives unless the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril. However, Besanko J held that the plaintiff’s claim did not arise from mental or nervous shock in connection with another person being killed, injured or put in peril by the ADF. None of those participating in the exercise were killed, injured or put in peril by any act of the ADF. [13.430] A final issue is what is meant by a “victim” for the purposes of s 30. In Markisic v Department of Community Services (NSW)162 the plaintiff, who had brought his daughter from Macedonia to Australia, alleged wide-ranging causes of action — most of which were struck out — against many different government authorities following the return of the child to Macedonia at the request of the Macedonian authorities. One disjunctively to each of three separate events which may occur to the victim, and that it was necessary for the mental or nervous shock to arise in connection with the act or omission of the defendant by which the victim was killed, injured or put in peril. 158

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407.

159

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

160

Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242.

161

By virtue of s 64 of the Judiciary Act 1903 (Cth).

162

Markisic v Department of Community Services (NSW) [2005] NSWSC 1373.

524

Part III: Liability for Mental Harm

[13.440]

claim was for psychiatric injury, allegedly suffered when he heard over the telephone that the child had been taken away, or when he arrived home and did not find her there. The defendant submitted that the plaintiff was not a “victim” either at common law or within the meaning of the New South Wales legislation. The court allowed the nervous shock claim to proceed, but doubted whether the child was a victim in the sense of being injured or put in peril by the act or omission of the defendant.163

Victoria [13.440] Section 73 of the Wrongs Act 1958 (Vic), is the same as the New South Wales provision,164 except for one crucial difference. It provides: (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless – (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) The plaintiff is or was in a close relationship with the victim.165

The difference, of course, is that instead of referring to “a close member of the family of the victim”, and defining the relatives who fall into this category, the Victorian legislation says simply that the plaintiff is excused from satisfying the witnessing requirement if he or she is or was in a close relationship with the victim. “Close relationship” is not defined, and as yet there is no authority on the meaning of this expression. Courts may perhaps interpret it as a reference to something like the “close ties of love and affection” required by English law under the test laid down in Alcock v Chief Constable of South Yorkshire Police,166 but there is in fact no reference to a family relationship as such, and it is possible that courts will read it more expansively as a reference to all kinds of relationships that give rise to a duty under the common law.167 It should be noted that the section includes persons who were in a close relationship with the victim at the time of the occurrence, even if that relationship has since ended.

Tasmania [13.450] Section 32 of the Civil Liability Act 2002 (Tas) is also modelled on the New South Wales provision, but again is different in one important respect. It provides: 163

Markisic v Department of Community Services (NSW) [2005] NSWSC 1373 at [150] per Smart AJ. 164

Apart from substituting “danger” for “peril”.

165

Wrongs Act 1958 (Vic), s 73.

166

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

167

See also D Butler, Damages for Psychiatric Injuries (Federation Press, Sydney, 2004), pp 128–129.

[13.470]

13 Statutory Extensions and Restrictions

525

(1) This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless – (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured, or (b) The plaintiff is a close member of the family of the victim.

Apart from minor drafting differences, the definition of “close member of the family”168 is identical to that in New South Wales. [13.460] As can be seen, the Tasmanian provision is wider than its counterparts in New South Wales and Victoria in one very important respect. Persons other than close members of the family (as defined) may recover damages for mental harm not only where they witness a person being killed, injured or put in peril but also where they witness the immediate aftermath of the victim being killed or injured, thus preserving at least some aspects of the common law aftermath doctrine. This is to be welcomed, though it is not easy to discern what reasons of policy make the case of an unrelated plaintiff present at the immediate aftermath worthy of compensation in Tasmania but not in New South Wales. [13.470] The Tasmanian case of Hanlon v Hanlon169 raises an interesting issue about the width of the “immediate aftermath” concept. The family had been staying at a shack near Arthurs Lake, and the plaintiff and her mother-in-law, expecting the imminent return of the boating party, were walking down to the lake when they met people who told them there were two little boys in the lake. A little later the plaintiff learnt that one of her sons was safe but that her husband and her other son were missing. She then had to endure the agony of waiting and not knowing their fate until eventually the bodies were recovered. It is probable that Mrs Hanlon would have come within the aftermath principle at common law, though as a result of the High Court decision in Tame v New South Wales170 it was not necessary to decide that issue. If s 32 of the Civil Liability Act 2002 (Tas) had been applicable,171 it would again not have been necessary to ask whether she satisfied the physical proximity requirement, because as a wife and mother she was of course a close member of the family of the victims. However, had she been unrelated to the victims, perhaps a family friend staying with them, it would have been necessary to explore the width of the “immediate aftermath” issue. It is to be hoped that when this issue arises, the courts will follow the approach of Australian courts prior to 2002, rather than the narrower view of aftermath that prevails in 168

Civil Liability Act 2002 (Tas), s 32(3).

169

Hanlon v Hanlon [2006] TASSC 1.

170

Tame v New South Wales (2002) 211 CLR 317.

171

The accident happened in 1999 and so the legislation did not apply.

526

Part III: Liability for Mental Harm

[13.480]

England. However, it may not be possible to go quite as far as the common law in all respects. The legislation refers to witnessing, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured. This presumably rules out the immediate aftermath at the hospital, an important extension of the aftermath principle at common law brought about by Jaensch v Coffey.172

South Australia [13.480] The legislative restriction in South Australia is different from all the rest. Section 53(1) of the Civil Liability Act 1936 (SA) provides: Damages may only be awarded for mental harm if the injured person (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse or child of a person killed, injured or endangered in the accident.173

[13.490] As compared with the other provisions, there are four important differences. First, the legislation provides for the case of the person who was physically injured in the accident, though this is an obvious example of consequential mental harm and occasions no special problems. Secondly, persons not related to the victim have to be present at the scene of the accident when the accident occurred,174 but are not specifically required to witness a person being killed, injured or put in peril.175 This means that South Australian courts will not have to apply some of the more controversial aspects of the decision in Wicks v State Rail Authority (NSW),176 namely those suggesting that in a rescue situation further injuries might be happening during the rescue process, that some people may be suffering psychiatric injuries, and that even if it is not possible to draw either of these inferences some victims remained in peril. Thirdly, the class of close relatives is differently defined, being restricted to parents, spouses, domestic partners and children. “Parent” is defined to include a father, mother, grandmother, grandfather, step-father and step-mother, and there is an equivalent definition of “child”.177 As compared with New South Wales and Tasmania, grandparents are included but siblings are excluded. Fourthly, in South Australia there is no equivalent of s 30(1) of the Civil Liability Act 2002 (NSW) limiting the scope of the provision to secondary victim situations. It should also be 172

Jaensch v Coffey (1984) 155 CLR 549: see [2.80], [10.100]–[10.110].

173

Civil Liability Act 1936 (SA), s 53(1). “Endangered” in s 53(1) means the same as “put in peril” in s 33: Philcox v King [2013] SADC 60 at [29] per Bampton DCJ.

174

The High Court in King v Philcox (2015) 89 ALJR 582 at [19] noted the significance of the absence of any reference to “aftermath”.

175

D Butler, Damages for Psychiatric Injuries (Federation Press, Sydney, 2004), p 128 suggested that being “present at the scene” seems potentially wider than “witnessing”.

176

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

177

Civil Liability Act 1936 (SA), s 3(1).

[13.500]

13 Statutory Extensions and Restrictions

527

noted that the South Australian provision refers to the “accident”, which “means an incident out of which personal injury arises and includes a motor accident”.178 [13.500] The second and third of these issues arose for review in King v Philcox,179 now the leading case on the interpretation of s 53(1). Scott Philcox, the brother of the plaintiff, was a passenger in a car involved in a collision late one afternoon in April 2005, sustaining fatal injuries. Ryan Philcox went through or turned left at the intersection where the accident took place five times later that day, observing the accident on each occasion (except the last, by which time the scene had been cleared) but without any knowledge that his brother was a victim. He only learnt of his brother’s death late that evening. He claimed damages for psychiatric illness that he alleged was caused by being present at the scene of the accident when the accident occurred. It will be noted that the limitations of s 53 made it necessary for the plaintiff to state his case in this form, siblings being excluded from the class of relatives listed in s 53(1). The defendant argued that the plaintiff was not present when the accident occurred, as required by the legislation, and that there was no causal link between what he saw at the scene and his injuries, which were caused by news of his brother’s death. The trial judge, Bampton DCJ,180 followed the approach endorsed by the High Court in Wicks v State Rail Authority (NSW)181 of first considering whether the defendant owed the plaintiff a duty of care. She considered the circumstances set out in s 33(2), which included whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril. This circumstance was not present: if the expression “when the accident occurred” included the period of recovery and rescue following the accident, the plaintiff had passed through the scene at that time, but this was not sufficient for him to be present and witness, at the scene, his brother being killed, injured or put in peril.182 However, given that sudden shock was satisfied, and that the victim was the plaintiff’s brother, she concluded that there was a duty of care under s 33(1).183 However, it was also necessary to satisfy one of the two alternative conditions in s 53(1), and this the plaintiff was unable to do. Brothers not being within the category of relatives identified by s 53(1)(b), the plaintiff had to show that he was present at the scene when the accident occurred. Since she had found that the plaintiff did not witness, at the scene, his brother being killed, injured or put in peril, he did not satisfy the presence requirement.184 Judge Bampton added that even if 178

Civil Liability Act 1936 (SA), s 3(1), which also defines a “motor accident” as “an incident in which personal injury is caused by or arises out of the use of a motor vehicle”.

179

King v Philcox (2015) 89 ALJR 582.

180

Philcox v King [2013] SADC 60.

181

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

182

Philcox v King [2013] SADC 60 at [83].

183

Philcox v King [2013] SADC 60 at [92].

184

Philcox v King [2013] SADC 60 at [96].

528

Part III: Liability for Mental Harm

[13.510]

this was incorrect, she found no causal link between what he saw and his injuries, which were caused by later receiving news of his brother’s death.185 [13.510] The plaintiff appealed to the Full Court, which allowed the appeal.186 The Full Court agreed that a duty of care existed, and also that the causation requirement was satisfied, holding that the trial judge had used a wrong test. However, the crucial issue was whether the appellant could bring himself within the terms of s 53(1). Gray J, who gave the leading judgment, emphasised that the facts constituting a road accident and its aftermath were not confined to the immediate point of impact, adopting the reasoning to this effect of the High Court in Wicks v State Rail Authority (NSW):187 it was sufficient if the injured person was present at some time during the succeeding events during which further injury might be occurring.188 Also important was the definition of “accident” as an incident out of which personal injury arises, and the definition of “motor accident” as one in which personal injury “is caused by or arises out of” the use of a motor vehicle.189 Sulan and Parker JJ endorsed these arguments, and Sulan J also referred to the earlier legislation in South Australia, s 35A of the Wrongs Act 1936, saying that it was not in dispute that under that provision the facts constituting a motor vehicle accident included the aftermath of the accident.190 Cases decided under the New South Wales motor accident legislation such as Hoinville-Wiggins v Connelly,191 which excluded the notion of aftermath, were distinguished on the ground that unlike s 35A, the New South Wales legislation contained no equivalent of the South Australian definition of “accident”. This definition was broad enough to encompass the events directly related to and following on from the actual impact.192 [13.520] The defendant then appealed to the High Court, arguing not only that the Full Court’s interpretation of s 53(1) was incorrect but also that both lower courts had been wrong in accepting that a duty of care existed. There was no further argument on the issue of causation. A five-judge High Court allowed the appeal.193 French CJ, Kiefel and Gageler JJ in a joint judgment were content to say briefly that the Full Court had not been shown to be in error in finding that a duty of care existed,194 and Keane J in a separate judgment endorsed this view 185

Philcox v King [2013] SADC 60 at [101].

186

Philcox v King (2014) 119 SASR 71.

187

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

188

Philcox v King (2014) 119 SASR 71 at [22]–[23].

189

Philcox v King (2014) 119 SASR 71 at [29].

190

Philcox v King (2014) 119 SASR 71 at [60], citing Pham v Lawson (1997) 68 SASR 124.

191

Hoinville-Wiggins v Connelly [1999] NSWCA 263: see [13.240].

192

Philcox v King (2014) 119 SASR 71 at [64]–[66].

193

King v Philcox (2015) 89 ALJR 582.

194

King v Philcox (2015) 89 ALJR 582 at [3].

[13.530]

13 Statutory Extensions and Restrictions

529

without elaboration.195 Nettle J was rather more positive in his verdict that the Full Court had been correct on this issue,196 arriving at this conclusion after a full consideration of the duty issue, both under s 33 of the Civil Liability Act 1936 (SA) and as a matter of common law (endorsing the approach adopted in Wicks v State Rail Authority (NSW)).197 [13.530] However, this was really a side issue. The case turned on whether Ryan Philcox could be said to have been present at the scene of the accident when the accident occurred, as required by s 53(1). The High Court unanimously rejected the approach adopted by the Full Court. All the judgments dealt with this issue at length. French CJ, Kiefel and Gageler JJ identified three main lines of reasoning, and Keane and Nettle JJ supported these approaches, adding particular points. First, the text, read in the light of its legislative ancestry (and noting the clear difference between the Ipp Report recommendations and the legislation as enacted), did not support the extended notion of presence contended for by the respondent. He had driven past the scene of the accident several times: even assuming he could be taken to be present at the scene of the accident, he was not present when the accident occurred.198 Secondly, the court was of the view that the decision in Hoinville-Wiggins v Connelly199 was directly in point, in view of the similarities between s 53(1) and the legislation being considered in that case, and rejected the Full Court’s contention that the definition of “accident” in the South Australian legislation enabled the case to be distinguished. The High Court was not prepared to accept that the use of the word “incident” in the definition was broad enough to encompass events directly related to and following on from the actual impact: “incident” simply meant a distinct occurrence or event.200 Thirdly, the attempt to apply the reasoning in Wicks v State Rail Authority (NSW)201 to the South Australian legislation was rejected: looking at ss 30 and 32 of the Civil Liability Act 2002 (NSW) and comparing the differences in language between ss 33 and 53 of the South Australian Act,202 “there was … a degree of symmetry within the New

195

King v Philcox (2015) 89 ALJR 582 at [29].

196

King v Philcox (2015) 89 ALJR 582 at [103].

197

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60: see [2.470].

198

King v Philcox (2015) 89 ALJR 582 at [21] per French CJ, Kiefel and Gageler JJ, at [120] per Nettle J; see also at [37], [47] per Keane J.

199

Hoinville-Wiggins v Connelly [1999] NSWCA 263.

200

King v Philcox (2015) 89 ALJR 582 at [22]–[24] per French CJ, Kiefel and Gageler JJ, at [34]–[36] per Keane J, at [106]–[112] per Nettle J.

201 202

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

Explicable because of their different histories: s 33 adopted the precedent set by s 32 of the Civil Liability Act 2002 (NSW), whereas s 53 was based on s 35A of the Wrongs Act 1936 (SA).

530

Part III: Liability for Mental Harm

[13.540]

South Wales statute that is missing from the South Australian Act”.203 Keane J also emphasised the mental element in being “present”.204 [13.540] The High Court is to be commended for its approach to the interpretation of s 53(1). While recognising that Ryan Philcox was much affected by being so close to the scene of the accident in which his brother Scott was fatally injured, the meaning of the statute, which required him to have been present at the scene of the accident when the accident occurred, cannot be artificially extended, contrary to the ordinary meaning of these words, to provide him with a remedy. In many ways, the South Australian wording, requiring presence at the time the accident occurs, is to be preferred to the complications of the witnessing requirement found in New South Wales, Victoria and Tasmania. If the South Australian legislation had followed New South Wales and Tasmania in including siblings, there would have been no need to try and extend the notion of being present when the accident occurred. King v Philcox205 in effect re-enacts the problems of the aftermath doctrine at common law. If the most important indicator of the likelihood of suffering psychiatric injury consequent on the death or of injury to another is the closeness of the relationship, physical proximity requirements are usually unsatisfactory and may be considered unnecessary. [13.550] Though the point was not in issue in King v Philcox,206 it is necessary to emphasise that South Australia has no equivalent of the provisions in the other three jurisdictions that limit the restriction on damages recovery to secondary victim cases. In theory, therefore, s 53(1) applies to all sorts of pure mental harm cases, secondary or primary. Secondary victim situations apart, perhaps the most important case in which s 53(1) affects the ability to recover damages for mental harm is that of rescuers, for example the situation in Wicks v State Rail Authority (NSW)207 itself. It seems doubtful whether the police officers in this case could satisfy the requirements of s 53(1). It could surely not be said that they were present at the scene of the accident when the accident occurred. Nor could it be said that the accident was still happening as they went about their work of rescue, though the High Court in Wicks was prepared to accept that the officers witnessed persons who were still being injured or put in peril. Other cases that may be affected include those involving involuntary participants, where in some situations the courts may have problems establishing that the plaintiff was present when the accident occurred,208 and cases such as Mount Isa Mines Ltd v Pusey209 where 203

King v Philcox (2015) 89 ALJR 582 at [25] per French CJ, Kiefel and Gageler JJ, at [46] per Keane J, at [115] per Nettle J.

204

King v Philcox (2015) 89 ALJR 582 at [48].

205

King v Philcox (2015) 89 ALJR 582.

206

King v Philcox (2015) 89 ALJR 582.

207

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

208

Eg Hunter v British Coal Corporation [1999] QB 140: see [26.180].

[13.580]

13 Statutory Extensions and Restrictions

531

Mr Pusey only arrived on the scene after the accident had happened, but Mount Isa Mines owed him a duty as their employee. [13.560] It should also be noted that although s 53(1) is contained in Pt 8 of the Civil Liability Act 1936 which is stated to apply when damages are claimed for personal injury arising from an accident,210 “accident” is defined simply as an incident out of which personal injury arises.211 There are cases in which what happens could not be described as an accident, in the ordinary sense of that word, but which are presumably affected by s 53(1) because of the way “accident” is defined. These include cases of medical negligence (where the plaintiff would not ordinarily be present when the “accident” occurs), negligence in the course of professional and other relationships, the negligent conveying of false news (where it seems artificial to require the plaintiff to be present at the scene of “the accident” when the accident occurred), and cases where psychiatric injury is caused by fear and worry of future consequences following exposure to disease. In New South Wales and the other two jurisdictions, provisions such as s 30(1) of the Civil Liability Act 2002 (NSW) should ensure that such cases are not affected by the legislative restrictions on recovery of damages, but it appears that the same cannot be said in South Australia.

SOME COMPARISONS Louisiana [13.570] The provisions reviewed at [13.290]–[13.560] show the problems of legislating to limit the boundaries of recovery for mental harm by reference to physical proximity to the accident and particular categories of relatives. One common law jurisdiction that has attempted to legislate along such lines is Louisiana, and the issues arising out of the legislation in that State provide an interesting contrast. It is not inconceivable that some of them could arise in an Australian context. [13.580] As noted in Chapter 3, the modernisation of emotional distress law in the United States has proceeded at different speeds in different States.212 Louisiana was one of the last jurisdictions to repudiate older theories and recognise the principle of bystander recovery. It was only in 1990, in Lejeune v Rayne Branch Hospital,213 that the Supreme Court in that State overruled 135 years of jurisprudence214 and allowed a person to 209

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

210

Civil Liability Act 1936 (SA), s 51.

211

Civil Liability Act 1936 (SA), s 3(1).

212

See [3.760]–[3.790].

213

Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990).

214

Black v Carrollton Railroad Co 10 La Ann 33 (1855) (plaintiff denied recovery for mental injuries sustained on witnessing his young son being injured by train).

532

Part III: Liability for Mental Harm

[13.590]

recover for mental anguish occasioned by injury to another.215 In Lejeune, the plaintiff went to hospital to visit her husband, who had been rendered comatose by a severe stroke, and found that he had been bitten by rats. She saw the marks of the bites and the blood that had not yet been cleaned up, and recovered damages for the mental distress she suffered as a result of this experience. As might be expected, the court imposed careful limitations on this new right of recovery: the claimant had to view the accident, or come on the scene soon afterwards; the mental anguish had to be reasonable, serious and foreseeable; and the claimant had to have a close relationship with the injured person. While the facts are somewhat unusual, from an Australian or English viewpoint this seems a tolerably obvious case of a close relative seeing the aftermath of an “accident”. However, it was the beginning of a period of rapid change in emotional distress law in Louisiana. Within a year or so, some important limitations had been established. In Clomon v Monroe School Board,216 where a driver recovered damages for emotional distress suffered as the result of an accident in which her vehicle struck and killed a four-year-old boy who had just got off a special education school bus, the Louisiana courts recognised that participants in an accident were not subject to the restrictions imposed on bystanders, but were owed an independent duty, and in Guillory v Arceneaux217 recovery was allowed in a case where the wrongdoer was also the immediate victim.218 [13.590] Not long afterwards, the Louisiana legislature passed legislation to codify the principles of recovery for emotional distress. Louisiana Civil Code, Art 2315.6 provides that: A. The following persons who view an event causing injury to another person, or who come upon the scene of an event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of that other person’s injury: (1) The spouse, child or children, and grandchild or grandchildren of the injured person, or either the spouse, the child or children, or the grandchild or grandchildren of the injured person; (2) The father and mother of the injured person, or either of them; (3) The brothers and sisters of the injured person, or any of them; (4) The grandfather and grandmother of the injured person, or either of them. B. To recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating and foreseeable. Damages 215

“Louisiana, the ‘Rip Van Wrinkle [sic] of tort law’ has emerged out of the Stone Age into the twentieth century”: TA Tureau, “Bystander Recovery for Negligent Infliction of Emotional Distress: Louisiana Enters the Twentieth Century” (1992) 37 Loyola L Rev 1005 at 1025.

216

Clomon v Monroe School Board 572 So 2d 571 (La 1990).

217

Guillory v Arceneaux 580 So 2d 990 (La 1991).

218

See [15.290].

[13.610]

13 Statutory Extensions and Restrictions

533

suffered as a result of mental anguish or emotional distress for injury to another shall be recovered only in accordance with this Article.

[13.600] The case law demonstrates the effect of the statutory limitations on those who may recover: for example, claims by a stepmother219 and a friend220 have been rejected. The requirement of viewing the event causing the injury or coming upon the scene soon afterwards has ruled out recovery by a father who did not witness the accident but went to the hospital, and saw a videotape of the accident later on.221 One of the most interesting cases is Crockett v Cardona,222 where a bridegroom was involved in an accident as he was driving to his wedding. His bride, who was awaiting his arrival, suffered emotional distress when she heard what had happened. The court ruled that she could not recover for her emotional distress because it was not foreseeable that the risk of harm would extend to a prospective bride who was awaiting the arrival of the groom on their wedding day. Moreover, she was not one of the relatives listed in the statute. The decision can perhaps be regarded as justifiable on the ground that she was not present at the accident or its aftermath, given the limitations built into the statute, though the case demonstrates that such a limitation is just as irrational as the aftermath rule still relied on by some other common law jurisdictions. It seems absurd to suggest that a defendant who injures a bridegroom on his way to his wedding cannot be expected to foresee that this might cause emotional distress to the woman he is about to marry. To say that the bride was not within the statutory list of relatives entitled to recover simply affirms the undesirability of trying to regulate liability by means of a category approach of this kind. Had the accident happened an hour or two later, she would have been a wife and within the statutory categories. [13.610] It seems clear that the purpose of this legislation was to codify the Lejeune v Rayne Branch Hospital223 holding and place limits on the potential for further expansion by case law development. It is not clear whether the intention was to overrule Clomon Monroe School Board224 and Guillory v Arceneaux,225 but later case law suggests that the participant 219

Daigrepont v Louisiana State Racing Commission 663 So 2d 840 (La 1994). In Williams v Mumphrey 668 So 2d 1274 (La 1996) it was held that the statute did not violate first cousins’ constitutional right to equal protection. 220

Smith v Trattler 681 So 2d 961 (La 1996).

221

Daigrepont v Louisiana State Racing Commission 663 So 2d 840 (La 1994). See also Labouisse v Orleans Parish School Board 757 So 2d 866 (La 2000); Ruttley v Lee 761 So 2d 777 (La 2000); LeBlanc v Louque 798 So 2d 216 (La 2001). Note also Cox v Moore 805 So 2d 277 (La 2001) (passenger could not be awarded damages for mental suffering due to witnessing death of sister in motor vehicle accident where he had no recollection of the incident).

222

Crockett v Cardona 713 So 2d 802 (La 1998).

223

Lejeune v Rayne Branch Hospital 556 So 2d 559 (La 1990).

224

Clomon v Monroe School Board 572 So 2d 571 (La 1990).

225

Guillory v Arceneaux 580 So 2d 990 (La 1991): see CJ Dupuy, “Negligent Infliction of Emotional Distress: The Effect of Article 2315.6” (1992) 53 La L Rev 555.

534

Part III: Liability for Mental Harm

[13.620]

doctrine has survived: in Morris v Maryland Casualty Co,226 a claim by the engineer of a train involved in a collision with a car, a Louisiana Court of Appeal held that the plaintiff was a participant rather than a bystander and therefore Art 2315.6 was inapplicable. This issue apart, the legislation has undoubtedly imposed some important limitations. It might be thought inappropriate to attempt to regulate all bystander situations according to rules developed with ordinary accident cases in mind, but it appears that this is what the legislation does.227 In one case the court’s reason for rejecting the plaintiff’s claim for mental anguish occasioned by her teenage daughter’s encounter with a lesbian was that she had not viewed the occurrence or come on the scene soon afterwards.228 [13.620] Statutory provisions such as this are obviously tailor-made for the particular conditions prevailing in the jurisdiction in question, so direct comparisons with equivalent Australian provisions need to be undertaken cautiously. But it is suggested that provisions such as this often produce invidious distinctions that are less likely to occur if the matter is left to the common law.

Ontario [13.630] Another interesting comparison is provided by Ontario, where common law recovery has been limited by the no-fault motor accident compensation scheme. Section 266 of the Insurance Act 1990 (ONT) provides that in respect of loss or damage arising directly or indirectly from the use or operation of an automobile, none of the owner, the occupants or any person present at the incident are liable in an action for loss or damage for bodily injury arising from such use or operation unless as a result of such use or operation the injured person has died or has sustained permanent serious disfigurement or permanent serious impairment of an important bodily function caused by continuing injury that is physical in nature. This section has ruled out claims for psychiatric injury to secondary victims in Ontario cases where a father on his way home from work came on the scene of a car accident involving two of his daughters, to which the mother and the other daughter had also been summoned;229 where the mother of an accident victim went to hospital and saw her daughter in a coma;230 and where another mother went to hospital to view her daughter’s body.231 In the last case, it is likely that the 226

Morris v Maryland Casualty Co 657 So 2d 198 (La 1995).

227

See Trahan v McManus 689 So 2d 696 (La 1997). Note Kipps v Caillier 197 F 3d 765 (1999) (wife and son of football coach who was fired when son chose to play at another university could not recover emotional distress damages under Louisiana statute when neither were present at the scene of termination, but were merely informed subsequently).

228

Landreneau v Fruge 676 So 2d 701 (La 1996).

229

Kemppainen (Litigation guardian of) v Winter (1997) 143 DLR (4th) 760.

230

Khaze v Routledge [1996] OJ No 1855.

231

Macartney v Warner (2000) 183 DLR (4th) 345.

[13.630]

13 Statutory Extensions and Restrictions

535

plaintiff would not have been within the aftermath, and so there would have been no recovery irrespective of the statute.

Chapter 14

Secondary Victims: Variations on the Traditional Theme [14.10] INTRODUCTION ............................................................................................................. 537 [14.30] ANXIETY FOR THE TORTFEASOR’S POSITION ..................................................... 537 [14.40] REALISATION OF WHAT MAY HAVE HAPPENED TO THE PLAINTIFF ........ 538 [14.60] IMAGINED HARM TO A THIRD PARTY ................................................................... 540 [14.90] OTHER POSSIBLE SITUATIONS .................................................................................. 542

INTRODUCTION [14.10] As the preceding chapters show, the standard secondary victim case involves a defendant who negligently injures another, and a third person who has a close relationship with the injured person and directly perceives the accident or its aftermath (although in Australia and one or two other jurisdictions the direct perception requirement has been relaxed) and as a result suffers psychiatric injury. There is usually no pre-existing relationship between the defendant and either the primary or the secondary victim, although as Chapter 22 will show, this is not always the case. [14.20] However, there are some cases where, although the dramatis personae involves the same three actors, the reason why the secondary victim suffers mental harm is different. For example, the defendant may negligently kill, injure or endanger a third party, and the plaintiff’s shock may stem not from fear for the safety of that third party, but from the realisation of what the defendant has or might have done, or that if the circumstances had been different the plaintiff himself or herself might have been in that third party’s position. Additionally, psychiatric injury may occur as a result of the mistaken belief that a third party has been harmed, and may be no less impacting than the mental effects of accidents that have in fact occurred. These and even more unusual situations have occurred in the case law and are considered in turn at [14.30]–[14.110].

ANXIETY FOR THE TORTFEASOR’S POSITION [14.30] Are the prospects of recovery diminished where a person suffers psychiatric injury due only to a concern about what the tortfeasor has or might have done because of his or her failure to take care, rather than

538

Part III: Liability for Mental Harm

[14.40]

concern for a third party victim of that failure? Normally anxiety of this nature is absent because the parties to the action are unknown to each other, but it is feasible that a claimant may suffer some sort of mental injury through worrying about a defendant, particularly if they are related. Apprehension-induced mental injury of this sort appears to have been sustained by the plaintiff in Stergiou v Stergiou,1 a decision of the Supreme Court of the Australian Capital Territory. The plaintiff was a rear seat passenger in a car driven by her husband, the defendant, which, due to his negligence, struck a cyclist at an intersection. The accident was very minor in nature and left the cyclist with no significant physical injuries. However, the plaintiff claimed that at the material time she thought the cyclist had been killed, and suffered nervous shock due to anxiety that her husband may have been responsible for someone’s death.2 On the facts the wife failed in her claim, because she was unable to establish that she had suffered a recognisable psychiatric illness and because the anxiety state she suffered was not a foreseeable consequence of a minor accident of this kind. However, Gallop J did not rule out the possibility that liability could arise in this situation. What if the plaintiff’s concern for the tortfeasor extends to a fear of the unpleasant consequences that might befall him or her as a result of his or her carelessness? A wife may, for example, worry not only that her husband has killed another, but that he may lose his licence, have to stand trial, be fined and/or imprisoned, and that such ordeals will place enormous financial burdens on them both. It is unclear from the facts in Stergiou v Stergiou whether the plaintiff’s “fright and anxiety” that her husband might have killed the cyclist included fear and worry of the consequences likely to follow, but there seems no reason why a line ought to be drawn against recovery in these circumstances. Once it is appreciated that the plaintiff is claiming compensation for recognisable psychiatric illness, then provided the foreseeability requirement is satisfied it should be evident that the nature of the particular injury-inducing phenomenon is unimportant.

REALISATION OF WHAT MAY HAVE HAPPENED TO THE PLAINTIFF [14.40] Another potential situation that can arise is one where the plaintiff suffers shock and resulting mental damage not from the perception of the death, injury or imperilment of a loved one or of the plaintiff’s own injuries or peril, but from the realisation of what might have happened to him or her. This is the “lucky escape” or “close call” situation; the plaintiff suffers shock not from the perception of death or injury to another but from the realisation of his or her own good fortune 1 2

Stergiou v Stergiou (1987) Aust Torts Rep 80-082.

It is not absolutely clear from the report whether the wife was worried that a third party may have been killed or solely by the fact that her husband may have been responsible. However, it appears most likely that the latter consideration was the source of her concern.

[14.50]

14 Secondary Victims: Variations on the Traditional Theme

539

and what might have been. The unusual case of Wilks v Haines3 reveals just this type of injury-producing stimulus. The plaintiff was a dormitory supervisor in a school for handicapped children. Although rostered for night duty on a particular evening she organised a switch with a colleague so that she was not on duty that night. During the early hours of her free evening a crazed intruder broke in and murdered two of the three supervisors on duty and injured the third. When told of the attack the plaintiff claimed that she suffered nervous shock, not because of what happened to her workmates, but as a result of it having dawned upon her that had she not altered her schedule she would have suffered a similar fate. Although the proceedings were ultimately struck out some interesting comments were made by Loveday J. Alluding to the unusual nature of the action, his Honour opined that, as a matter of policy, the “proper stopping place” for recovery for nervous shock was short of the circumstances in this case, convinced that appellate courts would be of the same view. Significantly, the nature of the policy dictating this result was not articulated. It is contended that prevailing social circumstances and public attitudes do not suggest that the line be drawn here. In other psychiatric injury contexts, Australian courts have broken free of the shackles of traditionalism, as the High Court’s decision in Tame v New South Wales4 demonstrates. The same should be possible here. What difference does it make whether the catalyst for the development of psychological disorders was the shock of learning of the fate of others or the realisation of one’s own lucky escape from similar misfortune? Loveday J recognised as much by refusing to regard the “it could have been me” type of shock as an absolute bar to recovery, rather viewing it as adding “another dimension to the application of the foreseeability and/or the proximity test”.5 [14.50] “Lucky escape” cases are not confined to situations like Wilks v Haines6 where psychiatric injury stems from the realisation of what might have happened had the plaintiff been in someone else’s position. There are two-party cases where the cause of the harm is the narrowness of the escape from death or serious injury. This was an important element in Queensland v Keeys,7 where a police officer was in a location that his superiors had failed to inform him was dangerous, and was shot at while in a police vehicle. He escaped serious injury only because the bullet struck his police badge, and the realisation of how close he had come to death was a primary cause of the post-traumatic stress disorder that prevented him from continuing to serve in the police force. Brown v Commonwealth,8 one of the many cases arising out of the Voyager disaster in which members of the crew of HMAS Melbourne sought an extension of 3

Wilks v Haines (1991) Aust Torts Rep 81-078.

4

Tame v New South Wales (2002) 211 CLR 317.

5

Wilks v Haines (1991) Aust Torts Rep 81-078 at 68,657.

6

Wilks v Haines (1991) Aust Torts Rep 81-078.

7

Queensland v Keeys [1998] 2 Qd R 36.

8

Brown v Commonwealth [2000] NSWSC 90.

540

Part III: Liability for Mental Harm

[14.60]

time to sue for psychiatric injury,9 is similar: the plaintiff was on deck at the moment of impact, and it appears that the primary cause of his psychiatric injury was that when he inspected the scarring made by the collision the next day he realised that he would have been killed had he not moved moments before the impact.

IMAGINED HARM TO A THIRD PARTY [14.60] In most psychiatric injury cases, there actually was an accident to another that affected the plaintiff’s mind. But psychiatric harm is dependent upon what the sufferer believes has happened, not what has in fact taken place. Shock victims who genuinely and honestly believe that a close relative has been killed or injured another are to all intents and purposes in the same position as if the imagined facts were true. King v Phillips10 was a secondary victim case of this kind. The plaintiff mother heard her child scream and looked out of a window to see his tricycle disappearing beneath the wheels of the defendant’s taxi. Thinking that he too had been crushed by the taxi, she ran out into the street, to find that happily she was mistaken. However, she suffered nervous shock as a result of the incident. The fact that she had been mistaken and no accident had taken place was not seen as a barrier to an award of damages. Another illustration is the New Zealand case of Queenstown Lakes District Council v Palmer,11 where the plaintiff suffered psychiatric injury when he witnessed his wife being swept away and drowned in a white-water rafting accident. Panckhurst J said that if Mrs Palmer had survived and not suffered any personal injury, but Mr Palmer had still suffered nervous shock at the sight of his wife being thrown into the turbulent water, his cause of action would remain intact.12 The same is true of cases such as Dooley v Cammell Laird & Co Ltd13 (not now seen as a secondary victim case, but explicable on a different principle14) where a crane driver suffered shock when the rope snapped when he was lowering heavy containers into a ship’s hold and he thought he had killed or injured his workmates. [14.70] A North Carolina court was confronted with this issue in Williamson v Bennett.15 The plaintiff’s car collided with the defendant’s car. The plaintiff mistook the sound of the collision as indicating that she had 9

See [24.140].

10

King v Phillips [1953] 1 QB 429.

11

Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549.

12

Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 at 554.

13

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

14

See [26.70]–[26.100]. Galt v British Railways Board (1983) 133 New LJ 870 is a similar case.

15

Williamson v Bennett 112 SE 2d 48 (NC 1960). See Comment, “Negligence and the Infliction of Emotional Harm: A Reappraisal of the Nervous Shock Cases” (1968) 35 U Chi L Rev 512.

[14.80]

14 Secondary Victims: Variations on the Traditional Theme

541

run over a small child on a bicycle,16 an assumption no doubt attributable to a similar accident involving her brother-in-law a month earlier being in the forefront of her mind. Her mental condition deteriorated markedly as a result. In what appears to be a strained application of the then-prevalent zone of danger rule,17 the court held that damages could not be awarded for her psychic conversion reaction because it was caused by concern for the safety of another.18 Nothing turned on the fact that the source of the complaint had been imaginary. Even supposing that the zone of danger rule is, or once was, a sound approach to cases where there actually was an accident perceived by a bystander, to apply it to the scenario under examination seems misguided. This issue aside, and assuming that any problems presented by special susceptibility to mental harm could have been overcome, there should have been no barriers to her suit. Provided that mistaken belief can be proved to be genuine and honestly held, and causative of psychiatric injury, these types of case should be treated the same as any other. [14.80] Petrovski v Serco Sodexo Defence Services Pty Ltd19 is the most recent example of a case that falls into this category; it also shows that the Civil Liability Acts are capable of accommodating situations such as this. The plaintiff was employed by Serco as a driver; Serco provided services under a contract with the Australian Defence Force (ADF), for which the Commonwealth was responsible. In February 2008 the ADF carried out “Exercise Stretton”. The plaintiff drove a group of cadets to a “picnic area”. Returning with a second group of cadets, he witnessed what appeared to be a massacre. In fact the first group of cadets were role-playing: the second group of cadets were being tested in their ability to carry out rescue operations. However, the plaintiff thought that it was the real thing, and the shock of what he saw caused him to develop a recognised psychiatric illness as a result of which he was unable to continue in employment. He claimed damages for mental harm against Serco and the Commonwealth. The incident occurred in New South Wales, though Serco’s base was in the Australian Capital Territory. It was agreed that Australian Capital Territory law was applicable to the claim 16

Contrast Stergiou v Stergiou (1987) Aust Torts Rep 80-082 where the wife made a mistake as to the severity of the harm inflicted by her husband on a cyclist, as distinct from whether it had happened. Note also the slightly different situation that arose in English v Cory Sand & Ballast Co (unreported, QBD, 21 March 1985) where a driver whose dumper truck fell into a quarry mistakenly thought his passenger was dead and developed a permanent reactive depression. He recovered damages. Unlike Mrs Stergiou, he also suffered personal injury in the accident.

17

However, see the reinterpretation of the decision in the later case of Johnson v Ruark Obstetrics and Gynecology Associates PA 395 SE 2d 85 (NC 1990). 18

See the similar reasoning in Kaufman v Miller 414 SW 2d 164 (Tex 1967) where evidence was led that the plaintiff’s conversion reaction neurosis suffered in a minor collision was linked to a very serious accident two years beforehand when his truck had jack-knifed and started a fire that killed three people. Realising that he had been unable to avoid another accident, he became neurotic.

19

Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242.

542

Part III: Liability for Mental Harm

[14.90]

against Serco, but the claim against the Commonwealth was subject to New South Wales law, applicable as a result of s 64 of the Judiciary Act 2003 (Cth). This was an important difference, because the limitation on liability for mental harm in s 30 of the Civil Liability Act 2002 (NSW)20 had no equivalent in the Australian Capital Territory. Besanko J found that Serco and the Commonwealth were both liable. Despite defence arguments to the contrary, his Honour held that it was more probable than not that the plaintiff had not been given an adequate and proper warning. The simulated accident scene must have looked particularly graphic, and it was foreseeable that the circumstances might cause a person of normal fortitude to suffer a recognised psychiatric illness. The plaintiff had established that each defendant was in breach of a duty owed to him. The Commonwealth submitted that s 30 precluded the plaintiff from recovering damages against it, but Besanko J refused to accept this submission. Section 30 was applicable only to the liability of a defendant for pure mental harm to a plaintiff arising wholly or partly from mental or nervous shock in connection with a third person being killed, injured or put in peril by the act or omission of the defendant, and this was not the case here: none of those participating in the exercise were killed, injured or put in peril by any act on the part of the ADF. The plaintiff’s mental harm resulted from the fact that, without warning, he had been suddenly placed in this confronting situation.

OTHER POSSIBLE SITUATIONS [14.90] The circumstances discussed at [14.30]–[14.80] do not exhaust the possible instances where psychiatric injury may be inflicted through tortious conduct. The instances reviewed under the first and second headings, like the standard bystander case, involve the reaction of an observer to an injury inflicted on another by the tortfeasor. It is, however, perfectly possible to have a situation where there is another link in the chain of causation. For example, one bystander may suffer psychiatric injury at the sight of the collapse of another bystander as a result of viewing the initial accident. The Pennsylvania case of Scarf v Koltof21 comes very close to this situation. A husband was struck by a negligent motorist as he crossed the street. His wife, who was nearby, but not in any personal danger, saw the accident and suffered a heart attack from which she died two months later. The husband sued for damages not only for his own injuries but also for the fatal injury to his wife, bringing both a wrongful death action and a claim on behalf of her estate. The Pennsylvania Superior Court used the zone of danger limitation to deny liability for the wife’s injuries, but proceeded to try the husband’s own action. So far as can be ascertained from the report, the husband’s claim did not include any allegation of shock damage. But what if, in a scene reminiscent of the fifth act of Romeo and Juliet, he had recovered 20

See [13.300].

21

Scarf v Koltof 363 A 2d 1276 (Pa 1976).

[14.110]

14 Secondary Victims: Variations on the Traditional Theme

543

consciousness only to see his wife in a state of collapse, and suffered nervous injury himself in consequence? Such a situation should not be beyond the limits of foreseeability. [14.100] An Australian case in which the fact situation was very close to that postulated in [14.90] is Awad v Bebnowski,22 a decision of the District Court of South Australia. A family received news by telephone that a daughter had been badly injured in an accident, and her father and brother set off for the hospital where she had been taken. Her mother was too badly affected by the news to go with them, and remained at home in the care of her other daughters. Before the father and brother had arrived at the hospital, there was another telephone call from the hospital, asking for the mother, and she was told that her daughter had died. This caused the mother to suffer a heart attack, from which she also died. The father sued, inter alia, for psychiatric injury caused by the death of his wife. The case was complicated by the fact that informing a family of a death by phone was a breach of hospital protocol, and the doctor and the hospital were sued along with the negligent driver. However, it was held that the first defendant was not liable for psychiatric injury arising from the death of the mother because under s 35A of the Wrongs Act 1936 (SA)23 liability was limited to parents, spouses or children of a person killed, injured or endangered in the accident, and the mother had not been involved in the accident in any way. What the position would have been at common law is an interesting question: the judge considered causation and remoteness issues and came to the conclusion that they were satisfied. [14.110] If A suffers psychiatric injury due to a tortfeasor’s negligence and commits suicide as a result, and B witnesses A’s suicide and suffers psychiatric injury as a result, can A recover against the tortfeasor? This was the complex scenario presented by another Australian case, AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales.24 A husband was injured in an accident at work, and as a result developed depression and an adjustment disorder. Four years after the accident he commenced a claim for damages, but because the limitation period had expired he had to apply for an extension of time. He suffered additional stress through having to endure a gruelling cross-examination, and eight days later committed suicide. His wife heard him remove his gun from the gun locker, followed him, heard a shot and then came upon his dead body. This experience caused her in turn to suffer a psychiatric injury. She brought an action against her husband’s employers for that injury, and was awarded damages. AMP as the defendant’s insurer was ordered to indemnify the defendant. Both the defendant and the insurer appealed against the first instance findings. The New South Wales Court of Appeal allowed the appeal, but on general negligence principles rather than 22

Awad v Bebnowski [2002] SADC 157.

23

See [13.200].

24

AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619.

544

Part III: Liability for Mental Harm

[14.110]

applying any specific policy limitation ruling out such complex situations. Spigelman CJ reached his decision on the ground that the suicide had broken the chain of causation. Heydon JA, who discussed the psychiatric injury issues in considerable detail, eventually ruled against the claimant on both causation and foreseeability grounds. In the following passage he emphasised the unusual nature of the case: It is a highly unusual case, because it depends on liability for mental trauma caused to the Plaintiff by reason of mental trauma caused to the Deceased. This background reveals the difficult nature of the enterprise which the Plaintiff undertook. … Liability for nervous shock depends on foreseeability of nervous shock. But it was not enough that it was foreseeable that if the Plaintiff came upon the Deceased just after the 27 February 1993 accident she might have been shocked. Just as in Mount Isa Mines Ltd v Pusey the question was “whether there was a real risk that a foreseeable accident such as occurred would cause a man in the powerhouse to suffer a nervous shock having lasting mental consequences” … so here the question is whether there was a real risk that a foreseeable accident such as occurred at the Deceased’s place of work on 27 February 1993 at a time when the Plaintiff was not there and was not in a position to perceive either the accident or its aftermath would cause the Plaintiff to suffer nervous shock. It is clear that the Defendant would not be liable for nervous shock suffered by the Plaintiff either on being told of the accident or on being told of the Deceased’s suicide: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407; Jaensch v Coffey (1984) 155 CLR 549 at 567; Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 at [105]-[110]. What is novel about the present case is that the Plaintiff’s nervous shock did not have a close temporal and geographical connection with the physical injury immediately resulting from the Defendant’s tort, or with the consequences of any depression arising as part of that physical injury. The Plaintiff’s nervous shock resulted from a physical injury suffered by the victim of the tort, but a self-inflicted one, and one occurring five years later by reason of a psychiatric illness arising in response to a stimulus which was quite different from the physical injury suffered by the victim of the tort, though the stimulus would not have happened but for the happening of that physical injury.25

Clearly, in these circumstances, the plaintiff could not recover. Even though the case predated the High Court’s decision in Tame v New South Wales26 that overruled the authorities quoted on the direct perception issue, it is unlikely that this would have made enough difference. But nothing in this case suggests that as a matter of policy B in the scenario outlined at the beginning of this paragraph could never recover against the tortfeasor, if in the circumstances it was decided that A’s psychiatric injury was foreseeable.

25

AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [139].

26

Tame v New South Wales (2002) 211 CLR 317.

Chapter 15

Where the Tortfeasor is the Primary Victim [15.10] JAENSCH V COFFEY AND THE EARLY AUSTRALIAN CASES .......................... 545 [15.100] THE AUSTRALIAN REAPPRAISAL .......................................................................... 551 [15.150] THE TRADITIONAL APPROACH AFFIRMED IN ENGLAND ........................... 555 [15.230] THE LAW ELSEWHERE ............................................................................................... 560 [15.230] Canada .............................................................................................................................. 560 [15.270] United States .................................................................................................................... 563 [15.320] CONCLUSION ................................................................................................................ 565

JAENSCH V COFFEY AND THE EARLY AUSTRALIAN CASES [15.10] Deane J, in his judgment in the leading Australian High Court case of Jaensch v Coffey,1 said: [O]n the present state of the law, … a duty of care [in respect of psychiatric injury] will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury.2

Having outlined the need for a relationship of proximity as a general test of liability in negligence, and discussed the development of the case law on liability for “nervous shock”, his Honour was attempting to state the limitations that the law imposed on the ordinary test of reasonable foreseeability in psychiatric injury cases in the name of proximity. The first was that “reasonable foreseeability of risk of personal injury did not generally suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury”:3 in other words, the plaintiff had to show reasonable foreseeability of psychiatric injury, rather than ordinary physical injury. The second limitation was the one set out above. From one perspective, it is curious that Deane J thought it necessary to make this point, since on the facts of the case before the court there was no question that the plaintiff had suffered reasonably foreseeable psychiatric injury as a result of serious injury to a third person (her husband), brought about by the defendant’s negligence. However, it is not at all uncommon for judges in courts of last resort, in landmark 1

Jaensch v Coffey (1984) 155 CLR 549.

2

Jaensch v Coffey (1984) 155 CLR 549 at 604.

3

Jaensch v Coffey (1984) 155 CLR 549 at 604.

546

Part III: Liability for Mental Harm

[15.20]

cases of this kind, to essay a general restatement of the principles of law that apply to the area in question.4 In this particular instance, Deane J’s dictum has given rise to an interesting body of jurisprudence on the question whether a tortfeasor who negligently kills, injures or endangers himself or herself owes a duty of care to a person who witnesses or otherwise experiences the event and suffers psychiatric injury as a result. [15.20] Earlier in his judgment Deane J had explained the point in a little more detail, saying: If liability in negligence for nervous shock caused by the death, injury or peril of another fell to be determined by an unqualified test of reasonable foreseeability, there would be no proper basis for excluding liability on the part of the injured person … for mere psychiatric injury which was sustained by another as a result of the self-inflicted death, injury or peril of the negligent person in circumstances where the risk of such psychiatric injury was reasonably foreseeable.5

This was followed by a reference to the well-known illustration given by Lord Robertson in Bourhill v Young’s Executor.6 Lord Robertson said that a negligent window-cleaner who loses his grip, falls from a height and impales himself on spiked railings would not be liable for shock suffered by a pregnant woman watching from the other side of the street. In this case, the court was in fact dealing with a situation where the plaintiff allegedly suffered nervous shock as a result of the defendant injuring himself — the issue was whether Mrs Bourhill, the pregnant fishwife, was entitled to recover against the estate of John Young, who through his own negligence killed himself while riding his motorcycle. Mrs Bourhill did not see the accident because she was on the other side of a tram, but she heard it, and she later saw blood on the road. However, the decision did not turn on the fact that it was a case of psychiatric damage resulting from self-inflicted injury. At this point in time the Scottish courts still adhered to the rule that there would be no liability for psychiatric injury unless it had resulted from reasonable fear of injury to the pursuer herself, and so the Court of Session found against Mrs Bourhill on this ground. In English law, this limitation had been abandoned in Hambrook v Stokes Bros.7 On appeal to the House of Lords the decision of the Court of Session was upheld on the ground that psychiatric injury to a person in the position of Mrs Bourhill was not reasonably foreseeable. [15.30] Apart from Lord Robertson’s dictum, there was little in the way of authority to support Deane J’s view: nothing more than a couple of 4

See eg Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

5

Jaensch v Coffey (1984) 155 CLR 549 at 602. Dawson J at 612 also made the same point, saying: “[I]f no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability.”

6

Bourhill v Young’s Executor 1941 SC 395.

7

Hambrook v Stokes Bros [1925] 1 KB 141.

[15.40]

15 Where the Tortfeasor is the Primary Victim

547

isolated remarks by Australian lower court judges. In Dwyer v Dwyer,8 a wife was injured as a result of her own negligence while driving a motor vehicle and her husband incurred medical expenses as a result. He sued her for damages for negligence in reliance on the statute abolishing inter-spousal immunity in tort,9 but Wallace P of the Full Supreme Court of New South Wales held that the statute did not confer any right of action, and in any case a wife owed no duty to her husband not to injure herself.10 Asprey and Mason JJ agreed. Wallace P’s statement is little more than a dictum and in any case the decision does not involve psychiatric injury.11 In Kohn v State Government Insurance Commission12 Bray CJ of the Supreme Court of South Australia considered that “a man or his representatives can hardly be legally responsible for the injurious effect of his own death”.13 This case involved the assessment of damages against the statutory insurers of two deceased tortfeasors, the death of one of whom had caused psychiatric damage to the plaintiff (who had also suffered physical injuries). No request was made to Bray CJ to draw a distinction between the defendants as to the quantum of compensation recoverable,14 thus relegating his Honour’s comment to the status of an obiter dictum. [15.40] Despite the paucity of authority on the point, Deane J’s dictum caused Australian State courts to adopt a very restrictive stance on the issue of psychiatric injury in cases where the defendant was also the immediate victim, refusing to entertain any modification of their traditional focus on the situation where defendant, immediate accident victim and psychiatric injury sufferer were three separate parties. In Harrison v State Government Insurance Office,15 the plaintiff was a passenger in a car driven by her husband that was involved in an accident due entirely to the husband’s carelessness. He died as a result of injuries sustained. The plaintiff’s physical injuries were minor, but she suffered a psychiatric illness caused by the trauma of the accident and her husband’s death. She brought an action against her deceased husband’s statutory insurer. Although recovery for psychiatric injury was ultimately allowed on the basis that it was impossible to separate the shock caused by the death from that caused by the trauma of the accident itself, Vasta J 8

Dwyer v Dwyer (1969) 90 WN (Pt 2) (NSW) 86.

9

Married Persons (Property and Torts) Act 1901 (NSW), s 16A.

10

Dwyer v Dwyer (1969) 90 WN (Pt 2) (NSW) 86 at 88.

11

In Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134, Zeeman J at 69,274 rejected Wallace P’s statement as a basis for denying relief for psychiatric injury caused by the death of the tortfeasor.

12

Kohn v State Government Insurance Commission (1976) 15 SASR 255.

13

Kohn v State Government Insurance Commission (1976) 15 SASR 255 at 256.

14

There was an agreement between the insurers that the same damages were to be awarded in respect of the liability of each of the drivers involved. The absence of such an agreement would, in light of the position adopted by his Honour, have necessitated a complex adjustment.

15

Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723.

548

Part III: Liability for Mental Harm

[15.50]

of the Supreme Court of Queensland, following Deane J in Jaensch v Coffey,16 ruled that there could be no relief at common law in respect of psychiatric illness caused by the death, injury or peril of a party responsible for his or her own misfortune. This was so notwithstanding that nervous shock and resulting illness was a reasonably foreseeable consequence of the husband’s death. [15.50] This conservative approach was mirrored in the Supreme Court of Tasmania by Zeeman J in Klug v Motor Accidents Insurance Board.17 There the plaintiff was a passenger in a car driven by his de facto wife that crashed due to her negligent driving. She was killed and the plaintiff injured. Compensation for the plaintiff’s pathologically grief-stricken condition was refused, inter alia, on the basis that a duty of care did not arise because the injury in question resulted from the death of the negligent party. In this case, unlike Harrison v State Government Insurance Office,18 the psychiatric disorder was clearly not caused by the occurrence of the accident itself, and thus the difficult issue of apportionment between different causes of psychiatric injury was avoided.19 Significantly, there were indications that, freed from the constraints of precedent, Zeeman J would have allowed recovery in this kind of situation provided the other legal prerequisites for liability existed. However, in the absence of any case permitting recovery for psychiatric injury due solely to the death, injury or imperilment of the defendant, his Honour felt compelled to accept that the issue was governed by what he viewed as the policy limitation referred to by Deane J. He did say, however, that as a matter of principle it might be thought that such plaintiffs ought not to be denied relief merely on this basis and, and echoing Deane J, that the common law might ultimately develop to recognise liability in these circumstances.20 [15.60] Another case which on its facts fell into the category under discussion is Rowe v McCartney.21 The defendant caused serious injuries to himself as a result of his negligent driving of the plaintiff’s high-powered vehicle with which he was unfamiliar. The case is unusual in that the plaintiff passenger, who was also physically injured, incurred a depressive neurosis not from the perception of her own injuries or from witnessing 16

Jaensch v Coffey (1984) 155 CLR 549.

17

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134.

18

Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723.

19

The psychiatric injury suffered by the plaintiff was sustained either as a result of a feeling of guilt at having let the deceased drive (which was not compensable: see [15.60]), or as a result of the death of the deceased, or both.

20 Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 at 69,274. If Zeeman J had granted recovery in this case, a question would have arisen as to the extent to which this represented an infringement of the principle in Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 that “in a civil court the death of a human being could not be complained of as an injury”. The Fatal Accidents Acts (eg the Fatal Accidents Act 1934 (Tas)) have been interpreted as being restricted to pecuniary losses: see P Handford, “Lord Campbell and the Fatal Accidents Act” (2013) 29 LQR 420. 21

Rowe v McCartney [1976] 2 NSWLR 72.

[15.70]

15 Where the Tortfeasor is the Primary Victim

549

or hearing of the defendant’s quadriplegia, but from a sense of guilt at having given him permission to drive, aggravated by the fact that the defendant could not recover for his injuries. She failed in her claim for psychiatric injury on the ground that although shock was a reasonably foreseeable consequence of the defendant’s negligence, the type of damage she sustained (that is, guilt-induced depressive neurosis) was not.22 Although it was not alluded to by the New South Wales Court of Appeal, presumably her claim was equally unsustainable because it stemmed from actual physical injury to a defendant responsible for his own predicament rather than physical injury to the plaintiff herself or a third party. The decision was followed in Klug v Motor Accidents Insurance Board,23 Zeeman J ruling that in so far as the plaintiff’s pathological grief-stricken condition was the result of his irrational feeling of guilt at having let his wife drive on the day in question, it was not compensable, and that even if the injury was not caused by this, relief was denied because damage did not result from the death of someone other than the careless party.24 [15.70] The decision in Rowe v McCartney25 shows that it is easy for courts and counsel to overlook the fact that a case involves a tortfeasor who is also the primary victim. There are several more recent Australian examples. In Harrison v Suncorp Insurance and Finance26 the deceased was attempting to overtake the plaintiff’s vehicle when a prime mover appeared from the opposite direction. The deceased tried to tuck his vehicle in behind the plaintiff but failed and was killed in the ensuing collision. The plaintiff attempted to extinguish the flames, and received a Governor-General’s commendation for his efforts, but was badly affected by the incident and some years later was diagnosed with schizophrenia. Liability was admitted, but the nature and effect of the plaintiff’s condition was contested. Though because of the admission nothing turned on the point, this was a case where the plaintiff suffered mental 22

See the comments of Moffitt P at 75–76 and Samuels JA at 89–90; see also [7.640]–[7.680]. Samuels JA held that in addition she failed for want of a causative link between the defendant’s negligent driving and her neurosis. Glass JA dissented, opining that it was sufficient in establishing liability that some kind of mental upheaval was reasonably foreseeable, and declined to further qualify or “penetrate” the “type of injury” criterion in the way the majority did.

23

Rowe v McCartney (1991) Aust Torts Rep 81-134 at 69,271.

24

See also Duwyn v Kaprielian (1978) 94 DLR (3d) 424 where the defendant drove into a parked car containing a four-month-old boy and his grandmother. No one in the car was physically injured. The boy’s mother, who had been shopping nearby, arrived to find a great commotion, heard her son screaming and immediately feared the worst. Psychiatric injury claims were brought against the negligent driver by both the boy (who was particularly disturbed by the incident) and his mother. Applying the test of foreseeability the Ontario Court of Appeal allowed the boy’s claim but denied that of the mother, whose emotional damage had been caused by guilt at not having been with her son at the time of the accident. Her shock was rooted in an experience earlier in life when, due to her carelessness, her baby brother had been injured.

25

Rowe v McCartney [1976] 2 NSWLR 72.

26

Harrison v Suncorp Insurance and Finance [1995] QSC 303.

550

Part III: Liability for Mental Harm

[15.80]

damage through witnessing self-inflicted injury. The same is true of Carrier v Bonham,27 where the defendant, who was mentally disturbed and who had been allowed to walk away from a psychiatric hospital, threw himself in front of a bus. The driver braked, averting a major accident, but suffered psychiatric injury as a result. The action raised the issue of whether the defendant’s unsoundness of mind ruled out liability in negligence and under the rule in Wilkinson v Downton.28 Nothing was made of the fact that this was a case where psychiatric injury resulted from seeing the defendant negligently endanger himself. There are other cases where the issue might have been raised in slightly different circumstances. For example, in Rogers v Brambles Australia Ltd,29 a refuse truck driver ran over and killed an elderly woman who was not within the field of vision of his mirrors when he was reversing, and suffered psychiatric injury as a result. The action was pursued against the employer, for not providing a safe system of work, but it seems the woman was also negligent. Had the plaintiff elected to bring an action against her estate, the fact that his psychiatric injury had been occasioned by her own negligently caused death would potentially have been a relevant consideration. [15.80] The basis for excluding liability in cases where the tortfeasor and the primary victim were one and the same was never clear. It may have been bound up in the nebulous concept of proximity,30 or have stemmed purely from public policy considerations, or both. Deane J in Jaensch v Coffey31 expressed a provisional preference for the former: [I]t is unnecessary to determine whether [this limitation] is properly to be seen as part of the requirement of proximity of relationship or as constituting some other and special controlling rule based on policy considerations. As at present advised, I am inclined to see [it] as [a] necessary [criterion] of the existence of the requisite proximity of relationship in the sense that, for policy reasons, the relationship will not be adjudged as being “so” close “as” to give rise to a duty of care unless [it] be satisfied.32

[15.90] Whatever the true basis for this restriction, it is submitted that it is unwarranted. Why should there be no recovery if a recognisable psychiatric illness is suffered due to the perception of the defendant killing, injuring or placing himself or herself in peril through his or her

27

Carrier v Bonham [2002] 1 Qd R 474.

28

Wilkinson v Downton [1897] 2 QB 57: see Chapter 30.

29

Rogers v Brambles Australia Ltd [1998] 1 Qd R 212.

30

See [7.150]–[7.170].

31

Jaensch v Coffey (1984) 155 CLR 549 at 604–605.

32

But see Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 where Zeeman J discusses this restriction in terms of policy considerations. Lords Oliver of Aylmerton and Ackner (less explicitly) did likewise in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see [15.150].

[15.100]

15 Where the Tortfeasor is the Primary Victim

551

own carelessness?33 So long as the nervous injury is genuine and the defendant has caused or contributed to its onset through his or her negligence it should make no difference whether the defendant’s carelessness harmed or could have harmed a third party or the defendant himself or herself.34

THE AUSTRALIAN REAPPRAISAL [15.100] A decade after Deane J’s unfortunate dictum, the Australian courts started to re-examine its basis. When they found that it did not stand up to scrutiny, they began to put matters right. The process was commenced in Churchill v Motor Accidents Insurance Board,35 where the doubts expressed by Zeeman J in Klug v Motor Accidents Insurance Board36 were confirmed by the Chief Justice of Tasmania. In this case a car driver died after her car collided with other vehicles and caught fire. The plaintiff witnessed the occurrence, which caused her to suffer from post-traumatic stress disorder. She applied for an extension of the time for giving notice of her intention to make a claim under the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas). The Board conceded that the deceased had been negligent, that the harm was reasonably foreseeable, and that there were good reasons for her failure to give notice in time. However, relying on the dictum of Deane J in Jaensch v Coffey,37 it argued that no damages could be awarded where injury was sustained as a result of a tortfeasor bringing about her own death. Green CJ said that none of the cases was binding. Deane J was merely citing an example of a case demonstrating that something more than foreseeability was required to establish a duty of care, and it was not an essential step in his chain of reasoning; Gibbs J’s general agreement did not necessarily entail acceptance of the proposition; and it was not supported by a majority of the judges. Nor, on the facts of the case, was it necessary to decide the point in order to determine the appeal. Subsequent Australian cases had 33

See FA Trindade, “The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock” [1986] CLJ 476 at 481–482; P Badhan, “Please Don’t Shock Me” (1995) 6 King’s College LJ 131.

34

Although rescue cases normally involve three parties, it seems clear that a person injured as a result of his or her own negligence also owes a duty of care to a rescuer not to cause physical loss. In Chapman v Hearse (1961) 106 CLR 112, B, a doctor, was killed by C’s negligent driving when aiding another motorist, A, who had negligently injured himself. It was held that A owed a duty to B and that C could recover contribution from A; note also Harrison v British Railways Board [1981] 3 All ER 679. Similarly, in Horsley v MacLaren [1972] SCR 441, A fell overboard from a yacht due to his own negligence and B was drowned trying to save him. Though the court was not called upon to decide the issue, it seems that A would have been liable to B. If, instead of being fatally injured or suffering bodily harm, a rescuer suffers mental damage, should he or she be treated any differently than in the more usual three-party situation where recovery for psychiatric illness is allowed (see Chapter 25)? It is submitted that no such distinction should be drawn.

35

Churchill v Motor Accidents Insurance Board (unreported, Tas SC, No M 166 of 1993, 2 December 1993).

36

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134.

37

Jaensch v Coffey (1984) 155 CLR 549.

552

Part III: Liability for Mental Harm

[15.110]

simply followed Deane J’s statement without further examination. In Green CJ’s view, “the policy reasons for denying liability in cases where psychiatric injury arises out of the death of the negligent person are not self-evident”,38 and he referred to the doubts expressed by Zeeman J.39 He concluded that although the weight of authority might be said to be in favour of the proposition relied on by the Board, in the absence of any binding authority he was not persuaded that it was inevitable that the action would fail. He therefore granted the extension of time requested. [15.110] Though this case was simply an expression of opinion in an interlocutory context, in 1997 the issue was thoroughly considered at appellate level by the South Australian Full Court in Shipard v Motor Accidents Commission.40 Mr Shipard claimed damages for nervous shock and post-traumatic stress disorder sustained as a result of a collision between the prime mover he was driving and a motorcycle, due to the fault of the motorcyclist — whose name, curiously, was Young, like the negligent motorcyclist in Bourhill v Young41 — and who died as a result.42 The defendant relied on the dictum of Deane J in Jaensch v Coffey.43 Doyle CJ showed that Deane J could not possibly have intended to deny a duty where the defendant’s carelessness caused the plaintiff to suffer physical harm or at least fear imminent physical harm, because it was in such circumstances that a duty not to cause nervous shock had been initially recognised in Dulieu v White & Sons.44 Deane J therefore had to be referring to a person outside the zone of physical risk, whereas Mr Shipard was within that area.45 On this basis, his Honour rejected the submission that the law for South Australia should be determined in

38

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 at [8] per Green CJ.

39

And also those expressed by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418: see [15.150].

40

Shipard v Motor Accidents Commission (1997) 70 SASR 240.

41

Bourhill v Young [1943] AC 92.

42

Mr Shipard’s state of mind was probably not assisted by two Job’s comforters in the shape of a police officer who told him he was lucky there were witnesses or he would have been up for culpable driving, and his boss who commented that it was fortunate he was not in the wrong or he would have been sacked.

43

Jaensch v Coffey (1984) 155 CLR 549.

44

Dulieu v White & Sons [1901] 2 KB 669.

45

Note also an earlier explanation by Allen J in Hodgkinson v Government Insurance Office of New South Wales (unreported, NSWSC, No 17181 of 1987, 23 July 1996): “What [Deane J] meant by those words … is to be understood by the immediately following words: ‘There is no need to consider here whether this limitation should be more widely stated as excluding such a duty of care unless the carelessness was in any event wrongful in the sense that it involved a breach of duty owed to the person who suffered or was at risk of physical injury.’” In this case the plaintiff was a pillion passenger on a motorcycle ridden by the defendant who carelessly injured himself. The attempt by the defendant to rely on Deane J’s dictum was rejected. It was not a case of pure psychiatric injury.

[15.130]

15 Where the Tortfeasor is the Primary Victim

553

accordance with the views of Deane J,46 and refused the defendant’s request to strike out the plaintiff’s statement of claim, holding that the plaintiff had the right to have the law determined in the light of all the relevant facts. [15.120] Three years later, the New South Wales Court of Appeal in FAI General Insurance Co Ltd v Lucre47 finally gave the quietus to Deane J’s dictum and set Australian law on a more rational basis. The plaintiff was driving a large truck when the deceased, driving in the opposite direction, suddenly swerved into its path. Car and driver were crushed under the truck and the driver died soon afterwards. The plaintiff was not physically injured, but was beset with feelings of guilt and blame (even though there was no suggestion that he was responsible) and was accepted to be suffering from post-traumatic stress disorder. The defendant again relied on Deane J’s dictum, but Mason P, with Meagher and Giles JJA agreeing, held that in the light of the recent Australian authorities it was no longer possible to say that the common law was as stated by Deane J. The court thus rejected the argument that a duty of care was negated simply because the primary victim was the defendant, or a deceased person being represented by the defendant.48 Such a holding does not mean that there is automatically a duty of care: claimants still have to satisfy the other duty requirements. This, of course, is now much easier to do in Australia than in England, where the law has seemingly set its face against recovery by unrelated bystanders, rescuers, employees and just about anybody other than those with close ties of relationship to the immediate victim, a process of restriction completed by the House of Lords in White v Chief Constable of South Yorkshire Police.49 Mason P made it clear that he did not favour the restrictions that this case imposed on English law, and solved the problem of the case before him by holding that the plaintiff was owed a duty as an involuntary participant. [15.130] Mason P endorsed the approach adopted in Shipard v Motor Accidents Commission50 and the re-interpretation of Deane J’s dictum. Like Doyle CJ, he said that the other Australian decisions had simply accepted that dictum at face value. However, Mason P went a step further than Doyle CJ had done: he also exposed the shortcomings of Lord Robertson’s 46

Doyle CJ also considered and rejected a similar dictum of Lord Ackner in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401, saying this statement could no longer be relied on in light of the later House of Lords decision in Page v Smith [1996] AC 155, which had accepted that secondary victim control mechanisms had no part to play in primary victim cases.

47

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

48

Mason P noted that there were cases which did not invoke this alleged ground of exemption from liability when they might have done, eg Bunyan v Jordan (1937) 57 CLR 1 and Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383: FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 at [14].

49

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

50

Shipard v Motor Accidents Commission (1997) 70 SASR 240.

554

Part III: Liability for Mental Harm

[15.140]

window-cleaner statement in Bourhill v Young’s Executor,51 the other important judicial utterance that had influenced earlier judges in this area. As he acknowledged, here he was adopting as his own the criticisms made in an important article by Des Butler.52 As Butler showed, this statement has always been taken out of context. The issue before the court was whether Mrs Bourhill was entitled to recover even though she was not in any personal danger. Scottish law at the time still applied the limitation that nervous shock plaintiffs had to show a reasonable apprehension of imminent personal injury. Lord Robertson was speculating on the consequences of removing this limitation, and the point of his example was that the question was not confined to traffic accidents and their consequences. He then added: “If a window-cleaner actually fell on a passer-by, or so near to him that he feared for his bodily safety, the case would be different.”53 So Lord Robertson was not attempting to rule out claims based on self-inflicted injury, but merely stating the limits of liability under Scots law as then understood. Accepting Butler’s analysis, Mason P concluded that, contrary to the general understanding, Lord Robertson was not advocating a general immediate victim exclusion, but in fact the exact opposite. [15.140] It is suggested that the Civil Liability Acts should not change the approach of Australian law to cases of this kind. In a case such as FAI General Insurance Co Ltd v Lucre,54 an application of the statutory test of foreseeability should produce the same outcome, especially if the courts are prepared to endorse the involuntary participation line of cases developed by the common law. Looking at the circumstances listed in the statutory provisions, Mr Lucre clearly suffered a sudden shock and witnessed, at the scene, a person being killed, injured or put in peril, even if there was no pre-existing relationship between him and the primary accident victim or the person responsible for the accident — who were of course one and the same. These points also hold good for Shipard v Motor Accidents Commission,55 although there was no express reliance on involuntary participation in that case. On the facts of Klug v Motor Accident Insurance Board,56 it would appear that all four circumstances were present, because in addition to suffering a sudden shock and witnessing the accident the plaintiff’s partner was both defendant and primary victim. There might, however, be some doubt about the outcome of Churchill v Motor Accidents Insurance Board57 because the plaintiff was 51

Bourhill v Young’s Executor 1941 SC 395.

52

D Butler, “Psychiatric Injury Resulting from a Tortfeasor’s Death, Injury or Peril: Debunking an Unfortunate Dictum” (1996) 26 Queensland Law Society Journal 557.

53

Bourhill v Young’s Executor 1941 SC 395 at 399.

54

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

55

Shipard v Motor Accidents Commission (1997) 70 SASR 240.

56

Klug v Motor Accident Insurance Board (1991) Aust Torts Rep 81-134.

57

Churchill v Motor Accidents Insurance Board (unreported, Tas SC, No M 166 of 1993, 2 December 1993).

[15.150]

15 Where the Tortfeasor is the Primary Victim

555

merely a bystander, unrelated to the defendant and not responsible in any way for the happening of the accident. In all of these cases the plaintiffs witnessed the accident and so the limitation on liability in the legislation of some States should not present a problem. In FAI v Lucre, for example, the plaintiff witnessed, at the scene, a person being killed, injured or put in peril as required by s 30 of the Civil Liability Act 2002 (NSW), and in Shipard the plaintiff was present at the scene of the accident when the accident occurred and so satisfied the terms of s 53 of the Civil Liability Act 1936 (SA).

THE TRADITIONAL APPROACH AFFIRMED IN ENGLAND [15.150] Until the turn of the century, the issue of whether there is a duty of care not to cause psychiatric harm to another by self-inflicted death, injury or imperilment had not arisen directly in an English court. However, Lords Ackner and Oliver of Aylmerton alluded to it in Alcock v Chief Constable of South Yorkshire Police,58 even though the matter did not fall to be determined in that case. Lord Ackner contented himself with saying that there was no authority establishing the existence of liability in such a situation, referring with seeming approval to Lord Robertson’s statement in Bourhill v Young’s Executor59 about the window-cleaner who fell on spiked railings not being liable for shock caused to a pregnant woman across the street.60 Lord Oliver predicted that policy considerations would lead an English court to adopt the Deane formula should the facts before it demand a ruling on the issue.61 However, he was clearly unimpressed by this inflexible and restrictive approach, and his further comments, uttered obiter, seemed to offer some hope for doctrinal development of the kind referred to by Zeeman J in Klug v Motor Accidents Insurance Board.62 His Lordship made reference to the insurmountable difficulties that the exclusory approach brings with respect to the application of defences to shock claims. For example, complications would ensue if an accident, although not solely caused as a result of the primary victim’s lack of care, was materially contributed to by it. As Lord Oliver said: If, for instance, the primary victim is himself 75 per cent responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to 58

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

59

Bourhill v Young’s Executor 1941 SC 395 at 399.

60

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401.

61

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418. Hamilton CJ in the Irish Supreme Court in Kelly v Hennessy [1995] 3 IR 253 at 259 also accepted Deane J’s dictum as a correct statement of the law. Surprisingly, neither Lord Oliver nor Hamilton CJ mentioned any of the other Australian cases in point. 62

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134 at 69,274.

556

Part III: Liability for Mental Harm

[15.160]

recover any contribution from the person primarily responsible since the latter’s negligence vis-à-vis the plaintiff would not even have been tortious.63

In addition to this specific concern, his Lordship was troubled with the restriction at a more general level. He considered it fundamentally flawed from the standpoints of principle and logic: [T]he limitation must be based upon policy rather than upon logic for the suffering and shock of a wife or mother at witnessing the death of her husband or son is just as immediate, just as great and just as foreseeable whether the accident be due to the victim’s own or to another’s negligence and if the claim is based, as it must be, on the combination of proximity and foreseeability, there is certainly no logical reason why a remedy should be denied in such a case. … Take, for instance, the case of a mother who suffers shock and psychiatric injury through witnessing the death of her son when he negligently walks in front of an oncoming motor car. If liability is to be denied in such a case such denial can only be because the policy of the law forbids such a claim, for it is difficult to visualise a greater proximity or a greater degree of foreseeability.64

[15.160] The gap in the English case law was finally filled by Greatorex v Greatorex65 in 2000. On the basis of the well-known dicta of Deane J and Lord Robertson, Cazalet J of the Queen’s Bench Division ruled that the law did not recognise a right of recovery for the psychiatric consequences of witnessing an accident if the primary victim was the tortfeasor rather than some innocent third party. The case arose out of the events of an evening that ended in tragedy for the Greatorex family. John Greatorex and Haydon Pope, after an evening’s drinking, set off home in Pope’s car, with Greatorex driving, in spite of the fact that he had no insurance. When overtaking at a blind spot he went onto the wrong side of the road and was hit by an oncoming vehicle. He was trapped inside the vehicle and unconscious for about an hour. One of the fire officers who attended the scene was his father, who was later diagnosed as suffering from post-traumatic stress disorder as a result of the accident. The father sued the son and the Motor Insurers’ Bureau, plus Pope as a Part 20 defendant. [15.170] Cazalet J adopted the Caparo approach that in order to show that a duty of care existed it was necessary to show not only foreseeability of harm but also that it was fair, just and reasonable for a duty of care to be imposed in this particular situation.66 The claimant’s first argument was that a duty was owed to him in his capacity as rescuer, separate and apart from the fact that he was also a close relative. Though this argument might have succeeded prior to the House of Lords decision in the second 63

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418. See the discussion of this issue at [16.80]–[16.140]. 64

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418.

65

Greatorex v Greatorex [2000] 1 WLR 1970, noted by P Handford (2001) 117 LQR 397. This note has been drawn on for some of the points made in the text.

66

See Caparo Industries plc v Dickman [1990] 2 AC 605, discussed at [7.180].

[15.180]

15 Where the Tortfeasor is the Primary Victim

557

Hillsborough case, White v Chief Constable of the South Yorkshire Police,67 the majority in that case concluded that for policy reasons rescuers should no longer be regarded as a special category, and must now show that they exposed themselves to danger or reasonably believed that they were doing so — which was obviously not so in the present case.68 The alternative argument was that the claimant satisfied the necessary control mechanisms for secondary victims, namely close ties of love and affection, personal perception, and presence at the accident or its immediate aftermath. Only the third of these points raised any real doubt, but Cazalet J ruled that the claimant was on the scene sufficiently quickly. Were this an ordinary secondary victim case involving three parties, this would have been enough for liability, but the problem was that the primary victim and the tortfeasor were one and the same. His Lordship considered a number of authorities dealing with this issue, particularly the statements of Lords Ackner and Oliver in Alcock v Chief Constable of South Yorkshire Police69 and of Deane and Dawson JJ in Jaensch v Coffey.70 He also cited some of the earlier Australian cases referred to above,71 and a Canadian case, Cady v Anderson.72 He concluded that the weight of the Commonwealth authorities supported the view that there was no duty of care. Policy considerations impelled him towards the same conclusion. Apart from the contributory negligence problem alluded to by Lord Oliver, Cazalet J considered that imposing a duty of care in this situation would open up the possibility of a particularly undesirable type of litigation between family members.73 [15.180] It is most unfortunate that the first English decision to rule on this important issue suffers from a number of serious flaws. Chief among them is the failure to refer to the decision of Doyle CJ in Shipard v Motor Accidents Commission,74 doubtless due to the fact that the researches of counsel had not gone far enough to discover the existence of this decision. This meant that the judge was unaware that the Australian authorities on which he relied were out of date, and that by 2000 Australian law had repudiated the denial of a duty where a tortfeasor’s self-inflicted injury caused psychiatric injury to another. Like Deane J’s dictum, 67

White v Chief Constable of the South Yorkshire Police [1999] 2 AC 455.

68

See [25.380]–[25.430].

69

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

70

Jaensch v Coffey (1984) 155 CLR 549.

71

Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723; Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134; Dwyer v Dwyer (1969) 90 WN (Pt 2) (NSW) 86; Kohn v State Government Insurance Commission (1976) 15 SASR 255. The latter two cases were apparently not made available to the court in their own right, but were cited in Harrison v State Government Insurance Office: Greatorex v Greatorex [2000] 1 WLR 1970 at 1981 per Cazalet J.

72

Cady v Anderson [1992] BCJ No 2555.

73

See also Homsi v Homsi [2016] VSC 354 at [71]–[81] per J Forrest J.

74

Shipard v Motor Accidents Commission (1997) 70 SASR 240.

558

Part III: Liability for Mental Harm

[15.190]

Lord Robertson’s classic window-cleaner example had been subjected to close scrutiny and shown not to support the proposition that no duty is owed. [15.190] Cazalet J’s reliance on Canadian authority did not fare much better. He attempted to draw further support from Commonwealth authorities by reference to Cady v Anderson,75 a case from British Columbia where the plaintiff was prevented from recovering for psychiatric injury caused by witnessing the death of her fiancé in a car accident. It appears that this decision was made available only in summary form. Reference to the full report reveals that it may be unwise to place too much confidence in it. There is hardly any argument on the point, and Lamperson J wrongly attributed the dictum of Deane J to Lord Scarman in McLoughlin v O’Brian.76 [15.200] The problem that arises where the immediate victim is the defendant was fully considered by the English Law Commission in its report on Liability for Psychiatric Illness.77 The Law Commission outlined a totally fresh approach to shock caused by self-inflicted harm. It recommended two statutory schemes for cases where there are “close ties of love and affection”, one for the standard secondary victim situation and the other for cases in which the defendant is the immediate victim. In these cases, common law requirements such as presence and direct perception would be eliminated and the claimant ordinarily need prove only the relationship, a recognisable psychiatric illness, causation and reasonable foreseeability. The report fully discusses the policy issues that arise in the latter category of case.78 These include fettering the right of self-determination, the contrary consideration of taking responsibility for the effect of one’s actions on others, and the contributory negligence problem alluded to by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police79 that may leave the relative remediless against the principal tortfeasor unless the immediate victim exclusion is abolished. These issues are catered for by a proposed provision that a duty of care should not be imposed in certain circumstances where it is not just and reasonable to do so. So much for cases where the parties are related: but 75

Cady v Anderson [1992] BCJ No 2555.

76

McLoughlin v O’Brian [1983] 1 AC 410. Lamperson J said that Taggart JA in Beecham v Hughes (1988) 52 DLR (4th) 625 had quoted this dictum as a dictum of Lord Scarman in McLoughlin v O’Brian [1983] 1 AC 410 at 460. However, the report of McLoughlin v O’Brian finishes at 443 and Lord Scarman’s judgment is at 429–443 and says nothing about the immediate victim problem. In fact, Taggart JA at 659 was correctly quoting Deane J in Jaensch v Coffey: his reference was to the report in (1984) 54 ALR 417 at 460. Lamperson JA wrongly attributed the quotation to Lord Scarman in McLoughlin v O’Brian (Taggart JA noted that Deane J had referred to Lord Scarman), took the reference to page 460 to be a reference to [1983] 1 AC, and for good measure misquoted Deane J’s dictum, “reasonably” becoming “reasonable”. See further [15.240].

77

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998).

78

Law Commission, Liability for Psychiatric Illness (Law Com No 249, 1998), paras 5.34–5.44.

79

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[15.220]

15 Where the Tortfeasor is the Primary Victim

559

the Law Commission clearly stated the desirability of recognising liability in appropriate cases involving unrelated parties, recommending the alteration of the common law by a legislative provision to the effect that courts may allow a claim even if psychiatric illness results from the defendant causing his own death, injury or imperilment. [15.210] Cazalet J was clearly reluctant to allow claims by relatives against victims of self-inflicted injury. Like the Law Commission, he suggested that the issue involved fettering a person’s right of selfdetermination.80 He also referred to a point that he suggested had been overlooked by the Law Commission — opening up the possibility of a particularly undesirable type of litigation between family members.81 However, as he himself pointed out, such litigation is already possible in cases of physical injury, and in practice will normally happen only where there is an insurance fund available to provide compensation. Is it so irrational to extend this to psychiatric injury? It must not be forgotten that the effect of the accident and its aftermath in Greatorex v Greatorex82 was that the father, previously a fit and active senior fire officer, was left suffering from post-traumatic stress disorder, which presumably affected his ability to continue in employment. The Law Commission noted that most of its consultees were in favour of the removal of the bar, for the reasons just stated. Cazalet J certainly attempted a detailed analysis of the policy considerations, but it was not as convincing as that of the Law Commission. [15.220] The decision in Greatorex v Greatorex83 has important implications beyond the immediate situation with which it deals. Though the assumption that it is only in family cases that the problem of psychiatric damage resulting from self-induced injury will arise may be justified as a matter of English law, it is submitted that the Law Commission and Mason P in FAI General Insurance Co Ltd v Lucre84 display a much more enlightened attitude to this problem. And while Greatorex can be commended for at least attempting to take account of authorities from other common law jurisdictions, problems can arise where the material cited is not up to date.

80

Greatorex v Greatorex [2000] 1 WLR 1970 at 1984. Cazalet J cited a German case in which this problem was identified: Anon (1971) BGHZ 56, 163. This case deals primarily with the contributory negligence issue identified by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418 (see [16.90]); see also B Markesinis, “Foreign Law inspiring National Law: Lessons from Greatorex v Greatorex” [2002] CLJ 386.

81

Greatorex v Greatorex [2000] 1 WLR 1970 at 1985.

82

Greatorex v Greatorex [2000] 1 WLR 1970.

83

Greatorex v Greatorex [2000] 1 WLR 1970.

84

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

560

Part III: Liability for Mental Harm

[15.230]

THE LAW ELSEWHERE Canada [15.230] The first Canadian case to consider the issue of duty where the defendant was also the immediate victim was Cady v Anderson,85 the case cited by Cazalet J in Greatorex v Greatorex.86 The plaintiff was riding with her fiancé in a truck on a mountain road, and as they were driving up an icy incline the vehicle lost traction and started to slide backwards. The plaintiff jumped out, but her fiancé did not and was killed. She found his body and suffered emotional upset, and brought an action for damages against his estate. One reason why her action failed was that she had not suffered a recognisable psychiatric illness; the court refused to follow earlier British Columbian authorities to the effect that a “scar on the mind” was sufficient.87 The other reason, according to Lamperson J, was that no duty existed where the tortfeasor was also the primary victim. The problems of this aspect of the decision have already been noted: the judge did in fact rely on Deane J’s dictum, but it was wrongly attributed to Lord Scarman in McLoughlin v O’Brian.88 [15.240] Unknown to Cazalet J, by the time of his decision in Greatorex v Greatorex89 another British Columbia judge, in a much better-considered decision, had already exposed the shortcomings of Cady v Anderson90 and decided the issue differently. In Schaffer v Murphy,91 the defendant, driving negligently, crossed the centre line in the road and collided with the plaintiff’s car. The defendant was killed. The plaintiff sued for damages, alleging inter alia psychological distress and nervous shock. The defence sought an order for dismissal, arguing by reference to Cady v Anderson that the plaintiff could not claim damages for psychiatric injury when the claim arose out of the death of the defendant. Powers J rejected this argument. He attempted to look for the dictum in McLoughlin v O’Brian92 referred to by Lamperson J in Cady v Anderson, but not surprisingly was unable to find it.93 More importantly, he said that the court in Cady v Anderson was not referred to the leading decision of the British Columbia Court of Appeal in Rhodes v Canadian National Railway,94 and he also 85

Cady v Anderson [1992] BCJ No 2555.

86

Greatorex v Greatorex [2000] 1 WLR 1970.

87

See [6.260]–[6.270].

88

McLoughlin v O’Brian [1983] 1 AC 410. See [15.190].

89

Greatorex v Greatorex [2000] 1 WLR 1970.

90

Cady v Anderson [1992] BCJ No 2555.

91

Schaffer v Murphy [2000] BCSC 501.

92

McLoughlin v O’Brian [1983] 1 AC 410.

93

Some judges have not investigated this far. In Hubley v Hubley Estate (2010) 324 DLR (4th) 69 (not a psychiatric injury case) at [21], Campbell J cited Cady v Anderson [1992] BCJ No 2555, and Lamperson J’s reference to McLoughlin v O’Brian, without realising the error.

94

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

[15.250]

15 Where the Tortfeasor is the Primary Victim

561

referred to that court’s subsequent consideration of psychiatric injury issues in Devji v Burnaby (District).95 He said: Most of the cases referred to in argument dealt with the situation where the plaintiff was not immediately involved in the accident. However, in Cady the plaintiff was immediately involved. It is my view that the court in Cady would not have concluded that a plaintiff could not recover simply because it was the defendant that died in the accident which led to the plaintiff suffering psychological injury, if the court had been referred to Rhodes and particularly the decisions of Wallace JA and Lambert JA, and [had had] the benefit of Devji. There is no reason in logic why a plaintiff would be able to recover if one of the defendant’s passengers had been killed in the accident and this caused a psychiatric injury to the plaintiff but not recover if the person killed was the defendant himself. To decide otherwise would be inconsistent with the analysis in Rhodes and Devji.96

Canadian law, like Australian law, has thus now rejected the immediate victim exclusion. This judgment was delivered only a fortnight before the hearing in Greatorex v Greatorex and was presumably not available to counsel in that case. However, it is most unfortunate if that decision has entrenched the English position on the immediate victim issue as a result of referring only to out-of-date and ill-considered Commonwealth authorities. [15.250] Other Canadian cases show that cases can arise where the defendant is also the immediate victim without the court realising that this may create any special problem of duty. One such example is Falbo v Coutts,97 decided by another British Columbia judge shortly before Schaffer v Murphy.98 The plaintiff was driving her car when it was struck in the rear by the defendant’s motorcycle, and saw the defendant’s body go flying past her. Apart from minor injuries, the experience caused the plaintiff to suffer depression and post-traumatic stress disorder. The defendant died in the accident, and the plaintiff brought an action against his estate for her injuries. The court was mainly concerned with whether the plaintiff was a primary or secondary victim, but decided that she could recover under either theory.99 No reference was made to the fact that if the plaintiff was a secondary victim, the primary victim was the defendant. However, the general tenor of the judgment suggests that the court would not have accepted the view that this should be a ground of exemption from liability.

95

Devji v Burnaby (District) (1999) 180 DLR (4th) 205.

96

Devji v Burnaby (District) (1999) 180 DLR (4th) 205 at [21]–[23].

97

Falbo v Coutts [2000] BCSC 434.

98

Schaffer v Murphy [2000] BCSC 501.

99

See [24.280].

562

Part III: Liability for Mental Harm

[15.260]

[15.260] Another example of the immediate victim issue not being identified is Nespolon v Alford.100 Kevin Snider, aged 14, went out one evening with his friends and had too much to drink. Late in the evening, outside a Burger King restaurant, a police officer told two of his friends, Justin Alford and Kyle Berard, who were both 16, to take him home in Alford’s car. As they were driving along a residential street in Harrow, Kevin claimed he knew one of the houses and asked to be dropped off. His friends came back a short time later, to see him still wandering around. They came back again, but by this time he had been hit and killed by another driver, Gary Nespolon, who did not see him in the darkness. Nespolon suffered post-traumatic stress disorder, and sued Alford, Berard and Snider’s estate. The trial judge found all three defendants equally responsible, but the Ontario Court of Appeal by a majority allowed the appeal. Alford and Berard were not liable in negligence, because they could not have foreseen that their actions in dropping off the deceased would have caused another person to suffer psychiatric injury, and because there was no causal connection. In any case, the court said, the issue of negligence should not be assessed by adult standards: where children were engaged in an adult activity, such as driving, they were held to the same standard as adults, but here the negligent activity was not driving but deciding to drop him off when he was not capable of looking after himself. It is in relation to the action against the deceased’s estate that the case raised the issue of the tortfeasor also being the immediate victim, although the court did not identify the issue as such. Abella JA (with whose judgment McKinlay JA concurred) said: The remoteness of the foreseeability of risk of nervous shock applies to Snider as well. In this case too, one must consider age and experience. It is simply not reasonable to conclude that this 14-year old boy could foresee that by getting drunk at his friend’s house earlier in the evening, he could end up falling on a road in the middle of Harrow and cause a driver running him over to develop post-traumatic stress. He neither owed nor breached any duty of care to a passing motorist like Nespolon. The relationship was too remote, as was the foreseeability of nervous shock occurring as it did.101

Her Ladyship outlined the various categories of case in which a duty not to cause psychiatric injury had been recognised, such as relationship and rescue. This case did not fall within any of these categories, and there were no policy reasons to justify expanding the categories to include a stranger such as the plaintiff in this case. So Abella JA was able to justify the decision both on foreseeability and on policy grounds. Though she did not identify the immediate victim issue, the decision would not have been any different if she had done so. Deane J’s dictum was not referred to. Deane J was identifying a category of case where in his view there should be no duty of care. If the immediate victim exclusion is discounted, as it has been argued it should be, this does not mean that there will automatically be a duty. It simply means that the case should be 100

Nespolon v Alford (1998) 161 DLR (4th) 646.

101

Nespolon v Alford (1998) 161 DLR (4th) 646 at [63].

[15.280]

15 Where the Tortfeasor is the Primary Victim

563

treated in the same way as any other, by applying the general test of whether psychiatric injury was foreseeable in the circumstances, and whatever other rules limit the ambit of duty of care.102 The distinction between Nespolon v Alford and a case such as FAI General Insurance Co v Lucre103 is that in Lucre the court was able to classify the plaintiff as an involuntary participant, one of the recognised instances in which a duty of care exists.

United States [15.270] United States courts have not attempted to rule out liability for negligent infliction of emotional distress on the ground that the defendant is also the primary victim. From time to time, this fact situation has arisen in the case law, but the courts have not generally seen it as giving rise to a special problem, instead dealing with it by the application of the standard principles. For example, in Camper v Minor,104 a truck driver who was involved in a collision with a car, resulting in the death of the car driver, sued the motorist’s estate and the owner of the car for emotional damages caused by viewing the motorist’s body in the wreckage. The Supreme Court of Tennessee held that an action for negligence would lie. This was the first important case in which a Tennessee court contemplated the application of the bystander principle105 and the court discussed the issues at some length. Nowhere was there any suggestion that a special exclusionary rule should apply because the immediate victim was also the defendant. [15.280] This was also the fact situation in a pair of Louisiana cases. In Devereux v Allstate Insurance Co,106 the plaintiff, distracted by another driver, suddenly saw a pedestrian in the road and could not avoid hitting him. The pedestrian’s body came through his windscreen, and the plaintiff suffered various injuries including emotional distress. Since the pedestrian was covered by a homeowner’s insurance policy, the plaintiff sued the insurance company. The court said that the plaintiff was 20 per cent responsible, the deceased pedestrian 50 per cent, and the driver of the “phantom vehicle”, by which the plaintiff said he was distracted, 102

Another case where the immediate victim issue was not identified is Hele v Sheffield 2003 CarswellOnt 6465, where Mrs Clark was struck and killed by the defendant’s vehicle as she crossed the road. A bus driver came upon the scene shortly afterwards and was upset by suggestions from others that he may have been responsible. He claimed damages for psychiatric injury from the defendant and the deceased’s estate. It was held that though the deceased placed herself at risk by crossing the road, she could not have foreseen that her death would traumatise a stranger who happened upon the scene, and so the claim against the estate was discontinued. However, on appeal, it was suggested that there was a triable issue: Hele v Sheffield 2005 CanLII 3321.

103

FAI General Insurance Co v Lucre (2000) 50 NSWLR 261: see [15.120].

104

Camper v Minor 915 SW 2d 437 (Tenn 1996).

105

Tennessee subsequently confirmed that it would adopt the bystander principle: see Ramsey v Beavers 931 SW 2d 527 (Tenn 1996).

106

Devereux v Allstate Insurance Co 557 So 2d 1091 (La 1990).

564

Part III: Liability for Mental Harm

[15.290]

30 per cent. Shortly before this case, Lejeune v Rayne Branch Hospital107 had recognised the principles of bystander recovery in Louisiana. The insurance company in Devereux conceded that the traditional rules of recovery for emotional distress had been liberalised by Lejeune, but argued that they did not allow recovery by a mere bystander who was not related to the immediate accident victim. The court agreed that this fact was fatal to the claim. Once again, there was no suggestion that the fact that the immediate victim was also the tortfeasor made any difference; the case was resolved by the application of general principles. [15.290] Guillory v Arceneaux108 offers an interesting contrast. Pamela Arceneaux lost control of her vehicle, which hit the guardrail at the side of the road. She got out of the vehicle, and was struck by an 18-wheeler and left lying on the roadway. Another motorist, Pamela Guillory, braked when she saw her lying on the road but could not avoid her. Arceneaux died as a result of the accident. Guillory sued the deceased’s estate, the truck driver and the State of Louisiana for her emotional distress. In this case, unlike Devereux v Allstate Insurance Co,109 the court took the view that the bystander rules were not appropriate, because the plaintiff was not a mere witness of events in which she played no other part, but a participant, able to recover under the “direct victim” doctrine.110 Far from being a ground for exemption from liability, the fact that the defendant was also the immediate victim was part of the process by which the court took the case out of the bystander category and recognised the existence of liability despite the absence of a close relationship.111 [15.300] An exceptional case in which the defendant did raise the argument that a cause of action lies only against a defendant who injures a third party, rather than himself or herself, is Seitz v Vogler.112 The plaintiff was a passenger in her husband’s boat, together with their children, when the husband negligently collided with another boat. The husband was killed. The plaintiff claimed damages on behalf of herself and her children from her husband’s estate for the psychological and emotional injuries they suffered as a result of the experience. Since Illinois still adheres to the zone of danger rule,113 it was alleged that they suffered these injuries as bystanders within the zone of danger. The defendant contended that Illinois did not recognise a cause of action based on the defendant negligently killing or injuring himself rather than a third party. The plaintiff responded that her husband’s negligence caused her to witness not only his death but also injury or the threat of injury to her children, occasioning psychological injury to her, and also that she was a 107

Lejeune v Rayne Branch Hospital 539 So 2d 849 (La 1989).

108

Guillory v Arceneaux 580 So 2d 990 (La 1991).

109

Devereux v Allstate Insurance Co 557 So 2d 1091 (La 1990).

110

See [18.180]–[18.240].

111

For subsequent developments in Louisiana see [13.570]–[13.610].

112

Seitz v Vogler 682 NE 2d 766 (Ill 1997).

113

See Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983).

[15.320]

15 Where the Tortfeasor is the Primary Victim

565

direct victim of his negligence. The Appellate Court held that she could recover both as a bystander and as a direct victim. Doyle J said: We find unpersuasive defendant’s argument that a cause of action for negligent infliction of emotional distress will lie only against a defendant who injured a third party. Rather, a cause of action will lie whenever a direct victim sufficiently alleges duty, breach, injury and causation, and a bystander sufficiently alleges injury resulting from a defendant’s negligence while the bystander was in a zone of danger. Plaintiff’s complaint sufficiently alleged a cause of action for negligent infliction of emotional distress both as a bystander and as a direct victim.114

[15.310] However, an Iowa case has adopted a totally different policy approach to a similar problem. In Clark v Rice,115 nine-year-old Sasha Clark was a passenger in a vehicle being driven by her mother, who negligently drove into the path of a truck, suffering fatal injuries. It was held that Sasha had no cause of action against her mother’s estate for negligent infliction of emotional distress. The court said that it refused to recognise an independent duty of care on a parent to avoid inflicting emotional distress on a passenger child in such circumstances.

CONCLUSION [15.320] This study of the cases reveals that most jurisdictions have either determined that the fact that the tortfeasor is also the immediate victim is not a ground for repudiating liability for psychiatric injury, or have simply not recognised this as creating any special problem. Deane J’s unfortunate dictum to the contrary has been explained and discarded by the courts in its country of origin. Only in England, as the result of a series of mishaps with the authorities, have the courts upheld the immediate victim exclusion. Greatorex v Greatorex,116 it is true, raises some special problems, because of the family relationships between the parties, but this is no reason for a blanket denial of liability. The Law Commission’s enlightened approach to the issue showed that the policy reasons put forward against the recognition of a duty in this situation are counterbalanced by important considerations in favour of the contrary view. If the facts are that the plaintiff suffers psychiatric harm by viewing the defendant kill, injure or endanger himself or herself, the case should be determined by the application of whatever principles are appropriate to the situation, not by a special exclusionary rule. General principles of duty can accommodate any policy issues raised by the facts of a particular case.

114

Seitz v Vogler 682 NE 2d 766 (Ill 1997) at 775.

115

Clark v Rice 653 NW 2d 166 (Iowa 2002).

116

Greatorex v Greatorex [2000] 1 WLR 1970.

Chapter 16

Defences [16.10] INTRODUCTION ............................................................................................................. 567 [16.30] CONTRIBUTORY NEGLIGENCE .................................................................................. 567 [16.50] Contributory negligence in psychiatric injury cases .................................................. 569 [16.70] Contributory negligence of the primary victim .......................................................... 571 [16.150] The Civil Liability Acts .................................................................................................. 577 [16.170] The issue in other contexts ........................................................................................... 578 [16.190] ASSUMPTION OF RISK ................................................................................................ 580 [16.220] ILLEGALITY .................................................................................................................... 582 [16.230] LIMITATION OF ACTIONS ......................................................................................... 583

INTRODUCTION [16.10] This chapter considers the traditional common law defences to negligence: contributory negligence, voluntary assumption of risk and illegality, and their application in psychiatric injury cases.1 It also considers how the rules on limitation periods apply to psychiatric injury. [16.20] In Australia, as a result of the Civil Liability Acts, there are now additional statutory defences dealing with obvious risks, good Samaritans, volunteers, dangerous recreational activities and the supply of recreational services. These are not further considered here.

CONTRIBUTORY NEGLIGENCE [16.30] The most frequently raised defence to a negligence claim is a plea that the plaintiff’s own fault also contributed to the harm that he or she suffered. At common law the plaintiff’s contributory negligence was a complete defence, in that even if the plaintiff was only partially responsible for his or her own misfortune this had the effect of entirely absolving the defendant from liability. In the words of Lord Ellenborough CJ: “One person being in fault will not dispense with another’s using ordinary care for himself.”2 After various judicial attempts to mitigate the severity of this rule, notably the invention of the doctrine of “last opportunity”, according to which even if the plaintiff was 1

See generally TI Bailey, “The Relevance of Defences to Accident Liability in Nervous Shock Cases” (1983) 3 LS 43. 2 Butterfield v Forrester (1809) 11 East 60; 103 ER 926 at 927. This case involved a public nuisance on the highway: the plaintiff galloping at full speed on his horse collided with a pole placed across the highway by the defendant. Judgment for the defendant was upheld.

568

Part III: Liability for Mental Harm

[16.40]

contributorily negligent the defendant would retain entire responsibility if he or she had the last opportunity of avoiding the harm,3 Parliament stepped in. Beginning in Canada in 1924,4 statutes in all Commonwealth jurisdictions5 introduced apportionment of responsibility in proportion to the degree of fault. In the United States this move resulted from statutes in some jurisdictions and judicial decisions in others.6 [16.40] Thus defendants, in order to reduce their liability for negligence, must show that the plaintiff was also negligent, and that this negligence contributed to the injury. The standard of care for contributory negligence is the same as that for negligence generally: it was suggested that because the issue is whether the plaintiff took reasonable care for his or her own safety, in practice the test may be somewhat different,7 but the Civil Liability Acts in some jurisdictions now provide expressly that the standard is the same.8 Moreover, there is no need to show that the plaintiff’s negligence was in breach of a duty of care owed to the defendant.9 The question whether the plaintiff’s negligence was contributory to the harm involves both causation and remoteness issues.10 In a typical contributory negligence case, such as a motor vehicle 3

Davies v Mann (1842) 10 M & W 546; 152 ER 588 is the origin of this rule. Note also Radley v London & North Western Railway Co (1876) 1 App Cas 754.

4

Contributory Negligence Act, SO 1924, c 32. For the current Canadian legislation, see Contributory Negligence Act, RSA 2000, c C-27; Negligence Act, RSBC 1996, c 333; Tortfeasors and Contributory Negligence Act, CCSM c T-90; Tortfeasors Act, RSNB 2011, c 231; Contributory Negligence Act, RSNL 1990, c C-33; Contributory Negligence Act, RSNWT 1988, c C-18 (applying also to Nunavut); Contributory Negligence Act, RSNS 1989, c 95; Negligence Act, RSO 1990, c N-1; Contributory Negligence Act, RSPEI 1988, c C-21; Contributory Negligence Act, RSS 1978, c C-31; Contributory Negligence Act, RSY 2002, c 42. 5 The Law Reform (Contributory Negligence) Act 1945 (UK) was the model for the Australian statutes. For the current Australian legislation, see Civil Law (Wrongs) Act 2002 (ACT), s 47; Law Reform (Miscellaneous Provisions) Act 1965 (NSW), Pt 3; Law Reform (Miscellaneous Provisions) Act (NT), Pt V; Law Reform Act 1995 (Qld), Pt 3 Div 3; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), s 7; Wrongs Act 1954 (Tas); Wrongs Act 1958 (Vic), Pt V; Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), ss 4 – 6. For other jurisdictions, see Contributory Negligence Act 1947 (NZ), s 3(1); Civil Liability Act 1961 (IRL), s 34(1); Apportionment of Damages Act 1956 (ZAF), s 1(1). 6

See DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 1, pp 771–772.

7

See McHale v Watson (1966) 115 CLR 199. Courts not uncommonly deemed conduct to be negligent which they would be unprepared to label as contributorily negligent. For suggestions that the law should openly recognise that the standard of care in negligence and contributory negligence should be different see F James and JJ Dickinson, “Accident Proneness and Accident Law” (1950) 63 Harv L Rev 769; F James, “The Qualities of the Reasonable Man” (1951) 16 Mo L Rev 1; R Parsons, “Negligence, Contributory Negligence and the Man who did not Ride the Bus to Clapham” (1957) 1 MULR 163. 8

See Civil Liability Act 2002 (NSW), s 5R; Civil Liability Act 2003 (Qld), s 23; Civil Liability Act 2002 (Tas), s 23; Wrongs Act 1958 (Vic), s 62; Civil Liability Act 2002 (WA), s 5K; compare Civil Liability Act 1936 (SA), ss 3, 4.

9 10

See eg Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291.

See eg Jones v Livox Quarries Ltd [1952] 2 QB 608; Gent-Diver v Neville [1953] St R Qd 1; Gittens v O’Brien (1986) 4 MVR 27; Wynbergen v Hoyt’s Corporation Pty Ltd (1997) 72 ALJR 65.

[16.50]

16 Defences

569

collision, the plaintiff’s carelessness contributes to the accident causing the damage, but it may simply cause or increase the damage suffered as a result of the accident, as in cases involving failure to wear seat belts or crash helmets.11 Another variety of case is where the plaintiff, without contributing to the accident as such, is exposed to the risk of involvement by the position in which he or she places himself or herself.12

Contributory negligence in psychiatric injury cases [16.50] In psychiatric injury cases, as in any other kind of negligence case, the plaintiff’s claim may be met by a plea of contributory negligence. This may occur where the harm suffered stems from fear for the plaintiff’s own safety (as in the older “nervous shock” cases13) if a near-accident results from the combined negligence of both parties: the plaintiff who carelessly steps off the kerb into the path of a negligent driver, or does not take proper care in the driving of his or her own vehicle, may be viewed as having been partly responsible for psychiatric injury resulting from the fright of a narrowly-averted disaster. An analogous example is Shotter v R & H Green & Silley Weir Ltd14 where a welder using an oxy-acetylene burner with a defective rubber tube was injured by a flash of flame caused by escaping gas, luckily avoiding causing a major explosion in a dockyard. Damages for injuries including psycho-neurosis were reduced by half due to his contributory negligence in not making a proper examination of the tubes before commencing work that day. Similarly, claimants who suffer psychiatric consequences through experiencing an accident or near-accident to another may themselves be partially to blame. In Kwok v British Columbia Ferry Corporation,15 where the plaintiff and his family were on vacation on board their pleasure boat, the plaintiff was partly responsible for the collision with a ferry that attempted to overtake his boat. The plaintiff’s wife and two of his children died as a result of this tragedy, and the plaintiff claimed not only for his own personal injury but also for psychiatric damage caused by the loss of his family. Cumming J of the British Columbia Supreme Court adjudged him to be one-third to blame for the accident and reduced his damages 11

See eg Froom v Butcher [1976] QB 286; Galaske v O’Donnell [1994] 1 SCR 670 (seat belts); O’Connell v Jackson [1972] 1 QB 270 (crash helmets). Compare Kirk v Nominal Defendant (Qld) [1984] 1 Qd R 592 (protective clothing).

12

See eg Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 (dustman riding on back of dustcart). Note also Owens v Brimmell [1977] QB 859, which beautifully illustrates the three kinds of contributory negligence mentioned in the text. The plaintiff failed to wear a seat belt, voluntarily allowed himself to be a passenger in a car driven by a drunken driver, and assisted the driver to reach this state by going out with him for an evening’s drinking (during which each consumed about eight or nine pints of beer). See NP Gravells, “Three Heads of Contributory Negligence” (1977) 93 LQR 581.

13

Typified by Dulieu v White & Sons [1901] 2 KB 669.

14

Shotter v R & H Green & Silley Weir Ltd [1951] 1 Lloyd’s Rep 329. See also Matei v McCrorie (unreported, Vic SC, No 27 of 1985, 22 May 1986).

15

Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318.

570

Part III: Liability for Mental Harm

[16.60]

accordingly. In Regan v Harper16 the plaintiff, his wife and two daughters were all injured in a car accident for which the plaintiff, who was driving, was held 10 per cent responsible. His claim for the severe psychiatric trauma caused by witnessing the injuries to his wife and daughters was reduced by the same proportion, though their personal injury claims were unaffected.17 [16.60] In some other cases contributory negligence has been raised in argument but on the facts has not been established, as for example in Klug v Motor Accidents Insurance Board18 where the plaintiff claimed for psychiatric injury resulting from the death of his de facto wife due to her own negligent driving. The defendant pleaded that the plaintiff, who was a passenger in the car, contributed to his own injuries by failing to wear a seat belt, but the court held that the defendant failed to discharge the onus of proving on the balance of probabilities that the plaintiff had neglected to “belt up”.19 There was again a plea of contributory negligence in Beaulieu v Sutherland,20 where the plaintiff and her two friends were walking three abreast along a road at night when the defendant ran down and killed one of the friends, but given the court’s finding that the plaintiff had not suffered a psychiatric illness, only anxiety and grief, it was not necessary to examine the contributory negligence issue. In other cases, any hint of contributory negligence that might be suggested by the facts is presumably negatived by the defendant’s failure to raise any such defence, as for example in Chester v Waverley Corporation,21 where a mother allowed her seven-year-old son to go out and play in a street in which there was a trench filled with water unguarded by any protective fencing, or Boardman v Sanderson,22 where a father left his eight-year-old son on the forecourt of a petrol station while he went into the adjoining office.23

16

Regan v Harper [1971] Qd R 191.

17

Note also Howes v Crosby (1984) 6 DLR (4th) 698 (mother walking with daughter claimed damages for psychiatric injury caused by defendant motorist who ran down and killed daughter; however, there was evidence of contributory negligence, in that mother had allowed her daughter to walk nearest to the road, with their backs to oncoming traffic).

18

Klug v Motor Accidents Insurance Board (1991) Aust Torts Rep 81-134.

19

Another example is Oyston v St Patrick’s College [2011] NSWSC 269, where the defendant argued unsuccessfully that failure to complain about bullying at school amounted to contributory negligence.

20

Beaulieu v Sutherland (1986) 35 CCLT 237.

21

Chester v Waverley Corporation (1939) 62 CLR 1.

22

Boardman v Sanderson [1964] 1 WLR 1317.

23

See also Rowe v McCartney [1975] 1 NSWLR 544, affirmed Rowe v McCartney [1976] 2 NSWLR 72 (no suggestion that plaintiff guilty of contributory negligence in letting friend drive her powerful car); Galt v British Railways Board (1983) 133 New LJ 870 (no suggestion that train driver who just managed to avoid hitting two railwaymen on track was negligent).

[16.70]

16 Defences

571

Contributory negligence of the primary victim [16.70] The most interesting issue that arises in cases where psychiatric injury results from an accident to someone else is whether the secondary victim’s claim is affected by contributory negligence on the part of the primary victim. This question goes to the heart of the contributory negligence defence, because back in the 19th century when the plea evolved as a shield to protect defendants against the rapid advance of negligence liability, the courts were originally prepared to hold that not only the plaintiff’s own contributory negligence, but also that of others with whom he or she was associated, sufficed to bar the claim.24 It was held that those who travelled as passengers on board vehicles could not recover against third parties because they were identified with the driver’s negligence,25 and that children injured while in the care of parents or guardians had no claim if the negligence of the person in whose charge they were was partially responsible for the injury.26 Something of this doctrine of identification can be seen in Victorian Railways Commissioners v Coultas,27 the original case denying liability for nervous shock. It seems that at one point the defendant intended to plead that James Coultas, who was driving the buggy across the level crossing when the train appeared, was guilty of contributory negligence in driving on when the gatekeeper directed him to go back. However Sir Richard Couch, giving judgment in the Privy Council, said that since the defendants did not move for a new trial they could not now contend that there was contributory negligence.28 If this plea had been successfully raised, it would have defeated not only James Coultas’s claim for medical expenses but also his wife’s claim for shock, since as a passenger she would have been identified with his negligence. Gradually — no doubt against the background of liability insurance becoming more common and then in road accident and other situations compulsory29 — the law whittled down the doctrine of identification. The fictional agency that was the basis of the passenger being identified with the driver’s negligence

24

See generally C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), pp 333–335; MM MacIntyre, “The Rationale of Imputed Negligence” (1944) 5 UTLJ 368.

25

Thorogood v Bryan (1849) 8 CB 115; 137 ER 452.

26

Waite v North Eastern Railway Co (1858) 1 EB & E 719; 120 ER 679. See also Russell v Jorgenson (1909) 9 SR (NSW) 164. 27

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

28

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 at 225.

29

Compulsory liability insurance for the owners and drivers of motor vehicles was introduced in New Zealand in 1928, Britain in 1930 and Australia between 1935 and 1944: see C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), p 472. Liability insurance is also mandatory in such circumstances in all Canadian jurisdictions: see AM Linden, Canadian Tort Law (4th ed, Butterworths, Toronto, 1988), pp 596–597.

572

Part III: Liability for Mental Harm

[16.80]

was repudiated in Mills v Armstrong, The Bernina.30 The identification of children with the negligence of their elders met its end in Oliver v Birmingham & Midland Motor Omnibus Co31 where an agile grandfather jumped out of the way of a “Midland Red” bus but let go the hand of his four-year-old grandson who was struck by the bus and injured. Husbands and wives are not identified with the negligence of their spouses,32 nor are principals with independent contractors,33 or friends with each other.34 The most important situation in which the doctrine of identification now operates is in master–servant cases: the employee’s contributory negligence is imputed to the employer.35 It also applies where a car owner allows someone else to drive the car for purposes in which the owner has an interest.36 Though it has been suggested that the doctrine of identification should apply in all cases where there would be vicarious liability,37 this does not seem justifiable, because the policy basis underlying vicarious liability is to transfer liability to a financially solvent defendant, and there is no similar policy justification requiring financially solvent plaintiffs to meet part of their own loss out of their own pockets.38 [16.80] This is the background against which we need to ask whether a claim for psychiatric injury should be affected in any way by the primary victim’s contributory negligence. The point has already been made that in such circumstances the plaintiff must show a duty of care owed to himself or herself personally.39 The claim is in no way a derivative claim. In the words of Lord Wright in Bourhill v Young:

30

Mills v Armstrong, The Bernina (1888) 13 App Cas 1. See also Horning v Sycamore [1935] NZLR 581; Biggs v Woodhead [1940] NZLR 108; Blight v Warman [1964] SASR 163. Note France v Parkinson [1954] 1 WLR 581 where it was held that the negligence of the driver of a hired car could not be imputed to the owner of the car, who was in the same position as a passenger.

31

Oliver v Birmingham & Midland Motor Omnibus Co [1933] 1 KB 35. See also Hudson’s Bay Co v Wyrzykowski [1938] 3 DLR 1; Kaplan v Canada Safeway Ltd (1968) 68 DLR (2d) 627; Ducharme v Davies [1984] 1 WWR 699.

32

Mallett v Dunn [1949] 2 KB 180; Drinkwater v Kimber [1952] 2 QB 281.

33

Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 581 per Hardie Boys J.

34

Morton v Douglas Homes Ltd [1984] 2 NZLR 548 at 581 per Hardie Boys J.

35

Chaplin v Hawes (1828) 3 C & P 554; 172 ER 543; Carberry v Davies [1968] 1 WLR 1103. See C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), pp 323–324.

36

Berrill v Road Haulage Executive [1952] 2 Lloyd’s Rep 490; Lampert v Eastern National Omnibus Co [1954] 1 WLR 647; Pennell v O’Callaghan [1954] VLR 320; Manawatu County v Rowe [1956] NZLR 78; Doyle v Pick [1965] WAR 95; Milkovits v Federal Capital Press of Australia Pty Ltd (1972) 20 FLR 311.

37

The so-called “both ways” test: see CO Gregory, “Vicarious Responsibility and Contributory Negligence” (1932) 41 Yale LJ 831.

38

See CD Baker, Tort (6th ed, Sweet & Maxwell, London, 1996), pp 219–220.

39

See [7.320]–[7.380].

[16.100]

16 Defences

573

If, however, the appellant has a cause of action it is because of a wrong to herself. She cannot build on a wrong to someone else. Her interest, which was in her own bodily security, was of a different order from the interest of the owner of the car.40

On general principle, then, it would seem to follow that the contributory fault of the primary victim should not operate to reduce the damages of another who suffers psychiatric injury in consequence of the accident. [16.90] However, the two major authorities do not bear out this conclusion. In Dillon v Legg,41 the leading United States decision on bystander recovery for psychiatric harm, the defendant ran down and killed a little girl who was crossing the road. The accident was witnessed by her mother and older sister, both of whom recovered damages for resulting emotional trauma — in the mother’s case, despite being outside the zone of danger. According to Tobriner J: [D]efendant has interposed the defence that the contributory negligence of the mother, the sister and the child contributed to the accident. If any such defence is sustained and defendant found not liable for the death of the child because of the contributory negligence of the mother, sister or child, we do not believe that the mother or sister should recover for the emotional trauma which they allegedly suffered. In the absence of the primary liability of the tortfeasor for the death of the child, we see no ground for an independent and a secondary liability for claims for injuries by third parties. The basis for such claims must be adjudicated liability and fault of the defendant; that liability and fault must be the foundation for the tortfeasor’s duty of due care to third parties who, as a consequence of such negligence, sustain emotional trauma.42

On the facts, no such defence was made out and the plaintiffs recovered damages. Much more recently, in Alcock v Chief Constable of South Yorkshire Police,43 Lord Oliver of Aylmerton likewise suggested that the contributory negligence of the primary victim should affect a secondary victim’s claim: I can visualise great difficulty arising, if this be the law, where the accident, though not solely caused by the primary victim has been materially contributed to by his negligence. If, for instance, the primary victim is himself 75 per cent responsible for the accident, it would be a curious and wholly unfair situation if the plaintiff were enabled to recover damages for his or her traumatic injury from the person responsible only in a minor degree whilst he in turn remained unable to recover any contribution from the person primarily responsible since the latter’s negligence vis-à-vis the plaintiff would not even have been tortious.

[16.100] These dicta are undeniably important but appear to be inconsistent with the general principle that a psychiatric injury victim’s claim is independent of that of any other party involved. As regards 40

Bourhill v Young [1943] AC 92 at 108.

41

Dillon v Legg 441 P 2d 912 (Cal 1968).

42

Dillon v Legg 441 P 2d 912 (Cal 1968) at 916. See also Portee v Jaffee 417 A 2d 521 (NJ 1980); Dawson v Garcia 666 SW 2d 254 (Tex 1984); State v Eaton 710 P 2d 1370 (Nev 1985).

43

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418.

574

Part III: Liability for Mental Harm

[16.110]

Dillon v Legg,44 the case seems to rest on the fact that in California at that time contributory negligence was still a complete defence.45 The defendant being in no way responsible in law for the accident, there was no basis for legal liability to secondary parties. Lord Oliver’s dictum in Alcock v Chief Constable of South Yorkshire Police46 seems to be grounded on the non-liability of the primary victim to the plaintiff, so preventing the defendant from obtaining contribution.47 However, there is now considerable authority in Australia and elsewhere endorsing the right to sue for psychiatric injury caused by another person negligently killing, injuring or endangering himself or herself.48 If this is correct, the basis of Lord Oliver’s assertion disappears. The secondary victim would be able to recover in full for psychiatric injury and the tortfeasor who is sued would be able to claim contribution from the other. [16.110] An English case now provides some support for the position taken by the dicta in these two cases. In Greatorex v Greatorex,49 Cazalet J held that a primary victim does not owe a duty of care to another in circumstances where his self-inflicted injuries caused that other to suffer psychiatric injury. The case concerned a man who was injured in a road accident due to his own negligence, and his father who was one of the fire officers who attended the scene. Lord Oliver’s dictum was one of the influences on Cazalet J’s decision. Another was a decision of the German Bundesgerichtshof that refused to recognise a duty where a wife suffered psychiatric injury as the secondary victim of an accident in which her husband had died and which had been partly caused by his own negligence.50 Though Cazalet J has been commended for his use of comparative law,51 his decision unfortunately failed to take into account leading Australian authorities on the issue of psychiatric injury caused by witnessing another negligently injuring himself or herself,52 and it is therefore submitted that Greatorex should not be regarded as conclusive on the contributory negligence issue.

44

Dillon v Legg 441 P 2d 912 (Cal 1968).

45

California adopted comparative negligence by judicial decision in 1969: Li v Yellow Cab Co 532 P 2d 1226 (Cal 1969).

46

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 418.

47

See MA Jones and AM Dugdale (ed), Clerk and Lindsell on Tort (20th ed, London, Sweet & Maxwell, 2010), para 8-77.

48

See Chapter 15.

49

Greatorex v Greatorex [2000] 1 WLR 1970, noted by P Handford (2001) 117 LQR 397.

50

Anon (1971) BGHZ 56, 163: see the translation in B Markesinis, The German Law of Torts: A Comparative Treatise (4th ed, Hart Publishing, Oxford, 2002), p 115.

51

See B Markesinis, “Foreign Law Inspiring National Law: Lessons from Greatorex v Greatorex” [2002] CLJ 386.

52

See [15.180]–[15.190].

[16.120]

16 Defences

575

[16.120] Despite the dicta in Dillon v Legg53 and Alcock v Chief Constable of South Yorkshire Police54 and the decision in Greatorex v Greatorex,55 it is submitted that logic still clearly dictates that the secondary victim’s damages for psychiatric injury should not be reduced by reason of the primary victim’s contributory negligence. Until recently there was not all that much authority to justify the view contended for,56 though in the New South Wales case of White v Butcher,57 parents who suffered psychiatric injury as a result of a serious accident to their daughter recovered damages unaffected by their daughter’s contributory negligence. In Madigan v Hughes,58 another New South Wales decision, where an 11-year-old boy was injured while riding his bicycle, Abadee J held that the boy’s damages had to be reduced on the ground of his contributory negligence, but accepted an agreement by all parties that the boy’s contributory negligence was no defence to the parents’ action for psychiatric injury; if the law was not clear, it seems strange that the defendant was willing to concede this point.59 Much clearer authority is now provided by the Tasmanian case of Hanlon v Hanlon,60 which involved a family boating tragedy on Arthur’s Lake. The plaintiff’s husband and their two young sons had gone out fishing on her father-in-law’s boat, but the boat was overturned due to the father-inlaw’s negligence. The plaintiff, who had gone to meet the boat, was told that there had been an accident and endured the agony of waiting for news. Eventually one son was found safe, but it became clear that her other son and her husband had perished. She brought an action against her father-in-law as the person responsible. One argument put forward for the defence was that her husband had been guilty of contributory negligence in not wearing a lifejacket. However the court agreed with the plaintiff’s submission that the contributory negligence legislation was inapplicable because she did not suffer harm partly as a result of her wrongful act.

53

Dillon v Legg 441 P 2d 912 (Cal 1968).

54

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

55

Greatorex v Greatorex [2000] 1 WLR 1970.

56

The issue was not raised in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, even though there seemed to be potential for it: the two electricians rescued by the plaintiff were, it seems, partly responsible for the explosion in which they were injured.

57

White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982).

58

Madigan v Hughes [1999] NSWSC 183.

59

Note also Reeve v Brisbane City Council [1995] 2 Qd R 661, a claim for psychiatric injury by the widow of a bus driver killed in an accident in the bus depot. It was agreed that the deceased was 10 per cent contributorily negligent. Because the court ultimately ruled that the widow was owed no duty of care in respect of the psychiatric injury, it did not have to consider whether the deceased’s contributory negligence would have an effect on her claim.

60

Hanlon v Hanlon [2006] TASSC 1.

576

Part III: Liability for Mental Harm

[16.130]

[16.130] Further support is provided by decisions from a number of overseas jurisdictions.61 In the Canadian case of Young v Burgoyne,62 where a father suffered psychiatric harm on arriving at the aftermath of an accident in which his daughter was badly injured, Hallett J held that the defendant was solely at fault, in spite of the fact that the daughter’s injuries were caused by failure to wear a seat belt, and were also contributed to by her intoxication. In Scotland, in Harvey v Cairns,63 a claim for emotional damage was made on behalf of a brother who witnessed his six-year-old sister’s death under the wheels of a pickup truck, Lord Murray held that children of that age could be found guilty of contributory negligence and that she was two-thirds to blame. The tenor of the judgment suggests that this would not have brought about a reduction in the brother’s damages, but his Lordship found that no causal link between the accident and the brother’s illness had been established. Courts in the United States have sometimes had occasion to rule on this issue. In the United States in Meredith v Hanson64 a Washington court made a clear finding that a stepfather’s contributory fault could not be imputed to his stepson who witnessed the accident to him and suffered emotional trauma in consequence; and in Hermann Hospital v Martinez65 a Texas court held that the cap applying to damages payable to the victim of a traffic accident did not apply to the claim for emotional distress brought by her mother and sister who had witnessed the accident. [16.140] The principle that the shock victim’s claim should be recognised as independent of that of the accident victim, and that the latter’s contributory negligence should be regarded as irrelevant, is also supported by the case law on the statutory causes of action for “mental or nervous shock” in New South Wales (now superseded by provisions in the Civil Liability Act 2002 (NSW) but still operational in some contexts), the Australian Capital Territory and the Northern Territory.66 Under these provisions it is clear law that the cause of action given to those who suffer shock consequent on accidents or near-accidents to another is in no way dependent on whether the defendant is liable to that other,67 and it must follow that such a claim is unaffected by contributory negligence on the part of the accident victim. 61

There is little English authority. However, it is of interest that in McLoughlin v O’Brian [1983] 1 AC 410 at 429, Lord Russell of Killowen said that the court was “not concerned with any problem that might have been posed had the accident not been wholly attributable to the negligence of the defendant, but partly attributable to negligent driving by the injured son of the plaintiff”. 62

Young v Burgoyne (1981) 122 DLR (3d) 330.

63

Harvey v Cairns 1989 SLT 107.

64

Meredith v Hanson 697 P 2d 602 (Wash 1985).

65

Hermann Hospital v Martinez 990 SW 2d 476 (Tex 1990).

66

Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4; Civil Law (Wrongs) Act 2002 (ACT), s 36; Law Reform (Miscellaneous Provisions) Act (NT), s 25. See [13.30].

67

See [13.60].

[16.160]

16 Defences

577

The Civil Liability Acts [16.150] In Australia, the picture has now been complicated by a recommendation of the Ipp Report in 2002 and its adoption by one Australian jurisdiction. The report noted that liability for what it referred to as mental harm was based on the existence of a duty to the person who suffered such harm and was not dependent on a duty owed to the person killed, injured or imperilled. However, it recommended that where the damages awarded to an injured person (or his estate, in the case of a fatal accident) were reduced for contributory negligence the damages awarded to the plaintiff for mental harm should be reduced by the same proportion. The report justified this recommendation on the ground that it was unfair to require the defendant to pay full compensation for the mental harm suffered by the plaintiff when it was partly the fault of the person killed, injured or endangered.68 As argued at [16.100], if the mental harm victim has a cause of action against the primary victim, this rationale is considerably weakened. The panel’s brief required it to assume that the award of damages for personal injury had become unsustainable and unaffordable,69 and so it was looking for ways of reducing the scope of liability; and, as its report makes clear, it was influenced by a provision reducing the mental harm victim’s liability in this situation that was then before the New South Wales Parliament.70 [16.160] This provision has now been enacted in New South Wales,71 though it is significant that despite the panel’s recommendation, no other State has adopted it.72 This provision was applied in Lee v Carlton Crest Hotel (Sydney) Pty Ltd,73 where Mr and Mrs Lee drove into a multi-storey car park. Mrs Lee having got out, her husband proceeded to reverse the car into a parking bay. Encountering some resistance, he pressed down on the accelerator; Mrs Lee watched in horror as the car disappeared over the edge of the car park, the barrier at the edge of the car park being totally inadequate to prevent this happening. Mrs Lee was awarded damages for her mental harm, but reduced by 20 per cent for her husband’s

68

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), paras 9.31–9.33.

69

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), p ix (terms of reference).

70

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), para 9.32.

71

Civil Liability Act 2002 (NSW), s 30(3).

72

Note, however, that in Awad v Bebnowski [2002] SADC 157, a decision under the Wrongs Act 1936 (SA), s 35A, the secondary victim’s damages were reduced because the primary victim was not wearing a properly adjusted seat belt.

73

Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280.

578

Part III: Liability for Mental Harm

[16.170]

contributory negligence.74 In other cases, the issue was discussed but it was held that there was no contributory negligence on the facts of the case.75

The issue in other contexts [16.170] There are other contexts in which the problem has arisen whether the contributory negligence of one tort victim will affect another’s claim. As regards rescuers, the law is clear: the duty to the rescuer is independent of any duty owed to the endangered person,76 and if the latter is guilty of contributory negligence the rescuer’s damages would remain unaffected. In most jurisdictions, a different view prevails as regards Fatal Accidents Act actions. The contributory negligence of the deceased is generally held to reduce the damages that must be paid to the relatives.77 This, it is true, is simply a consequence of the special position of such claims, which from the outset have been dependent on the condition that the deceased would have been able to sue had he or she survived.78 Nevertheless, when New South Wales abandoned the rule that contributory negligence constituted a complete defence it recognised the importance of providing proper compensation for the deceased’s relatives, who were in no way to blame for the loss of their breadwinner, by specifically enacting that the contributory negligence of the deceased should not in any way operate to reduce the damages of plaintiffs in wrongful death actions,79 and similar reforms have been enacted in 74

In Wagstaff v Haslam [2006] NSWSC 294 the plaintiff and her husband were having a drink in a pub when a man in another group of drinkers took objection to something the husband said and several men in the group proceeded to assault Mr Wagstaff. Mrs Wagstaff, fearing her husband was going to die, went to his assistance, kicking the man holding her husband down in what she described in evidence as the “family jewels”, but the man chased her and she had to seek refuge in the ladies’ toilet. She sued the publican for mental harm suffered as a result of this experience. Damages were awarded, but reduced for her husband’s contributory negligence in provoking his assailants. However, on appeal, it was held that there was no breach of duty by the publican and no causation: Wagstaff v Haslam (2007) 69 NSWLR 1.

75

See Waverley Council v Ferreira [2005] NSWCA 418; Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109.

76

See Videan v British Transport Commission [1963] 2 QB 650 (no duty owed to endangered person because he was trespasser). Note also Chapman v Hearse (1961) 106 CLR 112 (endangered person’s contributory negligence operated to reduce damages payable to his estate).

77

Senior v Ward (1859) 1 E & E 385; 120 ER 954; Littley v Brooks [1932] 2 DLR 386.

78

See now Fatal Accidents Act 1976 (UK), s 1(1). The provisions of the original Fatal Accidents Act 1846 (UK), s 1 were copied in practically all common law jurisdictions. For the equivalent Australian provisions, see Civil Law (Wrongs) Act 2002 (ACT), s 24; Compensation to Relatives Act 1897 (NSW), s 3(1); Compensation (Fatal Injuries) Act (NT), s 7(1); Civil Proceedings Act 2011 (Qld), s 64; Civil Liability Act 1936 (SA), s 28(1); Fatal Accidents Act 1934 (Tas), s 4; Wrongs Act 1958 (Vic), s 16; Fatal Accidents Act 1959 (WA), s 4(1). On the history of the Fatal Accidents Acts, see P Handford, “Lord Campbell and the Fatal Accidents Act” (2013) 29 LQR 420. 79

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 13.

[16.180]

16 Defences

579

Victoria and the Australian Capital Territory.80 Turning to actions for loss of consortium and services, the courts both in Australia and in England again accepted the principle that contributory negligence on the part of the injured employee or family member did not diminish the damages recoverable by the employer, husband or parent bringing the action,81 although three Australian jurisdictions have a different rule enshrined in statute,82 and Canada83 and the United States84 also favour a reduction of the damages. Finally, it seems likely that the duty as regards pre-natal injuries recognised by Watt v Rama85 would be unaffected by the mother’s contributory negligence. The contrary rule laid down by statute in England86 has been severely criticised.87 [16.180] The law on the effect of the contributory negligence of one plaintiff on the rights of another is thus complex and contains some anomalies. Nonetheless it is submitted that in psychiatric injury cases the primary victim’s contributory negligence should not reduce the damages of a secondary victim who has suffered resulting mental harm. Dicta in leading cases to the contrary88 are influenced by outdated ideas of contributory negligence or unnecessary limits on the scope of psychiatric damage recovery, and should not be allowed to stand against the clear trend in negligence law away from the identification of one plaintiff with the want of care of another. 80

Wrongs Act 1958 (Vic), s 26(4); Civil Law (Wrongs) Act 2002 (ACT), s 27.

81

Mallett v Dunn [1949] 2 KB 180; Curran v Young (1965) 112 CLR 99.

82

Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA), s 7; Civil Law (Wrongs) Act 2002 (ACT), s 104; Law Reform (Miscellaneous Provisions) Act (NT), s 18. The Australian Capital Territory and South Australia provisions are not limited to loss of consortium cases.

83

See McLaughlin v Long [1927] SCR 303; Attorney-General of Canada v Jackson [1946] 2 DLR 481; Enridge v Copp (1966) 57 DLR (2d) 239. Contrast Macdonald v McNeil [1953] 1 DLR 755.

84

See DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, pp 585–586.

85

Watt v Rama [1972] VR 353. See also Duval v Seguin (1972) 26 DLR (3d) 418, affirmed Duval v Seguin (1973) 40 DLR (3d) 666. Although it had been assumed in thalidomide cases that a duty of care is owed to an unborn child at common law (see eg Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458; Whitehouse v Jordan [1981] 1 WLR 246; and note also McKay v Essex Area Health Authority [1982] QB 1166 at 1178 per Stephenson LJ), it was not until B v Islington Health Authority [1993] QB 204 that an English appellate court actually recognised the duty to unborn children. In this case, the birth occurred prior to the commencement of the Congenital Disabilities (Civil Liability) Act 1976 (UK) which pursuant to s 1(1) and (2) in certain circumstances confers a right of action on a child born disabled in respect of that “disability”. See generally PF Cane, “Injuries to Unborn Children” (1977) 51 ALJ 704; PJ Pace, “Civil Liability for Pre-Natal Injuries” (1977) 40 MLR 141. All the above cases involve negligence on the part of someone other than the mother. The first case in which the mother was held liable for negligence to her unborn child appears to be Lynch v Lynch (1991) 25 NSWLR 411.

86

Congenital Disabilities (Civil Liability) Act 1976 (UK), s 1(7).

87

See PF Cane, “Injuries to Unborn Children” (1977) 51 ALJ 704 at 716.

88

Dillon v Legg 441 P 2d 912 (Cal 1968); Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; see [16.90]–[16.100].

580

Part III: Liability for Mental Harm

[16.190]

ASSUMPTION OF RISK [16.190] Assumption of risk is the other major defence to negligence, though it is raised much less frequently and is not often successful, due to the difficulty in establishing the two stringent prerequisites of the plea: that the plaintiff had a pre-existing and comprehensive appreciation of the precise nature of the risk incurred, and that he or she freely and voluntarily elected to be exposed to the danger. Only if these matters are established is the defendant absolved from all responsibility for the risk of harm. The defence used to be of major importance in a number of contexts, particularly employment situations, but now has little role to play in that arena and has been excluded in other areas also. It has also suffered something of an identity crisis due to controversy as to whether it should be confined to cases where there is express agreement to assume the risk of harm,89 and whether it is truly a defence or negates the breach of duty element in negligence.90 Nonetheless, it can be invoked in a number of situations, particularly in cases involving participating in or watching sport, or where passengers accept lifts from drunken drivers, and in employer–employee situations of an exceptional nature such as Imperial Chemical Industries Ltd v Shatwell,91 where two brothers agreed to disobey company instructions and carry out detonations with short firing leads, with fatal results. [16.200] Judicial references to the assumption of risk doctrine in psychiatric injury cases are few and far between, though in Dulieu v White & Sons,92 where the plaintiff suffered nervous shock as a result of narrowly escaping being hit by a negligently driven vehicle, Kennedy J suggested that there could be no question that a person willingly assumed such a risk merely by using the streets. (The mere suggestion sounds strange today — 21st century courts would never dream of deeming road users, by their mere presence, to have consented to the risk of injury.) In addition, in Bassanese v Martin93 there is an intimation that the wife acquiesced in the husband committing adultery with another 89

See eg FH Bohlen, “Voluntary Assumption of Risk” (1906) 20 Harv L Rev 14, 91; DJ Payne, “Assumption of Risk in Negligence” (1957) 35 Can BR 350; F James, “Assumption of Risk: Unhappy Reincarnation” (1968) 78 Yale LJ 185; AJE Jaffey, “Volenti Non Fit Injuria” [1985] CLJ 87. Wooldridge v Sumner [1963] 2 QB 43 at 69 per Diplock LJ; Nettleship v Weston [1971] 2 QB 691 at 702 per Lord Denning MR.

90

Support for the theory that it negates breach of duty is provided by cases on participation in sport and drunken drivers. For discussion see C Sappideen and P Vines (eds), Fleming’s The Law of Torts (10th ed, Lawbook Co, Sydney, 2011), pp 340–342. See also Jaensch v Coffey (1984) 155 CLR 549 where Deane J at 604–605, in discussing “the limitations on the ordinary test of reasonable foreseeability in cases of mere psychiatric injury”, referred to assumption of risk in this context. Though he said that it was unnecessary to decide the matter, he stated his opinion that it was not merely a defence but that absence of assumption of risk was a necessary criterion of proximity of relationship.

91

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656.

92

Dulieu v White & Sons [1901] 2 KB 669 at 672.

93

Bassanese v Martin (1982) 31 SASR 461.

[16.210]

16 Defences

581

woman, although of course there is no question that she thereby consented to the risk of mental harm resulting from his being murdered by the woman’s jealous lover. More recently, in Monie v Commonwealth,94 where a father was shot by one of his employees and his wife (who came to the hospital) and son (who was told to stay away from the scene of the crime) claimed damages for psychiatric injury, it was said that though the father knew the employee had been in gaol, this was a long way short of consenting to the risk of being shot, and so there was no need to decide whether consent on the part of the primary victim would deprive his wife and son of their damages.95 Finally, in Jaensch v Coffey96 Deane J raised an issue similar to that raised above in connection with contributory negligence97 when discussing his suggested limitation that in a secondary victim situation no duty would arise unless psychiatric injury was sustained as a result of the death, injury or peril of someone other than the negligent defendant. He said: [T]here is no need to consider here whether this limitation should be more widely stated as excluding such a duty of care unless the carelessness was in any event wrongful in the sense that it involved a breach of the duty of care owed to the person who suffered or was at risk of physical injury: cf, eg, a case where a defence of volenti non fit injuria is available against that person.98

However, there is considerable doubt about the correctness of the suggested limitation,99 which probably reduces the significance of this remark. [16.210] Circumstances can be envisaged where a plea of voluntary assumption of risk might be successful against a plaintiff who has suffered psychiatric harm. For example, it has been suggested that the claim of a mother who suffers traumatic injury from the shock of seeing her son killed in a speedway accident due to the negligence of another rider may be met by the assumption of risk defence.100 Arguably, so may companions electing to participate together in potentially hazardous pastimes such as parachuting, hang-gliding, mountain-climbing or skiing.101 Voluntary acceptance of the risk of injury in these situations conceivably includes the risk of physical and psychiatric illness through 94

Monie v Commonwealth [2007] NSWCA 230.

95

Monie v Commonwealth [2007] NSWCA 230 at [78]–[80] per Campbell JA (Mason P and Beazley JA concurring).

96

Jaensch v Coffey (1984) 155 CLR 549.

97

See [16.70]–[16.140].

98

Jaensch v Coffey (1984) 155 CLR 549 at 604.

99

See Chapter 15.

100

See DM Walker, The Law of Delict in Scotland (2nd ed, W Green, Edinburgh, 1981), p 678. Note Balthazor v Little League Baseball Inc 72 Cal Rptr 2d 337 (1998) (mother who witnessed 11-year-old son being struck by wild pitch during little league baseball game could not recover for negligent infliction of emotional distress because son’s negligence action barred by doctrine of assumption of risk). 101

But note Rootes v Shelton (1967) 116 CLR 383 (cross-over water-skiing); Bondarenko v Sommers (1968) 69 SR (NSW) 269 (hot-rodding on a country road).

582

Part III: Liability for Mental Harm

[16.220]

perception both of injury or danger to oneself and of the death, injury or imperilment of one’s partner. Again, someone who accepts a lift from a drunken driver and suffers psychiatric harm on witnessing the injuries the driver incurs in an accident resulting from unfitness to control the vehicle may not have a good cause of action.102 If one of the Shatwell brothers103 had not been injured in the explosion, but traumatised at viewing the death of the other, it again seems likely that a plea that the plaintiff assumed the risk would have been upheld.

ILLEGALITY [16.220] In general, the fact that the plaintiff is involved in an illegal activity at the time injury is suffered is no bar to recovery in tort.104 According to Latham CJ in Henwood v Metropolitan Transport Trust:105 The person who is injured in a motor accident may be a child playing truant from school, an employee who is absent from work in breach of his contract, a man who is loitering upon a road in breach of a by-law, or a burglar on his way to a professional engagement – but none of these facts is relevant for the purpose of deciding the existence or defining the content of the obligation of a motor driver not to injure them.106

It is different, however, when the injury arises out of an unlawful joint venture undertaken by plaintiff and defendant. As with the assumption of risk defence, there has been some discussion whether illegality in such circumstances is a ground of defence or negates a duty of care; until recent times, the leading authorities, at least in Australia, inclined towards 102

Note Bourque v Surrette (1978) 23 NBR (2d) 357, where parents claimed damages for “nervous shock” from a driver who had caused the deaths of his passengers. All had been drinking. An argument that the passengers had assumed the risk of harm failed on the facts. 103

Imperial Chemical Industries Ltd v Shatwell [1965] AC 656.

104

For exceptions, see eg Burns v Edman [1970] 2 QB 541 (Fatal Accidents Act claim ruled out on ground that deceased was a professional criminal); Murphy v Culhane [1977] QB 94 (person who attacks another in criminal affray may be debarred from suing); Gray v Thames Trains Ltd [2009] AC 1339 (person suffering from post-traumatic stress disorder as result of involvement in 1999 Ladbroke Grove rail crash killed pedestrian, found guilty of manslaughter: inconsistent with sentence of criminal court for civil court to compensate him).

105

Henwood v Metropolitan Transport Trust (1938) 60 CLR 438 at 446. See also Andrews v Nominal Defendant (1965) 66 SR (NSW) 85; Winter v Commonwealth (1992) 112 ACTR 10; Westwood v Post Office [1974] AC 1; Vancouver v Burchill [1932] SCR 620. The illegality defence is no longer available in personal injury cases in Canada: see Hall v Hebert [1993] 2 SCR 159. 106

United States examples in psychiatric injury cases include Meredith v Hanson 697 P 2d 602 (Wash 1985) where the defendant’s defence that the plaintiff stepfather should not be granted recovery for emotional harm caused by the injury to his stepson on the ground that he had a criminal record and was therefore an unworthy stepfather was deservedly rejected, and Caparco v Lambert 402 A 2d 1180 (RI 1979) where the court turned down the claim of a mother for psychiatric harm resulting from injury to her child when the child entered a neighbour’s parked car and released the handbrake, but on the ground that she did not witness the injury, laying no stress on the fact that the child was trespassing.

[16.230]

16 Defences

583

the latter view.107 However, the latest High Court decision108 has returned to the traditional approach under which illegality is simply a defence. Under either theory, the courts will generally refuse to recognise that one injured participant has a cause of action against the other.109 This would apply to psychiatric injury just as much as to any other form of harm. Thus, building on the standard example of the negligent safeblower who causes an explosion and injures another, if a third safeblower suffered psychiatric damage at the sight of the injury to his partner in crime, or in attempting to rescue him, there could surely be no available legal remedy. According to the cases110 the same would apply if, as the result of the negligent driving of the getaway car, one criminal was injured and another suffered shock and resulting psychiatric harm. A common fact situation in the leading cases is that the plaintiff is injured whilst joy-riding in a stolen car with his drunken mates. In Gala v Preston,111 for example, it was held that the plaintiff had no cause of action.112 There would have been no difference in outcome if the plaintiff had been psychiatrically rather than physically incapacitated as a result of the wayward driving — both claims are equally unsustainable.

LIMITATION OF ACTIONS [16.230] A rather different kind of defence is that the time allowed by law for the bringing of an action has expired before the issue of a writ. The limitation period for most tort actions is traditionally six years in most jurisdictions,113 but there is generally a shorter limitation period, 107 See Smith v Jenkins (1970) 119 CLR 397; Progress & Properties Ltd v Craft (1976) 135 CLR 651; Jackson v Harrison (1978) 138 CLR 438; Gala v Preston (1991) 172 CLR 243. See also Ashton v Turner [1981] QB 137 at 146 per Ewbank J; Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; Pitts v Hunt [1991] 1 QB 24. 108

Miller v Miller (2011) 242 CLR 446. This is also the current approach of the Supreme Court of Canada, in cases where the defence survives: see Hall v Hebert [1993] 2 SCR 159.

109

Smith v Jenkins (1970) 119 CLR 397; Progress & Properties Ltd v Craft (1976) 135 CLR 651; Jackson v Harrison (1978) 138 CLR 438; Gala v Preston (1991) 172 CLR 243; Ashton v Turner [1981] QB 137; Pitts v Hunt [1991] 1 QB 24.

110

See Ashton v Turner [1981] QB 137; Tomlinson v Harrison [1972] 1 OR 670.

111

Gala v Preston (1991) 172 CLR 243.

112

Compare Miller v Miller (2011) 242 CLR 446 where by the time of the accident the plaintiff had withdrawn from the common purpose.

113

Limitation Act 1985 (ACT), s 11(1); Limitation Act 1969 (NSW), s 14(1)(b); Limitation of Actions Act 1974 (Qld), s 10(1)(a); Limitation of Actions Act 1936 (SA), s 35(c); Limitation Act 1974 (Tas), s 4(1)(a); Limitation of Actions Act 1958 (Vic), s 5(1)(a); Limitation Act 2005 (WA), s 13. In the Northern Territory the period is three years: Limitation Act (NT), s 12(1)(b). For legislation in other jurisdictions specifying a six-year period, see Limitation Act 1980 (UK), s 2; Statute of Limitations 1957 (IRL), s 11(2)(a); Limitation Act 1950 (NZ), s 4(1)(a); Limitation of Actions Act, CCSM c L150, s 2(1); Limitation of Actions Act, RSNS 1989, c 258, s 2(1)(e); Limitations Act, SNL 1995, c L-16.1, s 6; Limitation of Actions Act, RSNWT 1988, c L-8, s 2(1)(j) (also applying in Nunavut); Statute of Limitations, RSPEI 1988, c S-7, s 2(1)(g); Limitation of Actions Act, RSY 2002, c 139, s 2(1)(j). In Scotland, the obligation to make reparation for a

584

Part III: Liability for Mental Harm

[16.240]

typically three years in England and Australia,114 and two years in Canada,115 for personal injury cases. The limitation period traditionally runs from when the cause of action accrues, which in negligence is when damage is suffered as a result of the breach of duty.116 [16.240] In many jurisdictions, in order to deal with cases where it is not immediately apparent to the plaintiff that injury has been suffered, there are provisions under which the ordinary limitation period can be extended. In some cases such provisions in effect make the limitation period run from the point where full knowledge is acquired;117 others give the court a discretion to extend the period.118 In England and Scotland the legislation employs both techniques.119 Most of these provisions are confined to personal injury cases, but some jurisdictions allow such extensions in other cases also.120 A few jurisdictions have now adopted legislation that incorporates different techniques from those set out above. In the Australian Capital Territory, in cases of injury involving a disease or disorder, the limitation period runs from the date when the delictual act is extinguished after five years: Prescription and Limitation (Scotland) Act 1973 (UK), s 6. See generally P Handford, Limitation of Actions: The Australian Law (3rd ed, Lawbook Co, Sydney, 2012), pp 107–180; A McGee, Limitation Periods (6th ed, Sweet & Maxwell, London, 2010), pp 161–194. 114

Limitation Act 1980 (UK), s 11; Limitation Act 1985 (ACT), s 16B(2); Limitation Act 1969 (NSW), ss 18A, 50C; Limitation of Actions Act 1974 (Qld), s 11; Limitation of Actions Act 1936 (SA), s 36(1); Limitation Act 1974 (Tas), s 5(1); Limitation of Actions Act 1958 (Vic), ss 27D, 39; Limitation Act 2005 (WA), s 14. There is also a three-year period for personal injury in Scotland and Ireland: Prescription and Limitation (Scotland) Act 1973 (UK), s 17(2); Statute of Limitations 1957 (IRL), s 11(2)(b). 115 Limitation Act of Actions, CCSM c L-150, s 2(1)(e); Limitation of Actions Act, RSNS 1989, c 258, s 2(1)(d) (medical negligence), (f) (injury occasioned by or arising out of the ownership, maintenance, operation or use of a motor vehicle); Limitations Act, SNL 1995, c L-16.1, s 5(b); Limitation of Actions Act, RSNWT 1988, c L-8, s 2(1)(d) (also applying in Nunavut); Statute of Limitations, RSPEI 1988, c S-7, s 2(1)(d); Limitation of Actions Act, RSYT 2002, c 139, s 2(1)(d). There is also a two-year period for personal injury in New Zealand: Limitation Act 1950 (NZ), s 4(7). 116

See [16.260]. Note, however, the statutory provisions under which the limitation period runs from the point when the cause of action becomes discoverable: see [16.240].

117

See Limitation Act (NT), s 24; Limitation of Actions Act 1974 (Qld), s 31; Limitation of Actions Act 1936 (SA), s 48; Limitation Act, RSBC 1996, c 266, s 6(3); Limitation of Actions Act, CCSM c L-150, s 14(1); Limitations Act, SNL 1995, c L-16.1, s 14; Statute of Limitations (Amendment) Act 1991 (IRL). 118

See Limitation of Actions Act, RSNS 1989, c 258, s 3. Until recently there were similar provisions in the Australian Capital Territory, New South Wales and Victoria. The New Zealand provision is more limited, allowing an extension only up to a maximum of six years: Limitation Act 1950 (NZ), s 4(7).

119

Limitation Act 1980 (UK), ss 11, 33; Prescription and Limitation (Scotland) Act 1973 (UK), ss 17, 19A; See S Todd, Limitation Periods in Personal Injury Claims (Sweet & Maxwell, London, 1982); PJ Davies, “Limitations of the Law of Limitation” (1982) 98 LQR 249.

120

As is the case under the provisions in the Northern Territory, South Australia and Manitoba; see Limitation Act (NT), s 24; Limitation of Actions Act 1936 (SA), s 48; Limitation of Actions Act, CCSM, c L-150, s 14(1). Some jurisdictions also have special provisions allowing the extension of the limitation period in property damage cases: Limitation Act 1985 (ACT), s 40; Latent Damage Act 1986 (UK).

[16.250]

16 Defences

585

cause of action became discoverable, and there are no extension provisions.121 In Western Australia, similar rules apply to all personal injury cases, and the limitation period may be extended at the discretion of the court.122 In New South Wales, Tasmania and Victoria, there are two limitation periods: a three-year period running from the date when the cause of action becomes discoverable, and a 12-year “long-stop” period running from the date of the act or omission.123 The action is barred once either period expires. In New South Wales and Tasmania, the long-stop period may be extended in limited circumstances; in Victoria the court has a more general discretion to extend either period.124 Alberta, British Columbia, New Brunswick, Ontario and Saskatchewan also have two general limitation periods, applying not just in personal injury cases but also to most other causes of action.125 In each Province the discovery period is two years. The long-stop period is 10 years in Alberta and 15 years in British Columbia, New Brunswick, Ontario and Saskatchewan. These limitation periods may not be further extended. [16.250] In relation to psychiatric injury cases, three issues arise in this context. The first is whether psychiatric injury, even though it is basically mental rather than physical, constitutes “personal injury” for the purposes of limitation provisions that are confined to this form of harm.126 This of course has a major effect on the position of psychiatric damage sufferers in determining how much time is available to them for bringing an action. Fortunately, the answer is reasonably straightforward. “Personal injury” under the statutes in question is generally defined as including any disease and any impairment of a person’s physical or mental condition.127 121

Limitation Act 1985 (ACT), s 16B(2)(a). Note the similar provision applying in Victoria until 2002: Limitation of Actions Act 1958 (Vic), s 5(1A). The High Court ultimately held that this provision applied to psychiatric injury: see Stingel v Clark (2006) 226 CLR 442. 122

Limitation Act 2005 (WA), ss 39, 55 – 56.

123

Limitation Act 1969 (NSW), s 50C; Limitation Act 1974 (Tas), s 5A(3); Limitation of Actions Act 1958 (Vic), s 27D.

124

Limitation Act 1969 (NSW), s 62A; Limitation Act 1974 (Tas), s 5A(5); Limitation of Actions Act 1958 (Vic), s 27K.

125

Limitations Act, RSA 2000, c L-12, s 3; Limitation Act, SBC 2012, c 13, ss 6, 21; Limitation of Actions Act, SNB 2009, c L8.5, s 5; Limitations Act, SO 2002, c 24, ss 4, 15; Limitations Act, SS 2004, c L-16.1, ss 5 – 7. 126

On the issue whether it constitutes “bodily injury”, see [5.390]–[5.490]. There is only one cause of action, not separate causes of action for physical and psychiatric injury: Tusyn v Tasmania (No 2) [2008] TASSC 76.

127

See Limitation Act 1985 (ACT), s 8(1); Limitation Act 1969 (NSW), s 11(1); Limitation Act (NT), s 4(1); Limitation of Actions Act 1974 (Qld), s 5(1); Limitation of Actions Act 1936 (SA), s 36(2); Limitation Act 1974 (Tas), s 5(5); Limitation of Actions Act 1958 (Vic), s 3(1); Limitation Act 1980 (UK), s 38(1); Prescription and Limitation (Scotland) Act 1973 (UK), s 22(1). See Akpata v Minister for Immigration and Citizenship [2012] FCA 806 at [67]–[68] per Jacobson J (claim for psychiatric injury caused by unlawful detention is a personal injury). Note also Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099, holding that an education authority’s failure to refer a handicapped child for psychological assessment is a personal

586

Part III: Liability for Mental Harm

[16.260]

[16.260] The second issue is rather more complex. The limitation period in tort runs from the date when a cause of action accrues, which in the case of a tort such as negligence, in which damage is a necessary element, is the time at which damage is suffered.128 This may be coincident with the time the breach of duty took place, but it may be much later.129 In the straightforward case involving physical injury the time at which damage is suffered is usually obvious (for example, one normally knows that an arm or leg has been cut or broken), but in other cases, and particularly in cases where the problem is the infliction of disease rather than injury, it gives rise to considerable difficulty, as is revealed by cases involving asbestosis, mesothelioma, silicosis and similar diseases where the problem is that the date of the disease’s onset — through, for example, the inhalation of minute fibres or particles — is inherently unknowable. The leading case of Cartledge v E Jopling & Sons130 suggested that there was a point in time, later than the exposure to such risks, at which the “secret onset” of the disease occurred, and that this was the point at which damage was suffered and the limitation period would start to run,131 but this does not make it any easier to measure the limitation period. The High Court of Australia has recently held that a cause of action for malignant mesothelioma may accrue shortly after the inhalation of asbestos fibres and before the onset of the disease.132 In practice the problem is usually avoided by resort to the extension provisions referred to at [16.240]. [16.270] In the psychiatric injury context, the issue is whether actionable damage is suffered at the time of the initial trauma or subsequently, when it becomes clear that the plaintiff has suffered the secondary reaction that constitutes a “recognisable psychiatric illness”.133 The latter alternative may present problems in pinpointing the date of accrual of the cause of action similar to those apparent in the disease cases;134 yet rationally this must be the alternative the law adopts. If liability is dependent on proof of a recognisable psychiatric illness, the limitation period cannot begin to injury for this purpose (following Phelps v Hillingdon London Borough Council [2001] 2 AC 619): see [21.390]. According to Fleming v Strathclyde Regional Council 1992 SLT 161, distress and inconvenience due to the house the pursuer occupied being damaged by floodwater constituted “personal injuries” for this purpose under Scottish law. 128

Cartledge v E Jopling & Sons [1963] AC 758; Pirelli General Cable Works v Oscar Faber & Partners Ltd [1983] 2 AC 1. Presumably, in actions under the principle of Wilkinson v Downton [1897] 2 QB 57 time runs from the onset of the “physical harm”.

129

See eg Commissioner of Railways v Stewart (1936) 56 CLR 520; Davie v New Merton Board Mills Ltd [1959] AC 604. 130

Cartledge v E Jopling & Sons [1963] AC 758.

131

See especially Cartledge v E Jopling & Sons [1963] AC 758 at 778–779 per Lord Pearce. Note also J Stapleton, “The Gist of Negligence” (1988) 104 LQR 213, 389.

132

Alcan Gove Pty Ltd v Zabic (2015) 89 ALJR 845.

133

See [4.10]–[4.60].

134

With the issue ultimately turning on the burden of proof, on which see now Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27, noted by NJ Mullany (1993) 109 LQR 215.

[16.280]

16 Defences

587

run until such damage is suffered. Wilson v Horne135 offers some confirmation that this is the correct view. The plaintiff alleged that the defendant, her uncle, had sexually abused her between 1973 and 1980 (when she was 12). She had repressed the memory of the abuse, but in 1994 she was encouraged to go to counselling by her sister (who said she had also been sexually abused by the defendant), recovered her memories of the abuse, and by 1995 had begun to experience symptoms of post-traumatic stress disorder. During her teens she had experienced abnormal sexual development and behavioural patterns consistent with earlier abuse but not diagnosable as a recognised psychiatric disorder. A writ was issued in 1996. At first instance, she was successful in establishing liability in negligence.136 Underwood J said that the claim would fail if damage had been suffered prior to 1993. However, the common law did not recognise transitory emotional upset, and the defendant had failed to discharge the onus on him to show that the plaintiff had suffered psychiatric illness before 1993. On appeal to the Full Court, it was argued that the judge had wrongly held that evidence of psychiatric disorder was required before actionable damage could be said to have been sustained sufficient to give rise to the accrual of the action; the sexual behavioural problems experienced before 1995, it was said, were a sexual developmental disorder and were sufficient to constitute damage. The Full Court dismissed the appeal. It confirmed that the judge had been correct in finding that the sexual development disorder did not constitute a psychiatric illness, and so the cause of action did not accrue until 1994.137 [16.280] Initial and transient shock, then, will not start the clock. Nor will episodes of common emotional upset like normal grieving. This rule and the clinical nature of certain psychiatric complaints combine to create a potential for very long periods of grace. “Delayed shock” is not an uncommon phenomenon and a psychiatric illness such as post-traumatic stress disorder may not manifest itself for as long as 30 years after the 135

Wilson v Horne (1999) 8 Tas R 363.

136

Horne v Wilson (No 2) [1998] TASSC 44. In Horne v Wilson [1998] TASSC 17, Underwood J had dismissed a submission of no case to answer.

137

For other authorities holding that the cause of action accrues on the onset of psychiatric illness, see Rutter v New South Wales [2005] NSWCA 231 at [28]–[29] per McColl JA; Akpata v Minister for Immigration and Citizenship [2012] FCA 806 at [69]–[71] per Jacobson J; Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [7]–[19] per McMeekin J; O’Reilly v Western Sussex NHS Health Trust (No 6) [2014] NSWSC 1824 at [464] per Garling J (stating English law). The point was left open in Ridley v New South Wales [2004] NSWCA 68, and discussed but not resolved in Blunden v Commonwealth [2014] ACTSC 123. Note also Birrell v Providence Health Care Society (2007) 72 BCLR (4th) 126, where Russell J held that the ultimate limitation period under s 8 of the Limitation Act, RSBC 1996, c 266 did not start to run until psychiatric injury was suffered; on appeal the British Columbia Court of Appeal took a different view: Birrell v Providence Health Care Society (2009) 89 BCLR (4th) 205. In McCoy v Keating [2011] IEHC 260 it was held that the limitation period started to run when the plaintiffs became aware they were suffering from a shock-related condition, even though only later were they diagnosed as suffering from post-traumatic stress disorder.

588

Part III: Liability for Mental Harm

[16.290]

traumatic event.138 When in such a case the specified limitation period is then added a situation arises that runs contrary to one of the central policy aims of limitation law — that actions should have a finite life and not surface to haunt defendants years after their tortious conduct.139 However, complications will arise if the courts elect to include mental responses falling short of psychiatric disorder under the umbrella of actionable “shock” — though such a development now seems less likely following the High Court of Australia’s decision in Tame v New South Wales.140 If the seriousness of the damage required to bring suit were to be decreased, it would be necessary to devise some means of identifying the start date for limitation purposes. How this would be done is not an easy question to answer. [16.290] The final context in which psychiatric injury raises important issues in a limitation context is where legislation permits applications for an extension of time based on the fact that the plaintiff did not have a full awareness of the nature and extent of his or her injuries, or other factors specified in the relevant legislation, until some point within the relevant limitation period. In Commonwealth v Dinnison,141 Gummow and Cooper JJ in their joint judgment gave important guidance on this issue. This was one of the cases where service personnel sued the Commonwealth government alleging psychiatric injury as a result of being exposed to the Maralinga atomic tests in the 1950s. Mr Dinnison brought proceedings in 1988. Under the law of New South Wales as it then stood, he had to apply for an extension of the limitation period, and in order to get an extension he had to show that he did not know that personal injury had been suffered, or was unaware of its nature or extent, or of the connection between the personal injury and the defendant’s act or omission. Gummow and Cooper JJ said: It is important to appreciate, as did the primary judge, that the personal injury, the suffering of which Mr Dinnison alleged he did not know, or was unaware as to its nature or extent, was a psychiatric illness. In the opening passages of his judgment, the primary judge set out a passage from the judgment of Brennan J in Jaensch v Coffey at 567. There his Honour made the point that that a psychiatric illness induced by mere knowledge of a distressing fact or phenomenon which affronts or insults the mind of the plaintiff is not compensable; rather what is essential is perception by the plaintiff of that distressing phenomenon. One then, in the immediate context of the present case, supplied by the 1990 Act, has to ask whether Mr Dinnison did not know 138

See [5.270].

139

In some Canadian jurisdictions, the long-stop limitation period places an upper limit on the number of years that can elapse before the action is brought: see [16.240]. Others such as New South Wales, Tasmania and Victoria have a long-stop period but allow for the possibility of extension of the period: see [16.240]. This at least compels the plaintiff to make out a case for the extension of time.

140

Tame v New South Wales (2002) 211 CLR 317: see [6.230].

141

Commonwealth v Dinnison (1995) 56 FCR 389.

[16.290]

16 Defences

589

that personal injury of this nature had been suffered or was unaware of the nature or extent of that personal injury.142

The Commonwealth’s appeal against the grant of an extension of time was dismissed. The judgment is clear confirmation that limitation rules and other issues relating to defences in negligence claims can raise special problems in a psychiatric injury context.

142

Commonwealth v Dinnison (1995) 56 FCR 389 at 402 (emphasis added). The issue was also referred to in Mundraby v Commonwealth [1999] FCA 1293; Lewis v Commonwealth [1999] FCA 1292; Gilmont v Queensland [2000] QSC 95; Gilbert v Castagna [2000] NSWSC 461; Commonwealth v Smith [2005] NSWCA 478.

Chapter 17

Damages [17.10] INTRODUCTION ............................................................................................................. 591 [17.30] TRADITIONAL PRINCIPLES OF ASSESSMENT ....................................................... 592 [17.40] Difficulties ........................................................................................................................... 593 [17.50] Hinz v Berry and assessment in direct perception cases .......................................... 597 [17.110] McKenzie v Lichter and assessment in a medical negligence context ................. 603 [17.140] Other principles .............................................................................................................. 605 [17.190] Some distinctions ............................................................................................................ 610 [17.220] MODERN DEVELOPMENTS ....................................................................................... 612 [17.220] Legislation and similar guidelines ............................................................................... 612 [17.250] Traditional principles and expanding liability .......................................................... 614

INTRODUCTION [17.10] The primary purpose of this chapter is to give some account of the principles that govern the assessment of damages for psychiatric injury, concentrating on cases of pure psychiatric damage rather than those cases where it simply constitutes one item in a personal injury award. This means that, although plaintiffs who sue for psychiatric injury may well claim damages for all the usual items in a personal injury assessment, including pecuniary losses such as loss of earnings or earning capacity, medical expenses, third party services and so on, together with the standard heads of non-pecuniary loss including pain and suffering and loss of amenities, our chief interest is in the way in which damages are assessed for the psychiatric injury itself. Since the sum awarded for non-pecuniary loss is generally a single amount for “general damages”, rather than being broken down into individual items for the particular categories of this kind of loss, it is on such awards that we concentrate. [17.20] Though accessing information on the basis on which damages for psychiatric injury are assessed is difficult, for reasons described at [17.40], the common law developed a number of approaches to this question, though in the main limited to the standard situations encountered in the case law 30 or more years ago, typically the case of family members who suffer shock through experiencing an accident to a close relative, either through being present when it happened or coming to the scene shortly afterwards. Whilst the principles so developed are still valuable, for a number of reasons their value is now more limited. First, many jurisdictions, Australia and England among them, now have

592

Part III: Liability for Mental Harm

[17.30]

statutory rules about the assessment of personal injury damages generally, involving caps and thresholds or a tariff system,1 which means that there is now no need for courts to look to the older case law. Secondly, as this book shows, liability for psychiatric injury has expanded away from the traditional situations referred to above, into areas where the older principles are no longer easily applicable.

TRADITIONAL PRINCIPLES OF ASSESSMENT [17.30] The common law has long awarded compensation for the mental repercussions of lesions to the body in the form of pain and suffering. Difficulties of assessment of this and other non-pecuniary damage are well known. A plaintiff cannot be compensated in the sense of achieving restitutio in integrum, because the damage suffered is not quantifiable in monetary terms. No medium of exchange exists for freedom from physical and mental torment. Judges have repeatedly lamented the inadequacy of pecuniary relief for many of the components of personal injury awards and their forced arbitrary valuation of intangible but very real losses. As Lord Morris of Borth-y-Gest observed in H West & Son Ltd v Shephard:2 A money award can be calculated so as to make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered.3

Nor a mind that has malfunctioned through violation by traumatic stimuli.4 Determination of reasonable compensation for psychiatric injury presents the ultimate nightmare for the judicial mind, especially where it is unaccompanied by physical impact on the patient’s body. Indeed, concern about assessment complications was one of the contributory factors that thwarted a general recognition of liability for mental injury in the 19th century.5 As Sir Gordon Willmer said in Hinz v Berry,6 in cases concerned with disturbances to the mind: 1 Similar strategies were outlined in a proposal made in previous editions of this book for a tariff scheme for psychiatric injury cases, linked to an overriding limit on the damages available: see PR Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 405–412; see also NJ Mullany, “A New Approach to Compensation for Non-Pecuniary Loss in Australia” (1990) 17 MULR 714. 2

H West & Son Ltd v Shephard [1964] AC 326 at 346.

3

Note also Dickson J in Andrews v Grand & Toy Alberta Ltd [1978] 2 SCR 229 at 261–262: “No money can provide true restitution. … Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way.”

4 See eg AB v IJ (1991) 119 AR 210 at 216 per Veit J, commenting on the psychological and emotional injury caused to victims of sexual abuse, in this case the son and two daughters of the defendant. 5

See [2.20].

6

Hinz v Berry [1970] 2 QB 40 at 46.

[17.40]

17 Damages

593

[W]e are in an area where the damages seem … to be even more than usually at large. It is practically impossible to find any signposts on the road; there is no tariff or pattern of awards in this class of case; and this makes it very difficult for any one judge to criticise another judge’s estimate of what the damages ought to be.7

Difficulties [17.40] Of all the aspects of psychiatric damage law this is the one that we know least about.8 One of the major reasons for this is the lack of information provided in many of the judgments. No clues can be gleaned from the oldest authorities given their reliance on jury assessment.9 Even in more modern cases, where there is usually no jury,10 all too often the question of damages for psychiatric harm is dealt with in a sentence or two with no indications given as to the reasoning that led to the figures decided on.11 Distinctions may not be drawn between psychiatric illnesses incurred prior to trial and any likely continuing suffering,12 and global damages figures are frequently not broken down, leaving in doubt the 7

Note also Howell v State Rail Authority of New South Wales (unreported, NSWSC, No 400071 of 1993, 7 June 1996) per Abadee J: “Damage to the mind on any view can be just as serious as damage to the body. The assessment of damages when there is damage to the body is perhaps a more simple task than when one is concerned with damage to the mind, or psyche of a human being.”

8 “Due to the recent legal recognition of emotional shock as a head of damage in our law, very few notable judgments regarding the assessment of damages for emotional shock have been handed down”: Swartbooi v Road Accident Fund [2012] 3 All SA 670 (WCC) at [20] per BP Mantame AJ, commenting on the situation in South Africa. 9 See eg Coultas v Victorian Railways Commissioners (1886) 12 VLR 895; Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428; Currie v Wardrop 1927 SC 538. The few modern jury cases can equally be ignored: see eg Matei v McCrorie (unreported, Vic SC, No 27 of 1985, 22 May 1986). It is for this reason that reference to the United States authorities is also unhelpful. 10

For examples of recent cases where jury awards for psychiatric injury were the subject of appeal, see Rees v Lumen Christi Primary School [2011] VSCA 361; Willett v Victoria (2013) 42 VR 513.

11

See eg Barrett v Short (unreported, NSWSC, No 14685 of 1984, 12 April 1989), where $15,000 was awarded without elucidation to a wife who saw her husband fall to his death from a balcony at the defendant’s surprise birthday party; note also Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668; Petrie v Dowling [1992] 1 Qd R 284; Rosstown Holding Pty Ltd v Mallinson (2000) 2 VR 299. For examples from other jurisdictions see Owens v Liverpool Corporation [1939] 1 KB 394; Chadwick v British Railways Board [1967] 1 WLR 912; Cameron v Marcaccini (1978) 87 DLR (3d) 442; Kwok v British Columbia Ferry Corporation (1987) 20 BCLR (2d) 318; Jinks v Cardwell (1987) 39 CCLT 168; McDermott v Ramadanovic Estate (1988) 27 BCLR (2d) 45. Note Mallon v Monklands District Council 1986 SLT 347, where Lord Jauncey at 349 considered himself able only to take “a very broad axe” to the question of assessment for a minor psychiatric disorder in the form of reactive depression, awarding £100.

12

See eg De Franceschi v Storrier (1988) 85 ACTR 1 where $25,000 was awarded with no indication as to the proportions reflecting past and inevitable future damage. Note also Montgomery v Murphy (1982) 136 DLR (3d) 525 at 532 per Galligan J. However, courts now generally make this distinction: see eg Ledger v Commonwealth (unreported, Fed Ct, No G127 of 1990, 18 April 1991); Hodgkinson v Government Insurance Office of New South Wales (unreported, NSWSC, No 17181 of 1987, 23 July 1996); Pareezer v Coca Cola Amatil [2004] NSWSC 825; Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242.

594

Part III: Liability for Mental Harm

[17.40]

degree to which psychiatric injury or various loss components have been reflected in the sums awarded.13 There is no thread linking the cases, no commonality between awards,14 no discernible process of damages calculation capable of extrapolation. Though in some jurisdictions courts have adopted the practice of arriving at a figure by comparing awards in earlier cases,15 this has traditionally been frowned upon in Australia.16 13

See eg Chapman v Lear (unreported, Qld SC, No 3732 of 1984, 8 April 1988) where no breakdown of $15,000 awarded for three years of aggravation of the plaintiff’s pre-existing personality disorder was attempted; Tom v Pudovkin (unreported, NSWCA, No 4098 of 1990, 27 March 1992) where the only indication of the size of the psychiatric component in the very significant global award of $200,000 was that it comprised the “principal amount”. Note also Whitmore v Euroways Express Coaches (The Times, 4 May 1984) where apart from an award of £2,000 for the “ordinary shock” of seeing her husband injured and the continuing effect of those injuries, a wife was given a separate sum for the shock suffered on her own account but this was merged into the award of £4,500 general damages; Bagley v North Herts Health Authority (1986) 136 New LJ 1014 where Simon Brown J arrived at “an overall figure [of £18,000] … intended to reflect all the recoverable aspects of loss and [his] recognition that in certain respects they interact and possibly even overlap”; Morton v Wiseman 1989 SCLR 365 where the view was expressed that psychological injury could not be considered in isolation from physical injury, £25,000 being awarded to compensate both types of damage. For an interesting example giving a full breakdown of the items included in the award for pain and suffering, see Murtagh v Minister for Defence [2008] IEHC 292.

14

Some awards in older cases have been almost nominal in nature: see eg Boardman v Sanderson [1964] 1 WLR 1317 where the English Court of Appeal upheld the trial judge’s assessment of £75 for what was described as no “more than slight shock”; Mallon v Monklands District Council 1986 SLT 347 where £100 was granted for a “minor” psychiatric illness. Others have been quite substantial. Over recent years, awards have become higher, particularly in Australia: high awards for general damages in psychiatric injury cases include Marchlewski v Hunter Area Health Service [1998] NSWSC 771 ($200,000 for the female plaintiff, $180,000 for the male plaintiff); Nominal Defendant v Bogic [2000] NSWCA 164 ($191,905); Locke v Bova [2004] NSWSC 534 ($225,000), appeal against award of damages dismissed in Bova v Locke [2005] NSWCA 226; Covington-Thomas v Commonwealth [2007] NSWSC 779 ($180,000); Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656 ($214,000). Even higher awards have been made in actions against employers for work stress, eg Gregory v New South Wales [2009] NSWSC 559 ($247,500); Swan v Monash Law Book Co-operative [2013] VSC 326 ($300,000); Doulis v Victoria (2014) Aust Torts Rep 82-177 ($300,000); Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 ($380,000); note also Ogden v Bells Hotels Pty Ltd [2009] VSC 219 (liability of employer for effects of robbery: $300,000). In England, it was noted that in 1999 the highest awards for pain and suffering and loss of amenities were around the £100,000 mark: S Deakin, A Johnston and B Markesinis, Tort Law (7th ed, Clarendon Press, Oxford, 2013), p 850. For an example in a psychiatric injury case, see Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 (£75,000). 15

For example, Scotland (eg Dickie v Flexcon Glenrothes Ltd [2009] Scot CS 143; Young v MacVean [2014] CSOH 133) and most Canadian provinces (eg A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351; Hussack v School District No 33 (Chilliwack) (2009) 97 BCLR (4th) 330; Kotai v Queen of the North (Ship) (2009) 70 CCLT (3d) 21; Burnett v St Jude Medical Inc 2009 BCSC 1651; Healey v Lakeridge Health Corporation (2011) 328 DLR (4th) 248; Trenholm v H & C Trucking Ltd (2014) 342 NSR (2d) 273).

16

See Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124–125 per Barwick CJ, Kitto and Menzies JJ. This practice was the subject of increasing criticism in lower courts. For example, Hutley JA in Vaughan v Calvert (unreported, NSWCA, CA No 10 of 1977, 28 July 1977) stated that it was “beyond understanding” how a judge could perform his or her function in the manner laid down by the High Court. Mason P (Stein and Heydon JJA

[17.40]

17 Damages

595

Guesswork, unfortunately a not uncommon means by which sums are arrived at under various heads of compensable loss in the personal injuries sphere, appears to have been the primary tool at the court’s disposal in psychiatric damage cases. This has inevitably resulted in some instances in different judges taking radically differing views based on identical facts.17 Sparsity of evidence compounds the unenviable difficulties faced by the judiciary.18 The formulation of guiding principle is hindered by the fact that very often the question of assessment is never reached, because liability for psychiatric injury is tried as a preliminary issue19 or not imposed at trial,20 or not analysed in any detail due to prior agreeing) in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 said at [74] that the judicial method prescribed by Planet Fisheries “strikes me as hindering rather than aiding judges in their quest for ‘the sound exercise of a sense of proportion’ which is enjoined in Planet Fisheries” and impeded the quest for consistency. For further authorities, see P Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), p 406 n 105. The Ipp Report recommended repudiation of this approach (Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendation 46(a)), and several States now expressly allow courts to make use of precedents for the purpose of establishing the appropriate award for non-pecuniary loss: see Civil Law (Wrongs) Act 2002 (ACT), s 99; Civil Liability Act 2002 (NSW), s 17A; Civil Liability Act 2002 (Tas), s 28; Wrongs Act 1958 (Vic), s 28HA; Civil Liability Act 2002 (WA), s 10A. 17

Compare eg Samuels JA’s decision in Swan v Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172 to uphold a nominal award of $400 to a man whose wife and in-laws had been crushed to death in their car by a falling sandstone block with Priestley and McHugh JJA’s valuation of his psychiatric complaint at $10,000. This discrepancy can be attributed to the divergent conclusions reached as to the nature of the damage suffered.

18

See eg X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26. In this case a mother was deeply shocked on discovering that her baby daughter was born with syphilis and that she was also infected. She developed a severe and acute depressive disorder. The court was mindful of the need to separate this from the upset she experienced due to the fact that the child was also dysmorphic, brain damaged and epileptic, the reaction to the syphilis being the sole subject of this aspect of her negligence claim against her physicians. As the court was mainly concerned with causation questions, little evidence was presented concerning the plaintiff’s reaction to her daughter’s condition. This prompted Clarke JA at 59 to give serious consideration to referring this issue for a new trial, fearing that adequate compensation could not be given on the evidence available. However, with no guarantee that such action would significantly advance her claim, and with a view to sparing the plaintiff further grief, his Honour proceeded based on the “limited materials” before him to assess her loss at $15,000, a figure he openly equated with a “rough guess”. Crude guesswork, he felt, was the only way to “achieve broad justice”. See also Rice v Falzon (unreported, NSWSC, No CLD S 17366 of 1981, 1 May 1987) where the paucity of evidence of mental damage led McInerney J to restrict the award to a “modest” $7,500.

19

See eg, among many other cases, Marshall v Lionel Enterprises Inc (1971) 25 DLR (3d) 141; Attia v British Gas plc [1988] QB 304; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Annetts v Australian Stations Pty Ltd{, heard together with Tame v New South Wales (2002) 211 CLR 317; Wicks v State Rail Authority (NSW) (2010) 241 CLR 60. In Scotland, it is common for cases to take the form of discussing whether proof before answer is to be allowed, ie the legal questions are discussed as a preliminary issue. In Whiteside v Croydon London Borough Council [2010] EWHC 329 the parties were not prepared to argue issues relating to quantum, and so the trial proceeded on questions of liability only. 20

On some occasions the court makes an award of damages despite a finding of no liability in case that finding is overturned on appeal: see eg Saad v Gosford City Council [2007]

596

Part III: Liability for Mental Harm

[17.40]

agreements as to quantum should an attribution of responsibility be made.21 Discussion at appellate level seldom involves damages issues, for example because there is no appeal on questions of damages;22 alternatively, the question of damages may be remitted to the trial court for assessment. The most that one can do therefore when considering the question of assessment in this context is to cobble together the few strands of disparate argument that have surfaced in the authorities.23 NSWSC 643; S v New South Wales [2008] NSWSC 933 (finding of no liability reversed S v New South Wales [2009] NSWCA 164); Hollier v Sutcliffe [2010] NSWSC 279; Wolters v University of the Sunshine Coast [2014] 1 Qd R 571 (finding of no liability reversed by the Queensland Court of Appeal); Al-Kandari v JR Brown & Co [1987] QB 514 (finding of no liability reversed by the English Court of Appeal, which did not interfere with the assessment even though it was considered high: Al-Kandari v JR Brown & Co [1988] QB 665); Hagan v Dalkon Shield Claimants Trust (1998) 231 AR 153; Cross v Highlands and Islands Enterprise 2001 SLT 1060. In a prominent early example, the court assessed damages with very little discussion: in King v Phillips [1952] 2 All ER 459 McNair J arrived at a figure of £100 but then gave judgment for the defendant; note also Anderson v Smith (1990) 101 FLR 34, where Nader J “in an effort to save the appellate court from having to remit the matter for assessment of damages” indicated that he would have assessed damages at $40,000 without any elaboration whatsoever of the means by which he arrived at such a figure. 21

This happened in Philcox v King [2013] SADC 60 (the trial judge’s holding of no liability was ultimately confirmed by the High Court: King v Philcox (2015) 89 ALJR 582); other recent Australian examples include Ah Tong v Wingecarribee Council [2003] NSWCA 381; Evans v Rivett Arboricultural & Waste Equipment Hire Pty Ltd [2005] SADC 172; Halvorsen v Dobler [2006] NSWSC 1307; Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109; S v New South Wales [2009] NSWCA 164 (agreement as to quantum during appeal). For an early English example, see Turbyfield v Great Western Railway Co (1937) 54 TLR 221 where, subject to liability, damages of £25 were agreed upon for the harm suffered by the twin sister of a girl killed by a negligently driven horse and dray; note also Hevican v Ruane [1991] 3 All ER 65; Ravenscroft v Rederiaktiebølaget Transatlantic [1991] 3 All ER 73 (finding in plaintiff’s favour reversed on appeal: Ravenscroft v Rederiaktiebølaget Transatlantic [1992] 2 All ER 470n); Tredget v Bexley Health Authority [1994] 5 Med LR 178; Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065; Garrod v North Devon NHS Primary Care Trust [2007] PIQR Q1; Taylor v A Novo (UK) Ltd [2014] QB 150.

22 23

Eg Daw v Intel Corporation UK Ltd [2007] 2 All ER 126.

Obviously, as with any other personal injury claim, the duration of the injury will affect the size of the award, whether this is expressly acknowledged or not: see eg Woods v Lowns (unreported, NSWSC, Nos 15676 and 15678 of 1992, 9 February 1995) where the father of a boy who suffered brain damage resulting from an epileptic fit as a result of a doctor’s failure to treat him recovered $50,000 for psychiatric injury, having regard to the intensity and duration of his symptoms (the psychiatric injury issues are not dealt with in the reported version, Woods v Lowns (1995) 36 NSWLR 344). Note also the discussion by Brockenshire J at first instance in Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123 at [231] as to whether a deduction should be made to take into account the possibility that the plaintiff would recover more quickly than forecast from the psychiatric injury caused by seeing a fly in his bottled water: ultimately, the Supreme Court of Canada denied liability: Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114. In some cases, the damages award takes into account the fact that the plaintiff will never fully recover: see eg Cox v New South Wales (2007) Aust Torts Rep 81-888; Reeves v New South Wales [2010] NSWSC 611; Hussack v School District No 33 (Chilliwack) (2009) 97 BCLR (4th) 330; Courtney v Our Lady’s Hospital Ltd [2011] 2 IR 786; in other cases, the court recognises that the plaintiff is improving or is likely to improve: see eg Saad v Gosford City Council [2007] NSWSC 643; Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185; A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351; Mullen v Accenture Services Ltd [2010] EWHC 2336 (QB). One principle that does appear

[17.50]

17 Damages

597

Hinz v Berry and assessment in direct perception cases [17.50] Only very rarely have the principles governing the quantum of damages in psychiatric injury cases been considered at all, let alone in any detail. A rare example of a case dealing solely with the assessment issue is Hinz v Berry.24 The plaintiff and her husband, with their eight children, had parked in a layby to have a picnic. She was picking bluebells in a nearby field with one of the children when she heard a crash and turned to discover that her husband and most of the other children had been mown down by a negligent driver. The only question before the English Court of Appeal was whether damages of £4,000 awarded to her at first instance were excessive. Although the sum was considered high no interference was made, their Lordships taking the view that the award was not a wholly erroneous estimation.25 In reaching this decision it was made clear that some types of mental suffering would not be reflected in psychiatric injury awards.26 Specifically, Mrs Hinz was denied relief for the grief and sorrow of losing her husband, anxiety about the welfare of her injured children, financial stress resulting from the loss of the family settled is that once it is established as a medical fact that a mental disorder exists, damages may be awarded on the same principles as for any other injury: see eg Liffen v Watson [1940] 2 All ER 213 (allowance made for fact that by reason of the plaintiff’s neurotic condition, she could not perform certain activities without experiencing pain); Griffiths v R & H Green & Silley Weir Ltd (1948) 81 LLLR 378 (allowance made for probable loss of wages for period during which plaintiff would suffer from hysteria and anxiety neurosis); Bailey v British Transport Commission (The Times, 29 November 1953) (railway worker was in train when two other trains collided with it, suffered no physical injury but developed neurosis which affected use of his legs: awarded compensation not far short of the amount he would have received had his legs been amputated). 24

Hinz v Berry [1970] 2 QB 40.

25

Compare Allen v Dando [1977] CLY 738 where a father claimed for morbid depression suffered as a result of witnessing the death of his 11-year-old daughter in the back seat of the family car after a collision with a drunk driver and the vain attempts to resuscitate her. Reliance having been placed on Hinz v Berry [1970] 2 QB 40, the defendant contended that that case was an exceptional one and not comparable with the situation at hand. Payne J held that while the facts before him were different, the English Court of Appeal’s decision was relevant. The plaintiff was awarded £2,250 on the basis that the psychiatric injury in question was not as severe as that suffered by Mrs Hinz (who had suicidal tendencies and a potential need of ECT treatment) and there was evidence of considerable improvement, absence of insomnia, increased appetite and an active social life. These facts were considered to dictate a damages award considerably less than that approved in Hinz v Berry. Note also the interesting comparison of damages awards made in Cattanach v Abbott’s Packaging Ltd (unreported, Eng CA, 8 May 1989) where £18,000 was awarded for pain and suffering in a case where an injury caused by a falling machine resulted in depression, neurosis and schizophrenia. The English Court of Appeal held that the figure awarded by the trial judge was not so high as to warrant interference with it. The court referred for comparative purposes to the level of awards in earlier cases updated to 1989 values. Hinz v Berry (in which the £4,000 awarded was worth £28,000 on 1989 values) and Brice v Brown [1984] 1 All ER 997 (in which £22,500 paid in 1983 was by 1989 equal to £27,000–£27,500) were much more serious cases. By comparison the £600 granted in Chadwick v British Railways Board [1967] 1 WLR 912 (see [17.150]), would in 1989 be worth about £4,000. 26

For the rule that there is no compensation for grief and similar mental states not amounting to recognised psychiatric illness, see [4.30]–[4.50].

598

Part III: Liability for Mental Harm

[17.60]

breadwinner, and the strain of adjustment after the death of a spouse. It was only in relation to her morbid depressive state attributable to her presence at the accident scene that damages sounded. Compensation could not be obtained for the “whole of the mental anguish and suffering which [the plaintiff had] been enduring during the [previous] five or six years”.27 Herein lies the major difficulty with the question of relief for damage to the mind. The factors responsible for disruption to normal mental functioning are often inextricably linked — all of the factors mentioned above played a part in the development of Mrs Hinz’s psychiatric condition.28 Attempts to draw distinctions between the various ingredients and their significance, so as to reduce awards according to the extent that non-compensable factors contributed to the onset and duration of psychiatric illness, necessitate delving into what is often, in truth, a highly complex medical conundrum. Complications are inevitable whenever there is forced separation of different types of psychiatric injury on this basis, or between psychiatric harm and emotional or mental distress or suffering. The arbitrariness and imprecise nature of the common law’s methodology is illustrated by Lord Denning MR’s suggested delineation technique: The way to do this is to estimate how much Mrs Hinz would have suffered if, for instance, her husband had been killed in an accident when she was 50 miles away: and compare it with what she is now, having suffered all the shock due to being present at the accident.29

[17.60] The genesis of this approach can be traced to the judgment of Paull J in Tregoning v Hill,30 where a wife was granted £750 for the shock she suffered at seeing her husband struck and carried along by a car, being turned over and over and finally left on the road some distance away from her with a severe fracture of the skull from which he later died. The judge allowed recovery for the shock of seeing the incident, but denied a claim for depression suffered as a result of the accident and the deprivation of the husband’s company. The view was expressed that there had to be a determination of the amount that represented the difference between the situation where the plaintiff had been at home and heard that her husband had been killed in a cycling accident and the situation where she actually witnessed the traumatic event.31 27

Hinz v Berry [1970] 2 QB 40 at 45 per Lord Pearson: but see [17.70].

28

Hinz v Berry [1970] 2 QB 40 at 44 per Lord Pearson: but see [17.70].

29

Hinz v Berry [1970] 2 QB 40 at 43. This was described however as a “sensible test” by Holland J in Fenn v City of Peterborough (1976) 73 DLR (3d) 177 at 209.

30 31

Tregoning v Hill (The Times, 1 March 1965).

The approach in Hinz v Berry [1970] 2 QB 40 has been applied in a series of Canadian cases, all involving plaintiffs present at the scene to witness the accident or its aftermath: see Fenn v City of Peterborough (1976) 73 DLR (3d) 177; Renwick v Coote 1976 CarswellBC 1691; Karamanolis (Next friend of) v McAllister [1980] OJ No 219; Rayner Estate v Patterson [1982] OJ No 450; Frank v Cox (1988) 84 NSR (2d) 370; Kardan v Bartholdt (1995) 83 OAC 158; Bruneau v Bruneau (1997) 32 BCLR (2d) 317. Compare Lamb v Brandt [1982] BCJ No 1151, discussed at [17.70].

[17.80]

17 Damages

599

[17.70] In both these cases the need for direct physical perception was emphasised and it was clear that had psychiatric illness been suffered despite its absence no relief would have been forthcoming.32 In Hinz v Berry,33 even if morbidity had developed as a result of the combination of presence at the scene and the other factors referred to at [17.50], it seems that the English Court of Appeal would have been unprepared to allow the award to stand. Lord Pearson said: If this factor [the shock of witnessing the traumatic event] had been merely one out of five and they had all been more or less equal in their effect, and there had been no special consequences attributable to this one, I would have thought the figure was much too high.34

This stance was confirmed in the British Columbia decision in Lamb v Brandt,35 where the plaintiff recovered wrongful death damages and damages for loss of guidance following the death of her husband, who drowned as a result of an accident that caused his van to veer off the road into a lake, but no damages on her own behalf. She was not present to witness the accident, but as a consequence of it she had to leave her employment to look after her children. It was held that although she clearly suffered from grief and sorrow, she could only get compensation for that part of her condition that related directly to the effects of the accident. In Hinz v Berry, the only one of the five causes of the plaintiff’s depression that had been accepted was the shock of witnessing the accident, and this was not present here.36 [17.80] In Alcock v Chief Constable of South Yorkshire Police37 Lord Oliver of Aylmerton flagged Hinz v Berry38 as a useful illustration of the “extreme difficulty” of separating the compensable damage arising from the presence of the claimant at the accident scene from the noncompensable consequences flowing from the simple fact that an accident has occurred. The same sentiments had been expressed by Rees J in Carlin 32

It is interesting to note that in White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982), where parents who did not witness the accident were granted recovery (see [9.160]), the damages awarded were $10,000 to each parent. On this basis, the sum they would have recovered if they had witnessed the accident would have been considerable.

33

Hinz v Berry [1970] 2 QB 40.

34

Hinz v Berry [1970] 2 QB 40 at 44. His Lordship went on to say at 45 that the element of witnessing the accident was the “sole cause of the added morbidity”. Sir Gordon Willmer made a similar comment at 46. Earlier Lord Pearson suggested that all five elements referred to at [17.50] contributed to Mrs Hinz’s condition, but it appears that his Lordship meant to suggest that witnessing the accident was the crucial and primary cause, the other causes being insufficient to produce the depressive state: see PG Heffey, “The Negligent Infliction of Nervous Shock in Road and Industrial Accidents” (1974) 48 ALJ 196, 240 at 247.

35

Lamb v Brandt [1982] BCJ No 1151, on appeal Lamb v Brandt (1984) 56 BCLR 74.

36

Lamb v Brandt [1982] BCJ No 1151 at [86]–[88] per Ruttan J.

37

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 413.

38

Hinz v Berry [1970] 2 QB 40.

600

Part III: Liability for Mental Harm

[17.80]

v Helical Bar Ltd,39 a case concerned only with the quantum of damages appropriate to award to a 62-year-old crane operator who, due to negligence and breach of statutory duty by his employer, crushed a workmate to death between a steel stanchion and one of the supporting legs of the crane while it was in motion under his control. Referring to the “unusually difficult problem for any tribunal called upon to assess general damages” in this kind of case, his Lordship somehow arrived at the “fair sum” of £1,750. An argument could be mounted that a figure of say £2,000 more or £1,000 less would have been equally “fair” for, as Atiyah has pointed out, awards for such intangible losses “could be multiplied or divided by two overnight and they would be just as defensible or indefensible as they are today”.40 In Storm v Geeves,41 a case decided five years prior to Carlin v Helical Bar Ltd, Burbury CJ, having satisfied himself that a mother’s condition had “been brought about not merely from grief at the death of her child but substantially from the fact that she witnessed the immediate consequences of the accident and that she [could not] get the terrible picture of it out of her mind”, described a £500 award to her as “moderately substantial” and granted a £2,000 award to her son for a “particularly severe reaction” to the trauma of seeing his sister killed. Such assessments are completely subjective in nature and it seems that in the absence of a tariff of damages for psychiatric disorders almost any sum awarded is unchallengeable. In 1992 the New South Wales Court of Appeal refused to interfere with a general damages award of $200,000, the “principal amount” of which related to the plaintiff’s psychiatric problems following an accident where she and her sister were hit by a truck at a pedestrian crossing. Although it was a sum “at the very top of the permissible range”, the large number of imponderables involved in its calculation dissuaded the court from disturbing the award.42 39

Carlin v Helical Bar Ltd (1970) 9 KIR 154.

40

P Cane, Atiyah’s Accidents, Compensation and the Law (8th ed, Cambridge University Press, Cambridge, 2013), p 161. See also Tuckey v R & H Green & Silley Weir Ltd [1955] 2 Lloyd’s Rep 619 at 630 per Pearson J: “The real trouble in assessing damages in this case – I will say it quite frankly – is this: it is very easy to be very wrong either way. If one gives a very large sum, the man may recover in a very short time and go back to full work. On the other hand, if one gives a very small sum, the man may not recover and will lose a great deal of future wages, and suffer a great deal of pain and suffering, and the sum may be much too small. So in those circumstances one can only do one’s best.” Note also Bailey v British Transport Commission (The Times, 29 November 1953), where Barry J said how anybody could escape from this dilemma was “beyond comprehension”. 41 42

Storm v Geeves [1965] Tas SR 252 at 267–269.

Tom v Pudovkin (unreported, NSWCA, No 4098 of 1990, 27 March 1992). The same court refused to alter a $15,000 general damages award for a phobia resulting from eating contaminated apricot kernels in Young v JD Coates Pty Ltd (unreported, NSWCA, CA No 171 of 1988, 5 October 1990). Note, however, Budget Rent-a-Car Systems Pty Ltd v Van der Kemp (unreported, NSWCA, CA No 7 of 1984, 21 December 1984) where the court reduced an award from $80,000 to $50,000, and the reduction of a “manifestly excessive” jury award of $75,000 to $25,000 by the Full Court of Victoria in Matei v McCrorie (unreported, Vic SC, No 27 of 1985, 22 May 1986).

[17.90]

17 Damages

601

[17.90] The separation test proposed by Lord Denning was referred to by Wanstall ACJ in Richters v Motor Tyre Service Pty Ltd,43 which involved a woman who was seriously injured in a car accident that killed her husband and father-in-law and who became so psychologically depressed that she committed suicide two years later. In a claim brought by the executor of her estate three concurrent causes of the depression and suicide were identified: (1) the horror of her involvement in the collision; (2) the suffering attributable to her physical injuries; and (3) the shock of her husband’s injuries and his death in the ambulance on the way to the hospital. It was thought that the comparison advocated by Lord Denning was not essential because in contrast to that case the three causative factors were all compensable.44 The court’s chief concern was the need to separate the shock of the injury to and death of the husband from the wife’s natural grief and sorrow. It was made clear that following Hinz v Berry45 relief was being granted for the morbidity due to witnessing events as distinct from the emotional upheaval that would have been suffered if the plaintiff had merely heard later of her husband’s death. Because it was the shock of witnessing events (and not grief alone) that tipped the balance and drove the wife to her psychiatric state, the whole of her mental condition was compensable. More recently, an Australian intermediate appeal court has on two occasions reduced the damages awarded at first instance on the ground that the trial judge had failed to take sufficient account of the need to make a separation between compensable shock due to witnessing or otherwise experiencing the accident and the subsequent feelings of grief and bereavement due to the loss of a daughter in the one case,46 and the strain of coping with their son’s injuries in the other,47 an approach recently followed at first instance in the same jurisdiction.48 43

Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9.

44

Note Montgomery v Murphy (1982) 136 DLR (3d) 525 at 531 per Galligan J who referred to the “exceedingly difficult” task of applying his Lordship’s test to the facts before him because the plaintiff’s depression had been contributed to by three different factors: his perceived disability as a result of a back injury sustained in a car accident, the vision of his wife being run down and killed in the same accident, and grief and sorrow at the loss of his wife.

45

Hinz v Berry [1970] 2 QB 40.

46

Pham v Lawson (1997) 68 SASR 124 (plaintiff’s daughter killed in accident, court prepared if necessary to hold that defendant owed duty even though plaintiff not present and suffered psychiatric injury through being told about it (see [11.290]): but award for non-economic loss reduced by one-third because judge failed to have proper regard to the fact that part of her suffering was due to grief, not shock).

47

Davis v Scott (1998) 76 SASR 361 (son badly injured when taken for joy-ride in aircraft which crashed as his parents watched the flight: the Full Court said that the judge had failed to distinguish between the parents’ symptoms which directly related to viewing the accident and its aftermath and those associated with the need to care for their son, and again reduced their damages by one-third).

48

Elliott v Andrew [2009] SADC 31 where the plaintiff’s husband became paraplegic as a result of a motorcycle accident. Had liability been established, the judge would have awarded damages to her for psychiatric illness sustained as a result of learning of the

602

Part III: Liability for Mental Harm

[17.100]

[17.100] In De Franceschi v Storrier49 Miles CJ considered the calculation of damages awardable to a mother for the psychiatric harm suffered as a result of her reaction to the injuries to her three children in an accident at a bus stop, particularly her brain-damaged daughter whose life was in jeopardy for five years, a “difficult task”.50 A distinction had to be drawn between the worry and anxiety for an injured child and contribution of the child’s condition to the continuing effect of the initial shock suffered at the time of the mishap: It is a highly artificial exercise to try and separate out those elements in [the plaintiff’s] condition which relate to the nervous shock and those which relate merely to a natural concern for the children … but the exercise has to be undertaken. I think that uncompensable natural concern will at some stage displace the effects of nervous shock, if it has not already begun to do so, so that eventually the effect of the nervous shock will be minimal. That is not to say that the plaintiff will regain her pre-accident health and disposition, but simply to take the view that her condition will be due to normal and natural concern for the welfare of her children.51

Some judges have conceded defeat. In Harrison v State Government Insurance Office52 the court considered it a “meaningless and unrealistic exercise” to attempt to distinguish between the proportion of the plaintiff’s psychiatric illness brought on by concern for her husband (the negligent party responsible for the car accident in which he lost his life and the plaintiff was injured) and that attributable to the emotional trauma of being a passenger in a vehicle involved in an accident. Significantly, even the consultant psychiatrist called by the first defendant (SGIO) was unable to make such a determination. Though he was of the opinion that, if launched separately, her claim would have failed (based on the rule that reasonably foreseeable psychiatric harm must be sustained as a result of the death of, or injury or peril to, someone other accident and seeing her husband lying on the ground at the scene, but not for general unhappiness resulting from the change in her circumstances (though he would have awarded damages for loss of consortium, a cause of action available to a wife in South Australia). 49

De Franceschi v Storrier (1988) 85 ACTR 1.

50

This was an action brought under s 24(1) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT): see [13.30]. Miles CJ said that, as the injuries to the children occurred whilst the plaintiff was at home and the children at their school bus stop, it was open to serious question whether the injuries to them occurred within the “sight or hearing” of the plaintiff under s 24(1), but since the negligent driver admitted liability for the psychiatric consequences to the plaintiff it was unnecessary to discuss this issue: De Franceschi v Storrier (1985) 88 ACTR 1 at 2. His Honour, however, appears to have overlooked the point that under the statute an action by a parent for “mental or nervous shock” does not have to be sustained within the parent’s sight or hearing.

51

De Franceschi v Storrier (1988) 85 ACTR 1 at 8. For consideration of a similar situation see White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982). Note also the comments of Finlay J in Smith v Email Ltd (unreported, NSWSC, No CLD S 16572 of 1982, 14 March 1986) at 9.

52

Harrison v State Government Insurance Office (1985) Aust Torts Rep 80-723.

[17.120]

17 Damages

603

than the tortfeasor53), Vasta J felt that “good sense” warranted granting the not insubstantial sum of $20,00054 for psychiatric illness as a result of the trauma caused by virtue of the plaintiff’s concern for her careless husband.

McKenzie v Lichter and assessment in a medical negligence context [17.110] A more recent example of the approach to assessment of damages for psychiatric injury is provided by an Australian case, McKenzie v Lichter.55 This was a case of medical negligence, and so offers a useful contrast to the standard accident scenario that was the setting for Hinz v Berry.56 The plaintiff sued for damages for “nervous shock” — the case is an example of adherence to traditional terminology — suffered as a result of his wife giving birth to a stillborn child due to the negligence of doctors and hospital staff. Mrs McKenzie had a history of endometriosis and uterine fibroids, and Mr and Mrs McKenzie knew that there was a risk that she could suffer a uterine abnormality during pregnancy that would be life-threatening to the foetus. In June 1995, during the latter stages of pregnancy, Mrs McKenzie experienced abdominal pain and irregular contractions and she was admitted to hospital and was seen by the doctor early the next morning. Mr McKenzie returned to the hospital a few hours later, by which time a decision had been made that the baby would be delivered by caesarean section that afternoon. He saw his wife in a shower, standing up, supported by staff. After the shower, it was ascertained that there was no foetal heartbeat. Mrs McKenzie was rushed to the operating theatre. Mr McKenzie was told thereafter that the baby was dead. It was a boy, whom they named Oscar. Despite her problems, Mrs McKenzie gave birth to another child, named Murphy, the following year, but the pregnancy was not easy, and Murphy’s early years were difficult, which was exhausting for Mrs McKenzie and placed a heavy burden on her husband, diminishing his recovery from the emotional consequences of the stillbirth. In due course, Mr McKenzie instituted proceedings against two doctors and the hospital, alleging that their negligence caused him to suffer psychiatric injury. Eventually, liability was admitted, allowing the court to concentrate on the issue of assessing the damages payable to a secondary victim of medical negligence. [17.120] Gillard J emphasised that the law gave no compensation for distress, alarm, fear, anxiety, annoyance or despondency, without any resulting psychiatric illness, and so no compensation was payable for the grief and upset flowing from Oscar’s death: 53

See [15.10]–[15.40].

54

Compare this with the $5,000 awarded for pain and suffering, loss of amenities and special damages associated with her minor physical injuries.

55

McKenzie v Lichter [2005] VSC 61.

56

Hinz v Berry [1970] 2 QB 40.

604

Part III: Liability for Mental Harm

[17.120]

I have no doubt that Oscar’s death caused Mr and Mrs McKenzie much grief, distress and upset for many months. Compensation is payable for psychiatric injury due to the consequences of the negligent act and all that flows from that injury, not the grief and sorrow short of psychiatric injury. This sometimes makes the assessment of damages difficult but it is necessary to draw the distinction between grief and psychiatric injury; the former is not compensable, the latter is – see Hinz v Berry …57

The question was when the mental upset progressed from the noncompensable grief stage to psychiatric injury that was compensable, and how to divide up the effects of the stillbirth between the two: The grief that flows from the event is not compensable. There is no doubt that he suffered grief, distress, upset and annoyance because of the death of Oscar. The Court, in determining damages, must divide up the effects of ther stillbirth between grief et cetera and a recognised psychiatric illness, in this case being post traumatic stress with depression. It is not an easy exercise. I refer to Pham v Lawson.58 In that case a mother sued for the mental injury resulting from the death of her young daughter in a car collision. The trial judge noted that the grief was significant and went on to say, approaching the task “using a broad axe”, that it would be reasonable to reduce the award for general damages by one-third “to account for the non-compensable consequences”.59

Establishing liability would require Mr McKenzie to prove that the negligent act was a cause of his mental injury, but here the defendants had admitted liability. However, for the purpose of quantifying damages it was necessary to go further: But when it comes to a question of quantification, it is necessary for him to establish a causal link between the negligent act and the alleged effects of the injuries. His complaints are that he suffers from depression, coupled with post traumatic stress syndrome; but the severity of the symptoms can be affected by other stress events in his life. He is not entitled to be compensated for those additional stress events causing aggravation of his conditions if it is clear that irrespective of the negligent act he would have suffered some degree of stress and depression from those stressful events.60

A number of factors were referred to, including the stresses of the later pregnancy resulting from Mrs McKenzie’s physical condition, the problems resulting from Murphy’s difficulties, Mrs McKenzie’s inability to cope with Murphy resulting in Mr McKenzie having to provide both physical and moral support, and marital problems. 57

McKenzie v Lichter [2005] VSC 61 at [12].

58

Pham v Lawson (1997) 68 SASR 124.

59

McKenzie v Lichter [2005] VSC 61 at [43].

60

McKenzie v Lichter [2005] VSC 61 at [44]. Later in his judgment, Gillard J added that Mr McKenzie was entitled to compensation in so far as events experienced in life which could be a cause of stress or depression were made more difficult by the fact that he had suffered stress and depression from the stillbirth, saying “To unravel these is not an easy task. Nevertheless, the Court, in determining what is reasonable compensation, must do its best in the circumstances” (at [46]).

[17.140]

17 Damages

605

[17.130] On the facts, Mr McKenzie’s case was affected by issues relating to his credibility, including his financial interest in the outcome, the fact that only one psychologist was called to give evidence on his behalf, a tendency to exaggeration and a failure to mitigate damages by seeking treatment for his condition. Gillard J noted that assessing the quantum of general damages involved looking at the injury, pain and suffering and loss of enjoyment of life, past and future, and being careful to avoid the heads of damage overlapping — for example, because a person suffering pain inevitably had a reduced enjoyment of life. General damages were incapable of mathematical calculation and the court had to apply common sense. Gillard J recognised that it was now possible to refer to amounts awarded in other cases to determine quantum,61 but in the end he found the cases cited62 of little assistance. Reviewing the evidence, he found that by early 1999 Mr McKenzie was no longer suffering merely from grief, but from an established injury in the form of post-traumatic stress disorder and depression, but had he obtained the appropriate treatment he would have made a good recovery by the end of 2001 at the latest. On this basis he awarded $30,000 as general damages.

Other principles [17.140] As has already been noted, the discussion of assessment in Hinz v Berry63 proceeded on the basis that presence at the accident scene was essential for recovery. However, as indicated in Chapter 11, it is clear that psychiatric harm suffered as a result of a combination of seeing trauma and being told of it subsequently is compensable,64 and in Australia the High Court has now confirmed that that total absence of direct physical perception is not fatal to a claim.65 Schneider v Eisovitch66 sheds some light on how damages are to be assessed in the former situation. It will be recalled that the plaintiff and her husband while travelling in France were involved in a car accident that killed the 61

McKenzie v Lichter [2005] VSC 61 at [67], noting Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 (see [17.40]) and commenting “Things have moved on since then. In particular, the practice in this Court is for counsel to inform the tribunal of fact as to the range of damages.”

62

Strelec v Nelson (unreported, NSWSC, No 12401 of 1990, 19 February 1996) ($130,000 general damages); Marchlewski v Hunter Area Health Service [1998] NSWSC 771 ($180,000 general damages for the father, $200,000 for the mother); compare Pham v Lawson (1997) 68 SASR 124 ($13,700, reduced on appeal to $9,590). 63

Hinz v Berry [1970] 2 QB 40.

64

See [11.90]–[11.110]. Note Kohn v State Government Insurance Commission (1976) 15 SASR 255 at 257 per Bray CJ: “I think that the … defendant is responsible for all the consequences of the accident, including the plaintiff’s mental and psychological ill health and instability, and that there need be no attempt to sever that part of those consequences which was caused by the report of the death of [her boyfriend] from that part of it which was caused by her own physical injuries.” General damages were assessed at $77,500. 65

Tame v New South Wales (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. See [11.370]–[11.400].

66

Schneider v Eisovitch [1960] 2 QB 430.

606

Part III: Liability for Mental Harm

[17.150]

husband and rendered the plaintiff unconscious. Upon regaining consciousness, the plaintiff was informed of her husband’s death and suffered shock leading, inter alia, to recurring attacks of neurodermatitis. The mental condition leading to the skin complaint was attributable to three factors: (1) the shock of the accident itself that resulted in physical injuries to the plaintiff; (2) the shock of discovering in hospital that her husband had been killed in the same accident; and (3) the continuing mental stress and strain of having to adjust to life without her partner. Paull J had no doubts as to the recoverability of the first of these and the non-recoverability of the last. After some consideration he concluded that the second was also allowable. The question of appropriate relief prompted his Lordship to say that it “is extremely difficult to divide up the consequences of the shock; one cannot hope to achieve more than a very rough and ready division”.67 Awarding £400 for the consequences of the shock, Paull J indicated that had he found against the plaintiff on the means of communication issue that sum would have been reduced to £125, and that if he had found in her favour in relation to the whole of the mental condition and neurodermatitis it would have been increased to £850. So in the result recovery was allowed for less than half of the plaintiff’s mental injury because the remainder could be attributed to the burden of adjusting to a life alone — an element that the law deemed non-compensable. In the factually similar case of Andrews v Williams68 the Supreme Court of Victoria applied this authority, upholding a ruling of the trial judge in which he stated: I will, of course, direct the jury that the injury to be taken into account in this regard comprises the mental and nervous condition resulting from the shock to the plaintiff of her mother being killed in the circumstances and that she cannot be compensated for the mother’s death in any other respects.69

[17.150] It appears that damages for psychiatric harm consequent upon the perception of a traumatic event may be aggravated by the subsequent and causally connected death of the primary victim. In Richards v Baker70 a mother whose shock condition had been caused by witnessing her son run down and severely injured was considered (albeit after some hesitation) entitled to an additional sum for the aggravation of her disorder as a result of his death later that evening. Even the daily reminder of injuries to a loved one, for example through nursing care, may aggravate the damages for the initial shock suffered.71 What is presently unclear is to what extent, if at all, the subsequent death of or physical injury to a psychiatrically disturbed claimant from causes unconnected with the negligence responsible for his or her mental 67

Schneider v Eisovitch [1960] 2 QB 430 at 442.

68

Andrews v Williams [1967] VR 831.

69

Andrews v Williams [1967] VR 831 at 832. Damages of $24,657 were not altered.

70

Richards v Baker [1943] SASR 245.

71

See eg S v Distillers Co (Biochemicals) Ltd [1969] 3 All ER 1412 where a mother’s daily task of caring for her thalidomide-affected child aggravated the award granted for the shock of the birth itself. Note also Kralj v McGrath [1986] 1 All ER 54.

[17.160]

17 Damages

607

condition affects the damages awarded for it. In Chadwick v British Railways Board72 an action brought by a middle-aged man who became psychoneurotic from his experiences as a rescuer at the Lewisham train tragedy was continued by his wife as administratrix of his estate on his subsequent and unrelated death. In assessing general damages at £600, Waller J gave no indication whether he had been influenced in any respect by the death. Principles that emerge from cases on other kinds of damage suggest that death due to unconnected causes reduces the size of awards, because it shortens the length of time over which the plaintiff’s suffering endures.73 This may apply also to awards for mental damage. [17.160] It has been shown that providing that tests of foreseeability are surmounted, special susceptibility to psychiatric injury is not relevant to the question of liability. If normal members of the community would have suffered harm, the tortfeasor will not escape liability on the basis that the victim happened to suffer a particularly severe form of injury due to pre-existing fragility or “eggshell” mental stability.74 That this may, however, be relevant when it comes to the assessment of compensation is apparent from Dooley v Cammell Laird & Co Ltd75 where the plaintiff’s pre-accident neurasthenia76 (which had been aggravated and accelerated in its course by a crane accident leaving him “a permanently broken up old man”) led to the reduction of damages by two thirds.77 It appears that a similar approach was adopted in Australia in Marchlewski v Hunter Area Health Service,78 where a father recovered damages for various psychiatric injuries caused by “viewing the bloody aftermath of the delivery” of his baby daughter, who was badly injured at birth due to the defendant’s negligence and died four weeks later. In response to the defendant’s argument that the plaintiff was not of normal fortitude and had a very clear disposition to an abnormal psychiatric condition, it was argued that the plaintiff should recover at least the damages that a “normal person” would have recovered in the same situation, and this argument was supported by reference to the statement of Murphy J in Jaensch v Coffey79 that “if liability extends to normal persons, it must also extend to predisposed persons, who at least should be able to recover where a 72

Chadwick v British Railways Board [1967] 1 WLR 912.

73

See eg Jobling v Associated Dairies Ltd [1982] AC 794.

74

See [8.280]–[8.380].

75

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyds Rep 271.

76

See [1.10].

77

See also Green v DB Group Services (UK) Ltd [2006] IRLR 764.

78

Marchlewski v Hunter Area Health Service [1998] NSWSC 771, award varied on other grounds in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268. Note also that the damage suffered by Mrs Marchlewski may have been aggravated by her Buddhist beliefs concerning karma, which made the autopsy performed on her dead daughter particularly appalling. For another example of the relevance of cultural habits and their possible effect on the award of damages, see Roussos v Australian Postal Commission (unreported, NSWSC, No 12284 of 1989, 2 November 1994). 79

Jaensch v Coffey (1984) 155 CLR 549 at 557.

608

Part III: Liability for Mental Harm

[17.170]

‘normal’ person would have recovered and to the same extent”.80 In Canada, the effect of the plaintiff’s special sensitivity on the award of damages was discussed at first instance in the leading case of Mustapha v Culligan of Canada Ltd,81 where the plaintiff suffered a psychiatric injury on seeing a fly in bottled water supplied by the defendant. Brockenshire J stressed that the plaintiff had to be restored to his or her original position, but not one which was better than that: there were precursors to this incident that made Mr Mustapha particularly vulnerable, and that if there was a risk that some other incident could have triggered a like reaction allowance had to be made for that contingency.82 However, it is not clear that it is a settled principle that damages must be reduced on the ground of special susceptibility: other courts have refused to reduce the damages for which the defendant is liable consequent on the plaintiff’s pre-existing fragile psyche.83 [17.170] Another factor that may operate to reduce the damages awarded is refusal to undergo medical treatment for a psychiatric 80

See also Wilson v Peisley (1975) 150 ALJR 207; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; the latter case was followed in Harrison v Suncorp Insurance & Finance [1995] QSC 303. Note also Fisher v Department of School Education Western Region [2000] NSWSC 268, a personal injury case (the plaintiff was a teacher who tripped on a strip separating two demountable classrooms, and suffered depression as a result), where Simpson J said: “[W]hen assessing damages, I must bear in mind the plaintiff’s pre-injury fragility. What she is entitled to is an award of damages to compensate her for the injury caused by her fall: that injury includes any magnification of her pre-existing disorder that can properly be attributed to the fall, but not incidences of depression that would, in any event, have occurred, and that are properly to be seen as a manifestation of the pre-existing condition.” FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 is exceptional in that the court appears to have regarded the plaintiff as specially vulnerable because of her reaction to the traumatic experience she suffered, rather than any pre-existing state. Macrossan CJ and Fryberg J were content to reduce her damages on this ground, while Lee J disagreed. The judges took some account of the House of Lords decision in Page v Smith [1996] AC 155 (see [24.260]), which appears to have affected the approach to this issue.

81

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123.

82

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123 at [231]. On appeal, ultimately to the Supreme Court of Canada, liability was denied: see [3.360]–[3.390]. Note also Hussack v School District No 33 (Chilliwack) (2009) 97 BCLR (4th) 330 (plaintiff developed somatoform disorder as result of hockey injury; because he had an over-protective father, making him more vulnerable to psychiatric injury than would normally be expected, but the fact that the condition was exacerbated by actions of a family member did not negate or minimise the defendant’s liability).

83

See Smith v Email Ltd (unreported, NSWSC, No CLD S 16572 of 1982, 14 March 1986) where a mother’s general damages of $40,000 under s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) for “nervous shock” suffered when she was told that her three-year-old son had drowned in an effluent waste storage tank were not reduced despite the fact that her childhood background predisposed her to emotional illnesses in adult life. Compare also Brice v Brown [1984] 1 All ER 997 at 1007 per Stuart-Smith J where damages were assessed at £22,500 without any reference to reduction due to the plaintiff’s pre-existing and long-standing hysterical personality disorder. She was entitled to relief for the full extent of the shock suffered whilst a passenger with her daughter in a taxi which collided with a bus. Despite references to the plaintiff’s pre-existing susceptibility, no reduction was made in Bonham v Carrier (2000) 21 Qld Lawyer Reps 87, varied on other grounds sub nom Carrier v Bonham [2002] 1 Qd R 474.

[17.180]

17 Damages

609

condition. In Marcroft v Scruttons Ltd84 the plaintiff, who developed severe anxiety neurosis and depression following a minor accident, refused to follow his doctor’s advice to undergo treatment at a mental hospital. His damages were reduced on the basis that his refusal was unreasonable, and the assessment was based on what his condition would have been had the treatment been successful, as on the facts was likely. In Clark v Scottish Power plc85 the defender’s actions in forcing entry to the pursuer’s home during her absence and cutting off her electricity caused the pursuer to suffer anxiety through her fear that her neighbours would talk of her as a person who failed to pay her debts, and that the workers who made a forced entry into her house would gossip in public houses and so render her house more vulnerable to burglary. She refused medical treatment for her condition. Lord Morton of Shuna held that the defender’s admitted wrong caused psychiatric symptoms in an already vulnerable personality, but reduced damages on the basis that she had unreasonably refused treatment. Similar principles were affirmed by the New South Wales Court of Appeal in New South Wales v Fahy,86 where the respondent, a police officer, recovered damages against her employers for post-traumatic stress disorder caused by the failure of other police officers to assist or remain with her as she helped a doctor to treat a man who had been stabbed and seriously wounded in an armed robbery. Because she had failed to take anti-depressant medication prescribed by her psychiatrist following this experience, it was held that she had failed to take reasonable steps to mitigate her damages, which were reduced accordingly. The High Court allowed the police appeal on the issue of liability by a bare majority, without affecting the assessment principles discussed in the court below.87 [17.180] Assertions that damages in respect of physical injuries to children tend generally to be lower than in cases concerning adults because a child is naturally more resilient, and that therefore a similar approach should be adopted in mental injury cases, are likely to receive short shrift from the courts. Although the considerations that lead judges to quantify particular psychiatric losses in particular ways remain very much a mystery, what is clear is that any such general method of assessment is avoided.88 As has been pointed out, there may be situations 84

Marcroft v Scruttons Ltd [1954] 1 Lloyd’s Rep 395.

85

Clark v Scottish Power plc 1994 SCLR 202.

86

New South Wales v Fahy (2006) Aust Torts Rep 81-865. See also McKenzie v Lichter [2005] VSC 61, discussed at [17.110]–[17.130].

87 88

New South Wales v Fahy (2007) 232 CLR 486.

For example, there was no suggestion of any such basis of assessment in determining the damages to be awarded to a six-year-old child in G v North Tees Health Authority [1989] FCR 53. Note, however, B(D) v Children’s Aid Society of Durham (Region) [1994] OJ No 643, where a child separated from her father following allegations of sexual abuse was awarded a low amount because she was less than two years old at the time of separation.

610

Part III: Liability for Mental Harm

[17.190]

where mental trauma experienced in childhood that is comparatively mild by adult standards may have serious lasting effects in later life.89

Some distinctions [17.190] A clear distinction has to be drawn between awards for psychiatric injury and those made pursuant to statutory solatium provisions, such as those found in fatal accidents legislation in a few Australian jurisdictions90 — most adhere to the original principle under which recovery under the Fatal Accidents Acts is limited to pecuniary loss.91 Statutory solatium provisions attempt to compensate close relatives for bereavement, anguish, grief and the destruction of the intangible interests in the life of a deceased loved one, including loss of companionship or moral comfort, rather than for a precise medical condition.92 Although it is true that certain emotional states encompassed in solatium awards such as grief can develop into illnesses of a recognised psychiatric nature,93 the two categories of relief are distinct94 and sums granted for solatium may differ greatly, particularly in the light of the modest limits imposed upon the statutory awards.95 89

See Mellor v Moran (1985) 2 MVR 461 at 462–463 per Vasta J. In this case there was expert evidence that because the child plaintiff had had one severe episode of depression (her mother had been killed in a car accident when she was about nine), the likelihood of her developing a depressive disorder in the future should similar stress occur was increased. Damages were assessed at $5,000.

90

Civil Liability Act 1936 (SA), ss 28 – 30, originally enacted in 1940; Compensation (Fatal Injuries) Act (NT), s 10. Such awards are also now allowed in England, Ireland and a majority of Canadian Provinces: Fatal Accidents Act 1976 (UK), s 1A (added in 1982); Civil Liability Act 1961 (IRL), s 49; Fatal Accidents Act, RSA 2000, c F-8, s 8; Fatal Accidents Act, CCSM, c F50, s 3(4); Fatal Accidents Act, RSNB 1973, c F-7, s 3; Fatal Injuries Act, RSNS 1989, c 163, s 5(2); Family Law Act, RSO 1990, c F3, s 61(2)(e); Fatal Accidents Act, RSPEI 1988, c F-5, s 6(3); Fatal Accidents Act, RSS 1978, c F-11, s 4.1.

91

See Blake v Midland Railway Co (1852) 18 QB 93; 118 ER 35. See generally P Handford, “Lord Campbell and the Fatal Accidents Act” (2013) 129 LQR 420.

92

Note that in Scotland the law always permitted the award of damages for non-pecuniary loss to relatives in fatal accident cases: see Eisten v North British Railway Co (1870) 8 M 980. This award was referred to as solatium and it is from this usage that the references to statutory awards for solatium derive. Damages for injuries causing death in Scotland are now governed by the Damages (Scotland) Act 1976 (UK). Awards of solatium are abolished and in their place claimants are entitled to a “loss of society” award for their non-pecuniary losses: see s 1(4). As to the level of such awards see Dingwall v Walter Alexander & Sons (Midland) Ltd 1981 SLT 313; Jarvie v Sharp 1992 SLT 350. Under current Scottish practice damages in personal injury cases for non-pecuniary or “personal” loss are described as “solatium” and damages for pecuniary loss as “patrimonial”. 93

See eg Mellor v Moran (1985) 2 MVR 461.

94

See eg Richards v Baker [1943] SASR 245 at 251 per Mayo J; Hamlyn v Hann [1967] SASR 387 at 403 per Mitchell J; Bassanese v Martin (1982) 31 SASR 461 at 463, 465–466 per Zelling J; Rowe Estate v Hanna (1989) 102 AR 88 at 92 per Forsyth J; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 409–410 per Lord Oliver. Note also Andrewartha v Andrewartha (1987) 44 SASR 1.

95

See eg Bassanese v Martin (1982) 31 SASR 461 at 466 where Zelling J awarded $10,000 to a widow for a depressive mental illness due in part to her husband’s murder by his mistress’s

[17.210]

17 Damages

611

[17.200] Similarly, in psychiatric injury cases there is no necessary or standard correlation between damages awarded for psychiatric injury and those awarded for other types of non-pecuniary harm such as inconvenience, vexation, worry or distress.96 It may well be that on the facts the two sums are comparable,97 but attempts to formulate general statements about whether relief for the former is likely to be greater or smaller than that for the latter have been labelled as “profitless”.98 The two kinds of mental state bear no relationship to each other save than by way of coincidence. Impacts on the mind take a variety of forms and affect people in a variety of different ways and to different degrees. All types of loss must therefore be judged on an individual and independent basis. These principles may require some qualification in the perhaps unlikely event that the law comes to recognise liability in certain circumstances for the infliction of mental distress short of recognisable psychiatric injury.99 In Canada, where there is some authority in favour of such a development, it has been suggested that awards should be relatively low.100 [17.210] In Australia, there is clear authority against the award of aggravated damages for psychiatric injury,101 and such damages are not generally awarded in personal injury cases in Australia102 or England.103 jealous lover and in addition, on the basis that “[p]eople grieve for bad husbands as well as for good”, the maximum amount allowable for solatium under the South Australian provision, namely $4,200. In Richards v Baker [1943] SASR 245 Mayo J awarded a mother £1,300 for “injury from mental and nervous shock” and £170 for solatium out of a possible £300 limit, the original statutory ceiling for parents of an infant in that State. Compare this with Hamlyn v Hann [1967] SASR 387 where Mitchell J gave a husband $3,000 for enduring three years of a similar psychiatric condition caused by the deaths of his wife and child in a car accident in addition to the $1,400 awarded at first instance as solatium for the death of the wife and $1,000 for the death of the child, again the maximum amounts at that time. 96

On quantifying damages for mental distress, see DK Allen, JT Hartshorne and RM Martin, Damages in Tort (Sweet & Maxwell, London, 2000), pp 211–212. For an Australian example, see Crump v Sharah [1999] NSWSC 884.

97

For example in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 the New South Wales Court of Appeal considered that although an award made by Smart J at first instance for psychiatric illness alleged to have been caused by structural damage to a house could not be upheld, the sum awarded was appropriate to compensate the home-owners for their vexation, worry, distress and inconvenience. There is, however, no mention of the actual amount granted, although it does appear to have been more than $800.

98

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 505 per Samuels J.

99

See [6.10].

100

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361 at 381–382 per Molloy J. See also Mcloughlin v Arbor Memorial Services Inc (2004) 36 CCLT (3d) 158. 101

Marchlewski v Hunter Area Health Service [1998] NSWSC 771; Paten v Bale (unreported, Qld SC, No 8921 of 1998, 19 October 1999). 102 See generally H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, Sydney, 2002), pp 82–83. In some jurisdictions, the award of aggravated (and exemplary) damages in personal injury cases is now outlawed by statute: see Civil Liability Act 2002 (NSW), s 21; Personal Injuries (Liabilities and Damages) Act (NT), s 19; Civil Liability Act 2003 (Qld), s 52.

612

Part III: Liability for Mental Harm

[17.220]

In Canada, however, it appears that there is no prohibition on such awards,104 and the same appears to be true in Ireland.105

MODERN DEVELOPMENTS Legislation and similar guidelines [17.220] In Australia, common law principles of assessment of damages in personal injury cases have now been substantially affected by legislation that imposes limits on the award of such damages by capping the overall amount that may be awarded, and thresholds that prevent the award of any damages at all unless the losses reach a minimum level of seriousness. Though such trends could be discerned in legislation enacted from the 1980s onwards, the Australian “insurance crisis” provided renewed impetus. The panel appointed by the Commonwealth government to review the law of negligence made various recommendations about damages, including a cap on general damages of $250,000 and a threshold for general damages based on 15 per cent of a most extreme case.106 The States and Territories responded within a very short time — New South Wales did not even wait for the report — and nearly all had legislation in place within a few months.107 Caps and thresholds are now an uncomfortable reality and severely limit the compensation rights of Australian plaintiffs. The panel emphasised the importance of the need for national consistency. Unfortunately, this has not happened. The capped amount, the threshold level and other aspects

103

See Kralj v McGrath [1986] 1 All ER 54; Law Commission, Aggravated, Restitutionary and Exemplary Damages (Law Com No 247, 1997), 2.27–2.30; A Tettenborn and D Wilby (eds), The Law of Damages (2nd ed, Lexis-Nexis UK, London, 2010), para 29.22. 104

See K Cooper-Stevenson, Personal Injury Damages in Canada (2nd ed, Carswell, Toronto, 1996), pp 527–528; GHL Fridman, The Law of Torts in Canada (3rd ed, Carswell, Toronto, 2010), pp 501–502.

105

Aggravated damages for personal injury were awarded in Philp v Ryan [2004] 4 IR 241 (doctor retrospectively altered clinical record of cancer sufferer to suggest he had advised further tests); Daly v Mulhern [2008] 2 IR 1 (motorist who rear-ended plaintiff’s car denied he had subsequently made offer of compensation).

106

Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002), recommendations 47–48. 107

For the major legislative provisions on the assessment of damages for non-pecuniary loss, see Civil Liability Act 2002 (NSW), ss 16 – 17; Personal Injuries (Liabilities and Damages) Act (NT), ss 24 – 26; Civil Liability Act 2003 (Qld), ss 61 – 62; Civil Liability Act 1936 (SA), s 52; Civil Liability Act 2002 (Tas), s 27; Wrongs Act 1958 (Vic), ss 28G – 28H; Civil Liability Act 2002 (WA), ss 9 – 10. There are no equivalent provisions in the Australian Capital Territory. The Northern Territory legislation specifically abolished common law principles for the determination of non-pecuniary loss: see s 24.

[17.240]

17 Damages

613

of the legislative mix vary considerably from one jurisdiction to another,108 with the result that the law is now much less uniform than before 2002.109 [17.230] Many have contended that this process of “reform” has had unfortunate effects;110 here, comment is confined to the effect on the process of assessing damages for mental harm. Thresholds inevitably limit the ability of many claimants to get proper compensation for their injuries, particularly in cases of lesser severity, and so the ability of many who suffer mental harm to get appropriate compensation has been severely restricted. Caps on liability, on the other hand, may not be a major problem, providing the level is appropriate and regularly reviewed. This issue aside, the legislation providing for caps has had an important effect on the process of assessing damages for mental harm. Common law principles have been in effect superseded; courts now obey legislative dictates to award an appropriate percentage of a most extreme case. Examples of the award process can now be found in the recent case law of most Australian jurisdictions.111 [17.240] In England, the story has been somewhat different. While the system of compensation for personal injury has come under regular scrutiny for many years, so far there has been nothing exactly similar to the events of 2002 in Australia — though recent controversy about the “compensation culture” is beginning to spawn some legislative activity.112 However, as regards the awarding of damages, there was a notable step forward when the Judicial Studies Board (later renamed the Judicial College) began to publish guidelines for personal injury awards based on 108

Or in some cases, within the same jurisdiction. New South Wales has one set of rules for motor accidents (the Motor Accidents Compensation Act 1999), another for injuries at work (Workers Compensation Act 1987), a third for cases involving health care (Health Care Liability Act 2001) and a fourth for claims for public and other civil liability (Civil Liability Act 2002).

109

It appears that the differences between jurisdictions were essentially a matter of different experience and history, rather than having any logical basis: see H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, LexisNexis Butterworths, Sydney, 2002), pp 224–226.

110

See eg H Luntz, “Reform of the Law of Negligence: Wrong Questions – Wrong Answers” (2002) 25 UNSWLJ 836; JJ Spigelman, “Negligence and Insurance Premiums: Recent Changes in Australian Law” (2003) 11 TLJ 291; P Underwood, “Is Ms Donoghue’s Snail in Mortal Peril?” (2004) 12 TLJ 39.

111

See eg Elliott v Andrew [2009] SADC 31; Doherty v New South Wales [2010] NSWSC 450; Oyston v St Patrick’s College [2011] NSWSC 269; Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160; Hall v New South Wales [2014] NSWCA 154; Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2014] NSWSC 1280; Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185; Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64; TB v New South Wales [2015] NSWSC 575. Manthe v BHP Billiton is a dramatic illustration of the differences made by the legislation: Curthoys DCJ noted that he would have awarded $50,000 general damages at common law but the effect of the legislation was to reduce the award to $32,000.

112

Eg Compensation Act 2006 (UK); Social Action, Responsibility and Heroism Act 2015 (UK).

614

Part III: Liability for Mental Harm

[17.250]

past cases.113 Again, this means that in modern cases the assessment of damages proceeds by reference to the guidelines, rather than older common law principles. Useful examples can be found in the case law.114

Traditional principles and expanding liability [17.250] Hinz v Berry115 and the other older authorities discussed at [17.50]–[17.100] were concerned with the well-known situation where relatives seek damages for the effects of viewing or otherwise experiencing at first hand an accident causing death or injury to a loved one. McKenzie v Lichter116 was an example of the same scenario (in a hospital setting). One of the themes of this book is that cases of liability for mental harm can now be found in many other contexts. This has had an effect on the way in which damages for mental harm are awarded. [17.260] There was some recognition of this in the judgment of Ward LJ in the English Court of Appeal case of C v Flintshire County Council.117 After a difficult family upbringing, C had been taken into care at the age of 14. At the first children’s home in which she was placed, she was subjected to bullying; she was moved to another home, only to suffer physical, emotional and sexual abuse at the hands of the staff. She sued the local authority and was awarded damages of £35,000, plus past loss of earnings and the costs of future psychotherapy. The defendant appealed against the size of the award, arguing that under the Judicial Studies Guidelines she was only entitled to £25,000. The Court of Appeal rejected this argument. Ward LJ said: For my part, I am far from satisfied that the Judicial Studies Board categorisation applies to this kind of case at all. Physical, emotional and sexual abuse of children in care by those who are supposed to provide that care seems to me to fall into a wholly different category from psychiatric damage that follows other personal injuries. The injury is of a different character. The essential element of the damage is the extent to which the injury compounds and multiplies the effect of the pre-existing condition. The Judicial Studies Board guidelines do not include among the factors to take into account the duration of the suffering. In the nature of this kind of abuse, the victims are frequently unable to address the abuse until many years later. … I am quite certain that there is no easily definable bracket into which to place this case 113

See Judicial College, Guidelines for the Assessment of Damages in Personal Injuries Cases (13th ed, Oxford University Press, Oxford, 2015).

114 See eg Buckley v Yates Wine Lodges Ltd [2008] EWHC 1408 (QB); Ward v Allies & Morrison Architects [2013] PIQR Q1; Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB). Note also Milner v Carnival plc (trading as Cunard) [2010] 3 All ER 701 (an action in contract for damages for a disappointing holiday on the Queen Victoria: Ward LJ at [38] compared damages awarded for psychiatric injury and affronts for sexual and racial discrimination). 115

Hinz v Berry [1970] 2 QB 40.

116

McKenzie v Lichter [2005] VSC 61.

117

C v Flintshire County Council [2001] PIQR Q9.

[17.270]

17 Damages

615

such as would enable the court to say that an award which fell outside that bracket must of necessity be so plainly wrong as to be set aside.118

Some years previously, a Canadian judge had commented that the assessment of damages in a sexual abuse case differed from typical nervous shock cases, in that the negligence was not indirect and the plaintiff did not sustain loss as some sort of innocent bystander: the negligence was aimed directly at her.119 [17.270] Other cases confirm that the approach to the awarding of damages, and the level of damages awarded, varies according to the fact setting. It is clear, for example, that awards of damages for work stress in Australia reflect the fact that mental harm is brought about by a prolonged period of suffering, rather than a specific incident.120 The English courts have given some guidance on the award of damages in fear for the future cases.121

118

C v Flintshire County Council [2001] PIQR Q9 at [47].

119

B(D) v Children’s Aid Society of Durham (Region) [1994] OJ No 643 at [117] per Somers J.

120

See eg Gregory v New South Wales [2009] NSWSC 559; Swan v Monash Law Book Co-operative [2013] VSC 326; Doulis v Victoria (2014) Aust Torts Rep 82-177.

121

Rothwell v Chemical & Insulating Co Ltd [2006] ICR 1438 at [148]ff per Smith LJ (Lord Phillips MR and Longmore LJ agreeing).

PART IV Relationship Cases 18. General Principles ................................................................................................................... 619 19. Employer and Employee ........................................................................................................ 639 20. Work Stress .............................................................................................................................. 673 21. Professional and Other Relationships ................................................................................... 735 22. Secondary Victim Cases .......................................................................................................... 773 23. Air Travel ................................................................................................................................. 827

Chapter 18

General Principles [18.10] PROLOGUE ....................................................................................................................... 619 [18.50] THE RELATIONSHIP FACTOR ..................................................................................... 622 [18.110] PSYCHIATRIC INJURY IN BREACH OF A RELATIONSHIP: THE ENGLISH CASES ............................................................................................................................... 626 [18.180] THE UNITED STATES EXPERIENCE ......................................................................... 631 [18.250] CONCLUSION ................................................................................................................ 637

PROLOGUE [18.10] Liability for nervous shock — to give it its traditional name — originated in cases involving rail and road accidents, where the parties were generally strangers to each other.1 In Victorian Railways Commissioners v Coultas2 in 1888, for example, the Privy Council held that the railway was under no liability for causing shock and a miscarriage to a passenger in a vehicle that just managed to escape being hit by the train. Other early cases denying liability involve similar fact situations, for example the leading United States case, Mitchell v Rochester Railway Co3 in 1896, where the plaintiff was standing on a crosswalk about to board a streetcar when she narrowly escaped injury by a horse-drawn vehicle belonging to the defendant. In Coultas the injury was said to be too remote, and in Mitchell and many other cases it was held that there could be no recovery because there had been no “impact”, that is, some contemporaneous physical injury that guaranteed that the claim was genuine. However, it was not long before the courts began to find ways of granting recovery to plaintiffs with shock-related injuries: either there was an actual collision, or they were able to find some sort of trivial contact that satisfied the impact requirement.4 The courts then took a bigger step forward. Starting with Bell v Great Northern Railway Co of Ireland5 in 1890, they began to repudiate denials of liability based on remoteness or the lack of impact, holding instead that plaintiffs could recover if they could show that the 1

This chapter brings together and re-interprets material appearing in Chapters 6 and 23 of the previous edition. Much of it appeared in P Handford, “Psychiatric Injury in Breach of a Relationship” (2007) 27 LS 26. 2

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

3

Mitchell v Rochester Railway Co 45 NE 354 (NY 1896).

4

See [2.10].

5

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

620

Part IV: Relationship Cases

[18.20]

shock was caused by reasonable fear of personal injury. The first English case recognising such liability, Dulieu v White & Sons,6 imposed a similar limitation. [18.20] One of the most interesting features of this story of the early stages in the development of liability for psychiatric injury is what did not happen. In Bell v Great Northern Railway Co of Ireland,7 where the rear carriages of a crowded Sunday School excursion train were separated and allowed to run away down a hill, colliding with another train,8 the plaintiff was not a pedestrian or a road user, but a passenger on the train. The court could have fastened on the prior relationship between carrier and passenger to distinguish other cases and create a duty based on that relationship.9 However, this was not the ground on which Palles CB, who gave the leading judgment, proceeded. He confirmed a jury direction that if the shock and resulting injury to health were the reasonable and natural consequence of a great fright, the damage was not too remote, and disposed of Victorian Railways Commissioners v Coultas10 by pointing out the errors in the Privy Council judgment. It was only Murphy J, in a short concurring judgment, who saw another way forward, saying: The case now before us could, if necessary, be distinguished from each of the two cases referred to. In the present case the plaintiff was seated in the carriage of the Company that undertook to use reasonable care in carrying her, and while so seated she sustained injuries. The negligent mismanagement by the defendants of the carriage in which she was seated was admittedly the cause of the injuries she sustained.11

In the same way, in the earliest United States case in which the plaintiff was a passenger rather than a pedestrian, Purcell v St Paul City Railway Co12 in 1892, the court made nothing of this fact. [18.30] Very different was an early case in Western Australia, Daly v Commissioner of Railways,13 where the plaintiff was a passenger on a train travelling from York to Newcastle (now called Toodjay), and suffered nervous shock when the train was derailed as the result of a collision with 6

Dulieu v White & Sons [1901] 2 KB 669.

7

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

8

The Armagh rail disaster of 12 June 1889, in which 80 people were killed and 250 injured, one-third of them children: see C Wolmar, Fire & Steam: How the Railways Transformed Britain (Atlantic Books, London, 2007), pp 168–170. This was the worst railway disaster in the United Kingdom in the 19th century, and is still Ireland’s worst railway disaster. 9

Admittedly, in the earlier Irish case of Byrne v Great Southern & Western Railway Co (unreported, Irish CA, February 1884), cited by Palles CB in Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 at 441, the Irish Court of Appeal had granted damages to the superintendent of a telegraph office for the “great fright and shock” he suffered when a train came through the wall of the telegraph office where he worked, and so there was not the same need to distinguish the passenger situation. 10

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

11

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 at 443.

12

Purcell v St Paul City Railway Co 50 NW 1034 (Minn 1892).

13

Daly v Commissioner of Railways (1906) 8 WALR 125.

[18.40]

18 General Principles

621

a horse. Though there seems to be considerable evidence that she suffered some physical injuries — she was rendered unconscious, laid up in bed for several weeks, and lost the sensation in her legs for some while — the defendant argued that the injuries were mental and not physical, and that by virtue of the decision in Victorian Railways Commissioners v Coultas14 (by which, as a Privy Council decision, the court was bound) she could not recover. All three members of the Full Court distinguished that case on the basis that Frances Daly was a passenger on the train. Parker CJ said: Assuming that the injuries to this lady were only mental, I think that there is a great distinction between this case and Coultas’ case. In that case Mrs Coultas was not a passenger on the railway. She was crossing over the line. She never came in contact with the engine or any part of the Commissioner’s railway, but she saw the engine coming along and she was frightened. Here the plaintiff was a passenger on the line, and the result of the accident was to throw her off her seat, and throw her against other people, and to cause her to become immediately insensible. I think that alone is quite sufficient to distinguish this case from the case of Coultas.15

McMillan J concentrated on the fact that this was not a case of mere fright, but an actual collision, but also noted that the plaintiff was a passenger, and referred to the obligations of carriers to passengers to take due care to prevent accidents. The third judge, Burnside J, saw the issue clearly: I have entertained very little doubt about the position all along. The question here is a very simple one – the obligation of the Commissioner as a carrier, as a person who is bound to take reasonable care for the safety of his passengers. Whether he has taken reasonable care or not appears to me to be a question of fact. … In regard to Coultas’ case, I agree thoroughly with my learned brothers. That case varies from the present one, and is not applicable to it.16

[18.40] So there was an opportunity, very early in the history of liability for psychiatric injuries, to divide the cases into two separate streams, one dealing with accidents between strangers and the other dealing with cases where there was a pre-existing obligation of a contractual or similar nature to take due care. But this opportunity was lost. Other early cases involving passengers with shock-related injuries ignored this aspect of the case and decided the issue by reference to impact or other more traditional criteria.17 The potential for relationships to make a difference is underlined by the fact that in early United States law, even jurisdictions that retained the impact rule generally allowed recovery for emotional harm in two classes of case: negligently transmitting or failing to transmit a telegraph message containing important news, such as the 14

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

15

Daly v Commissioner of Railways (1906) 8 WALR 125 at 127–128.

16

Daly v Commissioner of Railways (1906) 8 WALR 125 at 129.

17

See Geiger v Grand Trunk Railway Co (1905) 10 OLR 511; Toronto Railway Co v Toms (1911) 44 SCR 268; Sealy v Commissioner for Railways [1915] QWN 1, dealt with at [2.10].

622

Part IV: Relationship Cases

[18.50]

announcement of a death,18 and the mishandling of dead bodies.19 In cases involving intentional harm (which became the modern United States tort of intentional infliction of emotional distress), besides telegraph20 and body cases,21 there were other precursor areas of liability based on the relationship between the parties, including the liability of carriers to passengers,22 hotel-keepers to patrons,23 and some other cases involving public utilities.24

THE RELATIONSHIP FACTOR [18.50] The successful plaintiffs in the early cases recognising liability for nervous shock, such as Bell v Great Northern Railway Co of Ireland25 and Dulieu v White & Sons,26 were what English law now calls primary victims: they were in the zone of potential physical danger and suffered shock through fear of immediate personal injury to themselves — indeed, in the latter case, Kennedy J ruled that this was the essential condition for recognising the existence of liability.27 However, some years later, in Hambrook v Stokes Bros,28 the English Court of Appeal rejected this restriction and held that the owner of a runaway truck owed a duty to a mother who suffered shock through fear for the safety of her children — her daughter, as it transpired, had been injured by the vehicle as it careered downhill. For the next 60 years or so, secondary victim claims such as this dominated this area of negligence law: in such cases the plaintiff, safely outside the area of possible physical impact, suffered psychiatric injury through fear that another, usually a close relative, had been killed, injured or put in peril. In England, the line of cases commencing with Hambrook led ultimately to the decision of the House of 18

See So Relle v Western Union Telegraph Co 55 Tex 308 (1881); Mentzer v Western Union Telegraph Co 62 NW 1 (Iowa 1895). Compare the Australian case of Blakeney v Pegus (No 2) (1885) 6 NSWR 223: see [28.50].

19

See Louisville & N Railway Co v Hull 68 SW 433 (Ky 1902); Missouri K & T Railway Co v Hawkins 109 SW 221 (Tex 1908).

20

See Dunn v Western Union Telegraph Co 59 SE 189 (Ga 1907).

21

See Larson v Chase 50 NW 238 (Minn 1891).

22

See Chamberlain v Chandler 5 Fed Cas No 2557 (1823); Goddard v Grand Truck Railway Co 57 Me 202 (1869); St Louis A & T Railway Co v Mackie 9 SW 451 (Tex 1888) (the first case where there was not also a traditional tort such as an assault). In New York, it has been held that the special liability of carriers to passengers is inconsistent with the principles of vicarious liability, and no longer viable as a matter of law and policy: Adams v New York City Transit Authority 666 NE 2d 216 (NY 1996).

23

See De Wolf v Ford 86 NE 527 (NY 1908).

24

See Dickson v Waldron 34 NE 506 (Ind 1893) (theatre); Davis v Tacoma R & P Co 77 P 209 (Wash 1904) (amusement park). The public utility rationalisation is that adopted by Restatement of Torts (US), § 48.

25

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

26

Dulieu v White & Sons [1901] 2 KB 669.

27

Dulieu v White & Sons [1901] 2 KB 669 at 675.

28

Hambrook v Stokes Bros [1925] 1 KB 141.

[18.60]

18 General Principles

623

Lords in Alcock v Chief Constable of South Yorkshire Police29 that confirmed limitations on the scope of liability such as the need for close ties of relationship, personal perception of the accident or its immediate aftermath, sudden shock, and foreseeability of psychiatric injury to a person of ordinary fortitude. Australian law has confirmed that English law may well be taking a conservative approach in insisting on such limitations: in Tame v New South Wales,30 the High Court of Australia jettisoned direct perception, sudden shock and ordinary fortitude, and held that liability depended simply on foreseeability of psychiatric injury, allied to the nature of the relationship between the parties. [18.60] It was in Alcock v Chief Constable of South Yorkshire Police31 that Lord Oliver of Aylmerton sent English law off in a new direction by pointing out that psychiatric injury cases were not all the same. He highlighted a distinction between cases in which “the plaintiff was no more than the passive and unwilling witness of injury caused to others” and those in which “the injured plaintiff was involved, either mediately or immediately, as a participant”.32 Since that case, and in large measure because of the limits it imposed on the expansion of the former category, now labelled secondary victim cases, the focus of English law has now shifted to the other group, the primary victims. Three years after Alcock, in Page v Smith,33 a bare majority of the House of Lords led by Lord Lloyd of Berwick created new law by holding that in a case involving a primary victim — someone who “was himself directly involved in the accident, and well within the range of foreseeable physical injury”34 — the requirements of liability were much less onerous. In such cases, foreseeability of any form of physical injury was enough to establish a duty of care and other rules limiting the ambit of secondary victim liability did not apply. The case can perhaps be seen as a well-meaning attempt to extend liability to deserving plaintiffs who were perhaps not well served by the previous law,35 such as Mr Page himself, the victim of a minor car accident that had reactivated his chronic fatigue syndrome — the court below had held that psychiatric injury was not foreseeable in the circumstances of the case.36 However, Lord Lloyd’s judgment had the opposite effect of narrowing the law because of the implication that to be a primary victim one must be within the area of potential physical danger — a limitation confirmed by the third of this trilogy of House of Lords 29

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

30

Tame v New South Wales (2002) 211 CLR 317.

31

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

32

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407.

33

Page v Smith [1996] AC 155.

34

Page v Smith [1996] AC 155 at 184.

35

See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 480 per Lord Goff of Chieveley.

36

See Page v Smith [1994] 4 All ER 522.

624

Part IV: Relationship Cases

[18.70]

cases, White v Chief Constable of South Yorkshire Police.37 Thus, absent a close relationship between the claimant and the immediate accident victim, the emphasis is once again on physical proximity and personal danger, as it was in the early days, even though in the interim it has been recognised that injury by shock is a different kind of injury from injury by impact. The unfortunate effects of the distinction between primary and secondary victims embedded in English law by Page v Smith have been well documented and are dealt with elsewhere in this book.38 Fortunately, Page v Smith has not been followed in Australia and other Commonwealth jurisdictions,39 and in these countries the distinction between primary and secondary victims, in its hardline form, has not been adopted. [18.70] In the shadow of these developments, other kinds of mental harm cases began to make their appearance. For example, plaintiffs began to make complaints of psychiatric injury arising in an employment context, or as a result of medical negligence, or in the course of the provision of other services of various kinds. Often, what has happened in such cases was not appropriately characterised as an “accident” — so, for example, in one particular group of employer–employee cases liability began to be imposed for “work stress”, involving mental harm resulting from the cumulative effects of conduct over an extended period. Most importantly, these cases in which liability was recognised for psychiatric harm “beyond the mainstream”40 are characterised by the fact that there was some sort of relationship between the parties prior to the act of negligence causing one party to suffer psychiatric injury. Most of these are “two-party” cases — cases that could be described as “primary victim” cases if it is possible to ignore the limitations on the scope of that term now imposed by English law. However, it has become clear that the existence of a prior relationship between the parties can also be an important factor in “three-party” or “secondary victim” cases: for example, the primary victim may be an employee or a patient of the defendant, rather than a complete stranger. The relationship between the defendant and the secondary victim may also be an important factor, as it was in Tame v New South Wales,41 the leading Australian case; some years later, in Kirkland-Veenstra v Stuart,42 Warren CJ in the Victorian Court of Appeal suggested that an antecedent relationship could give rise to a duty of care even where traditional indicia such as direct perception or sudden shock were absent.43 37

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

38

See [3.130]–[3.220].

39

See [3.230].

40

See H Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Hart Publishing, Oxford, 2009), Ch 4.

41

Tame v New South Wales (2002) 211 CLR 317.

42

Kirkland-Veenstra v Stuart (2008) 23 VR 1 at [86].

43

The Victorian Court of Appeal was considering whether police officers who found a man in his car with a hose attached to the exhaust were under a duty to take reasonable care to

[18.100]

18 General Principles

625

[18.80] In Australia, the importance of the relationship between the parties has now been confirmed by the Civil Liability Act provisions on mental harm now in force in all jurisdictions except Queensland and the Northern Territory. The legislation attempted a codification of the common law by providing that the defendant does not owe a duty of care to the plaintiff to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if care were not taken.44 One of the listed circumstances is whether or not there was a pre-existing relationship between the plaintiff and the defendant.45 [18.90] Accordingly, Part IV examines various cases where the relationship between the parties is at the centre of the argument for recognition of a duty to take care not to cause mental harm. In Australia (but not in England) it is recognised that such a duty arises out of an employment relationship. Chapter 19 deals with accidents in the course of employment, and Chapter 20 with liability for work stress (where liability under English law is perhaps more extensive than in Australia). Chapter 21 deals with professional relationships and other service provision cases. Chapter 22 looks at the effect of prior relationships in secondary victim cases. Another area depending chiefly on the preexisting relationship between the parties is the liability of air carriers for accidents during air travel, discussed in Chapter 23. [18.100] In recent years, despite the limitations imposed by Page v Smith,46 the English courts have managed to make a distinctive contribution to this area of mental harm law, by recognising that relationship cases should be allowed to develop as a discrete area, and may be subject to different rules. As yet, these cases have not had much impact in Australia, though it is arguable that this may be because Australia has avoided the limiting effects of Page v Smith. These cases are nevertheless at least potentially important, and they are discussed at [18.110]–[18.170]. They have been paralleled by a similar development in protect him from reasonably foreseeable injury, and whether their liability extended to the psychiatric injury suffered by his wife on returning home to discover that he had committed suicide. The statement referred to in the text was made in response to a defence submission that in the absence of direct perception or sudden shock, an antecedent relationship was a necessary condition of liability. The Court of Appeal held by majority that the police owed a duty of care to both parties. The High Court held that no duty was owed to the husband; since it was accepted that if no duty was owed to the husband none could be owed to the wife, the High Court did not need to deal with secondary victim issues: see Stuart v Kirkland-Veenstra (2009) 237 CLR 215. 44

Civil Law (Wrongs) Act 2002 (ACT), s 34(1); Civil Liability Act 2002 (NSW), s 32(1); Civil Liability Act 1936 (SA), s 33(1); Civil Liability Act 2002 (Tas), s 34(1); Wrongs Act 1958 (Vic), s 72(1); Civil Liability Act 2002 (WA), s 5S(1). 45

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(d); Civil Liability Act 2002 (NSW), s 32(2)(d); Civil Liability Act 1936 (SA), s 33(2)(a)(iv); Civil Liability Act 2002 (Tas), s 34(2)(b); Wrongs Act 1958 (Vic), s 72(2)(d); Civil Liability Act 2002 (WA), s 5S(2)(d).

46

Page v Smith [1996] AC 155.

626

Part IV: Relationship Cases

[18.110]

some United States jurisdictions, under which it has been recognised that the established limitations on the scope of the duty of care in ordinary secondary victim cases may not apply in “direct victim” cases, which are almost always cases where there is a prior relationship between the parties. The United States experience forms the subject of [18.180]–[18.240].

PSYCHIATRIC INJURY IN BREACH OF A RELATIONSHIP: THE ENGLISH CASES [18.110] Until recently, there was little in the way of judicial examination of the relationship issue and its importance as a source of a duty of care in mental harm cases, though in Leach v Chief Constable of Gloucestershire Constabulary,47 Brooke LJ, who during his time as Chairman of the Law Commission of England and Wales had presided over all but the final stages of the Commission’s reference on liability for psychiatric illness,48 gave examples of some non-mainstream cases, including work stress cases and various miscellaneous cases that had been identified by the Law Commission. The first important step was taken by Lord Slynn of Hadley in W v Essex County Council,49 in the course of a short judgment dealing with an application to strike out a claim against the council in respect of its childcare responsibilities to foster parents whose own children had been sexually abused by the youth placed in their care. Lord Slynn of Hadley saw a need to distance the case from the standard psychiatric injury authorities: On a strike out application it is not necessary to decide whether the parents’ claim must or should succeed if the facts they allege are proved. On the contrary, it would be wrong to express any view on that matter. The question is whether if the facts are proved they must fail. It is not enough to recognise, as I do recognise at this stage, that the parents may have difficulties in establishing their claim. On the other hand, it seems to me impossible to say that the psychiatric injury they claim is outside the range of psychiatric injury which the law recognises. Prima facie pleaded it is more than “acute grief”. … Nor do I find it possible to say that a person of reasonable fortitude would be bound to take in his or her stride being told of the sexual abuse of his or her young children when that person had, even innocently, brought together the abuser and the abused. A judge might find on a full investigation of the circumstances that they might. I do not feel sufficiently informed on the detailed facts at this stage to rule it out. This, however, is only the beginning. Is it clear beyond reasonable doubt that the parents cannot satisfy the necessary criteria as “primary” or “secondary” victims? As to being primary victims it is beyond doubt that they were not physically injured by the abuse and on the present allegations it does not seem reasonably foreseeable that there was risk of sexual abuse of the parents. But 47

Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421 at 1434–5.

48

See Law Commission, Liability for Psychiatric Illness: A Consultation Paper (Consultation Paper No 137, 1995).

49

W v Essex County Council [2001] 2 AC 592.

[18.130]

18 General Principles

627

the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed. It is a concept still to be developed in different factual situations.50

[18.120] The following year, in McLoughlin v Jones,51 Brooke and Hale LJJ provided a blueprint for the way in which cases on psychiatric injury arising out of the breach of a relationship should be recognised and allowed to develop as a discrete category of mental damage law — in the process, managing to salvage the decision in Page v Smith52 and, it would seem, remove its unfortunate association with situations of proximity to physical danger.53 In McLoughlin v Jones, the claimant had used the defendant firm of solicitors for several years for the purpose of his business activities, which involved the buying and renting of properties. In 1992, one of his tenants was assaulted and robbed. Mr McLoughlin was arrested and charged with robbery and causing grievous bodily harm. He asked his solicitors to handle his defence, which was that the assault had already taken place when he arrived, and that the tenant had willingly paid the claimant the £60 he owed him. However, the solicitors were negligent in various respects: they failed to carry out his instructions to place a public advertisement seeking witnesses and engage an inquiry agent, and they said they expected to succeed in having the trial postponed but this did not happen — with the result that the plaintiff was unexpectedly summoned from his place of work to go straight to court and stand trial. He was convicted and sentenced to four months’ imprisonment. Three months later, on the basis of new evidence that was not available at the trial, the English Court of Appeal ordered a retrial, and he was acquitted. He sued the solicitors for breach of contract and negligence in the conduct of his defence, claiming that he had suffered indignity, loss of reputation, damage to his business and psychiatric illness. The question whether the defendants owed him a duty of care to protect him from foreseeable psychiatric illness arising from the alleged negligence was tried as a preliminary issue. Elias J found on the evidence that the claimant suffered from a major depressive disorder as the result of his conviction and imprisonment. However, he held that this was not a foreseeable consequence, and struck out the claim. The English Court of Appeal allowed the appeal. [18.130] Elias J, basing his decision on the standard authorities, said that the question was whether, with hindsight, it could be said to be reasonably foreseeable that the defendant’s failures in two particular respects — to advertise and to engage an inquiry agent — would lead a person of ordinary fortitude, in the circumstances of the case, to suffer an 50

W v Essex County Council [2001] 2 AC 592 at 600–601.

51

McLoughlin v Jones [2002] QB 1312.

52

Page v Smith [1996] AC 155.

53

Note also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 478 per Lord Goff of Chieveley, suggesting that Lord Lloyd did not intend to hold that presence within the range of foreseeable physical injury was a necessary attribute of a primary victim; contrast Lord Steyn at 497.

628

Part IV: Relationship Cases

[18.140]

identifiable psychiatric illness. Brooke LJ, referring to the judgment of Lord Lloyd of Berwick in Page v Smith,54 said that this approach made sense when the plaintiff was a secondary victim, but that in other situations it was inappropriate to apply principles of hindsight and ordinary fortitude: Neither of these rules is apposite when the relationship between the parties is founded on contract, whether the breach of duty relied upon is a breach of a contractual term, or a breach of a duty of care arising out of the parties’ contractual relationship which sounds in damages in tort. In those cases the scope of the inquiry is different. In the present case it appears to me that it is necessary to go back to first principles in order to identify whether and in what circumstances the defendants might have owed a duty to Mr McLoughlin to assist him in avoiding psychiatric illness before anything useful can be gained by determining whether his psychiatric illness was a foreseeable consequence of a breach of that duty.55

Referring to the different kinds of cases involving claims for psychiatric illness where the defendant had neither imperilled nor caused physical illness to anyone, as identified in his earlier judgment in Leach v Chief Constable of Gloucestershire Constabulary,56 Brooke LJ said that the proper question to ask was how a legally enforceable duty of care could arise in a case such as this where the parties’ legal relations were ultimately founded on contract. Applying general duty of care principles, and looking at the whole course of the defendant’s conduct, and not just the two particular allegations highlighted by the judge, the question became whether it was reasonably foreseeable as a matter of law that in all the circumstances Mr McLoughlin would suffer a psychiatric illness of some kind as a consequence of his solicitors’ lack of care. In asking this question, the focus was properly on Mr McLoughlin as an individual, not the person of ordinary fortitude, and the hindsight test was not appropriate. Well-known tests, such as that of Lord Bridge of Harwich in McLoughlin v O’Brian,57 were suited to secondary victim cases but not necessarily to this rather different situation. In particular, in the kinds of cases under examination Lord Bridge’s preference for the judge to decide the foresight issue, rather than deferring to those with expert knowledge, might not necessarily be the correct approach. [18.140] Hale LJ agreed, emphasising the distinction between the leading psychiatric injury cases, most of which involved pure tort actions, and the position in contract. Though English law had generally required psychiatric injury to have been foreseeable in a person of ordinary phlegm, in the case of primary victims the majority in Page v Smith58 and 54

Page v Smith [1996] AC 155.

55

McLoughlin v Jones [2002] QB 1312 at [26].

56

Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421.

57

McLoughlin v O’Brian [1983] 1 AC 410 at 432–433: see [7.420].

58

Page v Smith [1996] AC 155.

[18.160]

18 General Principles

629

White v Chief Constable of South Yorkshire Police59 had adopted a different approach. Primary victims were not limited to those identified by Lord Lloyd in the former case as those within the range of foreseeable physical injury. Others were included, such the victims of work stress, and Mr McLoughlin: It is quite clear that the claimant in this case should also be regarded as a primary victim. Indeed, the judge said so: “In my view it is clear on any common sense view that the claimant in this case would be described as a ‘primary’ victim and that the particular rules developed for secondary victims have no application to him.” The one consequence of that which is also quite clear is that the question of what might be foreseen in a person of “ordinary phlegm” does not arise. The question of foreseeability must be considered in relation to this particular claimant, and what the defendants knew or ought to have known about him.60

[18.150] In the next paragraph of her judgment Hale LJ took a further step, one that led her into uncharted territory. She said: There is an argument for going further than that and regarding this claimant as the same sort of primary victim as the claimant in Page v Smith …. Loss of liberty is just as much an interference in bodily integrity as is loss of a limb. It is obviously foreseeable that negligence such as that pleaded in this case in the conduct of a defence of a person wrongly accused of serious criminal offences will result in their conviction and imprisonment. This is quite different from negligence in the conduct of matrimonial proceedings …: these do not (unless there is contempt of court) result in loss of liberty. Why should the person guilty of negligence in the conduct of proceedings which may lead to wrongful imprisonment not be liable for the consequential psychiatric injury? Why should this be any different from the person who suffers physical injury in a road accident with consequential psychiatric illness? No one has ever doubted (nor did the majority of the House of Lords in the Frost case [ie White v Chief Constable of South Yorkshire Police]) that psychiatric illness consequent on foreseeable physical injury is recoverable. If, in accordance with Page v Smith …, physical and psychiatric injury are the same kind of injury, why should this case be any different?61

[18.160] Brooke LJ expressly reserved his opinion on this issue, saying it should be left for another day,62 and indeed it was not necessary for this decision. Moreover, while Hale LJ’s suggestion highlights the importance of McLoughlin v Jones,63 most relationship cases would not raise civil liberties issues of this kind. But what is important about the ground agreed on by both Brooke and Hale LJJ is that it offers a way of reconciling and explaining most of the cases in which plaintiffs suffer psychiatric injury as a result of breach of some pre-existing relationship, one that is especially valuable in that it pinpoints the appropriate 59

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

60

McLoughlin v Jones [2002] QB 1312 at [56].

61

McLoughlin v Jones [2002] QB 1312 at [57].

62

McLoughlin v Jones [2002] QB 1312 at [49].

63

McLoughlin v Jones [2002] QB 1312.

630

Part IV: Relationship Cases

[18.170]

question to be asked in applying the foreseeability test and makes it clear how it differs from the test applied by English law for the resolution of secondary victim psychiatric injury cases. A few months later, in her judgment in Hatton v Sutherland,64 Hale LJ further elaborated the approach identified in McLoughlin v Jones by saying: In summary, therefore, claims for psychiatric injury fall into four different categories: (1) tortious claims by primary victims, usually those within the foreseeable scope of physical injury, for example, the road accident victim in Page v Smith [1996] AC 155; some primary victims may not be at risk of physical harm, but at risk of foreseeable psychiatric harm because the circumstances are akin to those of primary victims in contract (see (3) below); (2) tortious claims by secondary victims: those outside that zone who suffer as a result of harm to others, for example, the witnesses of the Hillsborough disaster in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; (3) contractual claims by primary victims: where the harm is the reasonably foreseeable product of specific breaches of a contractual duty of care towards a victim whose identity is known in advance, for example the solicitors’ clients in Cook v S [1967] 1 WLR 457 … or the employees in the cases of Petch v Customs and Excise Commissioners [1993] ICR 789, Walker v Northumberland County Council [1995] ICR 702 and Garrett v London Borough of Camden [2001] EWCA Civ 395 and in all the cases before us; (4) contractual claims by secondary victims: where the harm is suffered as a result of harm to others, in the same way as secondary victims in tort, but there is also a contractual relationship with the defendant, as with the police officers in [White v Chief Constable of South Yorkshire Police].

[18.170] Is the rationalisation of the relationship cases offered by Brooke and Hale LJ something that could be adopted by Australian law? The idea that relationship cases constitute a separate category is an attractive one: in most cases the relationship would be based on a contract between the parties, though there would be some exceptions.65 It also seems logical to accept that some of the rules may operate differently in such cases. There are some problems, stemming from the fact that the judgments in McLoughlin v Jones66 and Hatton v Sunderland67 were part of a process by which English law has attempted to distance itself from the limitations on the primary victim category created by Lord Lloyd in Page v Smith.68 Lord Lloyd said that in primary victim cases there would be no need to ask whether psychiatric injury was foreseeable to a person of ordinary fortitude, and Brooke LJ suggested that this approach was appropriate for all kinds of relationship cases. It seems logical in such cases to focus on the individual plaintiff, rather than the hypothetical person of ordinary fortitude, and this is the approach already adopted by Australian law in one category of case that would fall under the relationship heading, 64

Hatton v Sutherland [2002] ICR 613 at [21].

65

Eg the caring institution and government agency cases dealt with in Chapter 21.

66

McLoughlin v Jones [2002] QB 1312.

67

Hatton v Sutherland [2002] ICR 613.

68

Page v Smith [1996] AC 155.

[18.180]

18 General Principles

631

namely the work stress cases.69 However, there may be some difficulty in accepting a different approach to ordinary fortitude in relationship cases, at least in the jurisdictions where the Civil Liability Acts require that in all cases the defendant must have foreseen that recognised psychiatric illness might have been suffered by a person of ordinary fortitude (though this was not a requirement in any case at common law).70 As will be seen, Australian law recognises all the relationship situations found in the English cases, and perhaps some others. Accepting that these cases, or most of them, have a conceptual unity founded on the relationship between the parties, and applying the foreseeability test in a consistent way to such situations, would seem a logical next step. Significantly, in Pickering v McArthur,71 a recent Queensland case in which the court refused to strike out a claim against a massage therapist for alleged negligent relationship counselling, McMurdo P said: The nature of the alleged relationship between the applicant and the respondent is such that the case for the recognition of a duty to exercise reasonable care to avoid inflicting psychiatric injury is at least as strong, if not stronger than the case of the successful plaintiffs in Tame v New South Wales.72

THE UNITED STATES EXPERIENCE [18.180] As related in Chapter 3,73 the development of liability for psychiatric injury in jurisdictions such as Australia and England has been paralleled by a similar development in the United States. Most jurisdictions originally required “impact” as a precondition of liability, though courts were soon getting round this requirement by finding that trivial contacts were sufficient to constitute impact. Before the 1960s, jurisdictions that repudiated the impact rule tended to formulate liability in terms of presence within the “zone of danger”, a rule equivalent to Dulieu v White & Sons,74 but in 1968 the Californian Supreme Court in Dillon v Legg75 breached this barrier by holding that bystanders could recover for emotional distress suffered on witnessing the death of another, if harm was foreseeable by a reasonable person in the circumstances, taking into account factors such as relationship to the accident victim, the plaintiff’s location, and whether the shock resulted from sensory and contemporaneous observance — though more recently the same court in Thing v La Chusa76 limited the ambit of this decision by holding that 69

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [35] per McHugh, Gummow, Hayne and Heydon JJ: see [20.470].

70

See [8.150]–[8.230].

71

Pickering v McArthur [2005] QCA 294.

72

Pickering v McArthur [2005] QCA 294 at [10], referring to the Annetts claim in Tame v New South Wales (2002) 211 CLR 317.

73

See [3.760]–[3.790].

74

Dulieu v White & Sons [1901] 2 KB 669.

75

Dillon v Legg 441 P 2d 912 (Cal 1968).

76

Thing v La Chusa 771 P 2d 814 (Cal 1899).

632

Part IV: Relationship Cases

[18.190]

relationship, presence and contemporaneous observation were essential preconditions of liability, rather than mere factors in the foreseeability equation. There is still much jurisdictional variation: even today, there are States that endorse each of the doctrinal positions summarised in this paragraph. [18.190] What is interesting for present purposes, however, is that the United States jurisprudence has been able to distinguish the bystander situation in cases that are not appropriately so classified, and that it has done so by developing the concept of “direct victim” recovery.77 The law has forged a distinction between those whose claim is based on being a witness of an injury suffered by another and those who can establish that they were the direct victims of an act of negligence and suffered emotional distress as a result.78 There is an affinity between the direct victims identified by American doctrine and primary victims as categorised by Lord Oliver,79 but the former extends over a much wider area. Like Lord Lloyd, the United States cases have recognised that different rules apply in this kind of case, but the distinction between the categories is much more rational.80 As a leading scholar has demonstrated, the direct victim cases almost always involve undertakings or other special relationships.81 [18.200] The origins of the direct victim doctrine are to be found in a leading Californian case, Molien v Kaiser Foundation Hospitals,82 where a husband claimed damages in respect of emotional distress suffered when his wife was negligently diagnosed by a doctor as having syphilis, and was told to tell her husband and get him to have a blood test. The marriage broke down as a result of the mutual suspicion thereby engendered, even though it was ultimately established that the diagnosis was erroneous. The defendant argued that the husband was not present 77

See JA Davies, “Direct Actions for Emotional Harm: Is Compromise Possible?” (1992) 67 Wash L Rev 1. Note also TA Tureau, “Bystander Recovery for Negligent Infliction of Emotional Distress: Louisiana Enters the Twentieth Century” (1992) 37 Loyola L Rev 1005; LB Sandor and C Berry, “Recovery for Negligent Infliction of Emotional Distress Attendant to Economic Loss: A Reassessment” (1995) 37 Ariz L Rev 1247.

78

The contrast between the United States direct relationship doctrine and the problems of Page v Smith [1996] AC 155 in England was referred to by Henry LJ in Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 278. Note also Lord Oliver’s reference to situations “where the plaintiff has himself been directly involved in the accident”: Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407.

79

The direct victim category has been held to include those who are participants in accidents, rather than mere witnesses: see Long v PKS Inc 16 Cal Rptr 2d 103 (1993).

80

Direct victim cases occasionally refer to the primary and secondary victim distinction recognised by Page v Smith [1996] AC 155: see eg Kelly v Brigham & Women’s Hospital 745 NE 2d 969 (Mass 2001) at 978 per Greenberg J.

81

See DB Dobbs, “Undertakings and Special Relationships in Claims for Negligent Infliction of Emotional Distress” (2008) 50 Ariz L Rev 49; DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, pp 608–612. Dobbs’s analysis was expressly adopted in Toney v Chester County Hospital 36 A 3d 83 (Pa 2011).

82

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980).

[18.210]

18 General Principles

633

when the diagnosis was made and so on Dillon v Legg83 principles was not owed a duty. The Supreme Court of California, however, said that the husband “was himself a direct victim of the assertedly negligent act” and that it was wrong to “urge a rote application of the [Dillon] guidelines to a case factually dissimilar to the bystander scenario”.84 [18.210] The emphasis placed by the Supreme Court in this case on general principles of foreseeability, and the fact that the court then proceeded to eliminate any need for physical manifestations of emotional distress as a precondition of recovery,85 led to criticism of the decision, some arguing that California had bypassed the bystander cases and introduced a principle that all foreseeable emotional distress was now compensable.86 Others, including the author of the judgment,87 steadfastly maintained that this was a misinterpretation and that the decision never went so far as to introduce an untrammelled foreseeability principle, noting that the court stressed that the doctor had advised Mrs Molien to have her husband examined, so confirming that he was a foreseeable victim, and that the tortious conduct was directed to him as well as his wife. The Supreme Court in a later case88 attempted to limit Molien v Kaiser Foundation Hospitals89 along these lines, and some lower court decisions attempted to repudiate the direct victim doctrine, seeking alternative bases of recovery such as the existence of a contract.90 Nine years after the original decision, the Californian Supreme Court attempted to restore order. In Marlene F v Affiliated Psychiatric Medical Clinic Inc91 a mother recovered damages for emotional distress against a therapist who molested her child. The therapist was treating both mother and child for family emotional problems. Emphasising that in Molien there had been no intention to create an action for negligent infliction of emotional distress based solely on foreseeability, a majority judgment concurred in by four of the seven justices said that damages were recoverable “when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises 83

Dillon v Legg 441 P 2d 912 (Cal 1968): see [3.780].

84

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980) at 816 per Mosk J.

85

See [6.160].

86

For example, D Crump, “Evaluating Independent Torts Based upon “Intentional” or “Negligent” Infliction of Emotional Distress: How can we keep the Baby from Dissolving in the Bath Water?” (1992) 34 Ariz L Rev 439 at 463–465. For a judicial affirmation of this view, see the partly concurring judgment of Bird CJ in Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985) at 20.

87

See Mosk J’s dissenting judgment in Thing v La Chusa 771 P 2d 814 (Cal 1989), and his separate concurring judgment in Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992).

88

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985).

89

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980).

90

Andalon v Superior Court 208 Cal Rptr 899 (1984); Newton v Kaiser Foundation Hospitals 228 Cal Rptr 890 (1986).

91

Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989).

634

Part IV: Relationship Cases

[18.220]

out of a relationship between the two.”92 Commentators have noted the affinity between this test and the general principles of duty in negligence under Californian law.93 The other judges provided a different rationalisation based on professional malpractice. [18.220] The only problem with this seeming reconciliation of the decisions was that 17 days later, in Thing v La Chusa,94 a majority consisting of Arguelles J and the three minority judges in Marlene F v Affiliated Psychiatric Medical Clinic Inc95 redefined the rules applicable to bystander situations and, without reference to Marlene F, referred in disparaging terms to the complications introduced by Molien v Kaiser Foundation Hospitals96 and its failure to state criteria for characterising direct victims.97 A subsequent lower court decision took the view that in spite of this setback the direct victim doctrine as interpreted in Marlene F had survived.98 Eventually, in Burgess v Superior Court (Gupta)99 the Supreme Court set the seal on the direct victim doctrine by confirming that the law recognised the distinction between bystander and direct victim cases, and that the restrictions imposed by Thing v La Chusa on bystander recovery were not controlling in direct victim situations.100 A number of other jurisdictions have now recognised the distinction between the two kinds of cases.101 92 Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989) at 282 per Arguelles J. With rare exceptions, a breach of duty must threaten physical injury, not simply damage to property or financial interests: Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993). 93

See JA Davies, “Direct Actions for Emotional Harm: Is Compromise Possible?” (1992) 67 Wash L Rev 1 at 29–37.

94

Thing v La Chusa 771 P 2d 814 (Cal 1989).

95

Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989).

96

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980).

97

Thing v La Chusa 771 P 2d 814 (Cal 1989) at 822–824.

98

Schwarz v Regents of University of California 276 Cal Rptr 470 (1990); see also Martin by and through Martin v United States 779 Fed Supp 1242 (1991). 99

Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992). For recent cases affirming the direct victim principle in California, see eg Everett Associates Inc v Transcontinental Insurance Co 159 F Supp 2d 1196 (2001); Moon v Guardian Postacute Services Inc 116 Cal Rptr 2d 218 (2002); Ess v Eskaton Properties Inc 118 Cal Rptr 2d 240 (2002); Allison C v Advanced Education Services 28 Cal Rptr 3d 605 (2005).

100 The limits of the direct victim doctrine were highlighted by Robinson v United States 175 F Supp 2d 1215 (2001) where the defendant had negligently allowed a prescribed fire on its property to escape onto the property of the plaintiffs. It was held that the plaintiffs could not recover damages for emotional distress under the direct victim theory because there was no threat of personal injury: they had received a specific warning and evacuated their house before the fire reached it. 101

For example, Louisiana: see Clomon v Monroe City School Board 572 So 2d 571 (La 1990); Guillory v Arceneaux 580 So 2d 990 (La 1991), discussed in CJ Dupuy, “Negligent Infliction of Emotional Distress: The Effect of Article 2315.6” (1992) 53 La L Rev 555. Note also the essentially similar holding in Garrett v City of New Berlin 362 NW 2d 137 (Wis 1985), discussed by JA Goldstein, “The Impact of Garrett v City of New Berlin on Wisconsin’s Approach to Negligent Infliction of Emotional Distress and a Recommendation for a

[18.230]

18 General Principles

635

[18.230] Burgess v Superior Court (Gupta),102 on its facts, involves probably the clearest direct victim case — a mother sued a doctor for emotional distress caused by injury to her child during the birth process, which she was not aware of at the time since the delivery was being carried out by caesarean section and she was under the anaesthetic.103 The incongruity of applying bystander principles to this situation is clear.104 Many other direct victim cases involve hospitals105 or medical professionals. Therapists, for example, assume responsibilities in respect of the plaintiff’s emotional condition. If a therapist abuses the child of a patient, as in Marlene F v Affiliated Psychiatric Medical Clinic Inc,106 or is guilty of unprofessional behaviour with the partner of a patient (whether the partner is also a patient107 or not108), the patient has a cause of action as a direct victim.109 But the direct victim cases are not limited to the medical sphere, but also cover, for example, those responsible for the embalming and burial of deceased persons, who clearly owe some responsibility to the relatives who engage them,110 and adoption agencies that fail to reveal the mental health history of the biological family of an Fundamental Doctrinal Change” (1992) 75 Marq L Rev 467. For examples of missed opportunities to apply direct victim thinking, see Cauman v George Washington University 630 A 2d 1104 (DC 1993); Boyles v Kerr 855 SW 2d 593 (Tex 1993), discussed by GF Cerasuolo, “Boyles v Kerr: Sex, Emotional Distress and Videotape” (1993) 30 Houston L Rev 1433; Slaton v Vansickle 872 P 2d 929 (Okl 1994). 102

Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992).

103

California, Florida, New Jersey, New York, Texas and Virginia apply the direct victim approach in birth malpractice cases: CA Goodzeit, “Rethinking Emotional Distress Law: Prenatal Malpractice and Feminist Theory” (1994) 63 Fordham L Rev 175 at 191–193. An essentially similar approach is adopted in Wisconsin (see JA Goldstein, “The Impact of Garrett v City of New Berlin on Wisconsin’s Approach to Negligent Infliction of Emotional Distress and a Recommendation for a Fundamental Doctrinal Change” (1992) 75 Marq L Rev 467 at 480–481), and elsewhere: see eg Constantino ex rel Constantino v Avery Center for Obstetrics and Gynecology PC 32 F Supp 2d 506 (1998) (a federal court applying Connecticut law held that the mother of a baby dropped on the floor of the delivery room at the moment of birth was a direct victim, and her husband who was present with her was allowed to recover under bystander principles). However, the articulation of the distinction between the direct victim and bystander approaches is not always convincing: see eg Carey v Lovitt 622 A 2d 1279 (NJ 1993).

104

See [22.630].

105

Eg Larsen v Banner Health Systems 81 P 3d 196 (Wyo 2003) (mother sent home from hospital with wrong baby, did not discover this until 43 years later; the court said (at 206): “Where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm”). 106

Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989).

107

Richard FH v Larry HD 243 Cal Rptr 807 (1988).

108

Rowe v Bennett 514 A 2d 802 (Me 1986).

109

But the partner of a patient who has sexual relations with her therapist has no right to sue: Smith v Pust 23 Cal Rptr 2d 364 (1993).

110

Christensen v Superior Court 820 P 2d 181 (Cal 1991). Note also Kelly v Brigham & Women’s Hospital 745 NE 2d 969 (Mass 2001) (husband successfully claimed for emotional distress resulting from unauthorised autopsy on body of wife, even though he did not view it);

636

Part IV: Relationship Cases

[18.240]

adopted child.111 In perhaps the most unusual case, a bride recovered damages for emotional distress against a wedding function centre that cancelled her wedding reservation a few weeks before the wedding, the culmination of two years of planning, leaving the bride to notify over a hundred guests who were due to attend.112 The existence of a consensual relationship between the parties is clearly important.113 In some cases, parents who entrust their children to schools and child care institutions have attempted to plead the direct victim argument. However, the mere fact that a parent enters into a contract does not of itself make the parent a direct victim when the child suffers harm as a result of negligent caring, as for example where a mother suffered emotional distress when negligent supervision by the day care centre to which she had entrusted her daughter resulted in the child being abducted and raped.114 It may be necessary to look to other factors, as in a case where a school had been made aware that the plaintiff’s daughter had been molested by a fellow-student on several occasions: this knowledge, and the school’s position in loco parentis, established a relationship between the school and the mother sufficient to give rise to a duty.115 In the light of this case law, Molien v Kaiser Foundation Hospitals116 itself might be thought exceptional on its facts, since the husband was not a patient of the doctor. The nature of the complaint diagnosed, and the doctor’s specific instructions, probably justify the finding of a direct relationship.117 [18.240] It is important to note that the finding of a direct relationship may enable the court to bypass problems that might prevent liability from Cohen v Nu-Vasive Inc 79 Cal Rptr 3d 759 (2008) (company that purchased human remains donated to university for medical research owed duty not to induce university to act in circumstances in which it was foreseeable that university’s conduct would cause emotional injury to family members). 111

Price v State 57 P 3d 639 (Wash 2002); Dahlin v Evangelical Child & Family Agency 2002 WL 31557625 (Ill).

112

Murphy v Lord Thomson Manor 938 A 2d 1269 (Conn 2008).

113

In the formative years of emotional distress liability, cases on carriers, innkeepers and telegraph companies played an important part as forerunners of a more general liability: see [18.40]. See also DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, pp 611–612. 114

Martin by and through Martin v United States 779 Fed Supp 1242 (1991). Likewise, participation in the pre-admission process at a hospital does not make a relative a direct victim if the hospital negligently allows the patient to disappear: Ahn v Kim 678 A 2d 1073 (NJ 1996). 115

Phyllis P v Superior Court 228 Cal Rptr 776 (1986).

116

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980).

117

Note Huggins v Longs Drug Stores California 862 P 2d 148 (Cal 1993) (parents who gave their child prescribed medicine unable to invoke direct victim doctrine against pharmacy that wrote directions for five times the dose ordered by treating doctor, because child was patient, not parents); Ess v Eskaton Properties Inc 118 Cal Rptr 2d 240 (2002) (sister of nursing facility patient failed to state direct victim cause of action against operator of nursing facility for emotional distress suffered as result of injuries suffered by patient as result of being sexually assaulted by unknown intruder).

[18.250]

18 General Principles

637

arising if the case had to be fitted into the bystander category.118 For example, in Florida, the impact rule has been held not to apply to a suit for emotional distress attendant on a claim for wrongful birth;119 jurisdictions that adhere to the zone of danger rule do not need to find this restriction controlling in a direct victim situation;120 and in States which recognise bystander recovery restrictions such as the need for the victim to be present, rather than be informed by others, will not present a problem if the plaintiff’s emotional distress is caused by some sort of direct involvement rather than through witnessing harm befalling another.121 This is because liability turns solely on relationships accepted by the defendant, usually under a contract: “There is no risk of unlimited liability to an unlimited number of people.”122

CONCLUSION [18.250] Today, a century after the decision in Daly v Commissioner of Railways,123 it seems possible that the judges in the Full Court in Western Australia were on to something. In identifying that the factor of relationship might make an important difference in nervous shock cases, they anticipated a development that now has powerful support in all parts of the common law world. Though the United States was the first to outline a new doctrine of liability to “direct victims” based on the relationship factor, English and Australian courts have now moved in the same direction (in the case of the English courts, giving them a means of escaping from the confines of Page v Smith).124 This seems a much more 118

In Illinois and Michigan, it has been accepted that a plaintiff can be both direct victim and bystander in the same incident: see eg Jarka v Yellow Cab Co 637 NE 2d 1096 (Ill 1994); Maldonado v National Acme Co 73 F 3d 642 (1996) (applying Michigan law); Seitz v Vogler 682 NE 2d 766 (Ill 1997).

119 Kush v Lloyd 616 So 2d 415 (Fla 1992); in Gracey v Eaker 837 So 2d 348 (Fla 2002) it was likewise held that the impact rule did not apply to prevent the awarding of damages for emotional distress resulting from breach of a statutory duty of confidence. 120

See Corgan v Muehling 574 NE 2d 602 (Ill 1991); Thomas v Phone Directories Co 996 F Supp 1364 (1998) (stating the law in Utah); Perry-Rogers v Obajasu 723 NYS 2d 28 (2001); Jarrett v Jones 258 SW 3d 442 (Mo 2008); Hedgepeth v Whitman Walker Clinic 22 A 3d 789 (DC 2011).

121

See eg Topor v State 671 NYS 2d 584 (1997) (zone of danger limitation distinguished as inapplicable to case involving liability of park authority to patron); Toney v Chester County Hospital 36 A 3d 83 (Pa 2011) (limitations on liability to bystanders not controlling in case based on pre-existing relationship between hospital and patient). Note also Doe Parents No 1 v State Department of Education 58 P 3d 545 (Haw 2002), where a school which negligently permitted a teacher to molest female students was liable for emotional harm suffered by the parents as well as the children. It has been suggested that this is a case where the court permitted an exception to the normal rule that secondary victims should be present at the scene of the occurrence: DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, p 581; but it seems preferable to classify this situation as one based on the relationship between the parents and the school.

122

DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, p 611.

123

Daly v Commissioner of Railways (1906) 8 WALR 125.

124

Page v Smith [1996] AC 155.

638

Part IV: Relationship Cases

[18.260]

satisfactory jurisprudential development than going back to a situation that makes liability for mental harm depend exclusively on physical proximity. [18.260] It may not be a wildly inaccurate prediction to suggest that employment, service provision and other relationship cases may come to be seen as just as important as “accident” cases as a source of psychiatric injury law. The developments reviewed in this chapter and Chapters 19–22 serve as a reminder that the scope for mental harm suits is now much wider than was once thought. Standard secondary victim claims are merely the tip of the iceberg: there is much more when you look below the surface.

Chapter 19

Employer and Employee [19.10] INTRODUCTION ............................................................................................................. 639 [19.50] RECOGNITION OF A GENERAL DUTY IN AUSTRALIA ...................................... 641 [19.50] Mount Isa Mines Ltd v Pusey ........................................................................................ 641 [19.100] Post-Pusey cases .............................................................................................................. 644 [19.150] New South Wales v Seedsman ..................................................................................... 648 [19.190] Koehler v Cerebos (Australia) Ltd .............................................................................. 651 [19.220] The Civil Liability Acts .................................................................................................. 654 [19.230] REJECTION OF A GENERAL DUTY IN THE UNITED KINGDOM ................... 654 [19.240] Early cases ........................................................................................................................ 655 [19.250] Robertson v Forth Road Bridge Joint Board .............................................................. 655 [19.280] Frost v Chief Constable of South Yorkshire Police ................................................... 658 [19.340] White v Chief Constable of South Yorkshire Police ................................................. 663 [19.360] The way forward ............................................................................................................ 665 [19.430] THE LAW ELSEWHERE ............................................................................................... 669

INTRODUCTION [19.10] Mr Yates, a 46-year-old coal miner, was working at the coal face in the South Kirkby Colliery in Lancashire when he heard a shout for help from the next working place. He ran there at once and found a fellow collier lying full length on the ground, bleeding all over his head and from his ears and eyes. He had been knocked down by a fallen timber prop. Mr Yates picked him up in his arms and carried him away; he was still alive, but died 15 minutes later. The effect of all this was to cause Mr Yates to suffer a nervous shock. He turned up for work the next Saturday, and by order of the under-manager the following Monday, but on neither occasion was he able to work. He tried again the next month, going to his old place and staying for the shift, but his brother had to do his work for him. He asked for a by-work job, which would not expose him to the same work conditions, but the under-manager would not give him one, and he did not work thereafter. [19.20] This almost-forgotten case — Yates v South Kirkby Collieries Ltd1 — contains the seeds of most of the potential causes of action for psychiatric injury in work situations now recognised by the law. At the 1

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538.

640

Part IV: Relationship Cases

[19.30]

time Mr Yates suffered his injury, the law of liability for nervous shock was in its infancy, and would not have given him a cause of action unless he was within the zone of physical danger created by the defendant’s negligence and suffered shock through fear for his own safety.2 But since 1909, employment cases have played an important part in the development of psychiatric damage law. Since most of the accidents that end up in the courts occur either in a transport context or at work, it seems logical enough that employees should be, next to relatives of the dead and injured, the largest potential category of psychiatric injury sufferers. As a result of various developments over the last 50 years, other possibilities have been opened up: shocked employees who were not within the area of physical danger may perhaps be able to claim a right to recover as rescuers, or as persons who have been (or think they have been) the involuntary cause of another’s death or injury. These are the subject of later chapters.3 But beyond these particular cases is a more general question: if an employee suffers psychiatric injury as a result of something that happens during the course of employment due to the employer’s negligence, does the employment relationship itself put the employer under a responsibility to compensate the employee, whether or not the particular facts indicate participation, presence within the danger zone, or a rescue attempt? This is the issue dealt with in this chapter.4 [19.30] Back in 1909, Mr Yates did not make a common law claim. He took proceedings for compensation under the Workmen’s Compensation Act 1906 (UK). The issue that took his case to the English Court of Appeal was whether a nervous shock received by a worker in the course of his employment was an “accident” that entitled him to compensation under that Act. The Court of Appeal ruled in his favour,5 confirming the county court judge’s order that he receive 19 shillings a week up to the date of the award, and 10 shillings a week thereafter. In terms of the categories since developed by the courts, Mr Yates may or may not have been adjudged to be within the area of physical danger (depending on the exact facts); he could not be said to have been the involuntary cause of the harm that befell his fellow-worker, but it is possible that he might have been able to sue as a rescuer; most significantly, there is more than one indication in the judgments (albeit in a workers’ compensation context) 2

See Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428; Dulieu v White & Sons [1901] 2 KB 669, particularly at 675 per Kennedy J, who as Kennedy LJ sat as a member of the English Court of Appeal in Yates v South Kirkby Collieries Ltd [1910] 2 KB 538. See [2.40].

3

See Chapters 24 and 25.

4

Parts of this chapter are based on P Handford, “Psychiatric Injury in the Workplace” (1999) 7 Tort L Rev 126 at 147–154, 157–161. 5

Applying its own previous decision in Eaves v Blaenclydach Colliery Co Ltd [1909] 2 KB 73. This was not a pure psychiatric injury case: the plaintiff developed traumatic neurasthenia as a result of a large stone falling on his foot. See also Brown v John Watson Ltd [1915] AC 1, where the House of Lords affirmed a similar holding by the Court of Session. This again was not a psychiatric injury case (the worker died from pneumonia caused by being left in cold air for an hour and a half on his way up from the pit), but Lord Shaw of Dunfermline at 13–14 and Lord Parmoor at 16–17 referred to nervous shock authorities.

[19.50]

19 Employer and Employee

641

that an employer’s duty to take care for the safety of employees includes an obligation to protect them from psychiatric as well as physical harm. In the words of Farwell LJ, “nervous shock due to accident which causes personal incapacity for work is as much ‘personal injury by accident’ as a broken leg”.6 Kennedy LJ said: It is beyond question that the incapacity of the applicant has arisen in the course of and out of the employment; and when you have a finding of fact by the learned county court judge that there has been a nervous shock, and that that nervous shock has produced a genuine condition of neurasthenia, I think myself the recent authorities shew that this judgment ought to be supported. One knows perfectly well that neurasthenia, although there may be no outward sign if you merely look at the person, is treated, and successfully treated in some cases at any rate, by a treatment of the body. Directly you have that which requires treatment of the body, it means that a portion of that body (visible or invisible does not matter) is in a state of ill-health, and, if the condition of neurasthenia produces incapacity to work which has been brought about by something in the nature of an accident which arose “out of and in the course of the employment”, you have a case of “personal injury by accident” which is within the Act.7

[19.40] Despite occasional statements in subsequent cases, it was only in the 1990s that the existence of such a duty was fully argued, and given eventual recognition by the English Court of Appeal — only to be rejected by a majority of the House of Lords. At least, this is the story so far as England and Scotland are concerned: Australian courts faced this issue much earlier.

RECOGNITION OF A GENERAL DUTY IN AUSTRALIA Mount Isa Mines Ltd v Pusey [19.50] The duty of an employer to take reasonable care not to cause psychiatric injury to his or her employees was recognised by the High Court of Australia in Mount Isa Mines Ltd v Pusey8 in 1970.9 By this point 6

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538 at 542.

7

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538 at 542–543. For neurasthenia see [1.10].

8

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

9

It should be noted that in some jurisdictions the rights of workers to make common law claims have been limited by workers’ compensation legislation. Such claims have been abolished in the Northern Territory: see Return to Work Act (NT), s 52(1), and were formerly abolished in South Australia, but have recently been reinstated. In New South Wales, Tasmania, Victoria, Tasmania and Western Australia, and now also in South Australia, a common law claim can only be made when the level of disability exceeds a stated percentage: see Workers Compensation Act 1987 (NSW), s 151H; Workers Rehabilitation and Compensation Act 1988 (Tas), s 138AB; Accident Compensation Act 1985 (Vic), s 134AB and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 327; Workers’ Compensation and Injury Management Act 1981 (WA), s 93E; Return to Work Act 2014 (SA), s 72. There are other kinds of restrictions in Queensland, and for Commonwealth public servants: see Workers Compensation and Rehabilitation Act 2003 (Qld), s 237; Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44 – 45. In some instances workers have chosen to make workers’ compensation claims for psychiatric injuries, whether or not a common law claim

642

Part IV: Relationship Cases

[19.60]

in time, the High Court had managed to escape the confines of the Privy Council decision in Victorian Railways Commissioners v Coultas10 rejecting any liability for nervous shock, and had come to accept that liability might exist when a plaintiff suffered shock through being in danger of personal physical harm and also through witnessing an injury to a close relative.11 From the 1960s onwards, Australian courts gradually extended the scope of liability to relatives and others who suffered psychiatric injury.12 One important feature of Pusey is that the High Court accepted that it was not only relatives of the immediate victim who might be owed a duty of care for psychiatric injury incurred through witnessing the accident or its aftermath. [19.60] In Mount Isa Mines Ltd v Pusey,13 the plaintiff, while at work, heard an explosion on the floor above and ran upstairs to find that two electricians had been horribly burnt. They had negligently misplaced the leads on a switchboard they had been testing, causing a short circuit that created an electric arc of intense heat. Mr Pusey helped one of them into an ambulance. About four weeks later, he began to develop symptoms of mental disturbance as a result of this traumatic experience. The case came to the High Court on the comparatively narrow question of whether it was necessary for the defendant to be able to foresee the precise form of psychiatric illness suffered by the plaintiff, and the High Court decided it by applying the conventional Wagon Mound (No 1)14 principle that what had to be foreseen was the kind of damage, rather than the particular injury. However, most members of the court asked themselves what was the source of the duty owed. The plaintiff could certainly be classified as a

is available: see eg Anderson Meat Packing Co Pty Ltd v Giacomantonio (1973) 47 WCR 3 (following Yates v South Kirkby Collieries Ltd [1910] 2 KB 538); Mills v Australian Postal Corporation (1994) 50 FCR 47; Zinc Corporation v Scarce (unreported, NSWCA, No 40214 of 1993, 20 December 1995); Ericsson (Australia) Pty Ltd v Popovski [2000] VSCA 52. 10

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

11

See Chester v Waverley Corporation (1939) 62 CLR 1. Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 is almost completely ignored by the High Court in this decision: though cited by counsel, it is referred to only in the dissenting judgment of Evatt J. It was not cited by any judge in the earlier High Court decision in Bunyan v Jordan (1937) 57 CLR 1, where the High Court canvassed the possible existence of liability in negligence for nervous shock (and also liability based on intention under the principles of Wilkinson v Downton [1897] 2 QB 57). The defendant was the plaintiff’s employer and the plaintiff saw him produce a revolver and overheard him utter threats that he would kill himself. However, the references in the judgments to duty of care are all on a general level, rather than referring specifically to employers.

12

See eg Storm v Geeves [1965] Tas SR 252; Benson v Lee [1972] VR 879. The process of expansion has continued, notably as a result of the important High Court decisions in Jaensch v Coffey (1984) 155 CLR 549 and Tame v New South Wales (2002) 211 CLR 317: see [2.80], [2.150].

13 14

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

[19.90]

19 Employer and Employee

643

rescuer, and this is the way the case is often explained.15 However, the judgments themselves reveal that very little emphasis was put on the rescue elements. The High Court concentrated on a much broader principle — the existence of an employment relationship between the parties. [19.70] Barwick CJ recorded the trial judge’s finding that a reasonable employer in the circumstances ought to have foreseen that an employee seeing another employee suffering from gruesome burning injuries might well suffer a psychological reaction of a more than transient kind. He added: “In any case it might be observed that the respondent came to the scene in the course of his employment and that he should do so in the circumstances might well be thought to be within the area of foreseeability to be attributed to the appellant, his employer.”16 Menzies J suggested that the duty of an employer to an employee involved at least the taking of reasonable steps to protect the employee from the risk of injury of a kind that a reasonable employer would have foreseen.17 [19.80] Windeyer J gave the most comprehensive judgment. After discussing the foreseeability issue, he commented that the plaintiff was not the relative or friend of the accident victims, and indeed did not know them. However, he rejected any suggestion that liability for psychiatric injury caused by experiencing an accident to another was limited to relatives, and referred to rescuers as another category of “neighbour” to whom a duty might be owed. He then said: But in the present case, the duty of care is not based simply on duty to a neighbour. It includes that but arises also independently from the legal relationship between the plaintiff and the defendant. It is the duty of care which a master has for the safety of his servant. Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be.18

[19.90] Walsh J also referred to the trial judge’s finding that the defendant owed a duty to the plaintiff qua employer. He said: Since I am of opinion that the learned trial Judge’s finding that the injury suffered by the respondent was one which was reasonably foreseeable ought not to be disturbed, I need not consider whether or not the respondent was entitled to found his claim simply on the basis that he was an employee of the appellant and that there was a breach of a duty of care arising out of that relationship. In his reasons for judgment Skerman J said: “If, as happened, intense heat was created it was foreseeable that electricians in the power-house would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee 15

See eg Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 291 per Judge LJ (dissenting).

16

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 389.

17

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 392.

18

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404.

644

Part IV: Relationship Cases

[19.100]

might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries.” This passage indicates that His Honour’s view was that it should be regarded as foreseeable that an employee in the building would go to the scene. On that view the fact that the respondent was an employee was a relevant fact in deciding whether or not he was a person within “the area of potential danger” or within the area of risk. But on that view the liability of the appellant does not rest necessarily upon a duty arising out of the relationship of employer and employee. It rests upon a finding of a duty owed to all persons of whom it might reasonably be anticipated that they might suffer injury (of the relevant kind) and upon a finding that the respondent was such a person.19

Walsh J thus displays some hesitation in definitively assigning the duty to the employer–employee relationship. However, these four High Court judgments, together with the comments of the trial judge, strongly suggest that the Australian common law has for many years recognised that employers may, in appropriate circumstances, owe their employees a duty not to cause them psychiatric injury.20

Post-Pusey cases [19.100] For the next 30 years, this aspect of the decision in Mount Isa Mines Ltd v Pusey21 was not directly applied in subsequent cases. However, it is clear that Australian courts accepted that employers owed a duty not to cause psychiatric as well as physical injury. This is illustrated in different ways by a number of decisions in which the issue of duty arose in an employment context. In some cases, the courts rejected a claim for damages for psychiatric injury, but not on what would in other circumstances be the obvious ground that no duty was owed by an employer. In Wilks v Haines,22 the plaintiff, a dormitory supervisor in a school for intellectually handicapped children, claimed damages for a shock-related illness allegedly caused by the fact that an intruder had broken into the home one night and killed two of the staff on duty and injured the other. The plaintiff had been rostered for duty that night, but had swapped her shift with one of the victims. She alleged that when she learnt of the attack she suffered a severe nervous shock, not because of what had befallen the victims but because of the realisation that it could have been her. Loveday J held that whatever the limits of liability for psychiatric injury, they fell short of recognising a duty of care in this case. However, he did not automatically repudiate any suggestion that an employer might owe a duty not to cause psychiatric injury, but pointed to 19

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 412.

20

Note also Jaensch v Coffey (1984) 155 CLR 549 at 597 per Deane J.

21

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

22

Wilks v Haines (1991) Aust Torts Rep 81-078.

[19.110]

19 Employer and Employee

645

specific factors, such as the plaintiff not being on duty and not at her place of work, and that she heard about what had happened from another. Another case, especially significant in view of the importance now attached to the provision of post-trauma counselling for all those involved in accidents, including witnesses and relief workers, was Miller v Royal Derwent Hospital Board of Management.23 The plaintiff was employed by the defendant as a nurse in a mental hospital. While on night duty, she placed a six-year-old epileptic, who had wet his bed, in a chair, strapping him in with a velcro strap for his own protection. After she went off duty, she was telephoned with the tragic news that the boy had died through moving lower down in the chair and strangling himself on the strap. She was asked to come into the hospital for an interview with the police. The hospital omitted to provide her with trauma counselling and support through the ordeal of the next few days (though it was provided for other staff) and as a result, it was alleged, the plaintiff suffered a psychiatric illness. Zeeman J held that that a reasonable person in the defendant’s position would have provided emotional support, though not more formal psychiatric counselling. He highlighted the special nature of the case in the following passage: [T]he case is different from the reported cases of nervous shock in that it is not suggested that the initial shock was the product of the defendants’ negligence. Rather it is suggested that the plaintiff having suffered nervous shock, the defendants were in breach of their duty of care to the plaintiff in not taking interventional steps which would have prevented that nervous shock leading to mental illness or which would at least have minimised the injurious effect of that nervous shock.24

However, he concluded that it could not have been foreseen that the plaintiff would suffer a psychiatric illness as a result of this failure, nor was it possible to establish causation. There was no suggestion in Zeeman J’s judgment that employers did not owe any duty of care not to cause psychiatric injury; rather, there was an implicit but unquestioning acceptance that a duty of care was owed in such circumstances, and that damages could have been awarded if the other requirements of negligence liability had been satisfied. [19.110] Further confirmation that there was no prohibition on recognising a duty not to cause an employee psychiatric injury was provided by State Rail Authority of New South Wales v Howell,25 where on very similar facts to Miller v Royal Derwent Hospital Board of Management26 a duty was found to exist and liability was established. The plaintiff was the assistant station master at Albury Station. He was summoned to the 23

Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271.

24

Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 at [38].

25

State Rail Authority of New South Wales v Howell (unreported, NSWCA, No CA 40378/96, 19 December 1996). See I Freckelton, “Critical Incident Stress Intervention and the Law” (1998) 6 JLM 105. 26

Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271.

646

Part IV: Relationship Cases

[19.120]

scene of a suicide under the wheels of a train, and had to view the woman’s horribly dismembered body. He claimed that his employer’s failure to provide him with post-trauma counselling had caused him to suffer post-traumatic stress disorder. As a result of this he had become totally unemployable. The New South Wales Court of Appeal, affirming Abadee J, held that the State Rail Authority were liable in damages. It had failed to comply with its own policy under which it was mandatory to supply debriefing to staff members who had been involved in retrieving human remains, and the court was satisfied that the plaintiff’s suffering was materially contributed to by this omission. Even though the plaintiff had failed to keep the two appointments that were made, non-attendance at appointments was the very kind of thing that was likely to happen in such circumstances and the defendant should have taken some further action. [19.120] The liability of an employer for causing psychiatric illness was also in issue in the unsatisfactory case of Cleary v Congregation of the Sisters of the Holy Family at Nazareth.27 The plaintiff, another nurse, answered a cry for help from an elderly patient who had fallen in his room. The patient, in his attempts to get up, grabbed her and caused her to do the splits, which resulted in minor physical injuries. However, the plaintiff alleged that she thought she was going to be raped, and that she now suffered from post-traumatic stress disorder and a depressive illness as a result. The plaintiff had a predisposition to mental illness, but this had not been disclosed when she applied for the position. Counsel for the defendant made the interesting admission that since the plaintiff was a primary victim, in terms of the classification adopted in Page v Smith28 (by which he said the court was bound29), the fact that liability for some of the plaintiff’s physical injuries had been admitted must entail the admission of liability for all physical and psychiatric injury, provided it was caused by the defendant’s negligence, which was also admitted; it was no longer possible to admit liability for physical injury only. The issues therefore related to the nature of her injuries, causation and the extent of damage. Lee J was unable to conclude that the plaintiff was suffering from post-traumatic stress disorder as a result of the incident, but found on the balance of probabilities that it had caused her to suffer a depressive illness, for which, given the admissions as to duty and breach, the defendant was liable in damages. The admissions as to duty would not have been made unless it was generally understood that employers could be liable for causing psychiatric injury. 27

Cleary v Congregation of the Sisters of the Holy Family at Nazareth (unreported, Qld SC, No 1066 of 1996, 23 December 1995). 28 29

Page v Smith [1996] AC 155.

Australian first instance courts would normally follow decisions of the House of Lords, in the absence of a contrary High Court or Full Court decision, but it seems wrong to regard such decisions as binding, since the House of Lords is not part of the same court hierarchy.

[19.130]

19 Employer and Employee

647

[19.130] In two further cases, courts recognised that employers owed a duty to take care not to cause psychiatric injury to their employees, but the circumstances were rather exceptional, involving criminal activity. In Queensland v Keeys,30 the plaintiff, in the course of his duties as a police officer, was driving a police vehicle in the Pinkenba area of Brisbane at night when he was struck by a bullet fired by an unknown assailant. The bullet did not enter his body, but when he found it had nearly done so the plaintiff suffered a reaction that led to post-traumatic stress disorder. This prevented him from continuing to work as a police officer. Unknown to the plaintiff, the Police Commissioner had received an anonymous letter warning of danger to members of the police dog squad in Pinkenba, alleging that police dogs had been savaging children. The plaintiff was a member of the police dog squad and exercised his dog there. There was a procedure for dealing with such warnings, but on this occasion it had not been followed, and the plaintiff did not know of the threat. The main issue for the court was whether, if the plaintiff had been warned, he would have taken precautions that would have avoided injury. It was found that on the balance of probabilities the plaintiff’s psychiatric injury had been caused by the defendant’s negligence. The Queensland Court of Appeal dismissed the appeal. Accepting the fact that technically the relationship between the Police Commissioner and a police officer was not an employment relationship, McPherson JA nevertheless saw the issue as employment-related: Foresight of the possibility of injury cannot … be the sole test; because, if one thing is plain about the nature of a police officer’s duty, it is that the prospect of physical injury is not only foreseeable but constantly present. It may be that, in that respect, [the position of] prison warders dealing with dangerous prisoners (who are, after all, simply the ones that the police have succeeded in capturing) is somewhat analogous. … No doubt the standard of care still remains much the same as in other cases; that is to say, there is a duty to take reasonable care to avoid exposing the officer to unnecessary risks of injury. … Translated into the present context, however, it would follow that, even when injury is foreseeable, as in the case of police functions it often is, the duty of the Commissioner is, at the very least, to reduce the risk of injury as far as practicable; or, expressing it in the negative, not to do or to omit to do anything which will have the effect of materially increasing the risk of such injury.31

In Rosstown Holding Pty Ltd v Mallinson,32 a hotel barman suffered psychiatric injury when, as he was locking up after closing time, he was accosted at gunpoint by a masked bandit, forced to hand over the night’s takings and locked in a cool room. It was conceded that the defendant was under a duty to the plaintiff to provide a safe place and system of work, but breach and causation were contested. The trial judge found in favour of the plaintiff on both issues, a finding confirmed by the Victorian Court of Appeal. As Ormiston JA pointed out, instead of allowing the 30

Queensland v Keeys [1998] 2 Qd R 36.

31

Queensland v Keeys [1998] 2 Qd R 36 at 40.

32

Rosstown Holding Pty Ltd v Mallinson (2000) 2 VR 299.

648

Part IV: Relationship Cases

[19.140]

other staff to go off duty, the employer could have directed that another employee should be present until the hotel was finally locked up, which would almost certainly have ensured that the robbery would not have taken place. The appeal judges clearly recognised that in the circumstances breach of the duty to provide a safe place and system of work could foreseeably result in psychiatric injury.33 [19.140] In other cases, the issue has arisen in the context of an application to extend the limitation period, and so has not been the primary focus of concern. This was the situation in Gill v Commonwealth,34 where the plaintiff was a Canberra bus driver who caused the death of a pedestrian. He suffered a severe psychological reaction as a result of this tragic experience, and sued his employers for negligently failing to provide medical treatment, rehabilitation or counselling, and also for breach of the duty to provide a safe system of work by not giving him the assistance of a conductor — he was required to collect the fares and look after the safety and welfare of the passengers as well as drive the bus to a timetable set by the defendant, and the accident had happened while his attention had been momentarily distracted by passengers. An extension of time was granted. While there was no extended discussion of the liability position, Miles CJ35 significantly noted that this was a “nervous shock” action and that the facts were close to Mount Isa Mines Ltd v Pusey.36

New South Wales v Seedsman [19.150] New South Wales v Seedsman37 is not a case where an employee suffered psychiatric injury as the result of a specific incident caused by an employer’s negligence, but rather one where such harm was the consequence of work stress:38 but nevertheless the important judgment of Mason P in the New South Wales Court of Appeal marks the decisive point when Australian courts expressly confirmed that Mount Isa Mines 33

For other cases involving psychiatric injury to employees arising from robbery, see Best v West Morton Regional Health Authority [1997] QSC 54; Anderson v Hotel Capital Trading Pty Ltd [2003] NSWSC 1195 (affirmed Anderson v Hotel Capital Trading Pty Ltd [2005] NSWCA 78, but dealing only with the issue of whether the defendant was negligent). 34

Gill v Commonwealth [1999] ACTSC 64.

35

Gill v Commonwealth [1999] ACTSC 64 at [7].

36

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. The issue of the employer’s duty was not explored in two other cases involving limitation issues. In King v Queensland Corrective Services Commission [2000] QSC 342 a prison officer claimed damages for psychiatric problems following an incident in which an escaping prisoner was shot by a fellow prison officer in the plaintiff’s presence. The court granted the request for an extension of time. It seems that the basis of the claim was a failure to provide debriefing. In Mewett v Commonwealth [2000] FCA 1045 a sailor suffered psychiatric injury as a result of an accident on board ship in which one man was drowned and others injured. Since the plaintiff was not a rescuer, the claim could only have been based on the defendant’s duty as the plantiff’s employer. The court rejected a limitation defence. (For earlier proceedings see Commonwealth v Mewett (1997) 191 CLR 471.)

37

New South Wales v Seedsman (2000) 217 ALR 583.

38

Liability for work stress is dealt with in Chapter 20; see also [19.190]–[19.200].

[19.160]

19 Employer and Employee

649

Ltd v Pusey39 authoritatively states that the employer owes a duty of care and that White v Chief Constable of South Yorkshire Police40 is not good law in Australia. Mason P addressed the issue of the appellant’s duty as employer in the following terms: In its written submissions the appellant accepted the respondent’s formulation of the relevant law in para 5 of her submissions that: “There is nothing inconsistent with the established legal principles concerning the relationship of employer and employee that excludes, as a matter of law, from the employer’s duty to the employee, the need to exercise reasonable care to avoid unnecessary risk of injury in the form of a recognisable psychiatric illness where the type or kind of recognisable psychiatric illness is foreseeable.” This common ground between the parties accepts that the law in Australia is at variance with that in England as declared by the House of Lords in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 …. There the House of Lords (Lord Goff of Chieveley dissenting) held that an employer’s duty to care for the safety of employees and to take reasonable steps to protect them from physical harm did not extend to protecting them from psychiatric injury when there was no breach of the duty to protect from physical injury; and that the general rules restricting the recovery of damages for pure psychiatric harm applied to claims by employees. … Like Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 597 … I think that Mount Isa Mines v Pusey (1970) 125 CLR 383 … may, upon proper analysis, lend support for a general proposition that an employer is liable for damages in respect of nervous shock sustained by an employee at his or her place of employment in circumstances where the employer has failed to take reasonable steps to avoid a reasonably foreseeable risk of injury in that form.41

As this quotation shows, Mason P noted that by this point in time, English law and Australian law had diverged: in White v Chief Constable of South Yorkshire Police, the House of Lords by majority had refused to recognise that employers owed a general duty of care extending to psychiatric injury, and Lord Hoffmann had adopted a different interpretation of Pusey. Mason P, however, clearly preferred the interpretation adopted by Lord Goff of Chieveley, which is more consistent with the Australian cases.42 [19.160] Mason P went on to hold that the employer’s duty was not in any way limited by a need to establish sudden shock or normal fortitude. 39

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

40

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455: see [19.230], [19.340]–[19.350].

41

New South Wales v Seedsman (2000) 217 ALR 583 at [154]–[155], [164]; note also at [34]–[36] per Spigelman CJ. Both judgments were cited and followed in McDonald v New South Wales [2001] NSWCA 303. (Damages were assessed in subsequent proceedings sub nom New South Wales v Shepherd [2003] NSWCA 396.)

42

New South Wales v Seedsman (2000) 217 ALR 583 at [164]–[165]. Mason P’s view was supported by Davies JA in Hancock v Nominal Defendant [2002] 1 Qd R 578 at [53] (“[T]he cumulative application of Lord Wilberforce’s control mechanisms in White resulted in a

650

Part IV: Relationship Cases

[19.170]

Though in an earlier case he had affirmed the view that these were recognised limitations in some psychiatric injury cases43 — a view later repudiated by the High Court44 — these limiting tests did not apply where the employee could establish an independent duty based on the obligations of employers.45 They were not prerequisites to a claim of this kind under the law in England as it stood before White v Chief Constable of South Yorkshire Police,46 and they were not required by Australian law either in the work stress cases or in other situations where the employer might be liable. [19.170] In Patrick Stevedores (No 1) Pty Ltd v Vaughan,47 where an employee suffered psychiatric injury as a result of particular events arising during the course of employment as a result of his employer’s negligence, the judgment of Mason P in New South Wales v Seedsman48 was the major authority relied on to establish the duty of care. Mr Vaughan was an experienced waterside worker and had represented the predecessor of the Maritime Union of Australia in negotiations with management before being promoted to supervisor. In 1998 his employer, Patricks, decided to break the long-standing monopoly of the MUA in providing waterside workers to load and unload ships. Workers were locked out of the dockside area and the workforce dismissed. On Easter Sunday, the plaintiff was summoned to work to assist with unloading a ship. He found a group of supervisors and managers, who were directed to board a bus, which then proceeded to run the gauntlet of a picket line in order to enter the port. It took the bus almost two hours to cover the 800 or 900 metres to the main gates of the port. During this time the bus was being continually attacked. The work of unloading commenced under siege conditions. At one point the plaintiff was in a utility when a large metal bolt was thrown through the windscreen. He was spat on and abused by the crew of the ship. He had to return the next day, and the day after that, and go through the same process. On the third day the workers called out the plaintiff’s name and threatened to injure his grandson. The plaintiff claimed damages for psychiatric injury that resulted from this experience. The trial judge found held that there had been no negligence on the part of Patricks as respects the events of these three days,49 but the New South Wales Court of Appeal took a different view. decision which was inconsistent with that of the High Court of Australia in Mount Isa Mines Ltd v Pusey”); and by McHugh J in Tame v New South Wales (2002) 211 CLR 317 at [140]: “In so far as White v Chief Constable of South Yorkshire Police decides the contrary, it does not represent the law of Australia.” 43

Morgan v Tame (2000) 49 NSWLR 21.

44

Tame v New South Wales (2002) 211 CLR 317.

45

New South Wales v Seedsman (2000) 217 ALR 583 at [168].

46

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

47

Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275.

48

New South Wales v Seedsman (2000) 217 ALR 583.

49

However, it was found that there had been negligence in respect of subsequent events which were not the focus of the appeal.

[19.190]

19 Employer and Employee

651

[19.180] Davies AJA, giving a judgment concurred in by the other members of the court, stated the employer’s duty as follows: Patricks, as the employer, had a duty of care for the safety of its employees, which duty extended to taking reasonable steps to protect the employees from harm that was reasonably foreseeable. Such a duty arises from the degree of control that the employer exercises over the lives of the employees. An employer has control over the nature and conditions of work, the time of work and the place of work. Employees are reliant for their safety on the exercise by employers of due care. … In White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, it was held by Lord Browne-Wilkinson, Lord Griffiths, Lord Steyn and Lord Hoffmann, Lord Goff dissenting, that a Chief Constable owed police officers under his command a duty analogous to an employer’s duty of care for the safety of his employees which obliged the employer to take reasonable steps to protect them from physical harm but that that duty did not extend to protecting them from psychiatric injury when there was no breach of the duty to protect them from physical injury. That decision may not be apposite to the present case for Mr Vaughan was placed at risk with respect to both physical harm and psychiatric harm, and the fear of physical harm was one of the factors leading to his psychological deterioration. In any event, it was held in State of New South Wales v Seedsman that White v Chief Constable of South Yorkshire Police did not express the law in this country. … See also Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, where the High Court of Australia held an employer liable to pay damages for a psychological reaction suffered by one of its employees.50

Davies AJA went on to rule that the defendant was in breach of duty: the danger Mr Vaughan had encountered was not one arising in the ordinary course of work at the port, but one Patricks had created when it decided, for its own economic benefit, to take steps to break the MUA monopoly. The psychiatric disorders followed naturally from the conditions Mr Vaughan had experienced. His Honour followed Mason P in New South Wales v Seedsman51 in affirming that sudden shock and normal fortitude were limitations that did not apply in the employment situation.52

Koehler v Cerebos (Australia) Ltd [19.190] The cases so far discussed made it clear that Australian law uncompromisingly recognised that the employment relationship places on an employer a duty to take care not only to protect employees from the risk of physical injury but also to guard against the risk of psychiatric harm. However, the recognition of this duty has entered a new phase following the High Court’s decision in Koehler v Cerebos (Australia) Ltd.53 50

Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 at [16], [18].

51

New South Wales v Seedsman (2000) 217 ALR 583.

52

Patrick Stevedores (No 1) Pty Ltd v Vaughan [2002] NSWCA 275 at [27]–[30].

53

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, more fully dealt with at [20.260]–[20.360].

652

Part IV: Relationship Cases

[19.200]

Koehler was a case involving psychiatric injury resulting from work stress — that is to say, a condition that built up over time as a result of the employee’s conditions of work or other circumstances, rather than from a specific instance of negligence: in Mrs Koehler’s case, it was contended that her illness was caused by being obliged to do more work than could possibly be done in the time allotted, but other cases have involved harassment, victimisation and bullying, or specially stressful work conditions. However, there is no reason why fundamental differences should be drawn between stress caused over a period and cases involving a single incident. As Hayne J asked himself in Tame v New South Wales:54 “Is there to be a distinction drawn between the worker whose job inevitably requires repeated contact with distressing events and the individual who suffers like consequences as the result of a single event?” His Honour’s judgment clearly implied that there should be very little difference. [19.200] In Koehler v Cerebos (Australia) Ltd,55 the High Court adopted a new approach to work stress cases, holding that it was wrong simply to accept that the employer owed the employee a duty of care that extended to psychiatric as well as physical injury without focusing on the content of the duty, which the court said could not be considered without taking account of the obligations that the parties owed each other under the contract of employment56 — an important consideration in the case before them, since the High Court held that as Mrs Koehler had agreed to the terms of the contract setting out the tasks to be performed and the hours of work, she had no ground for complaint. More important for present purposes were the terms in which the High Court stated the employer’s duty. The court said: The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton,57 the relevant question was rightly found to be whether this kind of harm to this particular employer was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.58

[19.210] This test has an obvious application to all cases of liability for psychiatric injury to employees, and since then Koehler v Cerebos (Australia) Ltd59 has been consistently adopted in cases where employees 54

Tame v New South Wales (2002) 211 CLR 317 at [295].

55

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

56

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [21] per McHugh, Gummow, Hayne and Heydon JJ.

57

Hatton v Sutherland [2002] ICR 613, the leading English decision on liability for work stress: see [20.600]–[20.610].

58

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [35] per McHugh, Gummow, Hayne and Heydon JJ.

59

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

[19.210]

19 Employer and Employee

653

have claimed damages against their employers for mental harm arising out of specific incidents. For example, in New South Wales v Burton,60 the plaintiff, a police officer employed as a marksman in the Tactical Response Group, was under fire during a siege at a farm and developed post-traumatic stress disorder. The New South Wales Court of Appeal affirmed the finding of the court below that the police authority was negligent in failure to provide proper treatment and counselling. Basten JA quoted and applied the High Court’s statement of duty, but then went on to distinguish Koehler on the facts of the case, saying the facts in Burton were very different and that some years beforehand the police had identified the nature of the risk faced by police officers in such cases.61 Another case involving a police officer was New South Wales v Fahy.62 The plaintiff suffered post-traumatic stress disorder following attendance at the aftermath of an armed robbery where she assisted a doctor to treat serious injuries. She contended that another officer failed to stay with her and provide support, that an inspector was insensitive in the way he dealt with her, and that the police failed to provide appropriate counselling and support. The New South Wales Court of Appeal held by majority that the police had breached the duty of care owed to her and were liable in damages. Spigelman CJ applied the High Court’s statement of duty in Koehler.63 The same approach has been adopted in most post-Koehler cases involving the employer’s liability for specific incidents of negligence.64 While references to Mount Isa Mines Ltd v Pusey65 are now rare, courts have confirmed the more general roots of the employer’s duty to take care not to cause employees mental harm by making reference to Tame v New South Wales.66 60

New South Wales v Burton (2006) Aust Torts Rep 81-826.

61

New South Wales v Burton (2006) Aust Torts Rep 81-826 at [35]–[41].

62

New South Wales v Fahy (2006) Aust Torts Rep 81-865.

63

New South Wales v Fahy (2006) Aust Torts Rep 81-865 at [5]. The New South Wales Court of Appeal’s approach to the duty issue was not affected when the High Court by a bare majority overturned the finding of breach of duty on the part of the police: see New South Wales v Fahy (2007) 232 CLR 486, noted by P Handford (2007) 15 Tort L Rev 131.

64

See eg Goldsmith v SPC Ardmona Operations Ltd [2009] VSC 445 at [161] per Williams J; Benic v New South Wales [2010] NSWSC 1039 at [56] per Garling J; Winbank v Casino Canberra Ltd [2012] ACTSC 169 at [139] per Master Harper; Pecenka v Minister of Health [2012] WASCA 250 at [39] per Pullin JA; Guorgi v Pipemakers Australia Ltd [2013] QSC 198 at [22] per Boddice J; Wolters v University of the Sunshine Coast [2014] 1 Qd R 571 at [12] per Gotterson JA; Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [45] per McMeekin J. 65 66

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

Tame v New South Wales (2002) 211 CLR 317. For example, Tame was applied in Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 to decide a case involving an accident to an employee during the course of employment (accidental ingestion of water contaminated with human faeces by cleaner held unforeseeable). See also Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160 at [188]–[189] per Curthoys J. Note also English v Rogers [2005] NSWCA 327 at [70] per Mason P, referring to cases on the employer’s general non-delegable duty to the employee such as Czatyrko v Edith Cowan University (2005) 79 ALJR 839, a case decided on the same day as Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. In English v Rogers, the plaintiffs, husband and wife, cleaners at a hotel, suffered

654

Part IV: Relationship Cases

[19.220]

The Civil Liability Acts [19.220] In the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and Western Australia, the Civil Liability Acts now contain statutory statements of the duty of care in cases involving mental harm.67 However, in some jurisdictions the Acts do not apply to workplace injuries.68 The statutory provisions of the Australian Capital Territory,69 New South Wales70 and Western Australia71 have been applied in employment cases. In Winbank v Casino Canberra Ltd,72 it was suggested that if the action in Koehler v Cerebos (Australia) Ltd73 (a Western Australian case) had been brought in the Australian Capital Territory the defendant would have succeeded under the statutory provisions, just as at common law; presumably the position would have been no different in Western Australia.

REJECTION OF A GENERAL DUTY IN THE UNITED KINGDOM [19.230] In England, the picture is very different: the leading House of Lords case, White v Chief Constable of South Yorkshire Police,74 confirms that English law does not require the employee to guard against the risk of shocking the employee. This decision perpetuates the illogical distinction between physical and mental injury that in other contexts has long been a thing of the past. This lack of logic is compounded when the employer’s liability for psychiatric injury arising out of particular incidents is compared with the employer’s responsibility for psychiatric illness caused by workplace stress: it is curious that English law gives greater protection where psychiatric injury results from an ongoing situation or an accumulation of events that where it arises out of a single incident. White, as a House of Lords case, applies just as much to Scotland, but as we will see, Scottish cases may indicate a way forward. psychological trauma after being involved in a hold-up by a masked gunman. The hotel was held liable for failing to provide sufficient security. The case is memorable for the remark of the trial judge, Judge Geraghty: “Security is like love; like ice-cream; like peace; like praise – one can never get enough of it.” 67

See [2.280].

68

See [2.420]. This point was not appreciated by the trial judge in Miskovic v Stryke Corporation Pty Ltd [2011] NSWCA 369. In Christos v Curtin University of Technology (No 2) [2015] WASC 72, it was not necessary to decide whether the statutory provisions applied: at [631] per McKechnie J. 69

Winbank v Casino Canberra Ltd [2012] ACTSC 169; Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242.

70

McGuirk v University of New South Wales [2009] NSWSC 1424; Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242; Wright v Optus Administration Pty Ltd [2015] NSWSC 160. In Benic v New South Wales [2010] NSWSC 1039 the defendant elected not to plead the statutory provisions.

71

Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160.

72

Winbank v Casino Canberra Ltd [2012] ACTSC 169 at [145] per Master Harper.

73

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

74

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[19.250]

19 Employer and Employee

655

Early cases [19.240] Hints such as those in Yates v South Kirkby Collieries Ltd75 apart, there is very little evidence of a general employer duty in the earlier cases. There is perhaps a fragment in Galt v British Railways Board,76 the first of two cases involving train drivers who through no fault of their own became involved in accidents or near-accidents to others: Tudor Evans J held, according to the report in the New Law Journal, that “[t]he defendants owed him a duty to take reasonable care not to expose him to injury from nervous shock”. However, the absence of a full report means that it is not possible to make too much of this statement.77 Again, in Wigg v British Railways Board,78 Tucker J (as reported in The Times), while devoting most of his judgment to the rescue principle, concluded: “The plaintiff could be described as a rescuer in the circumstances but in any event, that was unnecessary since the nervous shock suffered was reasonably foreseeable.” This may perhaps be a reference to the involuntary participation principle,79 though there is no express suggestion to that effect. In McFarlane v EE Caledonia Ltd,80 no attempt was made to argue the existence of a duty not to cause psychiatric harm arising out of the fact that it was McFarlane’s employment with the defendant that resulted in his involuntary presence near the scene of the Piper Alpha disaster, and any such argument would have been made much more difficult by the fact that he was off duty at the time. The plaintiff’s case was confined to arguments based on presence in the area of danger, rescue and bystanders.

Robertson v Forth Road Bridge Joint Board [19.250] It was in a Scottish case, Robertson v Forth Road Bridge Joint Board,81 that the employment duty argument was first given serious consideration. In this case, Robertson, Rough and Smith, three employees of the Board, having retrieved a sheet of metal that had been found lying on the south-bound carriageway of the bridge, were travelling back over the bridge, with Smith sitting on top of the metal sheet in an open truck driven by Robertson, and Rough following behind in a van. A sudden gust of wind blew the sheet and Smith with it over the edge of the bridge, and he plunged to his death on the girders below — all this in full view of 75

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538.

76

Galt v British Railways Board (1983) 133 New LJ 870: see [26.40].

77

Note that in Meek v British Railways Board (unreported, Eng QBD, 15 December 1983), Park J, in response to the defendant’s argument that in the circumstances the nervous shock suffered by the plaintiff was not foreseeable, said that it was not necessary for him to express a conclusion on the matter, except to say that he would have adopted the reasoning of Tudor Evans J.

78

Wigg v British Railways Board (The Times, 4 February 1986): see [26.50].

79

See [26.70].

80

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1: see [24.70]–[24.90].

81

Robertson v Forth Road Bridge Joint Board 1995 SC 364: see also [20.100].

656

Part IV: Relationship Cases

[19.260]

Robertson and Rough. In the first hearing in the Outer House,82 where the defenders questioned the relevancy of the action and Lord MacLean, the Lord Ordinary, allowed a proof before answer, the pursuers’ case was presented primarily as a secondary victim case. It was argued that though there was no family relationship between Robertson and the deceased Smith, they had been close friends for years as well as workmates. Alternatively, it was suggested that the pursuers could sue as bystanders, in line with the dicta in Alcock v Chief Constable of South Yorkshire Police.83 A third submission was that they could recover because “[t]hey were employees of the defenders and accordingly a duty of care was owed to them by their employers”.84 The authority cited for this proposition was Dooley v Cammell Laird & Co Ltd85 (the case of the crane driver, now regarded as an involuntary participation case), in which “it had been expressly held that an employer could be liable to an employee by reason of nervous shock caused by apprehension of injury to a fellow employee”.86 Lord MacLean was prepared to accept the employment argument: [T]hese cases must be viewed in the context of a horrifying accident occurring in a course of employment to one employee in the presence of and witnessed by others. The question, as it seems to me, is whether there is fault on the part of an employer who allegedly creates a situation of danger for his employees which is likely to cause serious injury or death, and death of an employee does in fact result, causing nervous shock and post-traumatic stress disorder for those employees who witnessed the death. The case of Dooley v Cammell Laird & Co, which was not overruled but explained in Alcock, tends to indicate that the answer to that question is in the affirmative.87

[19.260] In further proceedings before Temporary Judge JF Wheatley QC,88 the defenders sought absolvitor on the ground that neither employee fell within the class of persons to whom they owed a duty of care not to cause them to suffer nervous shock. The judge made a distinction between cases where nervous shock had been sustained by reason of physical injury caused to another and those where a person had suffered nervous shock directly as a result of another’s negligence because of physical injury offered or threatened to himself or a third party — in essence, the distinction made by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police.89 The first category was ruled out because there were no sufficiently close ties of love and affection, despite the friendship between the parties. When it came to the second category, the judge 82

Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566.

83

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 403 per Lord Ackner.

84

Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566 at 567 per Lord MacLean.

85

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271: see [26.10]–[26.20].

86

Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566 at 567.

87

Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566 at 568.

88

Robertson v Forth Road Bridge Joint Board (No 2) 1994 SLT 568.

89

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[19.270]

19 Employer and Employee

657

exposed an important distinction that had been left vague in the previous proceedings. He distinguished the Dooley v Cammell Laird & Co Ltd90 line of cases on the ground that the pursuers were not participants in the accident, but simply witnesses, and he then rejected any other basis on which an employer might owe a duty to an employee: There appears to be no authority to suggest that the fact that they were also in the capacity of co-workmen who were engaged in the same operation as the deceased, qualifies them for any special consideration in this matter. … Further, that submission seems to me to fail on the basis of what has been described as the test of what is reasonably foreseeable; it can make no difference whatsoever to that test that the cause of the accident and the secondary victim are employer and employee, or that the primary and secondary victim are fellow employees. Such factors do not, of themselves, demonstrate that the relationship between the pursuers and the defenders is sufficiently proximate. This emphasises the differences between cases of physical harm and psychiatric injury caused as a result of negligence. Equally I do not think it can be argued that liability for nervous shock arises simply out of a breach of duty by an employer. The case of Yates v South Kirby Collieries Ltd [sic] was one where a worker became alarmed and suffered neurasthenia on seeing a fellow employee fatally injured; however the point of that case was that the Court of Appeal held that neurasthenia was a personal injury in terms of the Workmen’s Compensation Act, 1906, and accordingly it is not authority for the view that an employer is liable for any psychiatric injury caused by negligent acts. In all the circumstances I am satisfied that there was simply no duty of care incumbent upon the defenders arising out of the relationship between the pursuers and the deceased, and that accordingly there is no legal remedy available in these circumstances.91

He concluded by holding that the circumstances were not sufficiently horrific to justify the recognition of a duty of care owed to the pursuers simply as bystanders. [19.270] When the case went on appeal to the First Division of the Inner House of the Court of Session,92 the pursuers placed the issue of a potential employers’ duty of care at the forefront of their reclaiming motion, arguing that all three employees were within the scope of the duty of care owed to them by the defender as their employer, and they did not need to establish in addition any special relationship with the deceased. The motion was refused. Lord President Hope said that he could not accept that this was simply a case of injury sustained as a result of a breach of the ordinary duty of care owed by the defenders to the three workers as their employees. It was also necessary to show the existence of the relevant relationship of proximity. None of the existing categories — close ties of love and affection, rescuers, or bystanders — was appropriate. The employee cases cited to the court did not support the argument: they were either workers’ compensation cases such as Yates 90

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

91

Robertson v Forth Road Bridge Joint Board (No 2) 1994 SLT 568 at 573.

92

Robertson v Forth Road Bridge Joint Board 1995 SC 364.

658

Part IV: Relationship Cases

[19.280]

v South Kirkby Collieries Ltd,93 or involuntary participation cases. Lord Oliver had carefully limited the latter group to cases where the negligent act of the defendant had put the plaintiff in the position of being, or thinking that he was, the involuntary cause of the other’s death or injury, and this fell far short of saying that an employee who participated in an operation and saw a fellow-employee sustaining an injury could claim damages for psychiatric illness caused by witnessing it.94 Lord Allanbridge did not analyse the issues with the same degree of incisiveness, but did distinguish the involuntary participation cases.95 The judgment of the third member of the court, Lord Cowie, shows how close the pursuer’s proposition came to succeeding. He confessed that initially he had been of the view that the master–servant relationship created a class of persons who could get damages for psychiatric illness caused by the shock of witnessing an accident, providing the requirements of proximity and causation were satisfied, but having reconsidered the matter in the light of the opinion of Lord Hope, he had been persuaded, with some hesitation, that his initial view was wrong.96

Frost v Chief Constable of South Yorkshire Police [19.280] As discussed in Chapter 3, the judgment of Lord Lloyd of Berwick in Page v Smith97 has had a negative effect on many areas of liability for psychiatric injury, because of the new emphasis on marking off primary from secondary victims.98 However, shortly afterwards, the English Court of Appeal in Frost v Chief Constable of South Yorkshire Police99 suggested that the general principle that had led Lord Lloyd to make this distinction — that once there was a relationship between tortfeasor and victim due to the victim’s direct involvement, the law should not indulge in nice distinctions between physical and psychiatric injury — had tipped the scales in favour of recognising that employers owe a duty not to cause psychiatric injury to their employees.

93

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538.

94

Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 370–371.

95

Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 376.

96

Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 377.

97

Page v Smith [1996] AC 155: see [3.50]–[3.80].

98

See [3.130]–[3.150].

99

Frost v Chief Constable of South Yorkshire Police [1998] QB 254, noted by NJ Mullany and PR Handford (1997) 113 LQR 410; S Hedley [1997] CLJ 254; H Teff (1997) 5 Tort L Rev 184. See L Dunford and L Pickford, “Nervous Shock: Another Opportunity Missed to Clarify the Law?” (1997) 48 NILQ 364. In the English Court of Appeal, the case was called Frost v Chief Constable of South Yorkshire Police; on appeal to the House of Lords, it became White v Chief Constable of South Yorkshire Police (the name given at the beginning of the Appeal Cases report ([1999] 2 AC 455) though the individual page headings retain the name “Frost”). It appears that Frost was one of the original plaintiffs, but he had dropped out by the time the case came to trial.

[19.300]

19 Employer and Employee

659

[19.290] Frost v Chief Constable of South Yorkshire Police,100 the second of the leading cases arising out of the tragic events at the FA Cup semi-final at Hillsborough in 1989, dealt with the claims of six police officers who had all been involved in various ways in the aftermath of the disaster. Inspector White, DC Hallam and PC Glave were on duty at the ground. Inspector White helped to pass the dead and injured from the Leppings Lane Terraces, and DC Hallam and PC Glave dealt with bodies in the gymnasium that served as a makeshift mortuary. PCs Bairstow and Bevis were summoned to the ground after the tragedy occurred, and attempted to resuscitate victims. WPC Smith, who was also on duty elsewhere, was instructed to go to a local hospital, where she stripped bodies and completed casualty forms, and acted as liaison officer between the hospital staff and the casualty bureau; later, she went to the ground with personal effects and had to deal with relatives of the dead and injured. As an alternative to a claim based on the fact that some of the officers had acted as rescuers,101 it was argued that the defendant owed the plaintiffs a duty of care arising from their service as police officers when acting under his direction and control. At first instance102 Waller J found that a master–servant relationship existed that gave rise to a duty of care embracing psychiatric illness, but that it did not arise where, as in the present case, the plaintiffs were merely secondary victims.103 On appeal to the English Court of Appeal,104 counsel for the plaintiffs again urged the employment argument, submitting that the scope of the defendant’s duty was the same whatever the nature of the employment, namely, to take reasonable care to avoid exposing the employee to unnecessary risk of physical or psychiatric injury. Even though the job of a police officer might necessarily entail a certain amount of risk, the officer could nonetheless complain if the risk was due to antecedent negligence on the part of the defendant.105 Where the duty existed, it could not be artificially restricted by excluding psychiatric injury.106 [19.300] These arguments were accepted by the majority of the English Court of Appeal. Both Rose and Henry LJJ held that the plaintiffs, apart from WPC Janet Smith, were primary victims, since they had been directly involved in the course of their employment in the consequences flowing from their employer’s negligence. The defendant as their employer therefore owed them a duty of care not to expose them to 100

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

101

See [25.380]–[25.430].

102

Frost v Chief Constable of South Yorkshire [1995] TLR 379.

103

Unless they could recover as rescuers, but in his view only one plaintiff, Inspector White, came into this category.

104

DC Hallam did not appeal against the first instance decision.

105

Referring particularly to Knightley v Johns [1982] 1 WLR 349.

106

This analysis of the plaintiffs’ argument is taken from the judgment of Rose LJ: Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 260.

660

Part IV: Relationship Cases

[19.300]

unnecessary risk of physical or psychiatric injury.107 This followed inexorably from Lord Lloyd’s restatement of the duty owed to primary victims in Page v Smith.108 Lord Lloyd had said: The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. … In the case of a secondary victim, the question will usually turn on whether the foreseeable injury is psychiatric, for the reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different “kinds” of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric, or both.109

The statement that there is no justification for regarding physical and psychiatric injury as different kinds of injury, said Rose LJ, was “a generally applicable statement of the current law”.110 Lord Lloyd’s analysis was not available to Waller J, nor was it before the Inner House of the Court of Session in Robertson v Forth Road Bridge Joint Board,111 since these decisions had predated the judgment of the House of Lords in Page v Smith. In the light of that case, Rose LJ thought that Robertson would probably be decided differently by an English court: Once it is accepted that there is no justification for regarding physical and psychiatric injuries as different kinds of injury, when an employer negligently causes physical injury to one employee, it seems to me to be impossible to contend that he is not equally liable to a fellow employee of normal fortitude working on the same task who sustains psychiatric injury, whether through fear for himself or through witnessing what happens to his fellow workman.112

Henry LJ, while he thought that Robertson was a case “closer to the line”,113 recognised that “the employer/employee cases show that even in such cases proximity may be a necessary test”.114 The police officers (with the exception of Janet Smith) had been on duty at the ground throughout, and involved with the dead and dying, the injured, and the public. If they had not been there, or had not been so involved, they would have been unable to satisfy the neighbour test. He contrasted the situation of the plaintiff in McFarlane v EE Caledonia Ltd,115 who had been off duty in his 107

In addition, Rose and Henry LJJ held that Inspector White and PCs Bevis and Bairstow were entitled to recover as rescuers: see [25.400].

108

Page v Smith [1996] AC 155.

109

Page v Smith [1996] AC 155 at 190.

110

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 265.

111

Robertson v Forth Road Bridge Joint Board 1995 SC 364.

112

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 266.

113

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 277.

114

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 276.

115

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

[19.320]

19 Employer and Employee

661

bunk, on a support vessel 550 metres away. Rose and Henry LJJ both recognised that though many would regard it as unjust if the police claims were allowed while denying those of the relatives, they turned on different principles of law.116 [19.310] It may be that the two judgments, and particularly that of Henry LJ, do not achieve a totally satisfactory result: in the interests of drawing a line, WPC Smith was excluded because she was not at the ground until long afterwards. This seems unsatisfactory, in that she also was caught up in the disaster through the duties of her employment, even though she did not go to the ground until some hours afterwards. The scale of the tragedy meant that the defendant’s antecedent negligence exposed her to a risk of physical and psychiatric injury, whether she was initially at the ground or not.117 Nevertheless, the recognition that employers may owe a duty of care to their employees not to cause them psychiatric injury was an important step forward. [19.320] The existence of a general duty to employees was confirmed in the subsequent case of Young v Charles Church (Southern) Ltd,118 where an employee electrocuted himself by touching overhead wires with the scaffolding pole the plaintiff had just handed to him. Hobhouse LJ held that he was bound by Frost v Chief Constable of South Yorkshire Police119 to hold that the plaintiff’s action for psychiatric injury must succeed, even though in his view the plaintiff was a secondary victim because his illness was caused by fear for the safety of someone else: Thus, for a plaintiff who is an employee of the defendant, the relevant question becomes essentially a geographical and temporal one: was the plaintiff when the incident occurred within the area where he might suffer physical or psychiatric injury. It cannot be pretended that this does not represent a development from the previously decided authorities, particularly in its expressly stated categorisation of such persons as “primary” victims. … The logic of the approach of Rose LJ is to treat the relationship of master and servant as solving the problem of the existence of the duty of care, making no distinction between the risk of physical and psychiatric injury, but controlling

116

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 266–267 per Rose LJ, at 283 per Henry LJ. In contrast, one of the principal grounds of Judge LJ’s dissent (at 290) was that if the police were able to recover as employees, they would be in a more advantageous position than civilian rescuers. 117

See NJ Mullany and PR Handford, “Hillsborough Replayed” (1997) 113 LQR 410 at 415. The same could be said of the appellant in Duncan v British Coal Corporation [1997] 1 All ER 540, reported together with Frost v Chief Constable of South Yorkshire Police in the All England Law Reports but not at [1998] QB 254. Mr Duncan was a pit deputy at a colliery when one of the men for whom he was responsible was crushed to death at the coal face. He arrived on the scene within four minutes and unsuccessfully attempted to revive the victim. The English Court of Appeal held that he was not a rescuer and could not recover. Apparently, an employee duty was not pleaded. 118

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146: see also [24.230].

119

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

662

Part IV: Relationship Cases

[19.330]

the scope of the breach of that duty by applying limiting criteria of causation. He also appears to treat it as part of that duty not to expose the employee to avoidable traumatic experiences.120

Evans LJ based his decision on the fact that the plaintiff was present within the area of physical danger, and was therefore a primary victim, even if the psychiatric illness he suffered resulted from fear for the safety of another, but as an alternative was prepared to accept that in accordance with Frost a duty of care was provided by the relationship of employer and employee.121 Hutchinson LJ was prepared to agree with both theories.122 Another case where it appears that the employer duty was accepted is Zammit v Stena Offshore Ltd,123 where a diver was on his way back to the surface after a six-hour dive from an offshore platform, when an accident occurred leaving him helpless for half an hour before he was rescued. As a result he suffered psychiatric injury and was unable to work again. Garland J held that once the duty of care was established, it was sufficient if the defendant ought reasonably to have foreseen that the plaintiff might suffer any personal injury, physical or psychiatric, as a result of their negligence. [19.330] However, shortly after these cases, the House of Lords in Frost v Chief Constable of South Yorkshire Police124 granted leave to the Chief Constable to appeal against the decision of the English Court of Appeal.125 With an appeal pending, courts preferred not to rely on the general employer duty until the House of Lords had had an opportunity to rule on it. In Hunter v British Coal Corporation,126 a vehicle driver in a mine suffered psychiatric injury when a hydrant exploded and killed a fellow employee, because his vehicle had collided with the hydrant and caused water to flood out of it. He had gone for help while his deceased workmate tried to turn it off, heard the explosion and learnt the news of the death from others. Counsel for the plaintiff was anxious that the English Court of Appeal make a finding on the involuntary participation ground, because of the impending appeal to the House of Lords.127 In Chief Constable of West Yorkshire Police v Schofield,128 as an alternative to a claim based on presence within the area of physical risk, the plaintiff asserted a duty owed to her by virtue of the employer–employee relationship. The English Court of Appeal confirmed a verdict for the 120

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 161–162.

121

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 153.

122

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 164–165.

123

Zammit v Stena Offshore Ltd (unreported, Eng QBD, 20 March 1997).

124

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

125

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 293.

126

Hunter v British Coal Corporation [1999] QB 140: see also [26.180]–[26.210].

127

Sir John Vinelott at 159 and Hobhouse LJ at 168 both said that Frost v Chief Constable of South Yorkshire Police [1998] QB 254 did not provide an answer to the case before them, and pointed out that it was under appeal to the House of Lords.

128

Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28: see also [24.240].

[19.340]

19 Employer and Employee

663

plaintiff without finding it necessary to say anything about this claim. The last case in which the general employer duty was referred to was Chief Constable of Northumbria v Costello.129 This was not a psychiatric injury case as such: it involved an attack on a female police officer by a woman prisoner in a cell. The action was based on the failure of a nearby inspector to come to the aid of the police officer. Counsel for the appellant, who had appeared for the police plaintiffs in Frost, submitted that the Chief Constable was in an analogous position to an employer, and owed a duty of care to avoid exposing employees to an unnecessary risk of physical or psychiatric injury, but that in the circumstances of this case the risk was not unnecessary. The judgment of the English Court of Appeal in the respondent’s favour was published on the same day that the House of Lords by a majority overturned the Court of Appeal judgments in Frost and repudiated both the rescuer arguments and the notion that an employer owed a general duty not to cause psychiatric harm to an employee.

White v Chief Constable of South Yorkshire Police [19.340] In the Frost appeal,130 now renamed White v Chief Constable of South Yorkshire Police,131 the reasons advanced for rejecting the general employer duty combined examination of the logic used by the English Court of Appeal with arguments based on the comparative justice of the police and spectator claims. Both Lord Steyn and Lord Hoffmann attempted to expose what they saw as a fallacy in the employment argument. Lord Steyn said: The argument was that the present case can be decided on employer’s liability principles. And counsel relies on the undoubted duty of an employer to protect employees from harm through work. … Approaching the matter in this way it became obvious that there were two separate themes to the argument. The first rested on the duty of an employer to care for the safety of his employees and to take reasonable steps to safeguard them from harm. When analysed this argument breaks down. It is a non sequitur to say that because an employer is under a duty to an employee not to cause him physical injury, the employer should as a necessary consequence of that duty (of which there is no breach) be under a duty not to cause the employee psychiatric injury …. The rules to be applied when an employee brings an action against his employer for harm suffered at his workplace are the rules of tort. One is therefore thrown back to the ordinary rules of the law of tort which contain restrictions on the recovery of compensation for psychiatric harm.132 129

Chief Constable of Northumbria v Costello [1998] EWCA Civ 4700.

130

WPC Smith did not appeal against the decision of the English Court of Appeal denying her a remedy.

131

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. See P Case, “Now You See It, Now You Don’t: Black Letter Reflections on the Legacies of White v Chief Constable of South Yorkshire” (2010) 18 Tort L Rev 33. 132

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497.

664

Part IV: Relationship Cases

[19.350]

Lord Hoffmann echoed these sentiments, saying that the argument assumed what it needed to prove.133 It appears that the plaintiffs’ argument was not assisted by their reliance on the involuntary participation cases.134 The judges also said that it was not acceptable that police should be in a better position than the bereaved relatives merely because the disaster was caused by the negligence of other police officers,135 and in any case the plaintiffs had the benefit of statutory pension schemes.136 [19.350] Lord Griffiths, who dissented on the rescuer issue,137 agreed with the majority that the employer argument should be rejected,138 saying that if it were correct the police would be able to recover damages whereas spectators could not do so.139 Lord Goff dissented on both issues. He said that the police who became involved in the aftermath of the disaster could claim as employees and were distinct from other interveners who could claim only if they qualified as rescuers.140 He justified the special position of employees in the following terms: In some cases … the circumstances may be such that an employee is involved in the aftermath of the relevant event when acting in the course of his employment with the tortfeasor, and that a part of his involvement may fall within the description of rescue and the remainder not. If as a result of his involvement the employee suffers psychiatric injury, it will be necessary to have regard to his involvement as a whole, including his actions of rescue, when deciding whether or not such psychiatric injury is a reasonably foreseeable consequence of a breach by his employer of a duty to him. That is, in my opinion, the position in the present case. It follows that if, as in the present case, there is a group of employees who were involved in the aftermath of the event, and only some of them were involved in acts of rescue, it does not follow that the latter only will be entitled to recover. It is the involvement of each as a whole which has to be considered; and if the involvement is such that the acts of rescue were no more than incidental parts of a wider involvement which caused the psychiatric injury, there is no reason why those employees who were involved in acts of rescue should be singled out as those who alone 133

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 505. See also at 464 per Lord Griffiths. Compare the view of Lord Macfadyen in Cross v Highlands and Islands Enterprise 2001 SLT 1060 at [60]. 134

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507 per Lord Hoffmann. These cases cannot validly support a general employer duty (unless reinterpreted in the way suggested by Weir: see [26.100]). Reliance on the work stress cases and the Australian authorities would have been a better strategy.

135

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507 per Lord Hoffmann.

136

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 498 per Lord Steyn. See also at 464 per Lord Griffiths. 137

See [25.430].

138

Thus, while allowing the appeal in respect of PC Glave, he would have dismissed the appeals of the three police officers who had acted as rescuers.

139

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 464.

140

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 483–484.

[19.370]

19 Employer and Employee

665

are entitled to recover. This is because, in such a case as in the case of Chadwick …, it is the whole horror of the situation which is the cause of the psychiatric injury suffered by all of the employees so involved.141

The reasoning of Lord Goff offers a possible way to salvage the employment category — though because it is dependent on the employee, or some of a group of employees, being involved in acts of rescue, it is not as wide-ranging as the conception of this duty envisaged by Henry LJ in the English Court of Appeal. It is regrettable that the Australian authorities were not more fully utilised,142 and that the parallels with cases dealing with the employer’s liability for psychiatric injury caused by work stress cases were not explored.143

The way forward [19.360] The decision of the House of Lords meant that as far as English (and Scottish) law was concerned, the notion that the employment relationship gives rise to a general duty on the part of an employer to take reasonable care not to cause psychiatric injury to employees had been conclusively rejected: the employer’s duty did not extend beyond taking care not to cause physical harm.144 The question is whether over the last 15 years English and Scottish law have been able to find a way forward from this position. [19.370] One possibility is that contract may offer a source of redress for psychiatrically injured employees. In Gogay v Hertfordshire County Council,145 a childcare worker was suspended following comments by a child that could be construed as allegations of sexual abuse. When the 141

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 485–486.

142

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 was not cited in any relevant English or Scottish decision before 1995. Between then and the House of Lords decision in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455, it was cited in Robertson v Forth Road Bridge Joint Board 1995 SC 364, Page v Smith [1996] AC 155, Frost v Chief Constable of South Yorkshire Police [1998] QB 254 and (in passing, on another point) in Hunter v British Coal Corporation [1999] QB 140. Pusey was referred to only in two of the judgments in White (and no other relevant Australian cases were referred to). Lord Goff pointed out the importance of Pusey as an employee case: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 485–486 (as Henry LJ had done in the English Court of Appeal: Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 273). In contrast, Lord Hoffmann strove to play down the employee aspects, saying, in effect, that only Windeyer J discussed this aspect of the case: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507. This seems questionable: see [19.70]–[19.90]. Note Mason P’s reference to Lord Hoffmann’s “dismissive rejection” of Pusey in FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 at [29]. 143

See [20.30], [20.160]–[20.220].

144

Note the similar position taken by Cazalet J in Greatorex v Greatorex [2000] 1 WLR 1970 at 1984, in the context of cases where the tortfeasor and the primary victim are one and the same: “There is, of course, a duty not to cause foreseeable physical injury to another in such circumstances, but in my judgment to extend that duty so as to bring within its compass purely psychiatric injury would be to create a significant further limitation upon an individual’s freedom of action.” See [15.160]–[15.170]. 145

Gogay v Hertfordshire County Council [2000] IRLR 703, followed in Holladay v East Kent Hospitals NHS Trust [2003] EWCA Civ 1696.

666

Part IV: Relationship Cases

[19.380]

matter was investigated, it was found that the allegations were groundless and the suspended worker was invited to return. However, her suspension resulted in her suffering clinical depression, and she only worked intermittently thereafter. The English Court of Appeal held that the employer was in breach of an implied term of trust and confidence, and that damages could be recovered in contract for a recognised psychiatric illness, in the same way as for physical injury. The limitation of this case lies in the nature of the implied term that was breached: very few of the cases in which recovery might have been had in tort before White v Chief Constable of South Yorkshire Police146 could be based on an implied term of this nature. [19.380] Also worthy of note are two subsequent House of Lords decisions. Waters v Commissioner of Police of the Metropolis147 was a claim by a female police officer who had been sexually assaulted by other police officers. She alleged that the Commissioner had been negligent in not dealing properly with her complaint and in permitting such conduct to happen, and that she had suffered psychiatric injury as a result. The House of Lords refused to strike out the statement of claim. Lord Slynn of Hadley said: If an employer knows that acts being done by employees during their employment may cause physical or mental harm to a particular fellow employee and he does nothing to supervise or prevent such acts, when it is in his power to do so, it is clearly arguable that he may be in breach of his duty to that employee. It seems to me that he may also be in breach of that duty if he can foresee that such acts may happen and if they do, that physical or mental harm may be caused to an individual.148

This statement appears to go some way towards resurrecting the employer’s duty in cases involving acts done by fellow-workers. Corr v IBC Vehicles Ltd149 was a claim under the Fatal Accidents Act 1976 (UK) by the widow of a worker who had been badly injured in a factory accident and committed suicide five years later. The House of Lords rejected a number of suggested defences including that the act of suicide was not reasonably foreseeable and that it constituted a novus actus interveniens and so broke the chain of causation. Lord Bingham of Cornhill noted that the employer owed the deceased a duty to take reasonable care to avoid causing him personal injury, which had to be understood as embracing both physical and psychological injury,150 which Lord Bingham said was 146

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

147

Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934.

148

Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934 at 938. It is noteworthy that Lord Slynn did not refer to White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 except on the technical issue that police are not employees of the Police Commissioner.

149

Corr v IBC Vehicles Ltd [2008] AC 884.

150

Corr v IBC Vehicles Ltd [2008] AC 884 at [7], [10].

[19.400]

19 Employer and Employee

667

the effect of the decision in Page v Smith.151 Courts outside the United Kingdom would not accept the Page v Smith principle that foreseeability of psychiatric injury is not required where the plaintiff is within the zone of physical danger and suffers psychiatric injury,152 but Lord Bingham’s proposition nonetheless suggests that an employer owes some duty to a psychiatrically injured employee, and at least one other judgment provides some support.153 [19.390] However, the most promising way forward appears to be through a series of cases that suggest that employers may still owe a duty not to cause psychiatric injury to employees in certain situations. Of particular interest is the fact that some of these cases invoke the parallel series of cases on the employer’s liability for work stress, even though the robbery cases involve a specific incident rather than an ongoing work situation. This connection has been made even though in French v Sussex Police154 the English Court of Appeal were at pains to distinguish the work stress cases from the situation before them, a bungled police operation that led to a fatal shooting: applying White v Chief Constable of South Yorkshire Police,155 it was held that no duty was owed by the police officers involved.156 [19.400] It is the Scottish courts that have taken the first steps along this particular pathway. In Collins v First Quench Retailing Ltd,157 it was held that the manager of a liquor store was entitled to recover damages from her employer for psychiatric injuries sustained as the result of an armed robbery when she was the only employee on duty. The premises had a history of serious incidents including assaults and armed robberies, and the pursuer had repeatedly complained about the risks and asked for security screens to be installed, to no avail. It was held that although there was no negligence in failing to install security screens, the insistence that the pursuer work alone was a breach of the employer’s duty to take reasonable care for her safety. Lord Carloway reached this conclusion without citing any previous decisions on the issue of liability, which perhaps weakens the authority of the case. However, in Keen v Tayside Contracts158 Lady Paton’s judgment contains a full discussion of relevant 151

Page v Smith [1996] AC 155.

152

See [3.230].

153

Corr v IBC Vehicles Ltd [2008] AC 884 at [34], [38]–[40] per Lord Walker of Gestingthorpe.

154

French v Sussex Police [2006] EWCA Civ 312.

155

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

156

French v Sussex Police [2006] EWCA Civ 312 at [30] per Lord Phillips CJ: “The present case is not a stress at work case. Nor is it analogous to a stress at work case.” Note the related claim in Ashley v Chief Constable of Sussex Police [2008] AC 962, an action for assault and battery, where the House of Lords held that in tort, for the purposes of a plea of self-defence, a mistaken belief that the defendant was in imminent danger of being attacked must be not only honest but also reasonable.

157

Collins v First Quench Retailing Ltd 2003 SLT 1220.

158

Keen v Tayside Contracts 2003 SLT 500.

668

Part IV: Relationship Cases

[19.410]

case law. This was a case where a road worker suffered post-traumatic stress disorder after being instructed by his supervisor to attend the scene of a road accident in order to assist the emergency services. When he arrived at the scene he became aware that the car contained four crushed and burnt bodies. It was averred that the defender had an unsafe system of work in that it failed to instruct supervisors that employees should not be required to remain at accident scenes where they would have to see dead and mutilated bodies, and did not provide post-incident debriefing to allow employees who had been exposed to such sights to come to terms with what they had seen. Her Ladyship did not accept arguments that the pursuer could be regarded as a primary victim, or that the distinction between primary and secondary victims was in a state of flux after the House of Lords’ decision in W v Essex County Council.159 However, she refused to exclude the possibility that in certain circumstances an employee might be entitled to recover damages for injury to mental health caused by a single episode of acute stress at work, by analogy with the case law on work stress caused by work conditions or the cumulative effect of a series of events.160 [19.410] To date, the English courts have not gone anything like as far. In Harrhy v Thames Trains Ltd,161 a case with similar facts to Keen v Tayside Contracts,162 MacKay J refused to accept an argument that the claim was bound to fail and so dismissed a strike-out application. In Mitchell v United Co-operatives Ltd,163 where the facts bore a close resemblance to Collins v First Quench Retailing Ltd,164 the English Court of Appeal recognised that employers owed a common law duty of reasonable care to employees, referring to a leading statement of principle that has been invoked in the work stress decisions,165 but held on the facts that the employer had taken reasonable steps to deter robberies. Yapp v Foreign and Commonwealth Office166 is probably closer to the work stress cases, because it involved a decision to suspend a civil servant pending investigation of allegations of misconduct, resulting in a depressive illness, but the essence of the complaint was that the illness was caused by a one-off act of unfairness. The English Court of Appeal held that the plaintiff was entitled to recover. The work stress cases were held to be applicable even though this was a one-off act of unfairness, Underhill LJ noting in 159

W v Essex County Council [2001] 2 AC 592: see [3.210].

160

In Harrhy v Thames Trains Ltd [2003] EWHC 2120 (QB), a case with similar facts, MacKay J refused to accept an argument that the claim was bound to fail and so dismissed a strike-out application.

161

Harrhy v Thames Trains Ltd [2003] EWHC 2120 (QB).

162

Keen v Tayside Contracts 2003 SLT 500.

163

Mitchell v United Co-operatives Ltd [2012] EWCA Civ 348.

164

Collins v First Quench Retailing Ltd 2003 SLT 1220.

165

Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783 per Swanwick J: see [20.630]. 166

Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512.

[19.440]

19 Employer and Employee

669

particular that Lord Hoffmann in Rothwell v Chemical & Insulating Co Ltd167 had said that the principles of Hatton v Sutherland168 were applicable to psychiatric injury caused by any breach of duty on the part of the employer.169 [19.420] It may be that in time these isolated threads may begin to form a pattern. Subject to that, it seems that the English and Scottish courts are bound by the decision of the House of Lords in White v Chief Constable of South Yorkshire Police170 that employees are not owed any general duty by their employers to take care not to cause them psychiatric injury. The English and Scottish cases have in general not sought to take advantage of any assistance that might be obtainable from the Australian cases. However, the Australian decisions on psychiatric injury in the workplace could have been of great assistance. In the parallel area of liability for work stress, English courts now recognise a duty of care that is as wide as, perhaps even wider than, the duty currently endorsed by the Australian High Court. There seems no reason why there should be such a great divide in cases of one-off instances of negligence.

THE LAW ELSEWHERE [19.430] The law in other jurisdictions shows the same variety of approach to imposing liability on an employer for causing psychiatric injury as found in the law of England and Australia. [19.440] It seems that Ireland will take an independent line on the issue of psychiatric injury claims against employers. In Curran v Cadbury (Ireland) Ltd,171 the plaintiff was working at a conveyor belt carrying chocolate bars to her workstation for packaging. The machine was turned off. Unknown to her, there was a fitter inside the machine repairing it. She started the machine, and immediately heard someone inside the machine screaming for help. She thought she had killed or seriously injured the person inside, and as a result suffered a serious psychiatric illness. She recovered damages against her employer on the ground that she had involuntarily been a participant in the accident. As to the general employer duty, Judge McMahon said: I do not propose to address the question of whether there is a general duty on an employer to take reasonable care to prevent the employee suffering psychiatric illness because of the conditions of employment. … [T]he House of Lords has considered the matter recently in the White case,172 where it held that there was no such general duty on the employer. The judgment is controversial 167

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [24].

168

Hatton v Sutherland [2002] ICR 613.

169

Note the discussion of Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512 and French v Sussex Police [2006] EWCA Civ 312 in James-Bowen v Commissioner of Police for the Metropolis [2015] EWHC 1249 (QB) at [43]–[50] per Jay J.

170

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

171

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343.

172

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

670

Part IV: Relationship Cases

[19.450]

and I would content myself with the remark that there must be a duty in this respect in some circumstances at least, even if a blanket duty in all circumstances is rejected. Were I pushed to make a decision, I would be inclined to the view that the plaintiff in the present case, and in the factual situation we are considering, was owed such a duty by her employer. White’s case can be distinguished in so far as the policemen there were not participants or directly involved in the incident, and arguably were comparable to by-standers or spectators. In no way, however, could Mrs Curran in the present case be so described. Even if there is no general duty of care to avoid negligently inflicted psychiatric illness between employer and employee, as asserted by White, it is nevertheless clear that such a relationship cannot advantage or disadvantage a claimant who is entitled to recover under other headings.173

[19.450] The importance of this judgment was confirmed by Budd J in the Irish High Court in Murtagh v Minister for Defence.174 Budd J was dealing with a claim for post-traumatic disorder by a soldier who had served in Lebanon and came under hostile fire. He had become unwell 12 years before his eventual discharge and had been treated but allowed to return to duty. The plaintiff argued that the doctors should have realised that he was vulnerable and not coping with the pressures he was under. The immediate issue was whether the limitation period should be extended to enable the plaintiff to pursue his claim, and Budd J granted an extension following a full discussion of the nature and effects of post-traumatic stress disorder. The judgment pointed out that the Irish courts were alert at a very early point in time to the possibility of liability for psychiatric injury,175 and linked the leading cases on the general principles of liability such as Kelly v Hennessy176 with the position of employers, referring to Judge McMahon’s judgment in Curran and his querying of the approach adopted by the House of Lords in White v Chief Constable of South Yorkshire Police.177 [19.460] In Canada, the courts have not explored psychiatric injury issues arising in cases between employees and employers, probably because tort actions for work-related injuries are excluded by workers compensation legislation.178 In New Zealand, before the 1992 changes to

173

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 359 (emphasis in original).

174

Murtagh v Minister for Defence [2008] IEHC 292.

175

See [3.640].

176

Kelly v Hennessy [1995] 3 IR 253.

177

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. Note also the unusual case of Larkin v Dublin City Council [2008] 1 IR 391 (plaintiff claimed for psychiatric effects of being officially informed that he had been promoted to a prestigious position, and then being told that a mistake had been made: it appears Clark J would have awarded damages if the plaintiff has been able to establish that he was suffering from a recognisable psychiatric illness). 178

See [20.740]. Some cases turn on other issues: see eg Aussant v Canada (unreported, Fed Ct, Docket T-903-95, 5 May 2005), where the plaintiff, a constable with the Royal Canadian

[19.470]

19 Employer and Employee

671

the accident compensation legislation,179 it appears that compensation for psychiatric injury caused by employer negligence was available under the Act.180 Now, in line with the general resurgence of common law claims for mental harm, it seems likely that New Zealand courts could follow Australian precedents and recognise that the employer owes employees a duty to take reasonable care not to cause psychiatric injury.181 [19.470] Until recently, the United States has taken a narrow view. It appeared that employers would only be liable to employees for the negligent infliction of emotional distress in circumstances where the ordinary requirements of such liability were satisfied — that is, presence in the danger zone or the existence of a family relationship with the primary victim. In Gillman v Burlington Northern Rail Co,182 for example, a railway foreman was denied recovery for emotional distress arising out of an accident in which a fellow-worker was dragged under a train and killed, because he could not show a contemporaneous fear for his own safety; the decision is consistent with the “zone of danger” approach still required in some jurisdictions. In other cases, employees failed to recover in bystander actions for emotional distress consequent on the death of fellow workers on grounds that they could not show unreasonable risk of bodily harm to themselves,183 or a family relationship with the deceased,184 or that they had actually witnessed the accident.185 It even appears that employees have no right of action against their employer in respect of psychiatric injuries resulting from being robbed at work due to the employer’s failure to install adequate security.186 The position therefore was that an employer owed no special duty to employees in his capacity as an employer: the law did not differ that much from the current English law. This refusal to move away from the standard tests developed for road and rail accidents, where there is no prior relationship between the parties, has been a feature of American law in other special situations, for example, actions for medical negligence in cases involving childbirth.187 However, it appears that the employment relationship is Mounted Police, sued for injuries and resulting post-traumatic stress disorder when the police car in which he was travelling was hit from behind by another car. The issue turned on Crown liability in tort, and the judgment makes no real attempt to identify the cause of action. 179

Accident Rehabilitation and Compensation Insurance Act 1992 (NZ): see [3.470]–[3.480].

180

See Accident Compensation Corporation v E [1992] 2 NZLR 426; Kennedy v Accident Compensation Corporation [1992] NZAR 107; E Coppins, “Psychiatric Injury in Employment” (1997) 8 Auck ULR 387 at 394–397.

181

E Coppins, “Psychiatric Injury in Employment” (1997) 8 Auck ULR 387 at 411.

182

Gillman v Burlington Northern Rail Co 878 F 2d 1020 (1989).

183

Dierker v Gypsum Transport Ltd 606 F Supp 566 (1985).

184

Dierker v Gypsum Transport Ltd 606 F Supp 566 (1985); Hinojosa v South Texas & Drilling Exploration Inc 787 SW 2d 320 (Tex 1987). 185

Beanland v Chicago RI & PR Co 480 F 2d 109 (1973).

186

Rivers v Grimsley Oil Co Inc 842 So 2d 975 (Fla 2003).

187

See [22.630].

672

Part IV: Relationship Cases

[19.470]

now being given greater recognition in American psychiatric damage law. Connecticut case law has recognised that employees may bring an action for negligent infliction of emotional distress suffered on being wrongly dismissed from their employment, if the employer’s conduct is unreasonable.188 This pioneering approach has now been emulated in other jurisdictions.189

188

Morris v Hartford Courant Co 513 A 2d 66 (Conn 1986); Fulco v Norwich Roman Catholic Diocesan Corporation 609 A 2d 1034 (Conn 1992); Parsons v United Technologies Corporation 700 A 2d 655 (Conn 1997).

189

See AJ Cohen, “Fire Me Nicely: Negligent Infliction of Emotional Distress Claims in Wrongful Termination Cases” (1999-2000) 10(4) Connecticut Lawyer 4. Thanks are due to Professor John Langbein of Yale University for this reference.

Chapter 20

Work Stress [20.10] INTRODUCTION ............................................................................................................. 673 [20.50] THE EARLY CASES ......................................................................................................... 676 [20.50] The beginnings .................................................................................................................. 676 [20.110] Walker v Northumberland County Council .............................................................. 679 [20.160] Australian cases .............................................................................................................. 682 [20.240] English cases .................................................................................................................... 690 [20.260] RESTRICTION IN AUSTRALIA: KOEHLER V CEREBOS (AUSTRALIA) LTD . 692 [20.370] THE CURRENT AUSTRALIAN APPROACH .......................................................... 699 [20.380] Duty of care ..................................................................................................................... 699 [20.430] Foreseeability and content of the employer’s duty of care ..................................... 703 [20.520] Breach of duty ................................................................................................................. 709 [20.560] Causation .......................................................................................................................... 711 [20.570] THE DIFFERENT CATEGORIES OF CASE ............................................................... 712 [20.600] RESTATEMENT IN ENGLAND: HATTON AND BARBER ................................... 714 [20.690] THE LAW ELSEWHERE ............................................................................................... 722 [20.690] Scotland ............................................................................................................................ 722 [20.720] Ireland ............................................................................................................................... 724 [20.740] Canada .............................................................................................................................. 725 [20.750] New Zealand ................................................................................................................... 726 [20.760] South Africa ..................................................................................................................... 727 [20.770] TRENDS AND CONTRASTS ....................................................................................... 727 [20.840] CONCLUSION ................................................................................................................ 732

INTRODUCTION [20.10] Chapter 19 discussed whether employers owed a general duty of care to their employees not to cause them psychiatric injury — a duty, accepted in Australia and some other jurisdictions but unrecognised in England, arising out of the employment relationship between the parties whereby liability will ensue if the employee suffers a recognisable psychiatric illness as a result of being negligently exposed to a situation of danger in circumstances where an illness of this kind is a reasonably foreseeable result. Essentially, such cases arise out of a single accident or event, and may well involve some sort of physical proximity to a situation in which some other person is killed, injured or endangered, even if the employee himself or herself is not placed within the zone of physical risk.

674

Part IV: Relationship Cases

[20.20]

[20.20] The cases to be discussed in this chapter are different. Starting in the early 1990s, courts in Australia, England and elsewhere began to recognise that employers may be subject to a duty not to cause psychiatric injury to their employees in a rather different context — stress at work.1 Proceeding out of the general obligation of an employer to provide a safe system of work, it has been held that where it is reasonably foreseeable to an employer that an employee may suffer some form of psychiatric injury because of stressful work conditions, the employer is under a duty of care not to cause the employee psychiatric injury by reason of the volume or character of the work the employee is required to perform.2 Originally lurking in the shadow of the developments discussed in Chapter 19, it was suggested in 1997 that claims of this nature loomed as the next growth area in psychiatric damage law.3 This prediction has proved to be entirely correct. Since then courts in England and Australia have decided 1 The same development has taken place in a contract context. “Since 1909 our knowledge of the incidence of stress-related psychiatric and psychological problems of employees, albeit still imperfect, has greatly increased. What could in the early part of the last century dismissively be treated as mere ‘injured feelings’ is now sometimes accepted as a recognisable psychiatric illness. … Specifically, this realism has taken root in the field of employment law. … These considerations are testimony to the need for implied terms in contracts of employment protecting employees from harsh and unacceptable employment practices. This is particularly important in the light of the greater pressures on employees due to the progressive deregulation of the labour market, the privatisation of public services, and the globalisation of product and financial markets: see Burchell and others ‘Job Insecurity and Work Intensification’ (1999), a report published for the Joseph Rowntree Foundation, at pp 60-61. This report documents a phenomenon during the last two decades ‘of an extraordinary intensification of work pressures’. The report states as a major cause the fact that the ‘quantity of work required of individuals has increased because of under-staffing so that hours of work have lengthened and, more importantly, the pace of work has intensified’. Inevitably, the incidence of psychiatric injury due to executive stress has increased. The need for protection of employees through their contractual rights, express and implied by law, is markedly greater than in the past”: Johnson v Unisys Ltd [2003] 1 AC 518 at [19] per Lord Steyn. Note A Morris, “The Distressing Effects of Dismissal” (2004) 20 PN 161. 2

In French v Sussex County Council [2005] PIQR P18, Wilkie J at [29] was disposed to reject an attempt to apply the work stress doctrine to “a singular catastrophic event rather than an ongoing state of affairs”. This argument was upheld by the English Court of Appeal: French v Sussex Police [2006] EWCA Civ 312 at [30] per Lord Phillips CJ. However, in Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281 at [24] Lord Hoffmann suggested that the principles stated for work stress cases by Hale LJ in Hatton v Sutherland [2002] ICR 613 (see [20.600]) applied to other employer–employee issues, such as psychiatric injury caused by fear of developing asbestosis or mesothelioma: see [29.410].

3

See NJ Mullany, “Fear for the Future: Liability for the Infliction of Psychiatric Disorder” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), p 197 n 24 — quoted by Hale LJ in Hatton v Sutherland [2002] ICR 613 at [3]. See also NJ Mullany and PR Handford, “Hillsborough Replayed” (1997) 113 LQR 410 at 415 — Lord Steyn in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 494 wrongly assumed that the statement related to claims of the kind dealt with in Chapter 19. The first Australian text on liability for work stress appeared in 2002: D Butler, Employer Liability for Workplace Trauma (Ashgate, Aldershot, 2002), particularly Chs 6–7; An English text followed in 2004: K Awadalla, Stress Claims (Lexis-Nexis UK, London, 2004). Note also the availability as from 1995 of a booklet published by the Health and Safety Executive, Stress at Work – A Guide for Employers.

[20.30]

20 Work Stress

675

a series of major cases that have confirmed the existence and extent of this liability and authoritatively stated the rules that govern it. In England, the applicable principles were restated by leading decisions of the Court of Appeal4 and the House of Lords.5 Subsequently, however, in an unexpected development, the High Court of Australia imposed important restrictions on the expansion of this area of the law by holding that the scope of the employer’s duty is limited by the employee’s contract of employment.6 Australian and English law are now proceeding down different paths. [20.30] It should be appreciated that employer liability for work stress and its psychiatric consequences is not easily established.7 This much is clear from the number of cases in which the claims have ultimately failed, and also from the nature of the judgments in the leading cases. In England, in Hatton v Sutherland,8 the Court of Appeal laid down general principles for the resolution of work stress cases that would guide lower courts and keep claims within proper limits.9 In Australia, in Koehler v Cerebos (Australia) Ltd,10 the judgment of the High Court also sets out important limiting considerations. However, what is most noteworthy about this class of claims is that they have achieved an independent existence. This is most strikingly illustrated by the English decisions: the work stress cases have been not been affected by the problems that the other employee cases have encountered in White v Chief Constable of South Yorkshire Police.11 Moreover, they have not been shackled by the restrictive requirements that are still imposed in some areas of psychiatric injury law by some courts, such as the suggested need for sudden shock.12 Walker v 4

Hatton v Sutherland [2002] ICR 613.

5

Barber v Somerset County Council [2004] ICR 457.

6

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

7

In some cases, both in Australia and England, plaintiffs have preferred (or been obliged by legislation) to claim workers’ compensation or some equivalent benefit: see eg Howe v South Australia (1992) 58 SASR 310; Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 19 AAR 1; Re Bashtannyk and Comcare (1994) 32 ALD 581; Austin v Director General of Education (unreported, NSWCA, CA 40175 of 1990, 21 July 1994); Crombie v Uniting Church in Australia Property Trust (WA) (1996) 17 WAR 291; Stewart v New South Wales Police Service [1998] NSWCC 57; Chief Adjudication Officer v Faulds [2000] 1 WLR 1035; Levi v Unisure Pty Ltd [2000] SASC 167; Pataki v University of Tasmania [2000] TASSC 144; Lee v Comcare (unreported, AAT, 27 March 2003); Department of Education v Unsworth [2010] VSCA 77; Willett v Victoria (2013) 42 VR 513; Skippers Aviation Pty Ltd v Curtin [2015] WADC 82. 8

Hatton v Sutherland [2002] ICR 613.

9

Note the format of the judgment of the court, given by Hale LJ, which consists of a general part, concluding with a summary of the applicable principles, followed by an appendix dealing with the individual cases. See R Munday, “Judicial Configurations: Permutations of the Court and Properties of Judgment” [2002] CLJ 612, especially at 612–614. 10

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

11

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

12

See [12.270]–[12.290].

676

Part IV: Relationship Cases

[20.40]

Northumberland County Council,13 the first English case in which damages were awarded against an employer for psychiatric harm caused by work stress, was not cited in any case dealing with psychiatric illness resulting from accident prior to White,14 nor were those cases referred to in Walker. However, there can be no doubt that these two streams of authority are closely connected. This was made abundantly clear in the earlier Australian authorities.15 [20.40] This chapter reviews the development of liability for psychiatric injury caused by work stress and then discusses the differing approaches to this area now manifested in the leading Australian and English cases, followed by a comparative survey of trends and contrasts.16 The position in other jurisdictions is also briefly discussed.

THE EARLY CASES The beginnings [20.50] The first work stress case was an Australian case, Gillespie v Commonwealth,17 decided by Miles CJ in the Australian Capital Territory Supreme Court in 1991. Mr Gillespie, an employee of the Department of Foreign Affairs and Trade, was sent to the diplomatic mission in Caracas, Venezuela. He experienced difficulties in doing his job in the special conditions that prevailed there — the people he dealt with were abusive, bribes were demanded, and there were difficulties in engaging local staff — and his health ultimately broke down. He retired from the public service on medical grounds. He claimed that his health problems resulted from the negligence of the Commonwealth in posting him to a position involving unusual stresses and a hostile environment, which caused him great hardship, without informing him of the conditions. He sued for damages for negligence and breach of his contract of employment. Miles CJ gave judgment for the Commonwealth. He recognised the existence of a duty of care, and that the Commonwealth was in breach by 13

Walker v Northumberland County Council [1995] ICR 702.

14

Even in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 itself, Walker v Northumberland County Council [1995] ICR 702 received only passing mention. Lord Goff simply distinguished it from the situation under discussion (White at 481), and Lord Hoffmann said merely that it was not a secondary victim case (at 505). 15

See eg Gillespie v Commonwealth (1991) 104 ACTR 1 at 17 per Miles CJ; Wodrow v Commonwealth (1993) 45 FCR 52 at 76 per Gallop and Ryan JJ; Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472 at 65,065 per Cullinane J; Gallagher v Queensland Corrective Services [1998] QSC 150 per Jones J; New South Wales v Seedsman (2000) 217 ALR 583 at [159] per Mason P. 16

Parts of the chapter are based on other published work by the author: P Handford, “Psychiatric Injury in the Workplace” (1999) 7 Tort L Rev 126 at 155–157 and 161–164; P Handford, “Liability for Work Stress: Koehler Ten Years On” (2015) 39(2) UWAL Rev 150.

17

Gillespie v Commonwealth (1991) 104 ACTR 1.

[20.70]

20 Work Stress

677

failing to give him an appropriate warning, but held that the action failed on the ground that causation was lacking. An appeal to the Full Court was dismissed.18 [20.60] As this was the first case of its kind, it was important for Miles CJ to identify the nature of the defendant’s potential liability. He said that an employer was clearly under a duty to take reasonable care for the safety and health of his or her employees. The damage complained of was not the result of a particular incident, and did not involve either a bodily injury or “nervous shock”. However, the defendant was under a duty to take reasonable and effective steps that were likely to have avoided foreseeable harm, even if that harm was purely psychological: according to Dixon J in Bunyan v Jordan,19 such an illness was sufficient damage in any tort in which damage was an ingredient of the cause of action. The issues under debate were whether the anxiety state that the plaintiff suffered was something that the defendant should have foreseen, and whether the defendant took such steps as were reasonably necessary to obviate or at least minimise the risk of this kind of harm occurring. In an important passage, Miles CJ addressed these issues as follows: In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only in so far as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any “unnecessary” risk was eliminated. In practical terms this means that the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a socially acceptable, level. It may be that this takes the court into an area of value judgment for which the inscrutability of a jury verdict may provide a more appropriate means of expression.20

[20.70] As to the first issue, Miles CJ said that the magnitude of the risk was considerable, but it could not be said that there was a high degree of probability that the harm would eventuate. He asked himself whether in the circumstances there was a foreseeable risk of breakdown to any ordinary person, and whether it was foreseeable that the plaintiff was more susceptible to psychological harm than an ordinary member of the Caracas diplomatic mission. He held that some risk of psychiatric harm was reasonably foreseeable, but that the plaintiff’s particular vulnerability was not foreseeable. As to the second issue, he concluded that the discharge of the duty required that an officer posted to Caracas be given some preparation beyond that appropriate to less stressful posts. It was unreasonable not to tell the plaintiff that Caracas was a new post with difficulties as great as, if not greater, than, any other Australian diplomatic post, but reasonableness required only the giving of a general warning 18

Gillespie v Commonwealth (1993) Aust Torts Rep 81-217.

19

Bunyan v Jordan (1937) 57 CLR 1 at 16.

20

Gillespie v Commonwealth (1991) 104 ACTR 1 at 15.

678

Part IV: Relationship Cases

[20.80]

because the possibility that the officer would be subject to such an extreme reaction was so remote. However, the action failed because causation was lacking: the judge concluded on the evidence that even if the plaintiff had been warned prior to his departure about the conditions he was likely to face in Venezuela, his enthusiasm was such that the warning was unlikely to have deterred him from taking up the post. On appeal, Mr Gillespie argued that the Commonwealth should have given a more comprehensive warning, but the court rejected this argument and affirmed that the case failed on the issue of causation. [20.80] Though Miles CJ did not identify the nature of the employer’s obligation in such cases as one involving taking reasonable steps to prevent injury through stress at work in circumstances where such injury is reasonably foreseeable, he made it clear that it was part of the employer’s general duty to take reasonable care for the health and safety of employees, and that it was different from more traditional psychiatric injury cases involving “accidents”: This is not a nervous shock case. As I understand the nervous shock cases, many of them at least are concerned with the question of whether a duty of care existed on the particular facts. Many of the nervous shock cases have been concerned with the plaintiff’s reaction to the receipt of bad tidings or to the witnessing of injury to another person. In Mount Isa Mines Ltd v Pusey21 itself the plaintiff developed a schizophrenic condition in reaction to going to the assistance of two workmates who were injured in an electrical explosion and who died of shocking burns. But it is clear, as the passage from the judgment of Dixon J in Bunyan v Jordan22 … indicates, that damages are not limited to recovery for a condition of “shock”, whatever that term may mean, and will be awarded for any foreseeable harm resulting from the defendant’s breach of duty, so long as the other conditions necessary for liability are present.23

[20.90] A few months later, in a very similar case, Wodrow v Commonwealth,24 Miles CJ became the first judge to award damages for work stress and its consequences, but this award was overturned on appeal to the Full Court.25 The plaintiff, an engineer employed in the Department of Defence, suffered a chronic anxiety neurosis as a result of the treatment he received at the hands of his superiors, and specifically in a minute criticising his failure to prepare a report on the “Fast Frigates Project” according to instructions and his work generally over a substantial period. Miles CJ held that the issuing of this minute 21

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

22

Bunyan v Jordan (1937) 57 CLR 1 at 16.

23

Gillespie v Commonwealth (1991) 104 ACTR 1 at 17. Given the terms in which Miles CJ describes the nature of the employer’s duty, it is interesting that he does not quote Windeyer J’s statement in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404 that “Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be.”

24 25

Wodrow v Commonwealth (1991) 105 FLR 278.

Wodrow v Commonwealth (1993) 45 FCR 52. Interestingly, Gillespie v Commonwealth (1991) 104 ACTR 1 was not cited by either Miles CJ or the Full Court.

[20.110]

20 Work Stress

679

constituted a failure to take reasonable care for the plaintiff’s safety, and that it was reasonably foreseeable that this was likely to result in the harm of which the plaintiff complained. However, on appeal the Full Court took the view that the minute was incapable of injuring an ordinary person, and that the defendant therefore owed no duty to do anything more or less by reason only of the possibility that the plaintiff might have been affected. Gallop and Ryan JJ were prepared to reach this conclusion either on the basis of lack of foreseeability, or on policy grounds, since “the current state of the law appears to be that foreseeability without more does not give rise to a duty not to cause psychiatric damage”.26 [20.100] The joint judgment of Gallop and Ryan JJ emphasised that this case was not in any way special, but was to be decided by applying the general principles of psychiatric injury cases. They said that the plaintiff was entitled to succeed if all the elements of negligence were made out to the requisite standard, notwithstanding that the harm suffered was purely psychological, referring to the leading High Court authorities on psychiatric injury.27 Specifically, they noted that what was required was foreseeability of psychiatric harm.

Walker v Northumberland County Council [20.110] The first case in which an employer was held liable in damages for psychiatric injury caused by work stress was an English case, Walker v Northumberland County Council,28 decided in 1994. This case built on the principles established by the early Australian authorities, but two earlier English decisions also helped to lay the foundations. In the first, Johnstone v Bloomsbury Health Authority,29 the issue of work stress arose in the context of a strike-out application and was bound up with contractual principles. The plaintiff was a junior hospital doctor whose contract of employment required him to work a 40-hour week and be on call for a further 48 hours. In some weeks he was required to work more than 88 hours, and became ill as a result. He sought, inter alia, a declaration that he should not be made to work more than 72 hours a week, and damages for the illness. The defendant sought to have parts of the plaintiff’s statement of claim struck out as an abuse of process. In the English Court of Appeal, Stuart-Smith LJ recognised that the defendant owed a duty to take reasonable care not to injure the plaintiff’s health, but also that the plaintiff was under a contractual duty to be available for a stated number of hours. In his view, the contractual duty could not prevail. If an employee was required to work such long hours that he 26

Wodrow v Commonwealth (1993) 45 FCR 52 at 76.

27

Namely Bunyan v Jordan (1937) 57 CLR 1; Chester v Waverley Corporation (1939) 62 CLR 1; Mount Isa Mines v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549. Gallop and Ryan JJ also referred to the then leading House of Lords case, McLoughlin v O’Brian [1983] 1 AC 410, and to the discussion in the first edition of this book: NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993).

28

Walker v Northumberland County Council [1995] ICR 702.

29

Johnstone v Bloomsbury Health Authority [1992] 1 QB 333.

680

Part IV: Relationship Cases

[20.120]

became exhausted and suffered an accident, it was no defence that he had agreed to work such hours: this was trite law and found expression in cases on the employer’s obligation to provide a safe system of work.30 The same applied in the present situation. Leggatt LJ disagreed, holding that the express contractual term should prevail. Sir Nicolas BrowneWilkinson VC agreed with Stuart-Smith LJ, on more restricted grounds: the employer in this case owed an obligation to take such care of the employee’s health as was consistent with his contractual undertaking. Accordingly, the defendant’s argument that parts of the statement of claim should be struck out was rejected. [20.120] In Petch v Customs and Excise Commissioners,31 the English Court of Appeal came much closer to the relevant issue because it was dealing with a claim for damages for negligence. The plaintiff, a civil servant who was well regarded by his superiors and had risen rapidly to the rank of assistant secretary, had a mental breakdown in 1974. On his return to duty he was transferred to another department but subsequently fell ill again and had to retire on medical grounds. He alleged that all this was the result of the initial breakdown that had been due to the pressures of his work imposed on him by the defendant. The defendant admitted that following the plaintiff’s return to work after the initial breakdown it was under an obligation to take reasonable care to ensure that the duties allotted to him did not damage his health. The court held that it had not been shown on the evidence that in 1974 the defendant was aware, or ought to have been aware, that the plaintiff was showing signs of impending breakdown, or that his workload carried a real risk of breakdown, and that when he returned to work it was not in breach of the admitted duty. The steps that had been taken, including transfer to another department, far from being negligent, were a sensible attempt to solve the problem. [20.130] The duty recognised in Johnstone v Bloomsbury Health Authority32 and admitted in Petch v Customs and Excise Commissioners33 was confirmed, and held to have been breached, in Walker v Northumberland County Council.34 The plaintiff was employed by the defendant local authority as a social services officer responsible for an area with an increasing population and a high proportion of childcare problems. Due to the caseload he carried, and the shortage of staff available to shoulder some of his burdens, in particular the chairing of case conferences, he suffered a nervous breakdown due to stress and was off work for three months. It was agreed that extra assistance would be provided when he 30

Citing, in particular, Wilson & Clyde Coal Co Ltd v English [1938] AC 57 at 67 per Lord Thankerton.

31

Petch v Customs and Excise Commissioners [1993] ICR 789.

32

Johnstone v Bloomsbury Health Authority [1992] 1 QB 333.

33

Petch v Customs and Excise Commissioners [1993] ICR 789.

34

Walker v Northumberland County Council [1995] ICR 702, noted by L Dolding and R Mullender (1996) 59 MLR 296.

[20.140]

20 Work Stress

681

returned to work, but this happened only for a limited period, and the plaintiff found himself not only catching up with the backlog of work that had accumulated during his absence but also carrying as big a load as before. He suffered a second mental breakdown six months later and had to stop work permanently. He claimed damages from the defendant for breach of the duty that it owed him as his employer to take reasonable steps to avoid exposing him to a health-endangering workload. Colman J held that on the facts it was not foreseeable prior to his initial illness that he might suffer a nervous breakdown, but once he returned to work after that illness the defendant ought to have foreseen that if he was exposed to the same workload there was a risk that he might suffer another nervous breakdown. By failing to provide additional assistance, it was in breach of the duty and liable for the damage suffered.35 [20.140] Colman J set the relevant duty in the context of the duties owed by employers to take care for the safety of their employees. He said: There has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause them psychiatric damage by the volume or character of the work which the employees are required to perform. It is clear law that an employer has a duty to provide his employee with a reasonably safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employee as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer’s duty of care or from the co-extensive implied term in the contract of employment.36

His Lordship recognised that the circumstances of such claims would often give rise to difficult foreseeability and causation problems, particularly so where the plaintiff held a responsible professional position, had a discretion as to where and how long he or she worked, and was motivated by a desire to succeed. This led him to ask when the employer’s duty to take protective steps arose, and what assumptions he was entitled to make about the employee’s resilience and stability — questions he answered by saying that once a duty of care had been established the standard of care required for the performance of that duty must be measured by the normal yardstick of reasonable conduct: 35

An appeal was settled on payment to the plaintiff of £175,000: see K Manji, “Occupational stress” (1996) 146 New LJ 1516. Note also Young v Post Office [2002] IRLR 660, a case which was very similar to Walker v Northumberland County Council [1995] ICR 702, in that the claimant had previously taken time off work for a stress-related illness, and returned only to suffer a recurrence. The defendant was held to be in breach of its duty of care, even though it had made arrangements to ensure that the claimant could return to work at his own pace, because these arrangements were not carried through. May LJ at [24] said that the case was not as strong as in Walker, where no special arrangements were made. For other similar cases see Cowley v Mersey Regional Ambulance NHS Trust [2001] 9 CL 161; Witham v Hastings & Rother NHS Trust (2002) 66 BMLR 20.

36

Walker v Northumberland County Council [1995] ICR 702 at 710.

682

Part IV: Relationship Cases

[20.150]

The law does not impose upon him the duty of an insurer against all injury or damage caused by him, however unlikely or unexpected and whatever the practical difficulties of guarding against it. It calls for no more than a reasonable response, what is reasonable being measured by the nature of the neighbourhood relationship, the magnitude of the risk of injury which was reasonably foreseeable, the seriousness of the consequence for the person to whom the duty is owed of the risk eventuating, and the cost and practicability of preventing the risk.37

[20.150] Though there was no direct discussion of whether the plaintiff’s illness amounted to a recognisable psychiatric illness, Colman J was clearly satisfied that it did. He said that the approach to reasonable foreseeability of the risk of “work-engendered psychiatric injury” was helpfully illustrated by the judgment of Miles CJ in Gillespie v Commonwealth,38 and quoted the passage from that judgment quoted at [20.60].39 His judgment emphasised the association between these cases and the suggested duty in the other line of employer cases that was subsequently recognised by the English Court of Appeal but rejected by the House of Lords;40 and yet it also clearly distinguished the work stress situation from that issue.

Australian cases [20.160] Australian courts, while they had begun to identify the applicable principles, had not up to this point made a finding of liability in a work stress case.41 However, the importance of work stress as an identifiable category of psychiatric injury claims was confirmed by a group of cases between 1998 and 2000, culminating in the decision of the New South Wales Court of Appeal in New South Wales v Seedsman,42 and Colman J’s judgment in Walker v Northumberland County Council43 played a key part in this process. The first of the series was Arnold v Midwest Radio Ltd,44 where the plaintiff claimed damages for a major depressive illness sustained as the result of a three-month period as the sales manager and features co-ordinator of the Townsville Independent News, caused by the treatment she received at the hands of Williams, the manager. She alleged that Williams treated the defendant’s employees with contempt, constantly swearing at them and using threats and abuse. 37

Walker v Northumberland County Council [1995] ICR 702 at 711.

38

Gillespie v Commonwealth (1991) 104 ACTR 1.

39

Gillespie v Commonwealth (1991) 104 ACTR 1 at 15: see Walker v Northumberland County Council [1995] ICR 702 at 712.

40

Even though Walker v Northumberland County Council [1995] ICR 702 was not relied on by Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (the only judge to dissent on the employment issue: see [19.350]).

41

With the exception of Miles CJ’s decision in Wodrow v Commonwealth (1991) 105 FLR 278, overturned by the Full Court: see [20.90]. 42

New South Wales v Seedsman (2000) 217 ALR 583.

43

Walker v Northumberland County Council [1995] ICR 702.

44

Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472.

[20.160]

20 Work Stress

683

He took particular exception to a homosexual employee, repeatedly calling him a “poofter”, sweeping everything off the top of his desk and throwing his chair across the room, saying that he did not like “poofters” sitting in it. More specifically with regard to the plaintiff, Williams asked her whether she could procure a person to commit a murder, and refused her request for leave to visit her husband’s dying father. The plaintiff’s action was based on the defendant’s breach of its duty to her as an employer, and also alleged vicarious liability for the actions of Williams. The defendant made what by 1998 was the rather surprising submission that no action lay for psychiatric injuries alone in the absence of some physical injury; Cullinane J, however, held that psychiatric damage was sufficient to found a cause of action in negligence, provided the other elements of the cause of action were present, and as authority for this proposition cited Gillespie v Commonwealth45 and Wodrow v Commonwealth,46 bracketing them with general psychiatric injury cases.47 He confirmed that the work stress cases were founded on general principles relating to the duties of employers, saying: I was referred to a number of cases in which actions had been brought by employees claiming to have suffered psychological or psychiatric damage as a result of being unnecessarily exposed to stressful situations in the course of their employment. Each of these is, it seems to me, no more than an illustration of the general principles which apply to an action brought by an employee against an employer for breach of the latter’s duty to the former. The duty of an employer to an employee is to take reasonable care to avoid injury to the employee. An employer who unreasonably exposes the plaintiff to a foreseeable risk of injury will commit a breach of that duty of care. An employer has a non-delegable duty to provide a safe system of work for an employee.48

Cullinane J held that the defendant was vicariously liable for the manager’s negligence and for failure to provide a safe system of work. Though it could not be said that the defendant was vicariously liable for the manager’s request to the plaintiff to find someone to carry out a murder, this could have been prevented by the implementation and enforcement of a proper system of management in dealings with employees. The judge was satisfied that the manager’s conduct was a substantive cause of the plaintiff’s illness. She could rely not only on his conduct directed towards her, but also on his conduct directed at others in her presence.49 45

Gillespie v Commonwealth (1991) 104 ACTR 1.

46

Wodrow v Commonwealth (1993) 45 FCR 52.

47

Bunyan v Jordan (1937) 57 CLR 1; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

48

Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472 at 65,065.

49

In this respect the case offers an interesting contrast with the facts of Bunyan v Jordan (1937) 57 CLR 1 (see [30.80]), which might now be decided differently.

684

Part IV: Relationship Cases

[20.170]

[20.170] A majority of the Queensland Court of Appeal reversed this holding,50 but only on evidential and factual grounds. According to McPherson JA and Williams J, the judge had been strongly influenced by a doctor’s opinion that the manager’s conduct was the cause of the plaintiff’s disorder, but had rejected some of the evidence on which that conclusion was based. Also, they opined that it was not possible to establish that a person of normal fortitude would have been psychiatrically impaired on the basis of the facts proved (as opposed to those not proved). It was noted that though in Gillespie v Commonwealth51 and Wodrow v Commonwealth52 the claims ultimately failed, in neither case was the conduct complained of as serious as in the present case. The appeal court judgment does not cast doubt on the general principles stated by Cullinane J in the court below: his judgment lends considerable strength to the argument that the work stress cases are simply an application of the employer’s general duty not to do anything that unnecessarily exposes an employee to the risk of psychiatric injury. [20.180] This principle was expressly accepted by Queensland first instance judges in the next two cases, which both concerned prison officers.53 In Gallagher v Queensland Corrective Services,54 the plaintiff, who was the operations manager of a correctional centre, suffered a depressive illness that he alleged was due to the stress of his position, and in particular overcrowding, inadequate staff, and an increase in the proportion of high security prisoners. His problems increased when he was asked to act as relieving general manager: after the first time he asked not to be given this responsibility again but nevertheless was persuaded to undertake it on two further occasions. Eventually he took sick leave after consulting a doctor about his psychological state. When he returned to work, there were further problems in the shape of the “Olsen Report” on management practices at the prison. He was unable to get access to the report through a freedom of information application, and had to initiate a grievance procedure. He also made allegations of nepotism and cronyism — important to him since other members of his family worked at the prison. Jones J found that the work events described by the plaintiff were the factors that led to the onset of his psychiatric condition, and said that such an injury was compensable if liability for its onset or exacerbation was established, citing Wodrow v Commonwealth55 and Windeyer J’s judgment in Mount Isa Mines Ltd v Pusey.56 The duty owed by the defendant was the duty of a reasonably prudent employer to 50

Midwest Radio Ltd v Arnold (1999) EOC 92-970.

51

Gillespie v Commonwealth (1991) 104 ACTR 1.

52

Wodrow v Commonwealth (1993) 45 FCR 52.

53

Note also Hind v Tasmania [1999] TASSC 133, where a claim for stress-related illness by a Tasmanian police officer failed on the facts.

54

Gallagher v Queensland Corrective Services [1998] QSC 150.

55

Wodrow v Commonwealth (1993) 45 FCR 52.

56

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

[20.190]

20 Work Stress

685

take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. He held that the defendant should have foreseen that these problems might cause the plaintiff to suffer a psychiatric illness; by taking no action it was in breach of its duty of care. The Queensland Court of Appeal reversed this decision on the ground that the judge’s decision on the breach and causation issues was inadequate.57 According to de Jersey CJ, Jones J had not grappled with the need for a reasonable, objectively based assessment of the foreseeability of the kind of injury the plaintiff suffered, involved in the defendant’s conduct; in particular, it was difficult to accept that an employer who conducted a correctional centre, knowing of the availability of counselling and other support services offering psychological and psychiatric care, should reasonably foresee a risk of injury to its managerial staff as a result of the kinds of circumstances in issue in this case. Further, the judge had wrongly assumed that it was sufficient for the plaintiff to attribute his condition to problems at work, rather than ascertaining whether there was in fact a causal relationship. However, the Court of Appeal accepted that the duty of care as outlined by Jones J was “uncontroversial”.58 [20.190] In Zammit v Queensland Corrective Services Commission,59 the plaintiff was employed as a custodial corrections officer in another Queensland correctional centre. He claimed to have suffered work-related stress disorder and depression as a result of his employer’s failure to establish and maintain a safe system and place of work, and to adequately prepare and instruct him in relation to the possible incidence of stress-related psychological disorder; and the creation of a dangerous and stressful environment in which he was required to work under bad management practices. He referred in particular to changes that took place and incidents that happened after Mr Olsen became general manager of the prison in 1990 — the same Mr Olsen who had previously been Mr Gallagher’s manager at another correctional centre. Muir J accepted medical evidence that the plaintiff was suffering from posttraumatic stress disorder. He said that the defendant, as the plaintiff’s employer, owed him the ordinary employer’s duty to take reasonable care to avoid exposing employees to unnecessary risk of injury. As the defendant conceded, this duty extended to psychiatric injury, and the principles to be applied to such injuries were no different from those applying to physical injuries. Muir J found the defendant liable in damages, and in this case there was no appeal. Though this appears to be 57

Queensland Corrective Services Commission v Gallagher [1998] QCA 426.

58

Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [14] per de Jersey CJ. Note also Hardy v Queensland Corrective Services Commission [2000] QSC 10, a case involving another officer at the same correctional centre. The plaintiff’s claim failed due to expiry of the limitation period, and also because the defendant was not in breach: though the plaintiff claimed to be suffering from depression due to work stress, he was not working excessively long hours, and still had time for a “managerial game of golf” on Thursday afternoons.

59

Zammit v Queensland Corrective Services Commission [1998] QSC 169.

686

Part IV: Relationship Cases

[20.200]

the first Australian case in which damages were awarded for work stress, its impact is reduced because the defendant admitted that the duty extended to psychiatric injury. However, Muir J made brief reference to leading cases such as Mount Isa Mines Ltd v Pusey,60 plus a brief mention of Wodrow v Commonwealth.61 [20.200] In contrast Sinnott v FJ Trousers Pty Ltd,62 a Victorian case, is particularly valuable for its full discussion of the duty issues in a work stress context. The plaintiff was a computer operations supervisor at the defendant’s factory, and sued for mental illness suffered during the course of his employment as a result of his employer’s negligence in requiring him to work long hours and do work he was not qualified to do, without heeding his requests for assistance or providing training in the safe performance of his duties. An application by the defendant to strike out the statement of claim was dismissed by Gillard J, who ruled that the claim was not untenable. Because this was a strike-out application, the argument concentrated on the issues of duty. It was conceded that a duty of care arose out of the employer–employee relationship, but the defendant argued that there was no liability in respect of mental illness unless it was consequent on physical injury or “nervous shock”. Gillard J described this as a “startling proposition”: Baldly stated it means that although an employer cannot break the body of his employee during the course of his employment, nevertheless he is permitted to break the mind at will irrespective of the circumstances. … It cannot be correct that an employer with full knowledge that the duties imposed upon an employee are causing him mental distress, pressure and anxiety which foreseeably could lead to a mental breakdown is entitled to pursue that course without being liable for the mental breakdown of his employee. What then is the basis for this startling proposition which defies logic, common sense and justice?63

The basis suggested by the defendant was the judgment of Brennan J in Jaensch v Coffey64 insisting that psychiatric injury had to be “shockinduced”, together with the House of Lords decision in White v Chief Constable of South Yorkshire Police65 holding that the Chief Constable was not liable to the police officers as his employees for the harm they suffered as a consequence of witnessing the tragic events at Hillsborough caused by his negligence. However, Gillard J held that Brennan J’s statement was not seeking to lay down a principle of general application, and had nothing to do with cases such as this: 60

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

61

Wodrow v Commonwealth (1993) 45 FCR 52.

62

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124.

63

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [39]–[42].

64

Jaensch v Coffey (1984) 155 CLR 549.

65

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[20.210]

20 Work Stress

687

In my opinion, the general statement of principle by Brennan J in Jaensch v Coffey has to be read in the context of the issue in that case, namely, the scope of the duty of care owed by a tort feasor to a secondary victim. In my opinion, it does not exclude a plaintiff such as the present plaintiff from recovering damages for purely mental illness consequent upon negligence by his employer.66

He supported this statement by reference to the sequence of Australian work stress cases discussed at [20.50]–[20.100] and [20.160]–[20.180],67 plus the English decisions in Petch v Customs and Excise Commissioners68 and Walker v Northumberland County Council,69 and he noted that Walker had been referred to without disapproval by the House of Lords in White. More than any previous decision, Gillard J’s judgment firmly identified the work stress cases as a separately identifiable category of psychiatric injury case and confirmed that rules such as the sudden shock rule that might be thought applicable in other contexts have no relevance here. [20.210] One month after the decision in Sinnott v FJ Trousers Pty Ltd,70 the New South Wales Court of Appeal in New South Wales v Seedsman71 finally confirmed that Australian law recognised the work stress cases as one particular category of case within the employer’s general duty to take reasonable care not to cause psychiatric injury to employees. The short judgment of Mason P, dealing specifically with the duty aspects, is of especial importance in this regard: though his Honour did not refer to Sinnott, he identified the essential nature of the duty in exactly the same way. Beth Seedsman was a police constable in the New South Wales Police between 1982 and 1997. She spent several years in the child mistreatment unit, where she had to deal with hundreds of badly abused children, and was then transferred to the Major Crime Squad, where she dealt with a number of sexual assault cases. She was also the victim of several incidents involving sexual harassment. All this had a gradual effect on her psyche: she began to experience flashbacks in 1994 and was diagnosed with post-traumatic stress disorder in 1995. She applied for a discharge, and brought an action claiming that her illness was caused by negligence on the part of the Police Service. Goldring DCJ found that her condition was the result of exposure during the course of her employment to crimes against children, and that the defendant had failed to provide a safe system of work in that it had not taken sufficient steps to protect her from the mental injuries that could result from exposure to these kinds of human tragedies. An appeal against this decision was dismissed by the 66

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [86]–[87].

67

Gillespie v Commonwealth (1991) 104 ACTR 1; Wodrow v Commonwealth (1993) 45 FCR 52; Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472; Queensland Corrective Services Commission v Gallagher [1998] QCA 426.

68

Petch v Customs and Excise Commissioners [1993] ICR 789.

69

Walker v Northumberland County Council [1995] ICR 702.

70

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124.

71

New South Wales v Seedsman (2000) 217 ALR 583.

688

Part IV: Relationship Cases

[20.220]

New South Wales Court of Appeal. Spigelman CJ, who gave the leading judgment, held that the trial judge had not misdirected himself on the applicable principles and that it was reasonably foreseeable that police work of the kind done by the plaintiff could cause psychiatric illness. He rejected a defence submission that in determining whether injuries of the kind suffered were foreseeable a distinction should be drawn between stress and psychiatric injury, saying that this was inconsistent with the principle of Mount Isa Mines Ltd v Pusey72 that what had to be foreseen was not any particular kind of condition but simply a recognisable psychiatric injury. Like the trial judge, he identified this case as falling into the work stress category. [20.220] Mason P agreed with the Chief Justice, but added a valuable discussion of the duty aspects. He said that, provided breach of duty and foreseeability of psychiatric harm could be established, a claim for pure psychiatric illness could succeed if brought by a person who could establish a duty of care independently based on breach of the employer’s duty of care. This proposition, he said, was illustrated by the work stress cases such as Walker v Northumberland County Council73 and Gillespie v Commonwealth,74 which showed that in this regard English and Australian law were the same. As far as Australian law was concerned, it was simply part of the established legal principles concerning the relationship of employer and employee. In so far as the House of Lords decision in White v Chief Constable of South Yorkshire Police75 had limited that general principle in psychiatric injury cases, it was accepted that English law was at variance with Australian law. In particular, even though in other areas of psychiatric damage law the courts might have adopted control devices requiring sudden shock and a normal standard of susceptibility,76 these were not prerequisites of a successful claim for pure psychiatric illness if brought by a person who could establish an independent duty of care, such as that owed by an employer to employees. So Mason P not only identified the work stress cases as part of the more general category of psychiatric injury cases based on the obligations of employers, but also (like Gillard J in Sinnott v FJ Trousers Pty Ltd77) confirmed that in such cases it is inappropriate and unnecessary to require prerequisites such as a sudden shock. Though Spigelman CJ and Meagher JA were silent on the sudden shock issue, there is no reason to suggest that they would have held a different view. Meagher JA clearly supported the approach taken by the other two judgments, and was decidedly sceptical about the 72

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

73

Walker v Northumberland County Council [1995] ICR 702.

74

Gillespie v Commonwealth (1991) 104 ACTR 1.

75

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

76

In Morgan v Tame (2000) 49 NSWLR 21, in another context, Mason P upheld the sudden shock requirement. The High Court subsequently held that neither sudden shock nor ordinary fortitude was an essential requirement in a psychiatric injury claim: Tame v New South Wales (2002) 211 CLR 317.

77

Sinnott v FJ Trousers Pty Ltd [2000] VSC 124.

[20.230]

20 Work Stress

689

English approach: “It is true that in England some rather difficult distinctions are drawn between the two types of injury, and the case law on the subject (culminating in [White]) does not inspire confidence in either the clarity or the purpose of such a distinction.”78 [20.230] In subsequent cases, Australian courts generally adopted the principles of the earlier work stress cases and accepted New South Wales v Seedsman79 as laying down the correct principles: for example, Seedsman was expressly applied by the New South Wales Court of Appeal in Mannall v New South Wales.80 The principles affirmed by Seedsman were also to the fore in the rather unsatisfactory case of O’Leary v Oolong Aboriginal Corporation,81 where the plaintiff, who was employed as a book-keeper by a residential drug and rehabilitation centre specialising in treating members of the Aboriginal community, returned from leave to find his computer and books of account gone and his desk moved out into the verandah, and thereafter was not allowed to sign cheques. He was not given any explanation, but other employees were aware that he was suspected of misappropriating funds. After four months of enduring this situation, he resigned. A District Court judge held that the possibility that if the defendant was careless in the way it dealt with the plaintiff’s situation “it would develop into the psychological condition it did” was “far too remote”. On appeal, Spigelman CJ and Sheller JA held that the judge had correctly found that psychiatric injury, as distinct from non-compensable stress, was not foreseeable. McColl JA disagreed. The judgments are mainly concerned with attempting to interpret the rather unsatisfactory and confusing judgment of the court below. McColl JA’s dissenting judgment was the only one that analysed the work stress cases in any detail. It is noteworthy that her Honour said that the law in Australia was the same as in the most recent English authorities.82 There is no real suggestion that the majority judges were not prepared to endorse the position reached in the earlier cases, although two passages in the judgment of Spigelman CJ — one suggesting that the trial judge had left unexplored issues such as “coherence in the law” and another that he had confused other duties arising in the employment context, such as the obligation to afford natural justice or fair dealing, with the duty of 78

New South Wales v Seedsman (2000) 217 ALR 583 at [173].

79

New South Wales v Seedsman (2000) 217 ALR 583.

80

Mannall v New South Wales [2001] NSWCA 327, ordering a new trial: for further proceedings, see New South Wales v Mannall [2005] NSWCA 367, noted by D Butler (2006) 14 TLJ 120. Other work stress cases decided subsequent to New South Wales v Seedsman (2000) 217 ALR 583 included Allen v Western Australia [2000] WASCA 221; State Rail Authority of New South Wales v Reodica [2000] NSWCA 371; Finn v Queensland Ambulance Service [2000] QSC 472; Kelly v Northern Meat Holdings Pty Ltd [2001] QSC 14; New South Wales v Coffey [2002] NSWCA 361; note also Russo v Carpentaria Transport Pty Ltd [2000] QSC 083.

81 82

O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747.

O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747 at [121], referring not only to Walker v Northumberland County Council [1995] ICR 702 but also to Hatton v Sutherland [2002] ICR 613: see [20.600]–[20.610].

690

Part IV: Relationship Cases

[20.240]

care83 — could perhaps be interpreted as opening a debate on whether there should be additional policy restrictions.

English cases [20.240] In England, following the decision in Walker v Northumberland County Council,84 case law steadily accumulated over the next few years. Though Walker and the other early cases involved stress due to overwork, the principles were clearly capable of application to other situations, as shown by two cases involving police defendants.85 In Leach v Chief Constable of Gloucestershire Constabulary,86 the police were investigating the murders of 12 young women at what became known as the “House of Horrors” in Cheltenham. The police wished to interview Fred West, the suspected perpetrator. Because he was considered to be mentally disordered under the relevant Code of Practice and needed to have an appropriate adult present, the police asked the plaintiff, a voluntary worker with juveniles, to perform this function. She was not told the nature of the case, and had not done such work before, except with juveniles. She had to sign a confidentiality agreement. She sat through many interviews, accompanied West to the scene of the murders, and spent some time locked in a cell with him. She claimed that as a result she suffered post-traumatic stress disorder, psychological injury and a stroke, and sued the police for negligently exposing her to the situation that caused these disorders.87 She also claimed that she should have been offered counselling. The defendant argued that the independent nature of the plaintiff’s role precluded any duty of care arising in these circumstances, and was successful at first instance in having the claim struck out. The English Court of Appeal by majority rejected the notion that the police owed a duty of care to those performing the function of an appropriate adult to protect them from mental harm, but allowed the claim to proceed to trial on the issue of failure to provide counselling services. The judgments are mainly concerned with applying the English three-stage test of duty and inquiring whether it was fair, just and reasonable that the police should owe a duty in such circumstances — an issue on which the dissenting judgment of Pill LJ, pointing out that the issue was not so much that the plaintiff was playing a role in the administration of justice, but that she was a member of the public who 83

O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747 at [15], [23].

84

Walker v Northumberland County Council [1995] ICR 702.

85

The same can be said of some of the Australian cases, eg Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472 and O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747. Note also Webberley v Attorney General (unreported, Tas SC, Nos 90 and 1738 of 1995, 26 April 1996) where a prison officer unsuccessfully sought an extension of time to proceed with an action against the Attorney General and another prison officer in respect of sexual harassment by that officer. 86 87

Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421.

Note also Armstrong v Secretary of State for the Home Office (unreported, Eng QBD, 8 October 2001), a work stress claim by a prison officer involved in the supervision of Rosemary West, wife of Fred West, also charged with involvement in the murders.

[20.250]

20 Work Stress

691

had been asked by the police to assist them, seems more convincing than those of the majority. This issue aside, the question was what kind of case it was. There is no clear answer in the judgment of Brooke LJ: he pointed out that most previous psychiatric injury cases had involved the plaintiff’s own imperilment or the imperilment or injury of a third party, and that this was one of a less familiar line of cases that involved other issues, including stress at work, but did not really identify the precise issue. Henry LJ, however, saw the case as much more clearly involving the liability of an employer. Referring to Mount Isa Mines Ltd v Pusey,88 he said: That was of course a case involving a horrific accident, but the employer may be equally liable for psychiatric damage caused by the employee’s work-load where there is no such shocking trigger event – see Walker v Northumberland County Council.89

He also noted that the employer’s duty might be based on a failure to provide counselling services.90 It is submitted that Henry LJ’s approach was clearly the correct one. The plaintiff was subjected to considerable stress not just on an isolated occasion, but over an extended period. It was surely foreseeable that exposure of an untrained person to the pressures of such a role, in such an exceptional and notorious case — added to by not being able to discuss it with others — might have psychiatric consequences. The provision of counselling was surely an obvious way of minimising any potential after-effects. The case proceeded on the issue of whether it was negligent not to offer such a facility. [20.250] The second case was Waters v Commissioner of Police of the Metropolis.91 Here the plaintiff, a female police officer, had been sexually assaulted by a fellow police officer in her police residential accommodation when off duty. She alleged that she had complained to her sergeant and other officers, but that there had been no proper investigation: instead, she had been subjected to a campaign of victimisation and harassment by other officers because by complaining she had broken a workplace taboo. She sued the Commissioner of Police in negligence, alleging that he had failed to deal properly with her complaint, and had allowed the acts of victimisation and harassment to take place, causing her to suffer psychiatric injury. The Commissioner applied to strike out the statement of claim as frivolous and vexatious or an abuse of process. The House of Lords allowed her appeal against the granting of this application. The two major judgments — those of Lord Slynn of Hadley and Lord Hutton — were agreed that the appellant was suing as an employee. The technical distinction that police constables did not have an ordinary contract of 88

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383: see [19.60]–[19.90].

89

Walker v Northumberland County Council [1999] 1 WLR 1421 at 1442.

90

Referring to Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271.

91

Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934.

692

Part IV: Relationship Cases

[20.260]

employment with the Commissioner or anyone else was irrelevant for this purpose, since it was clear that they owed duties analogous to those of employees. Lord Hutton said: I consider that a person employed under an ordinary contract of employment can have a valid cause of action in negligence against her employer if the employer fails to protect her against victimisation and harassment which causes physical or psychiatric injury. This duty arises both under the contract of employment and under the common law principles of negligence.92

To support this proposition he cited a statement of Lord Steyn in White v Chief Constable of South Yorkshire Police.93 Lord Slynn made statements to the same effect, and emphasised a particular feature of this case — that “the appellant does not rely simply on individual acts taken separately; she attaches importance to the cumulative effect of the acts particularly in regard to the causation of psychiatric injury which she alleges”.94 The cause of action therefore clearly falls into the work stress category of case. The judgments were mainly concerned with the issue whether the duty of care that would otherwise arise should be ruled out for policy reasons — especially given that the courts had accepted that it was inappropriate for police to be sued for negligence in the criminal investigation process.95 However, their Lordships pinpointed the distinction between such cases and the present situation: the complaint was not simply of failure to investigate an assault, but went further, and in any case the appellant was not suing as a member of the public, but as an employee.

RESTRICTION IN AUSTRALIA: KOEHLER V CEREBOS (AUSTRALIA) LTD [20.260] Spigelman CJ’s reference to “coherence in the law” in O’Leary v Oolong Aboriginal Corporation96 may have been a forewarning of things to come. In Koehler v Cerebos (Australia) Ltd,97 the High Court of Australia adopted a wholly new approach to work stress claims, one that places much more emphasis on the content of the duty and its relationship with the employee’s contract of employment — a line of inquiry that was not pursued in previous Australian cases and has been almost wholly absent in England.98 Koehler means that it is now much more difficult for Australian workers to claim for psychiatric injury caused by stress at work, at least in cases where the stress was caused by being given too much work to do. 92

Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934 at 942.

93

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 497.

94

Waters v Commissioner of Police of the Metropolis [2000] 4 All ER 934 at 936–937.

95

See Hill v Chief Constable of West Yorkshire [1989] AC 53 and other cases cited at [21.420].

96

O’Leary v Oolong Aboriginal Corporation (2004) Aust Torts Rep 81-747: see [20.230].

97

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, noted by P Handford (2005) 13 Tort L Rev 159; G Chan (2005) 28 UNSWLJ 821; M Lunney (2005) 2 UNELJ 75; D Rolph (2005) 18 AJLL 344.

98

See [20.660].

[20.270]

20 Work Stress

693

[20.270] Mrs Koehler had been a sales representative negotiating sales of the defendant’s products to independent supermarkets, but was made redundant. Instead she was offered a job setting up displays in supermarkets, working three days a week. When she saw the list of stores she was required to visit, she immediately notified her superiors that it would be impossible to cover them all working three days a week, and that she would either have to have help, or more time to do the work. She repeated these complaints on a number of occasions, both orally and in writing, but there was no reduction in her duties. After five months, she resigned. She went to see her doctor, complaining of aches and pains and difficulty in moving as a result of lifting heavy cartons, but the doctor said that she was suffering from a stress-related condition, and over the next few months this developed into a moderately severe depressive illness. At first instance a Commissioner of the District Court of Western Australia held that the defendant, with its knowledge of the industry and the plaintiff’s workload, should have foreseen that if it did not review its operation and her workload, there was a risk of injury of the kind that occurred. However, on appeal by the defendant to the Full Court it was held that the Commissioner had not properly determined this fundamental issue.99 Hasluck J, giving the judgment of the court, pointed out that Mrs Koehler had not made any specific complaint prior to ceasing work that any form of physical or psychological injury was likely to occur: I consider that the crucial finding made by the learned Commissioner is flawed. To my mind, in the absence of external signs of distress or potential injury a reasonable person in the position of the appellant could not have foreseen that the respondent was exposed to a risk of injury as a consequence of her duties as a merchandiser. The presence of complaints about the workload may have suggested to a reasonable employer that remedial action was required in order to avert an industrial dispute but on the evidence in this case the nature of the complaints was not enough to alert a reasonable employer to the possibility of injury.100

This approach seemed to be out of line with previous cases, Australian and English, which had always emphasised the general foreseeability principle. Hasluck J referred to the decision of the English Court of Appeal in Hatton v Sutherland,101 noting that the court had held that there were no specific control mechanisms applying to work stress claims, and that the question was simply whether this kind of harm to this particular employee was reasonably foreseeable. He also observed that Hale LJ had said that harm to health may sometimes be foreseeable without an express warning. Yet he then made a ruling that seemed inconsistent with the English Court of Appeal’s approach, one that suggested that there can be no liability for negligently causing psychiatric injury to an employee through work stress unless the employee makes a very specific kind of 99

Cerebos (Australia) Ltd v Koehler [2003] WASCA 322, noted by P Handford (2004) 12 Tort L Rev 126. 100

Cerebos (Australia) Ltd v Koehler [2003] WASCA 322 at [75].

101

Hatton v Sutherland [2002] ICR 613.

694

Part IV: Relationship Cases

[20.280]

complaint. In an attempt to have the first instance decision restored, Mrs Koehler obtained special leave to appeal to the High Court. [20.280] The High Court dismissed the appeal. In a judgment concurred in by four of the five sitting judges,102 it was confirmed that the Full Court was right to conclude that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the employee. Given the nature of Mrs Koehler’s complaints, which related entirely to the physical problem of getting her work done in the time available, and gave no suggestion that the difficulties she was experiencing were affecting her health, her employers had no reason to suspect that she was at risk of psychiatric injury.103 There was no indication of any particular vulnerability on Mrs Koehler’s part that might have affected the position.104 It might be thought that this is a somewhat inflexible application of the foreseeability test. If the employee complains that it is physically impossible to do the work he or she is being required to do in the time given to do it, and the employer offers no relief but simply requires the employee to keep going month after month (or resign), are there no circumstances in which the employer might be expected to deduce that some sort of breakdown in physical or mental health may be on the cards, despite the absence of an express warning? The employee who stoically battles on, or who makes some sort of reference to his or her workload but is reluctant to disclose personal medical details, will be in a worse position than someone who pours out a litany of problems at the earliest opportunity. [20.290] Though the failure to foresee the risk of psychiatric injury was the reason why the High Court ultimately dismissed the appeal,105 of much greater significance was the new approach outlined by the High Court to the duty of care. Hitherto, the duty had simply been said to be part of the employer’s obligation to provide a safe workplace, safe tools and equipment, and a safe system of work. Courts then proceeded to what Hale LJ in Hatton v Sutherland106 had called the “threshold question”: whether this kind of harm to this particular employee was foreseeable. The appellant had submitted that this was the only question that needed to be considered. The High Court, however, said that the proper starting point was to identify the content of the employer’s duty of care: 102

McHugh, Gummow, Hayne and Heydon JJ. Callinan J delivered a separate concurring judgment. References are to the joint judgment unless otherwise stated.

103 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [27]. The Full Court had held that there had to be a number of specific findings on the evidence before liability was established: Cerebos (Australia) Ltd v Koehler [2003] WASCA 322 at [77]–[80] per Hasluck J, but only the first of these — that there had to be external signs of distress or injury, or a specific complaint by the employee of the likelihood of psychiatric harm — can be said to have been upheld by the High Court. 104

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [41].

105

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [40].

106

Hatton v Sutherland [2002] ICR 613 at [23].

[20.300]

20 Work Stress

695

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation.) Consideration of these obligations will reveal a number of questions that bear upon whether, as was the appellant’s case here, an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee. At least the following questions are raised by the contention that an employer’s duty may require the employer to modify the employee’s work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee’s pay be reduced if the employee’s work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee’s duties are fixed in a contract of employment from those that arise where an employee’s duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general antidiscrimination legislation?107

The court accordingly rejected the proposition that the “threshold question” was the only question that needed to be considered.108 As Hale LJ had noted in Hatton v Sutherland,109 various other factors were likely to be relevant, including the nature and extent of the work being done by the employee, and signs from the employee, whether in the form of express warnings or implied from frequent or prolonged absences from work.110 [20.300] Given that the content of the duty of care was not examined in any detail in the courts below, the High Court suggested that it was sufficient for the purposes of the present case to note that Mrs Koehler’s agreement to undertake the work assigned to her ran contrary to the contention that the employer ought reasonably to have appreciated that

107

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [21]. Compare the approach of the court in Joynson v Queensland [2004] QSC 154, very similar to Koehler on its facts in that the plaintiff’s problems were caused by the amount of work she had to do, though somewhat different in that she gave no indication of the difficulties she was having in coping with it. The court applied the foreseeability test laid down in the earlier cases, coupled with references to Tame v New South Wales (2002) 211 CLR 317. There was no reference to her employment contract to determine what she had agreed to do. 108

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [23].

109

Hatton v Sutherland [2002] ICR 613 at [26]–[28].

110

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [24].

696

Part IV: Relationship Cases

[20.310]

the performance of those tasks posed a risk to her psychiatric health.111 However, in other cases the agreement to perform the work might have greater significance: An employer may not be liable for psychiatric injury to an employee brought about by the employee’s performance of the duties originally stipulated in the contract of employment. In such a case, notions of “overwork”, “excessive work”, or the like have meaning only if they appeal to some external standard. … Yet the parties have made a contract of employment that, by hypothesis, departs from that standard. Insistence upon performance of a contract cannot be in breach of a duty of care.112

The argument that an employee’s contractual obligations should be read subject to a qualification that performance of the obligations was excused if it went beyond what was required by some external standard, or was or might be injurious to health, “would invite attention to fundamental questions of legal coherence”113 — one of the High Court’s current lodestars in determining the existence of a duty of care.114 Developing the law of negligence in a way that inhibited freedom of contract in the employment field would be a big step to take. [20.310] The court also referred to the ruling in Tame v New South Wales115 that “normal fortitude” was not a precondition to liability for psychiatric injury, and said it was not to be reintroduced into the employer–employee field.116 Though it might be right to say as a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress, it was a much greater step to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work.117 [20.320] Since the employer’s duty was owed to each particular employee, this invited attention to the nature and extent of the work being done, and signs given by the employee concerned.118 Seeking to read the contract as subject to a qualification that would excuse performance if it was or might be injurious to psychiatric health encountered two difficulties: First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify 111

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [25], [28].

112

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [29].

113

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [31].

114

See Sullivan v Moody (2001) 207 CLR 562 at [55] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ, discussed at [5.210].

115

Tame v New South Wales (2002) 211 CLR 317: see [8.170]–[8.180].

116

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [33].

117

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [34].

118

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [35].

[20.330]

20 Work Stress

697

the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.119

[20.330] The High Court’s newfound focus on the content of the duty of care can be traced to the speech of Lord Rodger of Earlsferry in Barber v Somerset County Council,120 an appeal to the House of Lords by one of the four appellants whose cases were considered by the English Court of Appeal in Hatton v Sutherland.121 Lord Rodger referred to the contract between Mr Barber and the council, which incorporated general conditions relating to the employment of teachers, and said that in determining what steps the Council should have taken to provide Mr Barber with assistance, insufficient attention had been paid to the terms of the contract.122 Given that the demands made on Mr Barber were not excessive in themselves, but only because of some factor in his personality that made him more vulnerable to developing a mental illness as a result of work stress, the issue was what steps the council had to take when by reason of this vulnerability Mr Barber was liable to suffer material injury to his mental health if he carried out his duties as stipulated in his contract and was paid his salary. Lord Rodger said: [W]hat matters is the view that an employer can be under a duty of care to provide an employee with assistance, of uncertain scope and duration, to enable him to perform his contractual duties. That view also lies at the heart of the judge’s perception of the council’s duty of care in this case. Mr Barber would be at work, drawing his normal pay but doing less than his contractual duties – the council being obliged to provide him with assistance to top up the deficit. It is easy to see that in practice, colleagues would often rally round to help a teacher when he returned after being off sick. And they might well do so at other times when they felt that, perhaps because of a family illness, a colleague was going through a difficult patch. No doubt, a head teacher would try to create an atmosphere that would be conducive to such mutual assistance. But it is rather a different thing to say that the council’s duty of reasonable care to an employee requires them to provide him with assistance for an indefinite period even to the extent of employing a supply teacher so that he can do the amount of work he can cope with, but less than the amount for which he is being paid in terms of his contract. The difficulty of framing an implied term to that effect and reading it into a contract of employment is obvious.123

119

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [36] (italics in original).

120

Barber v Somerset County Council [2004] ICR 457: see [20.620].

121

Hatton v Sutherland [2002] ICR 613.

122

Until Lord Rodger’s judgment in this case, the only suggestion that contract had a separate role to play was in Leggatt LJ’s dissenting judgment in Johnstone v Bloomsbury Health Authority [1992] 1 QB 333: see [20.110].

123

Barber v Somerset County Council [2004] ICR 457 at [31]–[32].

698

Part IV: Relationship Cases

[20.340]

Lord Rodger concluded that the introduction of a tortious duty of reasonable care on the employer to provide such assistance did not sit easily with the contractual arrangements in such cases: When the contractual position, including the implied duty of trust and confidence, is explored fully along with the relevant statutory framework, your Lordships may be able to give appropriate content to the duty of reasonable care upon which employees, such as Mr Barber, seek to rely. But the interrelationship of any such tortious duty with the parties’ duties under the contract of employment has not been examined in any depth in the cases to which we were referred and was not analysed in this appeal. For that reason I would not wish to express any view on the content of the council’s duty of care in this case.124

[20.340] Like Lord Rodger in Barber v Somerset County Council,125 the High Court in Koehler v Cerebos (Australia) Ltd126 stopped short of deciding the case on the basis that Mrs Koehler’s agreement to perform the duties was conclusive against her claim, saying that “the identification of the duties for which the parties stipulated would require much closer attention to the content of the contractual relationship between them than was given in the evidence and argument in the courts below”.127 However, it is clear that the High Court would have been prepared to justify its decision on the ground that Mrs Koehler had agreed to perform the duties that were the cause of her injury. Her agreement to undertake the work ran contrary to the contention that the employer ought reasonably to have appreciated that the performance of the task posed a risk of injury to her mental health, and was not consistent with harbouring, let alone expressing, any such fears. [20.350] As a result of the High Court’s decision in Koehler v Cerebos (Australia) Ltd,128 courts in work stress claims have had to give much closer attention to the terms of the contract, and claimants have found it much harder to establish a duty of care if it is inconsistent with the terms of their contract of employment. There are some particular situations where the situation may well be different: one, mentioned in Koehler,129 is where the employer is entitled to vary the stipulated duties and does so; another may be where the employee does more than required of him or her by the contract of employment. However, where stress and consequent psychiatric injury result from the amount of work the employee is required to perform as part of his or her ordinary duties, it will be difficult to overcome the argument that this is what the employee agreed to do. Even in cases like Walker v Northumberland County 124

Barber v Somerset County Council [2004] ICR 457 at [35]. The importance of Lord Rodger’s views on the contractual position is highlighted in a note by W Njoya (2005) 121 LQR 33. 125

Barber v Somerset County Council [2004] ICR 457.

126

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

127

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [40].

128

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

129

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [37].

[20.380]

20 Work Stress

699

Council,130 where it was held that the risk of psychiatric injury is clearly foreseeable once the employee has suffered one breakdown in health due to an intolerable workload and is then required to come back and work under the same conditions, the logical inference from the approach adopted by the High Court might be that Mr Walker had agreed to perform his duties under his contract of employment, and if he could not carry out those duties he had the option of resigning. Even if Australian courts stop short of taking such a step, employees such as Mrs Koehler have little chance of successfully complaining: even putting to one side the issue of whether psychiatric injury was foreseeable in the circumstances, in the light of what she either said or did not say to management, the answer will always be that this was what she agreed to do. [20.360] The High Court’s focus on the content of the duty of care and its relationship with the contract between the parties might be thought to have less relevance where the claim is based on harassment, victimisation or bullying by other employees rather than overwork. However, 10 years’ experience of the effect of Koehler v Cerebos (Australia) Ltd131 on Australian work stress jurisprudence shows that considerations brought to the fore in this case form the basis of the inquiry in all kinds of work stress cases.

THE CURRENT AUSTRALIAN APPROACH [20.370] This section reviews the issues that are examined in the current Australian case law on psychiatric injury caused by work stress. The influence of the High Court’s judgment in Koehler v Cerebos (Australia) Ltd132 is clearly evident. A number of the leading cases contain helpful analyses of the various elements of liability.133

Duty of care [20.380] The employer’s duty of care in work stress cases is an aspect of the general, non-delegable, duty of care that the employer owes to employees to take reasonable care for their safety, specifically in providing a safe place of work, safe plant and equipment, safe 130

Walker v Northumberland County Council [1995] ICR 702.

131

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

132

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

133

See eg Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; S v New South Wales [2009] NSWCA 164; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42; Reeves v New South Wales [2010] NSWSC 611; Taylor v Haileybury [2013] VSC 58; Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133; Swan v Monash Law Book Co-operative [2013] VSC 326; AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 (at [18]–[38] per McMillan J); Doulis v Victoria (2014) Aust Torts Rep 82-177; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Woolworths Ltd v Perrins [2015] QCA 207. For an analysis of the judgment of McMillan J in AZ v The Age (No 1), see P Handford, “Liability for Work Stress: Koehler Ten Years On” (2015) 39(2) UWAL Rev 150.

700

Part IV: Relationship Cases

[20.390]

fellow-employees and a safe system of work.134 In the words of Mason P in New South Wales v Seedsman,135 “The employment relationship is one of the settled categories where a duty of care has never been in issue. So clear is the duty that it is non-delegable.” The leading statement of this duty by the High Court in Czatyrko v Edith Cowan University136 (a case decided on the same day as Koehler v Cerebos (Australia) Ltd137) is regularly cited in work stress cases,138 courts noting that it is now well-established that an employer’s duty extends to taking reasonable steps to prevent its employees from suffering psychiatric harm, as demonstrated by Koehler and other cases. In cases involving police officers, while technically the officer is not an employee of the police commissioner or anyone else, for the purposes of work stress liability the relationship has been considered to be analogous to employment.139 [20.390] Because the employee is employed under a contract of employment, it is possible in principle for an action for breach of the employer’s duties to be based on the implied terms of the contract instead of or in addition to negligence.140 It has been suggested that it may not matter whether the action is brought in tort or contract,141 but issues may arise where the difference becomes important, for example, if the contractual limitation period has expired. However, experience suggests that few claimants pursue the contractual alternative. Goldman Sachs JB Were Services Pty Ltd v Nikolich142 was an exceptional case because the claim was based on contract and not in tort. The trial judge found that there was an express term of the contract relating to harassment and 134

This means that general duty issues of the kind aired in Sullivan v Moody (2001) 207 CLR 562 are rarely discussed in work stress cases, though note the High Court’s reference to “fundamental issues of legal coherence” in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [31], and see Reeves v New South Wales [2010] NSWSC 611 at [340]–[344] per Schmidt J.

135

New South Wales v Seedsman (2000) 217 ALR 583 at [162].

136

Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12] per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ.

137

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

138

See eg New South Wales v Mannall [2005] NSWCA 367 at [7] per Mason P; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [27] per Spigelman CJ; S v New South Wales [2009] NSWCA 164 at [58] per Macfarlan JA; Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133 at [159] per Osborn JA; AZ v The Age (No 1) [2013] VSC 335 at [18] per McMillan J. For earlier affirmations of the duty see Wodrow v Commonwealth (1993) 45 FCR 52 at 80 per Gallop and Ryan JJ; Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472 at 65,065 per Cullinane J; Sinnott v FJ Trousers Pty Ltd [2000] VSC 124 at [33]–[34] per Gillard J; New South Wales v Seedsman (2000) 217 ALR 583 at [123] per Spigelman CJ, at [159] per Mason P. 139

See eg New South Wales v Fahy (2007) 232 CLR 486 at [18]–[28] per Gummow and Hayne JJ, at [93]–[98] per Kirby J; S v New South Wales [2009] NSWCA 164 at [59] per Macfarlan JA; Doherty v New South Wales [2010] NSWSC 450 at [150] per Price J.

140 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 recognised the potential for the terms of the contract to limit the ambit of the negligence claim: see [20.290]–[20.350]. 141

Wodrow v Commonwealth (1991) 105 FLR 278 at 285 per Miles CJ; note also Hatton v Sutherland [2002] ICR 613 at [21] per Hale LJ: see [18.160].

142

Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62.

[20.410]

20 Work Stress

701

grievance procedures, but this was rejected on appeal, though the Full Federal Court did conclude that the defendant was in breach of an obligation to take every practicable step to provide and maintain a safe and healthy work environment. There are other cases where claimants have relied on an implied term of the contract in addition to negligence, but the implied term arguments have generally been unsuccessful.143 Given that the High Court has now rejected the notion that there is a general implied term of mutual trust and confidence in employment contracts,144 it seems there is little to be gained from attempting to found a work stress claim on contract rather than tort. [20.400] In some cases, there has been an alternative claim that the employer is vicariously liable for the negligence of other employees resulting in the plaintiff suffering stress,145 and in such cases it has sometimes been suggested that the fellow-employee himself or herself is in breach of a duty of care to the victim of stress-induced injury, by engaging in conduct such as harassment or bullying.146 In Nationwide News Pty Ltd v Naidu,147 the plaintiff was employed by Independent Security Services (ISS) as a security guard, working under contract at the premises of Nationwide News under the direct supervision of Chaloner, Nationwide’s fire and safety officer, who subjected the plaintiff to “brutal, demeaning and unrelenting” racial abuse, bullying and harassment. A majority of the New South Wales Court of Appeal (Spigelman CJ and Basten JA) held that ISS were not vicariously liable, because on the facts it did not have, and should not have had, the knowledge that would give rise to a reasonably foreseeable risk of psychiatric harm; however, the court was unanimous in holding that Nationwide, which given the relationship between the parties had in effect become a surrogate employer, was vicariously liable.148 [20.410] An interesting case where the work stress issues were played out in the background of a different kind of claim was Green v Berry,149 143

Eg Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 (no scope for suggested implied term); Larner v George Weston Foods Ltd [2014] VSCA 62 (most of the suggested implied terms were rejected). In Doulis v Victoria (2014) Aust Torts Rep 82-177 there was an allegation of breach of contract as well as negligence, but no separate arguments on contract were pursued.

144

Commonwealth Bank of Australia v Barker (2014) 312 ALR 356.

145

See eg Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472; New South Wales v Jeffery (2000) Aust Torts Rep 81-580.

146

Webberley v Attorney General (unreported, Tas SC, Nos 90 and 1738 of 1995, 26 April 1996); New South Wales v Jeffery (2000) Aust Torts Rep 81-580. 147

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471. See I Freckelton, “Employers’ Liability for Bullying-Induced Psychiatric Injury” (2008) 16 JLM 9. 148

Spigelman CJ and Beazley JA went further, holding that Nationwide was directly liable because Chaloner was the mind and will of Nationwide in the management of its security requirements. Spigelman CJ and Basten JA also considered the potential liability of Nationwide and Chaloner under Wilkinson v Downton [1897] 2 QB 57: see [30.150].

149

Green v Berry [2000] QCA 133.

702

Part IV: Relationship Cases

[20.420]

where the plaintiff sued his solicitor for negligence in failing to institute proceedings against his former employer for post-traumatic stress disorder resulting from work-related incidents and failure to provide counselling or treatment.150 Another case on the edge of the present discussion is New South Wales v Paige,151 where the plaintiff, a high school principal, suffered psychiatric injury as a result of the actions of his employer who transferred him following complaints about his handling of allegations of sexual misconduct by a teacher on his staff. However, the issues involved were much more closely related to those arising where public authorities have to investigate complaints of sexual abuse of children and in the process parents under suspicion suffer psychiatric injury.152 The New South Wales Court of Appeal had to determine whether it was appropriate to impose a duty of care in this novel situation. Given the importance of coherence in the law, including the need for compatibility with the relevant statutory scheme governing educational issues, and consistency with employment law and administrative law, it was decided that it was inappropriate to impose a duty of care.153 A third example is Rawlings v Rawlings,154 where the plaintiff was employed by his parents in a building business that suffered financial collapse. The plaintiff claimed that he suffered a depressive disorder as a result of being directed by his mother to undertake work for which he had neither training nor experience, including trying to sort out the company’s financial affairs after his father had had a mental breakdown. Dixon J held that this work was undertaken as part of a family relationship rather than under a contract of employment.155 [20.420] In some jurisdictions, the Civil Liability Acts now contain statutory statements of the duty of care in cases involving mental harm. However, in some jurisdictions the Acts do not apply to workplace injuries.156 In one case where the defendant called in aid s 32 of the Civil Liability Act 2002 (NSW), it was noted that with one exception, the 150

See also Dickson v Creevey [2001] QSC 340.

151

New South Wales v Paige (2002) Aust Torts Rep 81-676.

152

See [21.310]–[21.320].

153

A somewhat similar fringe problem arose in New South Wales v Napier [2002] NSWCA 402, where the court had to determine whether the State of New South Wales and a company which operated a prison on its behalf were liable for psychiatric injury caused by work stress suffered by the employee of independent contractors conducting operations within the prison.

154

Rawlings v Rawlings [2015] VSC 171.

155

Note also an English example: in Nadeem v Shell Oil Products Ltd [2014] EWHC 4664 (QB), the claimant operated petrol stations for the defendant under a retail business agreement and claimed in respect of ill-treatment by the defendant’s employees. It was held that this was not a contract of employment, but an ordinary business deal, and the defendant did not owe any relevant duty of care.

156 See [2.420]. This point was not appreciated by the trial judge in Miskovic v Stryke Corporation Pty Ltd [2011] NSWCA 369. In Christos v Curtin University of Technology (No 2) [2015] WASC 72, it was not necessary to decide whether the statutory provisions applied: at [631] per McKechnie J.

[20.440]

20 Work Stress

703

circumstances listed in s 32(2) were remote from the facts of the case. There was no sudden shock, no witnessing of another person being killed, injured or put in peril, and no close relationship with any such person; the existence of an employment relationship between plaintiff and defendant was the only listed factor to be satisfied.157 This perhaps illustrates the limited usefulness of the list of circumstances in primary victim cases, since the list was clearly crafted with secondary victims cases in mind, and the witnessing and close relationship factors have no application except in such cases. It is suggested that the principles developed by the courts following Koehler v Cerebos (Australia) Ltd158 will continue to be useful in work stress cases even where the Civil Liability Acts apply.

Foreseeability and content of the employer’s duty of care [20.430] Given that the existence of the duty is usually uncontroversial, the court then has to ask what Koehler v Cerebos (Australia) Ltd159 confirmed was still the central question, namely whether psychiatric injury to the particular employee was reasonably foreseeable. However, Koehler has made it clear that this question has to be considered in the context of the content of the employer’s duty,160 and more recently, in Kuhl v Zurich Financial Services Australia Ltd,161 the High Court has emphasised that the scope and content of the duty depend on the circumstances of the case.162 Thus, as Koehler shows, a number of considerations are relevant. [20.440] First, Koehler v Cerebos (Australia) Ltd163 focused attention on the obligations the parties owe each other under the contract of employment, the nature and extent of the work being done by the employee, and the importance of the fact that the employee had agreed to perform the duties specified.164 The important passages in which the High Court set out these factors in detail have already been quoted or referred to,165 and 157

McGuirk v University of New South Wales [2009] NSWSC 1424 at [107] per Johnson J.

158

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

159

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

160

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [19]. It is not helpful to label this as an issue of remoteness, as Miles CJ did in Gillespie v Commonwealth (1991) 104 ACTR 1 at 15. In New South Wales v Mannall [2005] NSWCA 367 at [113], Mason P noted that the trial judge had confused the precise role of the foreseeability issue, given that the duty of care was not in dispute. 161

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [20], [22] per French CJ and Gummow J. 162

This statement has been referred to in work stress cases, eg Swan v Monash Law Book Co-operative [2013] VSC 326 at [154] per Dixon J. See also Hegarty v Queensland Ambulance Service [2007] QCA 366 at [47] per Keane JA; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [11] per Spigelman CJ.

163

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

164

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [21], [24], [29], [35].

165

See [20.290]–[20.320].

704

Part IV: Relationship Cases

[20.450]

these passages have often been quoted or referred to in subsequent cases.166 Other judgments have set out these considerations as a list of factors.167 The importance of the contractual considerations referred to by the High Court is demonstrated by the facts and the decision in Koehler itself. However, Mason P in New South Wales v Mannall168 attempted to provide some balance by saying that entry into a contract of employment does not of itself absolve the employer from the tort duty to exercise reasonable care to prevent injury through stress. In some cases courts have suggested that the contractual terms do not have as much importance as in Koehler, given the issues to be addressed.169 [20.450] As the High Court confirmed, focus on the content of the duty extends outside the contract to the statutory and regulatory background.170 Industry standards are also relevant, but not determinative.171 Contemporary community standards may also be taken into consideration.172 [20.460] A second factor emphasised by Koehler v Cerebos (Australia) Ltd173 was the importance of the High Court majority decision in Tame v New South Wales174 that normal fortitude is not a precondition to liability, so the central inquiry remains whether the risk of the plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.175 Later cases have echoed 166

Eg Taylor v Haileybury [2013] VSC 58 at [111] per Beach J (Koehler at [21]); AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [21] per McMillan J (Koehler at [21], [35]); Larner v George Weston Foods Ltd [2014] VSCA 62 at [67], [203] per Redlich, Tate and Santamaria JJA (Koehler at [21], [29]); Doulis v Victoria (2014) Aust Torts Rep 82-177 at [519] per Ginnane J (Koehler at [21]); Rawlings v Rawlings [2015] VSC 171 at [63] per Dixon J (Koehler at [21]); Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [220] per Beazley JA (Koehler at [22]); Miskovic v Stryke Corporation Pty Ltd [2011] NSWCA 369 at [30] per Handley AJA (Koehler at [35]); O’Donovan v WA Alcohol and Drug Authority [2014] WASCA 4 at [66] per Pullin, Newnes and Murphy JJA (Koehler at [35]); Woolworths Ltd v Perrins [2015] QCA 207 at [43] per McMeekin J (Koehler at [21], [22], [25], [34], [35]). 167

Eg Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [218]–[219] per J Forrest J; Taylor v Haileybury [2013] VSC 58 at [113] per Beach J; Doulis v Victoria (2014) Aust Torts Rep 82-177 at [525] per Ginnane J.

168

New South Wales v Mannall [2005] NSWCA 367 at [126].

169

Eg cases involving bullying or harassment: Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [11] per Spigelman CJ; S v New South Wales [2009] NSWCA 164 at [59] per Macfarlan JA.

170

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [21].

171

AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [30] per McMillan J.

172

AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [31], referring to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308–309 per Mason, Wilson and Dawson JJ.

173

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

174

Tame v New South Wales (2002) 211 CLR 317 at 333 per Gleeson CJ, at 343 per Gaudron J, at 384 per Gummow and Kirby JJ.

175

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [33], and see also at [55] per Callinan J. In Mannall v New South Wales [2005] NSWCA 367 at [14], Mason P said that the trial judge had found the plaintiff to be of normal fortitude, “to use the stylised and

[20.470]

20 Work Stress

705

this approach to the normal fortitude issue,176 and errant trial judges have had to be corrected on occasion.177 However, the Civil Liability Acts have now endorsed the Tame minority position that the test is whether it is foreseeable that a person of normal fortitude might suffer a recognised psychiatric illness.178 [20.470] The High Court, like Hale LJ in the English Court of Appeal in Hatton v Sutherland,179 emphasised that the duty is owed to the particular employee and is engaged if psychiatric injury to the particular employee is foreseeable.180 As the High Court noted, this highlights the relevance of various factors, such as signs given by the employee:181 on the facts, Mrs Koehler did not do enough to make it known to her employer that she was at risk.182 In the absence of signs warning of the possibility of conclusory concept that has continuing, though attenuated, relevance in light of Tame v New South Wales”. The test of foreseeability as being a risk that is not far-fetched or fanciful is that endorsed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 per Mason J. The Civil Liability Acts have now adopted a different test: see Civil Law (Wrongs) Act 2002 (ACT), s 43(1); Civil Liability Act 2002 (NSW), s 5B(1); Civil Liability Act 2003 (Qld), s 9(1); Civil Liability Act 1936 (SA), s 32(1); Civil Liability Act 2002 (Tas), s 11(1); Wrongs Act 1958 (Vic), s 48(1); Civil Liability Act 2002 (WA), s 5B(1). 176

See eg Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [13] per Spigelman CJ, at [211], [223] per Beazley JA; Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133 at [161] per Osborn JA; AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [23] per McMillan J; O’Donovan v Western Australian Alcohol and Drug Authority [2014] WASCA 4 at [66] per Pullin, Newnes and Murphy JJA; Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 at [23] per Henry J. Prior to Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, some work stress cases had emphasised the older view that the employee must be assumed to have had a normal standard of susceptibility: see eg Wodrow v Commonwealth (1991) 105 FLR 278. The judgment of Hasluck J in the Full Court in Cerebos (Australia) v Koehler [2003] WASCA 322 at [51]–[52] was inconsistent. Having referred to the majority holding in Tame v New South Wales (2002) 211 CLR 317 that normal fortitude is not an independent pre-condition of recovery, his Honour developed the point by reference to the judgment of McHugh J who was in the minority on this issue.

177 In Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, the trial judge had erroneously stated that the test was based on normal fortitude, but nothing turned on this: at [13] per Spigelman CJ. For another case where the trial judge stated the wrong test, see MacKinnon v Bluescope Steel (AIS) Pty Ltd [2009] NSWCA 94 at [63] per Hoeben J. 178

See [2.300], [8.200]–[8.220].

179

Hatton v Sutherland [2002] ICR 613 at [23].

180

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [35]. This fundamental principle has been frequently endorsed: see eg Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [14] per Spigelman CJ, at [223] per Beazley JA; Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133 at [164] per Osborn JA; Swan v Monash Law Book Co-operative [2013] VSC 326 at [159] per Beach J; O’Donovan v WA Alcohol and Drug Authority [2014] WASCA 4 at [66] per Pullin, Newnes and Murphy JJA; Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 at [23] per Henry J. 181

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [35]. See also Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 at [30] per Henry J; Doulis v Victoria (2014) Aust Torts Rep 82-177 at [520] per Ginnane J.

182

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [41]. A similar decision was reached in Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919 at [26] per Jerrard JA (see also at [40] per Keane JA on the differences between the plaintiff’s case as pleaded and

706

Part IV: Relationship Cases

[20.480]

psychiatric injury, the employer is entitled to assume that the employee considers that he or she is able to do the job.183 It is different, of course, if the employer has knowledge of some particular problem or vulnerability.184 However, knowledge acquired after the contract has been entered into may be in a different category: pursuant to its emphasis on the contract between the parties, the High Court said that seeking to qualify the operation of the contract as the result of information about the vulnerability of the employee acquired after it was made would be contradictory of basic principle.185 Callinan J in his concurring judgment suggested some additional considerations that are relevant to the knowledge and vulnerability issues. He said that the fact that a psychiatrist placed in the same position as an employer might have foreseen a risk of psychiatric injury does not mean that a reasonable employer should be regarded as likely to form the same view,186 and quoted the statement of Lord Scott of Foscote in Barber v Somerset County Council187 that pressure and stress are part of the system of work under which people carry out their daily responsibilities.188 [20.480] The most influential judgment in the years following Koehler v Cerebos (Australia) Ltd189 was probably that of Keane JA (himself subsequently appointed to the High Court) in Hegarty v Queensland at trial); Larner v George Weston Foods Ltd [2014] VSCA 62 at [214] per Redlich, Tate and Santamaria JJA. Compare New South Wales v Mannall [2005] NSWCA 367 at [104] per Mason P where although the plaintiff did not say he was finding it increasingly difficult to cope, and did not seek medical assistance, his psychiatric condition was known or ought to have been known from September 1995 onwards. 183

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [36]. See Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [15] per Spigelman CJ, at [224] per Beazley JA; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [238] per J Forrest J; AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [22] per McMillan J; O’Donovan v WA Alcohol and Drug Authority [2014] WASCA 4 at [66] per Pullin, Newnes and Murphy JJA; Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 at [29] per Henry J; Larner v George Weston Foods Ltd [2014] VSCA 62 at [209] per Redlich, Tate and Santamaria JJA. There is no positive duty placed on an employer to acquire knowledge of special weakness: AZ v The Age (No 1) at [25] per McMillan J. 184

Wodrow v Commonwealth (1993) 45 FCR 52 at 72–73 per Gallop and Ryan JJ; Finn v Queensland Ambulance Service [2000] QSC 472 at [33] per Keane JA; Eaton v Tricare (Country) Pty Ltd [2016] QCA 139 at [35] per Philip McMurdo JA; see also Gillespie v Commonwealth (1991) 104 ACTR 1 at 13 per Miles CJ; Gillespie v Commonwealth (1993) Aust Torts Rep 81-217 at 62,185–6 per Neaves and von Doussa JJ (no allegation that defendant knew or should have known of any special vulnerability). On the problem of pleading known vulnerability based on incidents which occurred outside the limitation period, see eg Priest v New South Wales [2006] NSWSC 12; Gould v New South Wales [2006] NSWSC 858.

185

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [36], quoted at [20.320].

186

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [55].

187

Barber v Somerset County Council [2004] ICR 457 at [14].

188

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [57]. It is an “obvious fact” that employees in the litigation department of a large law firm will suffer from stress: Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133 at [166] per Osborn JA. 189

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

[20.490]

20 Work Stress

707

Ambulance Service.190 In this case, an ambulance officer who was required to attend many distressing scenes, but received no counselling or psychiatric support, claimed damages for psychiatric injury. The Queensland Court of Appeal acknowledged that there was a foreseeable risk that regular exposure to scenes of human tragedy could cause psychiatric injury to ambulance officers,191 but held that even if the defendant had adopted a system of training of supervisors suggested by the plaintiff it would not have come to the conclusion after discussions with the plaintiff and his wife that it should advise him to seek psychological assessment and treatment. Keane JA made a number of points that have often been referred to in subsequent cases.192 [20.490] First, Keane JA suggested that psychiatric injury may be harder to prove than physical injury: [W]hile an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee’s physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.193

Callinan J had said something to the same effect in Koehler v Cerebos (Australia) Ltd,194 suggesting that psychiatric injury was in some important

190

Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919.

191

Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919 at [42] per Keane JA. There is no suggestion that the plaintiff’s occupation was one which carried a heightened risk of psychiatric injury: Keane JA’s judgment is consistent with the principle stated by Hale LJ in Hatton v Sutherland [2002] ICR 613 at [24] and [43] that there are no occupations which should be regarded as intrinsically dangerous to mental health. In Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64, a case of bullying and harassment by the supervisor of a salesperson in a department store, Henry J said at [28] that “[s]ome fields of employment might of their nature bespeak a heightened risk of psychiatric injury”, but this was not one of them. On the nature of police employment see New South Wales v Seedsman (2000) 217 ALR 583 at [20] per Spigelman CJ; New South Wales v Fahy (2007) 232 CLR 486 at [60] per Gummow and Hayne JJ; See also Queensland v Keeys [1997] QCA 234 (not a work stress case). 192

See eg Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [239] per J Forrest J; Taylor v Haileybury [2013] VSC 58 at [116] per Beach J; AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [29] per McMillan J; Doulis v Victoria (2014) Aust Torts Rep 82-177 at [524] per Ginnane J; Carangelo v New South Wales (2015) Aust Torts Rep 82-225 at [242] per Adamson J.

193

Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919 at [41] per Keane JA. 194

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

708

Part IV: Relationship Cases

[20.500]

respects a different kind of illness or injury than physical injury, a difference that was one reason why its development was less readily foreseeable.195 [20.500] Secondly, Keane JA said that determining the extent of the defendant’s duty to ensure that superior officers should intervene in relation to possible signs of deterioration in an employee’s mental health raised important privacy issues: The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems. … The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.196

[20.510] Finally, the focus on the content of the duty following Koehler v Cerebos (Australia) Ltd197 has allowed courts to recognise that the employer’s duty has its limits. In New South Wales v Rogerson,198 the plaintiff, a former police officer, was the younger brother of Roger Rogerson, another police officer who had been dismissed for misconduct and was later convicted of serious criminal offences. The plaintiff alleged that he had been discriminated against and victimised in various ways as a result of being Roger Rogerson’s brother, but the New South Wales Court of Appeal held that the police authority was not responsible for remarks made by fellow-officers, official complaints, or advice given by a lawyer that the plaintiff should not appear as a witness before a Royal Commission. In Hardy v Mikropul Australia Pty Ltd,199 the plaintiff claimed that his alcoholism and drug addiction was caused by the negligence of his employer, who had required him as part of his employment to spend prolonged periods of time in regional Victoria and interstate, where he became involved with other workers who spent their off-duty hours drinking and smoking cannabis. It was held that an employer’s duty did 195

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [55].

196

Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919 at [43], [45].

197

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

198

New South Wales v Rogerson (2007) Aust Torts Rep 81-926.

199

Hardy v Mikropul Australia Pty Ltd [2010] VSC 42.

[20.530]

20 Work Stress

709

not extend to controlling an employee’s out-of-work activities. The plaintiff was not compelled to spend his time in this way. In John Forrest J’s memorable words: He was not forced to go away for long periods – this was not the Soviet Union under Stalin or his successors. Australia is not a Command Economy. Mr Hardy, knowing the tasks he was to perform and knowing that he would be away frequently, entered voluntarily into a contract of employment. He received extra remuneration for being away from home. He could have resigned if he wished. He did not have to return to work in 2003. He could have sought alternative employment. He could have asked Mikropul for a different position. To the contrary, he did everything he could in 2003 to return to work with Mikropul. The tasks he performed, whilst away, both before and after his breakdown, were performed in accordance with his contractual obligations.200

Breach of duty [20.520] If a reasonable employer should, in the circumstances of the case, have foreseen the risk of psychiatric injury to the particular employee, the next question is whether the employer is in breach. This is a matter of applying general negligence principles: “In assessing what a reasonable employer would do in response to a risk of foreseeable harm, it is also relevant to consider the probability and gravity of the harm to the plaintiff, the nature and capacity of the employer and the cost and inconvenience of precautions.”201 In cases where the Civil Liability Acts apply, these principles are now set out in statutory form.202 [20.530] Judges in work stress cases have frequently emphasised the importance of avoiding “litigious hindsight”, that is, where something unforeseen has gone wrong, looking back and arguing that because of what has occurred, there must have been a significant risk of its occurrence that should have been avoided.203 For example, Keane JA said in Hegarty v Queensland Ambulance Service:204 “[L]itigious hindsight” must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what 200

Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [242].

201

AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [33] per McMillan J.

202

See [7.540]. For an example of the application of the statutory provisions, see Doherty v New South Wales [2010] NSWSC 450. 203

AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [34] per McMillan J, referring to a medical negligence case, Hookey v Paterno (2009) 22 VR 362 at [109] per Nettle and Redlich JJA. See also eg Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124] per Hayne J.

204

Hegarty v Queensland Ambulance Service [2007] QCA 366 at [47]. See also Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [326] per Beazley JA; Hardy v Mikropul Australia Pty Ltd [2010] VSC 42 at [225] per J Forrest J; Taylor v Haileybury [2013] VSC 58 at [139] per Beach J; Johnson v Berry Street Victoria Inc [2015] VSC 428 at [40] per Rush J.

710

Part IV: Relationship Cases

[20.540]

reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.

The prospective nature of the inquiry as to breach has particular significance in psychiatric injury cases.205 [20.540] Work stress cases in which the employer has been adjudged negligent provide examples of what employers might have done to avoid liability — though it should be remembered that every case turns on its own facts. In general, employers who take some positive action are much less likely to be held liable than those who do nothing. So failing to provide additional assistance,206 making no changes in work duties,207 promising to organise mediation and not doing so,208 not doing what the employee asked to be done209 (providing the request is reasonable210) and making no attempt to investigate211 have resulted in a finding against the employer. Some employers have taken some steps but not gone far enough,212 or have failed to implement reform recommendations.213 Worse, failing to protect against harassment and victimisation,214 or not complying with the company’s own bullying and harassment policy,215 have usually led to the imposition of liability. [20.550] Failure to provide counselling services has sometimes been a key factor in holding the employer liable for stress-related illness,216 although Australian courts are unlikely to agree with the proposition that an employer who offers a confidential advice service is unlikely to be in

205

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [20] per Spigelman J; Box Hill Institute of TAFE v Johnson [2015] VSCA 245 at [59]–[60] per Warren CJ, Hansen and Kaye JJA.

206

Kelly v Northern Meat Holdings Pty Ltd [2001] QSC 14.

207

Doulis v Victoria (2014) Aust Torts Rep 82-177.

208

Swan v Monash Law Book Co-operative [2013] VSC 326.

209

New South Wales v Coffey [2002] NSWCA 361.

210

See Allen v Western Australia [2000] WASCA 221.

211

Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64.

212

Gallagher v Queensland Corrective Services [1998] QSC 150 (but only if the steps taken would have been effective: see Queensland Corrective Services Commission v Gallagher [1998] QCA 426); Zammit v Queensland Corrective Services Commission [1998] QSC 169; contrast Gillespie v Commonwealth (1991) 104 ACTR 1. 213

Mannall v New South Wales [2001] NSWCA 327 (new trial ordered); for further proceedings see New South Wales v Mannall [2005] NSWCA 367. See also Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471. 214

Mannall v New South Wales [2001] NSWCA 327 (new trial ordered); for further proceedings see New South Wales v Mannall [2005] NSWCA 367. 215 216

Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64.

Compare Hind v Tasmania [1999] TASSC 133 (no liability imposed); King v Queensland Corrective Services Commission [2000] QSC 342 (limitation period extended). Note also cases dealing with specific incidents: Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 (no liability imposed); State Rail Authority of New South Wales v Howell (unreported, NSWCA, CA 40378/96, 19 December 1996) (liability imposed).

[20.560]

20 Work Stress

711

breach of duty.217 An interesting example is Green v Berry,218 where the plaintiff sued his solicitor for failing to institute an action against his employer for failing to provide counselling. Liability was imposed, but damages were reduced by 50 per cent to reflect the prospects of success, Pincus JA saying: “[Queensland Rail] is not a health care organisation, but one in the business of providing a train service.”219 A number of cases involving work-induced trauma suffered by police officers have turned on whether the provision of counselling services and other measures such as debriefing, training and peer support has been enough to avoid liability.220

Causation [20.560] If the defendant is found to have been in breach of duty, the court must consider whether the breach caused the harm suffered. The general principles of causation in negligence apply. The courts have emphasised that this means that it must be shown that the psychiatric injury resulted from the employer’s breach of duty, and not merely the fact that stress was suffered.221 The plaintiff must establish that it was more probable than not that the risk of injury would have been prevented or ameliorated.222 A useful summary of the task of the court at the causation stage is provided by Maxwell P in Findlay v Victoria,223 who said that When … a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counterfactual hypothesis. That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify: (a) what the defendant would have done had reasonable care been exercised; and (b) how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered. 217

See Swan v Monash Law Book Co-operative [2013] VSC 326 at [171] per Dixon J. This proposition, first stated by Hale LJ in Hatton v Sutherland [2002] ICR 613 at [17], [33], has also proved controversial in England: see [20.680]. However, it may not be enough merely to make counselling services available: New South Wales v Coffey [2002] NSWCA 361. 218

Green v Berry [2000] QCA 133.

219

Green v Berry [2000] QCA 133 at [18].

220

See eg S v New South Wales [2009] NSWCA 164; Doherty v New South Wales [2010] NSWSC 450; Reeves v New South Wales [2010] NSWSC 611. Sometimes police officers are reluctant to avail themselves of such services because they are embarrassed about discussing their case with agencies of the police service, eg Gould v New South Wales [2005] NSWSC 1121.

221

See Queensland Corrective Services Commission v Gallagher [1998] QCA 426 at [15] per de Jersey CJ; Russo v Carpentaria Transport Pty Ltd [2000] QSC 083 at [20] per Williams J; New South Wales v Seedsman (2000) 217 ALR 583 at [95] per Spigelman CJ.

222

AZ v The Age (No 1) (2013) Aust Torts Rep 82-142 at [38] per McMillan J.

223

Findlay v Victoria [2009] VSCA 294 at [2].

712

Part IV: Relationship Cases

[20.570]

In cases where the Civil Liability Acts apply, the applicable principles are now set out in statutory form.224

THE DIFFERENT CATEGORIES OF CASE [20.570] It is now clear that the courts are developing an awareness that not all work stress cases are the same. The scenario in Koehler v Cerebos (Australia) Ltd,225 as in most of the earlier cases, involved psychiatric injury resulting from stress caused by the amount and nature of the work that the employee had to do. It is clear, however, that there are other circumstances that may prejudice employees’ mental health. In one category of case, the essence of the complaint is that the plaintiff has been subjected to bullying, victimisation or harassment. The earliest such case is probably Arnold v Midwest Radio Ltd,226 where the manager of a local newspaper subjected the plaintiff to bizarre acts of bullying and abuse. The emphasis on contractual considerations in Koehler has made it difficult to establish liability in overwork cases, but plaintiffs have been successful in a number of cases involving bullying and the like. One important example, Nationwide News Pty Ltd v Naidu,227 has already been dealt with; others include the cases of the public servant treated as an outsider,228 an assistant in a law bookshop whose manager was violent and a control freak,229 a salesperson in a department store whose manager again exercised rigorous controls and was repeatedly critical of her work,230 and a teacher bullied by his supervisor.231 A prominent example of a case that failed on the facts is Brown v Maurice Blackburn Cashman,232 where it was alleged that a solicitor returning from maternity leave had been undermined, harassed and bullied by a fellow-solicitor. [20.580] There is another category of case involving plaintiffs subjected to particular kinds of traumatic situations due to the nature of their work. Police officers, especially those who are required to work undercover or deal with distressing kinds of cases,233 and ambulance officers234 feature 224

See [7.580].

225

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

226

Arnold v Midwest Radio Ltd (1998) Aust Torts Rep 81-472. The claim failed on appeal on evidential and factual grounds: see [20.170].

227

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471: see [20.400].

228

New South Wales v Mannall [2005] NSWCA 367.

229

Swan v Monash Law Book Co-operative [2013] VSC 326.

230

Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64.

231

Johnson v Box Hill Institute of TAFE [2014] VSC 626.

232

Brown v Maurice Blackburn Cashman (2013) Aust Torts Rep 82-133.

233

Successful actions brought by police officers include S v New South Wales [2009] NSWCA 164; Doherty v New South Wales [2010] NSWSC 450; Reeves v New South Wales [2010] NSWSC 611. The nature of the duties of police officers was referred to by Adamson J in Carangelo v New South Wales (2015) Aust Torts Rep 82-225 at [235]. 234 Hegarty v Queensland Ambulance Service [2007] QCA 366 was an unsuccessful claim by an ambulance officer.

[20.590]

20 Work Stress

713

prominently. A more unusual example is AZ v The Age Newspaper (No 1),235 where a newspaper photographer assigned to photograph families of the victims of the 2002 Bali bombings was so affected by the interviews at which she was present that she eventually developed post-traumatic stress disorder and major depression. The plaintiff failed to establish that psychiatric injury was foreseeable. [20.590] The first judicial intimation that all kinds of cases are not the same came from the New South Wales Court of Appeal in New South Wales v Fahy236 (albeit not really a work stress case, because it involved a specific incident), where Spigelman CJ noted that trauma situations were not really comparable to cases like Koehler v Cerebos (Australia) Ltd237 that dealt with excessive workload. More recently, Dixon J in Swan v Monash Law Book Co-operative238 commented on Koehler and other overwork cases as follows: Although the general principles that are identified in these decisions are plainly those that must be applied in determining the content of the defendant’s duty of care in the circumstances, there are material distinctions between stressful situations that are a consequence of accepted working conditions or work overload and those that are a consequence of unreasonable behaviour in the form of workplace bullying by a work colleague. The plaintiff did not choose to work with a bully, or work in stressful conditions arising other than from the nature and extent of the tasks that she agreed to perform. The plaintiff’s complaints to the board were not about the onerous nature of the tasks. Her complaints suggested, and were understood as suggesting, her psychiatric health may have been at risk albeit that the complaints might also be suggesting an industrial relations type problem.239

Most recently, the same judge in Rawlings v Rawlings,240 referring to the observations of the High Court in Kuhl v Zurich Financial Services Australia Ltd241 that the scope and content of the duty depend on the circumstances of the case,242 commented: “Psychiatric injury in the workplace can be suffered from stress in at least two distinct scenarios, one is circumstances of bullying and/or employee behaviour that creates stress for a plaintiff, the other scenario being circumstances of overwork or pressure from employer directed workload or tasks. In this proceeding, the court is 235

AZ v The Age Newspaper (No 1) (2013) Aust Torts Rep 82-142.

236

New South Wales v Fahy [2006] NSWCA 64 at [12] per Spigelman CJ. The successful appeal to the High Court (New South Wales v Fahy (2007) 232 CLR 486) concerned breach of duty. 237

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

238

Swan v Monash Law Book Co-operative [2013] VSC 326.

239

Swan v Monash Law Book Co-operative [2013] VSC 326 at [163].

240

Rawlings v Rawlings [2015] VSC 171.

241

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [20], [22] per French CJ and Gummow J. 242

See [20.430].

714

Part IV: Relationship Cases

[20.600]

concerned with the latter scenario.”243 The statements offer some hope that in cases factually different from Koehler some of the statements made by the High Court, particularly those about contract, may not be so rigidly applied, though it has to be admitted that such considerations did not meet with much success in the recent Western Australian bullying case of O’Donovan v WA Alcohol and Drug Authority.244

RESTATEMENT IN ENGLAND: HATTON AND BARBER [20.600] As the case law on work stress began to accumulate, the English courts, like the Australian courts, decided that it was necessary to impose some controls. However, this was the point at which the jurisprudence in the two countries began to proceed in different directions. The decision of the English Court of Appeal in Hatton v Sutherland245 in 2002 is now the leading English case on liability for work stress.246 Four appeals were before the court: in each case the defendant employer had appealed against a finding of liability for psychiatric illness caused to an employee by stress at work. Three of the awards had been substantial — £90,756, £101,041 and £157,541 respectively. It is not difficult to infer a concern not only among the ranks of employers but elsewhere that lower courts were making damages for the effects of work stress too readily available.247 The plaintiffs were two teachers, an administrative assistant at a local authority and a raw materials operative in a factory. Whereas the teachers had not told their employers that their health was suffering due to overwork, the local authority worker had made two formal complaints, but no additional assistance had been provided even though the authority had acknowledged that it was necessary. The Court of Appeal allowed the appeals in all but the third case. Hale LJ, giving a judgment contributed to by all members of the court, restated the principles to be applied in such cases, summarising the applicable law in terms clearly intended for the future guidance of lower courts:248 243

Rawlings v Rawlings [2015] VSC 171 at [60] per Dixon J.

244

O’Donovan v WA Alcohol and Drug Authority [2014] WASCA 4. The Western Australian Court of Appeal adopted the view that threats of disciplinary action by the plaintiff’s superior should have been treated as raising a cause of action based on an intentional tort. 245

Hatton v Sutherland [2002] ICR 613, noted by NJ Mullany (2002) 118 LQR 373; H Teff (2002) 10 Tort L Rev 161.

246

For further commentary on English law, see B Barrett, “Psychiatric Stress – An Unacceptable Cost to Employers” [2008] JBL 64; J Elvin, “The Legal Response to Occupational Stress Claims” (2008) 16 Tort L Rev 23; J Elvin, “How should the Law Respond to Stress-Related claims?” (2010) 21 Kings LJ 69.

247 Note eg “£67,000 for stress: damages make legal history”, Birmingham Evening Mail, 5 July 1999, dealing with Lancaster v Birmingham City Council (unreported, Birmingham County Court, 5 July 1999) and the editorial in the same issue, under the heading “Verdict was distressing”: “The story of Beverley Lancaster, awarded £67,000 for stress brought on by her job, will send shivers down every boss’s spine …”. 248

Hatton v Sutherland [2002] ICR 613 at [43]. This passage is quoted verbatim except for the omission of cross-references to other paragraphs in the judgment, and the setting-out of the numbered propositions in separate paragraphs.

[20.600]

20 Work Stress

715

(1) There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer’s liability apply. (2) The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors). (3) Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability. (4) The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health. (5) Factors likely to be relevant in answering the threshold question include: (a) The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department? (b) Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others? (6) The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching inquiries of the employee or seek permission to make further inquiries of his medical advisers. (7) To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it. (8) The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk. (9) The size and scope of the employer’s operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties. (10) An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this. (11) An employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.

716

Part IV: Relationship Cases

[20.610]

(12) If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job. (13) In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care. (14) The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm. (15) Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment. (16) The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.

[20.610] This summary and the preceding discussion were prefaced by reference to the major reference works on psychiatric ill-health and the nature of occupational stress. It was acknowledged that such cases were different from other work-related harm: for example, it was said, the employer knows what is going on in the workplace, and should be largely in control of what happens there, but could not necessarily be expected to know what was going on in the minds of employees or their lives outside work, or how they balanced the demands of their work and their lives outside the workplace. The importance of properly setting the standard of liability for the effects of stress at work was emphasised by Hale LJ in the following words: The law of tort has an important function in setting standards for employers as well as for drivers, manufacturers, health care professionals and many others whose carelessness may cause harm. But if the standard of care expected of employees is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects upon the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress-related disorders. If employers are expected to make searching inquiries of employees who have been off sick, then more employees may be vulnerable to dismissal or demotion on ill-health grounds. If particular employments are singled out as ones in which special care is needed, then other benefits which are available to everyone in those employments, such as longer holidays, better pensions or earlier retirement, may be under threat.249

[20.620] It appears that this judgment has had the desired effect in satisfactorily regulating work stress claims in the English courts. The employer’s liability for causing psychiatric harm has been accepted but contained within appropriate limits. The importance of Hatton v Sutherland250 was confirmed by the House of Lords in Barber v Somerset 249

Hatton v Sutherland [2002] ICR 613 at [14].

250

Hatton v Sutherland [2002] ICR 613.

[20.630]

20 Work Stress

717

County Council,251 an appeal by one of the teachers whose damages award had been overturned by the English Court of Appeal in Hatton. The House of Lords was unanimous in upholding the principles stated by Hale LJ in the court below, but differed on what the right result should be in the particular circumstances of this case. The judgment of Lord Walker of Gestingthorpe was concurred in by Lord Bingham of Cornhill and Lord Steyn, and so represents the majority view. Lord Walker concluded that the Court of Appeal had taken the wrong view of Mr Barber’s case on its facts. Even if he had not said enough about his workload and his symptoms in his meetings with the senior management team at his school, the Court of Appeal should have attached more importance to the unexplained absences of Mr Barber, “an experienced and conscientious teacher”. The senior management team should have made inquiries about his problems and seen what they could do to ease them: budgetary difficulties, an impending Ofsted inspection and the fact that all the teachers were stressed and overworked did not excuse their failure to take a more sympathetic approach. Accordingly, even though this was a case “fairly close to the borderline”, Lord Walker was in favour of allowing the appeal.252 Lord Rodger of Earlsferry had greater reservations but concluded that there was enough material to justify the trial judge’s finding of liability, even if aspects of that judgment were very far from satisfactory.253 In a passage in his judgment that would later be picked up and further developed by the High Court of Australia,254 his Lordship suggested that Mr Barber’s contract of employment was important in determining the content of the duty owed.255 However the fifth member of the court, Lord Scott of Foscote, affirmed the correctness of the Court of Appeal’s propositions of law, and would not have disturbed its decision: [T]he question, in my respectful opinion, is not whether the trial judge “was entitled” on the material before him to come to the conclusions he came to. The question is whether his conclusions were correct. The Court of Appeal thought they were not. A statement that the trial judge was entitled to come to the conclusions leaves that question unanswered. The conclusions are judgmental. They are not findings of primary fact; they are conclusions as to how some judicial discretion should be exercised. Why cannot the Court of Appeal substitute their own judgment if it thinks the trial judge’s judgment was wrong?256

[20.630] One particular issue that occasioned some discussion in the House of Lords was a passage in Hale LJ’s judgment in Hatton v 251

Barber v Somerset County Council [2004] ICR 457, noted by J Elvin (2004) 15 Kings LJ 428; W Njoya (2005) 121 LQR 33; see P Case, “Hues of Foreseeability: Employer Liability for Chronic Stress and the Impact of Barber” (2004) 20 PN 192. 252

Barber v Somerset County Council [2004] ICR 457 at [67].

253

Barber v Somerset County Council [2004] ICR 457 at [22].

254

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44: see [20.290]–[20.340].

255

Barber v Somerset County Council [2004] ICR 457 at [24]–[35].

256

Barber v Somerset County Council [2004] ICR 457 at [11].

718

Part IV: Relationship Cases

[20.640]

Sutherland257 that supported the statement in the third proposition set out at [20.600] that an employer was usually entitled to assume the employee could withstand the normal pressures of the job unless aware of some particular problem or vulnerability. Her Ladyship had said: But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent [is he] bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive inquiries. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee’s permission to obtain further information from his medical advisers. Otherwise he would risk unacceptable invasions of his employee’s privacy.258

Lord Walker in Barber v Somerset County Council259 said that this was useful guidance, but the best statement of general principle was still that of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd,260 who had said: The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.

Lord Scott (dissenting), however, preferred the statement of Hale LJ, noting that Swanwick J did not have in mind the problem of psychiatric illness caused by stress.261 [20.640] It might well be thought on reading these two statements that they are not in any way in conflict, but simply reflect different facets of 257

Hatton v Sutherland [2002] ICR 613.

258

Hatton v Sutherland [2002] ICR 613 at [29] (emphasis in original).

259

Barber v Somerset County Council [2004] ICR 457 at [65].

260

Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783.

261

Barber v Somerset County Council [2004] ICR 457 at [5].

[20.650]

20 Work Stress

719

the matters the employer has to consider, and that this controversy was incidental to the main issue involved in the case, which was whether the English Court of Appeal in Hatton v Sutherland262 was correct in the approach it adopted in reviewing the first instance decision in Barber v Somerset County Council.263 Not only did Barber leave undisturbed the propositions of law expressed by the Court of Appeal in Hatton; those propositions were given the imprimatur of the House of Lords. [20.650] However, despite the guidance given by these leading judgments, it seems that first instance judges were still experiencing difficulties in applying the appropriate principles. The English Court of Appeal in Hartman v South Essex Mental Health and Community Care NHS Trust,264 dealing with six appeals involving psychiatric injury arising out of stress at work, therefore set out to offer further clarification. Scott Baker LJ, giving the judgment of the court, said that liability for psychiatric injury caused by stress at work was in principle no different from liability for physical injury, but: It is foreseeable injury flowing from the employer’s breach of duty that gives rise to the liability. It does not follow that because a claimant suffers stress at work and that the employer is in some way in breach of duty in allowing that to occur that the claimant is able to establish a claim in negligence.265

As regards the controversy arising out of the statements of Hale LJ and Swanwick J quoted at [20.630], his Lordship said that he doubted whether there was any inconsistency between them: Hale LJ was simply focusing established principle on a new problem. She referred to the “oft-quoted summary of Swanwick J” just three paragraphs later. Lord Walker was not expressing disagreement with anything Hale LJ said but simply sounding a word of caution that no two cases were the same and that Hale LJ’s words should not be applied as it were by rote regardless of the facts.266

None of the subsequent cases detracted from the utility of the guidance given by Hale LJ. However, what was said in that case was not intended to cover all the infinitely variable facts likely to arise in work stress cases. Though the general principles were set out in Hatton v Sutherland,267 care needed to be taken in applying them to the particular facts under 262

Hatton v Sutherland [2002] ICR 613.

263

Barber v Somerset County Council [2004] ICR 457 at [65].

264

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782, noted by B Barrett (2005) 34 ILJ 182. 265

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 at [2] (emphasis in original). See also Banks v Ablex Ltd [2005] ICR 819 at [22] per Kennedy LJ. 266

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 at [10]. In Beattie v Ulster Television plc [2005] NIQB 36 Higgins J at [54] managed to read into a later passage from Scott Baker LJ’s judgment a preference for Swanwick J’s test over that of Hale LJ, but it is submitted that this is not a conclusion that is easily drawn.

267

Hatton v Sutherland [2002] ICR 613.

720

Part IV: Relationship Cases

[20.660]

consideration.268 So, for example, on the facts of Hartman (one of the two cases before the court in which the appeal was allowed) the judge had been wrong to attribute to the defendant as employer knowledge of confidential medical information disclosed by the claimant to an employee in the defendant’s occupational health department, since no other employee had any right of access to that information without the claimant’s consent, and so it was not reasonably foreseeable that the claimant would suffer psychiatric injury.269 [20.660] These cases now form the foundation of the English law on work stress. In essence, the duty issue occasions no problems because it is simply an application of the long-accepted duty of employers to take care for the safety of their employees, and there are no special control mechanisms applying to work stress cases.270 The courts concentrate on the threshold question of whether this kind of harm to this particular employee is foreseeable.271 Various factors are relevant in applying this test, such as the nature and extent of the work done and signs from the employee of impending harm to health, though employers are usually entitled to assume that the employee can withstand the normal pressures of the job, and to take what the employee tells them at face value. Employers are only in breach of duty if they have failed to take steps that are reasonable in the circumstances, taking into account the usual considerations — the magnitude of the risk, the gravity of the harm, the cost and practicability of prevention and so on. As regards causation, the claimant must show that the breach of duty has caused or materially contributed to the harm suffered.272

268

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 at [16]. In a later case, Deputy Judge R Moxon Browne QC noted that Hale LJ’s words “are not in fact carved in stone, and nor are they to be construed as if they were part of a statute”: Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 (QB) at [8].

269

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782 at [35], [43].

270

See eg Walker v Northumberland County Council [1995] ICR 702 at 710 per Colman J; Hatton v Sutherland [2002] ICR 613 at [19] per Hale LJ.

271

Eg Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765. In a few cases claimants have sought to bypass the foreseeability issue by arguing a breach of the Working Time Regulations 1998 (UK) which set limits on the number of hours to be worked each week (subject to an opt-out clause). In Mullen v Accenture Services Ltd [2010] EWHC 2336 (QB), Judge Clark QC commented: “This was a somewhat surprising submission. It appeared rather like the proverbial rabbit out of a conjurer’s hat.” He held that this argument could not be allowed to bypass the common law. 272

Examples from English Court of Appeal cases include Harding v Pub Estate Co Ltd [2005] EWCA Civ 553; Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765; Heyward v Plymouth Hospital NHS Trust [2005] EWCA Civ 939; Hone v Six Continents Retail Ltd [2005] EWCA Civ 922; Pakenham-Walsh v Connell Residential (Private Unlimited Company) [2006] EWCA Civ 90; Deadman v Bristol City Council [2007] EWCA Civ 822; Connor v Surrey County Council [2011] QB 429. There are many more cases at first instance, Daniel v Secretary of State for the Department of Health [2014] EWHC 2578 (QB) being perhaps the most recent.

[20.680]

20 Work Stress

721

[20.670] Some examples will show how these principles are put into practice. In Harding v Pub Estate Co Ltd,273 the claimant was appointed as manager of a pub in a rough area, with the task of getting it to make a profit so it could be sold. He worked long hours but eventually suffered a heart attack, as a consequence of which he was no longer able to undertake the same kind of work. Scott Baker LJ said that though the cases generally concerned psychiatric injury, it made no difference that the result of overwork here was a heart attack. There was no previous history of vulnerability to stress, so this was a “first breakdown” case. The court had to consider the employee’s working conditions; whether he was exposed to a foreseeable risk of suffering a heart attack attributable to stress at work; whether the employer knew or ought to have known of any special vulnerability that was likely to make the employee more susceptible to suffering a heart attack; if there were indications of impending harm to health, whether the employer was in breach of duty by failing to take steps that were reasonable in the circumstances; and if so, whether the breach of duty caused or materially contributed to the harm suffered. It was found that nothing the claimant said would have warned the defendant that there was a risk of a breakdown in his health. There was therefore no breach of duty. However, even had breach been established, the judge doubted whether it was possible to show that the breach made a material contribution to the heart attack. In Hiles v South Gloucestershire NHS Primary Care Trust,274 on the other hand, the claimant succeeded. She was a health care visitor, told when she commenced her employment that her workload would not exceed 200 cases. After the appointment of a new manager, it was increased to 230–240, due partly to natural causes and partly to staff shortages. At a performance review, the claimant mentioned that she was having difficulties and broke down in tears. Her manager promised to keep her workload under regular review, but it increased again, causing the claimant to suffer further stress, culminating in a psychiatric breakdown. It was held that Mrs Hiles suffered injury to her health due to stress at work; that this particular injury to this particular employee was reasonably foreseeable and indeed foreseen; and that it could have been prevented by the exercise of reasonable care. [20.680] Over and over again, English courts rely on the propositions stated by Hale LJ as the basis of the applicable law. Only in a few instances have they been questioned. One proposition that later courts have suggested may not always hold good is Hale LJ’s statement that an employer who offers a confidential advice service, with referral to appropriate counselling or treatment services, is unlikely to be found in breach of duty.275 The English Court of Appeal in Daw v Intel Corporation 273

Harding v Pub Estate Co Ltd [2005] EWCA Civ 553.

274

Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 (QB).

275

Hatton v Sutherland [2002] ICR 613 at [17], [43] per Hale LJ.

722

Part IV: Relationship Cases

[20.690]

UK Ltd276 said that this guidance did not make the provision of a counselling service a panacea by which employers could discharge their duty in all cases, and that in this case the problems that had arisen could only be dealt with by a reduction in workload. The English Court of Appeal endorsed this view in Dickins v O2 plc,277 noting that provision of a counselling service might be advantageous if an employee did not want to discuss problems with management, but here the claimant was not afraid to do this, and did not use the counselling service because she was already receiving counselling through her own doctor. Courts have also questioned Hale LJ’s proposition that where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered that is attributable to their wrongdoing, unless the harm is truly indivisible.278 In Barber v Somerset County Council,279 Lord Walker of Gestingthorpe said he preferred to express no view on this issue, saying the House of Lords had not heard argument on this issue. In Dickins v O2 plc Smith LJ went further, saying: “I respectfully wish (obiter) to express my doubts as to the correctness of Hale LJ’s approach to apportionment.”280

THE LAW ELSEWHERE Scotland [20.690] The Scottish courts, like the English courts, have recognised that employers owe a duty of care to their employees to take reasonable care to protect employees from foreseeable psychiatric harm caused through employment stresses. Again parallel to the position in England, this has been achieved despite a substantial disincentive to the recognition of employer duties in the field of mental injury in the shape of the decision in Robertson v Forth Road Bridge Joint Board,281 where the Court of Session refused to recognise the existence of an employer duty in the accident context. The earliest Scottish work stress cases expressly adopted the principles of Walker v Northumberland County Council:282 perhaps the most important was Cross v Highland and Islands Enterprise,283 where a 39-year-old man employed by the defenders as a senior training manager committed suicide and in an action brought by his widow it was alleged 276

Daw v Intel Corporation UK Ltd [2007] EWCA Civ 70.

277

Dickins v O2 plc [2008] EWCA Civ 1144.

278

Hatton v Sutherland [2002] ICR 613 at [36], [43] per Hale LJ. On the relationship between this ruling and the general law of causation, see NJ Mullany, “Containing Claims for Workplace Mental Illness” (2002) 118 LQR 373 at 375–376.

279

Barber v Somerset County Council [2004] ICR 457 at [63].

280

Dickins v O2 plc [2008] EWCA Civ 1144 at [46].

281

Robertson v Forth Road Bridge Joint Board 1995 SC 364: see [19.250]–[19.270].

282

Walker v Northumberland County Council [1995] ICR 702.

283

Cross v Highland and Islands Enterprise 2001 SLT 1060, noted by D Christie 2001 SLT 249.

[20.710]

20 Work Stress

723

that this had been caused by depression due to stress at work.284 Lord Carloway confirmed that the employer was under a duty to take reasonable care not to expose the employee to working conditions where it was reasonably foreseeable that such conditions were likely to cause damage to mental health (though the action failed on the facts). The principle laid down in Walker’s case was simply one aspect of an employer’s duty to take reasonable care for the safety and health of employees. His Lordship affirmed the soundness of this principle and rebutted challenges to it based on White v Chief Constable of South Yorkshire Police,285 Page v Smith286 and the suggestion that there should be no liability in the absence of sudden shock. [20.700] More recent Scottish cases specifically adopt the principles laid down in Hatton v Sutherland287 and Hartman v South Essex Mental Health and Community Care NHS Trust.288 For example, in Fletcher v Argyll and Bute Council,289 where a teacher sued for damages for psychiatric injury caused by being repeatedly confronted with the indiscipline of a particular class, she was able to show that her employers knew that this was making her ill and could have taken various steps to deal with it, but did nothing. It was held that her averments were sufficient to give her a cause of action in delict, and arguments based on Page v Smith290 were again rejected. In another case, Pratt v Scottish Ministers,291 Lord Emslie followed the House of Lords in Rothwell v Chemical & Insulating Co Ltd292 in suggesting that the principles developed in the work stress authorities were applicable to all employer–employee situations. [20.710] Scottish courts have been prepared to apply the detailed guidance found in Hale LJ’s judgment in Hatton v Sutherland293 and the other leading English decisions.294 For example, Scottish courts accept that there are no occupations that should be regarded as more 284

See also Mather v British Telecommunications plc 2001 SLT 325; Fraser v State Hospitals Board for Scotland 2001 SLT 1051; Green v Argyll & Bute Council [2002] Scot CS 56.

285

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455: see [19.340]. Note also Green v Argyll & Bute Council [2002] Scot CS 56 where the defender argued that the work stress category did not exist, but to no avail.

286

Page v Smith [1996] AC 155: see [7.450]–[7.480].

287

Hatton v Sutherland [2002] ICR 613: see eg Stevenson v East Dunbartonshire Council 2003 SLT 97; Taplin v Fife Council 2003 SLT 653. For Northern Ireland authorities see McClurg v Royal Ulster Constabulary [2007] NIQB 53; McCarroll v Northern Ireland Housing Executive [2012] NIQB 83. 288

Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782.

289

Fletcher v Argyll and Bute Council [2007] CSOH 174.

290

Page v Smith [1996] AC 155.

291

Pratt v Scottish Ministers 2009 SLT 429 at [17].

292

Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281: see [29.410].

293

Hatton v Sutherland [2002] ICR 613.

294

See eg Chapman v Lord Advocate 2006 SLT 186; Flood v University of Glasgow [2008] CSOH 98, reclaiming motion allowed by the Inner House Flood v University of Glasgow 2010 SLT 167.

724

Part IV: Relationship Cases

[20.720]

intrinsically dangerous than others,295 and that it is important to identify the steps that the employer could and should have taken.296

Ireland [20.720] The Irish courts have also recognised the principle of liability for psychiatric injury occasioned by work stress. This happened in a case decided less than two months after the House of Lords in White v Chief Constable of South Yorkshire Police297 held that there was no general principle of employer-based liability for mental harm. In McHugh v Minister for Defence,298 the plaintiff claimed damages for post-traumatic stress disorder sustained while serving with United Nations Peacekeeping Forces in Lebanon. He was exposed to a series of stressful events including a near miss when another soldier negligently discharged his rifle, and having to deal with badly mutilated bodies while involved in high risk search and recovery work. It was claimed that these events had a cumulative effect on him and that the defendant as his employer failed to observe the early symptoms of post-traumatic stress disorder and act accordingly. White was not cited, but Budd J in the Irish High Court was content to hold that the defendant as employer was under a duty to take reasonable care for the safety of its employees, and had to be aware of developments in psychiatric medicine relevant to stressors to which their employees were likely to be exposed in the course of their duties. In an earlier case, Curran v Cadbury (Ireland) Ltd,299 which was primarily concerned with involuntary participation, Judge McMahon confirmed that the employer’s duty is not confined to protecting employees from physical injury, but also extends to protection from mental or psychiatric illness that might result from negligence or from harassment or bullying in the workplace.300 He said that there was no reason to suspect that Irish courts would not follow the line of authority flowing from Walker v Northumberland County Council.301 295

See Taplin v Fife Council 2003 SLT 653 at [12] per Lord Philip.

296

See eg Stevenson v East Dunbartonshire Council 2003 SLT 97; Taplin v Fife Council 2003 SLT 653; Donaldson v Scottish Ministers 2009 SLT 240. 297

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

298

McHugh v Minister for Defence [2001] 1 IR 424: see G Kelly, “Post Traumatic Stress Disorder: Military and Police. The Legacy of Hillsborough: Part I” (1999) 17 ILT 217. Compare the factually similar Canadian case of Duplessis v Canada (unreported, Fed Ct, Docket T-294-00, 17 November 2000), which turned on issues of Crown liability, fiduciary duty, and the Canadian Charter of Rights and Freedoms. Compare also Corbett v Ireland (Attorney General) [2008] 1 IR 495, where there was no liability because the violent incidents witnessed by the plaintiff occurred during combat (though there was a duty to ensure soldiers had appropriate training and support to allow them to cope with traumatic events). 299

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343.

300

Note Kelly v Bon Secours Health System Ltd [2012] IEHC 21 (damages awarded for bullying and harassment at work).

301

Walker v Northumberland County Council [1995] ICR 702: see Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 349.

[20.740]

20 Work Stress

725

[20.730] In McGrath v Trintech Technologies Ltd302 Laffoy J confirmed the approach taken by Budd J in McHugh v Minister for Defence303 and suggested that Irish courts should now adopt the decision of the English Court of Appeal in Hatton v Sutherland304 as a starting point for consideration of work stress cases. The work stress principle has now been recognised by the Irish Supreme Court: Quigley v Complex Tooling & Moulding Ltd305 upheld the principle stated by Lavan J at first instance that the employer’s duty to take reasonable care for the health and safety of employees extended to conduct that would cause mental injury, instancing stress, harassment and bullying in the workplace.306 Quigley has been applied in subsequent cases.307

Canada [20.740] In Canada, liability for work stress is not a highly developed field of psychiatric damage law.308 In general, workers’ compensation legislation excludes tort actions for work-related injuries, and stressrelated injuries are litigated as workers’ compensation claims or under Labour Codes.309 This was confirmed by Rees v Royal Canadian Mounted Police,310 where a police officer attempted to sue at common law for psychiatric harm suffered as a result of allowing another officer, Corporal Fowler, to carry out a campaign of ruthless harassment against Mr Rees, after he had provided a statement against Corporal Fowler in a public complaint investigation. The Newfoundland and Labrador Court of Appeal confirmed that such a complaint was precluded because the legislation gave sole jurisdiction over such claims to the provincial workers’ compensation authority. This snuffed out a potentially interesting claim: at first instance Thompson J had held that the RCMP was liable not only to the officer but also to his wife.311 Applying the two-stage test of 302

McGrath v Trintech Technologies Ltd [2004] IEHC 342, applied in Maher v Jabil Global Services Ltd [2008] 1 IR 25; see also Berber v Dunnes Stores Ltd [2009] IESC 10.

303

McHugh v Minister for Defence [2001] 1 IR 424.

304

Hatton v Sutherland [2002] ICR 613.

305

Quigley v Complex Tooling & Moulding Ltd [2008] IESC 44.

306

Quigley v Complex Tooling and Moulding [2005] IEHC 71.

307

Eg Ruffley v Board of Management of St Anne’s School [2014] IEHC 235 (bullying); the claim was successful at first instance, but the Irish Court of Appeal reversed this decision: Ruffley v Board of Management of St Anne’s School [2015] IECA 287. In Sweeney v Ballinteer Community School [2011] IEHC 131 (another case involving bullying and harassment), the court found the defendant liable by applying standard psychiatric injury authorities such as Mullally v Bus Éireann [1992] ILRM 722 and Kelly v Hennessy [1995] 3 IR 253.

308

For assistance on this subject, thanks are due to Ken Cooper-Stephenson of the University of Saskatchewan and Louise Bélanger-Hardy of the University of Ottawa.

309

See eg Nurnber v Workers’ Compensation Board (NS) [2004] NSCA 83; Bishop v Nova Scotia (Workers’ Compensation Appeals Tribunal) (2012) 321 NSR (2d) 106.

310

Rees v Royal Canadian Mounted Police (2005) 246 Nfld & PEIR 79.

311

Rees v Royal Canadian Mounted Police (2004) 709 APR 1 (NL).

726

Part IV: Relationship Cases

[20.750]

duty conventionally followed in Canada,312 he concluded that psychiatric injury was foreseeable and that there were no policy considerations that negated or reduced the scope of the duty. Some support for Thompson J’s approach is provided by Sulz v Canada (Attorney General),313 a decision of the British Columbia Court of Appeal, where a former police officer claimed damages for harassment by her supervisors, to the point where she became so depressed that she had to seek a medical discharge. The court upheld the trial judge’s decision that all the elements of a cause of action in negligence were satisfied, and confirmed that this was not a dispute over employment benefits, but a tort claim for injuries suffered due to the conduct of the plaintiff’s manager. More recently, however, the Ontario Court of Appeal refused to recognise that work stress gave rise to a cause of action in tort, saying that policy considerations foreclosed recognition of a duty of care in the employment context.314

New Zealand [20.750] In New Zealand, in a case involving psychiatric injuries due to work stress, it was formerly possible to make a claim under the accident compensation legislation.315 Following the restriction of the scope of that scheme by the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ),316 it appears that responsibility for mental injuries caused by stressful employment conditions has shifted from the state back to the employer, and that it is now possible to make a claim for such injuries in common law negligence.317 Alternatively, it may be possible to pursue contractual remedies to redress a work stress claim, as Attorney General v Gilbert318 illustrates.

312

See [7.180].

313

Sulz v Canada (Attorney General) (2006) 276 DLR (4th) 391.

314

Piresferreira v Ayotte (2010) 319 DLR (4th) 665. Work stress claims do not appear to be well-known in the United States. Note Miller v Wackenhut Services Inc 808 F Supp 697 (1992), where a claim for the negligent infliction of emotional distress was allowed to proceed where an employer on several occasions threatened to terminate an employee if she did not renew her firearms qualification. The case turns mainly on the failed attempt to state a cause of action for intentional infliction of emotional distress (see [30.170]), and the facts are rather different from the typical English or Australian work stress case, in that it is the employer’s conduct in relation to specific matters, rather than the stress engendered by the employee’s general employment conditions, which gives rise to the action. 315

See Leitch v Accident Compensation Corporation [1990] 2 NZAR 26, and other cases cited by E Coppins, “Psychiatric Injury in Employment” (1997) 8 Auck ULR 387 at 394–397.

316

See [3.470].

317

See E Coppins, “Psychiatric Injury in Employment” (1997) 8 Auck ULR 387 at 411. In Urbani v Gillions [2004] NZCA 45 a claim for work stress was rejected on foreseeability and causation grounds, but there is no suggestion that the cause of action does not exist.

318

Attorney General v Gilbert [2002] 2 NZLR 342.

[20.780]

20 Work Stress

727

South Africa [20.760] In Media 24 Ltd v Grobler,319 South Africa’s highest court confirmed that an employee who has suffered sexual harassment, resulting in psychiatric harm, has a cause of action in delict. The Supreme Court of Appeal applied the standard authorities on psychiatric injury such as Barnard v Santam Bpk,320 and accepted expert evidence that the plaintiff was suffering from a recognised psychiatric injury. The court said that it was well settled that an employer owed a common law duty to employees to take reasonable care for their safety, which could not be confined to physical harm but in appropriate cases must extend to psychiatric harm.

TRENDS AND CONTRASTS [20.770] The High Court’s decision in Koehler v Cerebos (Australia) Ltd321 marked the emergence of a distinctively Australian law of liability for work stress. This was the point at which Australia rejected the English doctrine as restated by the English Court of Appeal in Hatton v Sutherland322 and the House of Lords in Barber v Somerset County Council.323 Ten years on from Koehler, it is evident that some important differences have emerged between the two jurisdictions. An attempt will now be made to identify some trends and contrasts that can be found in the case law of the two countries. [20.780] First, the separateness of Australian and English law is confirmed by the citation practice of the courts. In contrast to the early years, when the recognition of liability for work stress in England was assisted by the citation of Australian case law, and English cases helped to bring about the final endorsement of employer liability for workplace trauma in Australian jurisdictions, it is now rare for the jurisprudence of one country to be referred to in the other. In Australia, as already noted, the High Court decision in Koehler v Cerebos (Australia) Ltd324 forms the starting point, and English cases are now cited only rarely. For example, Hale LJ’s leading judgment in Hatton v Sutherland325 has been cited in only a handful of post-2005 Australian cases,326 and Dixon J in Swan v Monash Law Book Co-operative noted that “UK cases must be approached 319

Media 24 Ltd v Grobler [2005] 3 All SA 297 (SCA), followed in Mokone v Sahara Computers (Pty) Ltd [2010] ZAGPPHC 279.

320

Barnard v Santam Bpk 1999 (1) SA 202 (SCA).

321

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

322

Hatton v Sutherland [2002] ICR 613.

323

Barber v Somerset County Council [2004] ICR 457.

324

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

325

Hatton v Sutherland [2002] ICR 613.

326

The only cases in which Hatton v Sutherland [2002] ICR 613 has been cited (apart from references to the judgment of Hale LJ having been disapproved by Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44) are Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [223] per Beazley JA; Swan v Monash Law Book Co-operative [2013] VSC 326 at [171] per

728

Part IV: Relationship Cases

[20.790]

with care”.327 In England, the citation of Australian cases is almost unknown. Courts address themselves to the principles as stated by Hale LJ and the other leading English cases, and Koehler and other Australian cases hardly ever receive a mention.328 [20.790] Secondly, Koehler v Cerebos (Australia) Ltd329 on its facts involved a plaintiff whose complaint was that she was unable to carry out her stipulated duties in the time allotted to her. Cases where psychiatric injury results from stress due to overwork provide the most obvious scenario for the employer to rely on the employee’s contractual obligations. This argument proved very attractive to the High Court, even if it ultimately dismissed the plaintiff’s case on foreseeability grounds. It was suggested in the wake of Koehler that it would now be very difficult for a claim to succeed where stress resulted from the amount of work the employee was required to perform as part of his or her ordinary duties; and that given the High Court’s emphasis on what was agreed at the time of entering into the contract and the consequent irrelevance of subsequent attempts to vary the terms as a result of information later acquired about the vulnerability of the employee, it might be difficult for an Australian employee to succeed in a case like Walker v Northumberland County Council,330 where an English court held that psychiatric injury to an employee caused by the stress of carrying out the agreed contractual duties became foreseeable after the initial breakdown.331 Ten years on, no Australian plaintiff is known to have been successful in recovering damages in a work stress claim based on having to do too much work.332

Dixon J and Rawlings v Rawlings [2015] VSC 171 at [54] per Dixon J; note also New South Wales v Burton [2006] NSWCA 12 at [74] per Basten JA (on apportionment of damages). In MacKinnon v Bluescope Steel Ltd [2007] NSWSC 774 Hatton v Sutherland was cited at length by the trial judge but his judgment was overturned on appeal: MacKinnon v Bluescope Steel (AIS) Pty Ltd [2009] NSWCA 94. 327

Swan v Monash Law Book Co-operative [2013] VSC 326 at [170].

328

The only case in which Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 is known to have been cited is Garrod v North Devon NHS Primary Care Trust [2007] PIQR Q1. Counsel for the defendant referred to the statement in Koehler at [21] (quoted at [20.390]) that the content of the duty of care cannot be considered without taking into account the obligations under the contract. Henriques J (at [78]) simply brushed this submission aside, saying: “The facts of that case were very different. The Claimant had never sustained any breakdown and the hours worked were within contract.” 329

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

330

Walker v Northumberland County Council [1995] ICR 702.

331

P Handford, “Work Stress: Retreat or Revolution?” (2005) 13 Tort L Rev 159.

332

Claims based on the amount of kind of work the employee was required to do failed in Miskovic v Stryke Corporation Pty Ltd [2011] NSWCA 369; Taylor v Haileybury [2013] VSC 58; Larner v George Weston Foods Ltd [2014] VSCA 62; Rawlings v Rawlings [2015] VSC 171. In Doulis v Victoria (2014) Aust Torts Rep 82-177, where the plaintiff succeeded, the claim was based in part on a heavy workload but also on being exposed to highly stressful circumstances in the work environment and allegations of bullying. Note also the recent

[20.800]

20 Work Stress

729

In contrast, overworked plaintiffs have recovered damages in a long line of post-Hatton v Sutherland333 English cases.334 [20.800] There may be limited value in comparing different cases because ultimately the decisions always turn on the facts. However, it is noteworthy that there are a few English decisions where plaintiffs have succeeded even though they have not gone so far as to make a specific complaint about the effect their work is having on their mental health, whereas in Koehler v Cerebos (Australia) Ltd335 it was specifically noted that the plaintiff’s complaints were limited to the physical difficulty of doing the work in the time available. Hone v Six Continents Retail Ltd336 is a prominent example. The plaintiff, having been employed by the defendant as a pub manager for the past four years, was sent to work at a different hotel in August 1999. The workload was excessive, causing him to suffer stress, and he saw his doctor in May 2000 and complained of headaches and insomnia. A few days later he collapsed at work and had not worked since. His case was that he suffered from psychiatric injury caused by stress attributable to being required to work excessive hours without adequate support. Originally there had been four employees at the hotel, but two left in April 2000 and were not replaced. On 19 April the plaintiff had a meeting with the defendant’s operations manager and voiced concerns about his workload and the lack of an assistant manager (something he had complained about previously). The manager accepted that the plaintiff needed help but none was provided. The judge found that the plaintiff made no mention of his headaches or other symptoms at this meeting. Despite this, it was held that on and after the date of this meeting injury to health attributable to stress at work was reasonably foreseeable. Sayers v Cambridgeshire County Council337 was another case where the plaintiff complained about her heavy workload, plus the attitude of her manager. Eventually she left work suffering from a psychiatric illness, never to return. Unknown to her employer, the plaintiff had a past history of depression; she had been tearful and upset on occasions, and had taken limited time off work, but concealed the true nature of her illness. It was held that even assuming her illness was caused by overwork, it was not foreseeable in the circumstances, and even if the court had reached a different conclusion on this issue the decision in Roussety v Castricum Brothers Pty Ltd [2016] VSC 466, where abattoir proprietors were held to be in breach of their duty of care to a manager who suffered psychiatric injury due to long hours of work and being required to be on call 24 hours a day. The issue of causation was not decided. 333

Hatton v Sutherland [2002] ICR 613.

334

Hone v Six Continents Retail Ltd [2006] IRLR 49; Garrod v North Devon NHS Primary Care Trust [2007] PIQR Q1; Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 (QB); Daw v Intel Corporation UK Ltd [2007] EWCA Civ 70; Dickins v O2 plc [2008] EWCA Civ 1144; Whiteside v Croydon London Borough Council [2010] EWHC 329 (QB). 335

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

336

Hone v Six Continents Retail Ltd [2006] IRLR 49.

337

Sayers v Cambridgeshire County Council [2007] IRLR 29.

730

Part IV: Relationship Cases

[20.810]

employer was not in breach of duty because it had reduced her workload and taken effective steps to manage her grievance. However, what is important for present purposes is that Ramsey J accepted that there was no requirement that the employee must specifically complain that his or her health is at risk in order to make the necessary risk foreseeable.338 Clark v Chief Constable of Essex Police339 was somewhat different in that the plaintiff complained of stress and psychiatric injury caused by bullying rather than overwork. Tugendhat J refused a strike-out application. It was held that psychiatric injury was foreseeable because senior officers knew that the plaintiff was unable to cope with the treatment he was receiving from his superiors, even if the plaintiff had not used the complaint systems that were in place to make any allegation of breach of duty affecting his health (as opposed to complaining about the police officers concerned).340 [20.810] A third point of comparison between the Australian and English cases relates to the importance of the argument based on the plaintiff’s contractual obligations that proved so attractive to the High Court in Koehler v Cerebos (Australia) Ltd341 in filling out the content of the employer’s duty and rejecting the contention that in light of the well-recognised duties of employers to employees, which extended to psychiatric as well as physical harm, work stress was simply a matter of foreseeability.342 The High Court’s argument was derived from a passage in the speech of Lord Rodger of Earlsferry in Barber v Somerset County Council343 that has already been quoted,344 and as we have seen, the view adopted by the High Court in Koehler has now become a pillar of the orthodox Australian approach to work stress cases. However, in England, Lord Rodger’s argument has had virtually no effect. The case that paid most attention to the employee’s contractual obligations was the pre-Hatton v Sutherland345 case, Johnstone v Bloomsbury Health Authority,346 the case of the young hospital doctor required by his contract to work 40 hours a week and be on call for another 48 hours, who became ill as a result. He sought a declaration that he should not be made to work more than 72 hours a week, and damages for his illness. The English Court of Appeal recognised that the defendant owed a duty to take reasonable care not to injure the plaintiff’s health, but also that the plaintiff was under a contractual duty to be available for a stated number of hours. Leggatt LJ 338 Sayers v Cambridgeshire County Council [2007] IRLR 29 at [136]. This point is also supported by Barber v Somerset County Council [2004] ICR 457: see [20.620]. 339

Clark v Chief Constable of Essex Police [2006] EWHC 2290 (QB).

340

Clark v Chief Constable of Essex Police [2006] EWHC 2290 (QB) at [227], see also [20].

341

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

342

See [20.290]–[20.320].

343

Barber v Somerset County Council [2004] ICR 457.

344

See [20.330].

345

Hatton v Sutherland [2002] ICR 613.

346

Johnstone v Bloomsbury Health Authority [1992] 1 QB 333.

[20.830]

20 Work Stress

731

held that the express contractual term should prevail over the tort duty, but Stuart-Smith LJ reached the opposite conclusion, supported on slightly more restricted grounds by Sir Nicolas Browne-Wilkinson VC who held that the employer owed an obligation to take such care of the employee’s health as was consistent with his contractual undertaking. [20.820] Lord Rodger’s arguments in Barber v Somerset County Council347 have received almost no attention in subsequent English cases.348 There are only two cases where such arguments are known to have been put to the court, and on each occasion they were brushed aside. In Garrod v North Devon NHS Primary Care Trust,349 Henriques J noted that counsel for the defendant had referred to the passage in which Lord Rodger asked what steps the defendant Council had to take when by reason of some individual vulnerability Mr Barber was liable to suffer material injury to his health if he carried out the duties that were stipulated in his contract and for which he was paid his salary.350 Counsel also cited the High Court’s statement in Koehler v Cerebos (Australia) Ltd351 about contract and the content of the duty of care. These arguments were not further referred to in the judgment, and Henriques J had no difficulty in coming to a finding that the defendant was in breach of its duty. In Dickins v O2 plc,352 an issue arose whether the claimant should have been granted time off when she requested it due to stress. Counsel for the defendant submitted that to do so, when she was presenting herself at her place of work, would have been a breach of contract because the employer was under a duty to provide work, a submission described by Smith LJ as “nonsense”. “This was a woman who was asking for time off to recover from her feelings of exhaustion. To send her home on full pay pending investigation of her problem by Occupational Health could not possibly be described as a breach of contract.”353 [20.830] In England, there is perhaps not the same consciousness as in Australia that different categories are developing, although the Hatton v Sutherland354 principles have been successfully applied in at least two

347

Barber v Somerset County Council [2004] ICR 457.

348

See eg K Awadalla, Stress Claims (Lexis-Nexis UK, London, 2004), a text published in November 2004, in which Lord Rodger’s judgment does not receive a mention. In Bonser v UK Coal Mining Ltd [2003] EWCA Civ 1296, a case with facts very similar to Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, in that the plaintiff’s psychiatric problems were caused by being given too much work to do, the English Court of Appeal applied the foreseeability test and concluded that the employer was not liable.

349

Garrod v North Devon NHS Primary Care Trust [2007] PIQR Q1 at [76].

350

Barber v Somerset County Council [2004] ICR 457 at [26].

351

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [21]: see [20.290].

352

Dickins v O2 plc [2008] EWCA Civ 1144.

353

Dickins v O2 plc [2008] EWCA Civ 1144 at [33].

354

Hatton v Sutherland [2002] ICR 613.

732

Part IV: Relationship Cases

[20.840]

bullying cases.355 The argument that categories do not seem to be developing can perhaps be met by the rejoinder that they do not need to do so, since it is clear that Hale LJ’s principles can be satisfactorily applied in every class of case.356 Though the trauma category, for example, does not yet seem to have developed in England,357 cases of this kind can be found in other jurisdictions where the Hatton principles have been adopted — Scotland358 and Northern Ireland.359

CONCLUSION [20.840] Employer liability for the effects of work stress has been one of the fastest growth areas of psychiatric injury law over the past 20 years. When the first edition of this book was published, this field of liability was in its infancy: by the time of the second edition, the High Court had mapped out a new path for Australia, but it had not become clear whether this would result in a major deviation from the English authorities. However, it is now apparent that Australia is going its own way and the English case law has reduced relevance. [20.850] The work stress cases have been part of a more general movement in the case law that has confirmed that employers’ duties to take care for the health and safety of their employees extend to psychiatric just as much as physical injury. This has never been seriously questioned in Australia, and Koehler v Cerebos (Australia) Ltd360 endorses this position. In England, the House of Lords in White v Chief Constable of South Yorkshire Police361 may have tried to stem the tide in this regard, but the leading work stress decisions of the Court of Appeal in Hatton v 355

Melville v Home Office, one of six cases before the English Court of Appeal in Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782; Clark v Chief Constable of Essex Police [2006] EWHC 2290 (QB); note also Green v DB Group Services (UK) Ltd [2006] IRLR 764 where there was prior vulnerability. For Scottish bullying cases see Ward v Scotrail Railways Ltd [1998] Scot CS 95; Mair v DSG International plc [2013] Scot SC 68; note also Rorrison v West Lothian College [1999] Scot CS 212 (recognised psychiatric illness not established).

356

See Mullen v Accenture Services Ltd [2010] EWHC 2336 (QB) at [37] per Judge Clark QC.

357

Connor v Surrey County Council [2011] QB 429 (pressure on head teacher from Muslim-dominated school governing body) is perhaps an exception: the case deals mainly with principles of administrative law. 358

Fletcher v Argyll and Bute Council [2007] CSOH 174 (teacher faced with unruly pupils); Donaldson v Scottish Ministers 2009 SLT 240 (prison officer feared for safety after witnessing assault on prisoner); Pratt v Scottish Ministers 2009 SLT 429 (prison officer ingested prisoner’s blood when witnessing fight); McCarthy v Highland Council 2012 SLT 95 (teacher suffered series of assaults at hands of autistic boy). 359

McClurg v Royal Ulster Constabulary [2007] NIQB 53 (exposure to trauma during terrorist campaign: all claims dismissed, because either no breach or no recognised psychiatric illness). 360

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

361

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[20.850]

20 Work Stress

733

Sutherland362 and the House of Lords in Barber v Somerset County Council363 suggest that White is becoming an increasingly isolated decision.

362

Hatton v Sutherland [2002] ICR 613.

363

Barber v Somerset County Council [2004] ICR 457.

Chapter 21

Professional and Other Relationships [21.10] INTRODUCTION ............................................................................................................. 735 [21.30] PROFESSIONAL SERVICES ........................................................................................... 736 [21.30] Lawyers .............................................................................................................................. 736 [21.70] Doctors ................................................................................................................................ 740 [21.110] Psychiatrists ..................................................................................................................... 742 [21.150] Banks ................................................................................................................................. 745 [21.170] DEFECTIVE PRODUCTS AND SERVICES ................................................................ 746 [21.200] CARING INSTITUTIONS ............................................................................................. 748 [21.200] The Church ...................................................................................................................... 748 [21.220] Refuges and nursing homes ......................................................................................... 750 [21.230] Cemeteries and funeral homes ..................................................................................... 750 [21.240] GOVERNMENT AUTHORITIES AND CHILDCARE ............................................. 751 [21.240] Childcare authorities ...................................................................................................... 751 [21.330] The “stolen generation” ................................................................................................. 758 [21.390] Educational authorities and teachers .......................................................................... 762 [21.420] OTHER GOVERNMENT AGENCIES ......................................................................... 765 [21.420] Police ................................................................................................................................. 765 [21.450] Prisons ............................................................................................................................... 767 [21.490] Other cases ....................................................................................................................... 770 [21.500] CONCLUSION ................................................................................................................ 771

INTRODUCTION [21.10] Over the years, the major centre of attention in psychiatric injury law has been the paradigm secondary victim case involving plaintiffs who sustain shock-related injuries as a result of witnessing, coming upon the aftermath of, or learning about an accident involving death or serious injury to a near relative. However, case law on psychiatric injury caused in other ways has gradually accumulated in the background. These cases are generally characterised by the fact that there is some sort of relationship between the parties prior to the act of negligence — it is often inappropriate to describe it as an “accident” — that causes one party to

736

Part IV: Relationship Cases

[21.20]

suffer psychiatric injury.1 Some requirements of mainstream psychiatric injury law, such as sudden shock (prior to its rejection by the Australian High Court2), seem not to be necessary in these alternative fact situations. The most prominent category of case, that involving employer and employee, has been considered in earlier chapters.3 But there are many others: cases involving lawyers, doctors and other professionals; the supply of defective products and services; the church and other caring institutions; and government and other bodies discharging what are essentially public functions, such as the provision of childcare or educational services, police or prisons. The harm suffered is seldom the primary focus of attention in these cases. Where the existence of a duty of care is in issue, it usually turns on policy or other questions that have nothing to do with the damage involved. Often, the issues come before the court on an application to strike out the statement of claim, and so the court is ruling on the basis of assumed facts: in the United Kingdom, the European Convention on Human Rights and the Human Rights Act 1998 (UK) have caused some special difficulties in this regard.4 In other cases, liability may be admitted and the case is confined to assessment of damages, or the issue may arise in the context of exercising discretion to extend a limitation period or some other procedural scenario. But in none of these cases is liability rejected purely and simply because the injury is psychiatric, rather than physical or pecuniary. [21.20] It may not be a wildly inaccurate prediction to suggest that, in time to come, employment cases and service provision cases may be ranked alongside “accident” cases as the three major sources of psychiatric injury law, and that the principles applied will vary somewhat from one kind of case to another.5 Something not dissimilar has happened in the United States in relation to the tort of intentional infliction of emotional distress, where the major categories of cases include those involving the abuse of a position or relationship, as well as cases where the parties are previously strangers.6

PROFESSIONAL SERVICES Lawyers [21.30] It has been clear ever since Cook v Swinfen7 that damages for psychiatric injury can be recovered against a solicitor in an action for 1 See Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 329 per Amarjeet JC; Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) at 63–64 per Navsa J. 2

Tame v New South Wales (2002) 211 CLR 317.

3

Chapters 19–20.

4

See [21.260].

5

See P Handford, “Psychiatric Injury Resulting from Medical Negligence” (2002) 10 Tort L Rev 38 at 39. 6

See [30.630].

7

Cook v Swinfen [1967] 1 WLR 457.

[21.30]

21 Professional and Other Relationships

737

breach of contract. In this case, the plaintiff suffered a “breakdown in mental health” when, due to her solicitor’s carelessness, her divorce proceedings did not turn out the way they should have done. However, it is now recognised that breaches of the duty of care that solicitors owe to their clients are remediable in tort as well as in contract,8 and in a number of cases in which the incompetence of lawyers has caused their clients to suffer distress resulting in psychiatric injury,9 the courts have emphasised tort principles. In Al-Kandari v JR Brown & Co10 a firm of solicitors that negligently allowed a Kuwaiti husband to regain possession of his confiscated passport in circumstances where he was likely to remove his children to Kuwait against the will of his English wife was held liable to her for psychiatric injury resulting from the kidnapping of the children, which was effected by ambushing the wife and leaving her bound, gagged and imprisoned in a van. Although the plaintiff also suffered physical injuries, her psychiatric reaction resulted primarily from the abduction of her children, rather than what happened to her.11 In Dickinson v Jones, Alexander & Co,12 the plaintiff instructed solicitors to commence divorce proceedings against her husband, to whom she had been married for 29 years. Her matrimonial situation was causing her to suffer ill health, as her solicitors knew. The husband had a successful business and substantial assets, but the solicitors took the view that the former matrimonial home was the only asset in which the wife could claim a share, and she ended up living in very modest circumstances. This inept bargain made for her caused her to suffer stress, strain and anxiety. On the advice of another firm of solicitors, she sued her former solicitors for negligence and breach of contract, and claimed damages inter alia for her mental suffering. It was held that she could recover compensation for the vexation, anxiety and stress that were the direct and foreseeable consequences of the solicitors’ failure to obtain proper relief for a client whose health, as they knew, had been affected by the matrimonial breakdown. It is not clear whether her mental suffering amounted to recognisable psychiatric injury, and it could be argued that the damage award was for breach of contract, not tort, but Douglas Brown J used language appropriate to tort, asking what was reasonably foreseeable and 8 See in particular Midland Bank Trust Co v Hett, Stubbs & Kemp (a firm) [1979] Ch 384; Central Trust Co v Rafuse [1986] 2 SCR 147; Hawkins v Clayton (1988) 164 CLR 539 at 574–575 per Deane J; Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 at 185–192 per Lord Goff of Chieveley. 9

Distinguish the situation in Nikolau v Papsavas, Phillips & Co (1988) Aust Torts Rep 80-225 where the plaintiff suffered psychiatric injury as a result of the death of his daughter in a car accident, but the lawyer failed to advise him that he could recover damages for such an injury. 10

Al-Kandari v JR Brown & Co [1988] QB 665.

11

“Had the facts been slightly different and no physical harm had befallen the plaintiff, her claim could have been denied on the authority of Alcock [v Chief Constable of South Yorkshire Police [1992] 1 AC 310], but this result seems entirely artificial”: S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), p 137.

12

Dickinson v Jones, Alexander & Co [1993] 2 FLR 521.

738

Part IV: Relationship Cases

[21.40]

referring to the principle of known susceptibility, and his decision is perfectly consistent with negligence principles (assuming the damage to be of the recognised kind). A third such case is Hutt v Piggott, Wood & Baker,13 where the plaintiff, who had been injured in the course of her employment, consulted solicitors who instituted a personal injury claim. She duly received compensation in 1990, but they did not make her aware that she would be precluded from obtaining social security benefit until July 1992. She spent the whole of her damages payout in four months and then found that she had no income. She sued the solicitors for negligence and breach of contract, including damages for distress. The defendants admitted that they owed her a duty of care both in contract and in tort. Crawford J said that although it was not clear that her condition could be classified as post-traumatic stress disorder, she had suffered depression and was entitled to be compensated for it as part of her award. It seems clear that the judge contemplated that damages for psychiatric injury could be awarded in tort in such a situation. His discussion of the case law dealing with solicitors’ liability focused on the appropriate principles of negligence.14 [21.40] There are other cases in which damages have been awarded against careless lawyers but the status of the harm suffered is open to rather more doubt, and may not have amounted to a recognisable psychiatric illness.15 For example, in an Ontario case, Stewart v Canadian Broadcasting Association,16 the plaintiff, who had been charged with criminal negligence causing death, had been defended by a prominent silk. After his release from prison, he saw a television program on the case as part of a series on the administration of justice, in which the silk participated in breach of his continuing fiduciary duty. He recovered $2,500 for “emotional harm”. In Duvall v Godfrey, Virtue & Co,17 a case from Western Australia, Mr Duvall, who had been injured due to a slippery floor while playing pool in a hotel, engaged the defendants to make a personal injury claim on his behalf. The trial was adjourned and the solicitor did not notify the plaintiff — he found out that he had lost the case when he read it in a newspaper. He was annoyed that he had been made liable for costs, and had no further communication from the solicitor until he found a writ of fi fa nailed to his front door. Malcolm CJ found that the solicitors were in breach of their duty of care. Since there was no scope for awarding damages by reference to what the plaintiff 13

Hutt v Piggott, Wood & Baker (unreported, Tas SC, No B20 of 1993, 28 May 1993).

14

Principally Hawkins v Clayton (1988) 164 CLR 539.

15

Cases where claims against lawyers failed on the ground of inability to establish psychiatric injury include Dalton v Wright Hassall (a firm) 2000 WL 33281258 (Eng QB); Amonoo-Quyst v McHale 2001 WL 753374 (Eng QB); Goodwin v Becker 2013 BCSC 2148. In Amonoo-Quyst Crane J said at [68] that though in tort psychiatric injury had to be caused by shock, there was no reason in principle why in contract a duty should not be wider, if foreseeability is established.

16

Stewart v Canadian Broadcasting Association (1997) 150 DLR (4th) 24.

17

Duvall v Godfrey, Virtue & Co (unreported, WASC, CIV 1758 of 1996, 18 September 1996).

[21.60]

21 Professional and Other Relationships

739

might have recovered if the action had been successful, his Honour assessed damages by reference to the sum required to compensate the plaintiff for distress and any injury to health, including mental stress and injury. On appeal to the Full Court, damages were increased.18 [21.50] Occasionally, judgments do not contain enough reasoning to make it possible to be confident about the basis of the claim. In an Ontario case, Boudreau v Benaiah,19 the plaintiff hired a law firm to act for him after he was charged with abducting his son in contravention of a custody order. His lawyer was guilty of negligence in the conduct of the case, and as a result the plaintiff suffered from serious depression. He sued for negligence and breach of contract, and received $30,000 damages. There is no reasoning in Greer J’s judgment justifying such an award, but the case seems best regarded as one involving the breach of a relationship. Liability was not in issue when the case was appealed to the Ontario Court of Appeal, but the court reduced the damages by half because the trial judge’s finding that the law firm’s conduct had a caused break-up of the plaintiff’s family relationship was not supported by the evidence. However, there was evidence that the misconduct was a cause of the plaintiff’s depression. [21.60] McLoughlin v Jones20 now supplies the conceptual underpinning for the lawyer cases. Because the plaintiff is a primary victim, what matters is not whether psychiatric harm was foreseeable to a person of ordinary fortitude, but whether such harm was foreseeable to this plaintiff in the particular circumstances of this case. The English Court of Appeal, dealing with duty as a preliminary issue, held that the test was satisfied and that the claim should not be struck out. Unlike some of the cases dealt with at [21.30], where the alleged negligence related to the conduct of matrimonial proceedings or a personal injury claim, in McLoughlin v Jones the solicitor was defending a client accused of a serious criminal offence, with the consequent risk of loss of liberty if that defence was not carried out competently — which is what happened.21 This, if nothing else, makes McLoughlin v Jones a particularly important case. However, the nature of the work the solicitor is doing for the client is not relevant to the duty issue: what matters is whether, in the circumstances of the case, it is foreseeable that the client may suffer psychiatric injury.

18

Duvall v Godfrey, Virtue & Co [2001] WASCA 105.

19

Boudreau v Benaiah (1998) 154 DLR (4th) 650.

20

McLoughlin v Jones [2002] QB 1312: see [18.120]–[18.160].

21

Note also McLeish v Amoo-Gottfried & Co (The Times, 13 October 1993) (plaintiff wrongly convicted of criminal offence due to his solicitor’s negligence; court in awarding damages took into account loss of reputation increasing his mental distress).

740

Part IV: Relationship Cases

[21.70]

Doctors [21.70] Claims against doctors, hospitals and health authorities for psychiatric illness caused by medical negligence are not uncommon. In Wilson v Tasmania22 the plaintiff was in hospital for investigation of a heart problem. He was given a drug by intravenous infusion, but due to either human or mechanical failure he received a substantial overdose. The plaintiff, who had trained as a psychiatric nurse and was the Director of Nursing for Tasmania, was aware within seconds of what was happening, and his shouts caused the nursing staff to come and discover the mistake. Liability for the plaintiff’s proved anxiety disorder was admitted. In Ackers v Wigan Health Authority23 the plaintiff, pregnant with her first child, had to have a caesarean section. The anaesthetic did not work as it should have done, and the plaintiff, though paralysed, was conscious throughout the operation, which lasted for over an hour. The defendant admitted liability for the psychiatric illness that resulted. These are just two examples of psychiatric injury resulting from negligent treatment.24 Other cases involve failure to warn,25 negligent advice,26 negligent diagnosis27 and negligent prescription.28 [21.80] Hollier v Sutcliffe29 is an important recent example of an attempt to sue for mental harm resulting from negligent treatment. The plaintiff claimed damages for negligence against a doctor who inserted an implanon contraceptive implant into her arm, alleging the doctor inserted it incorrectly and then failed to take appropriate action to deal with the error, in consequence of which the plaintiff suffered significant and ongoing mental trauma. Hulme J was not satisfied that there was negligence, or that if there was negligence it was a necessary condition of the occurrence of the harm. However, he dealt with the duty issues arising under s 32 of the Civil Liability Act 2002 (NSW). He held that the plaintiff was not a person of normal fortitude, and that he was unable to conclude that the defendant should have foreseen that a recognised psychiatric illness might have been suffered by a person of normal fortitude. The plaintiff’s contention that s 32 did not apply because her 22

Wilson v Tasmania [1999] TASSC 145, award of damages varied in Tasmania v Wilson [2000] TASSC 152.

23

Ackers v Wigan Health Authority [1991] 2 Med LR 232.

24

For other examples, see Fleming v Toltz [2000] NSWSC 606; Doughty v North Staffordshire Health Authority [1992] 3 Med LR 81; Rahman v Arearose Ltd [2000] QB 351; Frazer v Haukioja (2010) 317 DLR (4th) 688; Murphy v Implicito 920 A 2d 678 (NJ 2007). 25

See eg Goorkani v Tayside Health Board [1991] 3 Med LR 33; Smith v Barking, Havering and Brentwood Area Health Authority [1994] 5 Med LR 285; McAllister v Ha 496 SE 2d 577 (NC 1998).

26

See eg Backwell v AAA (1996) Aust Torts Rep 81-387; Gilbert v Castagna [2000] NSWSC 461 (application to extend limitation period); Biles v Barking Health Authority [1998] CLY 1103.

27

See eg Bramer v Dotson 437 SE 2d 773 (WVa 1993); Chizmar v Mackie 896 P 2d 196 (Alaska 1995).

28

See eg Davis v Jacobs [1999] EWCA Civ 911.

29

Hollier v Sutcliffe [2010] NSWSC 279.

[21.100]

21 Professional and Other Relationships

741

claim was for mental harm consequent on the insertion of the implant was rejected: s 32 applied to all claims for mental harm, both pure and consequential. [21.90] Other cases involve acts of negligence that cannot really be classified as medical treatment.30 In Millicent and District Hospital Inc v Kelly,31 the plaintiff, a 19-year-old woman who was 10 to 12 weeks pregnant, was admitted to hospital following stomach pains and bleeding and a few hours later passed a blood clot. The nurse told her, “you have gone too far”, and she presumed she had miscarried and was upset. Later, awaking from sleep, she saw by her bed a clear plastic specimen bottle containing blood matter and what she took to be part of a limb. It was suggested in evidence that nurses sometimes did this to make the patient feel that she had miscarried. Though it was never established who was responsible for putting the bottle there, the judge held that the defendant should have foreseen that the loss of her child would cause distress to the plaintiff, and that the sight of the container and its contents would make the distress worse, even if in fact she was mistaken as to the nature of the contents. The appeal against this decision was dismissed. In G v North Tees Health Authority,32 a child aged six attended hospital for treatment of a skin complaint and her mother told the doctor that she was suffering from a vaginal discharge. A swab was taken, and the presence of male sperm was reported. As a result, the police and social services were informed, and the child was detained in hospital and subjected to a painful internal examination. It was then discovered that the slide used for the swab had also been used for the swab of an older person who had had sexual intercourse. As a result of her experience the child suffered from nightmares and fear of doctors, and was preoccupied with sexual matters and genitalia. Liability was admitted. [21.100] Cases involving the negligent communication of bad news are fully discussed in another chapter.33 Doctors and other health professionals often have the responsibility of communicating distressing information to third parties. The cases suggest that there may be liability in negligence if the information communicated is false, or possibly (but this is much more controversial) if true bad news is communicated in a particularly uncaring or callous manner. Jinks v Cardwell,34 where a wife suffered physical and emotional distress caused by a doctor’s negligent 30

Note also the allegations of failure to ensure that the plaintiff received appropriate counselling in Allin v City and Hackney Health Authority [1996] 7 Med LR 167: see [28.120]. In Hobbs v Lopez 645 NE 2d 1261 (Ohio 1994) a doctor treating a 21-year-old woman telephoned her parents to tell them she was pregnant and had sought advice about abortion; the court held that the plaintiff had failed to state a cause of action for negligent infliction of emotional distress. 31 Millicent and District Hospital Inc v Kelly (unreported, SAFC, No SCGRG-95-2486, 10 September 1996), noted by J Devereux (1997) 4 JLM 224. 32

G v North Tees Health Authority [1989] FCR 53.

33

See Chapter 28.

34

Jinks v Cardwell (1987) 39 CCLT 168.

742

Part IV: Relationship Cases

[21.110]

communication of information concerning her husband that was in the main false, is an example of the former kind of case. Furniss v Fitchett,35 where a doctor was held liable for nervous shock after he issued a certificate to her husband saying she was in need of psychiatric treatment, is one case that suggests there may be some liability in the latter situation.36

Psychiatrists [21.110] The potential liability of a psychiatrist to a patient was considered by the English Court of Appeal in X (Minors) v Bedfordshire County Council,37 in the context of a case where social workers who suspected that a child had been sexually abused arranged for her to be interviewed by a psychiatrist and a social worker. When the child named the abuser by his first name, it was assumed that her mother’s boyfriend, who had the same name, was the abuser, and as a result the child was removed from the mother’s care. Eventually it was discovered that the abuser was not the boyfriend but the child’s cousin. Mother and child sued the Newham London Borough Council and the psychiatrist for breach of statutory duty and negligence, claiming that they had suffered a psychiatric disorder. This case and a similar allegation made on behalf of children against the Bedfordshire County Council were heard together. The Court of Appeal held that the council were not under a duty of care, and the House of Lords dismissed an appeal against this decision. The position of the council raises issues that are dealt with at [21.240]–[21.320]. Here we consider only the claim against the psychiatrist. [21.120] Sir Thomas Bingham MR said that the psychiatrist owed the child patient a duty of care. Though it was not a typical doctor–patient relationship, in that she did not initiate the consultation, and the psychiatrist had been engaged to advise the council, it was a very direct and personal relationship. Policy arguments against the recognition of a duty in the special circumstances of the case did not prevail: it was more important to ensure that psychiatrists exercised care in the performance of their professional duties. The argument that the psychiatric disorder suffered by the child was not damage that the law would recognise was comprehensively rejected: This submission was based on the speech of Lord Ackner in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 400. Authoritative though that statement is, I question whether it can be held to preclude a claim by the child for psychiatric disorder in present circumstances if that claim is otherwise soundly based. I give three reasons. (1) Lord Ackner acknowledged in the passage relied on that future development of the law was to be expected and in 35

Furniss v Fitchett [1958] NZLR 396.

36

See also Allin v City and Hackney Health Authority [1996] 7 Med LR 167; AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91; Lew v Mount St Joseph Hospital Society (1997) 36 CCLT (2d) 35, application for leave to appeal dismissed Lew v Mount St Joseph Hospital Society (1997) 44 BCLR (3d) 84.

37

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

[21.130]

21 Professional and Other Relationships

743

McLoughlin v O’Brian [1983] 1 AC 410, 443A Lord Bridge of Harwich had warned against the temptation of seeking to freeze the law in a rigid posture. The recent work Mullany and Handford Tort Liability for Psychiatric Damage (1993) suggests some diversity of approach among the major common law jurisdictions (see pp 202 et seq), and it seems unlikely that the last word has been said in this difficult and contentious area. (2) The problem with which the courts were attempting to grapple in the “nervous shock” cases was one of demarcation: how to afford redress to those most directly exposed to a calamity without opening the door to plaintiffs ever more remote from and ever more distantly related to the victims of the calamity. That is not a problem which arises in relation to this claim by the child. (3) The child and the mother are not claiming damages for grief and distress, but for what is said to be a positive psychiatric illness. … (4) It would be little short of absurd if the child were held to be disentitled to claim damages for injury of the very type which the psychiatrist should have been exercising her skill to try and prevent.38

The other judges, however, held that the psychiatrist could not owe the child a duty in the situation where the child was not the psychiatrist’s patient, and the psychiatrist had been engaged by the council.39 On appeal, the House of Lords agreed, save for Lord Nolan, who said that, public policy apart, he was unable to accept that the psychiatrist was exempt from a general professional duty of care towards the child, and expressed his agreement with the Master of the Rolls on this aspect of the case.40 [21.130] The judgment of the House of Lords on the issue of the council’s liability to the child in such situations has been overtaken by subsequent developments, and the proposition that councils in discharging their childcare responsibilities owe a duty of care to the child who is the subject of the proceedings commands much more general acceptance. Likewise, later cases suggest that psychiatrists and other professionals such as social workers may owe a duty of care in such situations. The House of Lords confirmed as much in Phelps v London Borough of Hillingdon,41 a case involving an education authority: it was held that the authority was vicariously liable for breach of duty by an educational psychologist. In B v Attorney General,42 on appeal from the New Zealand Court of Appeal, the Privy Council held that a clinical psychologist and a social worker who failed to carry out a proper investigation into allegations by a child that she was being sexually abused by her father each owed the child a duty of care. It is suggested that in future cases where courts are dealing with the responsibilities of 38

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 663–664. However, His Lordship said at 665–666 that the psychiatrist owed no duty of care to the mother, because she was not in any meaningful sense his patient. 39

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 673–675 per Staughton LJ, at 680–682, 683–684 per Peter Gibson LJ. In E v K [1995] 2 NZLR 239 at 248, Morris J said that he preferred the view of Sir Thomas Bingham MR. 40

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 771–772.

41

Phelps v London Borough of Hillingdon [2001] 2 AC 619.

42

B v Attorney General [2003] Lloyd’s Rep Med 527.

744

Part IV: Relationship Cases

[21.140]

professionals assisting a council in the performance of its functions, Sir Thomas Bingham MR’s dissenting judgment should now be regarded as the authoritative statement of the legal position. [21.140] In a straightforward case where the patient initiates the consultation, and the complications of the situation just considered are absent, X (Minors) v Bedfordshire County Council43 suggests that there should not be much difficulty in holding that the psychiatrist owes a duty of care not to cause psychiatric injury to the patient, if foreseeability and other general requirements are present. In Australia, Pickering v McArthur44 appears to confirm that psychiatrists and similar professionals will be under a duty to take care not to cause psychiatric injury. The court refused to strike out a claim against a massage therapist for alleged negligent relationship counselling, saying that the nature of the relationship was such that the case for the recognition of a duty to exercise reasonable care to avoid inflicting psychiatric injury was at least as strong, if not stronger, than the case of the successful plaintiffs in Tame v New South Wales.45 United States cases also provide authority for the existence of a cause of action. For example, in Rowe v Bennett46 damages were awarded against an analyst who was counselling the plaintiff over difficulties in her lesbian relationship and who caused the plaintiff emotional distress by herself forming a liaison with the plaintiff’s companion; and in Corgan v Muehling47 a psychiatrist was held liable when he had sexual intercourse with his patient under the guise of therapy, causing her further distress for which she required further treatment.48

43

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

44

Pickering v McArthur [2005] QCA 294.

45

Pickering v McArthur [2005] QCA 294 at [10] per McMurdo P, referring to the Annetts’s claim in Tame v New South Wales (2002) 211 CLR 317. Note also Brown v New South Wales [2007] NSWCA 165 at [5] per Hodgson JA, suggesting that a remedy would be available where a psychiatrist treating a patient for medical problems had a sexual relationship with the patient.

46

Rowe v Bennett 514 A 2d 803 (Me 1986).

47

Corgan v Muehling 574 NE 2d 602 (Ill 1991).

48

Note also Marlene F v Affiliated Psychiatric Medical Clinic Inc 770 P 2d 278 (Cal 1989) (psychologist molested children of plaintiff who was also a patient); Richard FH v Larry HD 243 Cal Rptr 807 (1988) (marriage counsellor liable to client’s spouse for emotional distress arising from counsellor’s sexual relations with client). In Welker v Southern Baptist Hospital of Florida Inc 864 So 2d 1178 (Fla 2004) an appeal court suggested that the Florida impact rule should not prevent a husband from recovering damages for emotional distress caused by a statement made by his wife’s counsellor that he had committed child abuse against his children, resulting in an injunction, and loss of access to his children for a year. The issue was referred to the Florida Supreme Court. The Supreme Court declined to answer the question because it had not been raised by the parties, but quashed the decision: Southern Baptist Hospital of Florida Inc v Welker 2005 WL 851030.

[21.150]

21 Professional and Other Relationships

745

Banks [21.150] In Australia, it has been argued on several occasions that banks owe a duty to their customers not to cause them psychiatric injury, but that argument has always been unsuccessful.49 The leading decision is Stergiou v Citibank Savings Ltd,50 where a mortgagee claimed that mortgagors had defaulted due to the wrongful debiting of their accounts by Citibank, and that this had caused him to suffer psychiatric injury, in addition to other damage. The bank was granted leave to apply for summary judgment, and the Full Federal Court dismissed the mortgagor’s appeal.51 Crispin J at first instance noted that nervous shock claims, though first recognised in accident cases, had been extended to other cases where there was no physical danger, such as the negligent transmission of bad news, but could not accept that the bank’s actions in making wrongful debits or instituting proceedings to recover possession of the property gave rise to a foreseeable risk of psychiatric injury,52 and the Full Court agreed.53 In Pavlovic v Commonwealth Bank of Australia,54 Legoe J in the Supreme Court of South Australia reviewed possible ways of recovering for emotional harm, including an action under Wilkinson v Downton,55 but did not even entertain the suggestion of an action in negligence based on the relationship between the parties. Paola v State Bank of New South Wales Ltd56 might offer a little hope. Following the freezing of the assets of companies in which the plaintiff and her husband were shareholders and directors, the plaintiff became depressed and was diagnosed as suffering from bipolar disorder. An extension of the limitation period in an action against the bank was refused on other grounds, but the Master commented that although the cause of action was novel, it was a case where a final view could only be formed at trial.57 A recent case, Roberts v Westpac Banking Corporation,58 deals with the limits of a bank’s duty to customers present in the bank during a hold-up for resulting psychiatric injury; here the bank’s liability is limited by the principle that the occupier of premises does not owe a duty to visitors for harm resulting from the deliberate criminal acts of third parties.59 49

Likewise, a bank that converted its agencies to franchises owed no duty in respect of psychiatric injury allegedly suffered by franchisees when the franchises were not successful: Traderight (NSW) Pty Ltd v Bank of Queensland Ltd (No 17) [2014] NSWSC 55.

50

Stergiou v Citibank Savings Ltd (1998) 148 FLR 244.

51

Stergiou v Citibank Savings Ltd [1999] FCA 1321.

52

Stergiou v Citibank Savings Ltd (1998) 148 FLR 244 at 250.

53

Stergiou v Citibank Savings Ltd [1999] FCA 1321 at [17].

54

Pavlovic v Commonwealth Bank of Australia (1991) 56 SASR 587.

55

Wilkinson v Downton [1897] 2 QB 57: see Chapter 30.

56

Paola v State Bank of New South Wales Ltd [2000] NSWSC 822.

57

Paola v State Bank of New South Wales Ltd [2000] NSWSC 822 at [34] per Master Malpass.

58

Roberts v Westpac Banking Corporation [2015] ACTSC 397.

59

See Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

746

Part IV: Relationship Cases

[21.160]

[21.160] The situation appears to be the same in Canada;60 however, a United States case suggests that in certain circumstances banks may be liable in negligence for causing mental harm. In Ford v NCNB Corporation61 the negligent loss of a deposit by a bank caused the depositor (who had placed the deposit for his employer) to lose his job. He recovered damages from the bank for emotional distress, in spite of the absence of actual or threatened physical contact.62

DEFECTIVE PRODUCTS AND SERVICES [21.170] Ever since Mrs May Donoghue went to meet a friend in a café in Glasgow and the remains of a dead snail floated out of the bottle of ginger beer she had been drinking, the law has recognised the possibility of a negligence action for injuries caused by a defective product.63 The duty of the manufacturer to the consumer outlined by the House of Lords in this case assumed that Mrs Donoghue became ill as a result of having drunk ginger beer containing the remains of the snail, rather than through shock at having done so, but it is not a very large step from this to a situation where a person suffers shock and psychiatric injury on discovering that they have consumed contaminated food or drink.64 That liability can exist in such a situation was confirmed by the Australian case of Vince v Cripps Bakery Pty Ltd,65 where a man developed a phobia after realising that he had eaten bread containing a dead mouse.66 Nor is it necessary that the product be actually consumed. In two Canadian cases, plaintiffs recovered for the shock caused by finding a partly decomposed mouse in a bag of flour, and metal and blue mould in bread.67 More 60

See Clark v Scotiabank 2004 CanLII 34338. Note also Cole v Prairie Centre Credit Union Ltd 2007 SKQB 330 (customers of a credit union that discarded confidential information failed in their application for certification of a class action, inter alia because they were unable to establish recognisable psychiatric illness).

61

Ford v NCNB Corporation 408 SE 2d 738 (NC 1991).

62

Note also First National Bank v Langley 314 So 2d 324 (Miss 1975).

63

Donoghue v Stevenson [1932] AC 562.

64

Note also the possibility of a secondary victim claim: see [22.790].

65

Vince v Cripps Bakery Pty Ltd (1984) Aust Torts Rep 80-668.

66

See also Young v JD Coates Pty Ltd (unreported, NSWCA, CA No 171 of 1988, 5 October 1990) where the plaintiff developed a phobia after eating poisoned apricot kernels.

67

Curll v Robin Hood Multifoods Ltd (1974) 56 DLR (3d) 129; Taylor v Weston Bakeries (1976) 1 CCLT 158. Note also Zavitsanou v McDonalds Australia Ltd [2004] NSWCA 10 (knife blade in hamburger: plaintiff’s psychiatric injury held to be caused by other factors). Similar situations have arisen in the United States: see eg Sullivan v HP Hood & Sons 168 NE 2d 80 (Mass 1960) (dead mouse in milk); Way v Tampa Coca Cola Bottling Co 260 So 2d 288 (Fla 1972) (plaintiff’s lips came into contact with rat in bottle of soft drink); Ford v ALDI Inc 832 SW 2d 1 (Mo 1992) (insect in spinach). Note Ellington v Coca Cola Bottling Co of Tulsa Inc 717 P 2d 109 (Okl 1986) (plaintiff saw what she thought was a worm in her drink: it turned out to be a piece of confectionery). It is not only snails which find their way into ginger beer: a plaintiff confronted by a lizard in a bottle of ginger ale claimed damages for shock (without success) in Aithal v Seychelles Breweries [2006] SCSC 26.

[21.180]

21 Professional and Other Relationships

747

recently, in Mustapha v Culligan of Canada Ltd,68 the sight of a dead fly in a bottle of water delivered by the defendant to the plaintiff’s home resulted in him having constant nightmares about flies and developing an aversion to water, refusing to shower or to drink coffee made with water. The plaintiff succeeded at first instance,69 but the Ontario Court of Appeal held that there was no duty of care because psychiatric injury was not foreseeable to a person of ordinary fortitude70 and the Supreme Court of Canada agreed, though it reclassified the psychiatric injury issues as remoteness rather than duty.71 In the United Kingdom, psychiatric injury in a consumer protection context is now the subject of statutory provisions.72 [21.180] The possibility of liability for psychiatric harm exists in all sorts of situations involving defective products. Some cases involve circumstances of the utmost seriousness. In S v Distillers Co (Biochemicals) Ltd,73 a mother sued and recovered damages from the biochemical company responsible for the marketing of the tragically defective drug thalidomide for the “permanent” emotional shock and resultant psychiatric injury brought about by the trauma and heartbreak of seeing her child born “misshapen and deformed”. The daily reminder involved in the mother’s care was viewed as possibly aggravating the shock resulting from the birth itself.74 In Hagan v Dalkon Shield Claimants Trust,75 a wife claimed that using the Dalkon Shield contraceptive device caused her to develop pelvic inflammatory disease and become infertile, resulting in the breakdown of her marriage. She claimed inter alia for emotional distress (and her husband claimed for loss of consortium). The action was dismissed on the ground that it had not been proved that the Dalkon Shield was the cause of her infertility. If this had been established, the judge would have awarded substantial damages to the wife for her

68

Mustapha v Culligan of Canada Ltd [2008] 2 SCR 114: see [3.360]–[3.420].

69

Mustapha v Culligan of Canada Ltd (2005) 32 CCLT (3d) 123.

70

Mustapha v Culligan of Canada Ltd (2006) 275 DLR (4th) 473.

71

Note also Friedman v Merck & Co Inc 131 Cal Rptr 2d 885 (2003) (manufacturer that misrepresented ingredients in tuberculosis test did not assume any duty to protect vegan consumer from serious emotional harm suffered when he discovered that product contained animal matter).

72

On psychiatric injury under the Consumer Protection Act 1987 (UK) and in the context of European Union law, see CJ Miller and R Goldberg, Product Liability (2nd ed, Oxford University Press, Oxford, 2004), pp 646–650. 73

S v Distillers Co (Biochemicals) Ltd [1969] 3 All ER 1412.

74

Note also McMullin v FW Woolworth Co Ltd (1974) 9 NBR (2d) 214, where a mother claimed to have suffered psychiatric injury due to anxiety over two young children infected with a disease akin to typhoid fever as a result of salmonella bacteria transmitted from pet turtles purchased in the defendant’s store. The claim failed on the facts.

75

Hagan v Dalkon Shield Claimants Trust (1998) 231 AR 153.

748

Part IV: Relationship Cases

[21.190]

physical and emotional loss.76 There are other cases involving the use of contaminated products that cause plaintiffs to suffer psychiatric illness as a result of contemplating the possibility that they may develop diseases such as AIDS or Creutzfeldt-Jakob Disease at some time in the future.77 [21.190] Psychiatric injury claims are also possible in cases involving service provision. A Canadian case provides a good example. In Danchilla v McNeill Sunset Service Ltd,78 faulty repairs to a truck caused a fire that destroyed the truck, a trailer and a camper. The case settled, except for claims by the owner and his wife for psychiatric injury. The judge said that this had been a traumatic and frightening experience for both plaintiffs. Damages were awarded to the wife, but the husband’s claim failed because it was not proved that he was suffering from a recognisable psychiatric illness. A Scottish example is Irvine v Balmoral Hotel Edinburgh Ltd,79 where the pursuer and her mother had ordered afternoon tea at a hotel and a careless waiter dropped a tray containing a pot of tea and a jug of hot water in the pursuer’s lap, causing scalding and injury. As a result the pursuer suffered post-traumatic stress disorder and phobia of hot water. Her mother also claimed damages for distress on witnessing the accident. Lord Gill ruled that there was no reason for withholding a jury trial. While damage would have to be proved, damage of this nature seems a very possible outcome, and given other situations involving defective products and services there seems no reason in principle why the defenders should not be held liable in such a situation.80

CARING INSTITUTIONS The Church [21.200] Clark v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane81 canvassed the possibility of a claim for psychiatric injury against a priest by a member of his flock. The plaintiff, a full communicant in the Roman Catholic church, sought the advice of the 76

Note also Sant v Jack Andrews Kirkfield Pharmacy Ltd (2002) 161 Man R (2d) 121 (plaintiffs allegedly exposed to toxic chemical: male plaintiff was courier delivering for pharmacy, bottle containing chemical leaked in his vehicle, and his sister recovered damages for psychiatric reaction caused by exposure to contaminated items).

77

See [29.80]–[29.210].

78

Danchilla v McNeill Sunset Service Ltd [1988] BCJ No 2093.

79

Irvine v Balmoral Hotel Edinburgh Ltd [1998] ScotCS 63.

80

In Thompson v NSW Land and Housing Corporation [2011] NSWSC 941 the plaintiff claimed damages for a physical reaction and mental harm as a result of a termite treatment carried out by the defendant. The plaintiff suffered from asthma and was particularly sensitive to chemicals, dust and smoke. The plaintiff was unable to establish that he had suffered any physical damage, and it was held that the use of the product in question did not create a foreseeable risk of physical or psychiatric harm to persons of ordinary sensibility. There was no evidence that the defendant knew or ought to have known of any vulnerability to psychiatric illness.

81

26.

Clark v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [1998] 1 Qd R

[21.210]

21 Professional and Other Relationships

749

Archbishop about the circumstances in which a Catholic priest could give communion to non-Catholics — needed, it seems, to settle a dispute at the school where the plaintiff worked. The plaintiff subsequently discovered that the advice was wrong and against Canon Law. He claimed that the Archbishop’s transgression in acting in “flagrant disregard” of Canon Law and Universal Church Discipline had caused him to suffer nervous shock. Williams J held that there was no duty enforceable at common law not to give negligent advice on a spiritual matter that might foreseeably cause psychiatric injury.82 [21.210] However, there are other situations in which priests and church institutions are guilty of failure to provide proper care for people in their charge, and where claims for resulting psychiatric injury seem entirely justifiable.83 In Australia, there have been claims against groups such as the Christian Brothers in respect of physical and sexual abuse of children in their care in orphanages and similar institutions. These claims failed not because of any inherent difficulty with the argument that abuse had caused some plaintiffs to suffer long-term psychiatric problems amounting to recognisable psychiatric illnesses, but because they had been initiated long after the expiry of the limitation period. The plaintiffs were brought to Australia from England under a child migration scheme, and spent time in orphanages conducted by the Christian Brothers in Western Australia in the 1940s and 1950s, where the abuse took place. Two of them, Reidy and Taylor, commenced an action against the Christian Brothers in Victoria (where they were now resident) in 1993. The choice of venue was no doubt influenced by the fact that under the Western Australian Limitation Act 1935 there was a six-year limitation period for tort actions, with no possibility of extension, whereas Victorian law allowed courts to extend the limitation period if it was just and reasonable to do so. The defendants persuaded a Victorian judge that the case should be transferred to Western Australia under the cross-vesting rules, because it was the forum most closely connected with the proceedings.84 A Western Australian judge then ruled that the local Limitation Act was applicable to a cross-vested claim, which meant that there was no possibility of the claim succeeding.85 In another action filed 82

Note also Plenty v Seventh Day Adventist Church of Port Pirie [2006] SASC 361 where a husband and wife were “disfellowshipped” by their church after the police charged the husband with assault when the police visited his farm. (The police were ultimately held liable in trespass to land: see Plenty v Dillon (1991) 171 CLR 635.) Duggan J held that the husband had already been compensated for any emotional injury suffered in the trespass to land proceedings, and that the wife was unable to establish psychiatric injury. His judgment suggests that if either plaintiff had established a recognisable psychiatric illness, and if it could be shown that such illness was reasonably foreseeable in accordance with the principles of Tame v New South Wales (2002) 211 CLR 317, the church would have been liable.

83

Note FG v MacDonell 696 A 2d 697 (NJ 1997) (parishioner could claim against rector for negligent infliction of emotional distress arising from rector’s breach of fiduciary duty in engaging in sexual misconduct while providing counselling).

84

Taylor v Trustees of the Christian Brothers (1994) Aust Torts Rep 81-288.

85

Reidy v Trustees of the Christian Brothers (1994) 12 WAR 583.

750

Part IV: Relationship Cases

[21.220]

in New South Wales, a State that also permitted extension of the limitation period, the judge refused to transfer the case to Western Australia because the claim would be defeated by the limitation rules, but the case ultimately failed for other reasons.86 Though the case became bogged down in procedural issues,87 it was clear that the plaintiffs were claiming for psychiatric injuries and there was nothing in the nature of those injuries that ruled out a duty of care.

Refuges and nursing homes [21.220] Caring institutions have been found responsible for psychiatric injury suffered by persons in their care. For example, a nursing home was held liable in negligence in Doe v Woodbridge Nursing Pavillion88 when a housekeeper raped a patient who suffered post-traumatic stress disorder as a result. In Mallon v Monklands District Council89 psychiatric illness in the form of reactive depression arose from a period of being housed in a refuge for teenagers and a homeless unit.90

Cemeteries and funeral homes [21.230] The leading case is Mason v Westside Cemeteries Ltd,91 where a funeral home agreed to keep the urns containing the ashes of the plaintiff’s parents until he decided on their final resting place. Subsequently, he instructed them to transfer the urns to a cemetery. Sixteen years later, having purchased a plot in the cemetery for himself and his family, the plaintiff went to retrieve the urns, which could not be found. His action against the funeral home was dismissed but the cemetery was held liable for breach of bailment and negligence. Apart from a small sum representing the nominal value of the urns, the damages awarded were for mental distress. Molloy J, recognising that the relationship was such that the defendant must have contemplated that loss of the ashes would cause mental distress, by analogy with contract cases on spoilt holidays and the like, said that it was illogical that damages for mental distress could be awarded in contract but that there 86 DJ v Trustees of the Christian Brothers (unreported, NSWSC, No 17814 of 1993, 15 December 1994). There remained the possibility that the case might be transferred to Western Australia on other grounds, and the action was ultimately settled: see “Offer accepted”, The West Australian, 20 July 1996. 87

See Archbishop of Perth v AA to JC (unreported, NSWCA, Nos 40126–40132 of 1995, 12 October 1995), special leave refused sub nom AA–JC Inclusive v Hickey (1996) 70 ALJR 385.

88

Doe v Woodbridge Nursing Pavillion (unreported, Cook County Circuit, Ill, 15 January 1992). Thanks are due to Professor David Partlett of Vanderbilt University for this reference.

89

Mallon v Monklands District Council 1986 SLT 347.

90

Note also Bazley v Curry [1999] 2 SCR 534 (non-profit organisation which ran residential care facilities for emotionally disturbed children vicariously liable for sexual abuse by employee); compare Jacobi v Griffiths [1999] 2 SCR 570 (single incident of sexual assault by volunteer working at Boys and Girls Club, no vicarious liability because insufficient connection between employment and assault).

91

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361.

[21.250]

21 Professional and Other Relationships

751

should be no liability in tort for deep emotional distress falling short of a psychiatric condition.92 So, rather like the United States dead body cases,93 this case recognises that in such cases the relationship is one where psychiatric injury, and indeed lesser emotional states, are foreseeable and worthy of compensation.94

GOVERNMENT AUTHORITIES AND CHILDCARE Childcare authorities [21.240] Local or central government authorities are likely to have statutory responsibilities in the field of childcare, involving, for example, the placement of children with foster parents or the investigation of allegations of sexual abuse. A number of important cases have examined whether a negligent failure to carry out such responsibilities gives rise to a duty of care on the part of the authority to a person who suffers psychiatric injury as a result — who may be a child who has been abused, the parent, or the suspected abuser. [21.250] As regards the potential liability to the child, X (Minors) v Bedfordshire County Council95 forms the starting-point of the inquiry. In 1994 the English Court of Appeal (Sir Thomas Bingham MR dissenting) held that the council owed no duty to the child, and this view was confirmed by the House of Lords the following year. Case law from other jurisdictions evidenced a growing dissatisfaction with this state of affairs. In E v K,96 a New Zealand case decided prior to the House of Lords decision, Morris J held that a government authority owed no duty of care to a child in respect of alleged abuse by her foster parents but agreed with the Master of the Rolls that the professionals involved should be under a duty.97 Then, in Attorney General v Prince,98 the New Zealand Court of Appeal held that although policy reasons dictated that the same government authority should not owe a duty to a child who alleged that he had been adopted by unsuitable parents who had deprived him of a reasonable home life, an allegation by the child that the authority should have investigated a specific complaint should not be struck out. In Australia, in TC v New South Wales,99 where the plaintiff alleged that officers of the Department of Youth and Community Services were negligent in the way in which they followed up complaints of physical 92

See [6.280].

93

See [6.160].

94

Note also Hutchinson v Saskatoon Funeral Home Co (1985) 41 Sask R 119 (plaintiff’s two-month-old child cremated rather than being made available for burial; the report deals only with interlocutory matters).

95

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

96

E v K [1995] 2 NZLR 239.

97

E v K [1995] 2 NZLR 239 at 248.

98

Attorney General v Prince [1998] 1 NZLR 262.

99

TC v New South Wales [2001] NSWCA 380.

752

Part IV: Relationship Cases

[21.260]

and sexual abuse said to have occurred while he was in the care of his mother, the New South Wales Court of Appeal concluded that it was fair, just and reasonable to impose a duty of care in relation to particular breaches of duty, and Mason P pointed to the different legislative context in New South Wales and distinguished X v Bedfordshire.100 Canadian cases, proceeding independently rather than by reference to the English authorities, also concluded that it was appropriate to recognise that government authorities should be responsible to abused children in this kind of fact situation.101 [21.260] Meanwhile, English law was not standing still. In another case where a statement of claim had been struck out as disclosing no reasonable cause of action, the plaintiffs’ claim that this infringed their right to a fair trial under Art 6 of the European Convention on Human Rights was upheld by the European Court of Human Rights in Strasbourg on the ground that the parties were in a relationship of proximity, the harm caused was foreseeable, and in the circumstances it would not be fair, just and reasonable to dismiss the claim by reference to a general exclusionary rule.102 In Barrett v Enfield London Borough Council,103 the next case to reach the House of Lords alleging that a council had failed to discharge its childcare responsibilities, a lower court decision that it would be contrary to the public interest to impose a duty of care and that the statement of claim should be struck out was reversed. Lord BrowneWilkinson explained the difficulty of applying this ruling to the three-stage test of duty and in particular the problems that could result if a case where there was foreseeability and proximity could never be struck out on the “fair, just and reasonable” ground. However, since it could not be said that careless conduct by an authority to a child in its care was never actionable, the statement of claim in this case should not be struck out, and the action should be allowed to proceed to trial. Lord Slynn of Hadley agreed, noting that this was a case of a child taken into care and so the circumstances were somewhat different. He expressed his support for the dissenting opinion of Sir Thomas Bingham in X (Minors) v Bedfordshire County Council.104 Then, in S v Gloucestershire County 100

See also SB v New South Wales [2004] VSC 514; TB v New South Wales [2015] NSWSC 575. TC v New South Wales was distinguished in MA v Swanson [2004] NSWSC 30 (investigation carried out promptly, no duty). Note N v Queensland [2004] QSC 290 (duty admitted).

101

See Rumley v British Columbia [2001] 3 SCR 184 (children sexually abused at school: certification of common issues for class action purposes allowed); note also Bazley v Curry [1999] 2 SCR 534 (vicarious liability for sexual abuse by paedophile employed at children’s home). 102

Osman v United Kingdom [1999] 1 FLR 193. The rule in question was the rule in Hill v Chief Constable of West Yorkshire [1989] AC 53 protecting the police from civil liability for acts done in the course of prevention and investigation of crime. 103

Barrett v Enfield London Borough Council [2001] 2 AC 550, noted by R Mullender (2000) 116 LQR 40.

104 X (Minors) v Bedfordshire County Council [1995] 2 AC 633. Note also L (A Child) v Reading Borough Council [2001] 1 WLR 1575 (claim against police authority involved in child abuse investigation not struck out).

[21.270]

21 Professional and Other Relationships

753

Council,105 which again involved children in care who alleged that they had been sexually abused by their foster father and suffered from post-traumatic stress disorder as a result, the English Court of Appeal dismissed a strike-out application and May LJ said that in an ordinary case a local authority would be unlikely to establish a defence that relied on a blanket immunity and child abuse cases were not bound to fail as a class.106 [21.270] D v East Berkshire Community NHS Trust107 now establishes conclusively that it is ordinarily no longer legitimate to rule that councils do not owe a common law duty of care to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. Three lower court decisions were appealed to the English Court of Appeal, two of which involved claims by a child for psychiatric injury.108 In each case, the lower court, applying the principles of X (Minors) v Bedfordshire County Council,109 had ruled that it was not fair, just and reasonable to impose a duty. An important part of the background to this decision was that the unsuccessful litigants in X v Bedfordshire and its companion case M v Newham London Borough Council had taken their cases to the Strasbourg court, which had held that there had been breaches of other articles of the Convention.110 Lord Phillips of Worth Matravers MR, giving the judgment of the court, justified its decision on two principal grounds. First, the progress of domestic decisions since X v Bedfordshire, notably Barrett v Enfield London Borough Council111 and Phelps v Hillingdon London Borough Council,112 had already restricted the effect of the Bedfordshire decision to a “core proposition” that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. The effect of the New Zealand decisions was also noted. Secondly, the decision in X v Bedfordshire could not survive the enactment of the Human Rights Act 1998 (UK), which had adopted the Convention as part of the United 105

S v Gloucestershire County Council [2001] Fam 331. Note also C v Flintshire County Council [2001] PIQR Q9 (damages awarded for physical, emotional and sexual abuse while in care).

106 The court also noted that the Civil Procedure Rules 1998 (UK) allowed the admission of evidence on a strike-out application, contrary to the former position. 107

D v East Berkshire Community NHS Trust [2004] QB 558.

108

RK v Oldham NHS Trust [2003] Lloyd’s Rep Med 1; D v East Berkshire Community NHS Trust [2003] Lloyd’s Rep Med 9; MAK v Dewsbury Health Care NHS Trust [2003] Lloyd’s Rep Med 13.

109

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

110

In Z v United Kingdom [2001] 2 FLR 612 (the X v Bedfordshire applicants), it was held that the UK was in breach of Arts 3 (prohibition against torture or inhuman or degrading treatment or punishment) and 13 (effective remedy for breach of Convention right to be available in national law). In TP and KM v United Kingdom [2001] 2 FLR 549 (the M v Newham applicants), it was held that there had been breaches of these articles and also Art 8 (interference with respect for family life). 111

Barrett v Enfield London Borough Council [2001] 2 AC 550.

112

Phelps v Hillingdon London Borough Council [2001] 2 AC 619.

754

Part IV: Relationship Cases

[21.280]

Kingdom’s domestic law. Though counsel for the appellants had been unsuccessful in persuading the court that the decisions of the courts below in the three cases under appeal violated the right to a fair trial in Art 6, in the light of the Strasbourg court’s decisions in the cases of the Bedfordshire and Newham applicants it was likely that had the three cases under appeal been subject to the Human Rights Act, the decisions of the court below would have violated other articles of the Convention. Therefore: In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount: see section 1 of the Children Act 1989. Given the obligation of the local authority to respect a child’s Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of article 3 or article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act 1998. This cannot however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force. It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts.113

[21.280] Sometimes, parents claim damages for psychiatric harm caused by what has happened to their children. This has often been viewed as a secondary victim situation. In Palmer v Tees Health Authority,114 for example, the facts were very close to a traditional secondary victim claim — four-year-old Rosie Palmer was abducted, sexually assaulted, and murdered by someone who lived in the same street, and Rosie’s mother, who was nearby when the body was discovered but was not allowed to view it, suffered post-traumatic stress disorder and pathological grief reaction. The English Court of Appeal struck out the statement of claim 113

D v East Berkshire Community NHS Trust [2004] QB 558 at [83]–[84]. On appeal to the House of Lords, where the issues were limited to the parents’ claims, the decision of the English Court of Appeal was affirmed (D v East Berkshire Community Health NHS Trust [2005] 2 AC 373): see [21.320]. AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1 shows the difficulty of establishing that a young child has suffered psychiatric injury: the English Court of Appeal confirmed that the authority owed a duty to the child, but held that no damage had been suffered during the period of separation. 114 Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351; see MA Jones, “Liability for Psychiatric Patients: Setting the Boundaries” (2000) 16 PN 3.

[21.300]

21 Professional and Other Relationships

755

because the proximity requirements were not satisfied: it confirmed that despite the problems encountered in Barrett v Enfield London Borough Council,115 which might make it difficult to strike out a case on the fair, just and reasonable ground, it was still possible to strike out a statement of claim where proximity was lacking. The case is another illustration of the narrow ambit of secondary victim claims in English law, but that is another matter. In Attorney General v Prince,116 the claim was rather less typical: a natural mother discovered that her son, whom she had given up for adoption, had had a deprived childhood through being placed with unsuitable adoptive parents, contrary to assurances she had been given. The New Zealand Court of Appeal held that her case did not satisfy the requirements of temporal and geographical proximity, so her claim for compensatory damages could not succeed.117 [21.290] In other cases, the parents have had a more direct involvement, as for example in one of the cases before the court in X (Minors) v Bedfordshire County Council,118 where a child who had been sexually abused was taken away from her mother’s care because the mother’s boyfriend was erroneously suspected to be the abuser. It was held that the mother had no claim. Even Sir Thomas Bingham MR, who dissented on the issue of the child’s claim, held that the mother was not the patient of the negligent psychiatrist, and so her claim against the council had to suffer the same fate.119 Somewhat similar is Rumley v British Columbia,120 where the Supreme Court of Canada approved the granting of a class action certificate in respect of the claims of students sexually abused at a school for deaf children, but the claims of family members, including some who had been abused by the abused students, were not approved for this purpose. [21.300] However, in W v Essex County Council,121 the House of Lords adopted a more encouraging attitude to parental claims. The plaintiffs in this case agreed to become foster parents. They told the council that they were not willing to accept children who were known or suspected sexual abusers. Despite this, the council asked them to foster a 15-year-old boy who had admitted an indecent assault on his sister and was being investigated for rape. This information was not communicated to the parents, even though it was recorded in the council’s files. Within a month, the boy had sexually abused their four children. The parents sued the council in negligence, alleging that on learning what had happened 115

Barrett v Enfield London Borough Council [2001] 2 AC 550.

116

Attorney General v Prince [1998] 1 NZLR 262.

117

However, he held that it was not clear that a claim for exemplary damages would fail.

118

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

119

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 667.

120

Rumley v British Columbia [2001] 3 SCR 184.

121

W v Essex County Council [2001] 2 AC 592. In a Canadian case with similar facts, a strike-out application was also refused: see L (D) v Children’s Aid Society of the District of Thunder Bay [1987] OJ No 1461.

756

Part IV: Relationship Cases

[21.300]

they had suffered psychiatric illness, including severe depression and post-traumatic stress disorder. The council’s application to strike out the proceedings was granted by the trial judge on the ground that they were secondary victims and could not show that there had been a sudden shock, and affirmed by the English Court of Appeal on the more general ground that the recognition of a duty of care would be inconsistent with the House of Lords decision in X (Minors) v Bedfordshire County Council.122 The House of Lords took a different view and held that it was not clear that the claim was unarguable, and so it should not be struck out. As noted at [18.110], Lord Slynn of Hadley, who gave the principal judgment, was not prepared to apply the distinction between primary and secondary victims in an inflexible manner in the circumstances of this case. The parents had quite clearly suffered injury of a kind recognised by the law as deserving of compensation, and being told of the sexual abuse of one’s young children was not something a person of reasonable fortitude would be expected to take in their stride. As for the suggestion that they were merely secondary victims, he said: I do not consider that any of the cases to which your Lordships have been referred conclusively shows that, if the psychiatric injury suffered by the parents flows from a feeling that they brought the abuser and the abused together or that they have a feeling of responsibility that they did not detect earlier what was happening, they are prevented from being primary victims.123

In A v Essex County Council,124 an adoption agency was held liable to the adopting parents for the violent and destructive behaviour of the child they adopted; though it owed no general duty of care in relation to deciding what information was to be conveyed to prospective adopters, once it had decided what information should be given there was a duty to take reasonable care to ensure that such information was given and received. Other English cases have accepted that natural parents,125 foster parents126 and adoptive parents127 who suffer psychiatric injury as a result of negligence by childcare authorities in discharging their responsibilities are owed a duty of care. 122

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

123

W v Essex County Council [2001] 2 AC 592 at 601. Some United States cases have similarly concluded that in cases involving claims by parents in respect of the sexual abuse of their young children the ordinary limits of bystander recovery for emotional distress are not always appropriate: see Doe v Cuomo 649 A 2d 266 (Conn 1994); Pattavina v Mills 2000 WL 1626960 (Conn); Hinkley v Baker 122 F Supp 2d 48 (2000); Price v State 57 P 3d 639 (Wash 2002).

124

A v Essex County Council [2004] 1 WLR 1881.

125

Merthyr Tydfil County Borough Council v C [2010] 1 FLR 1640 (the court distinguished the situation where the parent is suspected of abuse, dealt with in [21.310]–[21.320]). 126

Lambert v Cardiff County Council [2007] EWHC 869 (QB), where Judge Hickinbottom gives extended consideration to the possible range of duties owed to parents arising out of the placement of foster children.

127

B v A County Council [2007] PIQR P17 (local authority failed to honour undertaking to adoptive parents not to reveal their identity to birth family).

[21.310]

21 Professional and Other Relationships

757

[21.310] A final category of case involves claims by a parent who has been suspected of abusing his or her child and claims to have suffered psychiatric illness as a result.128 Here, the courts have presented a united front in holding that when a council investigates such claims in execution of its statutory functions, its paramount duty is to the child, and it would be inconsistent with that duty to recognise any duty of care to the suspected abuser. In Australia, the South Australian Full Court so held in Hillman v Black.129 The court derived support from X (Minors) v Bedfordshire County Council130 and rejected any suggestion that that case was inapplicable because the approach to duty of care in Australia, under which the courts looked for a relationship of proximity, was different from that adopted in England. In CLT v Connon,131 following the abandonment of the proximity doctrine, another parent suspected of abuse attempted to persuade the South Australian Full Court that it should now recognise a duty, but the court refused to distinguish Hillman v Black.132 In Sullivan v Moody,133 an appeal in this and another case was taken to the High Court of Australia, and the High Court’s decision is now one of the leading current statements of the Australian approach to duty of care generally. The High Court confirmed that foreseeability of the harm alone was not enough to establish a duty of care, and that neither the proximity principle nor the three-stage English approach was a satisfactory general test of duty for Australian law. While not purporting to state a new general test, the court identified two general principles. It said that it would be inappropriate to recognise a duty of care where it would cut across other principles of law such as defamation that by setting limits to the right to redress for injuries to reputation gave appropriate recognition to the importance of freedom of communication. It also stressed the importance of coherence in the law, saying that there could be no duty if it was incompatible with the defendant’s other obligations, as was the case here, where the medical practitioners and others involved in examining for suspected abuse were under an obligation to treat the children’s interests as paramount. Later cases have applied these principles:134 for example, the New South Wales Court of Appeal has ruled that a school principal under investigation for not dealing properly with claims of abuse by a teacher had no remedy for resulting psychiatric 128

See SM Kershner, “Children v Parents: A New Tort Duty-Situation for Psychiatric Injury?” (2001) 35 Israel LR 79.

129

Hillman v Black (1996) 67 SASR 490.

130

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

131

CLT v Connon (2000) 77 SASR 449, noted by F Bates (2001) 9 Tort L Rev 183.

132

See also Wilson v New South Wales [2001] NSWSC 869.

133

Sullivan v Moody (2001) 207 CLR 562, noted by F Bates (2002) 6 Newc LR 107; E Handsley (2003) 11 TLJ 1.

134

See eg MA v Swanson [2004] NSWSC 30. Note also Markisic v Department of Community Services of New South Wales [2005] NSWSC 1373, where these authorities were applied to hold that the police owed no duty to a father for their role in returning his daughter to her mother in Macedonia pursuant to a court order.

758

Part IV: Relationship Cases

[21.320]

injury.135 The Privy Council reached a similar decision in a New Zealand appeal that, while allowing the claim of the child, rejected that of the father who was the alleged perpetrator.136 [21.320] The English Court of Appeal in D v East Berkshire Community NHS Trust137 subsequently took exactly the same view. Before the court were claims by a mother who had been diagnosed by paediatricians with Munchausen’s Syndrome by proxy and who had been accused of exaggerating the child’s symptoms, the father of another child who was suspected of child abuse, and the parents of a third child who had suffered bone fractures that were suspected to be non-accidental. The Court of Appeal held that even though it had now recognised the claims of the child, the position of the parent was different. The potential conflict of interest between the interests of the parent and those of the child meant that there remained cogent reasons of public policy for concluding that where childcare decisions were being taken, there should be no duty of care owed to the parents. This decision was affirmed by the House of Lords,138 though interestingly Lord Bingham of Cornhill dissented, opining that in view of the rapid development of the law in this area the law should not rule out a duty not to cause harm to a parent foreseeably at risk of suffering harm as the result of a negligent diagnosis of child abuse.139 In X (Minors) v Bedfordshire County Council,140 his Lordship’s view that the child was owed a duty of care, originally very much a minority opinion, was eventually recognised as correct, and so his opinion about the position of the parents is deserving of careful consideration.

The “stolen generation” [21.330] In Australia, members of the “stolen generation” — Aboriginals taken away from their natural mothers during infancy, and brought up by foster-parents or in institutions in a “white” environment, in pursuance of the policy of assimilation, designed to bring about the disappearance of the indigenous population as a separate racial group — have attempted to 135

New South Wales v Paige (2002) 60 NSWLR 371, followed in Bednall v Wesley College [2005] WASC 101.

136

B v Attorney General [2004] 3 NZLR 145, noted by F Bates (2004) 12 Tort L Rev 12. Note also D(B) v Halton Region Children’s Aid Society [2007] 3 SCR 83.

137

D v East Berkshire Community NHS Trust [2004] QB 558.

138

D v East Berkshire Community Health NHS Trust [2005] 2 AC 373, followed in AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1; Lawrence v Pembrokeshire County Council [2007] HRLR 30. 139

D v East Berkshire Community NHS Trust [2005] 2 AC 373, especially at [44], [50]. The outcome in two of the cases before the court and AD v Bury Metropolitan Borough Council [2006] EWCA Civ 1 was effectively reversed by the European Court of Human Rights in AD v United Kingdom (2010) 51 EHRR 8. On the House of Lords decision and generally, see S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), pp 91, 188, 323–324. 140

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

[21.350]

21 Professional and Other Relationships

759

make claims for psychiatric injuries resulting from such experiences.141 After a number of unsuccessful attempts, a claim finally succeeded in South Australia. [21.340] The first case was Williams v Minister, Aboriginal Land Rights Act 1983.142 Joy Williams, a woman of Aboriginal descent, born in 1942 and placed in a home for white children by the Aboriginal Welfare Board, claimed to be suffering from a borderline personality disorder, but alleged that it was not until 1991 that she came to realise that it was the result of her childhood experiences. Her request for an extension of time under the Limitation Act 1969 (NSW) in order to sue for negligence, breach of fiduciary duty and wrongful detention was rejected at first instance, but the New South Wales Court of Appeal allowed her appeal.143 Kirby P commented that the nature of the wrong suffered, and the serious psychiatric damage claimed to result, was one of the factors that lifted the case out of the ordinary run and justified granting an extension of time to sue.144 When the case came to trial, Abadee J held that there were no established categories of negligence that provided an analogy for this novel cause of action, and that policy considerations ruled out a duty of care.145 These included the financial implications for other childcare bodies and the fact that issues of human relationships, especially those involving emotions, contentment and happiness, were not readily susceptible of resolution by the courts. X (Minors) v Bedfordshire County Council,146 Barrett v Enfield London Borough Council147 and other child abuse cases were an important influence on the decision. His Honour also ruled against the plaintiff on the issue of causation and on the other causes of action pleaded. On appeal, shortcomings in the evidence were exposed, and the New South Wales Court of Appeal upheld the first instance decision.148 [21.350] Another attempt was made in Cubillo v Commonwealth.149 Lorna Cubillo and Peter Gunner, both part-Aboriginal persons removed from their families as children and brought up in institutions, sued for wrongful imprisonment, breaches of statutory and fiduciary duty and negligence, and claimed damages for mental and emotional distress and post-traumatic stress syndrome. The Commonwealth sought an order to strike out the claims, and in the alternative an order that the plaintiffs’ application for extension of time should be separately determined. 141

See R Graycar, “Compensation for the Stolen Children” (1998) 21 UNSWLJ 253.

142

Williams v Minister, Aboriginal Land Rights Act 1983 (1999) Aust Torts Rep 81-526.

143

Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497.

144

Williams v Minister, Aboriginal Land Rights Act 1983 (1994) 35 NSWLR 497 at 500.

145

Williams v Minister, Aboriginal Land Rights Act 1983 (1999) Aust Torts Rep 81-526.

146

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

147

Barrett v Enfield London Borough Council [2001] 2 AC 550.

148

Williams v Minister, Aboriginal Land Rights Act 1983 (2000) Aust Torts Rep 81-578.

149

Cubillo v Commonwealth (2001) 112 FCR 455.

760

Part IV: Relationship Cases

[21.360]

O’Loughlin J refused to rule against the plaintiffs at this preliminary stage, holding that the claims should not be struck out and that the limitation question should be determined at trial.150 However, on trial of the issues, the claim failed on all grounds. O’Loughlin J held that it would be wrong to grant an extension of time, and that none of the causes of action could be established. The alleged duty of care in negligence was ruled out because the Commonwealth did not have statutory powers to act, and on policy grounds analogous to those in the childcare cases.151 The negligence issues were not further pressed on appeal, which was dismissed.152 [21.360] In a third case, Johnson v Department of Community Services,153 Rolfe J in the New South Wales Supreme Court allowed an extension of the limitation period, reversing a Master’s decision to the contrary.154 The plaintiff had been taken away from his family and made a ward of the state. He suffered chastisement, racist comments and sexual assault (at the hands of a man who came to take him out while he was in an institution) and eventually lived on the streets. A doctor said that he would probably fulfil the criteria for post-traumatic stress disorder. Rolfe J suggested that the case was different from Williams v Minister, Aboriginal Land Rights Act 1983,155 because of the specific complaints about the way he was treated, and thought that there might be an arguable case, saying: “I do not see why, if tortious conduct causes a person to develop a psychiatric illness, that person, at least prima facie, is not entitled to recover damages in consequence thereof.”156 [21.370] These are complex cases, and that the plaintiffs ultimately failed to get a more successful outcome is saddening but not surprising.157 However, as Rolfe J’s statement in Johnson v Department of Community Services158 emphasises, they did not fail because of anything inherent in the injuries suffered that was thought unworthy of redress.159 This was confirmed by Trevorrow v South Australia (No 5),160 where a member of the 150

Cubillo v Commonwealth (1999) 89 FCR 528.

151

Cubillo v Commonwealth (2000) 103 FCR 1.

152

Cubillo v Commonwealth (2001) 112 FCR 455.

153

Johnson v Department of Community Services (2000) Aust Torts Rep 81-540.

154

Johnson v Department of Community Services [1999] NSWSC 641.

155

Williams v Minister, Aboriginal Land Rights Act 1983 (1999) Aust Torts Rep 81-526.

156

The case did not proceed to a full hearing because it was settled after a mediation: information from Mr Maithri Panagoda of Carroll & O’Dea, Solicitors, Sydney.

157

Note also Kruger v Commonwealth (unreported, Aust HC, M21 of 1995, D5 of 1995, 31 July 1997) where two Aboriginals removed from their parents in infancy challenged the constitutional validity of the Aboriginals Ordinance (NT) and asserted a right to sue for damages. The claims were rejected. 158

Johnson v Department of Community Services (2000) Aust Torts Rep 81-540.

159

Note also the latest unsuccessful claim, Western Australia v Collard [2015] WASCA 86, where the plaintiffs failed to establish the existence of a fiduciary duty.

160

Trevorrow v South Australia (No 5) (2007) 98 SASR 136.

[21.380]

21 Professional and Other Relationships

761

stolen generation finally succeeded in a claim against the authorities responsible for his removal for damage suffered as a result, including the psychiatric illness that gradually manifested itself following his removal and loss of his Aboriginal culture and identity. When Bruce Trevorrow was aged 13 months, his mother went to stay with friends, leaving him with her brother and his wife. When Bruce fell ill with gastro-enteritis, his father asked a neighbour to take him to the Children’s Hospital, where his records noted that he was a “neglected child – without parents” and that “mother has cleared out and father is boozing”. An officer of the Aborigines Department arranged what became a permanent placement with Martha Davies. On a number of occasions, Bruce’s mother contacted the Department seeking information but was fobbed off. The Aboriginal Affairs Act 1962 (SA) returned legal guardianship of Bruce to his mother, but the Department gave her no advice to this effect. Bruce remained with the Davies family until he was 11. As a young child, he believed he was a natural member of the family. By the time Bruce was three, there were signs of a depressive condition, which gradually worsened. Eventually, following more inquiries by his mother, it was arranged that Bruce would spend some time with his natural family, but this was not a success and he ended up spending the rest of his adolescence in institutions. He continued to suffer from mental illness. [21.380] In 1997, Bruce consulted solicitors and was advised that there was no information on his file to indicate that he had been removed from his parents as a result of any court proceedings, and consequently it may have been unlawful. In 1998 he commenced an action against the State of South Australia, seeking damages for misfeasance in public office, false imprisonment, breach of fiduciary duty and negligence, and requesting an extension of time in which to sue. Gray J confirmed that Bruce’s removal had been unlawful. He exercised his discretion to grant an extension of the limitation period, and found all causes of action proved. As regards the negligence claim, application of Sullivan v Moody161 principles and the “salient features” approach led to a conclusion that the state owed a duty of care. Gray J rejected defence arguments based on X (Minors) v Bedfordshire County Council162 on the basis that the English authorities had moved on, as evidenced by D v East Berkshire Community NHS Trust.163 He found that the State was in breach of this duty; that the plaintiff’s removal was a material cause of the depression he began to suffer in childhood and continued to suffer as an adult; and that this was a reasonably foreseeable consequence of the breach. Damages of $450,000 were awarded for his injuries and losses, plus $75,000 exemplary

161

Sullivan v Moody (2001) 207 CLR 562.

162

X (Minors) v Bedfordshire County Council [1995] 2 AC 633.

163

D v East Berkshire Community NHS Trust [2004] QB 558: see [21.270].

762

Part IV: Relationship Cases

[21.390]

damages for misfeasance in public office and false imprisonment. The Full Court dismissed the State’s appeal.164 It upheld the trial judge’s decision in all respects, saying: We agree with the Judge’s conclusion that at the time when Bruce Trevorrow was removed from his family, professionals such as psychiatrists and psychologists and others working in the field of child mental health, were aware of the importance of the process of attachment between a child and its mother, and were aware of the risk of psychiatric injury as a result of the rupture or termination of that process of attachment.165

Educational authorities and teachers [21.390] In Phelps v London Borough of Hillingdon,166 the House of Lords dealt with four appeals that raised the issue of whether education authorities, or teachers, educational psychologists or other officers employed by them, owed a duty to children in their care who had special educational needs. It was alleged that breach of that duty had caused the children to suffer psychological problems. In the first case, for example, it was argued that the servants of the authority were in breach of their duty to use reasonable professional skill and care by failing to assess her learning difficulties and dyslexia, failing to refer her to a sufficiently experienced educational psychologist and failing to arrange appropriate tuition and treatment. The House of Lords held that where a person was employed by an educational authority to carry out professional services as part of the authority’s duties under statute, there was no overriding reason in principle why that person should not owe a duty of care: teachers and educational psychiatrists were professionals, just like doctors and lawyers. The fact that they owed a duty to the authority to exercise skill and care in performance of a contract of employment, or that the educational psychologist was called on by the local authority as part of the performance of its duties, made no difference. If breach of a duty of care to a child was established, the authority would be vicariously liable.167 Accordingly, in one of the cases the child’s appeal was allowed, in two others strike-out applications were dismissed, and in a fourth pre-action discovery was ordered. On the issue of the damage suffered, Lord Slynn of Hadley said: The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm.

164

South Australia v Lampard-Trevorrow (2010) 106 SASR 331.

165

South Australia v Lampard-Trevorrow (2010) 106 SASR 331 at [401] per Doyle CJ, Duggan and White JJ. The Commonwealth Government issued a formal apology to the stolen generation on 13 February 2008. 166 167

Phelps v London Borough of Hillingdon [2001] 2 AC 619.

It is noteworthy that the liability recognised was vicarious and not direct: as the House of Lords noted, X (Minors) v Bedfordshire County Council [1995] 2 AC 633 ruled out the possibility of a direct claim.

[21.400]

21 Professional and Other Relationships

763

There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law.168

Lord Clyde, who gave the other main judgment, agreed, saying: “[T]he mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damage, such as a post-traumatic stress disorder or a psychological illness.”169 The case clearly recognises that teachers and other education professionals may owe a duty to take care not to cause mental injuries, and that breach of such duty renders the educational authority, as their employer, vicariously liable.170 [21.400] Decisions both from Australia and elsewhere suggest that education authorities and teachers may owe a duty to take reasonable steps to prevent students suffering psychiatric injury through bullying at the hands of other students.171 The leading Australian case is Cox v New South Wales,172 where the plaintiff claimed damages for mental harm suffered as a consequence of being harassed and bullied at school, alleging that the school authorities took little or no action to prevent the bullying or protect him from its effects. Simpson J held that it could not be seriously doubted that the defendant, through the school authorities, owed the plaintiff a duty of care. The general statements about the duty of school authorities by the High Court in Geyer v Downs173 were wide enough to apply to the prevention of bullying resulting in psychiatric injury. Simpson J found that the school authorities had breached this duty, that it was established that the plaintiff had suffered a psychiatric injury as a result of the breach, and awarded damages. This case was followed 168

Phelps v London Borough of Hillingdon [2001] 2 AC 619 at 654.

169

Phelps v London Borough of Hillingdon [2001] 2 AC 619 at 670. One of the cases, Jarvis v Hampshire County Council, raised the issue (inter alia) whether a claim would lie where “there is no recognisable psychiatric condition as described in the nervous shock cases”: at 662 per Lord Slynn of Hadley. The House of Lords allowed the appeal against the English Court of Appeal’s decision to strike out the claim. 170

In the earlier case of P v Harrow London Borough Council [1993] 2 FCR 341, a first instance judge held that the local authority was not under a duty of care in a case where children with special educational needs had been spent to a special school, and a child had made allegations of sexual assaults by the headmaster. It was said that it was difficult to see that the assaults were foreseeable, and that the children were under the control of their parents and the relationship with the authority was limited to assessment and place provision, rather than control or direction.

171

Note also Brennand v Hartung [2012] ACTSC 150 where the plaintiff claimed (inter alia) for damages for pure mental harm when a school withdrew the offer of a place for her daughter because it had become aware of “serious matters which made it impossible for [their] family to join the school community”. Master Harper said that the statement of claim would require amendment, for example to allege recognised psychiatric injury.

172 Cox v New South Wales (2007) Aust Torts Rep 81-888 (also reported in Cox v New South Wales (2007) 71 NSWLR 225, but only on evidence issues). 173

Geyer v Downs (1977) 138 CLR 91 (which involved physical injury to a student as a result of the conduct of another student).

764

Part IV: Relationship Cases

[21.410]

in Oyston v St Patrick’s College,174 another case where a school authority was held liable for failing to prevent bullying resulting in psychiatric injury.175 Neither case contains any extended discussion of the duty in relation to mental harm in s 32 of the Civil Liability Act 2002 (NSW) — probably because there was no doubt that the requirements of the section had been satisfied.176 [21.410] The leading English case is Bradford-Smart v West Sussex County Council,177 where the claimant sued the education authority for psychiatric injury caused by bullying on the estate where she lived and on the bus when travelling to and from school. The trial judge held that the school owed a duty to take reasonable steps to prevent bullying while the child was at school, but not as regards bullying that occurred outside the school limits.178 On appeal, the English Court of Appeal held that the duty was wider than this. While the school did not owe a general duty to pupils or anyone else to police their activities once they had left its charge, there might be other circumstances where a duty was owed, for example, where a teacher saw an attack outside the school gates, or on a school excursion. However, these occasions would be few and far between. On the facts, the school was not in breach of duty.179 In the United States, in Shin v Sunriver Preparatory School Inc,180 an Oregon court held that a special relationship existed between a student and a school, one that gave rise to a heightened duty to protect the student from emotional harm. The school, a special boarding school that provided continuous care for international students, failed to provide adequate supervision for the student during a visit by her father, during which he raped and sexually abused her. 174

Oyston v St Patrick’s College (2011) Aust Torts Reports 82-086. The New South Wales Court of Appeal dismissed an appeal against the trial judge’s finding of breach of duty: Oyston v St Patrick’s College [2013] NSWCA 135; a subsequent appeal upheld the trial judge’s finding that causation had been proved, and increased the damages awarded: Oyston v St Patrick’s College (No 2) (2013) Aust Torts Rep 82-148. 175

See also Gregory v New South Wales [2009] NSWSC 559.

176

Note also Fraser v Marsden [2000] NSWSC 416, where the court extended the limitation period in an action against a defendant who had sexually abused the plaintiff when acting as a football and swimming coach after school hours. It was only when the defendant was named in the New South Wales Parliament as an alleged paedophile, many years later, that the plaintiff realised that there was a connection between the abuse and his psychiatric problems. The claim was for trespass to the person and breach of fiduciary duty, not for negligence. Whether there was any possibility of vicarious liability on the part of the school was not discussed. 177

Bradford-Smart v West Sussex County Council [2002] 1 FCR 425.

178

Bradford-Smart v West Sussex County Council (The Times, 5 December 2000), noted by J Elvin [2002] CLJ 255. 179 The approach adopted to duty and breach in Bradford-Smart v West Sussex County Council [2002] 1 FCR 425 was followed in Shaw v London Borough of Redbridge [2005] EWHC 150 (QB). See also Wands v Fife Council [2009] Scot SC 18. 180

Shin v Sunriver Preparatory School Inc 111 P 3d 762 (Or 2005).

[21.420]

21 Professional and Other Relationships

765

OTHER GOVERNMENT AGENCIES Police [21.420] It is recognised that the police need wide-ranging immunity from the ordinary law of negligence when engaged in the activities of investigating crime and interviewing suspects. The leading case is Hill v Chief Constable of West Yorkshire,181 where the House of Lords held that the police were immune from liability to the estate of the victim of a serial killer (the “Yorkshire Ripper”) for failing to identify him at an earlier date.182 This immunity covers various cases where potential suspects,183 informers,184 and the family members of victims185 have claimed damages for psychiatric harm, and was strongly endorsed by the High Court in 181

Hill v Chief Constable of West Yorkshire [1989] AC 53.

182

See also Osman v Ferguson [1993] 4 All ER 344 (police not liable for failure to apprehend, interview or charge schoolteacher who had harassed 15-year-old boy before incident in which boy shot and father killed); Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 (Crown Prosecution Service not liable for negligent processing of prosecutions, causing plaintiffs to spend lengthy spells in custody); Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 (no duty of care owed to victims or witnesses when police were investigating suspected crimes); Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225 (police not liable for failure to protect prosecution witness in criminal case); Michael v Chief Constable of South Wales Police [2015] AC 1732 (duty of police to preserve the peace owed to the public at large and did not involve the kind of relationship necessary for a private law duty of care); note also Calveley v Chief Constable of Merseyside Police [1989] AC 1228 (similar immunity in respect of internal disciplinary proceedings). Exceptionally, where the police or prosecutorial authorities expressly or impliedly assume responsibility to the injured person, there will be a duty of care: Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692 (Crown Prosecution Service assumed responsibility for informing Magistrates Court that plaintiff’s offences had been taken into consideration by Crown Court); L (A Child) v Reading Borough Council [2001] 1 WLR 1575 (once it was concluded there was insufficient evidence to support criminal proceedings against father for sexual abuse of child, police in concluding that mother’s complaint was of sufficient substance that child at risk of further abuse at his hands assumed responsibility to father); note also Batchelor v Tasmania [2005] TASSC 11 (leave to file statement of claim allowed in case where police failed to arrest murderer before he committed offence).

183

See eg Gruber v Backhouse [2003] ACTSC 18 (allegations as to manner in which plaintiff interviewed during investigation into sex offences); Cran v New South Wales (2004) 62 NSWLR 95 (alleged unnecessary prolongation of imprisonment prior to trial); Gesah v Ross [2013] VSC 165 (no liability to person charged with murder and incarcerated in maximum security prison, only for charges to be withdrawn two weeks later, despite prejudicial publicity).

184

Informer v Chief Constable [2012] EWCA Civ 197 (duty to informer to exercise reasonable care in conduct of investigation limited to duty to protect from risk to physical safety); note also PBD v Chief Constable of Greater Manchester Police [2013] EWHC 3559 (QB) (an even weaker case: no duty to take care not to reveal person’s identity to former criminal associates where at time in question he was neither a witness nor an informant)

185

Halech v South Australia (2006) 93 SASR 427 (no liability where police made wrong identification of bodies of two women killed in a road accident, mistake not discovered until one had been buried and the other cremated); New South Wales v Klein (2006) Aust Torts Reports 81-862 (claims for psychiatric injury by family of man shot and killed by police struck out); Kelly v Attorney General of Canada (2007) 266 Nfld & PEIR 112 (plaintiff who witnessed partner’s arrest, was then herself handcuffed, placed in cell and charged with

766

Part IV: Relationship Cases

[21.430]

Tame v New South Wales.186 However, as the English Court of Appeal confirmed in Swinney v Chief Constable of Northumbria Police Force,187 there are cases where immunity may not be appropriate and where the police should owe a duty to take care not to cause psychiatric injury. In this case, the female plaintiff supplied information to a police officer concerning the identity of a driver who had struck and killed a police officer. This information was stolen from a police vehicle, and came into the hands of the alleged driver. In consequence Mr and Mrs Swinney were threatened with violence and arson. It was alleged that both plaintiffs suffered psychiatric injury, which caused them to give up the public house they ran. The police applied to strike out the statement of claim on the basis of the authorities giving immunity for the investigation process, but the Court of Appeal confirmed a lower court decision that this was not appropriate. Hirst LJ said that the police did not have a blanket immunity from negligence in relation to the investigation of crime, and in this case there were other important considerations, such as the need to preserve information, protect informers and encourage them to come forward. While a preliminary decision of this kind cannot be a guide to what might eventually happen at trial, it suggests that there are circumstances connected with the investigation process where police may be liable in negligence for causing psychiatric injury.188 [21.430] An important case that explored the boundaries of the police immunity is Leach v Chief Constable of Gloucestershire Constabulary,189 where the English Court of Appeal was not united in its view about whether the police owed a duty of care to a voluntary worker who was asked at short notice to act as an appropriate adult during the interrogation of a serial killer. She also had to accompany the accused to the scene of the crimes, and spend time alone with him in a cell, and claimed that as a result of the experience she suffered from post-traumatic stress disorder and other psychiatric injuries. Brooke and Henry LJJ held that the policy basis of the immunity made it inappropriate to recognise a duty of care in this situation, but Pill LJ said that the case was one where the police had requested the assistance of a member of the public and had therefore assumed responsibilities to her, and so by analogy with Swinney v Chief Constable of Northumbria Police Force190 a duty of care should have been recognised. Another illustration of the limits of the immunity is De Reus v

obstructing police officer had no cause of action); Cumming v New South Wales [2008] NSWSC 690 (no liability to family of victim for failure to identify body for four-year period). Note also Pi v New South Wales [2014] NSWSC 1360 at [7] per Campbell J. 186

Tame v New South Wales (2002) 211 CLR 317 at [125] per McHugh J, at [231] per Gummow and Kirby JJ, at [299] per Hayne J, at [335]–[336] per Callinan J.

187

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464.

188

See also X v Chief Constable of Greater Manchester Police [2004] EWHC 764 (QB).

189

Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 WLR 1421.

190

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464.

[21.450]

21 Professional and Other Relationships

767

Gray,191 where a jury found police liable to a woman who claimed damages for distress, anxiety, depression and post-traumatic stress disorder as a result of being strip-searched after being arrested for failure to pay parking fines. The appeal was confined to damages issues, and there was no challenge to the liability verdict. It perhaps suggests that even where police are lawfully proceeding with the criminal investigation process, a psychiatric injury claim may be possible if they overstep the mark in the manner in which that process is carried out.192 [21.440] Tame v New South Wales193 dealt with a different sphere of police activity — filling in accident report forms in cases that were likely to be used primarily for the purposes of an insurance claim. The High Court held that the police were not liable for the negligence of a police officer in filling in the wrong reading. The psychiatric injuries suffered by Mrs Tame as a consequence were not foreseeable.194

Prisons [21.450] Butchart v Home Office195 is an important authority that confirms that prison authorities owe a primary duty of care to ensure the health and safety of those in their custody. The claimant was a prisoner on remand. He alleged that the prison authority knew he was in a depressed and suicidal state when another prisoner known to be at risk of suicide was put in his cell; this prisoner did commit suicide, and the claimant found his body. A prison officer blamed him for the death. He was subsequently placed in a cell with another prisoner known to be a suicide risk. The claimant brought an action against the prison authority, claiming that it owed him a duty of care, and that breach of this duty had caused him to develop a psychiatric illness. The defendant applied to strike out the claim. The trial judge dismissed the application, and the defendant’s appeal was dismissed by the English Court of Appeal. The defendant argued that the control mechanisms approved by the House of Lords in White v Chief Constable of South Yorkshire Police196 applied in every case where psychiatric injury resulted from witnessing the death of or serious injury to another, whatever the nature and source of the duty of care, with the result that the claimant in this case was owed no duty because of the lack of close ties of love and affection with the other prisoner. This argument was powerfully rebutted by Latham LJ, giving the judgment of the court, in the following terms: 191

De Reus v Gray (2003) 9 VR 432.

192

Note also McNern v Metropolitan Police Commissioner (unreported, Eng CA, 18 April 2000) (no action taken on complaint that plaintiff had stolen van, but warrant remained outstanding, plaintiff arrested two years later after routine check, damages for posttraumatic stress disorder awarded for police failure to have proper system).

193

Tame v New South Wales (2002) 211 CLR 317.

194

See [2.140].

195

Butchart v Home Office [2006] 1 WLR 1155.

196

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

768

Part IV: Relationship Cases

[21.450]

[I]t is unnecessary, in my view, to analyse in any detail the line of authority which culminated in the [White] case in order to determine whether or not the control mechanisms relevant to the type of claim with which that case was concerned had been met in the present case. I do not read the claimant’s claim in the present case as being one which is narrowly based upon the effects of Ian Holm’s suicide and accordingly a “nervous shock” case. The particulars of claim make it clear, in my view, that the psychiatric injury which the claimant alleges that he ultimately suffered was the result of a breach of a primary duty of care owed to him. It was the result of the cumulative effect of being incarcerated with an increasingly disturbed man, who committed suicide in circumstances which gave rise to a feeling of guilt on the part of the claimant which was compounded by the remark of the prison officer apparently ascribing responsibility to him, and a further period, albeit short, of incarceration with yet another prisoner suffering from suicidal thoughts. Whether the claimant will be able to establish that any psychiatric injury which he sustained was the result of those cumulative effects, or was simply the result of the shock of the suicide may well be a matter for debate at the trial of the issues in this case. But I do not think that the claim as formulated requires the claimant to surmount the hurdles of what have been described as the control mechanisms in cases involving injury caused by the witnessing of the death of or serious injury to another, where the primary duty of care is to that other person.197

Latham J noted Lord Hoffmann’s statement in White that the control mechanisms were never intended to apply to all cases of psychiatric injury. The real question, according to Latham LJ, was whether the relationship between the defendant and the claimant gave rise to a duty of care that extended to taking reasonable steps to avoid psychiatric harm. Various strands of authority considered by his Lordship, including cases on the duty of the police,198 of solicitors to their clients,199 and of prisons to prison officers,200 suggested that the duty of care owed by prisons to prisoners was wide enough to cover the circumstances of this case. As Latham LJ said in a later passage: None of these authorities are directly in point. But they make it clear that the question in cases such as the present is not the same as the question raised in cases such as [White]. As I have said, what has to be determined is the nature and potential scope of the duty of care in the light of the relationship between the claimant and defendant. In the present case the question is, therefore, whether or not on the pleaded facts, the defendant could have owed a duty of care to the claimant to take reasonable steps to avoid causing him psychiatric harm. In my view the pleaded facts are sufficient to establish, if proved, that the defendant knew or ought to have known that the claimant was a prisoner vulnerable to psychiatric harm. In those circumstances it seems to me to be 197

Butchart v Home Office [2006] 1 WLR 1155 at [15].

198

Eg Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, holding that the police owed a duty of care to persons in its custody which could include a duty to take reasonable steps to prevent a prisoner taking his or her own life.

199 200

Eg McLoughlin v Jones [2002] QB 1312: see [18.120]–[18.160], [21.60].

Eg one of the cases considered in Hartman v South Essex Mental Health and Community Care NHS Trust [2005] ICR 782: see [20.650].

[21.470]

21 Professional and Other Relationships

769

inevitable that the duty of care which the defendant owed to the claimant included a duty to take reasonable steps to minimise the risk of psychiatric harm.201

[21.460] An earlier authority, not referred to by Latham LJ, was R v Deputy Governor of Parkhurst Prison, ex parte Hague,202 where the House of Lords considered whether a convicted prisoner who had been restrained in a way not permitted by the Prison Rules while serving his sentence had a cause of action for breach of statutory duty or false imprisonment against the prison governor or the Home Office. Lord Bridge of Harwich said obiter that the law of negligence should provide a remedy for harm suffered where the conditions of an otherwise lawful detention were truly intolerable. He said: Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian’s duty of care for which the law should award damages.203

Clearly, psychiatric injury is one category of injury to health that is a possible outcome in such circumstances. [21.470] Is the appropriate government authority under any duty of care when third parties suffer as a result of the acts of criminals released on licence? In X v South Australia (No 3),204 the Full Court held by majority that the Parole Board did not owe a duty of care where a man with a long history of sexual offending, released on licence after serving a prison sentence, was able to become involved in teaching computer classes at a childcare centre, which gave him the opportunity to commit further sexual assaults on children.205 The majority judges rejected the view of the primary judge that once the Board became aware that the man was having contact with children it was under a duty to investigate and take further steps,206 but suggested that there could be circumstances where a duty of care might arise, for example, where the Board had knowledge of 201

Butchart v Home Office [2006] 1 WLR 1155 at [20].

202

R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58.

203

R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 at 166. See also at 166 per Lord Ackner, at 167 per Lord Goff of Chieveley, at 177 per Lord Jauncey of Tullichettle. 204

X v South Australia (No 3) (2007) 97 SASR 180.

205

Gray J dissented and held that the Board owed a duty of care.

206

X v South Australia (No 3) (2007) 97 SASR 180 at [39] per Duggan J. For the view of Besanko J at first instance, see X v South Australia (2003) 86 SASR 516. Note also Hobson v Attorney General [2005] 2 NZLR 220 (claim against parole authority struck out).

770

Part IV: Relationship Cases

[21.480]

sexual offences committed by the man while on licence.207 It is easy to see how such a situation might involve psychiatric injury. An analogous question is whether a prison authority which permits a prisoner to escape owes any duty of care to victims of crime committed by the escapee. In New South Wales v Godfrey,208 it was held that the prison authority owed no duty of care to a robbery victim who suffered post-traumatic stress disorder and other psychiatric injury and went into premature labour following a robbery at the newsagents where she worked, committed by an escaped prisoner. [21.480] In Australia, recent cases have raised the issue whether the Commonwealth government is responsible for mental harm suffered by refugees kept in detention while their claims are assessed. In Badraie v Commonwealth,209 for example, an action brought on behalf of a 10-year-old detainee alleged that he has suffered post-traumatic stress disorder as a result of witnessing traumatic events while detained at Woomera. Johnson J referred to the judgments that suggest that in certain circumstances those who manage a detention centre may owe a duty of care, subject to the general limitations on the duty owed by statutory authorities,210 but so far no case deals specifically with the problems of mental injury.211

Other cases [21.490] There are some other miscellaneous cases in which courts have contemplated that government authorities may be liable for causing psychiatric injury — going back to Barnes v Commonwealth212 where the plaintiff recovered damages from the Commonwealth of Australia for shock caused by a negligently false statement that her husband had been detained in a mental hospital.213 For example, in G v Attorney General214 in New Zealand, it was suggested that there might be liability in negligence where the natural mother of a child who had been adopted had followed procedures to ensure that the child should not have access to identifying information, but this information was released to the child nevertheless. There was no specific discussion of the harm suffered, but psychiatric 207

X v South Australia (No 3) (2007) 97 SASR 180 at [41] per Duggan J, at [187] per Debelle J.

208

New South Wales v Godfrey [2004] NSWCA 113.

209

Badraie v Commonwealth (2005) 195 FLR 119.

210

See Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 252 at [207]–[213] per Finn J.

211

See eg SBEG v Commonwealth [2012] FCAFC 189; Behrooz v Commonwealth [2015] NSWSC 478. Badraie v Commonwealth (2005) 195 FLR 119 turned on issues of estoppel. 212

Barnes v Commonwealth (1937) 37 SR (NSW) 511, a negligence equivalent of Wilkinson v Downton [1897] 2 QB 57: see [28.60]. 213

Note also Upton v Centrelink [2009] WADC 46 (claim for alleged psychiatric injury caused by delay in reviewing claim: no duty of care associated with original decision to refuse benefit, but whether delay gave rise to duty was “less clear”: at [51] per Sleight DCJ).

214

G v Attorney General [1994] 1 NZLR 714.

[21.500]

21 Professional and Other Relationships

771

harm might be a possible outcome in such circumstances. In Clark v Scottish Power plc,215 a 60-year-old woman returned home after an absence of some months to find that the defendant had forced entry to her house and disconnected the electricity supply. The plaintiff became obsessed with the ideas that her neighbours would talk of her as a person who failed to pay her debts, that the workers who did the job would gossip in public houses and so make her house more vulnerable to burglary, and that her name would remain on a black list and so affect her credit. She recovered damages, Lord Morton of Shuna saying: “I consider that the pursuer has established that the admitted wrong caused psychiatric symptoms in an already vulnerable personality and that the pursuer suffered considerable distress.”216

CONCLUSION [21.500] The disparate examples considered in this chapter serve as a reminder that the scope for psychiatric damage suits is now much wider than was once thought. Now we have reached the 21st century and the common law is becoming more comfortable with damage to the mind, it is suggested that the structure of negligence claims will adapt to incorporate pleas for relief for psychiatric harm in more and more situations where previously legal advisers might not have considered them a feasible option.

215 216

Clark v Scottish Power plc 1994 SCLR 202.

Clark v Scottish Power plc 1994 SCLR 202 at 206. Note also Ishaque v Metropolitan Corporation of Lahore 19 NLR 1996, Civil 657 (plaintiff awarded damages for property damage, and also “mental shock and torture”, when the defendant’s servants raided his shop, destroyed it and took his merchandise).

Chapter 22

Secondary Victim Cases [22.10] INTRODUCTION ............................................................................................................. 773 [22.50] THE EMPLOYER AS DEFENDANT ............................................................................. 775 [22.150] MEDICAL NEGLIGENCE ............................................................................................. 781 [22.150] Introduction ..................................................................................................................... 781 [22.190] Australia ........................................................................................................................... 784 [22.290] England (and Scotland) ................................................................................................. 789 [22.300] Early cases .................................................................................................................. 790 [22.380] A more enlightened approach? .............................................................................. 793 [22.570] Regression? ................................................................................................................. 805 [22.600] Canada .............................................................................................................................. 808 [22.630] United States .................................................................................................................... 811 [22.650] Other jurisdictions .......................................................................................................... 814 [22.750] Conclusion ........................................................................................................................ 818 [22.760] OTHER SITUATIONS .................................................................................................... 819

INTRODUCTION [22.10] It was in Hambrook v Stokes Bros1 in 1924 that the courts first recognised that defendants might owe a duty of care in respect of nervous shock suffered by secondary victims of an accident — those who suffered what would later be called a psychiatric illness as a result of witnessing a close relative being killed, injured or put in peril. As the years went by, the duty owed to secondary victims was gradually widened in scope. It was extended to those who did not actually see the accident happen, but were present at the aftermath, first on the scene, and then in hospital. In the latest and greatest extension, the Australian High Court in Tame v New South Wales2 finally rejected any question of limits in terms of proximity or direct perception: the duty of care depended only on reasonable foreseeability of psychiatric injury and the existence of a sufficient relationship.

1

Hambrook v Stokes Bros [1925] 1 KB 141.

2

Tame v New South Wales (2002) 211 CLR 317.

774

Part IV: Relationship Cases

[22.20]

[22.20] Hambrook v Stokes Bros3 was a road accident case. Though most of the early nervous shock cases involve railway accidents,4 as a result of the increasing use of motor vehicles road accidents took over as the most common scenario for secondary victim cases. This includes Bourhill v Young,5 the classic Scottish case of the “pregnant fishwife”, in which liability for nervous shock received its first consideration by the House of Lords, and two of the most important decisions on secondary victim liability in recent times, McLoughlin v O’Brian6 in the House of Lords in 1982 and Jaensch v Coffey7 in the Australian High Court in 1984. Then there have been accidents of greater magnitude, such as the Hillsborough football disaster in which 95 people were crushed to death, that gave rise to the two leading House of Lords decisions of recent years, Alcock v Chief Constable of South Yorkshire Police8 and White v Chief Constable of South Yorkshire Police.9 [22.30] In such situations, the parties are nearly always strangers. There is, of course, a close relationship between the immediate victim of the defendant’s negligence and the secondary victim who witnesses the accident in which they are killed or injured, but it is not likely that the defendant will have had any pre-existing relationship with either the primary or the secondary victim. Other accident scenarios may be very different. In the case of work accidents, there is always a pre-existing relationship: the defendant is the primary victim’s employer. In other situations (perhaps not appropriately described as accidents at all) such as medical negligence, the parties will be in another kind of relationship, that of doctor and patient. Other chapters have explored what happens where one of the parties to such a relationship causes psychiatric injury to the other.10 In this chapter, the discussion concentrates on the secondary victim situation, and asks how the fact of a pre-existing relationship, whether with the primary victim or the secondary victim or both, affects the defendant’s liability to the secondary victim. Many of the traditional rules, such as those that limit liability to persons present at the immediate 3

Hambrook v Stokes Bros [1925] 1 KB 141.

4

Eg Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222; Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428. Earlier cases have been recorded: for example, Charles Dickens was involved in a railway accident in 1865, after which he felt “very nervous [and] faint”. Noise distressed him. For years afterwards, when travelling even short distances, he would sometimes “suddenly fall into a paroxysm of fear, tremble all over, clutch the arms of the railway carriage, large beads of perspiration standing on his face, and suffer agonies of terror. … Sometimes the agony was so great, he had to get out at the nearest station and walk home”: letters quoted in F Kaplan, Dickens: A Biography (Hodder & Stoughton, London, 1988), pp 460–461. 5

Bourhill v Young [1943] AC 92.

6

McLoughlin v O’Brian [1983] 1 AC 410.

7

Jaensch v Coffey (1984) 155 CLR 549.

8

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

9

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

10

See Chapters 19–21.

[22.50]

22 Secondary Victim Cases

775

aftermath of the accident, or eliminate psychiatric injury resulting from third party communication, or require some sort of sudden shock, may not be appropriate in these very different situations. [22.40] The question of pre-existing relationships has not often been examined, but in recent years it has become much more important. This is in large measure due to the expansion of liability to secondary victims under Australian law as a result of two important Australian High Court decisions,11 in each of which it was material that the defendant was the primary victim’s employer;12 and a series of cases in England and elsewhere on negligence by doctors and other medical professionals causing psychiatric injury to the patient’s relatives, which suggested that the orthodox rules may not necessarily be appropriate in medical negligence situations.13 In Australia, the Civil Liability Acts have given the relationships issue an even higher profile. Nearly all Australian jurisdictions now have statutory statements of the duty of care in mental harm cases that provide that one of the circumstances that must be taken into account in deciding whether the defendant owes a duty to take care not to cause mental harm to the plaintiff is “whether or not there was a pre-existing relationship between the plaintiff and the defendant”.14

THE EMPLOYER AS DEFENDANT [22.50] In Tame v New South Wales,15 the High Court ushered in a new era in the development of Australian psychiatric injury law. In its first pronouncement on this topic for 18 years, the court rejected three important policy limitations — sudden shock, direct perception, and normal fortitude — and restated the duty to take care not to cause such harm in terms of reasonable foreseeability, coupled with the existence of a sufficient relationship. Two appeals were heard together: the more important one, on most of the above issues and for present purposes, was Annetts v Australian Stations Pty Ltd. This case involved a secondary victim situation, but it was far removed from the typical case where close relatives see or come upon the aftermath of an accident to a loved one. When 16-year-old James Annetts, together with a companion, left his place of employment in a borrowed four-wheel-drive vehicle and disappeared into the Gibson Desert in the far north of Western Australia, his parents were in Sydney several thousand miles away. They were informed of the news of his disappearance by telephone. It was four months before the abandoned vehicle and the bodies were found. Mr and 11

Tame v New South Wales (2002) 211 CLR 317; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

12

See [22.50]–[22.140].

13

See [22.150]–[22.750].

14

Civil Law (Wrongs) Act 2002 (ACT), s 34(2)(d); Civil Liability Act 2002 (NSW), s 32(2)(d); Civil Liability Act 1936 (SA), s 33(2)(a)(iv); Civil Liability Act 2002 (Tas), s 34(2)(b); Wrongs Act 1958 (Vic), s 72(2)(d); Civil Liability Act 2002 (WA), s 5S(2)(d).

15

Tame v New South Wales (2002) 211 CLR 317.

776

Part IV: Relationship Cases

[22.60]

Mrs Annetts both suffered psychiatric injury, and sued James’s employer. Duty of care was tried as a preliminary issue. [22.60] James had left home and travelled to Halls Creek in the north of Western Australia to work as a jackaroo on the defendant’s sheep station, but only after his mother had telephoned and received assurances from the wife of the station manager that he would be working under constant supervision, and would be properly fed and looked after. In fact, not long after his arrival, he was sent to work alone on an outlying part of the property. After a few weeks, he had decided that he could not endure the conditions any longer. The case thus involved a triangle of relationships. There was of course the close relationship between primary and secondary victim that is a standard feature of practically all secondary victim cases. In addition there was the employment relationship between James and Australian Stations that involved an obligation to take reasonable care for the safety of the employee, in the circumstances of this case a 16-year-old employed on a large sheep station in the outback, miles from anywhere; and the relationship between the employer and James’s parents, created by his mother’s telephone call and the assurances she was given. It is arguable that both of these relationships were important in the High Court’s eventual finding that Australian Stations owed James’s parents a duty of care, overturning the decisions of the lower courts that had regarded themselves as bound by the existing authorities on direct perception and sudden shock. The employer of a 16-year-old employee must surely have some cognisance that failure to provide appropriate working conditions, especially in the circumstances of this case, would have some effect on his parents, but superimposed on this case was a more direct obligation to the parents arising out his mother’s questions and the responses she received. These factors assisted the court to come to the conclusion that there was a duty of care in the circumstances of the case despite the lack of direct perception. [22.70] It was McHugh J who adopted the most individual approach to this issue. On his view, it was not necessary to reconsider the rules that applied to ordinary cases in which there was no pre-existing relationship between the tortfeasor and the other parties. The existence of such relationships made all the difference. He focused first on the relationship between employer and employee: [T]he case was argued and decided in the Western Australian courts on the basis that the employer’s liability was governed by the special rules that usually determine whether a person is liable for the negligent infliction of pure nervous shock. But those rules do not apply to and do not govern this case. They are concerned with situations where the parties have no pre-existing relationship and where, before the suffering of nervous shock, there was no duty on the defendant to take care to avoid injury to the plaintiff. They are concerned with the issue whether the plaintiff was the defendant’s “neighbour” in Lord Atkin’s sense and whether the defendant owed a duty to the plaintiff. In the paradigm case of their application, the duty to take care to avoid inflicting nervous shock on the plaintiff coincides with the breach of a duty owed to a third party. … On the current state of authority, it is enough that,

[22.70]

22 Secondary Victim Cases

777

although there is no pre-existing duty or relationship, the defendant ought reasonably to have foreseen that his or her conduct might cause nervous shock to the plaintiff. In cases where there is no existing relationship between the defendant and the person sustaining nervous shock, however, English and Australian authority requires the plaintiff to prove more than the reasonable foreseeability of nervous shock to the plaintiff. It is unnecessary in this case to examine those additional requirements or the special rules or to determine whether and, if so, to what extent, they represent the current law. They do not apply where the defendant is already under a duty to take reasonable care to avoid injury to the plaintiff. The relationship of employer and employee, for example, requires the employer to take reasonable care to avoid injury to the employee. The duty is governed by the same rules and has the same content, irrespective of the kind of injury or damage that can reasonably be foreseen. In so far as White v Chief Constable of South Yorkshire Police16 decides the contrary, it does not represent the law of Australia. In White, the House of Lords appears to have overlooked that the employer’s duty of care arises from an implied term of the contract as well as from the general law of negligence. The law of contract does not imply two terms of reasonable care; it does not imply a duty to protect against physical harm and a separate duty to protect against psychiatric injury. It simply implies a general duty to take reasonable care for the safety of the employee and, it might be added, for the employee’s property. Similarly, under the general law, the duty of the employer is to take reasonable care for the safety of the employee in all the circumstances of the case. It is a duty to take reasonable care to eliminate all risks of injury that can be reasonably foreseen and avoided – whether they are risks to the employee’s psyche, person or property.17

McHugh J then directed his attention to the relationship between the defendant and Mr and Mrs Annetts: In the present case, the assurance of the employer gave rise to a duty on its part to supervise and take care of James so as to avoid inflicting harm on Mr and Mrs Annetts. The consideration for their consent to his going to Flora Valley and working for the employer was the assurance that the employer would supervise and take good care of him. They could have sued in contract, but they elected to sue in negligence under the general law. The result is the same. The assurance of the employer gave rise to a duty, the breach of which entitled Mr and Mrs Annetts to sue for any damage suffered that was reasonably foreseeable in a general way. It might be expenditure incurred in paying for medical treatment for their son or in searching for him if he became lost. Or it might be injury – personal or psychiatric – suffered by themselves.18

This was an individual approach, and not one fully concurred in by the rest of the court.19 But it indicates a possible future path for psychiatric damage law: it has the potential to divide into two different bodies of law, 16

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455: see [19.340]–[19.350].

17

Tame v New South Wales (2002) 211 CLR 317 at [139]–[140].

18

Tame v New South Wales (2002) 211 CLR 317 at [144].

19

Note, however, Callinan J’s references to the three “bilateral relationships” in this case: Tame v New South Wales (2002) 211 CLR 317 at [358], and see also at [329].

778

Part IV: Relationship Cases

[22.80]

one body governing cases where there is a prior relationship between the tortfeasor and one of the other parties, and another where no such relationships exist. [22.80] Unlike McHugh J, the other Justices did find it necessary to confront the rules that applied in the standard secondary victim cases. Even so, the assurances given to Mrs Annetts by the station manager’s wife were regarded as an important element in the eventual recognition of a duty of care. For Gleeson CJ, the relationship between the parties was one of the two matters that was critical, the other being the reasonable foreseeability of the kind of injury suffered (and they were related).20 Gaudron J identified entrusting the care of their son and the assurances given as special features of the case.21 According to the joint judgment of Gummow and Kirby JJ, the antecedent relationship between the parties, especially where the defendant had assumed some responsibility to the plaintiff to avoid exposure to risk of psychiatric harm, could supply the basis for a duty of care.22 Hayne J suggested that the relationship between the parents of a child and a defendant for whom and at whose premises the child was to work and live was one that could readily give rise to a duty, and was not in any relevant way different from a relationship between employer and employee.23 [22.90] In the next case to come before the Australian High Court, Gifford v Strang Patrick Stevedoring Pty Ltd,24 there was also an employment relationship between the defendant and the primary victim. The unfortunate Mr Gifford, who worked for the defendant at Darling Harbour in Sydney, was crushed to death by a forklift truck negligently driven by a fellow employee. The news of his death was conveyed to his wife (from whom he was separated) and his three teenage children. All three children claimed damages for psychiatric injury. The New South Wales Court of Appeal, which heard the case before the High Court delivered judgment in Tame v New South Wales,25 held that they could not recover because direct perception was lacking. Quite clearly, this finding could not stand with the High Court’s rejection of that requirement, but the court still had to determine whether according to general principle the respondents owed a duty to the appellants in the circumstances of the case. A six-judge court was unanimous in holding that it was appropriate to impose a duty, even though there was no equivalent of the antecedent assurances made to Mrs Annetts. [22.100] Gleeson CJ and Hayne J both discussed the liability of the respondent primarily in terms of the duty owed by an employer to the 20

Tame v New South Wales (2002) 211 CLR 317 at [32].

21

Tame v New South Wales (2002) 211 CLR 317 at [54].

22

Tame v New South Wales (2002) 211 CLR 317 at [237].

23

Tame v New South Wales (2002) 211 CLR 317 at [304].

24

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

25

Tame v New South Wales (2002) 211 CLR 317.

[22.130]

22 Secondary Victim Cases

779

children of an employee.26 In many circumstances it can be readily assumed that negligence towards the immediate victim entails a risk of consequent psychiatric harm to others, for example the parents of children injured in road accidents: the implication from these two judgments appears to be that there should be a similar assumption as respects the obligations of employers towards their employees’ children. Hayne J noted that one of the appellants was 19 at the time of the accident, but suggested that this was not material.27 [22.110] Gummow and Kirby JJ, in another joint judgment, attempted to identify the considerations that favoured the recognition of a duty of care in a case such as this.28 They also focused initially on the fact that this was a case involving an employer defendant. Considerations favouring the recognition of a duty in such a case included the fact that the employee was working to advance the employer’s commercial interests, the employee’s exposure to risk of death, and the reasonable foreseeability of psychiatric injury to an employee’s children in the event of the death of the employee. However, they also considered the interests of the three claimants: the law sought to protect the interest in freedom from serious mental harm that manifested itself in psychiatric illness, and more specifically in cases involving young people, protecting them from serious harm — a proposition that they illustrated by reference to diverse sources including cases on the parens patriae jurisdiction (in the context of intellectually disabled children) and the right to be heard in child welfare proceedings. [22.120] McHugh J did not focus on the employment relationship between the defendant and the primary victim to anything like the same extent. He ranged much more widely, suggesting that in particular circumstances all sorts of defendants should be able to foresee the effects of their conduct on third parties: The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer psychiatric injury on learning of the injury or death, or on observing the suffering of that person. Actions for nervous shock by such persons are common. So common and so widely known is the phenomenon that a wrongdoer must be taken to have had it in mind when contemplating a course of action affecting others. Accordingly, for the purposes of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin’s sense includes all those who have a close and loving relationship with the person harmed.29

[22.130] So, although the judgments in Gifford v Strang Patrick Stevedoring Pty Ltd30 display a range of views, a majority of the court found that the 26

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [10] per Gleeson CJ, at [100]–[101] per Hayne J. 27

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [102].

28

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [88]–[89].

29

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [47].

30

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

780

Part IV: Relationship Cases

[22.140]

employment relationship between Mr Gifford and the respondents was one of the most important factors in their conclusion that a duty was owed in the circumstances of the case. Gifford thus continues the work done by the High Court, and particularly McHugh J, in Tame v New South Wales31 in demonstrating the importance of relationships between the parties in establishing a duty of care.32 [22.140] Prior to these two cases, it has to be said that there was not a lot of indication in the authorities that the fact that the primary victim was in an employment relationship with the defendant made any real difference to the recognition of a duty. Perhaps the clearest statement appeared in Reeve v Brisbane City Council,33 where a Queensland first instance judge held that the defendant could owe a duty of care to the widow of their employee, a cleaner at the bus depot who was run over by a bus, despite the fact that she was not present and received the sad news from others. Lee J’s judgment was clearly influenced by the general proximity doctrine later abandoned by the High Court, though he ultimately ruled against the plaintiff on the ground of absence of sudden shock. One passage in his judgment is as follows: [I]n cases such as this the only relevant relationship which may be said to arise between the plaintiff and the defendant arises as an incident of the relationships firstly, between the defendant and the victim, and secondly, between the victim and the plaintiff.34

There are other cases where the plaintiff claimed damages for psychiatric injury as a secondary victim and the primary victim was the defendant’s employee,35 but nothing seems to turn on this fact.36 However, it is not 31

Tame v New South Wales (2002) 211 CLR 317.

32

In New South Wales, the Gifford children would no longer be able to make a common law claim: the Workers Compensation Act 1987 (NSW), s 151AD (enacted in 2012) provides that no damages for pure mental harm may be awarded against an employer in respect of the death of or injury to a worker unless the pure mental harm is a work injury: see [13.280].

33

Reeve v Brisbane City Council [1995] 2 Qd R 661.

34

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 667.

35

Eg Anthony v Australian Native Landscapes Pty Ltd [2008] NSWDC 109; Ireland v Garry Denson Metal Roofing Pty Ltd [2009] NSWSC 999; Theodoretos v Nexus Products Pty Ltd [2009] ACTSC 149; Martin v Teeling [2010] NSWSC 814 (father and son worked for same employer, father witnessed son being killed in work accident: father’s common law claim unaffected by any limitation on workers’ rights to claim under workers’ compensation legislation); Trustees of the Sydney Grammar School v Winch (2013) 83 NSWLR 80 (claim by son of deceased employee: McColl JA discussed nature of psychiatric injury claims and confirmed that they did not fall within the jurisdiction of the Dust Diseases Tribunal); Tamaresis v CSR Ltd [2013] VSC 613 (father died from mesothelioma in New South Wales, contracted during employment in Victoria, plaintiff in Greece suffered psychiatric injury when informed of death, but Victorian law applied because Victoria was where events which in substance gave rise to her cause of action occurred). See also Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; Manufacturers Mutual Insurance Ltd v Hooper (1988) 5 ANZ Insurance Cases 60-849; AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales [2001] NSWCA 186 (in each of these cases, wife claimed damages for psychiatric injury from husband’s employer, employer clamed indemnity from employee); Zinc Corporation v Scarce (unreported, NSWCA, No 40214 of 1993, 20 December 1995) (fellow

[22.150]

22 Secondary Victim Cases

781

necessary to rely on such authorities. Especially in Australia, statute and the leading High Court cases combine to spell out the importance of relationships with the defendant as a factor assisting in the determination of whether a secondary victim is owed a duty of care.

MEDICAL NEGLIGENCE37 Introduction [22.150] In an early South Australian case, Brown v Mount Barker Soldiers’ Hospital Inc,38 the plaintiff was admitted to the hospital to give birth, and a few days later, while she was in her ward and the child was being cared for in a crib in the nursery, a spark from a wood fire in the nursery caused the bedclothes of the crib to catch fire, and in consequence the child’s hand was badly burnt. The plaintiff was informed of the occurrence and it was alleged that she “suffered, and still suffers, from shock and agony of mind”. It was argued for the hospital that the Privy Council decision in Victorian Railways Commissioners v Coultas39 bound the court to deny recovery, and even if this was not so, according to the principles of Hambrook v Stokes Bros40 the plaintiff could not recover because she did not see the accident, but only knew of it by report sometime after it had occurred. However, Piper J distinguished both cases: Here the defendant in taking charge of Mrs Brown as a patient assumed a care of her involving the need to avoid, so far as reasonably practicable, all things worker who suffered psychiatric injury at news of death of another worker made workers’ compensation claim). Authorities from other jurisdictions include Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895 (see [10.360]); Fullowka v Pinkerton’s of Canada Ltd [2010] 1 SCR 132 (the O’Neil claim). 36

Eg Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. In Duncan v British Coal Corporation [1997] 1 All ER 540 a fellow worker who arrived at the scene of the accident within minutes and suffered psychiatric injury as a result of the experience was denied recovery on the ground that he was not a rescuer and no duty was owed by the defendant as his employer. It seems that the plaintiff was regarded as a mere secondary victim, not owed any duty because of the lack of any close family relationship with the primary victim. The English Court of Appeal, which recognised that employers owed a general duty of care to employees in the companion case of Frost v Chief Constable of South Yorkshire Police [1998] QB 254, nevertheless said no duty was owed to Mr Duncan. It is arguable that this was incorrect: see Tame v New South Wales (2002) 211 CLR 317 at [223] per Gummow and Kirby JJ (where as the result of editorial correction of the original version of the judgment Duncan is referred to as White v Chief Constable of South Yorkshire Police: this is wrong because the report of Frost in [1998] QB 254, unlike that in [1997] 1 All ER 540 omits all reference to Duncan).

37

Parts of this section are based on P Handford, “Psychiatric Injury Resulting from Medical Negligence” (2002) 10 Tort L Rev 38. For other literature see Farid Sufian Shuaib, “Claims for “Nervous Shock” by Secondary Victims in Medical Negligence Cases” (1999) 15 PN 18; MA Jones, Medical Negligence (4th ed, Sweet & Maxwell, London, 2008), pp 194–202; P Case, “Secondary Iatrogenic Harm: Claims for Psychiatric Damage Following a Death Caused by Medical Error” (2004) 67 MLR 561.

38

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128.

39

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.10].

40

Hambrook v Stokes Bros [1925] 1 KB 141: see [2.50].

782

Part IV: Relationship Cases

[22.160]

that might prejudice her health and comfort, or increase her need for exertion or care. It would be a breach of duty, actionable if followed by damage, to tell her untruly that her child had been burnt. As the truthfulness of the statement was owing to negligence, the truthfulness was no legal excuse for doing harm by telling her — it was a necessary consequence of the negligence that she had to be told.41

[22.160] While the reasoning process may appear somewhat strange, in essence it is that, while in ordinary circumstances being told of an accident might not give rise to liability, the fact that the defendant had assumed a relationship of care put a different complexion on the matter. In cases such as Schneider v Eisovitch42 the plaintiff recovered for shock caused by being told of the death of a relative on the basis that it was a consequence of a pre-existing duty, but the source of the duty was the plaintiff’s own involvement in the accident. In Brown v Mount Barker Soldiers’ Hospital Inc,43 the situation was entirely different. The preexisting relationship between the parties, by which the defendant undertook an obligation to care for Mrs Brown, caused the court to conclude that the rules applicable to accident cases between strangers should not apply with full force in this rather different situation.44 [22.170] This remarkable early decision suggests that in cases where it is claimed that negligence by a doctor, hospital or health care authority has resulted in psychiatric injury to the patient or third parties, rules developed for road accident cases and the like, in which the parties involved were previously strangers, may not always be appropriate. There is a pre-existing relationship between the parties, by which one of them promises to provide care. The nature of the care and treatment undertaken may well involve a series of procedures that occupy some time rather than an event that is over in a matter of seconds. And, unlike accident cases, in the nature of things it is unlikely that close relatives will be in a position to witness negligence that occurs during the course of an operation or some other types of medical treatment: the case of Ibrahim (A Minor) v Muhammad,45 where Tayfun, a five-year-old Turkish Cypriot, was being circumcised by a local doctor in the presence of his family, with a party going on around him and the whole event being recorded on

41

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128 at 130.

42

Schneider v Eisovitch [1960] 2 QB 430. See also Andrews v Williams [1967] VR 831; Kohn v State Government Insurance Commission (1976) 15 SASR 255.

43

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128.

44

Note also Briody v St Helens and Knowsley Health Authority (2000) 53 BMLR 108, where the 19-year-old plaintiff underwent an emergency caesarean section and gave birth to a stillborn child, following which the doctors decided to perform a subtotal hysterectomy. She was told of the baby’s death, and the hysterectomy, by her husband next day. She was awarded damages inter alia for post-traumatic stress disorder. An appeal to the English Court of Appeal was dismissed: Briody v St Helens and Knowsley Health Authority [2002] QB 856.

45

Ibrahim (A Minor) v Muhammad (unreported, Eng QBD, 21 May 1984).

[22.180]

22 Secondary Victim Cases

783

cine-film by his uncle,46 is rare indeed.47 In the light of all these considerations, it can be argued that in cases of medical negligence causing psychiatric injury the law should take a slightly different approach. [22.180] A number of the cases to be considered involve mishaps in the birth process, resulting in a stillbirth, or the birth of a disabled child.48 The mother is, of course, present, but may not be conscious if she is undergoing a caesarean section; the father may be present, or may be absent but nearby, waiting for news. If there are problems, there may have to be further treatment. A bad experience may cause psychiatric injury to one or both parents. It would seem that the father is likely to be regarded as a secondary victim, but the way courts have classified the mother varies.49 It may be questioned whether it is rational to distinguish between the parents in this regard, or even to apply the primary/ secondary victim analysis at all. 46

The doctor went too far and cut off about half of Tayfun’s penis, and both his parents recovered damages for psychiatric injury: see [7.360].

47

One of the few cases in which the plaintiff was present during part of the medical treatment process is Krishna v Loustos [2000] NSWCA 272: see [22.200].

48

For Australian cases where psychiatric injury claims were made in respect of mishaps in the birth process, other than those discussed in the text, see Timmerman v Choy (unreported, Vic SC, 6 November 1995); Marchlewski v Hunter Area Health Service [1998] NSWSC 771; McKenzie v Lichter [2005] VSC 61 (see [17.110]–[17.130]); Rasmussen v South Western Sydney Local Health District [2013] NSWSC 656. Note also the following cases, where the issue arose in the context of an application to extend the limitation period: Harriton v Macquarie Pathology Services Pty Ltd (1998) Aust Torts Rep 81-489 (for further proceedings by the child, see Harriton v Stephens (2006) 226 CLR 52); Gilbert v Castagna [2000] NSWSC 461; Gilbert (now Chalk) v Illawarra Area Health Service [2000] NSWSC 508, appeal dismissed Gilbert v Illawarra Area Health Service [2001] NSWSC 323; Simms v Western Sydney Area Health Service [2001] NSWSC 795; Tori v Greater Murray Health Service [2002] NSWSC 186. For a New Zealand case, see Owen v Residual Health Management Unit [2000] NZCA 162. English cases include Ackers v Wigan Health Authority [1991] 2 Med LR 232; Grieve v Salford Health Authority [1991] 2 Med LR 295; Kerby v Redbridge Health Authority [1993] 4 Med LR 178; Pearce v United Bristol Healthcare NHS Trust [1996] EWCA Civ 1562; Cummings v Croydon Health Authority (unreported, Eng QBD, 24 March 1998); Briody v St Helens and Knowsley Health Authority (2000) 53 BMLR 108; note also Bagley v North Herts Health Authority (1986) 136 New LJ 1014 where a mother was awarded damages for loss of satisfaction in bringing the pregnancy to a successful conclusion. This award was referred to in some of the cases listed above: it was followed in Grieve v Salford Health Authority, but in Kerby v Redbridge Health Authority it was said to be inconsistent with the principle that damages could not be awarded for grief (see [2.310], [6.20]–[6.60]). Morritt LJ in Pearce United Bristol Healthcare NHS Trust at [29]–[32] said that such a claim was not available to a father.

49

Cases in which the mother appears to have been treated as the primary victim (in addition to those discussed in the text) include Timmerman v Choy (unreported, Vic SC, 6 November 1995) (Batt J said: “this case appears to be the first [Australian] case of a claim for damages for pain and suffering for Psychiatric illness resulting from obstetrical and hospital negligence at the time of delivery where the mother sues, principally at any rate, as the primary victim”); Gilbert v Castagna [2000] NSWSC 461; Gilbert (now Chalk) v Illawarra Area Health Service [2000] NSWSC 508, appeal dismissed Gilbert v Illawarra Area Health Service [2001] NSWSC 323; Grieve v Salford Health Authority [1991] 2 Med LR 295; Kerby v Redbridge Health Authority [1993] 4 Med LR 178; Briody v St Helens and Knowsley Health Authority (2000) 53 BMLR 108.

784

Part IV: Relationship Cases

[22.190]

Australia [22.190] Despite the promising early decision in Brown v Mount Barker Soldiers’ Hospital Inc,50 the proposition that rules developed for road and other accident situations may require reassessment before they are automatically applied in the medical negligence context has not really been subjected to extended consideration in subsequent Australian case law. [22.200] The majority of decisions involving claims for psychiatric injury by secondary victims of medical negligence simply proceed along standard lines. Sometimes, the facts have enabled a satisfactory result to be reached without resort to special principles.51 In other cases, the principles are not explored in any depth because liability is admitted and the court’s sole task is assessing quantum. Greco v Arvind52 is an example. The plaintiff’s wife had problems during her pregnancy. The first defendant diagnosed an incomplete miscarriage and said she should undergo dilation and curettage. Both the diagnosis and the advice were wrong. The operation failed to terminate the pregnancy and the child was born disabled. The plaintiff, the child’s father, was not present during the operation but was informed of the outcome soon afterwards. He sued the doctors, claiming that on learning of the baby’s condition he suffered injury by way of nervous shock, and that this affected his marriage. The defendants did not contest the father’s claim, but argued that subsequent events in the plaintiff’s life were partly responsible for the chronic reactive depression from which he was suffering, and this should reduce the damages payable. Badgery-Parker J said he was satisfied on the evidence that the plaintiff had sustained significant injury by way of nervous shock. 50

Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128.

51

For example, Marchlewski v Hunter Area Health Service [1998] NSWSC 771 (reversed on the issue of aggravated damages: Hunter Area Health Services v Marchlewski (2000) 51 NSWLR 268), a claim by a father, mother and three-year-old sister for psychiatric injury consequent on the death of a four-week-old baby due to negligence during the delivery. The mother was of course present, and the father was summoned to the delivery room where he “witnessed the bloody aftermath of the delivery”. The three-year-old’s claim was rejected: see [9.130]. In Marinko v Masri [1999] NSWCA 364, a husband whose wife collapsed and went into a coma during treatment in a doctor’s surgery while he was absent recovered damages on the basis that shock was caused by a combination of what he was told and what he saw when he arrived at the hospital. Contrast Krishna v Loustos [2000] NSWCA 272, where a wife was present during much of the treatment which resulted in her husband’s death, but the evidence was that the defendant performed all necessary steps promptly and that the husband would have died before he could have been successfully intubated. X and Y (by her tutor X) v Pal (1991) 23 NSWLR 26 is mainly concerned with the claim of a child born with congenital syphilis against a gynaecologist who failed to carry out tests, but Clarke JA at 58 briefly explored the mother’s claim for nervous shock, without really suggesting that there was any prospect of her being anything other than a secondary victim.

52

Greco v Arvind (unreported, NSWSC, Badgery-Parker J, No 14595 of 1990, 24 February 1995).

[22.230]

22 Secondary Victim Cases

785

[22.210] The father was clearly a secondary victim, but it appears that the shock suffered was caused, initially at least, by what he was told. Though he later observed the child’s condition for himself, this could well have been some time after the birth. (Because liability was admitted, some details are lacking.) The medical history could also be interpreted as showing a gradual onset of depression, rather than any sudden event. In theory, these were arguments which could have been raised by the defendant; and yet, it seems artificial to apply the traditional rules about means of communication, aftermath and sudden shock to this situation. The father could not have been present at the operation. He was close at hand, waiting for news. He no doubt saw the baby as soon as he was allowed to do so. It is surely foreseeable that in such circumstances negligence by the defendants may cause some sort of mental injury to the two persons most closely involved — the mother and the father. [22.220] A case in which there is rather more awareness of the special circumstances of the fact situation is Strelec v Nelson.53 A child was born to the plaintiff in 1985, but the birth was a difficult one: there were severe injuries during the delivery, including a traction injury to the cervical cord, and the baby was badly disabled and had respiratory problems. Despite intensive treatment he died a month later. The plaintiff remained hopeful, and when she and her husband arrived at the intensive care unit one month later she thought that she would be allowed to take the baby home. Instead, the full extent of his injuries was revealed, and they were advised to let him die. The effect was devastating, and the plaintiff was later diagnosed to be suffering from a long-lasting psychiatric illness. She sued her general practitioner, who was attending her during the birth, a specialist obstetrician who was called in when difficulties became apparent, and the hospital. All three were held liable in damages. (Her husband was by her side throughout the delivery, but no claim was made on his behalf.) [22.230] The major issue for Smart J was whether the plaintiff had to satisfy the “sudden shock” rule. On her behalf it was submitted that it was not a case where she had to prove a sudden sensory loss, because she had suffered physical injury as a result of the defendants’ negligence and the psychiatric injury was a consequence of the physical injury.54 Smart J said that the physical injury to the plaintiff unrelated to nervous shock was minor, consisting only of temporary pain during the delivery and from stitching the cervix without anaesthetising the affected areas. Her psychiatric injury was not due to any of this. His Honour therefore elected to treat the case as one of pure psychiatric injury. He considered 53

Strelec v Nelson (unreported, NSWSC, Smart J, No 12401 of 1990, 13 December 1996). See also the judgment on preliminary issues on 19 February 1996, when Smart J ruled that there was sufficient evidence to go to the jury on the psychiatric injury claim.

54

Reliance was placed on Aboushadi v CIC Insurance Ltd (1996) Aust Torts Rep 81-384, where Handley JA held that the distinction between ordinary physical injury and psychiatric injury was illusory, since mental shock is in all cases the result of or accompanied by some physical disturbance in the sufferer’s system: see [5.390].

786

Part IV: Relationship Cases

[22.240]

some of the authorities on sudden shock, in particular the view of Kirby P in Campbelltown City Council v Mackay55 that nervous shock is rarely if ever the result of an isolated shock. Reading between the lines it seems that he was uncomfortable with applying the sudden shock rule to the problem of a child born disabled, where the full extent and consequences of the disability might only gradually become apparent. However, he ruled that Mrs Strelec had suffered a sudden sensory shock when arriving at the intensive care centre and being told the bad news. [22.240] One issue raised by the facts of this case, but not discussed by Smart J, is the nature of the “accident” or “event” for the purpose of applying the rules of psychiatric injury. If it was the circumstances of the birth (at which both parents were present), is there a problem in ruling that the decisive cause of the psychiatric injury did not happen until a month later? Or is this subsequent happening, rather than the birth, the “event”? It may seem preferable to regard the whole process, from the delivery onwards, culminating in the full realisation one month later at the intensive care centre, as one continuous process. This is what the English courts have done in some cases, but so far there is no hint of it in Australian law. [22.250] There is one other Australian case that deserves mention in this context, although the medical negligence involved is somewhat unusual — a failure to treat. Woods v Lowns56 is best known as a case extending the limits of liability for omission. Dr Lowns, a Gosford general practitioner, refused to attend and treat Patrick Woods, a 10-year-old epilepsy sufferer on holiday with his mother, brother and sister, when Patrick’s sister Joanna knocked on the door of his surgery and asked for his help because Patrick was having an epileptic fit. Patrick suffered brain damage as a result of the delay in receiving treatment. Dr Lowns, and the specialist who had been treating Patrick for some time (who, it was alleged, had failed to give Patrick’s mother proper instructions and medication to deal with an emergency), were held liable in damages to Patrick at first instance. By majority, the New South Wales Court of Appeal57 dismissed the general practitioner’s appeal but allowed that of the specialist. Though their claims are omitted from the reported version of the case, Patrick’s parents also sued the defendants for psychiatric injury.58 His mother was in the holiday unit with Patrick when he suffered the fit, and when he eventually received medical treatment at Gosford Hospital, and had borne the burden of caring for him since then. Patrick’s father, who was separated from his mother, was informed of what had happened by telephone, and saw Patrick subsequently in hospital. 55

Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503.

56

Woods v Lowns (1995) 36 NSWLR 344.

57

Lowns v Woods (1996) Aust Torts Rep 81-376.

58

See the full judgment of Badgery-Parker J in Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995).

[22.270]

22 Secondary Victim Cases

787

[22.260] The fact that Patrick’s father was not present, but was informed of the news by telephone, was not a problem in New South Wales, because the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1) provided that liability for an act, neglect or default by which another person is killed, injured or put in peril extended to include liability for nervous shock sustained by a parent whether or not within sight or hearing at the time of the accident.59 It is clear that this extended to absent parents who were informed of the accident by another.60 However, it seems that it was some time before the full extent of Patrick’s injuries became apparent to either parent. This did not seem to be a problem: it appears that Badgery-Parker J was prepared to take a somewhat more elastic view of the aftermath concept than is generally found in accident cases. He said: It is not difficult to envisage cases where the phenomenon which causes injury by nervous shock is separated by some considerable time from the event which causes it. Parents may not be seriously affected and certainly not psychiatrically injured by the perception that their child has suffered what appears to be a straightforward fracture of the leg; but might suffer injury by nervous shock when, even weeks afterwards, they are informed that by reason of some vascular complication it is necessary to amputate the limb; the parents of a person who suffers a spinal injury may be seriously distressed but live in hope of a full recovery until the time comes, perhaps many days after the injury, when it is confirmed that their child will not walk again; in either case, it was foreseeable at the time of the tortious conduct that the parent might sustain injury by way of nervous shock not merely by the occurrence of the original injury but by the perception of some later deterioration or complication of the child’s state. So here, in my view, if the facts establish that either of the plaintiffs sustained injury by way of nervous shock at the time of his or her perception of the fact that Patrick had suffered permanent brain damage, it was foreseeable that such might occur, even though the time of its occurrence might be delayed even for a considerable time.61

[22.270] However, the problem was that the law required a sudden shock. This common law rule was not displaced by the New South Wales statute.62 In the case of Patrick’s mother, there was no identifiable occasion on which she was made suddenly aware of the gravity of her son’s plight, and so her claim had to fail. The father’s case was different: there was evidence of a particular occasion, four or five weeks after Patrick had been transferred out of intensive care, when the father had a meeting with the specialist referred to above who told him Patrick had massive brain damage. Accordingly the father recovered damages. The result underlines the often arbitrary nature of distinctions imposed by the 59

This provision was repealed for most purposes in 2002: see [13.40].

60

See eg State Rail Authority of New South Wales v Sharp [1981] 1 NSWLR 240; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1.

61

Woods v Lowns (unreported, NSWSC, No 15676 and 15678 of 1992, 9 February 1995).

62

See Chiaverini v Hockey (1993) Aust Torts Rep 81-223.

788

Part IV: Relationship Cases

[22.280]

sudden shock rule, and causes one to question whether this rule should be inflexibly applied without any regard to the nature of the particular circumstances. [22.280] Strelec v Nelson63 and Lowns v Woods64 were distinctive because the medical negligence scenario required a special response to overcome the problems imposed by rules requiring presence at the aftermath, direct perception and sudden shock. Now that the High Court in Tame v New South Wales65 and Gifford v Strang Patrick Stevedoring Pty Ltd66 has jettisoned these requirements, there is less need for a special approach. Courts in medical negligence cases can reach a satisfactory solution simply by applying the ordinary rules. A good example is provided by the decision of Debelle J of the Supreme Court of South Australia in Kemp v Lyell McEwin Health Service.67 Duane Kemp had a heart transplant when aged 14. Nine years later, he sought hospital treatment, complaining of abdominal pain, vomiting, and diarrhoea, and was examined and discharged. He was taken to his girlfriend’s house. An hour later, he collapsed. His parents were summoned and arrived to find him being treated by ambulance officers. They took him to hospital, still trying to revive him, but soon afterwards his parents were informed that he had died. The cause of death was chronic rejection of the heart transplant. His parents and his two brothers claimed damages for psychiatric injury. Debelle J, applying the principles of Tame and Gifford, rejected an application to strike out the statements of claim, holding that the defendant owed a duty of care to each plaintiff: Because Duane Kemp was a young man, it was reasonably foreseeable that if he died as a result of the negligence of the Hospital, his parents and siblings, on being informed of that fact, might suffer such a sense of sudden loss that they would suffer a recognised psychiatric disorder. That was especially so in the case of both parents who had witnessed the distressing events leading to Duane Kemp’s death. Although Duane Kemp’s brothers did not witness his death, they are so close in relationship to him that it was reasonably foreseeable that they too would suffer a recognised psychiatric disorder on being informed of his death and the circumstances leading to it.68

63

Strelec v Nelson (unreported, NSWSC, Smart J, No 12401 of 1990, 13 December 1996).

64

Lowns v Woods (1996) Aust Torts Rep 81-376.

65

Tame v New South Wales (2002) 211 CLR 317.

66

Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

67

Kemp v Lyell McEwin Health Service (2006) 96 SASR 192.

68

Kemp v Lyell McEwin Health Service (2006) 96 SASR 192 at [18]. For other examples, see Halvorsen v Dobler [2006] NSWSC 1307, appeal dismissed Dobler v Halvorsen [2007] NSWCA 335 (hospital liable for psychiatric injury to deceased’s parents and sister; the judgments do not find it necessary to go into details about whether they were present at any stage); Goddard v Central Coast Health Network [2013] NSWSC 1932 (hospital liable for psychiatric injury to mother who had been told daughter had died, and viewed body; claim of partner failed on ground that he had not suffered recognised psychiatric illness).

[22.290]

22 Secondary Victim Cases

789

Modern Australian cases, therefore, in the main simply apply general principles69 and are unlikely to reveal very much about the need for a special approach to secondary victims of medical negligence.70 It is to England, with its much more restrictive approach to secondary victim claims generally, that we must turn for further insight.71

England (and Scotland) [22.290] The most important evidence that the approach to secondary victim liability is a little different in medical negligence cases, because of the pre-existing relationship of care undertaken by the doctor or the hospital to the patient, is provided by a series of English cases.72 The reason for this may be that English courts have adopted much tighter limitations on liability in mainstream psychiatric injury cases than courts in Australia and some other countries. This applies particularly to the aftermath principle: it will be recalled that according to Lord Wilberforce in McLoughlin v O’Brian,73 the two hours that elapsed before the plaintiff in that case reached the hospital and saw her injured husband and children was “upon the margin of what the process of logical progression would allow”, and that in Alcock v Chief Constable of South Yorkshire Police74 69

In Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 at [11] the New South Wales Court of Appeal, referring to its earlier decision in Lane v Northern NSW Local Health District (No 3) [2014] NSWCA 233, said that for a secondary victim claim to succeed the plaintiff had to establish a sufficient relationship between the defendant and the plaintiff, negligence by the defendant in the treatment of the primary victim, that the negligent treatment had caused a deterioration in the health or well-being of the primary victim, and that the primary victim’s condition so caused had in turn caused the plaintiff to suffer from a psychiatric condition.

70

Note, however, Panagiotopoulos v Rajendram [2007] NSWCA 265 at [51] per Basten JA (“The duty to the husband was, in a sense, derivative in that he fell within a class of persons who might suffer injury, in his case psychiatric illness, from a failure to take reasonable care to treat his wife. However, in another sense, the duty was a primary and not a derivative duty. In other words, so long as a breach of duty were established in the treatment of the Appellant’s wife, it might not matter that she would have had no cause of action because she did not suffer loss”); McKenna v Hunter & New England Local Health District (2014) Aust Torts Rep 82-158 at [200]–[202] per Garling J (dissenting), drawing attention, inter alia, to the need to address the mental harm provisions of the Civil Liability Act 2002 (NSW).

71

Note O’Reilly v Western Sussex NHS Trust (No 6) [2014] NSWSC 1824, an action brought in New South Wales by a wife for psychiatric injury caused by the death of her husband in an English hospital due to medical negligence. Garling J applied English law, under which the claim was statute-barred, but which in any case denied liability due to lack of direct perception.

72

Other English cases involving claims by secondary victims for psychiatric injury in a medical context include G v North Tees Health Authority [1989] FCR 53 (vaginal swab taken from six-year-old child mistakenly reported to be contaminated with sperm: liability to both mother and child admitted); Powell v Boladz [1998] Lloyd’s Rep Med 116 (no duty to parents: the allegations involved a cover-up subsequent to the child’s death); Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] All ER (D) 218, cited by MA Jones, Medical Negligence (4th ed, Sweet & Maxwell, London, 2008), p 202. 73

McLoughlin v O’Brian [1983] 1 AC 410 at 419.

74

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

790

Part IV: Relationship Cases

[22.300]

the House of Lords resisted attempts to extend the aftermath principle to relatives who arrived at the hospital later than that, or to other situations such as searching among dead bodies for missing family members, or enduring the agony of not knowing what had happened to their loved ones. These rules are important because English law, unlike Australian law, still insists on the direct perception requirement and so there is no avenue of recovery for plaintiffs who suffer psychiatric injury when told of an accident to a loved one by others.75 Likewise, English law still insists on the need for sudden shock, which has now been abandoned in Australia.76 These rigid rules have created unacceptable pressures in cases for which they were not designed, such as negligence occurring in the operating theatre or the doctor’s surgery, and have led to moves to outflank them — though the latest cases suggest that these moves have not ultimately been successful. Early cases [22.300] One of the earliest English cases in which a psychiatric injury claim was made in a medical negligence context was Kralj v McGrath,77 which, like most of the other cases to be discussed, involved the consequences of negligence in relation to childbirth. The plaintiff was admitted to hospital to give birth to twins. The first twin was born without any difficulties, but the second twin was lying in a transverse position and the defendant obstetrician put his arm inside the plaintiff in an attempt to turn the second baby by manual manipulation of the head, a procedure that, according to expert opinion, was horrific and wholly unacceptable. The child was eventually delivered by caesarean section. As a result of the defendant’s negligence, the child was born severely disabled and died eight weeks later. The defendant admitted liability. The plaintiff’s claim for exemplary damages (which was unsuccessful) and for the financial and other consequences of having to undergo another pregnancy to “replace” the dead child (which succeeded) are not material for present purposes. We are concerned with her claim for damages for grief arising out of the loss of the child. [22.310] Mrs Kralj did not see the second twin following the birth because he was immediately taken to another hospital. Initially she was told merely that he was a bit poorly, but next day she was informed that he had died but had been resuscitated after 20 minutes. She eventually saw him in an incubator two days later, and watched over him every day until he died. Woolf J referred to a dictum of Lord Wilberforce in McLoughlin v O’Brian78 to the effect that while no damages can be awarded for grief and sorrow, a claim may be made for nervous shock 75

See [11.460]–[11.510].

76

See [11.370]–[11.400].

77

Kralj v McGrath [1986] 1 All ER 54. See N Grace, “Doctors, Damages and Nervous Shock” (1986) 2 PN 46.

78

McLoughlin v O’Brian [1983] 1 AC 410 at 418.

[22.330]

22 Secondary Victim Cases

791

caused by negligence without the necessity of showing direct impact or fear of immediate personal injury to oneself. He then said: [T]here can be no doubt that Mrs Kralj is entitled to be compensated for the shock she undoubtedly suffered as a result of being told what had happened to Daniel and of seeing him during her visits.79

[22.320] This case clearly disobeys some of the rules subsequently confirmed by the House of Lords in Alcock v Chief Constable of South Yorkshire Police.80 Insofar as the shock was caused by what Mrs Kralj was told, it contravenes the principle that rules out liability in cases where the plaintiff was told by another rather than experiencing it through his or her own senses, though it can perhaps be rationalised as a case where the injury was caused by the combined effect of what the plaintiff was told and later saw, a principle clearly endorsed in Australia by Jaensch v Coffey.81 However, the case seems inconsistent with the sudden shock requirement, and with the authorities that rule out a duty where psychiatric injury results from subsequent contact, away from the scene of the accident and the aftermath, with a person suffering from the effects of the accident.82 It is tempting to see the case as providing some evidence of a recognition of a need to treat mishaps during the birth process as different from ordinary accidents; and at least in relation to the non-application of the sudden shock rule, and perhaps in relation to the relaxation of the ban on told-only recovery, this might be a possible interpretation. But liability was admitted, there is very little discussion of the issues in the judgment, and the case pre-dates the leading decisions of the House of Lords in the 1990s such as Alcock. [22.330] The first of the post-Alcock v Chief Constable of South Yorkshire Police83 cases in which English courts addressed the issue of psychiatric injury in a medical context was Taylor v Somerset Health Authority84 — exceptional in that it does not involve the childbirth situation. Mr Taylor had a heart attack at work and died in hospital. The defendant authority admitted that it had been negligent in failing to diagnose and treat his serious heart disease many months before. Mrs Taylor was at work when she was informed that her husband had been taken ill and rushed to hospital. On arrival at the hospital, she was told by a doctor that he was dead. She was shocked and distressed by the news, and could not believe it, but it was confirmed a few minutes later when she identified her husband’s body in the hospital mortuary. The sight of the body caused her further shock and distress. As a result of these events, she suffered a psychiatric injury. 79

Kralj v McGrath [1986] 1 All ER 54 at 62.

80

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

81

Jaensch v Coffey (1984) 155 CLR 549.

82

See [12.30]–[12.80], [12.510].

83

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

84

Taylor v Somerset Health Authority (1993) 16 BMLR 63, noted by R English [1993] CLJ 204.

792

Part IV: Relationship Cases

[22.340]

[22.340] According to Auld J, the question at issue was whether the plaintiff’s involvement, within an hour or thereabouts of his death, brought her within the aftermath principle as formulated by Lord Wilberforce in McLoughlin v O’Brian85 and endorsed in Alcock v Chief Constable of South Yorkshire Police.86 In these two cases, he said, the House of Lords clearly had in mind the standard accident scenario “in which the horrific consequences of the breach of duty consist both of an external, traumatic, event such as an accident, and the suffering in it of violent injury or death”.87 [22.350] Counsel for the plaintiff submitted that the “event” to which the proximity test applied in this case was the consequence of the health authority’s negligence (namely the husband’s death from a heart attack), not some incident in the sense of an external traumatic event acting on the plaintiff’s mind. The nature of the event was not significant. On this basis, her discovery at the hospital that he had suffered a fatal heart attack shortly beforehand, and the viewing of the dead body in the mortuary, were sufficiently proximate to the death in time and space. [22.360] However, counsel for the defendant argued that on the facts of this case there was no event to which the proximity test could be applied. Mr Taylor’s death long after the negligence that was responsible for it was the culmination of the natural process of heart disease, and however shocking to Mrs Taylor when she learnt of it, was not in itself an event of the kind to which the aftermath principle could be applied. Even if this was wrong, Mrs Taylor’s learning from a doctor what had happened and subsequent identification of the body did not satisfy the rules about the means of communication. Auld J accepted that, for both these reasons, the claim had to fail. [22.370] This case exhibited a narrow approach on a number of issues, such as means of communication and the aftermath question, but in relation to medical negligence the most important limitation was the need for an external traumatic event. According to Auld J, this was an essential requirement of the aftermath principle: The immediate aftermath extension is one which has been introduced as an exception to the general principle established in accident cases that a plaintiff can only recover damages for psychiatric injury when the accident and the primary injury or death caused by it occurred within his sight or hearing. There are two notions implicit in this exception cautiously introduced and cautiously continued by the House of Lords. They are of: (1) an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death; and (2) a perception by the plaintiff of the event as it happens, normally by his presence at the scene, or exposure to the scene and/or to the primary 85

McLoughlin v O’Brian [1983] 1 AC 410.

86

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

87

Taylor v Somerset Health Authority (1993) 16 BMLR 63 at 66.

[22.390]

22 Secondary Victim Cases

793

victim so shortly afterwards that the shock of the event as well as of its consequences is brought home to him.88

If this is correct, the scope for psychiatric injury claims by secondary victims in medical negligence cases becomes exceedingly narrow. Cases from other jurisdictions do not impose such a limitation. A more enlightened approach? [22.380] The next case, though only a decision at County Court level, demonstrated a much greater awareness of the different circumstances surrounding medical negligence claims and the need to fine-tune the law of psychiatric injury to provide an effective remedy in appropriate cases. In Tredget v Bexley Health Authority,89 the plaintiffs, husband and wife, claimed damages for psychiatric illness, contributing to the breakdown of their marriage, caused as a result of the death of their son within two days of his birth. The birth was a long and painful process. A decision to advise a caesarean was delayed much longer than it should have been, and then the baby’s shoulder had to be broken to allow the birth process to be completed. When finally delivered, the baby was in a severely asphyxiated condition with no detectable heartbeat, though he was resuscitated in an adjacent labour room and then taken to the special care baby unit and put on an incubator. He died two days later. Mrs Tredget was only partially conscious during the latter part of her ordeal. Mr Tredget was present throughout and observed all that happened. [22.390] The defendant authority admitted that the death was caused by its negligence, but argued (inter alia) that there was no “qualifying event” of the kind found in previous psychiatric injury cases. Rejecting this argument, his Honour Judge White adopted a much more enlightened view than that espoused by Auld J in Taylor v Somerset Health Authority:90 There is, for example, a degree of unreality, at least in the lay mind, in analyses which seek to equate or differentiate between events such as a crowd disaster at a football stadium or a road accident and the birth of a fatally damaged child, although the traumatic consequences to those affected may be the same. The latter experience measures uneasily against the two broad categories of circumstance Lord Olive [sic] identified in his speech in Alcock … as giving rise, on the authorities to date, to a duty of care in “nervous shock” cases; cases in which the injured plaintiff was involved either mediately or immediately as a principal and those in which the plaintiff was no more than a passive or unwilling witness of the injury caused to others. Is the mother who does not actually witness the birth of the damaged child and from whom the child is taken until its death shortly after, a participant; is the father who is present at the birth, who is asked to help by telling his wife to push and who sees the baby taken from her, simply a passive witness; does the law draw a distinction between the role and the duties owed to each parent? Again, in an analysis of the law, can the death of the child as “an event” be separated from “the event” 88

Taylor v Somerset Health Authority (1993) 16 BMLR 63 at 68.

89

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

90

Taylor v Somerset Health Authority (1993) 16 BMLR 63.

794

Part IV: Relationship Cases

[22.400]

of the birth some 48 hours before or does the lawyer’s logic fed by other factual situations in attempting to do so become … divorced from reality?91

[22.400] As his Honour said, the court had to take the law as it was, and the principal disputes were whether the parents’ psychiatric illnesses resulted from a sudden shock, rather than gradual or retrospective realisation, and whether there was sufficient proximity of time and space to allow the aftermath principle to apply. The defendant had argued that the death had not taken place until two days afterwards and during this time the parents would have gradually realised the child’s situation. Further, it was said that the mother was not fully aware of the gravity of the situation until told later by the doctor of the child’s condition. Judge White rejected these arguments. First, on the evidence, the chaos of the actual birth, the mother’s difficulties, the sense that something was wrong and the arrival of the child in a distressed condition, were for those immediately and directly involved, as both parents were, frightening and horrifying. Secondly, there should be no distinction between the situation of the father, who saw all that was happening, and was actually participating at the request of the medical staff, and that of the mother, who was sedated and exhausted and so was not fully conscious of what was going on around her. Both parents were directly involved in and with the event of the delivery. In terms of Lord Oliver’s categories, they were principals rather than passive witnesses. Finally, according to the evidence, the event of the delivery was a powerful factor in contributing to the psychiatric illness each of the parties afterwards suffered. But it was unrealistic to isolate the delivery as an “event” from all the other happenings from the onset of labour to the baby’s death two days later. Though lasting over 48 hours, this was all effectively one “event”: Of course, it was not in the nature of an immediate catastrophe which lasts only a few seconds — panic in a stadium or a motor accident — but one just as traumatic for those immediately involved as participants as each of the parents were. The law should be, and in my judgment is, “fluid enough” not simply to recognise one type of traumatic event and to shut its eyes to another such as that upon which this claim is founded, whether or not it is necessary — and in my judgment it is not — to pray in aid the concept of the “aftermath”.92

So, according to this analysis, both parents were participants in the event, and the requirement of sudden shock was satisfied. There was no need to apply the complicated rules of secondary victim liability and to invoke concepts such as aftermath and means of communication. [22.410] In Sion v Hampstead Health Authority,93 issues of psychiatric injury in a medical context were considered for the first time by the English Court of Appeal. A young man aged 23 was badly injured in a motorcycle accident. His father stayed at his bedside for 14 days, 91

Tredget v Bexley Health Authority [1994] 5 Med LR 178 at 182.

92

Tredget v Bexley Health Authority [1994] 5 Med LR 178 at 184.

93

Sion v Hampstead Health Authority [1994] 5 Med LR 170.

[22.430]

22 Secondary Victim Cases

795

watching him deteriorate, fall into a coma and finally die. The father claimed damages for psychiatric illness caused by the alleged negligent treatment of his son by the hospital staff, in particular their failure to diagnose bleeding from his kidney. The defendant denied negligence and moved to strike out the statement of claim. Brooke J allowed the defendant’s application and the appeal against this decision was dismissed. The principal reason for the decision, apart from a number of procedural issues, was that there was no trace in the medical evidence of “shock” as a sudden appreciation by sight or sound of a horrifying event, but on the contrary the evidence described a gradual process from first arrival at the hospital to the ultimate appreciation of medical negligence after the inquest. [22.420] Staughton LJ took an orthodox approach, saying that “[f]or the present the frontier for one type of claim is in my judgment authoritatively and conclusively fixed by the House of Lords in Alcock”94 and that the law gave no damages if the psychiatric injury was not induced by sudden shock. Though there might be little logic in distinguishing between psychiatric illness caused by sudden shock and any other psychiatric injury, this was what the law required. This was plainly a secondary victim claim: We are not here considering psychiatric illness caused directly to a plaintiff by negligent treatment, for example by his own psychiatrist. Although the words are not wholly appropriate, these are cases of a primary victim and a secondary victim, the latter being the plaintiff.95

[22.430] Peter Gibson LJ showed a little more readiness to concede that medical negligence situations might be different: It is of course correct that in most of the decided cases there has been a sudden and violent incident resulting from a breach of duty, but it is the sudden awareness, violently agitating the mind, of what is occurring or has occurred that is the crucial ingredient of shock. … I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.96

While this did not go nearly as far as Judge White’s opinion in Tredget v Bexley Health Authority97 given a few months previously, it at least ruled out the need for some particular kind of incident, and supported the view that the element of suddenness relates to the experience of the plaintiff. 94

Sion v Hampstead Health Authority [1994] 5 Med LR 170 at 173.

95

Sion v Hampstead Health Authority [1994] 5 Med LR 170 at 173.

96

Sion v Hampstead Health Authority [1994] 5 Med LR 170 at 176.

97

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

796

Part IV: Relationship Cases

[22.440]

[22.440] Some five years elapsed before the next significant case, Tan v East London and City Health Authority98 — another decision at County Court level. Mrs Tan suffered from adrenal hyperplasia. She had elected to have her baby by caesarean section, and was admitted to hospital, but due to negligence she was allowed to become dehydrated and required hydrocortisone therapy. The caesarean was delayed, and by the time it was performed the baby was already dead. Mr Tan was at home, unaware of the crisis. He was telephoned at 1.30 pm and informed that the baby was dead, and was asked to come into the hospital. He arrived at 3 pm (the journey took one and a half hours), comforted his wife, was present at the caesarean operation that took place at 4.50 pm, held the body of his dead daughter, and watched over her all night until the body was finally placed in a metal box and taken away. [22.450] This caused him to suffer depression, but he did not realise that he might have an action against the hospital in his own right until 1993, during the preparation of his wife’s claim. Her Honour Judge Ludlow held that his claim was statute-barred, but said that she would have exercised her discretion to allow it to proceed under the Limitation Act 1980 (UK), s 33. However, the circumstances of the case did not give rise to a cause of action. On the medical evidence, the judge was not satisfied that Mr Tan’s undoubtedly genuine grief amounted to clinical depression. This apart, he failed to satisfy the requirements of Alcock v Chief Constable of South Yorkshire Police.99 On his behalf, it was submitted that the child’s death in the womb, the stillbirth, Mr Tan’s overnight vigil and the removal of the body next morning were all part of a single event. It was accepted that if this submission failed, the immediacy required by the aftermath test would not be present. Moreover, since Mr Tan was initially informed of the news by telephone, the case would fail to satisfy the direct perception rule. [22.460] Acceptance of the “single event” theory, therefore, was crucial, but Judge Ludlow was not convinced. She distinguished Tredget v Bexley Health Authority100 on the basis that there the medical negligence caused the injuries to the baby, the nature and consequence of those injuries made death inevitable, and therefore, given the particular circumstances and the timing in that case, there was in her view one event. Judge Ludlow then said: It is an inevitable consequence of the death of a baby in the womb however caused that stillbirth will follow. The two events are inextricably linked. Where the baby’s death occurs whilst the pregnant mother is in hospital, the stillbirth can be expected timeously. Does it therefore follow that where the death is in utero, the death is caused by an external traumatic breach of duty and there is a stillbirth, that the death and the stillbirth will always by reason of nature be treated legally as one event/accident? 98

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389.

99

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

100

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

[22.480]

22 Secondary Victim Cases

797

Or to be viewed as one event must the death and stillbirth be proximate in time? Would just under four hours between the two events be sufficient proximity? If Chloe had been new-born and her death had been caused by such a breach of duty post birth then it is accepted under the Alcock principles that her father would have needed to establish he was present at the death or its immediate aftermath. I ask myself is there any distinction to be drawn in the application of those principles between cases where the traumatic breach of duty causes death in utero and those where it occurs some time after delivery? After anxious thought I conclude there is not. On the facts of this case in my judgment it is the death that is the accident/event, the stillbirth goes to the fact of death. It does not go to the actual circumstances in which the death came about since a stillbirth will occur whatever and whenever the circumstances cause a baby to die in utero.101

Mr Tan therefore failed to establish that he was present at the event/accident or at its immediate aftermath. [22.470] Her Honour went on to hold that Mr Tan also failed to satisfy the direct perception requirement, though in this part of the judgment there seems to be some confusion between the two different issues of means of communication and the alleged need for a sudden shock. In spite of recent authority suggesting that the sudden shock requirement was unnecessary,102 the judge concluded that it remained in place and was not satisfied on the facts of this case. [22.480] A perceptive comment on this case by George Hugh-Jones, printed as an appendix to the report of the case, deplored the fact that it was so difficult to escape the control mechanisms endorsed by Alcock v Chief Constable of South Yorkshire Police,103 even in cases such as this where the facts are far removed from the standard accident scenario. Though Tredget v Bexley Health Authority104 was rightly distinguished on its facts, the question could have been raised whether the control mechanisms needed to apply in this case as rigorously as in others. The special knowledge of the defendant should be a ground for widening the scope of the duty: In this case, a father at home during his wife’s admission to hospital for labour is in a different category from the sea of relatives in the usual scenes of human disaster and injury. … The fact that he did not attend within one to two hours of the death in utero is hardly a sensible ground for immunity in this context — the interval of time between the event and husband’s arrival ought not to have altered the hospital’s duty to this particular claimant — they knew he would be coming. … 101

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389 at 394–395.

102

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271 per Henry LJ.

103

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

104

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

798

Part IV: Relationship Cases

[22.490]

Mr Tan came to comfort his distressed wife … and he became an unwilling participant in a stillbirth. In Frost105 the House of Lords made it clear that rescuers were not to be given any special consideration as secondary parties. But in the instant case the hospital knew that this claimant would act in this way. There was only one father, and his presence at the birth would not have been in doubt. Viewed in this way, the specificity of the likely effects of the breach of duty largely remove [sic] the policy needs for the control mechanisms applied in disaster cases or even road traffic accidents. As the judge rightly said, the stillbirth and the death were “inextricably linked”: One could say his presence at and participation in the stillbirth were inextricably linked to his role as father. … In conclusion, this was a case where an analysis of the special relationship between the hospital and the father could have created a duty the scope of which was wider than in other cases involving secondary parties — wide enough in any event to permit a relaxation of some of the control mechanisms.106

[22.490] If the decision in Tan v East London and City Health Authority107 was disappointing, the next case, Farrell v Merton, Sutton and Wandsworth Health Authority,108 showed that the earlier decisions had left their mark and that the English High Court was now prepared to recognise that medical negligence cases, and in particular those involving birth mishaps, deserved to be treated differently from road accidents and the like. The claimant gave birth by caesarean section, but as a result of the defendant’s negligence the baby suffered serious and irreversible brain damage. She did not see him at the time of birth because she was unconscious, but she was shown a photograph and told only that he had had a hard time and had been taken away to another hospital and put on a ventilator. It was late the next day before she was taken to see him, and it was only when she found her family in distress, and the baby in intensive care, that she knew the extent of the impairment. Since then, she had had the full-time responsibility of caring for him. She claimed damages under various heads, including psychiatric injury. [22.500] Judge Elizabeth Steel was prepared to contemplate the possibility that the claimant might be either a primary victim, one personally and directly owed a duty by the defendant, or a secondary victim, one to whom injury was foreseeable if the defendant was negligent or in breach of a duty owed to a third party. In the latter instance, although the principles of recovery had been laid down in Alcock v Chief Constable of South Yorkshire Police,109 Judge Steel stressed the importance of the statement of Lord Slynn of Hadley in W v Essex County 105

That is, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

106

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389 at 397–398.

107

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389.

108

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

109

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[22.510]

22 Secondary Victim Cases

799

Council110 (a case that, like the medical cases under examination, involves something other than the standard accident situation) that the categorisation of those claiming to be included as primary or secondary victims was not finally closed, but was a concept still to be developed in different factual situations,111 and said that “Alcock does not finally close the limitations in time and space and the categories of those claiming”.112 As in earlier cases, the claimant contended that her psychiatric illness was caused by the trauma of the birth, which encompassed all the events from the crisis caesarean to her final discovery of the extent of the damage, when she saw her son and was told of his condition: this, it was said, was “a seamless event with one part leading without interruption into the next”.113 If this interpretation of events was not open, then the claimant contended that her visit to the hospital on the day after the birth was within the immediate aftermath. Judge Steel indicated that she was prepared to accept both arguments: I am satisfied that there is no break in the chain of causation and that the “trauma of the birth” encompasses not only the events in the operating theatre but also the position up to and including the first sight of her baby and the realisation (when told by the paedriatric SHO) of his disability. I therefore treat her as a primary victim. Even if I am wrong in that approach, the unusual delay of just over a day between the birth and the mother seeing her baby is wholly attributable to the defendants. They chose not to take her to the hospital where her child was and chose not to tell her of the difficulties and injury which had occurred. I am therefore satisfied that, in these particular circumstances, her sight of the child on 25 May was in the immediate aftermath of the birth and she would in any event be compensated as a secondary victim.114

[22.510] The next case, Farrell v Avon Health Authority,115 though only an authority at County Court level, adopted a similarly enlightened approach. Elaine Gifford had gone on holiday with the claimant and became pregnant by him as a result of an isolated act of sexual intercourse. She informed him of the pregnancy, but they had no subsequent contact until she telephoned him from the hospital to tell him that he had just become a father. However, when he arrived at the hospital a short time later, a nurse informed him (mistakenly) that the baby had died. Though he was told 20 minutes later that this was incorrect, he suffered psychiatric injury. Judge Bursell QC held that he was entitled to damages. His injury was not caused by the shock of seeing what had happened to others: he was physically involved in the incident, 110

W v Essex County Council [2001] 2 AC 592.

111

W v Essex County Council [2001] 2 AC 592 at 601.

112

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 at 163. See P Case, “Curiouser and Curiouser: Psychiatric Damage Caused by Negligent Misinformation” (2002) 18 PN 248.

113

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 at 164.

114

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158 at 164.

115

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

800

Part IV: Relationship Cases

[22.520]

and was the only potential victim. He should be regarded as a primary victim, and the control mechanisms applied to secondary victim cases by English law were inapplicable. Judge Bursell quoted statements made by Lords Steyn and Hoffmann in the House of Lords in White v Chief Constable of South Yorkshire Police,116 in which they referred to Lord Lloyd’s definition of a primary victim as someone within the range of potential physical injury.117 He commented that on a literal reading of these passages the claimant in Farrell had to be classified as a secondary victim, but this would not be a sensible interpretation: Lord Lloyd had emphasised in Page v Smith … that the difference between primary and secondary victims is “a factual one”. … On this purely factual basis, the claimant here is clearly a primary victim as he was physically involved in the incident itself. Indeed, that also accords with common sense. How can there be a secondary victim if there is no other person who was physically involved in the incident as a potential victim? What is more, if the parents of a sexually abused child in W v Essex County Council … may feasibly fall within the ambit of primary victims, as the House of Lords found, that adds strength to my view here that in common sense the claimant should also be regarded here as the primary victim.118

This was a bad news case,119 clearly a primary rather than a secondary victim situation, if this classification has to be adopted; this apart, the case lent further support to Tredget v Bexley Health Authority120 and Farrell v Merton, Sutton and Wandsworth Health Authority121 in recognising that in fact situations related to childbirth neither the mother nor the father should be regarded as equivalent to the merely passive witness of an accident to another. [22.520] The progress made up to this point in creating principles appropriate to medical negligence situations when dealing with secondary victim claims was confirmed by Walters v North Glamorgan NHS Trust.122 In this case the claimant suffered a pathological grief reaction to the death of her 10-month-old son due to the defendant’s negligence in failing to diagnose and treat his acute hepatic failure. She was with her son in hospital when he started choking and bringing up large amounts of blood. She was told that he was having a fit and it was very unlikely there would be any serious damage. In fact he had suffered a major epileptic seizure leading to irreversible brain damage. Thirty-six hours later, after CAT scans and transfer to another hospital for a proposed liver 116

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 496–497 per Lord Steyn, at 504–505 per Lord Hoffmann. 117

Page v Smith [1996] AC 155 at 184: see [3.130]–[3.150].

118

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 471.

119

See [28.130]–[28.160].

120

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

121

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

122

Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227. See R Mulheron, “Secondary Victim Psychiatric Illness Claims” (2003) 14 King’s College LJ 213.

[22.530]

22 Secondary Victim Cases

801

transplant, Mrs Walters was told that he was on life support and that his brain was so severely damaged that he would have no quality of life. She agreed to take him off life support and he died in her arms. She claimed damages for psychiatric injury. [22.530] Thomas J rejected an argument that Mrs Walters was a primary victim. Although, in a sense, she had been a participant in the events of those 36 hours, there had to be either a foreseeable risk of physical injury to her, or a belief that she might be the cause of another’s death or injury. On this issue, his Lordship thus refused to depart from the standard rules. Even though Judge Steel in Farrell v Merton, Sutton and Wandsworth Health Authority123 had contemplated the application of the primary victim approach to a father in a childbirth situation, Thomas J was evidently not prepared to extend such thinking to other situations. Also, understandably, he affirmed the need for sudden shock in the terms adopted by Lord Ackner in Alcock v Chief Constable of South Yorkshire Police124 — “the sudden appreciation by sight or sound of a horrifying event”. However, he adopted a flexible approach to the question of what constituted a horrifying event. The claimant’s case was that the 36-hour period beginning with the moment when she was awakened by her son’s fit until the life support machine was finally turned off could be viewed as a horrifying event that she suddenly appreciated, in contrast to an accumulation of more gradual assaults on her psyche over a period. Adopting the approach of Judge White in Tredget v Bexley Health Authority,125 Thomas J said: On the psychiatric evidence in the present case, it is impossible to isolate the causative effect of each incident over the 36 hours; everything that happened during that 36 hours contributed to cause her psychiatric illness. The question is, viewed in that light, whether there was shock in the sense of the sudden appreciation of a horrifying event which caused psychiatric illness properly so called rather than the abnormal grief reaction which was brought about by the continuous process considered in Sion. … It seems to me that the period of 36 hours from the moment at which the epileptic fit started, the misdiagnosis by the Prince Charles Hospital, the correct diagnosis by the King’s College hospital and the decision to turn off the life support machine because of the irreparable damage caused by the fit can be looked on in law as a horrifying event properly so called. Her appreciation of the horrifying event was sudden within that temporal context in contradistinction to more gradual assaults on her mind. It was that sudden appreciation of that event that caused the pathological grief reaction.126

This judgment was upheld by the English Court of Appeal.127 Ward LJ said that it was a matter of judgment in each case, depending on the facts 123

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

124

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 401.

125

Tredget v Bexley Health Authority [1994] 5 Med LR 178.

126

Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227 at [38]–[39].

127

North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49.

802

Part IV: Relationship Cases

[22.540]

and circumstances, whether what occurred amounted to a single horrifying event. The judge had adopted the correct approach to the facts of the case. The other judges concurred.128 [22.540] Since decisions of the House of Lords were binding on Scottish courts as well as English courts, Scottish courts have faced similar problems in dealing with the restrictions imposed by the leading House of Lords decisions on psychiatric injury and their application in medical negligence cases. On the evidence of McLelland v Greater Glasgow Health Board,129 by the beginning of the 21st century the Scottish courts were adopting a similar approach to English courts, at least where childbirth situations were involved, and were not prepared to relegate the father to a secondary position in such circumstances. Interestingly, in this case the Extra Division achieved this result without reference to Farrell v Merton, Sutton and Wandsworth Health Authority130 or other equivalent English cases. The parents of a child born with Down’s Syndrome sued the hospital alleging a negligent failure to carry out an amniocentesis that would have revealed the condition, so giving them an opportunity to terminate the pregnancy. The defenders admitted negligence. The wife claimed damages under several heads, including the pain and suffering involved in continuing the pregnancy, the shock and distress she suffered on discovering the child’s condition, and the wear and tear of bringing up a Down’s Syndrome child. The husband also claimed damages for shock and distress, and wear and tear. At first instance Lord Macfadyen granted damages to the wife under each head, but refused to compensate the husband for his shock and distress on the ground that his suffering did not amount to psychiatric injury — that is, his case had to satisfy the standard secondary victim requirements.131 On appeal, the Extra Division took a more favourable view. Lord Prosser rejected counsel’s argument that the husband was merely a secondary victim: [I]t was submitted that Mr McLelland was really a secondary victim of the injury done to his wife. … I am satisfied that there is no validity in the suggestion that he is thus the secondary victim of a wrong done to another. As the Lord Ordinary says, both pursuers relied on the defenders’ staff, to exercise reasonable care to provide them with the information, as well as providing the first pursuer with treatment …. I would agree with the Lord Ordinary, that it was reasonably foreseeable to the staff concerned, that if they failed in their duty of care to both pursuers, the very event which they sought to guard themselves against was liable to occur, and if it did so occur, the harmful effects, on both pursuers, would include both severe shock and distress on discovery that the child was affected by the syndrome, and also, in the longer 128

Note also Wong Fung Sze v Hospital Authority [2005] HKEC 219 where the court accepted the approach of North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49 but said it was impossible “to make a quantum leap from 36 hours to hold that a series of events extending over a period of four months constituted one horrifying event”.

129

McLelland v Greater Glasgow Health Board 2001 SLT 446.

130

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

131

McLelland v Greater Glasgow Health Board [1998] ScotCS 26.

[22.560]

22 Secondary Victim Cases

803

term, increased stress and wear and tear in bringing up and caring for the child. Whether or not the law allows damages for these consequences, I am in no doubt that they are direct consequences, for Mr McLelland, of the breach of a duty owed to him. Decisions as to “secondary” victims are not, in my opinion, in point.132

These remarks should perhaps be read with a degree of caution in that each party was also claiming other items of damage, and negligence was admitted. Also, on one interpretation, it might be thought that Lord Prosser was merely confirming that the husband had an independent claim, rather than a derivative claim such as an action for loss of consortium. But nevertheless the determination to recognise that each parent suffered in a similar way suggested that if a case such as Farrell were litigated in a Scottish court the result would not be materially different. [22.550] In other cases, the issue of whether parents were primary or secondary victims arose in the context of claims for psychiatric injury caused by the removal of organs of deceased children without the parents’ consent.133 In Re Organ Retention Group Litigation,134 Gage J opined that such claims did not fit easily into the primary/secondary division mandated by English law. He concluded that the parents were primary victims: [I]n my view, there is force in the argument that the children were not primary victims. Neither the clinicians nor the pathologists could possibly have owed any duty of care to them after their death. In my opinion, it follows that if the claimants are victims at all they must be primary victims.135

In this case, Gage J held that a doctor could owe a duty of care to the mother on a doctor–patient basis, even after the death of the baby; in Stevens v Yorkhill NHS Trust,136 a Scottish judge held that even though there was no equivalent doctor–patient relationship on the facts of the case, it could not be concluded that the mother could not fit into the primary victim category.137 [22.560] Although Judge Steel in Farrell v Merton, Sutton and Wandsworth Health Authority138 and Lord Prosser in McLelland v Greater Glasgow Health 132

McLelland v Greater Glasgow Health Board 2001 SLT 446 at [9].

133

See K Warner, “Rights in the Human Body: Wrongful Interference and Psychiatric Injury” (2009) 4(2) UNELJ 3.

134

Re Organ Retention Group Litigation [2005] QB 506.

135

Re Organ Retention Group Litigation [2005] QB 506 at [199].

136

Stevens v Yorkhill NHS Trust 2006 SLT 889.

137

The organ cases were referred to in Holdich v Lothian Health Board [2013] CSOH 197, an action for mental injury and other damage consequent on negligent storage of frozen sperm. Lord Stewart (at [88]) did not find it necessary to take a position on whether the donors were primary or secondary victims.

138

Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158.

804

Part IV: Relationship Cases

[22.560]

Board139 were able to find that the husband was a primary and not merely a secondary victim, the facts of some cases precluded such an outcome. In Less v Hussain,140 the claimants both suffered a psychiatric reaction following the stillbirth of their child. The female claimant, who had a history of medical and obstetric problems, had consulted the defendant, a gynaecologist, to ask whether it would be safe to become pregnant. Following the consultation she was left with the impression that it would be safe to proceed with pregnancy, although a scan was arranged. She argued that the defendant had failed to offer or provide a follow-up consultation, or to give her adequate warning of the risks. Judge Cotter QC, sitting as a Deputy Judge of the High Court, found that although the defendant was in breach of duty, the female claimant even if advised appropriately would have gone on to become pregnant and so the defendant was not liable to her. The male claimant, her partner, also claimed that the mental harm he suffered following the stillbirth could be traced back to the negligent consultation, but this argument was rejected. Judge Cotter held that he was not a primary victim. The consultation had been with the female claimant alone, and nothing the defendant said or failed to say could foreseeably cause injury to him. Judge Cotter said that the relatives of a patient in a clinical negligence case were usually classed as secondary victims, and as such had to satisfy the criteria laid down in Alcock v Chief Constable of South Yorkshire Police.141 Here, the evidence did not show that the male claimant suffered psychiatric illness as a result of a sudden shock, as opposed simply to the fact of bereavement. Earlier, there had been a similar insistence on the need for sudden shock in Ward v Leeds Teaching Hospital NHS Trust,142 not a childbirth case. The claimant’s daughter had died in hospital 48 hours after admission for removal of her wisdom teeth. The claimant contended that she had suffered posttraumatic stress disorder as a result of the events of this 48-hour period and in the mortuary after her daughter’s death. Judge Hawksworth QC held that death in hospital was not an event outside the range of human experience and that since there was no sudden shock the claimant had no claim against the hospital.143

139

McLelland v Greater Glasgow Health Board 2001 SLT 446.

140

Less v Hussain [2013] Med LR 383.

141

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310: see Less v Hussain [2013] Med LR 383 at [185]–[186] per Judge Cotter. An argument that the male claimant could recover for psychiatric injury in contract was also rejected: the defendant in agreeing to undertake a consultation was contracting with the female claimant alone.

142 143

Ward v Leeds Teaching Hospital NHS Trust [2004] Lloyd’s Rep Med 530.

Note also Toth v Jarman [2006] Lloyd’s Med 397, where a doctor gave emergency treatment to the claimant’s son who had suffered a hypoglycaemic attack. Though the doctor was negligent, the child was already brain dead so causation was lacking. The English Court of Appeal did not find it necessary to hear argument on whether witnessing the death qualified as a shocking event.

[22.570]

22 Secondary Victim Cases

805

Regression? [22.570] It is possible to view Less v Hussain144 as the harbinger of a return to a more traditional approach, one that seeks to bring birth and other medical negligence cases into line with the principles applied in secondary victim cases generally. In the important English Court of Appeal decision in Taylor v A Novo (UK) Ltd,145 Lord Dyson MR endorsed the “five common features” of secondary victim cases identified by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police146 (a more elaborate formulation than those of the other judges). The decision in Taylor v A Novo makes it clear that English law will now insist that in addition to reasonable foreseeability of psychiatric injury every one of these additional elements must be present. Since then, a line of medical negligence cases has confirmed that Taylor v A Novo must be adopted to the full even in that context and that there is no room for exceptions. The first case in this series was Wild v Southend University Hospital NHS Foundation Trust.147 Mrs Wild had been under the care of the antenatal clinic at Southend Hospital. She had reached full term when she had a show of blood and telephoned the hospital, who told her to come in for examination, which she did, accompanied by her husband. She was told that the baby had died in her womb. The stillborn child was delivered the next day. The hospital admitted negligence causing psychiatric injury to her. The issue before the court was whether the hospital owed a duty of care to the husband, who had also claimed damages for psychiatric injury. Michael Kent QC, sitting as a Judge of the High Court, held that the husband failed to qualify as a secondary victim because he could not show that his psychiatric injury was caused by a sudden shock. The judge held that after Taylor v A Novo it was no longer open to him to hold that the sequence of events from the examination to the delivery of the stillborn child was all one event. Lord Dyson MR in Taylor v A Novo had distinguished Walters v North Glamorgan NHS Trust148 as not being applicable to the facts of the case before him, where the facts could not be regarded as one seamless event, but it was clear from Lord Dyson’s judgment that the control mechanisms were meant to apply to all secondary victim cases, including clinical negligence cases.149 Lord Dyson had also placed much emphasis on the earlier case of Taylor v Somerset Health Authority150 where Auld J had required an external traumatic event. Michael Kent QC held that this case made it impossible for the husband’s claim to succeed. The shock he suffered was caused by the realisation that his son had died, and this was not the same as 144

Less v Hussain [2013] Med LR 383.

145

Taylor v A Novo (UK) Ltd [2014] QB 150: see [3.300]–[3.320].

146

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

147

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB).

148

North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49.

149

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) at [34].

150

Taylor v Somerset Health Authority (1993) 16 BMLR 63: see [22.330]–[22.370].

806

Part IV: Relationship Cases

[22.580]

witnessing horrific events leading to death or injury.151 The two Taylor cases therefore combined to defeat the husband’s claim as a secondary victim. Earlier cases such as Tredget v Bexley Health Authority,152 Tan v East London and City Health Authority153 and Less v Hussain154 were cited by counsel, but Michael Kent QC said they were all distinguishable and pre-dated Taylor v A Novo.155 It was perhaps fortunate that there was no attempt to argue that the husband was a primary victim, and that cases such as the Farrell cases156 and McLelland v Greater Glasgow Health Board157 were therefore not cited. [22.580] While Wild v Southend University Hospital NHS Foundation Trust158 was only a first instance case, it suggested that Taylor v A Novo (UK) Ltd159 had put the brake on a promising case law development whereby British courts had managed to escape from the rigidity of the general psychiatric injury authorities and apply the principles more flexibly in the special circumstances of childbirth and other medical negligence cases. Two other cases decided within a few days of Wild160 and a third case decided three months later161 adopted the same approach. The next case, Liverpool Women’s Hospital NHS Foundation Trust v Ronayne,162 was the first of these cases to reach the English Court of Appeal. The claimant’s wife had been admitted to hospital for a hysterectomy, but became unwell a few days after being discharged and was taken to the Accident and Emergency Department, where her 151

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) at [47].

152

Tredget v Bexley Health Authority [1994] 5 Med LR 178: see [22.380]–[22.400].

153

Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389: see [22.440]–[22.480]. 154

Less v Hussain [2013] Med LR 383: see [22.560].

155

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) at [52].

156

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458; Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158. 157

McLelland v Greater Glasgow Health Board 2001 SLT 446.

158

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB).

159

Taylor v A Novo (UK) Ltd [2014] QB 150.

160

Speirs v St George’s Healthcare NHS Trust 2014 WL 6862884 (mother of baby seriously damaged during instrumental ventouse birth did not witness birth but claimed psychiatric injury caused by sight of baby in incubator: she was unable to establish a horrifying event, and in any case negligence was not proved); Brock v Northampton General Hospital NHS Trust [2014] EWHC 4244 (QB) (claimants unable to establish psychiatric injury caused by sight of daughter after negligent brain surgery: the negligence was not apparent at the time they saw her, the psychiatric injury was said to have been caused by a subsequent telephone call saying her condition had deteriorated, rather than anything they experienced with their own senses, and the “seamless event” argument was not open on the facts of the case.) 161

Shorter v Surrey and Sussex Healthcare NHS Trust [2015] EWHC 614 (QB) (claimant’s sister died as result of subarachnoid haemorrhage, after being wrongly discharged and delay in re-admitting her to specialist unit following review of her CT scan: there was no single horrifying event, much the claimant’s panic and anxiety said to have caused psychiatric injury resulted from a telephone call, and the “seamless event” argument was rejected). 162

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 586.

[22.580]

22 Secondary Victim Cases

807

husband, though an ambulance driver used to seeing people on life support, was shocked when he saw her swollen body connected to a ventilator, describing her as resembling a “Michelin man”. Though she eventually made a complete recovery, the experience caused the claimant to suffer a psychiatric injury. The Court of Appeal noted that the law was clear: the “control mechanisms” had recently been considered by the previous Court of Appeal decision in Taylor v A Novo which was binding on it. There were two issues for the court to consider: whether the events were of a nature capable of founding a secondary victim claim, that is, whether they were in the necessary sense “horrifying”, and whether the claimant’s psychiatric injury was caused by the sudden appreciation of that event or those events. Each of these issues turned on whether the events could be said to be of a sufficiently horrifying character.163 Tomlinson LJ, giving the judgment of the court, rejected the “seamless event” argument: It was not, like Walters, “a seamless tale with an obvious beginning and an equally obvious end”. In Walters the obvious beginning was the mother awakening to see her baby rigid and choking after a convulsion, with blood pouring out of his mouth. The obvious end was the tragic death of the baby in the mother’s arms. The working out of the tragedy, with the raising of hopes, the journey up the motorway to London following in the wake of the ambulance, and the dashing of hopes and then their final destruction was almost Sophoclean in its seamlessness.164

This case, like the other recent cases, was not comparable. It was a series of events over a period of time, with no inexorable progression. Moreover, the husband’s perception of what he saw was conditioned by prior information given to him by the hospital staff. There was no sudden appreciation of an event, and what he saw was not horrifying, but something that might have been expected in that situation. What was required to found liability was something exceptional in nature. Tomlinson LJ noted that “there is, in so far as the experienced Counsel who appeared before us were aware, only one reported case [North Glamorgan NHS Trust v Walters165] in which a claimant has succeeded at trial in a case of this type in consequence of observing in a hospital setting the consequences of clinical negligence”.166 Nor have claimants fared any better in cases decided since Ronayne.167 It appears that, as Tomlinson LJ noted, only in truly exceptional circumstances such as those in North Glamorgan NHS Trust v Walters that there is now any likelihood of a claim succeeding in this context. 163

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 586 at [8].

164

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 586 at [35].

165

North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49.

166

Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 586 at [17].

167

See Owers v Medway NHS Foundation Trust [2015] EWHC 2363 (QB) (seamless event argument again rejected, circumstances held not horrifying); Wells v University Hospital Southampton NHS Trust [2015] EWHC 2376 (QB) (father unable to recover as secondary victim after being present at delivery of baby which died 35 minutes after birth).

808

Part IV: Relationship Cases

[22.590]

[22.590] However, it is possible to end on a hopeful note. Most of the recent cases did not involve the childbirth situation.168 Speirs v St George’s Healthcare NHS Trust169 was an exception, but in a short judgment Simon Brown QC made it clear that there could be no primary victim claim in the circumstances of the case (where the mother did not see the injury to her daughter caused through the use of instruments at the time of birth, but only became aware of it later when she saw her in an incubator). However, in Wells v University Hospital Southampton NHS Foundation Trust,170 where the claimants’ baby died 35 minutes after birth as a result of meconium aspiration, it was recognised that the mother was a primary victim and would have been entitled to damages for psychiatric injury if negligence had been established.171

Canada [22.600] Like the Australian cases, Canadian cases provide little evidence of any judicial preparedness to recognise medical negligence cases as a special situation where the ordinary rules governing psychiatric injury are not necessarily appropriate. There are some cases involving negligence in the birth process where the mother suffers physical injuries and also recovers damages for psychiatric illness: these are straightforward cases where the emotional injuries are part of the general claim for physical harm, and where it would not be sensible to treat the mother as a mere secondary victim.172 In what is probably the earliest Canadian case involving psychiatric injury in a medical context, Cherry (Guardian) v Borsmann,173 a botched abortion resulted in the child being born with severe disabilities. The mother recovered damages for her physical injuries and also for the traumatic experience she suffered on learning of the injuries to her daughter. In the absence of physical injury, it seems that there would be no difficulty in recovering damages for mental harm under the principles of Schneider v Eisovitch.174 In other cases, parents and others have made claims for psychiatric injuries caused by medical negligence to their children, and the courts have pursued an orthodox approach and have applied the standard rules appropriate to secondary victim cases. In Dube (Litigation guardian of) v Penlon Ltd,175 for example, an anaesthetic overdose during minor surgery caused a child to suffer 168

Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), discussed at [22.570], was an exception, but it was a claim by the father and there was no suggestion that he might be a primary victim. 169

Speirs v St George’s Healthcare NHS Trust 2014 WL 6862884.

170

Wells v University Hospital Southampton NHS Trust [2015] EWHC 2376 (QB).

171

The father was present throughout the delivery but he was classified as a secondary victim: see [22.580].

172 Anderson-Redick v Graham (2000) 258 AR 42; Martin v Mineral Springs Hospital (2001) 283 AR 178. 173

Cherry (Guardian) v Borsmann (1991) 75 DLR (4th) 668.

174

Schneider v Eisovitch [1960] 2 QB 430.

175

Dube (Litigation guardian of) v Penlon Ltd (1994) 21 CCLT (2d) 268.

[22.610]

22 Secondary Victim Cases

809

brain damage and become a quadriplegic. The parents’ nervous shock actions were rejected. Though they had been present during the immediate aftermath of this catastrophe, there was no evidence that psychiatric harm was suffered as the result of a sudden shock, rather than the ongoing effects of caring for a disabled child.176 [22.610] One of the very few exceptions is Flett v Maxwell.177 The plaintiff alleged that after his father died, the father’s body remained in the hospital morgue for eight days due to the hospital’s failure to notify the next of kin. The plaintiff claimed damages for loss of the opportunity to have the funeral in a timely manner, and also exemplary damages. The defendant argued that there could be no recovery for grief falling short of psychiatric illness, and moved to strike out the statement of claim. Burdett J held that there was a triable issue — dealing with the grief argument by saying that there was aggravated grief akin to emotional shock, or in the words of Southin J a “scar on the mind”.178 Though it had argued, relying on Rhodes v Canadian National Railway,179 that the defendant owed a duty of care only to the deceased, the medical negligence situation was different: In Rhodes, the psychological injury arose out of negligent conduct which caused an accident to a third party, resulting in death. In this case, the deceased was a patient in St Paul’s Hospital. He was treated by Dr Maxwell. Neither of the defendants informed the claimant, the daughter of the deceased, of the death of her father until at least eight days after that event. A relationship between a doctor and his patient, or a patient and the hospital in which he is being treated, is far different than that as between a passenger and a railway company. The patient is being professionally cared for, on an individual basis, not merely being transported from one location to another.180

The hospital was under a statutory obligation to get the names of the next of kin: Why else would the Legislature impose a statutory obligation to collect the names of a patient’s next of kin, except to recognise a need to notify those persons should the patient become seriously ill or die? It seems to me, in certain circumstances, a patient’s immediate family or next of kin may fall within Lord Atkin’s definition of “neighbour”. Those circumstances are rare. I can anticipate only two: when the patient is near death, or has died. In my opinion, in these circumstances, both the hospital and the physician may have a duty to the next of kin of the patient to inform them of the present condition of the patient. 176

See also H(R) v Hunter (1996) 32 CCLT (2d) 44; Brown (Next friend of) v University of Alberta Hospital (1997) 145 DLR (4th) 63; Mickle v Salvation Army Grace Hospital (1998) 166 DLR (4th) 743; Martin v Mineral Springs Hospital (2001) 283 AR 178 (claim by grandmother of dead child); Phillip v Whitecourt General Hospital (2004) 359 AR 259 at [372] per Watson J.

177

Flett v Maxwell [1996] BCJ No 1455.

178

See [6.260].

179

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

180

Flett v Maxwell [1996] BCJ No 1455 at [8].

810

Part IV: Relationship Cases

[22.620]

It is because of the patient that the duty of care may arise. The patient may create a relationship of proximity between the hospital, doctor and the next of kin. Because this relationship may create a duty of care between the hospital, doctor and the next of kin, there is no need for a separate negligent act as between the hospital or doctor and the patient.181

While this case is rather different from the negligent medical treatment situation involved in most of the cases dealt with in this chapter, it still offers a refreshing willingness to consider the special nature of the relationships before the court, rather than being hidebound by standard rules.182 [22.620] A dissenting judgment by Southin JA perhaps offers some support for the approach adopted in Flett v Maxwell,183 though her Ladyship resorted to the law of contract, rather than adopting a different approach to tort principles. In Oliver (Guardian ad litem of) v Ellison,184 a mother gave birth to a disabled child by caesarean section. She brought actions on her own behalf and on behalf of the child against her general practitioner and the obstetrician. The general practitioner admitted that he had been negligent in failing to diagnose her gestational diabetes, and the obstetrician was found to be negligent in failing to perform a timely caesarean section in response to foetal distress. The child’s action was settled, but the majority of the British Columbia Court of Appeal, in a short judgment, held that the mother was limited to damages for pain and discomfort during pregnancy and for undergoing surgery that might not have been necessary had the gestational diabetes been treated at the earliest opportunity. She was not entitled to damages for the emotional distress of giving birth to a disabled child. Southin JA, however, said that the relationship between the mother and the doctors was contractual and that she therefore had a complete cause of action. The tort principles laid down in cases such as Rhodes v Canadian National Railway185 had no application. Because the doctors were in a contractual relationship with the plaintiff, she could proceed against them in contract as well as tort, and recover damages for mental distress: Rhodes v Canadian National Railway might apply if Tarryn, having been born a healthy baby, had been injured by some accident in the hospital nursery. But 181

Flett v Maxwell [1996] BCJ No 1455 at [10]–[12].

182

In Granger v Ottawa General Hospital (1996) 7 OTC 81, where a baby was injured by oxygen deprivation prior to birth, the court appears to have suggested that the mother had a direct action. There is a similar suggestion in Keys v Mistahia Regional Health Authority [2001] 320 AR 87, in the context of an application to extend the limitation period. Note also Webb v Motta (1998) 233 AR 9, an action by a wife against her doctor for negligence during an emergency caesarean. Sullivan J’s brief reference to the husband’s claim for nervous shock suggests that he was one of a class of persons who might be expected to suffer stress, having just become the father of a newborn baby. There are few details of where the husband was during and after the operation.

183

Flett v Maxwell [1996] BCJ No 1455.

184

Oliver (Guardian ad litem of) v Ellison (2001) 90 BCLR (3d) 101.

185

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

[22.630]

22 Secondary Victim Cases

811

that is not this case. I am unable to draw any sound distinction between, on the one hand, emotional pain caused by being delivered of a disabled baby and, on the other, … the loss of pleasure caused by a spoilt holiday.186

United States [22.630] The law in the United States has generally adopted a very conservative approach to the issue under discussion. The standard rules developed in accident cases have been rigidly applied in medical negligence cases by courts that have refused to recognise that the pre-existing doctor–patient relationship, and the nature of medical treatment as compared with something like a highway collision that is all over in a few seconds, might require something different. This has sometimes had very odd results,187 especially in jurisdictions that still cling to older notions: for example, in North Dakota a mother who saw a nurse drop her baby and heard her skull crack was denied recovery because she was not within the zone of danger.188 Even in jurisdictions that recognise bystander recovery, the standard rules are generally applied in a rather inflexible way. Given that in accident cases bystanders are required to prove a family relationship with the immediate victim as a condition of recovery, a number of States have ruled that in cases involving childbirth mishaps the mother cannot sue unless she proves an emotional bond with the foetus189 — in other words, using the terminology of primary and secondary victims, the foetus is the primary victim and the mother is the secondary party. States that adopt a hardline approach to the need for the plaintiff to witness the accident have considerable problems in cases of negligent treatment: a relative may be present during the treatment but may not appreciate the fact that it is being performed negligently.190 The problems are even greater in cases of 186

Oliver (Guardian ad litem of) v Ellison (2001) 90 BCLR (3d) 101 at [103].

187

Note attempts to adopt the same approach to actions for wrongful birth: see eg TW Ledman, “Florida Impact Doctrine: No Longer an Obstacle to Recovery of Emotional Damages in Wrongful Birth” (1993) 45 Fla L Rev 349.

188

Whetham v Bismarck Hospital 197 NW 2d 678 (ND 1972). See also Vaillancourt v Medical Center Hospital of Vermont Inc 425 A 2d 92 (Vt 1980); Tebbutt v Virostek 483 NE 2d 1142 (NY 1985); Carey v Lovitt 622 A 2d 1279 (NJ 1993); Cauman v George Washington University 630 A 2d 1104 (DC 1993). 189

See eg Justus v Atchison 565 P 2d 122 (Cal 1977); Vaccaro v Squibb Corporation 412 NYS 2d 722 (1978); Austin v Regents of University of California 152 Cal Rptr 420 (1979); Sesma v Cueto 181 Cal Rptr 12 (1982); Johnson v Ruark Obstetrics & Gynecology Associates PA 395 SE 2d 85 (NC 1990); Wideman v DeKalb County 409 SE 2d 537 (Ga 1991). Note also Kahn v Hip Hospital Inc 487 NYS 2d 700 (1985); Tebbutt v Virostek 483 NE 2d 1142 (NY 1985); Giualdo v Allen 567 NYS 2d 255 (1991); Ferrara v Bernstein 582 NYS 2d 673 (1992). 190

See eg Lafferty v Manhasset Medical Center Hospital 429 NE 2d 789 (NY 1981) (recovery denied where woman witnessed death of mother-in-law from transfusion of mismatched blood); Wright v City of Los Angeles 268 Cal Rptr 309 (1990) (no liability where brother observed negligent treatment by paramedic, but not aware deceased was being injured); Golstein v Superior Court 273 Cal Rptr 270 (1990) (negligent overdose of radiation given to cancer victim incapable of being sensorily perceived, no recovery); Owens ex rel Schafer v American Home Products Corporation 203 F Supp 2d 748 (2002) (children exposed to harmful

812

Part IV: Relationship Cases

[22.630]

negligent misdiagnosis.191 Further, relatives who are not present during the treatment but only see the results later are generally denied recovery, at least in jurisdictions that do not recognise the aftermath concept or its equivalent.192 The same applies to those who only learn what happened later on, as a result of being informed by others.193 Lastly, there are cases where relatives in such situations are unable to show a sudden shock.194 levels of mercury poisoning via routine vaccination, parents present but not aware of poisoning until later diagnosis). Contrast Mobaldi v Board of Regents of University of California 127 Cal Rptr 720 (1976) (foster mother holding son while being injected with improper solution which caused him to lapse into coma had good claim). 191

See eg Jansen v Children’s Hospital Medical Center of East Bay 106 Cal Rptr 883 (1973) (recovery denied where mother witnessed child’s painful death; could not have sensorily perceived negligent misdiagnosis, only its result).

192

See eg Hair v County of Monterey 119 Cal Rptr 639 (1975) (mother accompanied son to hospital for oral surgery, in waiting room while surgery performed, saw him immediately afterwards, but did not observe surgery itself, which was negligently performed); Nutter v Frisbie Memorial Hospital 474 A 2d 584 (NH 1984) (parents arrived at hospital shortly after their infant’s death and were immediately informed); Tebbutt v Virostek 483 NE 2d 1142 (NY 1985) (claim that amniocentesis caused stillbirth of child, no recovery because observation of death by mother not contemporaneous with allegedly negligent acts); Halliday v Beltz 514 A 2d 906 (Pa 1986) (mother not present during negligent performance of surgery on daughter, though at hospital while performed, learnt what had happened shortly afterwards); Hurlbut v Sonora Community Hospital 254 Cal Rptr 840 (1989) (baby suffered brain damage during emergency caesarean, neither parent could recover because mother unconscious and father not present during operation); Bloom v Dubois Regional Medical Center 597 A 2d 671 (Pa 1991) (husband who found wife hanged in hospital denied recovery as he had not witnessed death); Bird v Saenz 51 P 3d 324 (Cal 2002) (surgical procedure nicked patient’s artery, causing severe bleeding; relatives at hospital, informed shortly afterwards, but could not recover because not present in operating theatre when accident occurred).

193 See eg Justus v Atchison 565 P 2d 122 (Cal 1977) (doctor informed father of death of unborn foetus: the shock did not result from witnessing the death because the “event was by its very nature hidden from their contemporaneous perception”); Crenshaw v Sarasota County Public Hospital Board 466 So 2d 427 (Fla 1985) (mother learnt that stillborn baby had been improperly sent through hospital laundry); Rayne Branch Hospital 556 So 2d 559 (La 1990) (hospital told woman that her comatose husband had been bitten by rats while lying in his bed); Sonlin v Abingdon Memorial Hospital 748 A 2d 213 (Pa 2000) (parents did not witness negligent placing of catheter in daughter’s leg, and so could not recover for emotional distress caused by hearing of this event, or by amputation of leg eight days later); note also Shin v Kong 95 Cal Rptr 2d 304 (2000) (husband of woman who had secretly undergone artificial insemination learnt five years later, during divorce proceedings, that doctor was child’s biological father; no liability because husband not present at time procedure took place). 194

See eg Hoard v Shawnee Mission Medical Center 662 P 2d 1214 (Kan 1983) (parents suffered illnesses as result of being mistakenly told that daughter had died, whereas she was in critical condition at another hospital; illnesses did not occur until some weeks afterwards); Wargelin v Sisters of Mercy Health Corporation 385 NW 2d 732 (Mich 1986) (intern failed to recognise that baby was dead and presented it to mother “in a manner reserved for successful deliveries”; however, emotional distress caused not by this but by viewing attempts at resuscitation); Taylor v Kurapati 600 NW 2d 670 (Mich 1999) (parents of child born with severe disabilities did not suffer shock resulting in actual physical harm at time fairly contemporaneous with child’s delivery). See also a line of California authorities: Jansen v Children’s Hospital Medical Center of East Bay 106 Cal Rptr 883 (1973); Hair v County of Monterey 119 Cal Rptr 639 (1975); Mobaldi v Board of Regents of University of California 127 Cal Rptr 720 (1976); Justus v Atchison 565 P 2d 122 (Cal 1977). Note Clohessy v Bachelor 675 A 2d

[22.640]

22 Secondary Victim Cases

813

[22.640] In a few jurisdictions the pattern is now changing. As in many aspects of psychiatric damage law, California has shown the way. The direct victim doctrine was invented in a misdiagnosis case, and enabled a husband to claim damages for emotional distress when his wife was negligently diagnosed as having syphilis despite the objection that he was not present when the diagnosis was made.195 In Burgess v Superior Court (Gupta),196 the leading case on the direct victim doctrine, the Supreme Court of California repudiated the need for a bond between mother and foetus in a case involving injuries during the birth process, adopting the approach that in such cases the mother was the direct victim of the defendant’s negligence.197 The repudiation of the need for sudden shock in Ochoa v Superior Court (County of Santa Clara)198 has made it easier for plaintiffs to claim damages in other medical negligence situations where the direct victim approach is not open.199 In other jurisdictions, in cases involving negligence during the birth process, instead of invoking the direct victim doctrine, courts have adopted language similar to that used in some of the English cases,200 holding that the mother is not a bystander but rather a participant.201 In one remarkable recent case, the same rationale was extended to allow recovery not only by the mother but also by a father who was not present during the birth but was told soon afterwards that the child was stillborn and asked to inform his wife.202 852 (Conn 1996) where the Connecticut Supreme Court suggested that in a medical malpractice action “there generally is no significant observable sudden traumatic event by which the effect upon the bystander can be judged”. 195

Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980): see [18.200].

196

Burgess v Superior Court (Gupta) 831 P 2d 1197 (Cal 1992): see [18.220].

197

See CA Goodzeit, “Rethinking Emotional Distress Law: Prenatal Malpractice and Feminist Theory” (1994) 63 Fordham L Rev 175. Note also Gendek v Poblete 654 A 2d 970 (NJ 1995).

198

Ochoa v Superior Court (County of Santa Clara) 703 P 2d 1 (Cal 1985): see [12.480].

199

See eg Frame v Kothari 560 A 2d 675 (NJ 1989); MP Gaughan, “Frame v Kothari: May Plaintiffs Recover in New Jersey for the Emotional Distress Suffered Due to the Negligent Misdiagnosis of Third Persons?” (1990) 35 Villanova L Rev 477; Love v Kramer 606 A 2d 1175 (Pa 1992). However, in Maloney v Conroy 545 A 2d 1059 (Conn 1988) the court was not inclined to follow Ochoa and “resume our dalliance with the Dillon guidelines”. In Janicki v Hospital of St Raphael 744 A 2d 963 (Conn 1999), where the defendant hospital used the plaintiff’s stillborn child for dissection purposes without authority, the court took a more positive attitude, accepting that the mother was the primary, rather than a secondary, victim of the hospital’s negligence. 200

See eg Farrell v Merton, Sutton and Wandsworth Health Authority (2000) 57 BMLR 158, discussed at [22.490]–[22.500]. 201

So held in cases where mothers were permitted to recover for emotional distress caused by the death of a stillborn child due to the doctor’s negligence: see eg Broadnax v Gonzalez 809 NE 2d 645 (NY 2004), abrogating the decision in Tebbutt v Virostek 483 NE 2d 1142 (NY 1985) cited in [22.630]; McKiernan v Komarynsky 865 A 2d 1262 (Conn 2004); Pierce v Physicians Insurance Co of Wisconsin Inc 692 NW 2d 558 (Wis 2005). However, in Sheppard-Mobley v King 830 NE 2d 301 (NY 2005) the New York court declined to apply this principle where the child was born alive, because the child could bring its own action.

202

Ryan v Brown 827 NE 2d 112 (Ind 2005).

814

Part IV: Relationship Cases

[22.650]

Other jurisdictions [22.650] The English cases apart, the jurisprudence in the jurisdictions so far discussed reveals only fleeting glimpses of a willingness to recognise that psychiatric injury claims for medical negligence may have special characteristics that make them different from the ordinary run of accident cases.203 However, there are two remarkable examples from other jurisdictions that display an understanding of the medical situation that is just as sophisticated as the analysis in the English cases. [22.660] The first case is Pang Koi Fa v Lim Djoe Phing204 from Singapore. Amarjeet JC stressed that although the Singapore courts are not bound by English decisions, in relation to common law issues such as tort, and negligence in particular, decisions of the House of Lords should be “highly persuasive if not practically binding”.205 Despite this acceptance of the ruling effect of cases such as Alcock v Chief Constable of South Yorkshire Police,206 the court argued convincingly that medical situations require a special approach. [22.670] The plaintiff’s daughter, to whom she was particularly close, had had a fainting spell and the defendant, a neurosurgeon, advised that she had to undergo an operation immediately, otherwise she would die. The plaintiff urged her daughter to adopt this advice. The defendant carried out an operation for removal of a tumour of the pituitary gland, but by negligence instead removed healthy tissue and caused a tear in the membrane of the brain. The daughter began to leak brain fluid and contracted meningitis. She died three months after the operation, in much pain and suffering, witnessed throughout by her mother, who was constantly at her bedside. The mother was later diagnosed to be suffering from post-traumatic stress disorder, and brought an action against the doctor. [22.680] Applying the standard rules of secondary victim recovery, there was no problem about the requirement of a close relationship. The other rules might be thought to present greater problems, but Amarjeet JC was prepared to apply them in a flexible manner, in the light of the particular facts. As regards proximity in time and space to the tortious event, he said: Here there was no accident which could have been witnessed by the plaintiff in the sense that she could have seen the physical injuries as they were being inflicted upon her daughter. The case has therefore to be viewed in a slightly different light. The situation, though, is somewhat analogous to instances such 203

Common law claims for psychiatric injury resurfaced in New Zealand in the 1990s: see [3.480]–[3.500]; van Soest v Residual Health Management Unit [2000] 1 NZLR 179 and Owen v Residual Health Management Unit [2000] NZCA 162 both involve claims against hospitals, but there is no suggestion that the ordinary rules should be relaxed in medical negligence cases.

204

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

205

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 323.

206

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

[22.700]

22 Secondary Victim Cases

815

as McLoughlin or Jaensch v Coffey, where the plaintiffs came upon the immediate aftermath of the accident and witnessed the state in which the primary victim was in [sic] as a result of the defendant’s negligence.207

He described the plaintiff’s involvement in all stages of her daughter’s treatment and post-operative suffering and said that she was proximate in both time and space to the tortious event. [22.690] Similarly, the need for the shock to result from sight or hearing of the event or its immediate aftermath had to be tailored to the fact situation: [I]n all the previous cases in English common law relating to nervous shock, the negligence complained of has normally led to a particular event which occurred within a short space of time, usually a traffic or railway or other accident, or as in Alcock, a disaster which unfolded within the space of a few minutes. In these cases therefore, it has been possible and indeed logical, to have required the immediate sight or hearing of the horrific event in question. That, however, cannot mean that in this case, merely because some of the negligent acts complained of are acts which cannot reasonably be witnessed by a person in the plaintiff’s position, she immediately fails the third requirement in establishing foreseeability and thus fails in her action. One would not expect any relative or spouse of a patient to be present during an operation. Neither would one expect that person to realise immediately whether or not a particular operation was being carried out negligently. Thus while the plaintiff was not immediately aware that the defendant had been negligent in his diagnosis and in his performance of the operation, she was witnessing throughout the effects of these and the subsequent negligent acts of the defendant.208

[22.700] As noted previously, this is an area where the direct perception and sudden shock rules have a tendency to merge into a single concept.209 It is noteworthy that Amarjeet JC, having introduced the United States approach to psychiatric injury by referring to the leading Californian decision of Dillon v Legg,210 at this point invoked the leading Californian authority denying the need for sudden shock, Ochoa v Superior Court of Santa Clara County,211 pointing out that the facts involved parents watching the suffering and death through negligent medical treatment of their son, who was a detainee in an institution for juvenile offenders. 207

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 329.

208

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 329.

209

See eg [22.400], discussing Tredget v Bexley Health Authority [1994] 5 Med LR 178; [22.470], discussing Tan v East London and City Health Authority [1999] Lloyd’s Rep Med 389; and [22.530], discussing Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227. 210 211

Dillon v Legg 441 P 2d 912 (Cal 1968).

Ochoa v Superior Court of Santa Clara County 703 P 2d 1 (Cal 1985): see [12.480]. In Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227 (discussed at [22.520]–[22.530]) Thomas J at [41], commenting on the reliance on Californian authorities in Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317, said: “That is a different jurisprudence to that established in this jurisdiction and I do not therefore find the case of any assistance.”

816

Part IV: Relationship Cases

[22.710]

The conclusion I have come to, as well as that in Gloria Ochoa’s case, is an extension beyond the existing limits in recovery for the negligent infliction of psychiatric illness established in either Alcock or Dillon. The negligent failure in both cases, to properly diagnose the ailments and give proper medical treatment (the negligent operation being an additional factor in the present case) did not amount to a sudden accidental occurrence. That, however, to my mind ought not to preclude recovery. As I have already expressed in the case of an abnormal event or abnormal case involving medical negligence — unlike that of a car accident which may be seen or heard — a doctor’s negligent act or acts such as a negligent diagnosis, a negligent operation or negligent prescription of medicine can hardly ever be witnessed. What can be witnessed, however, and what is required to be witnessed, is the calamitous effect of that conduct on the primary victim as has happened in both these cases. The resulting trauma and psychiatric injury arising in these cases in a plaintiff is nearly always from a close, constant and unremitting perception of the suffering, distress and pain of the primary victim where death is not immediate — the perception directly inflicting emotional and mental stress as a result of the callous and negligent attitude of the medical professional and as such ought to be recognised as a logical, analogous and necessary step forward in recovery of a plaintiff’s claim. This case is different from the usual cases of nervous shock where there was a traffic accident causing the injury to the primary victim, but it is not so different to compel the law to shut its eyes to a situation which so obviously needs redress.212

[22.710] Amarjeet JC therefore held that a plaintiff could recover damages if he or she had observed the defendant’s conduct as well as the resulting injury and was aware at the time that the conduct was the cause of the injury. He refused to be deterred from reaching this conclusion by statements such as that of Lord Ackner in Alcock v Chief Constable of South Yorkshire Police213 to the effect that the law has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system. Lord Ackner’s dicta though would in my opinion exclude situations where psychiatric illness is caused to care-givers of the primary victims of negligence in ordinary cases, where the toll taken on them over a period of time of watching their close relatives suffer causes a nervous illness. This case, while appearing to be similar to those situations, is entirely different in that the psychiatric evidence and the facts as I have found, show that the trauma and the shock suffered by the plaintiff was not equivalent to that of a care-giver, but of a mother who suffered the consequences of the defendant’s negligence, who has had to suffer the distress and trauma of watching helplessly as her daughter was negligently managed and cared for by the defendant, and who realised the true impact of the defendant’s negligence only to have to witness and suffer the vain attempts to repair the damage that he had wrought.214

Summing up, he said that the claim was successful as an incremental and analogous extension of existing cases. 212

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 332–333.

213

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

214

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 333.

[22.740]

22 Secondary Victim Cases

817

[22.720] The second case is the South African case of Clinton-Parker v Administrator, Transvaal.215 The plaintiffs were two women who had each given birth to children in the same hospital at the same time. Two years later, they were informed by the hospital that there was a possibility that their babies had accidentally been swapped by the hospital staff, and tests confirmed this. They decided to keep the children given to them at birth, but claimed damages in delict from the hospital. The evidence was that they were both suffering from a mixed anxiety depressive disorder, and that some features of post-traumatic stress disorder were also present. It was held that each mother was entitled to compensation. [22.730] Navsa J referred to the standard South African authorities on psychiatric injury such as Bester v Commercial Union Versekeringsmaatskappy van SA Bpk.216 The central issue was whether the principles of legal causation were satisfied, and he referred to leading cases such as S v Mokgethi en Andere217 that applied the “flexible approach”. Essentially, the issues involved here were whether psychiatric injury was foreseeable and whether this was the sole criterion that has to be applied — issues that in the common law generally fall to be dealt with in the duty of care context. On the evidence, it was clear that reasonable hospital staff members would have been alive to the risks consequent on swapping babies, including the possibility that some sort of psychiatric harm would result. Given the nature of modern record-keeping systems, it was foreseeable, indeed likely, that the mistake would eventually be discovered. [22.740] The judge extensively reviewed the English, Australian and American authorities. Cases such as Alcock v Chief Constable of South Yorkshire Police218 clearly gave him cause for concern about the opening of the floodgates and the possibility of limitless liability — and this part of the judgment probably gives too much credence to these well-worn worries. However, the situation in this case was different: Accident cases present particular policy problems. … [T]his case does not present the same problems as accident cases. The analogy drawn between the communication of an accident and its consequences and the communication of the swop is unjustified. In the present case the plaintiffs were mothers who had just delivered. Their babies, unbeknown to them, were very shortly thereafter swopped. They were proximate to the negligent act and were directly affected by it. If one were to employ duty of care terminology, one would say that the hospital owed them a duty of care to ensure that their natural children were handed to them. This is not the case of a mother whose child is killed in a motor vehicle accident and who is thereafter informed of the death. These are mothers who were deprived of breast-feeding and nurturing their new-born babies and who were, because of the negligence of the hospital staff, placed in relationships with children with whom they bonded. They gave themselves to those children. … The experts tell us that there will be lifelong psychological 215

Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W).

216

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A).

217

S v Mokgethi en Andere 1990 (1) SA 32 (A).

218

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

818

Part IV: Relationship Cases

[22.750]

scars for the mothers. I expect that the children will not be unscathed. … If we were to borrow from the English terminology for the briefest moment, the plaintiffs and their children were primary victims.219

The relationship between the hospital and the plaintiffs was therefore a relevant factor in applying the flexible approach adopted in determining legal causation. While the concepts of the South African law of delict are somewhat different from the common law, at least on the surface, the message that emerges from this judgment is essentially the same as that which is apparent from the English cases and other authorities such as Pang Koi Fa v Lim Djoe Phing220 — that the law must be flexible enough not to have to treat all psychiatric injury cases the same. Where there is some sort of pre-existing relationship, such as that between doctor and patient, the position of third parties who suffer psychiatric injury is not necessarily the same as in the standard accident case — and indeed, as cases like Clinton-Parker v Administrator, Transvaal221 show, in many cases those who suffer such injury are really primary rather than secondary victims.222

Conclusion [22.750] There is an important conclusion to be drawn from the cases discussed at [22.150]–[22.740], particularly the English cases where liability for psychiatric injury in medical situations has received more extended discussion than in most other jurisdictions. It is that the limitations on liability developed by the courts in cases predominantly involving accident and disaster situations where there is no previous relationship between the parties should not necessarily be accepted as 219

Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) at 63–64.

220

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

221

Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W).

222

Note also Ndola Central Hospital Board of Management v Kaluba (1995-97) ZR 212, where a newborn baby was stolen from the hospital and never seen again, and the mother claimed damages for nervous shock. It was held that the well-established principles of awarding damages for such harm should be extended to cover the novel situation where shock resulted from the negligent loss of a baby. Though the point is not discussed, it would seem to follow from Clinton-Parker v Administrator, Transvaal 1996 (2) SA 37 (W) and the English cases that the mother should be regarded as a primary rather than a secondary victim. Compare the restrictive approach of United States cases, some of which were cited in Clinton-Parker v Administrator, Transvaal: Espinosa v Beverley Hospital 249 P 2d 843 (Cal 1952) (mother given wrong baby at hospital could not recover for mental anguish because she had not suffered actual physical harm as result of defendant’s want of care); Carter v Lake Wales Hospital Association 213 So 2d 898 (Fla 1968) (parents discovered that hospital had allowed another couple to take their newborn baby home, under mistaken belief that it was their child, but recovery denied because of Florida’s impact rule): Johnson v Jamaica Hospital 467 NE 2d 502 (NY 1984) (hospital negligently failed to prevent baby being abducted; recovery denied on ground that parents not in zone of danger at time of abduction); Wishard Memorial Hospital v Logwood 512 NE 2d 1126 (Ind 1987) (newborn babies switched, but court denied recovery for emotional distress on ground that placing baby in arms of someone who was not her mother did not constitute impact to infant or parents necessary to support such action).

[22.760]

22 Secondary Victim Cases

819

covering the field in all situations in which those who suffer psychiatric injury caused by negligence seek damages. In particular, the existence of a pre-existing relationship of care, such as that between doctor or hospital and patient, requires a much more flexible approach. So, if on the facts the claim must be treated as a secondary victim claim, the approach to issues such as aftermath, means of communication and sudden shock (in jurisdictions where the law still endorses these limitations on liability) needs to be adjusted to the particular situation — something courts in England (at least, until recently) and Singapore have been prepared to do in at least some instances. Furthermore, the particular case of the birth mishap, in which both mother and father are actively involved, requires reappraisal. It does not seem appropriate to continue to analyse this as a secondary victim case, and make distinctions based on whether the parties were conscious or present at particular stages, or how they learnt what happened to their child. The analysis adopted by some English cases, which suggests that in such a case the parents are primary rather than secondary victims, seems preferable. It is hoped that these issues will one day receive a thorough examination by courts in Australia and elsewhere.

OTHER SITUATIONS [22.760] Outside the employment and medical cases, there are few secondary victim claims for psychiatric injury where there is any real suggestion that a pre-existing relationship between the defendant and the primary victim makes a difference to the way in which the standard secondary victim rules are interpreted. Perhaps the most prominent exceptions are two Australian cases involving Aboriginal deaths in custody.223 In Quayle v New South Wales,224 claims by a mother and three brothers for shock suffered as a result of hearing that a fourth brother had hanged himself in his cell succeeded. The fact that quite obviously the mother and brothers could not have been present at the scene of the tragedy, that some sort of psychiatric injury might result was clearly foreseeable, and the ongoing problem of Aboriginal deaths in custody in Australian society all probably contributed to the District Court judge’s decision to relax the traditional rule that excluded shock caused by being told of the death or injury of another. There were also some other contributory factors. In the case of the mother, there was a straightforward cause of action under the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which in the case of parents and spouses never required personal perception.225 One of the brothers identified the body and it seems that 223

Compare the conventional approach adopted in England in Duddin v Home Office [2004] EWCA Civ 181, where it was held that a prison officer who approached a woman visiting her husband in prison and invited her to enter into a sexual relationship owed no duty to the husband for alleged psychiatric injury suffered as a result of the officer’s actions.

224

Quayle v New South Wales (1995) Aust Torts Rep 81-367, noted by NJ Mullany (1996) 4 Tort L Rev 96.

225

See [13.120].

820

Part IV: Relationship Cases

[22.770]

the psychiatric consequences he suffered arose essentially from this fact. Identifying the body is not normally sufficient to bring a plaintiff within the aftermath, but in this case it perhaps suggested that it was more than a pure “told” situation. Another brother was present when this happened, and was also asked to identify the body, but declined to do so. Though the judgment does not directly so suggest, reading between the lines it is not difficult to see that the law was being tempered to meet the exigencies of the particular situation. The same seems to be true in Sloss v New South Wales,226 an action by a mother in respect of the death of her son while a remand prisoner at Long Bay Prison, following being given heroin by another prisoner. After being telephoned by the prison authorities, the plaintiff arrived at the hospital where her son was lying on a bed under guard, was told he was dead, and later had to identify the body in the morgue. Only later did she learn how her son met his death. The defendant did not contest the issues of duty and breach, and damages were awarded for psychiatric injury. Arguably, the plaintiff, if not within the aftermath, was very close to it, and it seems possible to suggest that the New South Wales Supreme Court was prepared to exercise some benevolence in the way in which it interpreted the aftermath rules given the nature of the case. [22.770] Now that the High Court has confirmed that direct perception is no longer a requirement for psychiatric injury liability, courts dealing with such fact situations would be able to recognise the existence of a duty of care to relatives who suffer mental harm without the cases seeming in any way exceptional. A fact situation with the potential for raising such issues occurred in Douglas v Tasmania.227 The plaintiff claimed damages from the State for psychiatric injury (a pathological grief reaction) after learning that her 18-year-old son, a detainee on remand in prison, had committed suicide, and subsequently finding out that he had been sexually assaulted 48 hours earlier. In the course of making an order that the defendant answer certain interrogatories, Master Holt said: A necessary part of the mother’s claim is that the State being responsible for the operation of the prison, was under a legal duty to take reasonable care to avoid psychiatric injury to her as the parent of a detainee. For such a legal duty to have existed there must have been a sufficient relationship between the State as the prison authority and the mother to give rise to the duty. To establish the necessary proximity to give rise to the alleged duty foreseeability of injury and the nature of the relationship between mother and the prison authority are relevant as criteria of responsibility.228

The Master noted that the case was different from the Annetts claim in Tame v New South Wales229 in a number of respects, for example in that the deceased was of full age, and no assurances had been given by the State 226

Sloss v New South Wales [1999] NSWSC 995.

227

Douglas v Tasmania [2004] TASSC 131.

228

Douglas v Tasmania [2004] TASSC 131 at [3].

229

Tame v New South Wales (2002) 211 CLR 317: see [22.50]–[22.80].

[22.790]

22 Secondary Victim Cases

821

to the mother. He said that whether the features of the case as listed by him were sufficient to impose on the State a legal duty to take reasonable care to avoid psychiatric injury to the mother would have to be determined at trial.230 [22.780] The death-in-custody cases apart, there are few secondary victim claims for psychiatric injury where there is any real suggestion that a pre-existing relationship between the defendant and the primary victim makes a difference to the way in which the standard secondary victim rules are interpreted. One example is provided by actions brought against schools by parents who suffer mental harm as a result of the death or injury of their child due to the negligence of the school authorities: such cases might be thought not dissimilar to cases such as that of James Annetts231 where the primary victim was the defendant’s employee. Chaina v Presbyterian Church (NSW) Property Trust (No 25)232 is an example. The parents of a boy killed on a school excursion due to the school’s negligence recovered damages from the school authority; under the Civil Liability Act 2002 (NSW), as close relatives they did not have to be at the scene and witness the accident, but there was no suggestion that the case was approached any differently because of the relationship factor. The same applies in Canada, where the law retains the direct perception requirement. In R(L) v British Columbia,233 where a class action was brought on behalf of students sexually abused at school, the court refused to include parents who had witnessed the after-effects of the abuse, saying “The claims here would challenge the limits of recovery under current nervous shock jurisprudence”.234 There may have been a hint of something special in M v Australian Capital Territory,235 where the plaintiff applied for leave to amend her statement of claim to add a claim for mental harm suffered on learning that her daughter had been the victim of bullying and sexual assault at the hands of other students, alleging that the school was negligent in failing to provide adequate supervision or take other precautions to prevent such occurrences. A Master held that her proposed amended statement of claim did not plead a new cause of action — but of course such approval is a long way from recognising the existence of a duty of care. [22.790] Cases on defective products and services may again raise the possibility of a secondary victim claim, but again the courts simply apply orthodox principles, as in Vanek v Great Atlantic & Pacific Co of Canada 230

Douglas v Tasmania [2004] TASSC 131 at [6]. There is no report of any trial proceedings.

231

Tame v New South Wales (2002) 211 CLR 317.

232

Chaina v Presbyterian Church (NSW) Property Trust (No 25) (2014) Aust Torts Rep 82-185.

233

R(L) v British Columbia (1999) 180 DLR (4th) 639.

234

R(L) v British Columbia (1999) 180 DLR (4th) 639 at [44]. The decision was affirmed by the Supreme Court sub nom Rumley v British Columbia [2001] 3 SCR 184.

235

M v Australian Capital Territory [2012] ACTSC 20.

822

Part IV: Relationship Cases

[22.800]

Ltd236 where a child at school consumed a bottle of soft drink containing a contaminant, became dizzy and nauseous, and was rushed to hospital. She recovered, but her parents, who had been summoned to the school because of the emergency, claimed damages for various injuries, including an angina attack suffered by her father. The Ontario Court of Appeal, reversing the court below, rejected the parents’ claims for damages for psychiatric injury because such harm was unforeseeable. The court noted that the parents did not see her consume the drink, and by the time they arrived at the school the situation had been dealt with and the child was back to normal. Third party claims have sometimes succeeded, as in an Irish case where damages for nervous shock were awarded to the mother of a child who suffered gastro-enteritis after consuming maggot-infested muesli.237 [22.800] The important English case of W v Essex County Council238 shows the dangers of artificially applying the principles of secondary victim cases to situations for which they were not designed — and where it was by no means clear that the parties could be satisfactorily classified as “primary” and “secondary”.239 Mr and Mrs W agreed with the Council to become foster parents, stipulating that no children with a history of perpetrating sexual abuse would be placed with them. They took G, a 15-year-old boy, into their care, after a false representation by a social worker that he was not a known sexual abuser. A month later, Mr and Mrs W discovered that G had sexually abused their four children. They sued the Council for damages for psychiatric injury. Hooper J struck out the case on the basis that it could not be shown that the illnesses were the result of a sudden appreciation by sight or sound of a horrifying event, and this was affirmed by the English Court of Appeal. Before the House of Lords, the respondents submitted that the parents could not be primary victims unless they were participants, and well within the range of foreseeable physical injury, and that as secondary victims the normal limitations applied to them. However, wiser counsels prevailed. Lord Slynn of Hadley, giving the judgment of the court, doubted the wisdom of applying rules and policy considerations developed with the standard secondary victim cases in mind. Moreover, he was by no means convinced that it was correct to classify the parents as mere secondary 236

Vanek v Great Atlantic & Pacific Co of Canada Ltd (1999) 180 DLR (4th) 748.

237

McDaid v Letterkenny Seafoods [1996] ILLW 397. A similar claim was made in Ward v Ballaughton Estate (1975) Ltd 1987-89 MLR 428 (Isle of Man), an action in respect of a defective chimney in a house built for the plaintiff and her husband by the defendant. Their daughter began to suffer from respiratory complaints (eventually traced to leakage of smoke from the chimney into her bedroom). The strain of the daughter’s illness, plus the chimney problem, led to a recurrence of the depressive illness from which the plaintiff had suffered in the past. It was held that the plaintiff was entitled to damages. Note also Irvine v Balmoral Hotel Edinburgh Ltd [1998] ScotCS 63 (mother suffered distress on witnessing scalding tea poured over daughter: court settled her claim, even though it is not clear beyond doubt that the distress amounted to a recognisable psychiatric injury). 238

W v Essex County Council [2001] 2 AC 592.

239

See also [3.210], [18.110], [21.300].

[22.820]

22 Secondary Victim Cases

823

victims. Clearly, the nature of the case, and the relationship between the parties, did more than make a difference to the way in which the standard secondary victim rules were applied: it all added up to a convincing argument for assigning it to an entirely different category of psychiatric injury liability. [22.810] In some cases, even suggesting that a secondary victim claim exists may break new ground. Kirkland-Veenstra v Stuart240 was significant because it suggested that the police may in certain circumstances owe a duty of care to secondary victims. The Mental Health Act 1986 (Vic) gave police power to arrest a person who appeared to be mentally ill if they had reasonable grounds for believing that the person had attempted to commit suicide or cause serious bodily harm to himself or herself or was likely to do so. The appellant’s husband had been forced to resign his employment because his employer thought he was involved in a fraudulent business transaction. On the morning of the day he was due to be interviewed by the police, he was found by two police officers in his car with a hose running from the exhaust into the car via the rear window. However, the engine was not running. The officers questioned the husband, who admitted he had been contemplating doing “something stupid” but had changed his mind. He declined offers of assistance, and said he would return home to discuss matters with his wife. Later that day, he asphyxiated himself with exhaust fumes in his garage at home. He was found by his wife, who made unsuccessful attempts to revive him, and immediately went into shock. She brought an action for negligence against the two police officers alleging that they owed a duty of care both to her husband and to herself as a secondary victim of their negligence. [22.820] The trial judge held that the alleged duties of care did not exist, but the Victorian Court of Appeal by majority allowed the appeal and ordered a retrial. Warren CJ analysed the salient features of the case and concluded that the police officers owed the husband a common law duty of care: it was foreseeable that failure to exercise their statutory powers might result in the husband committing suicide, and they had power to protect a specific class of persons (those likely to commit suicide) from a risk of self-harm. Her Honour then held that the police officers also owed a duty of care to the wife. It had been established since Jaensch v Coffey241 that close relatives could recover damages for psychiatric injury even though they were not present and had no pre-existing relationship with the defendant, and essentially the same approach had been applied in Tame v New South Wales,242 which should be understood as having extended the range of circumstances in which there was a duty of care to avoid foreseeable psychiatric injury: Contrary to the submissions advanced on behalf of the respondents, the High Court did not decide that an antecedent relationship between the plaintiff and 240

Kirkland-Veenstra v Stuart (2008) 23 VR 1.

241

Jaensch v Coffey (1984) 155 CLR 549.

242

Tame v New South Wales (2002) 211 CLR 317.

824

Part IV: Relationship Cases

[22.830]

the defendant was a necessary condition of the existence of a duty of care. On the contrary, as the judgments make clear, the existence (or otherwise) of an antecedent relationship may give rise to a duty of care to a person who did not directly perceive the relevant incident or its aftermath, and suffered no “sudden shock”.243

Here, the police officers had almost complete control over the circumstances giving rise to a risk of psychiatric injury to the wife, and she had no way of protecting herself against that risk. The imposition of a duty would not be in any way inconsistent with the nature of the activity on which the officers were engaged. It followed that the kind of injury suffered by the wife was reasonably foreseeable if the officers failed to exercise reasonable care in their dealings with her husband. Maxwell P agreed with the reasons of the Chief Justice, going on to discuss the duty to the husband in some detail but saying nothing about the duty to the wife. Chernov JA dissented, holding that no duty was owed to the husband. He said nothing about the position of the wife, but counsel had conceded that any duty to the wife was dependent on the existence of a duty to the husband.244 [22.830] The police officers appealed against the finding that they owed a duty of care to the husband, and a unanimous High Court allowed the appeal.245 French CJ held that the statutory power had never been enlivened because it was subject to two conditions that were not satisfied: that the person must subjectively appear to the officer to be mentally ill, and that the officer must have reasonable grounds for believing that the person was likely to attempt suicide. Crennan and Kiefel JJ adopted the same approach. According to Gummow, Hayne and Heydon JJ, the issues referred to by French CJ were relevant to breach rather than duty, but nonetheless the contended-for duty to the husband did not exist. It was accepted, as it had been in the Victorian Court of Appeal, that if there was no duty to the husband then there was no duty to the wife.246 There was therefore no need for any of the judgments to say any more about the alleged duty owed by the police to a secondary party. [22.840] The High Court’s decision means that the status of Warren CJ’s remarks in the Court of Appeal about the duty to a secondary victim such as the wife must be open to doubt. However, the principal difficulty is that the duty to the wife was made to depend on the existence of a duty to the husband, which was ruled out by the High Court. If that duty in fact existed — to take French CJ’s approach, if the conditions for the exercise of the statutory power had been satisfied — there does not seem

243

Kirkland-Veenstra v Stuart (2008) 23 VR 1 at [86].

244

Kirkland-Veenstra v Stuart (2008) 23 VR 1 at [17] per Warren CJ.

245

Stuart v Kirkland-Veenstra (2009) 237 CLR 215.

246

Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at [83].

[22.840]

22 Secondary Victim Cases

825

to be any reason to doubt Warren CJ’s conclusion that a duty was owed to the secondary party.247

247

Note Irwin v Queensland [2011] VSC 291, where the plaintiff’s son, a police officer, was sent to execute a warrant against a man who shot PC Irwin and then himself. The man had committed an armed robbery earlier that evening. The plaintiff claimed to have suffered psychiatric injury as a result of the shooting, and that the police had failed to take reasonable steps to ensure that in attending the premises to serve the warrant PC Irwin was not exposed to unnecessary risk of death or serious injury. Robson J said at [18] that whether the police breached any duty of care to the father would be a major issue in the trial. The outcome is not known.

Chapter 23

Air Travel [23.10] INTRODUCTION ............................................................................................................. 827 [23.60] CLAIMS BY PASSENGERS: EXCLUSION OF DOMESTIC LAW REMEDIES ...... 829 [23.120] CLAIMS BY PASSENGERS: THE MEANING OF “BODILY INJURY” ................ 834 [23.120] The Warsaw Convention ............................................................................................... 834 [23.290] The Montreal Convention ............................................................................................. 846 [23.330] CLAIMS BY PERSONS OTHER THAN PASSENGERS .......................................... 847

INTRODUCTION [23.10] In recent years, a number of psychiatric injury issues have arisen in the context of accidents suffered during air travel.1 International carriage by air was originally regulated by the Warsaw Convention 1929, and an amended scheme was approved by the Montreal Convention in 1999. The principal question at issue in the cases is whether the words “bodily injury” in Art 17 of the Warsaw Convention (preserved by the Montreal Convention) include psychiatric injury. Article 17 provides as follows: The Carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

[23.20] The aim of the original Warsaw Convention of 1929 was to bring about some measure of uniformity in the laws applying to the legal liability of air carriers.2 The preamble to the original French text of the Convention recorded that the signatories had recognised the utility of uniform regulation of international air transport as regards the documentation used and the responsibility of the carrier.3 Chapter III of the Convention dealt with the liability of the carrier, and the Articles in this Chapter examined various events giving rise to damage. One of these 1 An earlier version of this chapter was published as P Handford, “Come Fly with Me: Psychiatric Injury and the Warsaw Convention” [2006] JBL 408. 2

For detailed accounts of the Convention and its provisions, see Sidhu v British Airways plc [1997] AC 430 at 438–440 per Lord Hope of Craighead; South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 327–333 per Sackville J; King v Bristow Helicopters Ltd 2001 SC 54 at 102–106 per Lord Reed. 3 “Ayant reconnu l’utilité de régler d’une manière uniforme les conditions, du transport aérien international en ce qui concerne les documents utilises pour ce transport et la responsabilité du transporteur.”

828

Part IV: Relationship Cases

[23.30]

was Art 17, which dealt with death or bodily injury (in the original French text, “lésion corporelle”) caused by an accident on board the aircraft or in the course of boarding or disembarking. The effect of Ch III was to impose strict liability on the carrier, subject to various limitations. The carrier was made liable for the damage unless it was proved that the carrier or its servants or agents had taken all necessary measures to avoid the damage or that it was impossible for them to take such measures,4 but the carrier’s liability was limited unless it was proved that the damage was caused intentionally or recklessly with knowledge that damage would probably result,5 and in any case the carrier’s liability was extinguished if no action was brought within two years of the occurrence.6 By 1959, 46 countries had become parties to the Warsaw Convention, including the United Kingdom, Australia and Canada, which each enacted legislation to give effect to the Convention.7 In 1955 representatives of 44 countries meeting at The Hague signed the Protocol to Amend the Warsaw Convention. Article 19 of the Protocol provided that the Convention and the Protocol were to be read and interpreted together as one single instrument. There were further amendments in 1961 and 1975.8 The Convention has been given the force of law by local legislation in various countries including Australia, the United Kingdom and Canada.9 In many countries, including Australia and the United Kingdom, versions of the Convention provisions have been extended to domestic air travel.10 [23.30] The Montreal Convention 1999 amended important provisions of the Warsaw Convention. While retaining the core provisions of the Warsaw Convention, the Montreal Convention aimed to give better protection to passengers by introducing a two-tier liability system. Where damages of more than a stated limit are sought, an airline can now avoid liability by proving that the accident that caused the injury or death of a passenger was not due to their negligence. In cases where a lesser sum is claimed, the strict liability that applied under the original Convention continues to apply. The Montreal Convention entered into force in 2003, 4

Warsaw Convention, Art 20.

5

Warsaw Convention, Art 22.

6

Warsaw Convention, Art 29.

7

See Carriage by Air Act 1932 (UK); Carriage By Air Act 1935 (Cth); Carriage by Air Act, RSC 1985, c C-26 (originally enacted 1939). 8

The Guadalajara Convention 1961, the Additional Protocol No 3 1975 and the Montreal Protocol No 4 1975: see Povey v Qantas Airways Ltd (2005) 223 CLR 189 at [2] per Gleeson CJ, Gummow, Hayne and Heydon JJ.

9

See Civil Aviation (Carriers’ Liability) Act 1959 (Cth); Carriage by Air Act 1961 (UK); Carriage by Air Act, RSC 1985, c C-26.

10 See Civil Aviation (Carriers’ Liability) Act 1959 (Cth), Pt IV, applied to intrastate travel by State legislation such as the Civil Aviation (Carriers’ Liability) Act 1967 (NSW); Carriage by Air Act 1961 (UK), s 10(1), providing that the Convention may be applied by Order in Council to carriage by air not being carriage by air to which the Convention applies, and Carriage by Air Acts (Application of Provisions) Order 1967.

[23.60]

23 Air Travel

829

when the United States became the 30th nation to ratify it. No alteration was made in the text of Art 17, which therefore continues to refer to “bodily injury”. [23.40] The controversy over the meaning of “bodily injury” in Art 1711 has arisen chiefly as a result of the decision of the United States Supreme Court in Eastern Airlines Inc v Floyd12 in 1991. This case involved an incident in 1983 where an aircraft on a flight from Miami to the Bahamas lost power and narrowly avoided having to ditch in the ocean. Passengers sued the airline for damages for mental distress. The Supreme Court settled the differences in interpretation that had arisen in previous case law13 by ruling that the Convention had to be construed in the light of the law prevailing in 1929 when it had been originally signed. Since psychiatric injury was not widely recognised by the law at that time, it did not amount to “bodily injury” within the meaning of Art 17, and accordingly there could be no recovery. The leading decision to the contrary was that of the Israel Supreme Court in Daddon v Air France14 in 1984, a case arising out of the 1976 hijacking of an Air France flight to Entebbe, Uganda. Three members of the court held that it was possible to take account of changes in civil air transport since 1929 and also of the fact that under Israel’s domestic law mental damage or defect was recognised as a bodily injury. [23.50] Starting with Sidhu v British Airways plc15 in 1996, courts in the United Kingdom, Australia and Canada have been asked to rule on whether Art 17 permits recovery for psychiatric illness or lesser forms of mental damage suffered as the result of an air accident. In most of these instances, the claims have been brought by passengers, but some cases also raise the question whether Art 17 affects claims by persons other than passengers. Another issue involved in these cases is whether Art 17 provides the exclusive remedy in such circumstances, or whether a claim at common law or under some other statutory provision remains possible.

CLAIMS BY PASSENGERS: EXCLUSION OF DOMESTIC LAW REMEDIES [23.60] The chief importance of Sidhu v British Airways plc16 was the confirmation by the House of Lords that Art 17 provided the sole avenue of redress for injured passengers. Proceedings were brought in England and Scotland by passengers on a British Airways flight from London to 11

For a survey of this and other problems arising out of Art 17, see A Field, ““Turbulence Ahead”: Some Difficulties for Plaintiffs with Air Carriers’ Liability for Death and Injury under Australian Law” (2005) 13 TLJ 62.

12

Eastern Airlines Inc v Floyd 499 US 530 (1991).

13

See eg Rosman v Trans World Airlines Inc 314 NE 2d 848 (NY 1974); Floyd v Eastern Airlines Inc 872 F 2d 1462 (1989).

14

Daddon v Air France (1984) 1 S & B Av R VII/141.

15

Sidhu v British Airways plc [1997] AC 430.

16

Sidhu v British Airways plc [1997] AC 430.

830

Part IV: Relationship Cases

[23.70]

Malaysia that landed in Kuwait for refuelling on 1 August 1990, several hours after Iraqi forces had begun to invade Kuwait, the event that provoked the First Gulf War. The passengers were in the airport terminal when Iraqi forces attacked the airport, took them prisoner and removed them to Baghdad. They were not released until several weeks later. The English plaintiffs commenced proceedings in a county court on 30 July 1993, outside the two-year time limit allowed by the Warsaw Convention but inside the three-year limitation period for personal injury claims at common law. They alleged that British Airways had been negligent in landing the aircraft in Kuwait after the commencement of hostilities, and that as a result they had suffered physical and psychological damage,17 including mental injury comprising stress and anxiety and possible permanent psychological damage, and various bodily injuries. The claim was dismissed on the ground that their only remedy was under the Convention, and any rights they might have had against the airline were extinguished by the running of the two-year limitation period. This decision was upheld by the English Court of Appeal. The Scottish action, in which the pursuer claimed damages for psychological injury due to the stress resulting from captivity and the pain of separation from her family, caused by the breach of an implied condition of the contract of carriage that British Airways would take reasonable care for her safety, was dismissed by the Lord Ordinary, and the pursuer’s reclaiming motion was dismissed by the First Division of the Court of Session, on similar grounds.18 Appeals in both actions were brought before the House of Lords. [23.70] The principal issue on the appeal was whether the judgments of the courts below were correct in holding that the Convention provided the sole remedy for passengers claiming against the carrier for injuries sustained in the course of international carriage by air, to the exclusion of claims in negligence or contract. Though the passengers were in the terminal when they were arrested, it was accepted that they were still in the course of international carriage by air, since they were still in transit to their ultimate destination. Lord Hope of Craighead, in a judgment concurred in by the other Law Lords, discussed at some length the approach to be adopted to the construction of the Convention.19 He said that the focus should be on the Convention itself, rather than the Carriage by Air Act 1961 (UK) that implemented it. The text of the Convention20 had to receive a purposive construction, in accordance with the earlier decision of the House of Lords to that effect in Fothergill v Monarch Airlines 17

“Psychological damage”, rather than “psychiatric damage”, is the term used throughout the judgment. The same is true of many other cases dealt with in this chapter. On this usage, see [4.20].

18

Abnett v British Airways plc 1996 SLT 529.

19

Sidhu v British Airways plc [1997] AC 430 at 441–453.

20

The text of the Convention was set out in both French and English. In case of any inconsistency, the French text was to prevail: Carriage by Air Act 1961 (UK), s 1(2).

[23.80]

23 Air Travel

831

Ltd.21 The negotiating history of the Convention — the travaux préparatoires — could be used with caution, but was only helpful if, after proper analysis, it clearly pointed to a definite intention on the part of the delegates as to how the point at issue should be resolved. Case law from the United Kingdom and elsewhere was relevant, although the value of foreign court decisions would be reduced if the decisions conflicted or disclosed no clear line of approach. An argument that the Convention had to be read consistently with the European Convention on Human Rights was rejected, on the ground that many of the Warsaw signatories were not parties to this Convention. Similar discussions of the principles to be adopted in interpreting the Warsaw Convention can be found in judgments in later cases.22 [23.80] After analysing these materials in detail, Lord Hope came to the conclusion that the Convention provided the sole remedy available to the appellants, to the exclusion of domestic law. Though at first sight it might not seem just to deprive the parties of other remedies normally available to them, Lord Hope justified his conclusion as follows: I believe that the answer to the question raised in the present case is to be found in the objects and structure of the Convention. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code, which could be applied by the courts of all the high contracting parties without reference to the rules of their own domestic law. The Convention does not purport to deal with all matters relating to contracts of international carriage by air. But in those areas with which it deals – and the liability of the carrier is one of them – the code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law. An answer to the question which leaves claimants without a remedy is not at first sight attractive. It is tempting to give way to the argument that where there is a wrong there must be a remedy. That indeed is the foundation upon which much of our own common law has been built up. The broad principles which provide the foundation for the law of delict in Scotland and of torts in the English common law have been developed upon these lines. No system of law can attempt to compensate persons for all losses in whatever circumstances. But the assumption is that, where a breach of duty has caused loss, a remedy in damages ought to be available. Alongside these principles, however, there lies another great principle, which is that of freedom of contract. Any person is free, unless restrained by statute, to 21 22

Fothergill v Monarch Airlines Ltd [1981] AC 251.

See eg Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 112–115 per Meagher JA; South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 333–334 per Sackville J; Povey v Qantas Airways Ltd (2005) 223 CLR 189 at [24]–[25] per Gleeson CJ, Gummow, Hayne and Heydon JJ, at [127]–[143] per Kirby J; Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [34]–[58] per Schmidt J; King v Bristow Helicopters Ltd 2001 SC 54 at 108–118 per Lord Reed; Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [6]–[12] per Lord Phillips of Worth Matravers; Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [75]–[82] per Lord Hope of Craighead; Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495 at [11]–[12] per Lord Scott of Foscote, at [52]–[55] per Lord Mance. See also Herd v Clyde Helicopters 1997 SC (HL) 86 at 100 per Lord Hope of Craighead.

832

Part IV: Relationship Cases

[23.90]

enter into a contract with another on the basis that his liability in damages is excluded or limited if he is in breach of contract. Exclusion and limitation clauses are a common feature of commercial contracts, and contracts of carriage are no exception. It is against that background, rather than a desire to provide remedies to enable all losses to be compensated, that the Convention must be judged. It was not designed to provide remedies against the carrier to enable all losses to be compensated. It was designed instead to define those situations in which compensation was to be available. So it set out the limits of liability and the conditions under which claims to establish that liability, if disputed, were to be made. A balance was struck, in the interests of certainty and uniformity.23

The ruling that the Convention provides the sole remedy, to the exclusion of rights of action derived from domestic law, has also been supported by case law of the United States Supreme Court.24 [23.90] However, in Magnus v South Pacific Air Motive Pty Ltd,25 Wilcox J of the Federal Court of Australia suggested that the position might be different in relation to domestic air flights, which in Australia are regulated by Pt IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), which enacted a scheme similar to the Warsaw Convention to govern domestic air carriage. South Pacific’s aircraft had been chartered to carry the Scots College school band from Sydney to Norfolk Island. Shortly after take-off it ditched in Botany Bay. A representative proceeding was brought in the Federal Court. Some of the group members were passengers on board the aircraft, others were parents who had been to the airport to see the students off and saw the plane come down. The action was brought under s 52 of the Trade Practices Act 1974 (Cth), claiming, inter alia, damages for nervous shock. The respondent applied for summary dismissal of the proceedings on the ground that any such actions were precluded by s 36 of the 1959 Act, which provided that the liability of the carrier was in substitution for any civil liability of the carrier under any other law in respect of the injury. An action under Pt IV could not succeed because it was not commenced within the two-year time limit imposed by s 34. [23.100] Wilcox J suggested that the reasoning in Sidhu v British Airways plc26 was not directly applicable to Australian domestic carriage because of some important differences in wording. He said of s 36, the equivalent of Art 24(2) of the Convention: 23

Sidhu v British Airways plc [1997] AC 430 at 453.

24

See El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999). Canadian courts have also confirmed that recourse under the Convention is the exclusive remedy: Waltons v Mytravel Canada Holdings Inc 2006 SKQB 231; Simard v Air Canada 2007 QCCS 4452. In the latter case, Mayraud J noted that the replacement of the Warsaw Convention by the Montreal Convention made no difference in this regard, citing Ehrlich v American Airlines Inc 360 F 3d 366 (2004).

25

Magnus v South Pacific Air Motive Pty Ltd (1997) 78 FCR 456.

26

Sidhu v British Airways plc [1997] AC 430.

[23.110]

23 Air Travel

833

That section does not speak of “cases covered by” another provision but “liability … under this Part in respect of personal injury suffered by a passenger” being “in substitution for any civil liability … under any other law in respect of the injury (emphasis added)”. That is, liability under Part IV in respect of personal injury (whatever that may mean) is substituted for liability under another law in respect of the same injury. If personal injury is confined to bodily injury, as distinct from psychological injury, the exclusion is similarly confined. The result is different to that agreed in Sidhu to occur under the Convention.27

Since claims for psychological injury did not constitute “personal injury” for this purpose — a holding consistent with the orthodox interpretation of Art 1728 — it followed that the applicants were free to bring their actions under the Trade Practices Act 1974 (Cth). [23.110] On appeal, the Full Federal Court took a rather different view.29 In one respect, at least, its decision was consistent with that of Wilcox J, in that it adopted the principle that the position in relation to domestic air flights may be different from that relating to international carriage. It held that the reference to “personal injury” rather than “bodily injury” disclosed an intention to include psychological injury claims.30 However, consistently with Sidhu v British Airways plc,31 the court held that Pt IV provided the applicants’ only remedy. Psychological injury claims could be brought under Pt IV, but not otherwise. Since the applicants were out of time under Pt IV, their actions failed. Beaumont J found no need to deal with the point at length, simply saying that Sidhu dealt with the point squarely and Lord Hope’s reasoning was convincing.32 Sackville J also relied mainly on Lord Hope, whose judgment he quoted at length.33 The court did not explore the differences in wording referred to by Wilcox J, but it appeared that the issue had been settled, so far as Australian law was concerned, unless on some future occasion the matter was reopened by the High Court.34

27

Magnus v South Pacific Air Motive Pty Ltd (1997) 78 FCR 456 at 468. “Psychological injury” was the term preferred by Wilcox J.

28

See [23.120]–[23.280].

29

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

30

See [23.170]–[23.180].

31

Sidhu v British Airways plc [1997] AC 430.

32

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 317.

33

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 336–338.

34

However, it was the legislature that acted. In 2012 the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) was amended to bring the position as regards domestic carriage back into line with the Convention: see [23.290].

834

Part IV: Relationship Cases

[23.120]

CLAIMS BY PASSENGERS: THE MEANING OF “BODILY INJURY” The Warsaw Convention [23.120] Lord Hope in Sidhu v British Airways plc35 did not have to decide the meaning of the words “bodily injury” in Art 17. It was accepted by the parties that psychological damage did not fall within the scope of “bodily injury” for this purpose, and there was also the question whether the damage was caused by an “accident”. During the course of argument in the House of Lords it was suggested that “bodily injury” ought now to be construed as including psychological damage, especially if supported by medical evidence as to its effects, but Lord Hope said that the point did not arise for decision, was not fully argued, and he preferred to express no opinion on it.36 [23.130] This point did arise directly in the first of the Australian decisions, Kotsambasis v Singapore Airlines Ltd.37 The plaintiff, who had been visiting her mother, boarded a flight in Athens that would bring her home to Sydney. Shortly after take-off, she was leaning forward in her seat when a sudden jolt threw her backwards. Other passengers were screaming because they could see smoke issuing from the starboard engine, which had caught fire, and it was announced that they would be returning to the terminal. The judge accepted evidence that this caused the plaintiff a severe fright, and also that she suffered a back injury in the terminal as a result of having to carry two heavy bags. The plaintiff sued the defendant under Art 17. At first instance, damages were awarded for psychological injuries38 resulting from the fright, but not for the back injury because it had not been incurred “in the course of embarking or disembarking”. The plaintiff appealed, unwisely as it turned out. The New South Wales Court of Appeal dismissed the appeal in respect of the back injury and reversed the initial decision that she was entitled to recover for psychological damage. Meagher and Stein JJA, who delivered the two main judgments, agreed that “bodily injury” in Art 17 could not include psychological injury. Meagher JA pointed out that though this term as used in English and Australian legislation had been held to include psychological injury,39 this could not guide the interpretation of the same phrase as used in an international agreement. As Eastern Airlines Inc v Floyd40 had confirmed, the proper approach was to inquire what the term was intended to mean in 1929 when the Convention was entered into. On this approach, “bodily injury” was not intended to include and on a proper construction of the Convention did not include purely 35

Sidhu v British Airways plc [1997] AC 430.

36

Sidhu v British Airways plc [1997] AC 430 at 441.

37

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

38

Again, this is the term that is used throughout the judgments in this case.

39

See [5.400].

40

Eastern Airlines Inc v Floyd 499 US 530 (1991).

[23.150]

23 Air Travel

835

psychological injury. Stein JA added that reliance on Daddon v Air France,41 which had reached the opposite conclusion, was misconceived because it had construed the Convention in the light of post-1929 developments. [23.140] The first instance judge in Kotsambasis v Singapore Airlines Ltd42 had relied on the decision of another first instance judge, Ireland J, in another Australian case, American Airlines Inc v Georgeopoulos.43 The plaintiffs in this case, husband and wife, brought an action in the New South Wales Local Court under Art 17, claiming damages in respect of injuries resulting from an incident on a flight from Sydney to Hawaii. The magistrate gave judgment for the defendant but stated a case for the Supreme Court. The stated case was heard by Ireland J, who held that on the basis of the English and Australian cases on “nervous shock”, it was to be regarded as a bodily injury. He therefore remitted the case to the magistrate to be determined in accordance with his decision. The airline appealed against the decision of Ireland J to the New South Wales Court of Appeal, which held that the stated case procedure that had been adopted was inappropriate because it did not contain a statement of all the facts that dictated the magistrate’s decision. It was essential to have a finding about the nature of the injury suffered, because without such a finding it would be impossible to decide whether either plaintiff had suffered “bodily injury”. In the words of Sheller JA (with whom Clarke and Simos JJ agreed), “Nervous shock as a condition or a cause of a condition for which a defendant may be liable in negligence describes a non-impact injury which may or may not give rise to body tissue alteration.” The Court of Appeal remitted the case to the magistrate with a direction to hear the evidence, make findings of fact, amend the stated case and return it to the Court of Appeal. Though in this first hearing of the case the Court of Appeal did not have to make findings as to the proper interpretation of Art 17, the clear indication from Sheller JA’s judgment is that the approach in Eastern Airlines Inc v Floyd44 was considered correct and that in Daddon v Air France45 flawed. The New South Wales Court of Appeal’s later decision in Kotsambasis in effect overruled Ireland J’s decision in the light of the criticism expressed in the first Court of Appeal hearing in Georgeopoulos. [23.150] The magistrate made findings as directed by the New South Wales Court of Appeal. He found that both plaintiffs had suffered post-traumatic stress disorder, and also that the wife had suffered unrelated bruising to her hip as a result of other passengers pushing and shoving when making their way to the front of the aircraft. The 41

Daddon v Air France (1984) 1 S & B Av R VII/141.

42

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

43

American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 26 September 1996). 44

Eastern Airlines Inc v Floyd 499 US 530 (1991).

45

Daddon v Air France (1984) 1 S & B Av R VII/141.

836

Part IV: Relationship Cases

[23.150]

post-traumatic stress disorder did not cause or result in any physical or bodily injury, or any structural alteration to bodily tissues. The adjourned appeal was then resumed, and the Court of Appeal now had to give a ruling on the meaning of “bodily injury”.46 In line with the views expressed obiter in the previous hearing, and its decision in Kotsambasis v Singapore Airlines Ltd,47 it allowed the appeal against the decision of Ireland J and held that “bodily injury” did not include nervous shock or mental distress. Counsel for the appellants had attempted to rely on the fact that in Eastern Airlines Inc v Floyd48 the Supreme Court had said that the respondents in that case did not allege physical injury or physical manifestation of injury. He argued that in the present case the magistrate had found that Mr Georgeopoulos had broken into a cold sweat, and that this was a physical manifestation of the injury. He relied also on the later case of Re Aircraft Disaster near Roselawn, Indiana on October 31, 1994,49 where actions for pre-impact fear were brought on behalf of passengers killed in an air crash; the judge had said that the crash caused the passengers to sustain physical injuries (and death) in addition to their pre-impact fears, and so the case was said to be one of psychic injuries accompanied by physical injuries and hence not governed by Floyd. The proposition counsel drew from this was that if in consequence of the accident there was physical injury or manifestation of physical injury, such as the bruising to Mrs Georgeopoulos’s hip, the requirements of Art 17 were satisfied, even though the physical injury was not causative of or caused by psychological injury. Sheller JA held that Art 17 did not permit such an interpretation: In the present cases, the accident caused a mild post-traumatic stress disorder. But the damage must also be sustained, that is to say experienced or suffered, “in the event of”, relevantly, bodily injury suffered by the passenger. This is the damage for which the carrier is liable. I do not think Article 17 means that if the passenger died or suffered bodily injury, the carrier is liable for any damage caused by the accident if the damage was not the result of the death or bodily injury. Nor do I think the US Supreme Court suggested otherwise. The question which the US Supreme Court did not decide was whether if the passenger suffered bodily injury, the passenger could recover damages for psychic injuries which flowed from the bodily injury, even though not entitled to damages for psychic injuries if there was no bodily injury. At 544 the US Supreme Court said: “Two explanations commonly are offered for why the subject of mental injuries never arose during the Convention proceedings: (1) many jurisdictions did not recognise recovery for mental injury at that time, or (2) the drafters simply could not contemplate a psychic injury unaccompanied by a physical injury.” In my respectful opinion, consistent with this it could not be suggested that if a passenger was shocked by the fear of imminent death in a plane crash and thereafter injured her hip in obeying a direction to move to the front of the 46

American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 5 August 1998).

47

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

48

Eastern Airlines Inc v Floyd 499 US 530 (1991) at 552–553.

49

Re Aircraft Disaster near Roselawn, Indiana on October 31, 1994 954 F Supp 175 (1997).

[23.170]

23 Air Travel

837

aircraft, she would be able to recover for her mental injuries, but if she had not injured her hip, such recovery would have been denied. I think the US Supreme Court, when it used the word “accompanied”, had in mind to leave open the question whether the carrier was liable for mental injuries, consequent upon physical injuries, or emotional shock which had resulted in organic damage such as a coronary thrombosis or stroke.50

[23.160] Thus far, the Australian courts had maintained a consistent stance on the interpretation of Art 17. However, in South Pacific Air Motive Pty Ltd v Magnus,51 the Full Court of the Federal Court of Australia suggested that s 28 of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth), the domestic equivalent of Art 17, might bear a different meaning. As already noted, after an aircraft carrying a school band ditched in Botany Bay shortly after take-off, passengers and others sued under s 52 of the Trade Practices Act 1974 (Cth), claiming, inter alia, damages for nervous shock, and the respondents applied for summary dismissal on the ground that the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) was the applicants’ only remedy. At first instance, Wilcox J adopted an orthodox approach to the interpretation of s 28, holding that psychological injuries were not included within its scope, but rejected the argument that the 1959 Act was the sole remedy, leaving the applicants free to pursue their action under the Trade Practices Act. The wording of s 28 was different in one important respect, providing that the carrier would be liable for damage sustained by reason of the death of the passenger or any personal injury (rather than bodily injury) suffered by the passenger resulting from an accident that took place on board the aircraft or in the course of embarking or disembarking. Wilcox J said that though in some contexts the words “personal injury” were apt to include nervous shock, in this context s 28 had to be interpreted in the same way as Art 17, adopting the reasoning of the United States Supreme Court in Eastern Airlines Inc v Floyd52 that Art 17 did not allow recovery for purely mental injury. However, on appeal the Full Court took a different view, ruling that the reference to “personal injury” rather than “bodily injury” in s 28 meant that the section was not confined to physical injuries but also included psychological injuries.53 Since the applicants’ claim was within the scope of s 28, and this was the only remedy available to them,54 their claim was defeated by the two-year time limit in the 1959 Act. [23.170] Beaumont J’s conclusion that s 28 covered psychological injuries was arrived at by two routes. He held that on the ordinary meaning of the words mental injuries were a form of “personal injury”. Adopting a purposive rather than a literal interpretation produced the 50

American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 5 August 1998).

51

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

52

Eastern Airlines Inc v Floyd 499 US 530 (1991).

53

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

54

See [23.110].

838

Part IV: Relationship Cases

[23.180]

same result. There was no reason to adopt Eastern Airlines Inc v Floyd55 as decisive on the meaning of the provision: when the New South Wales Court of Appeal in Kotsambasis v Singapore Airlines Ltd56 had followed Floyd in the interpretation of the Convention, it had done so for reasons of international comity, at the same time acknowledging the trend in Anglo-Australian law to interpret “bodily injury” as including psychological or mental injuries.57 This was the interpretation that should now be adopted: So far as Anglo-Australian municipal law is concerned, the use of “personal” rather than “bodily” would reflect the modern approach of our courts to the tort of nervous shock. … In my opinion, the reference to “personal”, rather than “bodily”, injury in s 28 is an indication that it was intended to pick up all kinds of injury to the person, whether strictly speaking of a “bodily” kind, as distinct from “mental”, or not.58

[23.180] Sackville J reached a similar conclusion. He emphasised that the issue depended on the construction of the 1959 Act and not the Convention, and that the Act established a regime for air travel outside the Convention and did not simply incorporate the Convention into Australian law, but contained provisions that had no precise equivalent in the Convention. Though Art 17 excluded purely psychological injury sustained by a passenger, s 28 did not. His Honour justified this conclusion on a number of grounds. When Parliament decided to use the phrase “personal injury”, liability for nervous shock was well recognised, both in the cases and in the Law Reform (Miscellaneous Provisions) Act 1944 (NSW); by 1959 commentators had pointed out the difficulties of the term “bodily injury” as used in the Convention, and Parliament had deliberately used a different expression; referring to extrinsic materials, such an interpretation was consistent with the statements made in the second reading speech; and the suggested construction produced a regime that gave effect to the objectives articulated by the Minister for Civil Aviation, namely to compensate passengers on domestic flights who suffered injury without the need to establish fault on the part of the carrier, preventing the contractor from contracting out but limiting the carrier’s liability and preventing the passenger from utilising any other remedy, so the carrier’s exposure to liability for insurance purposes had fixed limits.59 [23.190] In the United Kingdom, the interpretation of the words “bodily injury” in Art 17 has been considered in two leading cases, one Scottish 55

Eastern Airlines Inc v Floyd 499 US 530 (1991).

56

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

57

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 112 per Meagher JA.

58

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at 316–317 per Beaumont J.

59

Following this decision, the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) was amended in 2012 to bring the position as regards domestic carriage back into line with the Convention: see [23.290].

[23.200]

23 Air Travel

839

and the other English. The appeals were ultimately heard together by the House of Lords. The Scottish case was King v Bristow Helicopters Ltd,60 which involved three pursuers who were passengers on helicopters operated by the defenders serving North Sea oil rigs. Each helicopter made a sudden descent: in the first two cases a crash was averted at the last minute, but the helicopter in which King was a passenger landed heavily on the helideck. All three pursuers claimed damages for resulting post-traumatic stress disorder, and King also claimed that the crash contributed to the onset of peptic ulcer disease. Each claim was brought under Art 17 of the Convention as applied by the Carriage by Air Acts (Application of Provisions) Order 1967 to carriage by air in the United Kingdom other than carriage by air to which the Convention applied. The Lord Ordinary, Lord Philip, adopted the conventional interpretation of Art 17, following the decisions of the United States Supreme Court in Eastern Airlines Inc v Floyd61 and the New South Wales Court of Appeal in Kotsambasis v Singapore Airlines Ltd.62 Accordingly, he dismissed the first two actions.63 However, in King’s case a proof before answer was allowed, limited to the averments relating to the peptic ulcer disease. Lord Philip ruled that Art 17 should be interpreted as allowing recovery for physical injuries, whether they were caused by direct impact or as a consequence of shock or mental injury. [23.200] When the case came before the First Division of the Court of Session (King having reclaimed against the exclusion of his claim for post-traumatic stress disorder, and the defenders having cross-reclaimed arguing that a peptic ulcer triggered by psychiatric injury was not a “bodily injury”), the majority refused to adopt the conventional interpretation of Art 17. Lord Rodger of Earlsferry and Lord Cameron of Lochbroom held that purely psychological injuries were included. The court therefore allowed the appeal of King and dismissed that of Bristow Helicopters.64 This and South Pacific Air Motive Pty Ltd v Magnus65 are the only appellate decisions that support a more extensive interpretation of Art 17. It is probably significant that on both occasions the court was dealing with non-international carriage, but there is still an important difference: in Magnus the Australian legislation was only generally based on the Convention, and incorporated important changes of wording, such as the replacement of “bodily injury” by “personal injury”; in King v Bristow Helicopters Ltd66 the court was still dealing with the wording of the Convention as incorporated into Pt III of Sch 1 of the 1967 Order. 60

King v Bristow Helicopters Ltd 2001 SC 54.

61

Eastern Airlines Inc v Floyd 499 US 530 (1991).

62

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

63

Hammond v Bristow Helicopters Ltd [1998] ScotCS 80.

64

King v Bristow Helicopters Ltd 2001 SC 54.

65

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

66

King v Bristow Helicopters Ltd 2001 SC 54.

840

Part IV: Relationship Cases

[23.210]

[23.210] The majority judges both considered the issue at some length. The Lord President (Lord Rodger) commented that although it was well established that a purposive interpretation should be employed, it was difficult to see how the purposes the signatories had in mind were of assistance in deciding which meaning of “bodily injury” should be adopted. The Convention did not impose a totally uniform system: for example, the determination of damages and the permissible heads of damage was left to the domestic legal system. In his view, it was not correct to say that the signatories had inserted the word “bodily” for the purpose of excluding psychological as opposed to bodily injury.67 Referring to the equivalent words in the French text, he said that the term “corporelle” showed that Art 17 was not intended to cover every kind of “lésion”. Its main purpose was to exclude pure patrimonial injury, which meant that it covered all forms of personal injury, including psychological injury. He found support for this approach in various German sources. Lord Cameron of Lochbroom could find nothing in the language of Art 17 that excluded psychiatric injury from the ambit of “bodily injury”. He said that the state of medical knowledge in 1929 cannot have been such that the delegates to the Convention were ignorant of the possible shocking effect of air accidents on passengers, and that even if at that time only a few countries recognised that psychiatric illness gave rise to liability there would need to be some evidence that those countries had consented to the restriction of the scope of Art 17 before this fact could be significant. In contrast to the United States Supreme Court in Eastern Airlines Inc v Floyd,68 he found that the language of Art 17 in the context of the Convention, with the assistance of the history of the negotiations and subsequent interpretations, suggested that the intent of the signatories was not to restrict Art 17 as narrowly as the conventional interpretation suggested. [23.220] Whereas the majority judgments are marked by a willingness to go back to first principles and re-examine the materials with a fresh eye, the dissenting judgment of Lord Reed affirms the large body of principle and authority built up in the previous decisions. His Lordship expressed a preference for a more limited construction, relying in particular on the treatment of psychiatric injury in the legal systems of the signatory countries, the purpose of the Convention and the practical implications. In his view, “bodily injury” tended to suggest physiological damage to the structure of the body. It was unlikely that the signatories in 1929 had a common intention to include psychiatric injury, and the cases endorsing the Eastern Airlines Inc v Floyd69 approach showed that it worked well in practice. The judgments in the Court of Session show that the complexity of the sources and the issues involved offered considerable scope for differences of view. 67

Lord Rodger, like most other judges in the air transport cases, adopted the term “psychological injury”: King v Bristow Helicopters Ltd 2001 SC 54 at 57.

68

Eastern Airlines Inc v Floyd 499 US 530 (1991).

69

Eastern Airlines Inc v Floyd 499 US 530 (1991).

[23.230]

23 Air Travel

841

[23.230] In England, the interpretation of Art 17 was in issue before the Court of Appeal in Morris v KLM Royal Dutch Airlines Ltd.70 Kelly Morris, aged 15, was flying unaccompanied from Kuala Lumpur to Amsterdam. She fell asleep, and awoke to discover the man next to her caressing her thigh. She sustained no physical injury but was distressed, and was later diagnosed as suffering from clinical depression. She sued the airline for damages under Art 17. The case was heard in the Bury County Court, which found for the plaintiff on the issue of liability, following the decision of the Court of Session in King v Bristow Helicopters Ltd.71 The defendant appealed to the Court of Appeal, contending that an indecent assault was not an “accident” in the terms of Art 17, since it was not related to the operation of the aircraft or characteristic of air travel, and that “bodily injury” was confined to physical injury. The Court of Appeal allowed the appeal. Lord Phillips of Worth Matravers MR, giving the judgment of the court, found for Miss Morris on the first issue. He accepted that the occurrence constituted an “accident” for the purposes of Art 17, since it exemplified a special risk characteristic of air travel: Judges do not travel exclusively in first-class seats and can take judicial notice of the fact that those who travel economy have to accept relatively cramped conditions which bring them into close proximity with their neighbours. Circumstances are rare that result in a 15-year old girl settling down to sleep in close proximity to an unknown man.72

“Accident” in Art 17 was used to refer to the cause of the injury, endorsing the “natural and sensible”73 definition adopted by the United States Supreme Court in Air France v Saks.74 There was nothing in this case that required the accident to have some relationship with the operation of the aircraft or carriage by air.75 However, on the second issue, Lord Phillips MR disagreed with the decision of the majority in

70

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100.

71

King v Bristow Helicopters Ltd 2001 SC 54.

72

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [29].

73

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [24].

74

Air France v Saks 470 US 392 (1985). Air France v Saks has been applied in cases holding that failure to warn of the risk of deep vein thrombosis is not an “accident” under Art 17: Povey v Qantas Airways Ltd (2005) 223 CLR 189; Re Deep Vein Thrombosis and Air Travel Group Litigation [2006] 1 AC 495. 75

Lord Phillips MR noted that following Air France v Saks 470 US 392 (1985) there had been a debate in the case law whether the accident had to have some relationship with air travel. In Wallace v Korean Air 214 F 3d 293 (2000), the United States Court of Appeal for the Second Circuit observed that “this Talmudic debate is academic in the unique circumstances of this case”: the man in the seat next to Ms Wallace, after the lights were turned off and while she was asleep, had unbuttoned her shorts and squeezed his hand into her underpants. The court was satisfied that the assault was, in the language of Saks, “an unexpected or unusual event or happening that [was] external to the passenger” (at 405), and that it constituted an accident for the purposes of Art 17: Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [27].

842

Part IV: Relationship Cases

[23.240]

King that “bodily injury” included mental injury.76 Given the ambiguity in the natural meaning of this expression, it was appropriate to adopt a purposive interpretation. In contrast to the Court of Session, he did not find the travaux préparatoires of assistance, and there was no settled practice about how the Convention was to be interpreted. However, the object of the Convention was to bring about a degree of uniformity in relation to the legal liability of air carriers, buttressed by the fact that the Convention defined exclusively the events that could give rise to liability.77 The court disagreed with various propositions drawn from the majority judgments in King, holding that the orthodox interpretation of Eastern Airlines Inc v Floyd78 was preferable because it was more consistent with the approved approach to the interpretation of conventions, which directed attention to the position at the time of signature, rather than subsequent changes. It was significant that no mention had been made of liability for mental injury during the course of the negotiations leading up to the Convention; that there had been no claim under Art 17 for mental injury until the 1970s; and that in 1929 there was a division between the countries that recognised liability for mental injury and those that did not: The lack of evidence of claims for causing mental injury, unrelated to death or physical injury, suggests that such claims were unknown in 1929. We do not find this surprising. Only a decade or so earlier those suffering severe cases of what we would recognise as post-traumatic stress disorder as a result of trench warfare were being condemned as “lacking in moral fibre”, if they were not being shot for desertion.79

The court concluded that the drafters of the Convention intended the words “lésion corporelle/bodily injury” to have their natural meaning — physical injury. It was not intended to extend to a different type of harm, mental injury. [23.240] As a result of this case, the position was that the intermediate appellate courts in Scotland and England had espoused different views as to the meaning of “bodily injury” in Art 17. For the purposes of an appeal to the House of Lords, the two proceedings were combined.80 Kelly Morris appealed against the dismissal of her claim, and Bristow Helicopters appealed against the decision of the Court of Session allowing Mr King to recover for psychiatric injury as well as his peptic ulcer disease. There was no appeal on the issue of accident in Morris v KLM Royal Dutch Airlines Ltd,81 or on the ability to recover for the peptic ulcer 76

“Mental injury”, rather than psychological or psychiatric injury, was the term preferred by Lord Phillips: see eg Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [35].

77

Sidhu v British Airways plc [1997] AC 430.

78

Eastern Airlines Inc v Floyd 499 US 530 (1991).

79

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100 at [100].

80

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628, noted by K Stanton (2003) 11 Tort L Rev 6. See AY Anwar, “A Body Blow for Mental Injury Claims” 2002 SLT 157. 81

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100.

[23.250]

23 Air Travel

843

disease in King v Bristow Helicopters Ltd.82 The House of Lords judgments were complicated by a new issue that emerged in argument before it: based on the decision of the United States District Court for the District of Montana in Weaver v Delta Airlines Inc,83 it was argued that if there was evidence that psychiatric injury or illness involved physical changes to the body this could amount to “bodily injury”. The House of Lords was divided on this question. Lords Nicholls of Birkenhead, Mackay of Clashfern and Hobhouse of Woodborough were prepared to accept that psychiatric disorders arising from injury to the brain or the nervous system could amount to “bodily injury”, while Lords Steyn and Hope of Craighead were not prepared to accept this argument.84 This issue apart, all members of the House were agreed that “bodily injury” could include the physical manifestations of mental injury (such as Mr King’s peptic ulcer disease) but did not cover mental injury or illness that lacked a physical cause or origin. Miss Morris’s appeal was therefore dismissed, and that of Bristow Helicopters allowed. [23.250] Of the more conservative judgments, Lord Steyn’s views closely paralleled those of Lord Phillips in the English Court of Appeal. He attached importance to the fact that in 1929 there was no compensation for mere mental injury in most of the participating states, and said that if it had been intended to cover mental injury this would have been expressly stated. Like Lord Phillips, he was impressed by the fact that there had been no mental injury claims until the 1970s. He also pointed to amendments to the French text of the convention on carriage by rail that in his view supported the fact that in 1929 there had been no intention to cover purely mental injury. Cases like Daddon v Air France85 had been wrong to rely on post-1929 changes; the conventional principles of interpretation relied on in Eastern Airlines Inc v Floyd86 and other cases such as Kotsambasis v Singapore Airlines Ltd87 led to the conclusion that mental injury was not included. Lord Hope of Craighead, having conducted a detailed examination of domestic jurisprudence on the meaning of “bodily injury”,88 the Convention, the principles of interpretation, the natural meaning of the words in Art 17, the travaux préparatoires and the decisions, expressed agreement with the dissenting judgment of Lord Reed in the Court of Session. He said that it was wrong to focus on the state of medical knowledge in 1929, since there was no reason to think that the parties intended no account to be taken of subsequent scientific developments. Instead he stressed the fact that the Convention was a compromise under which the parties accepted strict 82

King v Bristow Helicopters Ltd 2001 SC 54.

83

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

84

See [5.410]–[5.450].

85

Daddon v Air France (1984) 1 S & B Av R VII/141.

86

Eastern Airlines Inc v Floyd 499 US 530 (1991).

87

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

88

See [5.400].

844

Part IV: Relationship Cases

[23.260]

liability for carriers, subject to a strict time limit and other limitations, in return for the giving up of other claims. [23.260] Lord Hobhouse of Woodborough, giving the other major judgment, was less conservative in his approach, but apart from the Weaver v Delta Airlines Inc89 issue reached a similar result. He pointed out that each side had preferred the extreme form of its argument, and could find support for its position in one or more of the judgments in the courts below; however, he identified no fewer than eight possible positions that could be taken. This was an unsatisfactory situation: The diversity of the judicial statements within the United Kingdom and to some extent elsewhere all expressed in relation to the same two simple English words bodily injury as used in art 17, disclose a legal confusion and even, it may be thought, a failure of method.90

Three factors, he thought, explained this state of affairs. One was the adoption of a subjective approach to the construction of the words in question and attaching too much emphasis to considerations of national law and historical considerations. For example, it was irrelevant to say that there had been no claims for mental injury until the 1970s. Instead, the proper approach was to give the words an objective interpretation. A second factor was the assumption that developments in medical science after 1929 were irrelevant. The majority judgments in the Court of Session had shown more awareness of such issues than the English Court of Appeal. The third factor was the misuse of language. He was particularly critical of the Court of Appeal’s use of the term “mental injury” — “a phrase which does not occur in the convention … and which is devoid of actual meaning”.91 He expressed his disagreement with the reasoning and conclusion of the Court of Appeal, and his approval of much of the language and reasoning in the majority judgments in the Court of Session. In his view, “injury” meant a condition departing from the normal which was not a mere transitory discomfort or inconvenience and which, while not permanent or incurable, had in conjunction with its degree of seriousness a sufficient duration. “Bodily” simply meant pertaining to the body. Neither visibility nor palpability nor externality were required. Thus, bodily injury simply and unambiguously means a change in some part or parts of the body of the passenger which is sufficiently serious to be described as an injury. It does not include mere emotional upset such as fear, distress, grief or mental anguish. … A psychiatric illness may often be evidence of a bodily injury or the description of a condition which includes bodily injury. But the passenger must be prepared to prove this, not just prove a psychiatric illness without evidence of its significance for the existence of a bodily injury.92

89

Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999).

90

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [138].

91

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [158].

92

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [142].

[23.280]

23 Air Travel

845

In the ultimate result, the Court of Session’s decision in King v Bristow Helicopters Ltd93 had to be reversed because the majority had adopted the extreme view of Daddon v Air France,94 with which Lord Hobhouse disagreed. The English Court of Appeal in Morris v KLM Royal Dutch Airlines Ltd95 had adopted the wrong test and their reading of Art 17 should not be allowed to stand. However, since Kelly Morris could not show “bodily injury” according to the interpretation favoured by Lord Hobhouse, her appeal had to fail. [23.270] A few months later, a Canadian case once again raised the issue of the proper interpretation of Art 17. In Chau v Delta Air Lines Inc96 the plaintiffs boarded a Delta flight in Georgia to return home to Toronto. A dispute arose between the plaintiffs and another passenger about where their daughter was going to sit, and this escalated to the point where the plaintiffs were told to leave the plane. Their claim for psychiatric injury was rejected on the twin grounds that there was no “bodily injury” within Art 17 as interpreted in cases such as Eastern Airlines Inc v Floyd97 and Morris v KLM Royal Dutch Airlines Ltd,98 and that the injuries that the plaintiffs claimed to have sustained did not arise from an “accident”.99 [23.280] Prior to the House of Lords decision in Morris v KLM Royal Dutch Airlines Ltd,100 the law on the interpretation of Art 17 was unsatisfactory, at least as regards the United Kingdom authorities, with the English and Scottish appeal courts adopting “irreconcilable and opposing decisions”101 as to the meaning of Art 17. The House of Lords judgments restored the position and reaffirmed a general trend in interpretation consistent with the parent decision of the United States Supreme Court in Eastern Airlines Inc v Floyd102 and the Australian cases such as Kotsambasis v Singapore Airlines Ltd.103 It would be idle to suggest that all the problems are now resolved: Lord Hobhouse’s judgment in Morris is testimony to the number of possible permutations of meaning 93

King v Bristow Helicopters Ltd 2001 SC 54.

94

Daddon v Air France (1984) 1 S & B Av R VII/141.

95

Morris v KLM Royal Dutch Airlines Ltd [2002] QB 100.

96

Chau v Delta Air Lines Inc 2003 CanLII 41999.

97

Eastern Airlines Inc v Floyd 499 US 530 (1991).

98

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

99

Note also Nunes v Air Transat AT Inc [2003] OJ No 2006 (interpretation of Art 17 discussed in context of request for certificate under Class Proceedings Act, SO 1992 c 6); Wettlaufer v Air Transat AT Inc 2013 BCSC 1245 (not a psychiatric injury case — the plaintiff was injured by an unsecured food cart striking his seat during touchdown — but Funt J accepted that “bodily injury” under the Montreal Convention had to be interpreted in the same way as under the Warsaw Convention).

100

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

101

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [131] per Lord Hobhouse of Woodborough.

102

Eastern Airlines Inc v Floyd 499 US 530 (1991).

103

Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110.

846

Part IV: Relationship Cases

[23.290]

that exist, and the importance of clear thinking in the use of language and techniques of interpretation. However, the general body of case law on Art 17 appears to confirm that, due to the special considerations that led the contracting parties to agree to the terms of the Warsaw Convention, psychiatric injury that gives rise to a claim at common law finds no remedy under Art 17 in a claim by a passenger. Some further evidence of bodily injury is required.

The Montreal Convention [23.290] As noted at [23.30], Art 17 was retained in the Montreal Convention without any alteration. However, consequential amendments to the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) created some problems. The Act was amended in 2008 to insert provisions dealing with carriage to which the Montreal Convention applies,104 and one of the amendments, s 9E, provided that “the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury”. The equivalent provision dealing with other carriage to which the Act applied, s 28, also referred to personal rather than bodily injury. “Bodily injury” was substituted for “personal injury” in s 28 in 2012, but s 9E remained unamended. Section 13, the equivalent section in Pt II of the Act, dealing with carriage to which the original Warsaw Convention and the Hague Protocol applied, also referred to personal rather than bodily injury and had remained unamended. [23.300] These provisions were in issue in the important recent case of Casey v Pel-Air Aviation Pty Ltd.105 Karen Casey was a nurse employed by Careflight (NSW) Ltd. Ms Casey and a doctor were sent by Careflight from Sydney to Samoa to help transport a seriously ill passenger from Samoa to Melbourne. The plane was operated by the defendant, Pel-Air. On the flight to Melbourne the plane was scheduled to land at Norfolk Island to refuel. Due to the negligence of the pilot, it crashed while attempting to land and Ms Casey was seriously injured. In addition to her physical injuries, Ms Casey was diagnosed as suffering from a complex pain syndrome, a major depressive disorder, an anxiety disorder and post-traumatic stress disorder. She argued that all these were compensable under the Act, and Pel-Air conceded that the first three conditions had been caused by her physical injuries and could therefore be classified as bodily injuries. However, Pel-Air did not concede that the PTSD had been caused by her physical injuries, or that the crash had caused any physical injury to her brain of which the PTSD was a manifestation. If Ms Casey were not able to recover for the PTSD, this would have a major effect on the level of damages awarded to her. 104

Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth).

105

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220.

[23.330]

23 Air Travel

847

[23.310] On behalf of Ms Casey, it was argued that s 9E provided for a departure from the compensation scheme established by the Montreal Convention by granting passengers wider rights to compensation in respect of personal injury than available under the Convention, which restricted their rights to compensation to “bodily injury”. It was argued that while s 28 had been amended in 2012 to bring it into line with the Convention, s 9E (and also s 13) had remained unamended. Schmidt J concluded that the construction of the section contended for by the plaintiff had to be rejected. Noting that she was obliged by statute to adopt a purposive construction, her Honour said: In this case, that obligation supports the conclusion that by enacting s 9E, the Parliament intended to confine carriers’ liability for personal injury to the compensation provided by the scheme created by the Montreal Convention, for compensation for damage sustained in case of “bodily injury of a passenger”, provided in Art 17. That liability is “in substitution for any civil liability of the carrier under any other law in respect of the injury”.106

This conclusion was also supported by s 9E itself (which did not expressly identify any departure from the scheme of the Convention) and by the legislative history of the Act. Section 28 had been amended in 2012 following the decision of the Full Federal Court in South Pacific Air Motive v Magnus,107 to bring the position regarding domestic air flights back into conformity with the Convention. Section 9E had not required amendment because passengers injured in circumstances to which the Convention applied could only pursue carriers for “bodily injury” suffered. The judge’s conclusion was also supported by the major Australian decisions considered at [23.130]–[23.150].108 [23.320] However, this was not the end of the line for Ms Casey. With the aid of the psychiatric evidence, Schmidt J went on to hold that PTSD was a bodily injury because it was a consequence of damage to her brain and other bodily processes. This innovative and potentially far-reaching development has been considered elsewhere.109

CLAIMS BY PERSONS OTHER THAN PASSENGERS [23.330] Does Art 17 have any effect on psychiatric injury claims by third parties? Magnus v South Pacific Air Motive Pty Ltd110 suggests that it does not. It will be recalled that among the representative plaintiffs in this 106

Casey v Pel-Air Aviation Pty Ltd (2015) Aust Torts Rep 82-220 at [64].

107

South Pacific Air Motive v Magnus (1998) 87 FCR 301.

108

American Airlines v Georgeopoulos (unreported, NSWCA, CA 40762/93, 26 September 1996); Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110; American Airlines Inc v Georgeopoulos (unreported, NSWCA, CA 40762/93, 5 August 1998). Schmidt J also noted the consideration of these decisions by the House of Lords in Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [122] per Lord Hope of Craighead, at [169]–[172] per Lord Hobhouse of Woodborough. 109

See [5.460]–[5.490].

110

Magnus v South Pacific Air Motive Pty Ltd (1997) 78 FCR 456.

848

Part IV: Relationship Cases

[23.340]

action were parents of the students on board the aircraft who had gone to Sydney Airport to farewell the Scots College school party, and shortly afterwards had seen it ditch in Botany Bay. Wilcox J rejected the defendant’s application for summary dismissal. As regards the nonpassenger plaintiffs, he said that Pt IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) had no application. Liability in nervous shock was not dependent on proof of a liability to compensate the initial victim, but involved liability for breach of an independent duty of care. There was nothing in the wording of s 28 (the Pt IV equivalent of Art 17) to suggest that it applied to anyone other than passengers. [23.340] On appeal, the Full Federal Court was divided.111 Beaumont J, dissenting on this issue, held that s 28 also covered claims by non-passengers. This was because Pt IV was intended to operate as a code, to the exclusion of other remedies, and the policy reasons for this were just as relevant notwithstanding the absence of a contract of carriage. However, the majority (Hill and Sackville JJ) took a different view, holding that non-passengers could not be given notice of the limitation of liability, and had no opportunity to insure against the risk. They were in a very different position from passengers, who could be informed of their position under the Convention by a clause on their ticket.112 [23.350] As Sackville J pointed out, at this stage of the case no findings had been made about the nature of the psychiatric injuries suffered, whether the plaintiffs witnessed the ditching of the aircraft or learnt of it later, or the relationships between the plaintiffs and those on the aircraft.113 However, in subsequent proceedings Wilcox J was asked to assess the damages sustained by three of the plaintiffs.114 All of them were parents of boys on the aircraft. Mr Magnus saw the party depart and remained on the tarmac chatting to a friend. He saw the plane take off and then lose altitude, losing sight of it behind some trees. He got in his car and drove towards the crash. Someone told him that it had “gone into the drink”, and then heard that they had recovered everyone on board, which he took to mean that there were bodies. He drove to the shores of Botany Bay, and saw his son in one of the boats. Mrs Magnus, the second 111

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

112

The majority’s decision in South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 was followed in Stephenson v Parkes Shire Council [2014] NSWSC 1758. Magnus was also followed in Cousins v Nimvale Pty Ltd [2013] WADC 175, where the parents of two young women killed in a helicopter crash claimed damages for psychiatric injury under the Civil Aviation (Carriers’ Liability) Act 1961 (WA). Staude DCJ held that Magnus (which should be followed, even though not technically binding) gave them an entitlement to claim. However, the claims were not within the scope of the indorsement on the writ, which was struck out. In Edwards v Endeavour Energy (No 4) [2013] NSWSC 1899, another case involving a helicopter crash, non-passengers (the children of the injured person) successfully claimed damages for “nervous shock” under the Civil Aviation (Carriers’ Liability) Act 1967 (NSW). 113

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301 at [326].

114

Magnus v South Pacific Air Motive Pty Ltd [2001] FCA 465.

[23.370]

23 Air Travel

849

plaintiff, was with him throughout. The third plaintiff, Dr Maxwell, did not see his son off but put him on the bus to be taken to the airport. Since he was due to fly out himself that evening, he phoned the airport to make inquiries about his flight, referring to “the DC3 to Norfolk Island”. He was told that all they could tell him was that the plane had slipped off the runway. Puzzled, he phoned the Federal Airport Corporation, who told him to contact Police Headquarters, who informed him that 24 persons had been recovered from the plane — but no one had told him that it had crashed. He decided to drive to the airport, where he met another father, who told him he should call his wife and prepare her for the worst. However, when he spoke to his wife, she told him that the school had phoned to say that the boys were safe. She thought that the plane had simply slipped from the runway, but her husband told her what had really happened. [23.360] Wilcox J concluded that all three plaintiffs were entitled to substantial damages. It was common ground that they had suffered what he described as psychological injury: the precise form of that injury, and its severity, were immaterial. Its effects were severe, but they were more severe for Mr and Mrs Magnus. Dr Maxwell’s journey to the airport to find out what was meant by the plane slipping off the runway, and the mounting anxiety that he experienced before finally discovering what had happened, were a stressful event, but this was not in the same category as the experience of Mr and Mrs Magnus in seeing the plane carrying their son descend towards the water. This difference was reflected in the damages awarded — Mr and Mrs Magnus received $25,000 each, and Dr Maxwell $15,000. Wilcox J’s approach is interesting and sensible. Instead of making arbitrary distinctions based on proximity to the occurrence, or whether the plaintiff experienced it with his or her own senses or learnt about it from others, he accepted that psychiatric injury was foreseeable to all the plaintiffs, because of their close relationship with the presumed accident victims. Everything else was of secondary importance, and differences between the experiences of the parents involved could be reflected in the award of damages. [23.370] In contrast, the Supreme Court of Tonga in Cauchi v Air Fiji & Air Pacific Ltd115 reached the conclusion that psychiatric injury claims by non-passengers could not be brought except under Art 17 of the Convention. The plaintiff and his wife were Australian citizens working in Tonga. The plaintiff’s wife was on a flight from Suva to Nadi that crashed into a mountain 10 minutes after take-off with no survivors. Her husband never received any communication from the defendant regarding the accident, but had to make his own inquiries. He travelled to Fiji but was unable to visit the crash site, and was told not to try and identify his wife’s body. However, he was shown photographs and was able to recognise his wife’s arm protruding from a gash in the fuselage, and recovered some personal items including her rings. The defendant 115

Cauchi v Air Fiji & Air Pacific Ltd [2005] TOSC 8.

850

Part IV: Relationship Cases

[23.380]

attempted to strike out his claim for psychiatric injury. The issues that arose included whether such a claim would lie under Art 17, and whether a separate common law action was possible. Though South Pacific Air Motive Pty Ltd v Magnus116 was referred to by counsel for the plaintiff, Ford J held that in view of the decisions of the House of Lords in Sidhu v British Airways plc117 and Morris v KLM Royal Dutch Airlines Ltd,118 and the purposive construction that they gave to the Convention, the minority view of Beaumont J that the Convention provided the exclusive remedy was to be preferred. [23.380] Simon J had to deal with a somewhat similar issue in Glen v Korean Airlines Co Ltd.119 The defendant’s aircraft, shortly after taking off from Stansted Airport, lost height and crashed into Hatfield Forest in Hertfordshire. The 13 claimants, who lived in the nearby village of Great Hallingbury, all witnessed the crash. They claimed damages for psychiatric injury under s 76(2) of the Civil Aviation Act 1982 (UK), which provided: [W]here material loss or damage is caused to any person or property on land or water by, or a person in, or an article, animal or person falling from, an aircraft while in flight, taking off or landing, then unless the damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.

Like Art 17, this section imposes strict liability in respect of the statutory tort that it creates. Though the Air Navigation Act 1920 (UK), in which this provision originally appeared, was enacted to give effect to a convention for regulating air navigation concluded at Paris in 1919, it also made further provision for the control and regulation of aviation, and s 76(2) was one of the additional provisions. Thus, as Simon J noted, the task before him was different from that faced by the House of Lords in Morris v KLM Royal Dutch Airlines Ltd.120 He was not construing an international convention, but dealing with a provision in a consolidating Act. [23.390] The principal issue of statutory interpretation was whether the words “loss or damage” were wide enough to include psychiatric injury. Some guidance was provided by s 105 of the Act, which said that “‘loss or damage’ includes, in relation to persons, loss of life and personal injury”. Simon J held that psychiatric injury was a form of personal injury for this purpose, and was therefore a form of damage for which recovery could be had under s 76(2). He observed that psychiatric injury was a recognised form of personal injury in 1982, and that Lord Steyn in Morris 116

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

117

Sidhu v British Airways plc [1997] AC 430.

118

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

119

Glen v Korean Airlines Co Ltd [2003] QB 1386.

120

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628.

[23.400]

23 Air Travel

851

v KLM Royal Dutch Airlines Ltd121 had drawn a distinction between the restrictive words “bodily injury” and the wider “personal injury”. The meaning of the words in the original 1920 Act was more problematic, but it was appropriate to apply the principle that statutes did not have an immutable and fixed meaning but were to be construed in the light of contemporary circumstances — a principle authoritatively stated by Lord Steyn in R v Ireland,122 another case involving psychiatric damage issues.123 [23.400] This holding meant that in the circumstances described in s 76(2), claimants could recover damages for psychiatric injury without establishing negligence or intention. However, the further issue was whether the categories of persons who could recover for such damage under s 76(2) were limited in the same way as at common law. In Magnus v South Pacific Air Motive Pty Ltd,124 Wilcox J had discussed the common law at some length, but even though the case pre-dated the High Court decision in Tame v New South Wales,125 which rejected the requirement of direct perception, it is not apparent that he felt in any way constrained by the case law from holding that plaintiffs such as Dr Maxwell, who did not see the incident but was told about it by others, were entitled to compensation. In Glen v Korean Airlines Co Ltd,126 the problem was not lack of direct perception, but the fact that the plaintiffs were mere bystanders. Simon J held that the normal rules of psychiatric injury liability applied, and that this defeated the claims of the claimants in this case: The defendant submitted (1) that, if personal injury in section 76(2) of the 1982 Act covers psychiatric injury, the words “as if the loss and damage had been caused by the wilful act, neglect, or default of the owner of the aircraft” (emphasis added) limits the categories of people who can recover damages in respect of such injuries: (2) that, if negligence were proved, the law would restrict the categories of persons who can recover damages in respect of psychiatric injury …; (3) on this approach, the claimants can only recover damages for psychiatric injury if they are primary victims or secondary victims with sufficient proximity and ties of love and affection. … I accept the defendant’s submissions on this issue. Where there is damage to land and an action for trespass the claimant would have to show an intentional or wilful act of trespass. Where there is injury to a person, there might be an action in negligence; and the claimant would have to show carelessness. In my view, the effect of section 76(2) is that the claimant is absolved from having to

121

Morris v KLM Royal Dutch Airlines Ltd [2002] 2 AC 628 at [17].

122

R v Ireland [1998] AC 147.

123

See [4.110].

124

Magnus v South Pacific Air Motive Pty Ltd (1997) 78 FCR 456.

125

Tame v New South Wales (2002) 211 CLR 317.

126

Glen v Korean Airlines Co Ltd [2003] QB 1386.

852

Part IV: Relationship Cases

[23.410]

show either a deliberate act or carelessness. … On this basis I can see no reason why the normal rules as to foreseeability and remoteness should not apply.127

[23.410] Simon J’s decision, insofar as it ruled out liability to unrelated bystanders, was clearly in conformity with the established principles of psychiatric injury law. However, what matters most is his decision that the established principles of psychiatric injury law were applicable in this case. This would seem to lend support to the interpretation adopted by the majority of the Full Federal Court of Australia in South Pacific Air Motive Pty Ltd v Magnus,128 and on principle would seem to be the preferable view. Third parties who are not bound by the terms of the contract of carriage should not be prejudiced by the restrictive view of “bodily injury” that the courts have had to adopt in the passenger cases. Outdated notions of what constitutes “psychiatric injury” should not be given a wider application than absolutely necessary. Courts in the 21st century should be able to take advantage of 21st century science, rather than being bound by notions prevalent nearly a hundred years ago.

127

Glen v Korean Airlines Co Ltd [2003] QB 1386 at [35], [37]. For similar United States decisions see In re Air Crash Disaster at Cove Neck, Long Island, New York on January 25, 1990 885 F Supp 434 (1995); Lawson v Management Activities Inc 81 Cal Rptr 745 (1999). 128

South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.

PART V Some Special Cases 24. Primary Victims within the Zone of Danger ....................................................................... 855 25. Rescuers .................................................................................................................................... 877 26. Involuntary Participants ......................................................................................................... 905 27. Damage to Property ................................................................................................................ 931 28. Bad News .................................................................................................................................. 943 29. Fear for the Future ................................................................................................................. 965

Chapter 24

Primary Victims within the Zone of Danger [24.10] INTRODUCTION ............................................................................................................. 855 [24.30] THE DIFFERENT KINDS OF CASE ............................................................................. 856 [24.30] Near-miss cases ................................................................................................................. 856 [24.50] Alcock: Lord Oliver and the Schneider v Eisovitch cases ........................................ 859 [24.70] Further elaboration: the Piper Alpha cases .................................................................. 860 [24.130] Australia: The Maralinga and Voyager cases ............................................................ 863 [24.160] Effect of the Civil Liability Acts ................................................................................... 866 [24.180] Conclusion ........................................................................................................................ 867 [24.190] THE EFFECT OF PAGE V SMITH .............................................................................. 868 [24.190] England and Scotland: Lord Lloyd’s new doctrine .................................................. 868 [24.260] Impact of Page v Smith in other jurisdictions ........................................................... 872 [24.290] Conclusion ........................................................................................................................ 875

INTRODUCTION [24.10] As related in Chapter 2, although in 1888 the Privy Council in Victorian Railways Commissioners v Coultas1 held that nervous or mental shock caused by mere sudden terror unaccompanied by any actual physical injury was too remote a consequence of negligence to give rise to liability, this decision was soon challenged, first in Ireland,2 and then in England3 and elsewhere.4 The first cases to depart from the Privy Council’s decision and hold that in certain circumstances nervous shock could give rise to liability were cases where the plaintiffs were in a situation of danger and at risk of suffering personal injury; though they narrowly escaped physical harm, the terror of this experience caused them to suffer “nervous shock”, that is to say some sort of long-term illness or other physical consequence such as a birth mishap. Coultas itself was a fact situation of this kind: the train narrowly missed the buggy in which Mary Coultas was riding, but she suffered a severe nervous shock 1

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.10].

2

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

3

Dulieu v White & Sons [1901] 2 KB 669.

4

See other cases cited at [2.30].

856

Part V: Some Special Cases

[24.20]

and, it appears, had a miscarriage. The rationale of these cases was that the plaintiff suffered shock through fear of immediate personal injury.5 [24.20] Over the years, there have been other cases where liability for psychiatric injury has been based on presence within the zone of potential physical danger, rather than the consequences of witnessing, from a position of safety, negligence injuring or endangering others with whom the plaintiff has a close relationship. The reasons for imposing liability have probably shifted somewhat, as the law gradually came to identify foresight of injury by shock, rather than of injury by impact, as the governing principle.6 As long as the fundamental test of liability was the same, the boundaries between this and other fact situations giving rise to a cause of action did not have to be sharply defined. However, at least as far as the law in England and Scotland is concerned, all this changed when the House of Lords in Page v Smith7 suggested that where the plaintiff was in a situation of personal danger the rules were different. In these jurisdictions, it is now necessary to identify precisely the kinds of case that come within this category. The cases that have sought to determine which plaintiffs are now identified as primary victims on the ground that they are within the zone of danger have produced some interesting and unexpected results.

THE DIFFERENT KINDS OF CASE Near-miss cases [24.30] As already mentioned, the initial cases that recognised liability for “nervous shock” were “near-miss” cases: the plaintiff was in the range of foreseeable physical injury, had a narrow escape, and suffered shock as a result of the experience. The facts of the two leading cases provide good illustrations. Bell v Great Northern Railway Co of Ireland8 was a case arising out of the Armagh railway disaster of 12 June 1889, when a crowded Sunday School excursion train stalled when negotiating a steep incline and the crew decided to divide the train into two parts. The rear portion was not properly braked, and ran back down the hill, colliding with a following train. The plaintiff was a passenger in the rear part of the train, which stopped with a violent jerk when it hit the oncoming train. It was proved that this caused the plaintiff to suffer great fright and resulting nervous shock, and as a consequence she was “incapacitated from performing her ordinary avocations”. The jury were directed that if the fright was a reasonable and natural consequence, and injury to her health was a reasonable and natural consequence of the fright, and had occurred, the injury would not be too remote. The jury verdict in the plaintiff’s favour was upheld by Palles CB of the Irish Exchequer 5

Dulieu v White & Sons [1901] 2 KB 669 at 675 per Kennedy J.

6

See [7.400]–[7.410].

7

Page v Smith [1996] AC 155.

8

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

[24.40]

24 Primary Victims within the Zone of Danger

857

Division. In Dulieu v White & Sons,9 the plaintiff was the husband of the licensee of the Bonner Arms in Bethnal Green, London, and she was behind the bar when the defendant’s servant negligently drove a pair-horse van into the pub, causing her to suffer a severe shock and become ill, and give premature birth to a child born disabled as a result of the occurrence. The defendant having submitted that the damages were too remote to be recoverable in law, and that the statement of claim disclosed no cause of action, these matters were tried as a preliminary issue. Kennedy J held, in much the same terms as the Irish Exchequer Division, that where fright was followed by consequent physical damage, if the fright was the natural result of the driver’s negligence, the physical damage was not too remote. Phillimore J couched his decision in terms of duty rather than remoteness, but the end result was the same. Kennedy J imposed the important limitation that “[t]he shock, in order to give a cause of action, must be one that arises from a fear of immediate personal injury to oneself”.10 Similar decisions began to appear in the reports in the United States, Canada, Australia and elsewhere.11 Sometimes, particularly in jurisdictions bound by Privy Council decisions, the courts contrived to find a technical impact in order to distinguish Victorian Railways Commissioners v Coultas.12 Quite possibly, the “violent jerk” experienced by Mary Bell could have been classified as “impact”, had the court wished to reconcile the case with Coultas: there are several cases with very similar facts where this was the approach adopted.13 However, Palles CB was not bound by the Privy Council, and was concerned to expose the shortcomings of its approach. [24.40] In England, once Kennedy J’s limitation was rejected by the Court of Appeal in Hambrook v Stokes Bros14 — the case that for the first time recognised that a person outside the zone of danger had a cause of action for nervous shock caused by fear for the safety of others15 — the Dulieu v White & Sons16 category of case ceased to be the focus of attention.17 Other jurisdictions retained the Kennedy limitation, or 9

Dulieu v White & Sons [1901] 2 KB 669.

10

Dulieu v White & Sons [1901] 2 KB 669 at 675.

11

See [2.30], [3.340], [3.770].

12

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

13

See [2.10], [3.760], and also [18.10]–[18.40].

14

Hambrook v Stokes Bros [1925] 1 KB 141 at 151 per Bankes LJ, at 157–158 per Atkin LJ (but note Sargant LJ’s comments at 162).

15

Sargant LJ in his dissenting judgment speculated whether the principle endorsed by the majority in that case should extend to cases where no injury to the third party in fact occurred, but this qualification has never been adopted: Hambrook v Stokes Bros [1925] 1 KB 141 at 163–164.

16 17

Dulieu v White & Sons [1901] 2 KB 669.

Though primary victim cases continued to appear, eg Bradfield v British Railways Board (The Times, 10 March 1955), where the plaintiff was in a railway carriage which was suddenly turned on its side, and spent 20 minutes under a pile of passengers who were unable to get out of the carriage.

858

Part V: Some Special Cases

[24.40]

something like it, for much longer: this was still the rule in Scotland at the time of Bourhill v Young,18 and was upheld by the lower courts in that case;19 and a similar rule survived in South Africa until as recently as 1973.20 A particularly graphic example is found in a 1991 case from Lesotho where the plaintiff was a passenger in a vehicle shot at by the police, and recovered damages for nervous shock.21 The “zone of danger” rule was also adhered to by many jurisdictions in the United States until the 1960s, and still survives in a few States and in the Supreme Court jurisprudence on liability under the Federal Employers’ Liability Act.22 However, even in jurisdictions where it was no longer centre stage, cases of this kind continued to occur. For example, in Pozniakow v Farrell23 in Ontario in 1954, the plaintiff was in a car driven by her husband when a truck drove into it. She was not physically injured, but suffered a heart attack as a result of the experience. McLennan J dismissed the defendant’s attempt to rely on Victorian Railways Commissioners v Coultas24 and held that the plaintiff had a right to damages. In Brice v Brown25 in England in 1984, the plaintiff and her daughter were passengers in a taxi that collided with a bus. The English Court of Appeal held that the defendant was liable in damages for the resulting decline in the plaintiff’s already fragile mental state.26 It is noteworthy that according to Stuart-Smith LJ the basis of this liability was that in the circumstances the defendant should have foreseen the possibility of psychiatric injury to a person of ordinary fortitude.27 This underlines the subtle shift that had taken place since the days of Dulieu: these cases, like all other psychiatric injury cases, now turned on the foreseeability of psychiatric injury, not physical harm.

18

Bourhill v Young [1943] AC 92.

19

See Bourhill v Young’s Executor 1941 SC 395. For a later example, see Conlin v William Denny & Bros Ltd 1959 SLT (Notes) 36. It appears that the rule survived until McLinden v Richardson 1962 SLT (Notes) 104: see [3.560].

20

The limitation was removed in Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A): see [3.540]. 21

Matekane v Attorney-General 1991-92 LLR-LB 153.

22

See [3.770].

23

Pozniakow v Farrell [1954] OJ No 228.

24

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

25

Brice v Brown [1984] 1 All ER 997.

26

Note also Wong Yiu Wing v To Chark Wah [1993] HKDC 9, where the plaintiff was close by when a window frame fell from the 33rd floor of an apartment block and suffered psychiatric injury as a result, in addition to minor injuries from glass fragments. With these cases compare Joudrey v Swissair Transport Co (2004) 713 APR 156 (NS), where the plaintiff had been involved in the search for the wreckage of a crashed aircraft: Pickup J (at 168) held, applying the primary victim criterion, that the plaintiff was not in the area of risk of potential physical harm.

27

Brice v Brown [1984] 1 All ER 997 at 1006–1007.

[24.60]

24 Primary Victims within the Zone of Danger

859

Alcock: Lord Oliver and the Schneider v Eisovitch cases [24.50] Alcock v Chief Constable of South Yorkshire Police28 is important for many reasons. It can be said to mark the present limits of secondary victim liability, at least in England; but it is also noteworthy for shifting the focus of attention back to primary victims. This happened as a result of the seminal judgment of Lord Oliver of Aylmerton, who drew attention to the fact that psychiatric injury cases were not all the same. He distinguished between “cases in which the injured plaintiff was involved, either mediately or immediately, as a participant, and those in which the plaintiff was no more than the passive and unwilling witness of injury caused to others”.29 The former kind of case — those that have come to be called primary victim cases — is marked by participation and personal involvement. His Lordship identified three different categories of primary victim cases. The first involved cases like Dulieu v White & Sons30 where “the plaintiff was naturally and obviously put in fear for her own safety … As the person directly threatened, she was quite clearly in a sufficiently direct and proximate relationship with him.”31 It may be remarked that in this respect Dulieu now seems a very obvious case, because the plaintiff was presumably in greater danger than anyone else present, as opposed for example to Bell v Great Northern Railway Co of Ireland,32 where Mary Bell’s travelling companions were no doubt just as likely to suffer the same harm. [24.60] For present purposes, what is particularly interesting about this first primary victim category is Lord Oliver’s suggestion that the Schneider v Eisovitch33 line of cases can also be classified in this way: his Lordship says of this case: “The plaintiff was herself directly involved as a victim in the accident in which her husband was killed.”34 Mrs Schneider, a passenger in a car being driven by her husband, was rendered unconscious by the accident. On regaining consciousness in hospital, she learnt the news of her husband’s death, and suffered shock as a result. According to the normal English rule, both then and now, no duty arises in respect of psychiatric injury caused by hearing of the death or injury of relatives, rather than being present at the scene of the accident or its aftermath and perceiving it with one’s own senses.35 However, in this case, Paull J held that the plaintiff was already owed a duty by the defendant driver not to cause her physical injury. In these circumstances, 28

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

29

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407.

30

Dulieu v White & Sons [1901] 2 KB 669.

31

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407. The other two categories were rescue cases (see Chapter 25) and involuntary participants (see Chapter 26). 32

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

33

Schneider v Eisovitch [1960] 2 QB 430. For similar cases, see [11.100]: the leading Australian case is Andrews v Williams [1967] VR 831.

34

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

35

See [11.30]–[11.50], [11.460]–[11.510].

860

Part V: Some Special Cases

[24.70]

recovery for psychiatric injury became a matter of remoteness rather than of duty. This group of cases therefore functions as an exception to the ban on recovery for communication-caused psychiatric injury. The effect of Lord Oliver’s judgment was to emphasise that the plaintiff, because of her direct involvement, was a primary victim. Like Mrs Dulieu,36 Mrs Schneider was within the area of foreseeable physical injury. Unlike her, the shock she suffered was caused by what she was told rather than what she experienced with her own senses.

Further elaboration: the Piper Alpha cases [24.70] Not long after Lord Oliver’s judgment in Alcock v Chief Constable of South Yorkshire Police,37 the first category of primary victim case as identified by him was subjected to detailed examination in McFarlane v EE Caledonia Ltd,38 the first of the Piper Alpha cases.39 McFarlane was employed as a painter on board the Piper Alpha oil rig in the North Sea off the coast of Scotland. When off duty he was accommodated on board the support vessel Tharos. He was in his bunk on the night in 1988 on which a series of massive explosions took place on the rig, claiming the lives of 167 men and injuring a further 61.40 At that time the Tharos was 550 metres away from the disaster. During the next hour and three quarters, before McFarlane and others were taken off by helicopter, the vessel twice sailed closer to the rig in an attempt to fight the fire and render assistance, and got within 100 metres, but was forced to retire. McFarlane claimed damages for psychiatric illness suffered as a result of these events. [24.80] On the trial of a preliminary issue, Smith J held that the plaintiff was owed a duty of care on the ground that he was a participant in the event who had been reasonably in fear for his life and safety and that the injury had resulted from the shock caused by his fear. The English Court of Appeal disagreed. Stuart-Smith LJ, giving the judgment of the court, analysed the notion of participation in greater detail than attempted in any previous judgment. He said that there were three situations in which a person who sustained psychiatric injury through fear of physical injury to himself or herself might be a participant in an event.41 The first was where the plaintiff was in the actual area of danger created by the event, but escaped physical injury by chance or good fortune, such as a person 36

Dulieu v White & Sons [1901] 2 KB 669.

37

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

38

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

39

See also [3.190], discussing these cases in the context of the distinction between primary and secondary victims.

40

For further details, see C Wells, Negotiating Tragedy: Law and Disasters (Sweet & Maxwell, London, 1995), pp 33–39; HJ Hartley, Exploring Sport and Leisure Disasters: A Socio-Legal Perspective (Cavendish Publishing, London, 2001), pp 18–20. For other issues arising out of the disaster, see Caledonia North Sea Ltd v British Telecommunications plc [2002] 1 Lloyds Rep 553. 41

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 10.

[24.90]

24 Primary Victims within the Zone of Danger

861

who was actually on the Piper Alpha rig at the time of the fire and escaped physical injury but who might well be in fear for his life or safety. The second situation was where the plaintiff was not actually in danger, but because of the sudden and unexpected nature of the event reasonably thought otherwise. Dulieu v White & Sons42 was cited as an example of this situation, Stuart-Smith LJ saying that the plaintiff in that case “was not in fact at risk of physical injury; but she was naturally put in fear for her own safety”. He contrasted the case with Bourhill v Young,43 where “The plaintiff was too far from the scene of the crash and it was held that the defendant could not reasonably have foreseen that she might be injured by his failure to exercise care. She was not within the area of potential danger arising as a result of the motorcyclist’s negligence.” The third situation was one where the plaintiff was not originally within the area of danger but came into it later. Here his Lordship distinguished between a person who freely and voluntarily entered the danger area, who would have no remedy, and one who came as a rescuer, who could recover.44 The plaintiff failed on all three counts (and also under an alternative submission that he could recover as a bystander, based on the exceptionally horrific nature of the events in question).45 Although there was one incident when a fireball may have approached fairly near, the Tharos was never close enough to the scene to be within the actual area of danger, nor did the facts fall within the second category. As StuartSmith LJ said: No one sustained any physical injury, and there is no evidence that anyone other than the plaintiff sustained psychiatric injury. In my judgment it cannot be said that the defendants ought reasonably to have foreseen that the plaintiff or other essential personnel on board her would suffer such injury. The Tharos was a well-found vessel, equipped with a heat shield, and under the control of an experienced and competent captain.46

[24.90] On the participation issue, the decision seems justified: it was based on the English Court of Appeal’s opinion that the plaintiff was never close enough to the rig to be reasonably in fear for his own safety. The trial judge thought otherwise: it is noteworthy that even on her view of the case what matters is whether the situation of personal danger gives rise to foreseeable psychiatric injury: in the words of Stuart-Smith LJ, “The final stage of the judge’s reasoning was to hold that it was plainly foreseeable that a man of reasonable fortitude may suffer psychiatric injury if exposed to the shock of being put in fear of his life.”47 So the ground has shifted somewhat, as compared with the earlier primary victim cases. The emphasis is no longer so much on the possibility of 42

Dulieu v White & Sons [1901] 2 KB 669.

43

Bourhill v Young [1943] AC 92.

44

As to rescuers, see Chapter 25.

45

See [9.490].

46

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 11.

47

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 9.

862

Part V: Some Special Cases

[24.100]

physical injury, and the narrowness of the escape, but on the general situation and the foreseeability of psychiatric injury as a consequence of it. [24.100] In Hegarty v EE Caledonia Ltd,48 a psychiatric injury claim was made by another employee on board the same vessel.49 In this case, however, the claim concentrated on the fireball caused when the MCP-01 riser ruptured, at which time the Tharos was at its closest to the rig. It was suggested that at this point Hegarty was in personal danger. The English Court of Appeal found that he fell into the second McFarlane v EE Caledonia Ltd50 category, in that he had a genuine fear of injury, but this fear was not reasonable in the circumstances. As Brooke LJ said, “[T]there is no sign in the cases decided in the branch of the law with which we are at present concerned that a plaintiff may be classified as a primary victim even if his or her fear of immediate injury was an irrational one.”51 [24.110] Hegarty, unlike McFarlane, had also claimed damages for breach of the statutory duty contained in reg 32(3) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976 (UK), under which every person on or near an offshore installation was under a duty not to do anything to endanger the safety or health of other persons in or near the installation.52 The Court of Appeal held that those near the installation would have to show that the breach would be likely to endanger them — a test requiring more than mere foreseeability. McFarlane subsequently sued his counsel for failing to plead a claim for breach of statutory duty, but most of this claim was struck out by Rix J,53 and the remainder by the Court of Appeal.54 [24.120] One odd feature of the decision in McFarlane v EE Caledonia Ltd55 is that Stuart-Smith LJ chose to reinterpret Dulieu v White & Sons56 as a case where the plaintiff was not in fact at risk of physical injury, but reasonably thought she was.57 Brooke LJ in Hegarty v EE Caledonia Ltd58 adopted the same view, noting that the criterion used in Dulieu for 48

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259, on appeal from Popplewell J: Hegarty v EE Caledonia Ltd [1996] 1 Lloyd’s Rep 413.

49 Despite the suggestion in McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 that there was no evidence that anyone other than the plaintiff in that case sustained psychiatric injury: see [24.80]. 50

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

51

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 271.

52

See B Barrett, “Renaissance of Civil Liability for Breach of Statutory Duty?” (1998) 27 Ind LJ 59.

53

McFarlane v Wilkinson [1996] 1 Lloyd’s Rep 406.

54

McFarlane v Wilkinson [1997] 2 Lloyd’s Rep 259, heard together with Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259.

55

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

56

Dulieu v White & Sons [1901] 2 KB 669.

57

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 10.

58

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259.

[24.130]

24 Primary Victims within the Zone of Danger

863

identifying this type of primary victim — one who has a reasonable fear of immediate personal injury to himself or herself — was still the test to be applied.59 From the facts given in the report of Dulieu, it is not possible to say with certainty whether the case is correctly placed in the first or the second category. Later judges have reverted to a more orthodox view of the case: Hobhouse LJ in Young v Charles Church (Southern) Ltd60 said of Dulieu: “Where the safety of the plaintiff is itself threatened, the plaintiff is a ‘primary’ victim.”61

Australia: The Maralinga and Voyager cases [24.130] It is instructive to compare these cases with three Australian cases in which the plaintiffs, in the course of their employment in the armed forces, had no choice but to be present at the nuclear tests carried out at Maralinga in South Australia in 1956 and 1957. In each of these cases, the argument was that the plaintiff had developed a psychiatric illness through fear that he might develop cancer at some time in the future.62 In the first two cases, the plaintiffs were seeking an extension of time to commence proceedings. In Sandstrom v Commonwealth,63 the plaintiff observed the detonation from 9 miles away, and the next day was required to drive officers to inspect the site. The alleged psychiatric illness did not develop for some years afterwards. No extension was granted because the plaintiff was unable to show that he remained unaware of his injuries at the expiration of the limitation period. However, in Dinnison v Commonwealth,64 Foster J granted an extension of time to a RAAF motor mechanic who witnessed three atomic detonations, the third and last of which allegedly caused the trauma, and the Full Court dismissed the appeal.65 Dingwall v Commonwealth66 was the first of these cases to proceed to trial. Foster J rejected the claim because he was unable to conclude that the plaintiff suffered psychiatric harm, as distinct from natural apprehensions about the dangers of radiation, as a result of observing a series of tests and delivering food at the sites some days later. Though the issue of duty tends to be obscured by the limitation and evidentiary issues, in each case the basis of the claim was the plaintiff’s presence within the danger area and the likelihood of suffering psychiatric harm of some kind. There was no suggestion that the claims should fail for lack of geographical proximity. These cases provide a particularly good illustration of how far this kind of primary victim case 59

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 266.

60

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146.

61

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 158.

62

See [29.590]–[29.650], where this aspect of these cases is more fully explored.

63

Sandstrom v Commonwealth (unreported, Fed Ct, No NG 564 of 1991, 4 March 1994).

64

Dinnison v Commonwealth (unreported, Fed Ct, No NG 572 of 1991, 4 March 1994).

65

Commonwealth v Dinnison (1995) 56 FCR 389.

66

Dingwall v Commonwealth (unreported, Fed Ct, No NG 575 of 1991, 18 May 1994).

864

Part V: Some Special Cases

[24.140]

has come since the days of Bell v Great Northern Railway Co of Ireland67 and Dulieu v White & Sons.68 It is just not sensible to talk in terms of a near miss as the rationale for imposing liability for psychiatric injury. Had the court been minded to impose liability, it would have been because the mere presence of Mr Dingwall within the danger area caused him to apprehend the possibility that he had contracted a deadly disease that would manifest itself at some time in the future, giving rise to foreseeable present psychiatric injury, not that he had narrowly escaped some even more serious injury. [24.140] Another group of cases in which some plaintiffs have alleged psychiatric injury resulting from presence within the danger area arose out of the tragic collision between HMAS Voyager and HMAS Melbourne in the vicinity of Jervis Bay on 10 February 1964. The Voyager, the smaller ship, was broken into two and sank, and many lives were lost. This incident resulted in a large number of claims for psychiatric injury brought by crew members of the Melbourne against the Commonwealth in the Supreme Court of New South Wales.69 In most instances writs were not issued until the 1980s or 1990s when the seamen began to appreciate that there might be a link between the psychiatric symptoms they had been experiencing for some years and the events in question, and so the primary issue was whether the court was prepared to extend the limitation period applicable under the Limitation Act 1969 (NSW).70 Before these cases came to court, the situation was further complicated by the fact that the Commonwealth had initially disclaimed reliance on the limitation defence, and then resiled from that position, and the High Court eventually had to rule on whether it was estopped from pleading this defence;71 other cases gave rise to constitutional and conflict of laws issues.72 Once these matters had been resolved, the Supreme Court of New South Wales heard and granted a large number of requests for an extension of time, though the Commonwealth consistently opposed such 67

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

68

Dulieu v White & Sons [1901] 2 KB 669.

69

Crew members of the Voyager settled claims against the Commonwealth: see “Sailors’ fight sinks millions”, Sunday Herald Sun, 8 February 2003.

70

In a few cases, actions were brought in Victoria, where the issue was somewhat different: under s 5(1A) of the Limitation of Actions Act 1958 (Vic), in the case of personal injuries consisting of a disease or disorder, the limitation period commenced running when the plaintiff knew that he or she had suffered personal injuries and that they were caused by the act or omission of some person. Thus, in cases such as Wright v Commonwealth [2005] VSC 200 and Cavenett v Commonwealth [2005] VSC 333, the issue was not whether an extension of time would be granted but the running of the primary limitation period. In the former case, damages were ultimately awarded: see Wright v Commonwealth (2005) 13 VR 155. 71 72

See Commonwealth v Verwayen (1990) 170 CLR 394; Clark v Commonwealth [1994] 2 VR 333.

See Gilvarry v Commonwealth (1994) 127 ALR 721; Dunn v Commonwealth (unreported, NSWSC, Nos 13409, 13393 and 13395 of 1993, 15 December 1994); Blunden v Commonwealth (2003) 218 CLR 330. Note also Commonwealth v Mewett (1997) 191 CLR 471, where similar issues arose out of another maritime incident when HMAS Kimbla was swamped by waves as it proceeded out of Port Phillip Bay.

[24.150]

24 Primary Victims within the Zone of Danger

865

requests;73 and in a few cases damages were ultimately awarded.74 It is noteworthy that in one of the leading cases, McLean v Commonwealth,75 the trial judge ruled that there had to be a reasonably foreseeable risk of psychiatric illness of some kind arising from the immediate effect of the episode on the mind of a person in the plaintiff’s position — further evidence of the fact that the general test of liability for psychiatric injury applies even where the plaintiff is classified as a primary victim.76 [24.150] Though the judgments on extension of the limitation period do not explore the psychiatric injury issues in detail, it appears that in most cases the claim was based either on presence at the scene, observing the aftermath of the collision, or involvement in rescue attempts, or a combination of the three.77 Perhaps the strongest case on the facts is

73

See Commonwealth v Smith [2005] NSWCA 478 at [148]–[153] per Santow JA, noting that the Commonwealth had opposed extensions in at least 30 cases, in only three of which had it been successful; Commonwealth v Smith [2007] NSWCA 168 at [110]–[124] per McColl JA, updating the information provided by Santow JA and questioning whether the Commonwealth’s approach was a proper utilisation of court resources or observed the standard of fair play to be observed by the Crown in dealing with subjects.

74 The first case in which damages were awarded was McLean v Commonwealth. However, the New South Wales Court of Appeal ordered a new trial: Commonwealth v McLean (1996) 41 NSWLR 389. Reduced damages were awarded in February 1997: McLean v Commonwealth (unreported, NSWSC, No 21250 of 1995, 28 February 1997), noted by I Freckelton (1997) 4 Psychiatry, Psychology and Law 245. Mr McLean died in June 1997, and it was reported that the Commonwealth would seek repayment of the damages from his widow: see “Voyager Case Halts”, The Australian, 15 August 1997; “Voyager widow furious over move on compo”, The West Australian, 20 August 1997. Other cases in which damages were awarded include Commonwealth v Ryan [2002] NSWCA 372; Stankowski v Commonwealth [2004] NSWSC 198, noted by I Freckelton (2004) 11 Psychiatry, Psychology and Law 367 (varied on appeal: Commonwealth v Stankowski [2005] NSWCA 106); Aussems v Commonwealth [2005] NSWSC 217; Brittain v Commonwealth [2005] NSWSC 641 (the re-trial: damages were originally ordered in Brittain v Commonwealth [2003] NSWSC 270, but the New South Wales Court of Appeal ordered a new trial: Brittain v Commonwealth [2004] NSWCA 83); Covington-Thomas v Commonwealth [2007] NSWSC 779; Blaxter v Commonwealth (2008) Aust Torts Rep 81-948; Metcalfe v Commonwealth (2008) Aust Torts Rep 81-934. The final claim was eventually settled in 2009: see “Last HMAS Voyager claim settled, 45 years on”, Sydney Morning Herald, 17 July 2009. 75

Commonwealth v McLean (1996) 41 NSWLR 389 per Handley and Beazley JJA.

76

For other examples see Blaxter v Commonwealth (2008) Aust Torts Rep 81-948 at [37] per Basten JA; Mewett v Commonwealth (2003) 200 ALR 679 at [119] per Whitlam J.

77

See eg Lynch v Commonwealth (unreported, NSWSC, No 20101 of 1996, 16 October 1998) (felt impact, assisted in bringing survivors on board and looking after them); Mancer v Commonwealth [1999] NSWSC 693 (acted as rescuer); Philippe v Commonwealth [1999] NSWSC 1118 (saw ship sink and assisted with survivors); Sykes v Commonwealth [2000] NSWSC 3 (saw ship sink, used flashlight to look for survivors); Commonwealth v Shaw (2006) 66 NSWLR 325 (helping survivors on platform at water level, washed off by heavy swell but managed to swim to rescue dinghy); Trudgett v Commonwealth [2006] NSWSC 575 (assisted in pulling survivors onto ship on ropes); Ramsay v Commonwealth [2006] NSWSC 1389 (climbed down net slung over side of ship and helped survivors). Note also the following judgments awarding damages: Cavenett v Commonwealth [2005] VSC 333 (sick berth attendant, in small boat rescuing survivors and providing medical treatment); Brittain v Commonwealth [2005]

866

Part V: Some Special Cases

[24.160]

Watkins v Commonwealth.78 The plaintiff, a flight deck handler, was on duty when he felt the impact of the collision. Something hit him in the back and he fell into the sea. He was between the two ships and was terrified of being crushed. He managed to scramble up the nets back onto the ship, to be greeted by his Petty Officer who said “Where the fuck have you been?” and told him he might be charged with desertion. This is surely a clear case where the plaintiff was in great personal danger and psychiatric injury was entirely foreseeable. In Beasley v Commonwealth,79 described by Master Harrison as “the most tragic” of the many cases that came before her, the plaintiff was a cook but became part of the crew of a rescue dinghy that broke in two as it was being launched. In the water, the plaintiff saw a man who he recognised as a friend who was a crew member of the Voyager. He reached out to assist him and found that his body was missing below the rib cage. This again would seem to be a case where the element of personal danger was such that a court could hold that psychiatric injury was foreseeable. In other cases, the plaintiffs’ involvement was different, but many felt the jar of the collision, saw the Voyager sink, or were involved to a greater or lesser degree in rescue attempts and preparations for looking after the survivors. Brown v Commonwealth,80 another case involving a flight deck handler, is a little different from most others, in that the primary cause of psychiatric injury appears to have been that the plaintiff, inspecting the scarring made by the collision next day, realised that he would have been killed had he not moved moments before the impact.

Effect of the Civil Liability Acts [24.160] The Civil Liability Act provisions on mental harm appear to have been devised principally to deal with secondary victim cases (for example, in emphasising the importance of whether the plaintiff witnessed some other person being killed, injured or put in peril, and the nature of the relationship between the plaintiff and such a person).81 However, the statutory provisions specify that they apply to all cases of pure mental harm, and so they must apply in primary victim cases. The basic test is whether the defendant ought to have foreseen that a person of normal fortitude might in the circumstances suffer a recognised psychiatric NSWSC 641 (pulled survivors back on board and handed out blankets); Covington-Thomas v Commonwealth [2007] NSWSC 779 (member of crew of Admiral’s barge that rescued survivors); Blaxter v Commonwealth (2008) Aust Torts Rep 81-948 (coxswain of motor cutter involved in rescuing survivors). 78

Watkins v Commonwealth [1999] NSWSC 1127. Note Ryan v Commonwealth [1999] NSWSC 573, where it appears that the plaintiff thought he had involuntarily become responsible in some way for the collision: he reckoned he could have switched on a signal light and prevented the collision, but he was not allowed to act independently, and this preyed on his mind. He ultimately received damages: see Commonwealth v Ryan [2002] NSWCA 372.

79

Beasley v Commonwealth [2001] NSWSC 998.

80

Brown v Commonwealth [2000] NSWSC 90.

81

See [2.280].

[24.180]

24 Primary Victims within the Zone of Danger

867

illness if reasonable care is not taken.82 However, the listed circumstances are not likely to be of much assistance. For example, the legislation says that one of the circumstances of the case is whether or not there was a pre-existing relationship between the plaintiff and the defendant, but the common law cases suggest that this may not make much difference. In Bell v Great Northern Railway of Ireland,83 there was a pre-existing relationship because Mary Bell was a passenger on the train, but in Dulieu v White & Sons84 there was no pre-existing relationship between Mrs Dulieu and the driver of the pair-horse van that crashed into her pub. The key factor in the cases considered in this chapter is that the plaintiff was within the zone of physical danger. The provisions in jurisdictions such as New South Wales that limit liability to non-relatives or persons who are present and witness an accident85 are specifically limited to secondary victim situations86 — except in South Australia, where in all cases plaintiffs, other than close relatives, are required to be present at the scene of the accident when the accident occurred,87 a limitation that is not in any way inconsistent with the common law’s requirement that the primary victim be within the zone of danger. [24.170] One case that shows the Civil Liability Act provisions being applied to the case of a primary victim is Manthe v BHP Billiton Iron Ore Pty Ltd,88 where the plaintiff claimed for mental harm as the result of the derailment of an iron ore train. He suffered minor physical injuries as a result of being hit by some iron ore thrown out of a truck, but these injuries were not connected to the psychiatric injuries (post-traumatic stress disorder and depression) caused by narrowly avoiding injury as the carriages toppled over. He was successful in recovering damages for mental harm.

Conclusion [24.180] The cases where the plaintiff’s claim, in essence, is that psychiatric injury was foreseeable and resulted from his or her involvement within the zone of potential danger thus cover a wide field of differing fact situations. Even if over the last 50 or more years most of the attention has been focused on secondary victim claims, this older category of case retains plenty of vitality. A unifying feature of these cases over that period has been the acceptance that what matters is foreseeability 82

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S.

83

Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428.

84

Dulieu v White & Sons [1901] 2 KB 669.

85

Eg Civil Liability Act 2002 (NSW), s 30(2).

86

Eg Civil Liability Act 2002 (NSW), s 30(1): see [13.410]–[13.420].

87

Civil Liability Act 1936 (SA), s 53(1).

88

Manthe v BHP Billiton Iron Ore Pty Ltd [2011] WADC 160.

868

Part V: Some Special Cases

[24.190]

of psychiatric injury.89 In England, however, all that changed when the House of Lords in Page v Smith90 turned its attention to primary victim cases.

THE EFFECT OF PAGE V SMITH England and Scotland: Lord Lloyd’s new doctrine [24.190] The facts of Page v Smith,91 and the far-reaching effect, at least for English law, of the new doctrine enunciated by Lord Lloyd of Berwick with the concurrence of Lords Browne-Wilkinson and Ackner, have already been discussed in other chapters.92 Here, we note the major changes to the situation of primary victims within the zone of danger. According to Lord Lloyd’s judgment in this case, where the plaintiff is a primary victim, “directly involved in the accident and well within the range of foreseeable physical injury”, and suffers psychiatric injury through fear for his or her own safety,93 there is no need to show that psychiatric injury was reasonably foreseeable. It is enough that some physical injury is foreseeable.94 Further, in this situation various rules that apply in secondary victim cases, such as the need to view the circumstances of the accident ex post facto, the various proximity requirements, and the need to show that psychiatric injury was foreseeable to a person of ordinary fortitude, are said to be unnecessary.95 [24.200] These new rulings obviously have especial significance for the cases under discussion in this chapter, where the plaintiff is in the area of physical danger and suffers shock through fear for his or her own safety. That significance is twofold. First, new rules are stated to apply to such cases that make them different from other psychiatric injury cases. No longer is reasonable foreseeability of psychiatric injury the appropriate test: reasonable foreseeability of any form of personal injury is enough. There are therefore advantages for plaintiffs if their cases can be classified within this category. Secondly, it is arguable that Lord Lloyd has invented a new kind of primary victim case. Prior to Page v Smith,96 all the cases involved major accidents, from road and rail collisions to major disasters such as the Voyager and Piper Alpha disasters and nuclear explosions. In Page v Smith Mr Page, driving a car at moderate speed, was involved in a minor collision in which nobody was physically injured, but which 89

See eg Brice v Brown [1984] 1 All ER 997 at 1006–1007 per Stuart-Smith LJ; McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 9; Commonwealth v McLean (1996) 41 NSWLR 389 at 403–404 per Handley and Beazley JJA.

90

Page v Smith [1996] AC 155.

91

Page v Smith [1996] AC 155.

92

See [3.50]–[3.230], [7.450]–[7.520], [8.240]–[8.270].

93

Page v Smith [1996] AC 155 at 184.

94

Page v Smith [1996] AC 155 at 187.

95

Page v Smith [1996] AC 155 at 188–189.

96

Page v Smith [1996] AC 155.

[24.210]

24 Primary Victims within the Zone of Danger

869

reactivated his latent chronic fatigue syndrome. Undoubtedly, he was within the area of potential physical danger, but the physical danger involved was very minor.97 Had the pair-horse van belonging to the defendant in Dulieu v White & Sons98 been involved in a minor accident of this kind, there is surely no way that Kennedy and Phillimore JJ would have recognised that the plaintiff was in reasonable fear of personal injury. Brooke LJ in Hegarty v EE Caledonia Ltd99 appears to have accepted that Page v Smith was different: after referring to the earlier primary victim cases of this kind, he said: “The other way in which a plaintiff as a primary victim can now recover damages for psychiatric injury will arise if he or she can bring the case within the parameters identified by the House of Lords in Page v Smith.”100 The words of Mason P in Morgan v Tame,101 describing the exceptional nature of Mrs Tame’s psychiatric injury resulting from a police mistake in entering the wrong breathalyser reading on an accident report, seem equally appropriate here: “Wherever the line is to be drawn, in the law as expounded by existing Australian case law, the present case lies well outside it. There was no death, injury or dramatic accident touching the respondent or anyone near or dear to her.”102 [24.210] This inevitably leads to speculation about whether the new rules laid down in Page v Smith103 for the special situation identified in that case also apply to the more traditional kinds of primary victim within the zone of danger. Lord Lloyd made reference to Dulieu v White & Sons,104 and it would seem that in this and other situations where the danger is more major, English law will now apply Lord Lloyd’s test. However, whether that test also applies in the Schneider v Eisovitch105 kind of case is much more doubtful, even though according to Lord Oliver of

97

The case was followed in Bridges v P & NE Murray Ltd [1999] EWCA Civ 2280, another English case involving similar injuries of a minor nature. Note also Spray v Mayor, Alderman and Burgess of Ellesmere Port (unreported, Eng CA, 2 December 1997) where the plaintiff claimed, inter alia, for psychiatric injury when a golf ball hit by a golfer at a nearby golf course smashed through his window. Liability was rejected on the ground that no recognisable psychiatric injury had been established.

98

Dulieu v White & Sons [1901] 2 KB 669.

99

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259.

100

Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259 at 266 (emphasis added). In Gregg v Ashbrae Ltd [2005] NIQB 37, discussed at [26.300], the court rejected a submission that the plaintiff was in the area of potential danger, with the result that Page v Smith [1996] AC 155 could not apply. 101

Morgan v Tame (2000) 49 NSWLR 21.

102

Morgan v Tame (2000) 49 NSWLR 21 at [124].

103

Page v Smith [1996] AC 155.

104

Dulieu v White & Sons [1901] 2 KB 669.

105

Schneider v Eisovitch [1960] 2 QB 430.

870

Part V: Some Special Cases

[24.220]

Aylmerton this kind of case fell into the same category as Dulieu,106 and Lord Lloyd purported to adopt Lord Oliver’s distinction between primary and secondary victims. [24.220] Another important issue provoked by Page v Smith107 is whether what now matters is presence within the area of physical risk, or that the psychiatric injury that the plaintiff suffers is caused by the fear of physical injury to himself or herself rather than concern for the safety of someone else. Kennedy J’s limitation in Dulieu v White & Sons108 required that the shock be caused by fear for one’s own safety;109 this was repudiated in Hambrook v Stokes Bros110 when the law was extended to those who witnessed harm to others close to them, but as regards primary victims within the zone of danger, is liability still controlled by the Dulieu test? This matters because the rules are different, at least in English law.111 The difficulties involved in working out when a plaintiff close to the accident scene now qualifies as a primary victim have been well illustrated in two English cases. [24.230] In Young v Charles Church (Southern) Ltd,112 the problem was that the plaintiff was within the zone of physical danger but suffered psychiatric injury through fear for the safety not of himself but a fellow-worker. Young, Cook and another worker were engaged in erecting scaffolding. Young handed Cook a pole and turned to get another while Cook put it in position. He heard a loud bang and a hissing noise and turned to see that Cook had electrocuted himself by allowing the pole to touch overhead power lines. Young claimed damages for psychiatric injury suffered as a result of what he saw and heard, and the duty question was tried as a preliminary issue. The defendant rather surprisingly argued that the plaintiff could not succeed because he suffered no physical injury in the accident. Drake J held that the claim failed, but the English Court of Appeal allowed the appeal. Hobhouse LJ had no doubt that the plaintiff was a secondary victim, because it was only where a person’s own safety was threatened that he came within the primary victim category. However, he was able to find for the plaintiff on another ground.113 Evans LJ by contrast held that the plaintiff was “clearly” a primary victim, whether that category be defined as involving risk of foreseeable physical injury or by adopting the “possibly wider” 106

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

107

Page v Smith [1996] AC 155.

108

Dulieu v White & Sons [1901] 2 KB 669.

109

Dulieu v White & Sons [1901] 2 KB 669 at 675.

110

Hambrook v Stokes Bros [1925] 1 KB 141.

111

A similar question has arisen in some United States jurisdictions which still limit liability by reference to the zone of danger: see [3.770].

112

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146.

113

See [19.320].

[24.250]

24 Primary Victims within the Zone of Danger

871

test of participation or involvement in the accident,114 so allowing the court to adopt the foresight test and the other rules for primary victims approved in Page v Smith.115 In his view, the plaintiff was correctly classified as a primary victim, even though, as the judge expressly recognised, the plaintiff’s illness was not caused by fear for himself, and this made the case different from the parent case of Dulieu v White & Sons.116 The third judge, Hutchison LJ, acquiesced in the ground accepted by Hobhouse LJ but specifically agreed with Evans LJ that the plaintiff was a primary victim and could succeed on that ground also. [24.240] In Chief Constable of West Yorkshire Police v Schofield,117 the English Court of Appeal again held that the plaintiff was a participant and as such a primary victim, even though she did not fear injury to herself. The plaintiff, a police constable, accompanied Acting Sergeant Dodding to a house where the occupants, two ladies, had reported finding some guns belonging to an elderly relative. Sergeant Dodding picked up one of the guns, a Colt Eley revolver, and without warning fired it six times into some folded bedding materials. WPC Schofield, who was only a few feet away, extended her hands backwards to protect the two ladies. She said in evidence that she did not at that time feel any fear or danger, but she later developed post-traumatic stress disorder. Sir William MacPherson, sitting as a deputy judge of the High Court, found that Sergeant Dodding’s actions gave rise to a danger of physical injury or even death to all in the room, and that the plaintiff was a participant in the incident and was therefore entitled to damages. From this finding the defendant appealed, arguing that it was wrong to characterise the plaintiff as a participant and as such a primary victim, and that she should have been regarded as a mere bystander. The Court of Appeal did not agree. The plaintiff was not merely a secondary victim, witnessing what was going on from a position of safety, but a participant, involved in what was happening, and in the light of Page v Smith118 had to be regarded as a primary victim. Fear of physical injury to oneself was not in every case a prerequisite to being a participant. It was enough to establish that the plaintiff was directly involved and at risk of physical injury. Young v Charles Church (Southern) Ltd119 was followed and applied. [24.250] Lord Reed was presented with a similar dilemma in Campbell v North Lanarkshire Council.120 (Page v Smith,121 as a decision of the House of Lords, also binds Scottish courts.) The pursuer and other employees were 114

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146 at 152–153.

115

Page v Smith [1996] AC 155.

116

Dulieu v White & Sons [1901] 2 KB 669.

117

Chief Constable of West Yorkshire Police v Schofield (1998) 43 BMLR 28.

118

Page v Smith [1996] AC 155.

119

Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146.

120

Campbell v North Lanarkshire Council [1999] ScotCS 163.

121

Page v Smith [1996] AC 155.

872

Part V: Some Special Cases

[24.260]

in the switch room removing broken pieces of crank handle from an air break circuit breaker. It was decided that the circuit breaker had to be stripped down, and there was discussion about whether it should first be isolated. The pursuer then left the switch room, and when he was about 30 or 40 yards away there was a violent explosion. The pursuer went back to the switch room, saw his badly injured colleagues, and telephoned for assistance. As the result of this experience he developed a major depressive disorder. Counsel for the defenders argued that he was not a primary victim because according to his pleadings the only fear he suffered was for the safety of the other men; counsel for the pursuer, on the other hand, submitted that he was a primary victim because of his proximity to the switch room, the fact that he had been participating in the work that had brought about the explosion, and that by re-entering the switch room he had placed himself in a situation of potential danger. Lord Reed held that at this preliminary stage of the proceedings it was impossible to rule that the pursuer had failed to establish that he was within the range of foreseeable physical injury, and so he allowed a proof before answer.122

Impact of Page v Smith in other jurisdictions [24.260] Has Page v Smith123 had any effect on the way in which cases involving primary victims within the zone of danger are treated in other jurisdictions? One Australian case that seems to have been influenced by the House of Lords to some degree is FAI General Insurance Co Ltd v Curtin.124 The plaintiff was returning from work in her car when it suddenly began to lose power. She braked, and the car came to a stop on the wrong side of the road in a diagonal position. Other people waved traffic around her car, and a man started to help her move it. However, because they feared danger from an approaching car, they took evasive 122 Note further examples from other jurisdictions. In a case from Hong Kong, Collins v Star Ferry Co Ltd [2001] HKEC 487, a tyre used by the ferry as a fender became dislodged and hit the plaintiff and then went onto the top of her baby’s pram, crushing its hood. Though the plaintiff was not only physically endangered but in fact struck, her psychiatric injury (for which liability was admitted) was occasioned by fear for the safety of her infant son. In a South African case, Potgieter v Rangasamy [2011] ZAECPEHC 36, the plaintiff was a teacher on board a bus carrying the school netball team. The bus was involved in an accident. She recovered damages for severe emotional shock and trauma: however, it can be inferred that her psychiatric injury was partly due to witnessing the injuries to the children. 123 124

Page v Smith [1996] AC 155.

FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442. Note also Scott v Electricity Commission of New South Wales (unreported, NSWSC, No CLD 519 of 1990, 8 September 1995) where a diver sued his employer for post-traumatic stress disorder suffered after witnessing the death of his friend while both were working in a canal supplying water to a power station; the action against the employer was discontinued but the claim against the occupier and controller of the power station was upheld. This case potentially raised the issue of whether presence in the zone of danger and fear for the safety of another sufficed, or whether the disorder had to arise through reasonable fear of injury to himself.

[24.270]

24 Primary Victims within the Zone of Danger

873

action and ran to a ditch at the edge of the road.125 The plaintiff claimed that she saw the car collide with her car, pushing her own car in her direction, and was frightened that she would be crushed. In fact, the car stopped a short distance away from her. She sued the other driver for damages for her psychiatric injury. Though the car was damaged, and she scraped her knee, she made no claim for property damage or physical injury. Damages were awarded at first instance, but the defendant appealed to the Queensland Court of Appeal, arguing that the defendant could not reasonably foresee psychiatric injury to the driver of a vehicle who had created a hazard on the road and remained in close proximity to it, knowing other vehicles were passing, and that in addition the proximity requirement was not satisfied. The case was complicated by allegations that the plaintiff was not a person of ordinary fortitude. The appeal was dismissed. It was agreed that the defendant had been negligent; that the plaintiff had not been guilty of contributory negligence (though Macrossan CJ dissented on this issue); and that the injury to the plaintiff was foreseeable. Differing views were expressed on the vulnerability issue.126 [24.270] According to the headnote, the court held that personal injury to the respondent was reasonably foreseeable, and this could include bodily injury of any kind and also psychiatric injury. This formulation is primarily based on the judgment of Lee J, who after discussing Page v Smith,127 said: The plaintiff’s claim is for damages for personal injuries which may include bodily injury of any kind caused by the defendant’s negligence as well as psychiatric injury without a readily discernible organic basis. It cannot be said that the plaintiff was not reasonably within the contemplation of the defendant as he approached or that “personal injury” of some kind was not foreseeable.128

In the other main judgment, Macrossan CJ said that there would be a duty of care on the defendant if it should have been foreseeable by a reasonable person in his position that “some harm or psychiatric illness” could be caused to a person at the scene.129 Both judgments then went on to discuss proximity issues. This case suggests that Page v Smith has had some effect on the way in which this kind of primary victim case is viewed in Australia. However, according to dicta in more recent decisions

125

The cross-examination of the man who assisted the plaintiff included the following memorable exchange: “Did you sprint or just hurry? – I ran like buggery”: see FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,489 per Lee J.

126

See FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,500–1 per Lee J; compare at 64,483 per Macrossan CJ, at 64,505 per Fryberg J.

127

Page v Smith [1996] AC 155.

128

FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,497.

129

FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Rep 81-442 at 64,482.

874

Part V: Some Special Cases

[24.280]

of the High Court of Australia and the New South Wales Court of Appeal, the doctrine stated by Lord Lloyd forms no part of Australian law.130 [24.280] It appears that Page v Smith131 has had some impact in Canada, on the evidence of the decision of Warren J of the British Columbia Supreme Court in Falbo v Coutts.132 The plaintiff’s car was struck in the rear by the defendant’s motorcycle. She saw the defendant’s body go flying past her as a result of the collision. She suffered minor personal injuries, but in her action against the defendant’s estate the major issue was whether she was entitled to damages for psychiatric injury. This case in fact raised the question of whether a defendant who negligently injures himself owes a duty to someone else who witnesses what happens and suffers psychiatric harm as a result,133 but this issue was not discussed. However, Warren J did refer in some detail to the decision in Page v Smith and the distinction between primary and secondary victims, saying that because the law set out different tests for recovery of damages for psychiatric injury depending on which category the plaintiff fell into, the distinction was an important one. It was contended on behalf of the plaintiff that she was a primary victim, and for the defendant that she was appropriately placed in the secondary victim category. Warren J adopted a novel approach to this issue: In my view, the law does not require that the plaintiff be one type of victim to the exclusion of the other but in this case I am satisfied that the plaintiff is both a primary and secondary victim of the same accident. She is a primary victim because she was involved in the accident: she was actually struck by the negligent motorcyclist and suffered both physical and psychiatric injury as a result. She is a secondary victim because her psychiatric injury was brought on in large measure by the trauma of her witnessing the motorcyclist hurtle past her car and land on the road and later hearing of his death the next day. After the initial impact, the plaintiff was in the position of a spectator who witnesses a catastrophic event. In the circumstances of this case, the question of whether the plaintiff is entitled to recover damages for psychiatric injury (nervous shock) is to be determined in accordance with the jurisprudence respecting either primary or secondary victims and, in my view, the plaintiff is entitled to succeed on either approach.134

The judge stated the view that the law relating to primary victims as enunciated in Page v Smith was consistent with the law in British Columbia.135 Applying Lord Lloyd’s test, a negligent motorist could 130

See Morgan v Tame (2000) 49 NSWLR 21 at [10]–[19] per Spigelman CJ, at [121] per Mason P; AMP General Insurance Ltd v Roads and Traffic Authority of New South Wales (2001) Aust Torts Rep 81-619 at [115] per Heydon JA. Note also Commonwealth v McLean (1996) 41 NSWLR 389 at 403–404 per Handley and Beazley JJA. 131

Page v Smith [1996] AC 155.

132

Falbo v Coutts [2000] BCSC 434.

133

See Chapter 15.

134

Falbo v Coutts [2000] BCSC 434 at [15]–[16].

135

Falbo v Coutts [2000] BCSC 434 at [18].

[24.290]

24 Primary Victims within the Zone of Danger

875

reasonably foresee that his or her conduct would expose other highway users to a risk of personal injury. Once that duty of care was established, it mattered not that the injury actually sustained was physical, psychiatric or both. Equally, applying the test appropriate to secondary victim cases as ratified in Devji v Burnaby (District),136 which involved reasonable foreseeability of psychiatric injury and issues of proximity and policy, these requirements also were satisfied on the facts of the case.137 On the secondary victim issue, the decision may be suspect because there was no pre-existing close relationship between the parties, and it would have been better if the case had been seen for what it was, namely a case where the primary victim and the tortfeasor were one and the same. However, there could not be a better illustration of the difficulties engendered by having two different categories of victim with different tests of liability for each category. It remains to be seen whether other Canadian courts will approve the English approach to this class of case.

Conclusion [24.290] Perhaps these developments can be put into proper perspective with the aid of Lord Goff of Chieveley’s judgment in White v Chief Constable of South Yorkshire Police.138 Having analysed Lord Lloyd’s judgment in Page v Smith139 in considerable detail, and subjected it to sustained criticism, Lord Goff offered the view that its impact on primary victim cases would be limited. All it did was to extend liability for psychiatric injury to cases where physical damage was foreseeable (but none was suffered) and psychiatric damage was not.140 Nonetheless, it would have been better if the law had been spared the complications of the new approach. Australia has immunised its law from the undesirable effects of Page v Smith; it remains to be seen whether that doctrine takes firm root elsewhere, or whether the House of Lords will one day reconsider the issue.

136

Devji v Burnaby (District) (1999) 180 DLR (4th) 205.

137

Falbo v Coutts [2000] BCSC 434 at [23].

138

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

139

Page v Smith [1996] AC 155.

140

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 479–480. This case was not directly concerned with issues under discussion in this chapter, though the general effect of the majority judgments in the House of Lords is to emphasise the importance of primary plaintiffs being within the area of physical risk. Lord Goff said that though in some cases, such as McFarlane v EE Caledonia Ltd [1994] 2 All ER 1, it might be relevant to inquire whether the plaintiff was within the range of foreseeable physical injury, it was inconsistent with existing authority that such a requirement should be applicable in all cases involving primary victims: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 480.

Chapter 25

Rescuers [25.10] THE RESCUE PRINCIPLE .............................................................................................. 877 [25.10] Introduction ....................................................................................................................... 877 [25.30] Early English cases ........................................................................................................... 878 [25.60] Australian cases ................................................................................................................ 880 [25.100] Other jurisdictions .......................................................................................................... 883 [25.160] WHO IS A RESCUER? ................................................................................................... 887 [25.240] RESCUERS AND THE CIVIL LIABILITY ACTS ...................................................... 891 [25.340] LIMITS OF THE RESCUER PRINCIPLE IN ENGLISH LAW ................................ 895

THE RESCUE PRINCIPLE Introduction [25.10] Lord Oliver of Aylmerton, in his seminal judgment in Alcock v Chief Constable of South Yorkshire Police,1 suggested that it was not helpful to classify cases of liability for “nervous shock” under a single generic label. He said that there was a difference between those cases in which the plaintiff was involved, mediately or immediately, as a participant and those in which the plaintiff was merely a witness of injury caused to others. One group of cases which he placed in the first category were the rescue cases. Of these cases his Lordship said: It is well established that the defendant owes a duty of care not only to those who are directly threatened or injured by his careless acts but also to those who, as a result, are induced to go to their rescue and suffer injury in so doing. The fact that the injury suffered is psychiatric and is caused by the impact on the mind of becoming involved in personal danger or in scenes of horror and destruction makes no difference.2

[25.20] The rescue principle is well known in negligence law.3 Motivated by altruism and commitment various courageous and dedicated groups of professionals, such as the police and fire services, emergency workers, doctors and nurses, and the armed forces, and also ordinary untrained people not infrequently become involved in the demanding and dangerous task of rescue generated by accidents, unselfishly exposing themselves to 1

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

2

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

3

See eg D Mendelson, “Quo Iure? Liability to Rescuers in the Tort of Negligence” (2001) 9 Tort L Rev 130.

878

Part V: Some Special Cases

[25.30]

the risk of adverse physical and psychiatric repercussions. The ability of a rescuer to recover in negligence for physical injury sustained in the course of attempting to assist others in peril has been recognised since the early part of the last century. Cardozo J, the great American jurist, in Wagner v International Railway Co,4 stated in a celebrated dictum: 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.5

The same principle was recognised in English law in 19356 and has often been affirmed in subsequent cases in England and elsewhere.7

Early English cases [25.30] Chadwick v British Railways Board8 marks the beginning of the rescue principle as a separate category of psychiatric injury case. For the first time, a court recognised that the risk of shocking the rescuer, as opposed to causing him or her physical injury, might give rise to a duty of care. In December 1957 two trains collided at Lewisham, just east of London. Ninety persons were killed and many others injured. Mr Chadwick, who lived nearby, voluntarily assisted in rescue operations throughout the night. He witnessed grotesque injuries (for example, bodies impaled on girders). The experience caused him shock and permanent mental injury.9 He commenced an action against the railway authorities, which following his death from unrelated causes was continued by his wife as administratrix of his estate. Waller J held that a duty of care was owed to rescuers, it being foreseeable that they might intervene to aid victims of the defendant’s carelessness. Injury by shock to a physically unhurt rescuer was reasonably foreseeable, even though the risk run by a rescuer was not the same as a risk run by a passenger. 4

Wagner v International Railway Co 133 NE 437 (NY 1921).

5

Wagner v International Railway Co 133 NE 437 (NY 1921) at 437.

6

See Haynes v G Harwood & Sons [1935] 1 KB 146.

7

See Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966; Videan v British Transport Commission [1963] 2 QB 650; Horsley v MacLaren [1972] SCR 441. In Chapman v Hearse (1961) 106 CLR 112 Dr Cherry, who had gone to the aid of an injured motorist, was killed by another car. The High Court asked “whether in such circumstances, a reasonable man might foresee, as the consequence of such a collision, the attendance of the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured”: at 120 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ. However, the High Court did not expressly classify this as a rescue case, but referred to it as being analogous to the “so-called ‘rescue cases’” (at 125): see Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 at [31] per Beazley JA. 8

Chadwick v British Railways Board [1967] 1 WLR 912, noted (1967) 83 LQR 474; J Tiley [1967] CLJ 157; CJ Miller (1968) 31 MLR 92. 9 Referred to as “catastrophic neurosis”; today it would probably be classified as post-traumatic stress disorder: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 484 per Lord Goff of Chieveley.

[25.50]

25 Rescuers

879

Accordingly rescuers could recover for damage, including psychiatric illness, sustained as a result of their efforts, even though the shock was not caused by the rescuer’s fear for his or her own safety or that of family members, and irrespective of whether the rescue operations had been successful.10 [25.40] Waller J’s reasoning, based essentially on principles of foreseeability, was endorsed by the House of Lords in McLoughlin v O’Brian.11 However, the rescue principle can also be justified on policy grounds. As Lord Jauncey of Tullichettle confirmed in Alcock v Chief Constable of South Yorkshire Police,12 it is not only that those responsible for accidents should foresee the arrival of rescuers who may be shocked by what they see; the common law also considers it appropriate from a policy perspective that such good Samaritans should be owed a duty of care. It is in the interests of all community members that rescue operations be encouraged by the courts, and this necessitates the granting of relief for loss sustained in the process. [25.50] It was not material in Chadwick v British Railways Board13 that there was no previous relationship between the parties, and that Mr Chadwick was simply a nearby householder who had voluntarily come to help.14 However, in other cases the rescuer may be a police officer or emergency service worker, as in Hale v London Underground Ltd,15 where a member of the fire service recovered damages for post-traumatic stress disorder sustained as a result of his participation in rescue work at the King’s Cross underground station fire;16 or one of the defendant’s employees, as in Wigg v British Railways Board,17 where a passenger was struck by the open door of a train after the guard negligently gave the starting signal, and the driver stopped the train and went to the passenger’s assistance, suffering psychiatric illness as a result. Tucker J, 10

Chadwick v British Railways Board [1967] 1 WLR 912 at 920–921.

11

McLoughlin v O’Brian [1983] 1 AC 410 at 419 per Lord Wilberforce, at 437–438 per Lord Bridge.

12

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 421.

13

Chadwick v British Railways Board [1967] 1 WLR 912.

14

Chadwick v British Railways Board [1967] 1 WLR 912 at 919–920 per Waller J. See also Ross v Bowbelle and Marchioness (unreported, Admiralty Registrar, 18 June 1991) where a passenger on the Marchioness riverboat which sank in the Thames made unsuccessful attempts to rescue another passenger and suffered moderate depression and post-traumatic stress disorder. See C Wells, Negotiating Tragedy: Law and Disasters (Sweet & Maxwell, London, 1995), pp 47–51; HJ Hartley, Exploring Sport and Leisure Disasters: A Socio-Economic Perspective (Cavendish Publishing, London, 2001), pp 221–284. For other proceedings arising out of the accident, see The Bowbelle [1990] 1 WLR 1330. 15

Hale v London Underground Ltd [1993] PIQR Q30.

16

Note also Piggott v London Underground (unreported, 1995), cited in V Harpwood, Modern Tort Law (7th ed, Routledge-Cavendish, Abingdon, 2009), p 49, where four firemen at the same fire were awarded damages for post-traumatic stress disorder.

17

Wigg v British Railways Board (The Times, 4 February 1986).

880

Part V: Some Special Cases

[25.60]

adopting the principles approved in McLoughlin v O’Brian,18 held that the railway was liable for this illness because it was reasonably foreseeable that the driver would behave as he did.19 Earlier cases also suggest that employees acting as rescuers may be owed a duty of care. In Yates v South Kirkby Collieries Ltd20 a mine worker suffered shock after going to help a fellow-worker who had been knocked down by a falling timber prop. Back in 1909, he did not make a common law claim, but received workers’ compensation. There is little doubt that after Chadwick’s case he would have been owed a duty of care in negligence, either as a rescuer or on some other ground.21 In Pugh v London, Brighton and South Coast Railway Co,22 a signalman suffered nervous shock as a result of the excitement and fright caused by endeavouring to prevent an accident to a train by signalling to the driver. The English Court of Appeal decided that he had been incapacitated “by reason of accident” under the terms of an insurance policy. In a later age, he too may perhaps have had some prospect of a remedy in negligence.

Australian cases [25.60] The leading Australian case in this context is Mount Isa Mines Ltd v Pusey.23 While at work in a powerhouse the plaintiff engineer heard a loud explosion and went upstairs to discover that a workmate had been severely burnt. He aided the injured man and helped carry him to a waiting ambulance but he died nine days later. Four weeks later, Mr Pusey began to develop symptoms of mental disturbance as a result of the shock of this experience, and he was eventually diagnosed with a schizophrenic condition. Interestingly, contrary to what is often assumed,24 the decision was not expressly based on the rescue principle.25 The main issue before the High Court was whether it was necessary for the defendant to foresee the precise psychiatric reaction which occurred, or whether it was sufficient to foresee some sort of injury of that kind. Applying the principle authoritatively stated by the Privy Council in The 18

McLoughlin v O’Brian [1983] 1 AC 410.

19

Another potential illustration of rescue by an employee is furnished by an instance in which the pilot of a BAC 1-11 passenger aircraft was prevented from being sucked out of his cockpit when a defective windscreen blew out through the efforts of other crew members, who hung onto his legs until the aircraft could be landed by the co-pilot. Not only the rescuers, but also other crew members, suffered trauma-related mental conditions as a result. Damages were claimed against the employer airline: see “BA sued by crew who saved pilot”, The Times, 25 April 1992.

20

Yates v South Kirkby Collieries Ltd [1910] 2 KB 538.

21

See [19.10]–[19.30].

22

Pugh v London, Brighton and South Coast Railway Co [1896] 2 QB 248.

23

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, noted by CS Phegan (1971) 45 ALJ 428; CD Gilbert (1971) 45 ALJ 431. 24 25

See [19.60].

Note also Gahagan v Taylor Bros (Slipway & Engineering) Pty Ltd (2004) Aust Torts Rep 81-740 where the plaintiff also went to the aid of a fellow-worker, but the rescue principle was not invoked. The decision turned on issues of causation.

[25.70]

25 Rescuers

881

Wagon Mound (No 1),26 it was held that all that was required was foreseeability of some kind of psychiatric injury. Those judges who dealt with the source of the duty were mainly concerned to establish that there was no need to show a family relationship between the plaintiff and the person injured. Windeyer J, in the most influential judgment, was emphatic on this point. Following the lead of Waller J in Chadwick’s case,27 his Honour said: There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence. The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. This allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognised only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body. What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct. Whatever the basis of the special position which it has been supposed should be given to near relatives, one thing can be said of it. That is that its application was in cases where the duty of care arose simply out of the duty to a “neighbour” in the legal sense. Relatives of an injured person might be neighbours in that sense, and in time rescuers joined them. But curious strangers, or mere bystanders like the pregnant fishwife, were not “neighbours”. They were not, using Lord Atkin’s words, persons “so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected”.28

Windeyer J went on to hold that in this case the relationship between the parties was not simply a neighbour relationship, but was one involving employer and employee, and that the duty of care which an employer owed to an employee covered foreseeable harm to the mind of the employee as well as the body. So the decision did not turn on the fact that the plaintiff was a rescuer. However, Windeyer J expressly mentioned the rescuer situation as one case where there was no family relationship between the parties, and the plaintiff was clearly a rescuer on the facts of the case and liability could equally well have been based on the rescue principle. [25.70] Windeyer J’s approach was supported by Walsh J, the only other member of the court who alluded to the relationship issue. Importantly, while acknowledging that the existence of a family relationship may be very relevant to the question of foreseeability of the injury sustained, he 26

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

27

Chadwick v British Railways Board [1967] 1 WLR 912, and also Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271: see [26.10]–[26.30].

28

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 404.

882

Part V: Some Special Cases

[25.80]

too could discern no rule of law which categorically denied relief to claimants who were not in a close natural bond with the impact victim. His Honour considered that there was no warrant for holding that the question whether or not mental injury to the plaintiff was reasonably foreseeable, which is a question of fact, must always receive a negative answer unless the plaintiff be a close relative.29 [25.80] There are some valuable comments on the rescuer principle in Reeve v Brisbane City Council,30 a decision of Lee J in the Queensland Supreme Court. The case on its facts does not involve any attempt at rescue (the deceased was a cleaner employed at a bus depot, who was killed by the negligence of a bus driver, and the plaintiff was his wife, who suffered psychiatric injury when told of her husband’s death), but in the course of determining whether there was a relationship of proximity between the plaintiff and the defendant the judge discussed the statement of Lord Wilberforce in McLoughlin v O’Brian31 suggesting that the law recognised the claims of those in a close family relationship and denied those of the ordinary bystander. This was contrasted with the express acceptance of the rescue principle both by Lord Wilberforce and by some Law Lords in the later case of Alcock v Chief Constable of South Yorkshire Police.32 In the words of Lee J: In both McLoughlin and Alcock it was accepted that a rescuer who came soon upon the scene of an accident was prima facie owed a duty of care in respect of a shock-induced illness. Yet again that is a conclusion which does not sit well with the narrow scope of Lord Wilberforce’s dicta. The basis upon which a rescuer is owed a duty of care is said to be that expressed by Cardozo J in Wagner v International Railway Co. … Clearly, on that basis, judicial recognition that a rescuer comes within Lord Atkin’s neighbour principle is both readily supportable as a matter of law and readily defensible as a matter of policy. But unless rescuers are to be treated as an anomaly in our law they must be capable of being accommodated within some broader principle. … In the case of a nervous shock suffered by a rescuer that “general conception of relations” [referred to by Lord Atkin in outlining the neighbour principle] cannot possibly be as expressed by Lord Wilberforce. So too in the case of a shock-induced illness inflicted on a servant by the negligence of his master. In such a case the circumstantial relationship which directly exists between the plaintiff/employee and the defendant/employer helps supply the proximity notwithstanding the absence of any pre-existing connection between the plaintiff and the victim: Mount Isa Mines Ltd v Pusey, esp at 404 per Windeyer J. The inevitable conclusion is that Lord Wilberforce’s criteria do not comprise the exclusive and essential determinants of the existence of a duty of care for 29

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 417.

30

Reeve v Brisbane City Council [1995] 2 Qd R 661.

31

McLoughlin v O’Brian [1983] 1 AC 410 at 422–423.

32

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408 per Lord Oliver of Aylmerton, at 420–421 per Lord Jauncey of Tullichettle.

[25.100]

25 Rescuers

883

nervous shock, although in most cases they will provide a convenient, and in some cases a sufficient, summary of the facts.33

[25.90] Lee J’s approach suggests that Australian law recognises rescuers as an independent category of psychiatric injury plaintiffs. Later Australian cases exemplify the rescue principle in action. For example, in Smith v State Government Insurance Commission,34 following a collision between a car and a truck, the truck driver (who was not in any way responsible for the accident) went to assist the occupants of the car and suffered psychiatric injury as a result of the experience. Ledger v Commonwealth35 was one of several cases to result from an accident on board HMAS Stalwart in 1985, when hydrogen sulphide was released into the stern gland compartment of the ship. The plaintiff, a petty officer, led a team into the danger area, assisted those affected and opened up the gun doors to clear the fumes. His emotional health was affected, he had to leave the Navy and three years later was diagnosed with post-traumatic stress disorder. Liability was admitted. In Mundraby v Commonwealth,36 an extension of time to sue was granted to another sailor who had assisted in the process of hauling up bodies on a sling: he initially thought that what was going on was simply an exercise, but within minutes realised that it was not.37 Of the many cases to result from the earlier maritime disaster involving the collision between HMAS Voyager and HMAS Melbourne, several involved crew members who acted as rescuers, for example Covington-Thomas v Commonwealth,38 where the plaintiff was one of the crew members of the Admiral’s barge, which was engaged in rescuing survivors, and had to leave some behind.39

Other jurisdictions [25.100] Canadian cases have also accepted that a duty may be owed to a rescuer who suffers psychiatric injury, irrespective of whether there is a family relationship between the rescuer and those endangered. For example, in the tragic case of Fenn v City of Peterborough40 a father attempted to search through the rubble of his home, destroyed by a gas 33

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 673.

34

Smith v State Government Insurance Commission (unreported, SASC, No 2018 of 1988, 5 June 1990).

35

Ledger v Commonwealth (unreported, Fed Ct, No G127 of 1990, 18 April 1991).

36

Mundraby v Commonwealth [1999] FCA 1293.

37

For other actions brought by sailors who assisted in hauling up the bodies, see Lewis v Commonwealth [1999] FCA 1292 (extension of time granted); Brandon v Commonwealth [2004] FCA 20 (plaintiff unable to discharge onus of showing that he had suffered psychiatric injury).

38

Covington-Thomas v Commonwealth [2007] NSWSC 779.

39

For other Voyager cases involving sailors who acted as rescuers, see [24.150].

40

Fenn v City of Peterborough (1976) 73 DLR (3d) 177, affirmed by the Ontario Court of Appeal and the Supreme Court of Canada sub nom Consumers’ Gas v Peterborough (1979) 104 DLR (3d) 174; Consumers’ Gas v Peterborough [1981] 2 SCR 613. Psychiatric injury issues were not discussed on appeal.

884

Part V: Some Special Cases

[25.110]

explosion, for two of his children. He had arrived a few minutes after the catastrophe to see his grotesquely injured wife (her legs had been burnt off) and the body of another child being loaded into an ambulance. He immediately ran to the wreckage but was restrained. In assessing liability for psychiatric injury, Holland J clearly acknowledged the existence of the rescuer principle, saying: “It is in the area of rescue cases that foreseeability of nervous shock has had the broadest operation.” However, recovery was not based solely on the fact that Mr Fenn had attempted to rescue his children. His Lordship said that by reason of his close family relationship with those injured and killed, and the fact that he arrived on the scene shortly after the explosion, psychiatric illness was foreseeable.41 [25.110] A later Canadian authority applied the rescue principle to found recovery in a more unusual fact situation than that normally encountered in “pure” rescue cases. In Bechard v Haliburton Estate,42 as the result of colliding with a car in which the plaintiff was a passenger, a motorcyclist was injured and thrown into the middle of the road. Seeing the defendant’s car approaching, the plaintiff attempted to warn him to stop by screaming and waving her arms. The defendant paid no heed and drove over the injured motorcyclist, killing him. The sight and sound of this tragic happening caused the plaintiff to suffer amnesia and a post-traumatic stress reaction. Though there are statements in the judgment of Griffiths JA referring to liability to bystanders generally,43 the defendant’s liability to the plaintiff was grounded on the rescue principle, in that she was attempting to save the motorcyclist from further injury, so performing a function analogous to that of a rescuer. [25.120] Another case of considerable interest is Joudrey v Swissair Transport Co.44 The plaintiff was a member of the Canadian armed forces on board a ship of the Canadian Navy when Swissair Flight 111 crashed into the ocean near Nova Scotia. The ship was alerted and sent to the scene of the crash and the plaintiff, as a first aid team leader, was deployed on deck to watch for survivors. After a 36-hour search, it became apparent that there were no survivors and the search had to be abandoned. The plaintiff was then placed in charge of a team whose job was to separate body parts from the debris, an operation which went on for six days. As a result of his involvement in this work the plaintiff had an emotional breakdown and sued Swissair for damages, arguing that he was a rescuer and that because he was summoned by government authority to take part in the rescue attempt it was foreseeable that he might suffer psychiatric injury. Swissair for their part said he was not a 41

Fenn v City of Peterborough (1976) 73 DLR (3d) 177 at 208–209. See also Brown v Hubar (1974) 45 DLR (3d) 664 at 673 per Grant J; Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 at 259 per Wallace JA, at 281–282 per Southin JA.

42

Bechard v Haliburton Estate (1991) 84 DLR (4th) 668.

43

See [9.460].

44

Joudrey v Swissair Transport Co (2004) 713 APR 156 (NS).

[25.130]

25 Rescuers

885

rescuer but rather a “recoverer”, and was not owed a duty of care. Pickup J decided that the incidents which caused the plaintiff distress happened during the second stage of the operation, by which time it had become one of recovery rather than rescue. Accordingly, he was not owed a duty of care as a rescuer. His Lordship went on to discuss whether the defendant owed a duty of care not to cause psychiatric injury to a person acting in the capacity of a recoverer. Following the Anns approach adopted in Canada,45 this involved both foreseeability and proximity issues. The judge, referring to the English distinction between primary and secondary victims, reviewed the possibility that the plaintiff might be a primary victim within the area of personal danger, but eventually held that no duty was owed to him. Though on the facts of the case the plaintiff was not a rescuer, and was not owed a duty of care in any other capacity, the court clearly accepted that earlier cases had recognised the rescue principle as part of Canadian law. [25.130] One of the most recent cases to recognise the rescue principle is A(NJ) v Cartwright Estate,46 a decision of Butler J of the Supreme Court of British Columbia. The plaintiff, driving to work, noticed a vehicle coming up behind him at high speed. It swerved into the other lane to avoid him and crashed into an oncoming vehicle. The plaintiff spent 90 minutes at the scene attempting to assist the two drivers, both of whom eventually died from their injuries. Eleven months later, the plaintiff suffered a panic attack at work, and was diagnosed as suffering from bipolar disorder and post-traumatic stress disorder. He sued the estate of the driver who caused the accident, alleging nervous shock from being a witness to the accident and its aftermath. Butler J approached the case by applying orthodox principles, as stated by the British Columbia Court of Appeal in Devji v Burnaby (District),47 which required foreseeability of psychiatric injury, a sufficiently close relationship with the accident victim, and the absence of any factors negativing a duty of care. The problem was the lack of any close family relationship, but here this could be compensated for by applying the rescue principle. Referring to Chadwick v British Railways Board,48 the judge said: [T]hat decision is thought to be a “very special case”. While it may be special, it is still possible for a plaintiff at the scene of a horrific accident who takes upon him or herself the task of providing some assistance to victims to recover for the resulting psychiatric injury. The crucial factor in such a case is whether or not the plaintiff was directly present at the scene of the accident and whether the accident was sufficiently horrific that a court could conclude that someone with the “usual fortitude” might suffer a psychological injury.49

There was no doubt that this test was satisfied on the facts of the case. 45

Anns v Merton London Borough Council [1978] AC 728: see [7.180].

46

A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351.

47

Devji v Burnaby (District) (1999) 180 DLR (4th) 205.

48

Chadwick v British Railways Board [1967] 1 WLR 912.

49

A(NJ) v Cartwright Estate (2007) 76 BCLR (4th) 351 at [35].

886

Part V: Some Special Cases

[25.140]

[25.140] Among the United States decisions there are occasional examples of the rescue principle being recognised: one such case was Eyrich for Eyrich v Dam50 from New Jersey, where the plaintiff and his wife took their neighbour’s five-year-old child to the circus, and attempted rescue when the child was attacked by a leopard. The attack proved fatal, and Mr Eyrich suffered devastating psychiatric consequences. The court held that when a danger had been negligently created, particularly to a child, the intervention of a rescuer was reasonably foreseeable and consequently the tortfeasor could be liable to the rescuer based on his or her negligence that endangered the person requiring rescue. It seems that the special circumstances of the case, and the fact that the plaintiff and his wife were acting as surrogate parents, made it unnecessary to show the family relationship normally required in secondary victim situations. However, the fact that rescue was involved did not take the case outside the other standard requirements of such cases. Following New Jersey law as it then stood, the court stressed that the plaintiff had sustained a physical impact and was within the area of physical risk. However, it was unnecessary for the plaintiff to show that the mental harm was caused by fear for his own safety. [25.150] Other American cases involving rescue have generally applied the standard rules, and the fact that rescue was involved seems to make little or no difference. In one case, for example, a husband rescued his wife from a fire that destroyed their house, caused by an explosion for which the defendant gas company was responsible, and suffered an anxiety neurosis and a depressive illness as a result; recovery was based essentially on the family relationship, and to some extent the property damage, rather than the fact of rescue.51 In another case, where a woman was rescued from a fire by her husband and two sons, the fact of the family relationship, and presence within the zone of danger, were the factors that caused the court to rule in favour of recovery for negligent infliction of emotional distress.52 These cases should be contrasted with several cases where recovery was denied because the rescuer had no family or other pre-existing relationship with the victim: thus a plaintiff who unsuccessfully performed CPR on a pedestrian struck by a vehicle was unable to recover damages for emotional distress against the driver of the vehicle and his employer because the plaintiff and the accident victim were strangers to one another;53 a diver who suffered posttraumatic stress disorder after attempting to rescue other divers trapped in the maintenance gate of a dam was refused recovery on the ground of

50

Eyrich v Dam 473 A 2d 539 (NJ 1984).

51

Entex Inc v McGuire 414 So 2d 437 (Miss 1982).

52

Wallace v Parks Corporation 629 NYS 2d 570 (1995).

53

Migliori v Airborne Freight Corporation 690 NE 2d 413 (Mass 1998).

[25.160]

25 Rescuers

887

the lack of any family relationship with the victims;54 the workmate of an employee electrocuted when a jackhammer struck a high-voltage underground power line, who put out the flames with a fire extinguisher and carried the injured man to the surface, was denied recovery because he was not a close relative;55 and a boat operator pulling two tube riders who witnessed a jet ski collide with one of the riders, dived into the water to rescue her, and got her body to shore was denied recovery because he was not in the zone of danger and had no family relationship with the deceased.56 It may be that a few isolated decisions from a handful of States provide only limited evidence, but on that evidence one is forced to conclude that despite Cardozo J’s ringing endorsement of the rescue principle as regards physically injured rescuers,57 there is not really an independent category of liability to psychiatrically injured rescuers similar to that found in Commonwealth countries.58

WHO IS A RESCUER? [25.160] In many cases, the situation is obviously one that falls into the rescue category: in Chadwick v British Railways Board,59 for example, Mr Chadwick was clearly acting as a rescuer when he came to help out at the Lewisham train disaster, and the same can be said for Mr Pusey when he heard the explosion at the Mount Isa Mine and went to the aid of his workmates. But some cases are not so straightforward, and the courts have been forced to explore the limits of the rescuer principle. In Frost v Chief Constable of South Yorkshire Police,60 Rose LJ in the English Court of Appeal set out some helpful general principles: Whether a particular plaintiff is a rescuer is, in each case, a question of fact to be decided in the light of all the circumstances of the case. Among the factors to be considered, although none is in itself decisive, are the following: the character and extent of the initial incident caused by the tortfeasor; whether that incident has finished or is continuing; whether there is any danger, continuing or otherwise, to the victim or to the plaintiff; the character of the plaintiff’s conduct, in itself and in relation to the victim; and how proximate, in time and place, the plaintiff’s conduct is to the incident. 54

Michaud v Great Northern Nekoosa Corporation 715 A 2d 955 (Me 1998). The court also held that the direct victim doctrine (see [18.190]–[18.240]) was not applicable. The supervisor of the attempted rescue was likewise held not to be a direct victim: Bourgeois v Great Northern Nekoosa Corporation 722 A 2d 369 (Me 1999). 55 Hislop v Salt River Project Agricultural Improvement and Power District 5 P 3d 267 (Ariz 2000). 56

Catron v Lewis 712 NW 2d 245 (Neb 2006).

57

Wagner v International Railway Co 133 NE 437 (NY 1921): see [25.20].

58

The Court of Appeals of New York, the court which decided Wagner v International Railway Co 133 NE 437 (NY 1921), held that a rescuer cannot recover for emotional injuries sustained in a rescue attempt: Lafferty v Manhasset Medical Center Hospital 429 NE 2d 789 (NY 1981). 59

Chadwick v British Railways Board [1967] 1 WLR 912.

60

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 265.

888

Part V: Some Special Cases

[25.170]

[25.170] The particular issue before the court in Frost v Chief Constable of South Yorkshire Police61 was whether any of the police officers on duty at Hillsborough on the occasion of the 1989 football disaster could be said to be acting as rescuers. Some helped to hand bodies down from the pens in which spectators had been trapped, and others attempted resuscitation, but none was really in danger of physical harm. When this case reached the House of Lords, the majority held that the rescuer principle only applies where the rescuer is in the area of physical danger. As far as English law is concerned, this now constitutes an important limitation on the concept of who is a rescuer.62 Putting this restriction on one side, there are nevertheless other points that emerge from the case law that help to fill in the picture. [25.180] First, it is clear that a person can be regarded as a rescuer even though the rescue attempt proves unsuccessful.63 Thus, for example, the fact that the Hillsborough police officers’ attempts to resuscitate injured spectators proved unavailing is not in itself a reason for holding that they cannot be classified as rescuers. In a number of cases, plaintiffs who have made unsuccessful rescue attempts have nonetheless been allowed to recover.64 [25.190] Secondly, the rescue concept is wide enough to include persons such as the plaintiff in Bechard v Haliburton Estate,65 who was not tending to the injured accident victim lying in the road, but attempting to direct traffic away from him to ensure that he suffered no further injury before help arrived. The court accepted that she was performing a function analogous to that of a rescuer.66 [25.200] Thirdly, as Rose LJ said, the limitations of time and space rule out a number of potential rescue claimants. One extreme example (not a psychiatric injury case) is Schlink v Blackburn.67 The plaintiff was asleep at home when he was awakened by a loud crash, and moments later someone banged on his window and said “Hey mister, your wife has been in an accident”. The plaintiff, panic-stricken, ran out of the house to go to the scene of the accident, but fell over and injured his foot descending the porch stairs. He had the intention of going to the rescue but never arrived at the scene of the accident. [25.210] Fourthly, Rose LJ correctly focused attention on the exact activity being performed. Many people play different parts at the scene of 61

Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

62

See [25.350]–[25.480].

63

See eg Gregg v Ashbrae Ltd [2005] NIQB 37 at [13] per Hart J.

64

See eg Fenn v City of Peterborough (1976) 73 DLR (3d) 177; Howes v Crosby (1984) 6 DLR (4th) 698; McCoy v Keating [2011] IEHC 260.

65

Bechard v Haliburton Estate (1991) 84 DLR (4th) 668.

66

Note also Pugh v London, Brighton & South Coast Railway Co [1896] 2 QB 248, where a signalman endeavoured to prevent a train accident by signalling to the driver: see [25.50].

67

Schlink v Blackburn (1993) 87 BCLR (2d) 129.

[25.220]

25 Rescuers

889

an accident, especially a large-scale disaster, but they are not all rescuers.68 The limits of the rescue principle were made apparent by the English Court of Appeal in Rapley v P & O European Ferries (Dover) Ltd69 in reversing an order for summary judgment made by the trial judge and granting unconditional leave to defend. The plaintiff was a member of one of the crews of the Herald of Free Enterprise but was not on board when she sank in a Zeebrugge harbour. He made two trips to the scene, going as a volunteer three days afterwards to help with relatives and then having to identify the bodies of two colleagues, and returning later to repeat the identification process in relation to a large number of crew members’ bodies that had by then been lying underwater for some time. His claim for psychiatric injury was based on the rescuer principle, but the Court of Appeal distinguished the case from Chadwick v British Railways Board,70 saying that the plaintiff could not in ordinary terms be described as a rescuer, since he did not help the injured involved in the accident. The same was true of the plaintiff in Mewett v Commonwealth71 who helped with the care of the injured following a ship collision but was not involved in the process of rescuing them and so could not be said to be acting as a rescuer.72 Others who simply assist in an ancillary capacity, for example Mr McFarlane who helped to put out blankets and prepare the ship to receive survivors of the Piper Alpha disaster,73 or Mr Campbell, who went to get help following a mine accident,74 cannot be correctly classified as rescuers. [25.220] In earlier cases, there were judges who were seemingly prepared to extend the rescuer concept to others who were not technically rescuers. Evatt J, for example, in his celebrated dissenting judgment in Chester v Waverley Corporation,75 spoke of “searchers” in the same terms as rescuers.76 In another dissenting judgment, that of Judge LJ in Frost v Chief 68

Note New South Wales v Brown [2003] NSWCA 21, where a tow-truck driver was asked by the police to check the damaged van he had towed away for a missing baby; it seems clear that he could not have been regarded as a rescuer.

69

Rapley v P & O European Ferries (Dover) Ltd (unreported, Eng CA, 21 February 1991).

70

Chadwick v British Railways Board [1967] 1 WLR 912.

71

Mewett v Commonwealth [2000] FCA 1045; for later proceedings see Mewett v Commonwealth (2003) 200 ALR 679. 72

Note also Keen v Tayside Contracts 2003 SLT 500, where the pursuer, a road worker, was directed by his employer to assist the emergency service workers at the scene of a road traffic accident, but there was no suggestion that he was a rescuer; Perham v Connolly (2003) 40 MVR 224, where the plaintiff was one of the first to arrive at the scene of the accident and did a number of things to help, but did not actually assist in rescuing anyone.

73

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

74

Campbell v North Lanarkshire Council [1999] ScotCS 163. Note also Young v Charles Church (Southern) Ltd (1997) 39 BMLR 146, where the plaintiff went to get help but there was no suggestion that he was a rescuer. 75 76

Chester v Waverley Corporation (1939) 62 CLR 1 at 39.

Evatt J’s judgment was referred to by McMeekin J in Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230 at [57], in a case where an employee who took part in the search for missing

890

Part V: Some Special Cases

[25.230]

Constable of South Yorkshire Police,77 his Lordship attempted to revive the notion of searchers, pointing out that the rescuer as identified by Cardozo J in his original statement of principle was one who was taking part in a search for those who are apparently lost,78 and that Lord Wright in Bourhill v Young79 had referred to “rescuers” and “searchers” as falling within the same principle, and had recommended close attention to the judgment of Evatt J.80 However, it is clear that courts at the present day are not prepared to extend the rescuer concept to such cases. This applies also to those who are involved following the conclusion of an unsuccessful rescue attempt: in Joudrey v Swissair Transport Co,81 Pickup J of the Nova Scotia Supreme Court was not prepared to recognise a new duty of care owed to persons who were “recoverers” rather than rescuers. Present-day law has refined the rescuer notion and clearly seeks to limit, rather than extend, this avenue of recovery. The latest English cases discussed at [25.350]–[25.460] have attempted to confine the rescuer concept within even narrower limits, and on one interpretation to eliminate it completely. [25.230] Can the “rescuer” exception be utilised to extend recovery to relatives outside the traditional spousal or parental categories (or indeed to any other person)? For example, does it permit the inclusion of a person who visits the injured in hospital to comfort and care? Lord Edmund-Davies thought so in McLoughlin v O’Brian,82 although in that case the plaintiff was in any event within the immediate familial nucleus. The “quasi-rescuer” extension had, however, been expressly rejected by Griffiths LJ in the English Court of Appeal83 and the other Law Lords were silent on the issue. No Australian or Canadian judge has followed his Lordship’s path, and it seems highly unlikely that this particular extension will be adopted by any court in future.84 Significantly, in Alcock v Chief Constable of South Yorkshire Police85 Lord Jauncey of Tullichettle, speaking at a more general level, expressed the view that miners following an explosion was held to have sufficient evidence to establish a right of action for the purposes of an application to extend the limitation period (though the judge was not prepared to exercise discretion in favour of granting an extension). However, the reference to the judgment of Evatt J was used to support the argument that the employee was owed a duty qua employee even though he was not at work on the day of the explosion, rather than a duty owed to him in the capacity of a rescuer. 77

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 284–286.

78

Wagner v International Railway Co 133 NE 437 (NY 1921) at 437.

79

Bourhill v Young [1943] AC 92 at 108.

80

Bourhill v Young [1943] AC 92 at 110.

81

Joudrey v Swissair Transport Co (2004) 713 APR 156 (NS).

82

McLoughlin v O’Brian [1983] 1 AC 410 at 424.

83

McLoughlin v O’Brian [1981] QB 599 at 622–623.

84

In Wong Fung Sze v Hospital Authority [2005] HKEC 219 the court rejected an argument that the wife of a man who had attended her husband in hospital, where he died as a result of negligent medical treatment, could be described as a rescuer. It appears that this argument was mounted in an attempt to claim primary victim status.

85

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 421.

[25.250]

25 Rescuers

891

neither the rescuer nor the employee category could be utilised so as to justify the further expansion of liability for psychiatric damage. Any deviation from the orthodox position would need to be based on other grounds.

RESCUERS AND THE CIVIL LIABILITY ACTS [25.240] In Australia, the scope of the rescue principle as determined by the common law is now restricted by the Civil Liability Acts in some jurisdictions.86 The problem is not the general provisions that set out the duty of care in cases of mental harm:87 the rule that the defendant does not owe a duty to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken is perfectly capable of application to the rescue situation. The circumstances set out in the legislation can be applied to the rescue scenario. There may or may not have been a sudden shock. It is likely that there will not have been any close relationship between the rescuer and the person who has been killed, injured or put in peril, although there may be cases where there is a family relationship between the victim and the rescuer, and in any case the legislation simply refers to the nature of the relationship and does not specifically require a family relationship. There may or may not be a pre-existing relationship between the rescuer and the defendant: it may depend on whether the party at fault is the rescuer’s employer88 or someone else.89 The most troublesome circumstance is whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, since it may appear at first sight that this will already have happened by the time the rescuer appears on the scene. However, as the High Court pointed out in Wicks v State Rail Authority (NSW),90 the legislation does not prescribe any particular consequence as following from the presence or absence of any or all of these circumstances: what matters is the foreseeability test. [25.250] The problems experienced by rescuers stem from the legislative provisions in four jurisdictions — New South Wales, Victoria, Tasmania and South Australia — limiting liability for pure mental harm to cases where the plaintiff is either in a close family relationship with the accident 86

Parts of this section are based on P Handford, “Cinderellas? Rescue, Trauma and the Civil Liability Acts” (2013) 115 Precedent 4. The title is explained by Fleming’s remark that the rescuer, once the Cinderella of the law, had since become its darling: JG Fleming, The Law of Torts (5th ed, Law Book Co, Sydney, 1977), p 161.

87

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S.

88

As in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

89

As in Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

90

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [23] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

892

Part V: Some Special Cases

[25.260]

victim or witnesses the accident taking place.91 Section 30(2) of the Civil Liability Act 2002 (NSW), for example, provides: The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.92

Except in the rare case where rescuers are related to the immediate accident victim, this section thus requires that they must witness, at the scene, the accident victim being killed, injured or put in peril. Since rescuers usually come on the scene only after the accident has happened, the legislation appeared to have narrowed the scope of the duty owed to rescuers as compared with the common law. [25.260] This matter was put to the test in the leading case of Wicks v State Rail Authority (NSW).93 The facts have been noted in other chapters: two police officers were called to the scene of a horrific train derailment at Waterfall, south of Sydney, in which seven people had been killed and many others injured. They had to deal with dead bodies and move the injured to safety, in some cases entering wrecked carriages to extricate them. Fallen power lines presented a threat of electrocution. The plaintiffs claimed that this experience had caused them to suffer symptoms of post-traumatic stress disorder and other traumatic conditions. At first instance and in the New South Wales Court of Appeal it was held that neither plaintiff witnessed, at the scene, a person being killed, injured or put in peril.94 Beazley JA in the Court of Appeal said that, according to the ordinary meaning of the words, the plaintiff had to be at the scene when the incident occurred and had to witness a person being killed, injured or put in peril. Here, it was the derailment that put the victims in peril, and by the time the plaintiffs arrived the derailment was over and the process of victims being put in peril had ended.95 [25.270] On appeal, the High Court adopted a more beneficent interpretation (whether or not it was one that had been intended by the New South Wales legislature). In a joint judgment concurred in by all the members of the court, it said that it was not possible to assume that all cases of death, injury or peril are events that begin or end instantaneously, or even within the space of a few minutes. Even if the deaths were instantaneous or nearly so, not all the injuries were suffered during the process of derailment: it could be inferred that some suffered further injury as they were extricated from the wreckage, or suffered psychiatric injuries as a result of what happened to them during the crash and its 91

See [13.290]–[13.560].

92

“Close member of the family” is defined by s 30(5).

93

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

94

Wicks v Railcorp [2007] NSWSC 1346; Sheehan v State Rail Authority (NSW) [2009] NSWCA 261.

95

Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 at [76].

[25.290]

25 Rescuers

893

aftermath at the accident scene. Even if it was not appropriate to draw these inferences, the victims remained in peril during the rescue process.96 Each rescuer was therefore owed a duty of care.97 [25.280] The position in the other three jurisdictions depends on whether the variations in wording of the Civil Liability Act provisions equivalent to s 30 of the New South Wales Act give rise to material differences so far as the position of rescuers is concerned. Apart from minor drafting differences, s 73 of the Wrongs Act 1958 (Vic) is identical to s 30 except for referring to being “in a close relationship with the victim”. This may cover a wider group that the New South Wales equivalent, but is not likely to cover rescuers. It is therefore presumed that the High Court’s interpretation of the New South Wales provision in Wicks v State Rail Authority (NSW)98 would apply to the Victorian provision also. [25.290] In Tasmania, it may not be necessary to rely on Wicks v State Rail Authority (NSW)99 to preserve the duty owed to rescuers. Section 32 of the Civil Liability Act 2002 (Tas) is identical in wording to the New South Wales provision, subject to one very important difference. It provides that (except where the plaintiff is a close member of the family of the victim) the plaintiff cannot recover damages for pure mental harm unless he or she “witnessed, at the scene, the victim being killed, injured or put in peril or the immediate aftermath of the victim being killed or injured”. The problem with the New South Wales provision was that it could be read as negating the aftermath principle as developed by the common law from the 1960s onwards.100 The Tasmanian provision has preserved the notion that it is enough if the plaintiff was present at the aftermath of the accident, at the scene at least. When Wicks was in the New South Wales Court of Appeal, the majority judgment controversially made use of the different wording of the Tasmanian provision to confirm that the New South Wales provision was limited to cases where the plaintiff actually saw the accident happen.101 As a result of the overturning of the Court of Appeal’s decision, this interpretation must now be open to doubt. However, as far as Tasmania is concerned, the interpretation of “witnessing, at the scene, the victim being killed, injured or put in peril” is immaterial, at least so far as rescuers are concerned, because the rescuer will normally be a person who witnesses the immediate aftermath of the victim being killed or injured. 96

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [44]–[49] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 97

The High Court also made important observations concerning the relationship between s 30 and the duty of care provisions: Wicks v State Rail Authority (NSW) (2010) 241 CLR 60 at [24]–[26]: see [2.450]–[2.490]. 98

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

99

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

100

See [10.60]–[10.130].

101

Sheehan v State Rail Authority (NSW) [2009] NSWCA 261 at [70]–[72] per Beazley JA.

894

Part V: Some Special Cases

[25.300]

[25.300] In New South Wales, Victoria and Tasmania, it seems that by one means or another, it may be possible for rescuer claims to be brought within the ambit of the Civil Liability Acts. But this is not the case in South Australia, because of a crucial difference in the wording of the legislation. Section 53(1) of the Civil Liability Act 1936 (SA) provides that damages may only be awarded for mental harm if the injured person is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident, was physically injured in the accident or “was present at the scene of the accident when the accident occurred”. This form of words avoids some of the complications of the other provisions, and means that the decision in Wicks v State Rail Authority (NSW)102 has no direct effect: South Australian courts will not have to ask whether in a rescue situation further injuries might be happening during the rescue process, or whether some people may be suffering psychiatric injuries at that point, or whether the victims or some of them remained in peril after the accident had happened. [25.310] However, the problems for rescuers in South Australia stem from the fact that s 53, unlike its counterparts in New South Wales, Victoria and Tasmania, is not limited to secondary victim cases. Section 30(1) of the Civil Liability Act 2002 (NSW) provides: This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant.

There are equivalent provisions in Victoria and Tasmania103 — but not in South Australia. [25.320] It is possible to argue that s 30 was inapplicable in Wicks v State Rail Authority (NSW).104 The High Court emphasised that all parties had assumed that the claim had to be characterised as one arising in connection with another person being killed, injured or put in peril,105 whereas Lord Oliver of Aylmerton in his seminal judgment in Alcock v Chief Constable of South Yorkshire Police106 had classified rescuers as primary, not secondary, victims. This suggests that rescuer cases could have been put in a category different from that identified by s 30(1). However, this argument is not open in South Australia, where there seems no way in which the police officers in Wicks, for example, could satisfy the requirements of s 53(1) of the Civil Liability Act 1936 (SA). It could surely not be said that they were present at the scene of the accident when the accident occurred, and even given the High Court’s extensive 102

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

103

Wrongs Act 1958 (Vic), s 73(1); Civil Liability Act 2002 (Tas), s 32(1).

104

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60.

105

Wicks v State Rail Authority (2010) 241 CLR 60 at [39] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

106

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

[25.350]

25 Rescuers

895

interpretation of the differently worded New South Wales provision, it is surely not possible to say that the accident was still happening when they commenced rescue operations. [25.330] All this underlines the lack of uniformity that now prevails in Australian tort law, not only in relation to mental harm but much else besides. There seems no logic in a situation under which rescuers in South Australia are worse off than anywhere else.

LIMITS OF THE RESCUER PRINCIPLE IN ENGLISH LAW [25.340] At common law, the courts have generally felt free to give wide scope to the rescue principle, and rescuers have generally been regarded as a particularly deserving category of plaintiffs; this applies whether they suffer physical or psychiatric injury. However, over the last 20 years, the English courts have come to adopt a rather more restrictive attitude towards psychiatrically injured rescuers — a development that has some parallels with the Australian legislative provisions just considered. [25.350] The first signs of this narrower approach began to emerge in McFarlane v EE Caledonia Ltd,107 the first of the cases arising out of the Piper Alpha disaster in the North Sea in 1988.108 The plaintiff, who worked as a painter on board the Piper Alpha oil rig, was off duty and in his bunk in the support vessel Tharos when there was a series of massive explosions on board the rig. He witnessed the scene for an hour and three quarters before he was lifted off the ship by helicopter. During that time the ship twice moved closer to the scene in an effort to help, but was beaten back by the heat. The closest it got was about 100 metres away. During this time the plaintiff was collecting blankets and assisting in preparing the helihangar for reception of casualties. He sued for psychiatric illness suffered as a result of witnessing these events, and the question of duty was tried as a preliminary issue. Smith J held that the plaintiff was owed a duty as a participant, but on appeal the English Court of Appeal disagreed. Stuart-Smith LJ said that a duty would exist if the plaintiff was in the actual area of danger, or though not in fact in danger reasonably thought that he was because of the sudden and unexpected nature of the event. A third possible way in which he could be owed a duty as a participant was if he was a rescuer. Of this category his Lordship said: [T]he situation may arise where the plaintiff who is not originally within the area of danger comes into it later. In the ordinary way, such a person, who is a volunteer, cannot recover if he freely and voluntarily entered the area of danger. This is not something that the tortfeasor can reasonably foresee, and the plaintiff may also be met with a defence of volenti non fit injuria. However, if he comes as a rescuer, he can recover. This is because a tortfeasor who has 107

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

108

See also [24.70]–[24.120].

896

Part V: Some Special Cases

[25.360]

put A in peril by his negligence must reasonably foresee that B may come to rescue him, even if it involves risking his own safety.109

There was never any real possibility that the acts performed by the plaintiff in this case brought him into the rescue category. Nor was he able to succeed under the other two participant categories, and the court ruled out the possibility of recovery by an unrelated bystander, even in a case of a disaster on such a scale as this.110 But what is noteworthy about this case as far as the rescue principle is concerned is that the judgment can be read as suggesting that a rescuer had to come within the area of possible physical injury in order to recover for psychiatric injury. [25.360] So interpreted, the case was out of line with other authority. The gruesome scenes endured by a rescuer may carry a risk of psychiatric injury even when the physical danger is past and gone. The plaintiff in Chadwick v British Railways Board,111 for example, was not in any personal danger, except perhaps incidentally at times when there was a danger of being injured by falling debris. But Waller J regarded this as irrelevant. He held that it was the whole horror of the situation that affected Mr Chadwick.112 However, McFarlane was the precursor of a change in the way in which the rescue principle is viewed by English law, brought about by the trilogy of House of Lords cases in the 1990s. [25.370] The rescue principle was not directly raised in either Alcock v Chief Constable of South Yorkshire Police113 or Page v Smith,114 but together they directed attention to the proper attitude to be taken to rescuer claims. Lord Oliver of Aylmerton in the former case categorised rescuers as one class of primary victim;115 however, Lord Lloyd of Berwick’s reformulation of principle in the latter decision, by its focus on primary victims who were present within the zone of physical danger,116 caused later judges to question the proper extent of the rescue principle. [25.380] The issue of rescuers was directly raised in the third of these cases, White v Chief Constable of South Yorkshire Police,117 the action brought by police officers who sued their employer for psychiatric injury caused by the Hillsborough tragedy through their involvement, either through 109

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 at 10.

110

See [9.490].

111

Chadwick v British Railways Board [1967] 1 WLR 912.

112

Chadwick v British Railways Board [1967] 1 WLR 912 at 918; see also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 484, 486 per Lord Goff of Chieveley. 113

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

114

Page v Smith [1996] AC 155.

115

See [3.90]–[3.100].

116

See [3.130]–[3.140].

117

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. For literature on this case, see [3.40]; on the rescue aspects see also D Nolan, “Taking Stock of Nervous Shock” (1999) 10 KLJ 111; M Eburn, “Rescuers and Nervous Shock” (1999) 73 ALJ 132; R Mullender and A Speirs, “Negligence, Psychiatric Injury and the Altruism Principle” (2000) 20 OJLS 645.

[25.400]

25 Rescuers

897

being on duty at the game or being summoned to the ground after the disaster had occurred.118 At least four of the six officers could be said to have acted as rescuers: Inspector White, who was on duty at the ground, and who helped to pass the injured and dead from the Leppings Lane pens; DC Hallam, who was also on duty at the ground, and sought to revive an apparently dead boy; and PCs Bevis and Bairstow, who were among those officers called to the ground after the incident and were on duty at the gymnasium where they made unsuccessful attempts at resuscitation. The decision of the English Court of Appeal in this case seemed to have ensured that the division between primary and secondary victims cemented into the law by Page v Smith119 would not have a major effect on recovery by rescuers, but the majority judges in the House of Lords, responding to the attractions of Lord Lloyd’s view and to pressures to prevent further expansion of liability in this field, imposed a damaging and unjustified limitation on the scope of the law as previously understood. [25.390] At first instance,120 Waller J121 took a rather restrictive view, ruling that only one of the six plaintiffs, Inspector White, qualified as a rescuer, and that he could not recover because he was a professional rescuer not intimately participating in the incident itself or its immediate aftermath, and so it would not be just and reasonable to allow him to recover whereas a bystander could not. In his view, it was appropriate to make a distinction between “professional” and “amateur” rescuers: the former, as persons of extraordinary fortitude hardened to events that would affect an ordinary person, should only recover in wholly exceptional circumstances. This “professional rescuer” concept closely resembled the similar doctrine recognised in United States law.122 Accordingly, all the plaintiffs’ cases failed. [25.400] The majority judges in the Court of Appeal,123 Rose and Henry LJJ, returned to more orthodox principles, and held that Inspector

118

Fifty-two police officers commenced proceedings, but 15 abandoned their actions. Liability was admitted to 14 who had entered the pens where the tragedy occurred or were active at the fence: see [3.40]. The roles played by the six plaintiffs were representative of the various activities carried out by the remaining 23: Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 259–260 per Rose LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 466 per Lord Goff of Chieveley. 119

Page v Smith [1996] AC 155.

120

Sub nom Frost v Chief Constable of South Yorkshire Police (The Times, 3 July 1995). Frost was presumably another police officer who had dropped out of the proceedings by the time the case came to trial.

121

Mark Waller J, son of George Waller J who was the judge in Chadwick v British Railways Board [1967] 1 WLR 912. 122

The so-called “firefighters” rule: see eg DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, Ch 30.

123

Sub nom Frost v Chief Constable of South Yorkshire Police [1998] QB 254.

898

Part V: Some Special Cases

[25.410]

White and PCs Bairstow and Bevis should recover as rescuers.124 They rejected any notion that a more limited duty should be owed to professional rescuers, pointing to the rejection of any such rule by the House of Lords in Ogwo v Taylor125 (not a psychiatric injury case).126 Consistently with previous authority, both judges took a broad view of the rescuer category. Rose LJ said that since Bourhill v Young127 it had been recognised that the ambit of persons affected by negligence extended beyond those actually subject to physical impact, particularly to rescuers, and that rescuers were in a special category.128 PCs Bairstow and Bevis were properly categorised as rescuers even though their attempts had been unsuccessful.129 Henry LJ said that public policy favoured a wide definition “to ensure that those brave and unselfish enough to go to the help of their fellow-men will be properly compensated if they suffer damage as a result”.130 Both judges rejected any suggestion that liability to rescuers was based on a risk of personal injury — so taking a much wider view of the concept than Stuart-Smith LJ in McFarlane v EE Caledonia Ltd.131 They affirmed that in Chadwick v British Railways Board132 it was the horror of the whole experience that caused the plaintiff to suffer psychiatric injury.133 The same was true in this case. It mattered not that the police involved in rescue operations were not at risk of physical injury.134 [25.410] Neither Rose nor Henry LJJ felt it necessary to ask as a preliminary question whether any individual rescuer was a primary or secondary victim, or to differentiate between the rules applied to the two categories. Rose LJ said that Lord Lloyd’s categorisation did not expressly or by implication have the rescue cases in mind, and indeed none of them 124

DC Hallam did not appeal to the Court of Appeal, but it seems possible that the court would have taken the same view of his case.

125

Ogwo v Taylor [1988] AC 431.

126

The dissenting judge, Judge LJ, agreed: Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 284. 127

Bourhill v Young [1943] AC 92.

128

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 264.

129

See [25.180].

130

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 283.

131

McFarlane v EE Caledonia Ltd [1994] 2 All ER 1.

132

Chadwick v British Railways Board [1967] 1 WLR 912.

133

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 264 per Rose LJ, at 283 per Henry LJ. 134

Note, however, that Rose LJ suggested that one of the relevant factors in determining whether the plaintiff is a rescuer is how proximate in time and space the rescuer’s conduct was to the incident. It is submitted that this should not be treated as something akin to the aftermath rule for secondary victim plaintiffs. The companion case of Duncan v British Coal Corporation [1997] 1 All ER 540 shows the potential limiting effect of such considerations: a mining supervisor who gave mouth-to-mouth resuscitation at the scene of a pit accident for two hours was held not to be a rescuer because he arrived four minutes after the incident took place.

[25.430]

25 Rescuers

899

had been cited in the speeches in the House of Lords or in argument.135 Henry LJ agreed,136 and pointed out the inconsistencies between Lord Oliver’s original concept, under which rescuers were among those classified as participants, and Lord Lloyd’s reformulation, according to which if rescuers are not within the area of physical danger they must be relegated to the class of secondary victims.137 In contrast, the dissenting judge, Judge LJ, said that claims by rescuers now had to be approached in the same analytical way as claims by other victims, whose cases depended on whether they had been found to be primary or secondary victims:138 he would not have placed any of the plaintiffs in the former category. [25.420] The defendant’s appeal to the House of Lords succeeded.139 A bare majority of the House took a much narrower view of the scope of liability to rescuers, in the face of strong dissents from the other two judges. Lords Steyn and Hoffmann (with the concurrence of Lord BrowneWilkinson) opined that the case demonstrated the need for a new control mechanism to restrict liability to rescuers suffering psychiatric damage to those who were actually in physical danger. Chadwick v British Railways Board140 could be justified only on the basis that the plaintiff had objectively exposed himself to danger or reasonably believed that he was doing so.141 Lord Steyn142 emphasised that the rescuer principle, as previously understood, was an exception to the limitations recognised in Alcock v Chief Constable of South Yorkshire Police143 and Page v Smith.144 Lord Hoffmann said that the rescuer cases obeyed general negligence principles, and rescuers should not be given special treatment when they were not within the range of foreseeable physical injury; and that giving a remedy to the police in this case was unacceptable because it was unfair to spectator claimants.145 [25.430] The new restriction was strongly opposed by Lord Griffiths and Lord Goff of Chieveley. Lord Griffiths opposed it on the robust practical ground that the courts were capable of controlling any supposed flood of claims.146 His refusal to reinterpret Chadwick v British Railways Board147 is 135

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 265.

136

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 283.

137

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 275–276.

138

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 288–290.

139

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

140

Chadwick v British Railways Board [1967] 1 WLR 912.

141

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 499 per Lord Steyn, at 508 per Lord Hoffmann.

142

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 498.

143

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

144

Page v Smith [1996] AC 155.

145

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 508–511.

146

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 464–465.

900

Part V: Some Special Cases

[25.430]

of particular interest, since Lord Hoffmann based the suggested reinterpretation on the arguments of Lord Griffiths (who had been the successful counsel for Mr Chadwick) in the English Court of Appeal in McLoughlin v O’Brian.148 Lord Goff provided a detailed and authoritative refutation of the majority view.149 He pinpointed the issue by saying that what was proposed was a new restriction on existing authority,150 one that was contrary to well-established decisions such as Mount Isa Mines Ltd v Pusey151 and Chadwick v British Railways Board, and would erect a new artificial barrier against recovery. He pointed out the fallacies behind the supposed injustice of compensating the police and not the spectators: the restrictions imposed in Alcock v Chief Constable of South Yorkshire Police152 would have been equally applicable to police officers who were merely witnesses, and the new restriction would also exclude spectator rescuers who were never within the area of physical danger. [H]owever, it is in any event misleading to think in terms of one class of plaintiffs being “better off” than another. Tort liability is concerned not only with compensating plaintiffs, but with awarding such compensation against a defendant who is responsible in law for the plaintiff’s injury. It may well be that one plaintiff will succeed on the basis that he can establish such responsibility, whereas another plaintiff who has suffered the same injury will not succeed because he is unable to do so. In such a case, the first plaintiff will be “better off” than the second, but it does not follow that the result is unjust or that an artificial barrier should be erected to prevent those in the position of the first plaintiff from succeeding in their claims. The true requirement is that the claim of each plaintiff should be judged by reference to the same legal principles.153

Liability for psychiatric injury should not be restricted by reference to the possibility of physical danger. One could be forgiven for thinking that this had been firmly established years ago,154 but it now seems to require reaffirmation. In England at least, the rights of rescuers, whether “professional” rescuers such as police officers, workmates or others for whom the cry of distress is the summons to relief,155 are now much more narrowly circumscribed than they were.

147

Chadwick v British Railways Board [1967] 1 WLR 912.

148

McLoughlin v O’Brian [1981] QB 599 at 622 per Griffiths LJ, quoted by Lord Hoffmann in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 509.

149

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 486–488.

150

This seems more accurate than Lord Hoffmann’s characterisation of the issue as whether the court should extend liability for psychiatric injury to rescuers: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 509. 151

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

152

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

153

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 488.

154

See [25.30].

155

Wagner v International Railway Co 133 NE 437 (NY 1921) at 437.

[25.450]

25 Rescuers

901

[25.440] As one would expect, subsequent English cases have accepted these new restrictions on the rescuer doctrine. In Greatorex v Greatorex,156 for example, the plaintiff was a fire officer who was summoned to the scene of a road accident and found that the victim was his own son,157 who had negligently injured himself. One argument advanced was that the son owed the father a duty as a rescuer.158 Cazalet J said that prior to White v Chief Constable of South Yorkshire Police159 rescuers were treated as belonging in a special category, but this was no longer the case: The effect of the majority decision is that in order to recover compensation for pure psychiatric injury suffered as a rescuer the claimant has at least to satisfy the threshold requirement that he objectively exposed himself to danger or reasonably believed that he was doing so, although it is not necessary for him to establish that his psychiatric condition was caused by the perception of personal danger. Where this element of personal danger is lacking his position is no different from that of other secondary victims who are subject to the control mechanisms to which I have referred above.160

Even on the pre-White view of the law, his decision would not have been different: I would add, for the sake of completeness, that even had I been persuaded by Mr Mason to discard our doctrine of precedent and follow the minority views of Lord Griffiths and Lord Goff in the [White] case, my conclusion on the agreed facts would not have been any different. Although the accident involved a potentially serious injury to the first defendant, the circumstances in which the rescuers involved in the aftermath of that accident found themselves in no way approached the horror of the circumstances in which the rescuers found themselves in the Lewisham train disaster or in the Hillsborough football stadium disaster. Even on the minority view in the [White] case, a rescuer who suffered psychiatric injury in consequence of his experiences after arriving at the scene of this accident would not on the facts of the case be entitled, as a rescuer, to recover damages for his injury.161

[25.450] Another case that illustrates the application of the principles now adopted by English law is Monk v PC Harrington Ltd.162 During construction of the new Wembley Stadium in London, a platform fell 60 feet, hitting two men who were working below. The claimant, a foreman, was immediately informed on his portable radio that there had 156

Greatorex v Greatorex [2000] 1 WLR 1970.

157

It sometimes happens that professional rescuers such as the plaintiff in this case find that the accident victim is a close relation: see eg “Dad found daughter dead in car crash”, Birmingham Evening Mail, 21 January 2000; “Father called to son’s fatal crash”, The West Australian, 26 June 2000; “Second fatal crash shocks rural town”, The West Australian, 16 July 2001; “Fire chief agony”, The West Australian, 7 December 2001; “Police officer called to crash site finds young daughter dead”, Sydney Morning Herald, 20 December 2015.

158

For the other issues involved in this case, see [15.160]–[15.170].

159

White v Chief Constable of South Yorkshire Police [1992] 2 AC 455.

160

Greatorex v Greatorex [2000] 1 WLR 1970 at 1975. See also Gregg v Ashbrae [2005] NIQB 37 at [13] per Hart J.

161

Greatorex v Greatorex [2000] 1 WLR 1970 at 1976.

162

Monk v PC Harrington Ltd [2009] PIQR P3.

902

Part V: Some Special Cases

[25.460]

been an accident, and went to the scene and crawled underneath the platform to see if he could help the injured men. The accident preyed on his mind and he was later certified by doctors as suffering from post-traumatic stress disorder and associated depression. Leggatt QC, sitting as a Deputy Judge of the Queen’s Bench Division, applied the principle of White v Chief Constable of South Yorkshire Police163 that rescuers, in order to qualify as primary victims, must have been exposed to danger or must have reasonably believed that they were in danger. This involved making findings about the claimant’s state of mind. He found that the claimant was an unreliable witness. He accepted that the claimant could fairly be described as a rescuer: though (contrary to his evidence) he was not the only person who had gone to the rescue, he played a lead role until the site medical officer arrived. He had given assistance that was not trivial or peripheral. However, it could not be said that he had objectively exposed himself to danger or reasonably believed that he was doing so. Evidence that he had to pass under another platform that might also fall was not accepted. The claimant therefore failed to recover under the rescue principle. An argument that he was entitled to recover as an involuntary participant was likewise unsuccessful.164 [25.460] Cullin v London Fire and Civil Defence Authority165 seems to have interpreted the post-White law in a manner a little more favourable to rescuers. The case involved three firefighters who sued their employer for psychiatric injury. Two (Sheehan and White) attended a fire at which a wall collapsed, and had to remove the debris and recover the body of a man buried underneath. The third (Cullin) was part of a team at another fire that searched unsuccessfully for four firefighters lost inside a building, and saw other firefighters bring out the dead bodies. The defendant argued that the claims should be struck out, on the basis that in order for any of the claimants to recover as primary victims they had to be involved in the same accident or incident as had given rise to the death of or injury to the accident victims, which limited the first two firefighters to the collapse of the wall and the third to the failure of the breathing equipment. The English Court of Appeal affirmed the trial judge’s refusal to strike out the statement of claim, saying that the approval of Chadwick v British Railways Board166 by the House of Lords in White v Chief Constable of South Yorkshire Police167 was fatal to the defendant’s application. Swinton Thomas LJ was critical of the defendant’s argument in White that it was unjust to allow recovery to the police and not to other bystanders. He said that the outcome was likely to depend on findings of fact, and the claimants might be able to establish a factual situation that placed them in a situation of personal danger. The events in question should be looked at 163

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

164

See [26.250].

165

Cullin v London Fire and Civil Defence Authority [1999] PIQR P314.

166

Chadwick v British Railways Board [1967] 1 WLR 912.

167

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[25.480]

25 Rescuers

903

broadly: “It may be the collapsing wall, as in White and Sheehan, or the fireman getting lost, as in Cullin, but it may encompass a much broader spectrum of the relevant facts.”168 [25.470] In other common law countries, there has as yet been little reaction to the restriction of the rescuer doctrine brought about for English law by White. On a general level, Australian law has reacted unfavourably to the new doctrine on primary victims introduced by the House of Lords in Page v Smith,169 which has been confirmed not to be part of Australian law.170 Since the emphasis in that case on being within the zone of personal danger, and the different rules that apply as a result, is closely related to the similar emphasis on personal danger as regards rescuers that emerges from the House of Lords’ later decision in White v Chief Constable of South Yorkshire Police,171 it can perhaps be assumed that Australian courts’ disapproval of other aspects of the White decision172 may extend also to its restriction of the rescuer doctrine. But as yet there is no post-White Australian common law decision involving a rescuer. FAI General Insurance Co Ltd v Lucre173 was a case involving a collision between a car and a truck (due entirely to the negligence of the car driver). The truck driver phoned the emergency services, found that the driver had a faint pulse, and covered her with a blanket. The rescuer question was not pursued, and the decision turned on other issues.174 However, Mason P referred to his judgment in New South Wales v Seedsman175 in which, contrary to White, he had affirmed the general duty of an employer to take care not to cause psychiatric injury to an employee. [25.480] It is probably unlikely that the highest United Kingdom court will reconsider its attitude to the rescuer issue, but it is to be hoped that other Commonwealth courts will not follow the House of Lords in downgrading the status of the rescuer category and in effect requiring rescuers to qualify as primary or secondary victims under other principles of recovery. The act of rescue is to be encouraged, as Cardozo J suggested nearly a century ago. If the total horror of the situation causes a rescuer to suffer a psychiatric illness the courts should be prepared to award damages to reflect the importance of the rescue activity on which the rescuer is engaged, as they did from Chadwick v British Railways Board176 onwards, until the surprising turnaround in White v Chief Constable of 168

Cullin v London Fire and Civil Defence Authority [1999] PIQR P314 at P325.

169

Page v Smith [1996] AC 155.

170

See [3.230].

171

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

172

See [19.150]–[19.180].

173

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

174

See [15.120]–[15.130], [26.110]–[26.120].

175

New South Wales v Seedsman (2000) 217 ALR 583: see [19.150].

176

Chadwick v British Railways Board [1967] 1 WLR 912.

904

Part V: Some Special Cases

[25.480]

South Yorkshire Police.177 It does not seem consonant with justice to say that rescuers should put up with the risk of psychiatric harm unless they are in physical danger.

177

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

Chapter 26

Involuntary Participants [26.10] DOOLEY V CAMMELL LAIRD AND OTHER EARLY CASES .............................. 905 [26.70] LORD OLIVER AND THE INVOLUNTARY PARTICIPATION PRINCIPLE ........ 909 [26.110] THE INVOLUNTARY PARTICIPATION PRINCIPLE IN AUSTRALIA ............... 912 [26.110] The common law ............................................................................................................ 912 [26.130] Effect of the Civil Liability Acts ................................................................................... 914 [26.150] LIMITS OF THE INVOLUNTARY PARTICIPATION PRINCIPLE IN THE UNITED KINGDOM ...................................................................................................... 914 [26.150] Effect of Page v Smith in England ............................................................................... 914 [26.270] Scotland and Northern Ireland .................................................................................... 921 [26.310] THE LAW ELSEWHERE ............................................................................................... 924 [26.310] Recognition of the involuntary participation principle ........................................... 924 [26.350] Failure to recognise the involuntary participation principle .................................. 927 [26.370] CONCLUSION ................................................................................................................ 929

DOOLEY V CAMMELL LAIRD AND OTHER EARLY CASES [26.10] The origins of what we now know as the involuntary participation cases1 are to be found in Dooley v Cammell Laird & Co Ltd,2 a decision of Donovan J at the Liverpool Assizes. The plaintiff, a crane driver employed by Cammell Laird, was lent, with his crane, to Mersey Insulation, a company doing work on a ship being fitted out at Cammell Laird’s shipyard at Birkenhead. While the plaintiff and his crane were lowering a sling-load of materials into the hold of the ship, the rope broke and the contents fell into the hold where, as the plaintiff knew, fellow-employees were working. Fortunately, no one was injured, but the plaintiff alleged that he was suddenly put into a state of apprehension and acute anxiety and thereby suffered severe nervous shock, which permanently incapacitated him from further employment as a crane driver. He sued Cammell Laird for breach of the Shipbuilding Regulations 1931 (UK) and Mersey Insulation for common law negligence. Donovan J held that both defendants were liable. 1

Parts of this chapter are based on P Handford, “Psychiatric Injury in the Workplace” (1999) 7 Tort L Rev 126 at 130–139. 2

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

906

Part V: Some Special Cases

[26.20]

[26.20] The claim against the second defendant fell to be decided against the background of the existing authorities,3 which recognised that a plaintiff could recover damages for shock caused by fear of injury not only to himself but also to others, such as close family members. Counsel for Mersey Insulation argued that the duty to take care not to inflict nervous shock was owed only to a person who might suffer nervous shock through some physical impact on himself, his wife or his child, or through reasonable fear of such impact,4 but Donovan J, relying on the House of Lords in Bourhill v Young,5 held that the ambit of liability could extend beyond those subject to physical impact. In the circumstances, the second defendant ought to have foreseen the possibility of injury by shock to a person in the plaintiff’s position, and so it owed a duty of care. Donovan J went on to hold that the second defendant was in breach of that duty, and that the plaintiff had suffered damage as a result. [26.30] There is nothing in the judgment about involuntary participation — this is a later rationalisation. Liability appears to be based on foreseeability that the plaintiff might suffer nervous shock through fear for the safety of others, and the judge refused to limit the scope of the foreseeability principle by imposing any limitation requiring a family relationship between the primary and secondary victims. In many ways the case was ahead of its time. It clearly recognised that liability was based on foreseeability of injury by shock, rather than by impact,6 and was content to accept a simple test of foreseeability as sufficient — policy restrictions came later.7 It perhaps offered some hope that, in appropriate circumstances, a duty of care might be owed even to a mere bystander, as Atkin LJ had tentatively suggested in Hambrook v Stokes Bros,8 though such a situation could easily be distinguished from the facts of Dooley v Cammell Laird & Co Ltd,9 because Mr Dooley was an employee rather than a bystander, and those he thought he had injured were his work colleagues. [26.40] There are two other cases that are generally cited10 in association with Dooley v Cammell Laird & Co Ltd.11 They are reported only in abbreviated form. In Galt v British Railways Board,12 Mr Galt, a train driver employed by British Rail, was driving a train at about 65 miles per hour. 3 Principally Hambrook v Stokes Bros [1925] 1 KB 141; Owens v Liverpool Corporation [1939] 1 KB 394; Bourhill v Young [1943] AC 92. 4

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 at 276 per Donovan J.

5

Bourhill v Young [1943] AC 92 at 108 per Lord Wright, at 117 per Lord Porter.

6

See [7.400]–[7.410].

7

See [7.230]–[7.280].

8

Hambrook v Stokes Bros [1925] 1 KB 141 at 157–158.

9

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

10

For example, by Lord Oliver of Aylmerton in his seminal rationalisation of this line of cases in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408: see [26.70].

11

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

12

Galt v British Railways Board (1983) 133 New LJ 870.

[26.50]

26 Involuntary Participants

907

Visibility was restricted, but there was no speed limit in force. He went round a bend and suddenly saw two men on the track about 30 yards away. It was impossible for him to stop, and he thought he had killed them, but later found out that the men (who were also railway employees) had managed to get out of the way in time. He subsequently suffered a myocardial infarction, and sued the Board for negligence, claiming that the incident caused him to suffer nervous shock, which was reasonably foreseeable. He had a pre-existing symptomless condition that made him vulnerable to heart attack. Tudor Evans J held that the defendant owed him a duty to take reasonable care not to expose him to injury from nervous shock, and that it was liable for the increased damage caused by the pre-existing condition.13 Citation of The Wagon Mound (No 1)14 appears to confirm that the decision was based on the straightforward principle that injury by shock was foreseeable. There is nothing to suggest whether the judge would have viewed it as a primary or a secondary victim case, had he been called on to make such a decision: the two men were in fact fellow-employees, although Mr Galt may not have realised this until later. Like Dooley, there was liability even though no accident in fact happened. Unlike Dooley, the claim was brought against the employer. [26.50] The third case in this trilogy is Wigg v British Railways Board.15 Mr Wigg, another train driver, moved off from the platform on receiving the signal from the guard, but the guard had failed to notice a man who was attempting to board the train. The man was dragged along the platform, holding the carriage door, until he fell between the platform and the train. The train was brought to a halt by the emergency brakes. Mr Wigg searched the track for the victim and, thinking he was still alive, attempted to comfort him until help arrived. Mr Wigg then began to tremble from shock. Tucker J awarded damages for his shock and trauma, on the basis that the guard should have seen the open carriage door, and so the defendant was vicariously liable for his negligence. The defendant conceded that it was foreseeable that a driver would get out of his cab and search for the victim, but argued that it was not foreseeable that train drivers of ordinary firmness would suffer nervous shock in such circumstances. Tucker J rejected this argument. He decided the case by reference to various principles derived from the leading case of McLoughlin v O’Brian,16 including the need to satisfy the strict test of proximity by sight or hearing, that the fundamental test was one of reasonable foreseeability, and that the plaintiff had acted as a rescuer. Some emphasis was given to the rescue point, and to regard the case 13

The plaintiff would have recovered for the physical manifestations of his fright regardless of whether it led to a psychiatric complaint: see [4.60].

14

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388.

15

Wigg v British Railways Board (The Times, 4 February 1986). The report in Wigg v British Railways Board (1986) 136 New LJ 446 deals only with the measure of damages.

16

McLoughlin v O’Brian [1983] 1 AC 410.

908

Part V: Some Special Cases

[26.60]

simply as a rescue case is one way of explaining why the plaintiff was owed a duty of care. However, it seems from the report that this is not the sole explanation. Tucker J said that though the plaintiff could be described as a rescuer, “in any event, that was unnecessary since the nervous shock suffered was reasonably foreseeable”. This, plus the judge’s reference to “the strict test of proximity by sight or hearing”, may suggest that the plaintiff was viewed as some sort of secondary victim. Alternatively, since involuntary involvement in the accident preceded the act of rescue, the case can be regarded as on all fours with Dooley v Cammell Laird & Co Ltd17 and Galt v British Railways Board,18 even though the employer’s liability was vicarious rather than direct.19 [26.60] There are two other cases that, though not cited in subsequent authorities, also belong in this group. In Carlin v Helical Bar Ltd,20 the plaintiff was operating an overhead crane in the course of his employment with the defendant when a man was crushed against a steel stanchion by one of the legs of the crane. The plaintiff suffered nervous shock and personality change as a result of witnessing the accident. The defendant admitted liability which, in the words of Rees J, avoided any need for “the examination of the so-called ‘nervous shock’ cases, to the advantage and interest of lawyers and of academic persons but not that of the plaintiff”.21 No one suggested that the plaintiff was in any way to blame. The case resembles Dooley v Cammell Laird & Co Ltd,22 except that the accident actually happened. In Meek v British Railways Board,23 another engine driver saw a figure on the track but could not stop in time. Going back to the scene, he saw the dismembered body of a railwayman. These events caused him to suffer nervous shock, anxiety and depression. The plaintiff claimed that the defendant was vicariously liable for the negligence of his victim, but it was held that the deceased railwayman was not acting in the course of his employment. The judge said that he would have adopted the reasoning of Tudor Evans J in Galt v British Railways Board.24 Like Wigg v British Railways Board,25 but unlike the other

17

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

18

Galt v British Railways Board (1983) 133 New LJ 870.

19

In Hunter v British Coal Corporation [1999] QB 140, Brooke LJ at 151 said: “I find it hard to detect any general principle arising out of Tucker J’s pre-Alcock judgment in Wigg’s case, The Times, 4 February 1986, in which he applied one of the tests appropriate for secondary victims and decided the case on orthodox foreseeability grounds.” Hobhouse LJ (dissenting) at 163 regarded Wigg as a rescue case.

20

Carlin v Helical Bar Ltd (1970) 9 KIR 154.

21

Carlin v Helical Bar Ltd (1970) 9 KIR 154 at 155.

22

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

23

Meek v British Railways Board (unreported, Eng QBD, 15 December 1983).

24

Galt v British Railways Board (1983) 133 New LJ 870.

25

Wigg v British Railways Board (The Times, 4 February 1986).

[26.80]

26 Involuntary Participants

909

cases, the employer’s liability, if any, would have been vicarious, rather than arising out of the responsibility to provide a safe system of work.26

LORD OLIVER AND THE INVOLUNTARY PARTICIPATION PRINCIPLE [26.70] In Alcock v Chief Constable of South Yorkshire Police,27 Lord Oliver of Aylmerton attempted to rationalise the cases on psychiatric injury by dividing them into two categories. He suggested that in some cases the plaintiff was involved, either mediately or immediately,28 as a participant, and in other cases the plaintiff was no more than the passive and unwilling witness of injury to others.29 He gave a number of examples of the cases that fell into the first group — the cases that have come to be called primary victim cases. The first two categories were cases where the plaintiff was put in fear for his or her own safety, such as Dulieu v White & Sons,30 and the rescue cases. He then said: These are all cases where the plaintiff has, to a greater or lesser degree, been personally involved in the incident out of which the action arises, either through the direct threat of bodily injury to himself or in coming to the aid of others injured or threatened. Into the same category, I believe, fall those cases such as Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271, Galt v British Railways Board (1983) 133 NLJ 870 and Wigg v British Railways Board, The Times, 4 February 1986, where the negligent act of the defendant has put the plaintiff in the position of being, or of thinking that he is about to be or has been, the involuntary cause of another’s death or injury and the illness complained of stems from the shock to the plaintiff of the consciousness of this supposed fact. The fact that the defendant’s negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the events establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable.31

[26.80] Until Lord Oliver’s judgment in Alcock v Chief Constable of South Yorkshire Police,32 the Dooley v Cammell Laird & Co Ltd33 line of cases maintained a shadowy existence. They were seldom cited and often 26

Note also Dillon v British Railways Board (unreported, Outer House, 1995 GWD 12-689, 18 January 1995), a case cited by Lord President Hope in Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 371: a signalman operated a signal which brought a train into collision with another train which had proceeded beyond a red signal onto the same track.

27

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

28

In this context, “mediately” means that the actions of the plaintiff formed a connecting link or a transitional stage where the plaintiff was acting as an intermediary: Gregg v Ashbrae Ltd [2005] NIQB 37 at [21] per Hart J.

29

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 407.

30

Dulieu v White & Sons [1901] 2 KB 669.

31

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408. Note also the first instance judgment of Hidden J at 346–347.

32

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

33

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

910

Part V: Some Special Cases

[26.90]

ignored: for example Lord Wilberforce, in his summation of the state of the law in 1983 in McLoughlin v O’Brian,34 said that the cases did not extend beyond spouses, children and rescuers, and completely ignored Dooley, even though it was cited in argument. In so far as one can discern what was going on in this line of cases from the judgments themselves, they seem to be based on the general principle that injury by shock was foreseeable, with perhaps in some of them an element of fear for the safety of others (and of course, in Wigg v British Railways Board,35 the rescuer principle). There is no express affirmation of any principle involving involuntary participation in another’s death or injury, and it was generally thought that they were secondary victim cases that questioned the need for some sort of close family relationship between the plaintiff and the immediate accident victim. However, two key facts in Dooley provided Lord Oliver with a way of explaining the case that took these plaintiffs out of the ranks of secondary victims and revealed the true underlying principle: the plaintiff was not a mere bystander, but was working for the defendant, and those who were (as he thought) injured were not strangers but his workmates. This enabled him to say that the plaintiffs in such cases were participants, like the other primary victim situations that he identified, and that the vital feature of these cases was that the plaintiff’s psychiatric problems were caused by a feeling of responsibility for what had happened. This rationalisation of these cases makes perfect sense. Given Lord Oliver’s aim of marking off the cases in which a person suffers psychiatric injury purely through being the passive and unwilling witness of injury to others from those in which the plaintiff has a more direct involvement, these cases plainly belong in the latter category, alongside those cases in which the plaintiff is in personal danger, or was involved as a victim in the accident in which a relative was killed or injured, or comes to the rescue. [26.90] It should be carefully noted that the involuntary participation principle is not in fact limited to employment situations, and that in Dooley v Cammell Laird & Co Ltd36 itself the plaintiff was not suing his employer but another firm to which he had been lent — though since this firm was in effect his temporary employer this probably makes little difference. It was not stated whether the employees in the ship’s hold were working for Mersey Insulation, or Cammell Laird, or a mixture of the two, and again it probably does not matter — the report refers to them as his “fellow workmen”,37 and such they no doubt were, whichever employer employed them. But these points have sometimes been lost

34

McLoughlin v O’Brian [1983] 1 AC 410.

35

Wigg v British Railways Board (The Times, 4 February 1986).

36

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

37

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271 at 272.

[26.100]

26 Involuntary Participants

911

sight of in later judgments that have referred to such cases in terms suggesting that they apply only within the employment relationship.38 [26.100] Ever since Lord Oliver’s authoritative restatement of the law, it has been generally accepted that the true explanation of the Dooley v Cammell Laird & Co Ltd39 line of cases is that the defendant’s negligence placed the plaintiff in the position of being (or thinking he was) the involuntary cause of another’s death or injury. For example, Lord Oliver’s explanation of these cases was repeated by Lord President Hope of the First Division of the Court of Session in Robertson v Forth Road Bridge Joint Board.40 In Robertson’s case itself, the court refused to apply the involuntary participation principle. Robertson, Rough and Smith, all employees of the Board, had to remove a sheet of metal from the bridge in windy conditions. They loaded it onto the back of an open truck and Smith sat on top of it while Robertson drove and Rough followed behind in a small van. A sudden gust of wind blew the metal sheet, with Smith on top of it, over the edge of the bridge, and he plunged to his death on the girders below. Rough saw the accident as it happened, and Robertson felt the effects of the wind gust and then to his horror discovered what had occurred. Mr JF Wheatley QC, sitting as a temporary judge in the Outer House, refused to accept that Robertson and Rough had in any way participated in the accident, holding that they were merely witnesses. There was no authority to suggest that the fact that they were also co-workers engaged in the same operation as the deceased qualified them for any special consideration.41 On appeal Lord President Hope also distinguished those cases where the plaintiff was the involuntary cause of another’s death or injury from cases where the plaintiff was present at the 38

See eg Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 277 per Henry LJ; see also Robertson v Forth Road Bridge Joint Board (No 1) 1994 SLT 566 at 567 per Lord MacLean, describing the argument of counsel for the pursuers.

39

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

40

Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 371. Note, however, Lord Hoffmann’s less than enthusiastic response to Lord Oliver’s interpretation of the cases in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507–508: “This is an elegant, not to say ingenious, explanation, which owes nothing to the actual reasoning (so far as we have it) in any of the cases. And there may be grounds for treating such a rare category of case as exceptional and exempt from the Alcock control mechanisms. I do not need to express a view because none of the plaintiffs in this case come within it.” Note also T Weir, A Casebook on Tort (8th ed, Sweet & Maxwell, London, 1996), pp 109–110: “The correct distinction … is between cases where a special duty was owed by the defendant to the plaintiff and those where no such special duty or relationship existed. In these shock cases too much attention has been paid to what the plaintiff was claiming for, too little to the question from whom he was claiming it. … [The plaintiff in Dooley v Cammell Laird recovered damages] surely not because he was a ‘participant’, but because an employer owes his employees a duty not needlessly to shock them into a fit …. The same is true in the other cases instanced by Lord Oliver as probably ‘participant’ cases …. The railway would not have been liable to a bystander unrelated to the victim who witnessed the scene and suffered shock, because though it owes a special duty to its employee it owes no such duty to a stranger. The shocked passenger may be in a different case.” This passage does not appear in later editions. 41

Robertson v Forth Road Bridge Joint Board (No 2) 1994 SLT 568 at 572–573.

912

Part V: Some Special Cases

[26.110]

time and saw the accident happen but was not directly involved as the actor by whose hand the death or injury was caused to the third party.42 But these views are just one of the mystifying aspects of a rather unhappy decision. The three men had together made the decision that they would load the metal sheet onto the truck and that Smith would sit on it while they proceeded across the bridge. How, on such facts, could it be said that these actions were not the involuntary cause of Smith’s demise, or that Robertson and Rough were merely witnesses? The case could and should have been decided by applying the involuntary participation principle.43

THE INVOLUNTARY PARTICIPATION PRINCIPLE IN AUSTRALIA The common law [26.110] The involuntary participation principle has been fully accepted by Australian case law, and recognised to be independent of the employer–employee scenario. The leading case is FAI General Insurance Co Ltd v Lucre.44 The deceased’s car made a sudden right hand turn into the path of the plaintiff’s truck, and was crushed underneath it. The car driver, who died soon afterwards, was entirely responsible. The truck driver was not physically injured, but was later diagnosed to be suffering from post-traumatic stress disorder as a result of the incident, suffering ongoing guilt feelings in which he continually questioned his own role in the crash, blaming himself even though no allegation was made against him. It was accepted that psychiatric injury was foreseeable in the circumstances, but the question of duty was in issue. Mason P in the New South Wales Court of Appeal disposed of the argument that there could be no duty where the tortfeasor and the immediate victim were one and the same.45 This, of course, did not mean that a duty automatically arose: 42

Robertson v Forth Road Bridge Joint Board 1995 SC 364 at 371.

43

This view received some support from Lord Goff of Chieveley in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 483: “It was perhaps open to the Lord President to take the view that the two pursuers were at the time actively involved with Mr Smith in the operation of removing the sheet from the bridge, in which event the reclaiming motion would no doubt have been granted; but he took a different view of the facts of the case.” Compare the views of Lord Hoffmann at 508, supporting the decision.

44

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261, noted by P Handford (2001) 117 LQR 397. Involuntary participation was a secondary argument in Green v Berry [2000] QCA 133 (employer failed to provide train driver with counselling, instead prematurely sending him back to work; employee successfully sued solicitor for failing to institute psychiatric injury proceedings against employer). Such an argument was also open on the facts in Rogers v Brambles Australia Ltd [1998] 1 Qd R 212 (refuse truck ran over elderly woman, who could not be seen while the truck was reversing because of the inadequacy of the mirrors; driver sued employer for not providing a safe system of work). Note also Ryan v Commonwealth [1999] NSWSC 573, a claim by a seaman on HMAS Melbourne, who was on the observation deck and saw HMAS Voyager, and thought that he might have prevented the collision by switching on his signal light, but had not done so because the Navy forbade independent action: the court allowed him an extension of time to sue.

45

See [17.160]–[17.170].

[26.120]

26 Involuntary Participants

913

the case had to be brought within one of the accepted categories. The defendant argued that the plaintiff was a mere bystander, but Mason P disagreed, upholding the argument that the plaintiff had involuntarily played a role in the deceased’s death akin to that outlined by Lord Oliver of Aylmerton in Alcock v Chief Constable of South Yorkshire Police:46 In my view, what distinguished the respondent from the “mere bystander” was the immediacy of his involvement in the accident that caused the death that caused the psychiatric injury. That immediacy is quite obvious in both time and space. But there is a deeper connection stemming from these circumstances. According to the laws of physics, the vehicle under the control of the respondent contributed directly to the death of the deceased. This distinguished the respondent from a bystander, even one who was a passenger in his truck. This circumstance and the inquiries that inevitably ensued from it (both official and informal) were so clearly capable of generating a sense of unresolved anxiety and guilt that it is reasonable, fair and just to impose a duty of care upon the deceased. One does not have to be a psychiatrist to understand the reality of the respondent’s reaction. Like the trial judge, I would emphasise the foreseeability of this reaction in these circumstances. It is a foreseeability that far outstrips the law’s undemanding test of foreseeability of damage.47

[26.120] Mason P dissented from English authorities interpreting these cases as involving employer negligence:48 there is no reason why persons other than an employer should not be responsible for the fact that the plaintiff has involuntarily become the cause of injury to another. As noted at [26.90], in the parent case of Dooley v Cammell Laird & Co Ltd49 the plaintiff was not suing his employer but another firm to which he had been lent. Freed from the fetters of the employment relationship, the utility of the involuntary participation principle in fact situations such as that in FAI General Insurance Co Ltd v Lucre50 is clear: the driver of the prime mover became involved in an accident through no fault of his own and this accident was the cause of the death of the other party. Apart from Lord Oliver’s reasoning in Alcock v Chief Constable of South Yorkshire Police,51 Mason P found persuasive guidance in Lord Hope’s judgment in Robertson v Forth Road Bridge Joint Board.52 He also emphasised that Australian law differed from English law as regards the employer’s duty to take care to protect employees from psychiatric injury.53 While this had no direct effect on the case in question, it helped to create a climate in which being within the zone of personal danger and witnessing the death, 46

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

47

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 at [25].

48

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 277; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507 per Lord Hoffmann.

49

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

50

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

51

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

52

Robertson v Forth Road Bridge Joint Board 1995 SC 364.

53

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261 at [32], citing his own leading judgment in New South Wales v Seedsman (2000) 217 ALR 583: see [20.210]–[20.220].

914

Part V: Some Special Cases

[26.130]

injury or endangerment of a close relative were not the only triggers of a duty to take care not to cause psychiatric injury.

Effect of the Civil Liability Acts [26.130] As yet, there are no cases applying the Civil Liability Act provisions to the situation where, through the negligence of another, a person involuntarily becomes, or thinks he or she has become, the cause of another’s death or injury, and suffers mental harm as a result. However, it is thought that the legislation occasions no particular difficulty in this regard. The most important point is that in the involuntary participation cases the plaintiff witnesses, at the scene, a person being killed, injured or put in peril. Not only is this one of the circumstances to be taken into account in deciding whether, in terms of the duty test, the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken;54 it also means that the additional limitations on liability found in New South Wales, Victoria and Tasmania, under which (except in the case of close relatives) the plaintiff must witness, at the scene, a person being killed, injured or put in peril,55 are satisfied.56 The same can be said of the analogous provision in South Australia that requires that the plaintiff be present at the scene when the accident occurred.57 [26.140] In the common law cases where there is an employment relationship between the parties, other circumstances will also be present. There will be a relationship between the plaintiff and the persons killed, injured or put in peril, because they will be workmates, and there will be a pre-existing employment relationship between the plaintiff and the defendant. However, FAI General Insurance Co Ltd v Lucre58 shows that at common law liability can exist even if the parties are previously strangers to each other, and it is submitted that the position should be no different under the Civil Liability Acts.

LIMITS OF THE INVOLUNTARY PARTICIPATION PRINCIPLE IN THE UNITED KINGDOM Effect of Page v Smith in England [26.150] Like much else, the involuntary participation principle as identified by Lord Oliver has been fundamentally affected by the two 54

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S.

55

Civil Liability Act 2002 (NSW), s 30(2); Wrongs Act 1958 (Vic), s 73(2); Civil Liability Act 2002 (Tas), s 32(2).

56

In the context of rescue, it was argued that these provisions should not apply in primary victim cases: see [25.320].

57

Civil Liability Act 1936 (SA), s 53(1).

58

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

[26.170]

26 Involuntary Participants

915

major House of Lords decisions of the 1990s restating the boundaries of liability for psychiatric injury: Page v Smith59 and White v Chief Constable of South Yorkshire Police.60 As a result, there was considerable doubt whether the involuntary participation principle survived in the legal systems in which the House of Lords was the highest court: England, Scotland and Northern Ireland.61 [26.160] The division between primary and secondary victims made by Lord Lloyd of Berwick in Page v Smith62 was clearly inspired by the similar distinction that had earlier been made by Lord Oliver.63 However, Lord Lloyd had a different purpose in view and his statement of this division was rather different.64 Lord Oliver was concerned with the limitations that should be imposed on the foreseeability test in the name of proximity, and distinguished between cases in which the injured plaintiff was involved in the accident, directly or indirectly, as a participant, and those in which the plaintiff was no more than the passive or unwilling witness of injury caused to others. He did not propose a different foreseeability test for primary victims.65 For Lord Lloyd, the distinction between primary and secondary victims was a means of limiting liability to the latter, and he distinguished between the two classes not only in relation to foresight of harm but also by stating other rules limited to secondary victims.66 His limitation of the class of primary victims to persons directly involved in the accident and well within the range of foreseeable physical injury appeared to have the effect of relegating to the second division at least some rescuers and involuntary participants who for Lord Oliver were clearly primary. [26.170] Lord Lloyd’s revision of the primary/secondary distinction has had an unfortunate effect on the law relating to psychiatric damage. Those who, in Page v Smith67 terms, are directly involved in the accident are singled out for special treatment, in that the foreseeability hurdle that they have to surmount is now much lower: they have to establish only that physical injury was foreseeable, rather than the more specific requirement to show foresight of psychiatric illness, and various limitations imposed in relation to secondary victim claimants no longer 59

Page v Smith [1996] AC 155.

60

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

61

See V Pickford, “Psychiatric Harm and the Involuntary Participant: “A Story of the Ebb and Flow of Tort Liability”” (2005) 56 NILQ 602.

62

Page v Smith [1996] AC 155 at 184.

63

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 406–411.

64

See Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 273–276 per Henry LJ; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 477–480 per Lord Goff of Chieveley; NJ Mullany and PR Handford, “Moving the Boundary Stone by Statute – The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 399–407.

65

See [3.90]–[3.120].

66

See [3.130]–[3.140].

67

Page v Smith [1996] AC 155.

916

Part V: Some Special Cases

[26.180]

apply. The result is that it is advantageous for counsel to argue that their clients are primary victims if this is at all possible. However the courts, concerned with a perceived need to impose limits on liability to secondary victims,68 seem to be striving to ensure that the primary victim category is not expanded further than thought appropriate. [26.180] All this has left its mark on the involuntary participation cases, if the decision in Hunter v British Coal Corporation69 is any guide. Hunter was employed by the second defendant as a driver at the first defendant’s coal mine. He encountered a hydrant protruding into the roadway and in his attempts to manoeuvre round it struck the hydrant and caused water to start flowing. With the help of Carter, a fellow-employee, he then attempted to close the valve, but they were unable to do so, and so Hunter went off in search of a hosepipe to channel the escaping water away. When he was 30 metres away from the scene, the hydrant burst, and so he rushed off to find a stop valve to shut the water off, which took him 10 minutes. While doing this, he heard a message over the loudspeaker that a man had been injured, and on his way back to the scene of the accident he met another employee who told him that it looked like Carter was dead — killed by the bursting of the hydrant. Hunter’s immediate thought was that he was responsible. He suffered a psychiatric illness, which took the form of reactive depression and “survivor guilt”. At first instance, Judge Bentley QC in the Sheffield County Court held that the defendant was negligent,70 but dismissed the case on the ground that Hunter did not qualify as a primary victim. He was not a participant in the accident, because his participation ceased when he turned off the water. He was not at any stage in fear for his own safety, and did not witness the accident. He did not suffer psychiatric injury until told what had happened by a colleague. [26.190] The majority of the English Court of Appeal (Brooke LJ and Sir John Vinelott) agreed with this view. Brooke LJ distinguished the case from Dooley v Cammell Laird & Co Ltd71 and Galt v British Railways Board,72 where the plaintiffs were undeniably direct participants, and said that in Wigg v British Railways Board73 the judge had applied a test appropriate to secondary victims and decided the case on orthodox foreseeability grounds. Like the trial judge, he laid much stress on the facts that Hunter 68

In line with the sentiments expressed by Lord Lloyd in Page v Smith [1996] AC 155, particularly at 189–190; see also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 493–494 and 500 per Lord Steyn, at 503–504 and 509–510 per Lord Hoffmann; see now Taylor v A Novo (UK) Ltd [2014] QB 150.

69

Hunter v British Coal Corporation [1999] QB 140.

70

He also held that the defendant was in breach of the Mines and Quarries Act 1954 (UK), s 83, relating to the use of internal combustion engines, steam boilers and locomotives below ground.

71

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

72

Galt v British Railways Board (1983) 133 New LJ 870.

73

Wigg v British Railways Board (The Times, 4 February 1986).

[26.210]

26 Involuntary Participants

917

was not present at the time the hydrant exploded and only suffered a mental reaction when told of Carter’s death.74 But these are tests that are principally relevant in a secondary victim context. It seems artificial to seize on the turning off of the stop valve as the factor that brought his participation to an end. At that point in time, the tragedy had already happened. It was Hunter’s inadvertent contact with the hydrant that set the whole course of events in motion. He and Carter had embarked on a joint enterprise to try to put things right. He had only just set off on his mission to find a hosepipe when the hydrant burst, and it seems irrational to say that he was not present when he was a mere 30 metres away. To use Lord Oliver’s words,75 through the defendant’s negligence he had been put in the position of being the involuntary cause of another’s death. The illness he suffered stemmed from the shock of that realisation, and it surely should not matter that this began to happen when he heard the news from another — he had heard the explosion and the loudspeaker announcement, and his suspicions must already have been growing as he hastened back to the accident scene. [26.200] Brooke LJ made much of the fact that the mental reaction suffered by the plaintiff had been described as “survivor’s guilt”,76 and drew an analogy with the Australian case of Rowe v McCartney77 (not cited by counsel) where the psychiatric illness for which the plaintiff sought recovery was triggered by her guilt at letting an inexperienced driver take the wheel of her high-powered car. The New South Wales Court of Appeal held that there was no liability because the type of mental disorder suffered was not foreseeable. This case has been criticised on the ground that the requirement of the majority judges that the particular category of mental illness be foreseeable is out of line with orthodox principle.78 [26.210] The dissenting judgment of Hobhouse LJ is a copybook example of the way the case ought to have been approached. His Lordship referred in approving terms to Lord Hope’s judgment in Robertson v Forth Road Bridge Joint Board79 as “the most illuminating contribution to this question”.80 For Hobhouse LJ, there was legally no distinction between the collision and the bursting of the hydrant: it was a single sequence of events with the same effective cause. Though the plaintiff was not present when it exploded, he knew that it had burst and reasonably believed that it was as a consequence of the collision.81 74

Hunter v British Coal Corporation [1999] QB 140 at 151.

75

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 408.

76

Hunter v British Coal Corporation [1999] QB 140 at 152.

77

Rowe v McCartney [1976] 2 NSWLR 72.

78

See [7.640]–[7.680].

79

Robertson v Forth Road Bridge Joint Board 1995 SC 364.

80

Hunter v British Coal Corporation [1999] QB 140 at 165.

81

Hunter v British Coal Corporation [1999] QB 140 at 161.

918

Part V: Some Special Cases

[26.220]

Applying the involuntary participation cases, the relevant factor was the physical participation in the event that caused the plaintiff to believe that he was responsible. This put the plaintiff into the same class as a primary victim.82 Noting that Rowe v McCartney83 was not an employer–employee case, he distinguished it on the ground that it is the participation of the employee in the relevant incident that creates the proximity between him and the employer, and in Rowe’s case there was, in the opinion of the court, no such participation.84 [26.220] In White v Chief Constable of South Yorkshire Police,85 the involuntary participation argument — that the police plaintiffs at Hillsborough were “conduit pipes”, led to believe that their own conduct had helped to bring about the disaster — was canvassed unsuccessfully before the judge of first instance and was not pursued in the higher courts.86 This meant that this line of cases was not directly in issue before the House of Lords,87 where the major arguments concerned the duties owed to rescuers and employees.88 However, the effect of the decision is to leave the involuntary participation cases in a very isolated position and of doubtful authority. The majority, following through from Page v Smith,89 with its emphasis on presence within the area of physical danger as the attribute that marks out primary from secondary victims, narrowed the previously held view of the law by requiring rescuers also to be within the area of physical risk. Lord Hoffmann said little,90 and Lord Steyn nothing, about the Dooley v Cammell Laird & Co Ltd91 line of cases; but it is basic to these cases that the plaintiff is not at risk of physical harm, and if this line of thought were to be carried to its logical conclusion the involuntary participation category may well be in some danger. Lord Goff’s well-reasoned opposition to the new limitation on recovery by rescuers highlighted the conflict between it and the Dooley cases, and emphasised that Lord Lloyd gave no reasons for imposing any such limitation, and that his strategy was to extend recovery by primary victims.92

82

Hunter v British Coal Corporation [1999] QB 140 at 165–167.

83

Rowe v McCartney [1976] 2 NSWLR 72.

84

Hunter v British Coal Corporation [1999] QB 140 at 168.

85

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

86

See Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 260 per Rose LJ.

87

However, it seems that they were used to support the argument in favour of a more general principle of liability to employees: White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507 per Lord Hoffmann: see [19.340].

88

See [25.420]–[25.430] (rescuers); [19.340]–[19.350] (employees).

89

Page v Smith [1996] AC 155.

90

See White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 507–508.

91

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

92

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 479–480.

[26.240]

26 Involuntary Participants

919

[26.230] Subsequent cases reflected the uncertain status of this group of cases in current English law. Cazalet J in Greatorex v Greatorex93 suggested that whether this category of cases has survived White v Chief Constable of South Yorkshire Police94 has not yet been authoritatively decided. In W v Essex County Council,95 involving a claim against a child care authority by plaintiffs who agreed to become foster parents of a 15-year-old youth and subsequently discovered that the youth had sexually abused their four young children, the issues came before the House of Lords on a strike-out application and it was enough for the House of Lords, in refusing the application, to hold that on the facts alleged it was arguable that the authority owed the parents a duty of care. One argument advanced by the parents was that the psychiatric injury they suffered flowed from a feeling that they had been responsible for putting the youth in a position where he could abuse their children, or that they were responsible in another way because they had not detected earlier what was happening. Lord Slynn of Hadley did not shut the door on this argument. As with other issues discussed in his judgment,96 it offers potential support for modifying some of the restrictive rules of English law as and when these issues arise other than as part of a preliminary issue. [26.240] In Walters v North Glamorgan NHS Trust,97 where Thomas J was dealing with issues of liability and damages, rather than preliminary questions of law, he rejected an argument based on involuntary participation. The claimant’s 10-year-old son had died in her arms following the defendant’s negligence in failing to diagnose and treat his acute hepatic failure. His Lordship held that the standard secondary victim requirements such as sudden shock were satisfied and that she was entitled to an award of damages, a conclusion affirmed by the English Court of Appeal.98 However, Thomas J ruled that she could not be said to have played any causative role in her son’s death and so there was no question of any liability to her based on her being an unwilling participant in the events in question. Of this claim he said: Thus to categorise her as a primary victim would be to extend the category of primary victims in a new direction. Although it might be said that such an extension would apply to only a limited class of persons, namely parents who remain with their children in hospital and consent to their treatment, it is difficult to see a logical basis upon which such an extension can be made. Furthermore, even if it were, it is clear from the decision in [White] that any significant extension of the categories should be a matter for Parliament and not for the Courts.99 93

Greatorex v Greatorex [2000] 1 WLR 1970 at 1983.

94

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

95

W v Essex County Council [2001] 2 AC 592.

96

See [3.200], [21.300], [22.800].

97

Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227.

98

North Glamorgan NHS Trust v Walters [2003] Lloyd’s Rep Med 49.

99

Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227 at [22].

920

Part V: Some Special Cases

[26.250]

[26.250] The involuntary participation argument was also rejected on the facts in Monk v PC Harrington Ltd.100 The plaintiff claimed damages for psychiatric injury arising out of construction work at the new Wembley Stadium. Due to the negligence of a crane operator, a platform fell and hit two men working below. The claimant, a foreman, heard about the accident on his portable radio immediately it occurred, went to the scene, and crawled underneath the fallen platform in an attempt to assist the injured men. He was later found to be suffering from post-traumatic stress disorder and other psychiatric illnesses. It was argued that the claimant believed he had caused the accident because he had been responsible for the installation of the platform. Leggatt QC, sitting as a Deputy Judge of the Queen’s Bench Division, said that in order for this argument to be accepted it was necessary to find not only that the claimant believed that he had caused the accident, but also that such belief was reasonable. This requirement was founded both on the analogous argument that causing someone to believe their own safety was threatened was not sufficient to make them a primary victim unless the belief was reasonable,101 and on Lord Oliver’s original definition of the involuntary participation category, which required that the defendant’s negligence should foreseeably put the plaintiff in the position of being an unwilling participant in the event. Leggatt QC was prepared to find on the evidence that the thought that he was responsible might have gone through Mr Monk’s mind at the scene of the accident, though he was generally unimpressed with the claimant as a witness (and he rejected evidence of an alleged conversation with the construction manager on the way to the scene in which the construction manager had allegedly blamed him, saying that other evidence showed the construction manager had been elsewhere and the conversation could not possibly have taken place); however, in light of evidence about the way in which the platform had been constructed, there was no reasonable basis for such a belief. The involuntary participant argument thus failed on the facts. Mr Monk’s alternative argument that he could recover as a rescuer was likewise unsuccessful.102 [26.260] Unlike the judgment of Thomas J in Walters v North Glamorgan NHS Trust103 there is no direct suggestion in Monk v PC Harrington Ltd104 that recognising the involuntary participation argument involved the extension of the primary victim categories. In this context, it is noteworthy that counsel for Mr Monk attempted to meet the limitations of the primary victim categories by submitting that “assistance in the immediate aftermath of an accident as a rescuer, even if not given in circumstances of danger such as will bring the claimant within the 100

Monk v PC Harrington Ltd [2009] PIQR P3.

101

Following Hegarty v EE Caledonia Ltd [1997] 2 Lloyd’s Rep 259: see [24.100].

102

See [25.450].

103

Walters v North Glamorgan NHS Trust [2002] Lloyd’s Rep Med 227.

104

Monk v PC Harrington Ltd [2009] PIQR P3.

[26.280]

26 Involuntary Participants

921

‘rescuer’ category of primary victim, may nevertheless establish the necessity proximity to an event which the claimant believes he has caused to enable him to be regarded as an ‘unwilling participant’.”105 Leggatt QC said it was not open to him to create an additional, hybrid category of primary victim, saying “As I read Alcock and the later authorities, the categories reflected in these cases must be regarded as settled for the time being, certainly in a court of first instance.”106

Scotland and Northern Ireland [26.270] Recent cases from Scotland and Northern Ireland suggest a more encouraging prognosis for the involuntary participation principle, although the Scottish cases are decisions of the Outer House on assumed facts and the decisions that the pursuers’ averments were relevant are procedurally akin to the House of Lords’ decision in W v Essex County Council107 that the defendant’s strike-out application be rejected. [26.280] In Salter v UB Frozen and Chilled Foods Ltd,108 the pursuer, a forklift truck operator, claimed damages from his employers for psychiatric injury after an accident in which a colleague riding on the truck while carrying out stocktaking was fatally injured. The pursuer was deeply shocked and blamed himself for the tragedy, and as a result had not been able to work and was undergoing medical treatment. He argued that the defender knew or ought to have known that there was a risk of such injuries happening as a result of this procedure, that the pursuer would be a witness, and that there was a risk that he would blame himself and suffer mental injury as a consequence. The defence was based on the principle that under the law as laid down by the House of Lords the pursuer had to show either that he was at risk of physical injury or reasonably believed that he was, or that the secondary control mechanisms laid down in Alcock v Chief Constable of South Yorkshire Police109 were satisfied. The latter was impossible because of the lack of the requisite close relationship, and the former was ruled out because the pursuer had not been in any personal danger. Temporary Judge Reid QC emphasised the relevance of Dooley v Cammell Laird & Co Ltd,110 saying that if it was correctly decided then it could not be said that the pursuer’s claim was irrelevant. Lord Oliver of Aylmerton in Alcock had rationalised this line of cases as depending on involuntary involvement in harm to another, supported by the Scottish Law Lord, Lord Jauncey of Tullichettle. The dissenting judges in White v Chief Constable of South Yorkshire Police111 had supported this principle and the majority judges had said very little about 105

Monk v PC Harrington Ltd [2009] PIQR P3 at [18].

106

Monk v PC Harrington Ltd [2009] PIQR P3 at [18].

107

W v Essex County Council [2001] 2 AC 592.

108

Salter v UB Frozen and Chilled Foods Ltd 2004 SC 233, noted by D Kinloch 2003 SLT 261.

109

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

110

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

111

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

922

Part V: Some Special Cases

[26.290]

cases such as Dooley. The encouraging judgment of Lord Hope in the Scottish case of Robertson v Forth Road Bridge Joint Board112 also favoured the pursuer. Lord Slynn’s observation in W v Essex County Council that “Where the law is not settled but in a state of development … it is normally inappropriate to decide novel questions on hypothetical facts”113 was entirely consistent with the approach of Scottish law: “It is beyond doubt that at least part of the field of liability for psychiatric injury in Scotland is still developing and on that ground alone, I should be slow to hold the pursuer’s claim as irrelevant.”114 Judge Reid concluded: In my opinion, on the assumed facts, the pursuer is a primary victim because he was actively involved in the accident which led to the death of his fellow-employee. He has averred (but did not need to for the purposes of establishing the existence and scope of the duties of care upon which he founds) that he blamed himself for the accident. He falls within the class of victims identified by Lord Oliver of Aylmerton in Alcock at p 408F-G. He was an active participant in the accident and may through the medium of the fork lift have been the instrument of injury although blameless. It is not a necessary ingredient to establish the existence and scope of any duty on the part of his employers to take reasonable care to avoid causing him psychiatric injury that he either blamed himself for the accident or that he was within the range of foreseeable physical injury. He must establish that psychiatric injury was in the circumstances reasonably foreseeable. It is at the very least arguable that having regard to the authorities and in particular Dooley and the subsequent treatment of that case, psychiatric injury was, on the assumed facts, reasonably foreseeable. In these circumstances, it cannot be held at this stage that the psychiatric injury for which the pursuer seeks damages was unforeseeable. The accident cannot therefore be dismissed as irrelevant on the basis of the arguments advanced by the defenders on this branch of the case.115

Judge Reid went on to hold that the action had been brought in time. Though a decision on a preliminary issue, what is encouraging about it is the refusal to accept that the limitations of a general nature imposed by the majority in White have had an effect on the involuntary participation issue, when this was a matter with which they did not really deal. The long line of cases, and in particular Lord Oliver’s definitive statement of their rationale, together with the support of Scottish authorities, were seen as much more important. [26.290] In Anderson v Christian Salvesen plc,116 the pursuer attempted to manoeuvre a lorry into a loading bay unaware that another employee, Charlie McShane, had driven a pallet truck behind the lorry. McShane 112

Robertson v Forth Road Bridge Joint Board 1995 SC 364.

113

W v Essex County Council [2001] 2 AC 592 at 598, quoting Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 740–741. 114

Salter v UB Frozen and Chilled Foods Ltd 2003 SLT 1011 at [24].

115

Salter v UB Frozen and Chilled Foods Ltd 2003 SLT 1011 at [27].

116

Anderson v Christian Salvesen plc 2006 SLT 815. See F Leverick, “Counting the Ways of Becoming a Primary Victim: Anderson v Christian-Salvesen” (2007) 11 Edin LR 258.

[26.300]

26 Involuntary Participants

923

died as a result of the injuries he received. When the pursuer heard screams he ran to the back of his vehicle and saw that McShane, whom he knew, was badly injured. It was averred that the pursuer suffered psychiatric injury as a result of his involvement in the accident. The defendant opposed the motion for proof, contending that the pursuer had not averred that he had been exposed to danger or considered himself to have been exposed to danger, and so had not averred that he was a primary victim; and that there was no averment of a close tie of love and affection with the primary victim entitling him to recover as a secondary victim. Lord Drummond Young said that the case was similar to Salter v UB Frozen and Chilled Foods Ltd.117 The defender’s case was founded on the decisions of the House of Lords in the two Hillsborough cases,118 which were concerned with two situations: witnessing the death of persons to whom the witness had close ties of love and affection, and witnessing the death of persons with whom there were no such ties. Those cases do not, however, deal with a third category of psychiatric injury that has been recognised as giving rise to recoverable loss. This occurs where the pursuer has been instrumental in another person’s death, or possibly serious injury, and that has caused him psychiatric harm. On the authorities, that by itself is sufficient to enable the pursuer to recover for the psychiatric injury; it does not matter whether the pursuer has been placed in danger himself; indeed it will be typical of such cases that the pursuer has been in no danger, but has played a part in creating a danger for someone else.119

Lord Young said that this category of recoverable loss had been recognised in a number of cases, starting with Dooley v Cammell Laird & Co Ltd120 — cases that had been cited in the two House of Lords cases and accepted as correctly decided. The pursuer’s case as stated was a “classic instrumentality case”. [26.300] In the Northern Irish case, Gregg v Ashbrae Ltd,121 the invocation of the involuntary participation argument resulted in an award of damages to a plaintiff who was operating his digger on a demolition site when a nearby wall collapsed on a fellow-worker, who died of his injuries. He and Mr Gregg had been close friends for several years. Mr Gregg ran to him but could do nothing to help him. Mr Gregg subsequently developed post-traumatic stress disorder as a result of these events. There was no way in which the plaintiff could meet the requirements of secondary victim liability: though he had a close working relationship with the deceased, it did not satisfy the requirement of close ties of love and affection. However, it was argued on his behalf that he was either a rescuer, a primary victim in the zone of danger, or an 117

Salter v UB Frozen and Chilled Foods Ltd 2003 SLT 1011.

118

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. 119

Anderson v Christian Salvesen 2006 SLT 815 at [8].

120

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

121

Gregg v Ashbrae Ltd [2005] NIQB 37.

924

Part V: Some Special Cases

[26.310]

involuntary participant. Hart J held that even though Mr Gregg could possibly be a rescuer (since it was unnecessary for a rescuer to actually rescue someone), he was not in any personal danger and did not reasonably believe himself to be in any such danger, and so failed to satisfy the requirements imposed by White v Chief Constable of South Yorkshire Police.122 This also disposed of the zone of danger argument, and might also have been thought fatal to the suggestion that he could recover as an involuntary participant; but Hart J did not espouse this view. After a detailed survey of the cases, he came to the conclusion that Mr Gregg could recover as a person “mediately involved” in the accident, in the sense that since he was driving the digger his actions formed a connecting link with the collapse of the wall and the death of the deceased. He said: He witnessed the event and was involved in it, and, provided that his psychiatric illness resulted from what he saw, and this was reasonably foreseeable, I can see no reason why he should not be entitled to recover damages. Although he may have been a mere passive and unwilling witness at the time, it is now apparent that he unwittingly played a material part in the events leading to the collapse of the wall, and that involvement is itself a significant control factor.123

THE LAW ELSEWHERE Recognition of the involuntary participation principle [26.310] In countries where the restrictions imposed by recent decisions of the House of Lords have not found acceptance, the full potentialities of the involuntary participation principle continue to be realised. This is the case not only in Australia but in several other common law jurisdictions, notably Ireland and Singapore. [26.320] Though in form only a decision of the Circuit Court in Ireland, Curran v Cadbury (Ireland) Ltd124 is important because it contains a full discussion of the involuntary participation principle by Judge McMahon, in another capacity the joint author of Ireland’s leading torts text.125 Mrs Eithne Curran’s role at Cadbury’s Dublin factory was to work at a conveyor belt packing bars of chocolate. On the day in question, the conveyor belt was stopped without notifying her, and when she restarted it she immediately became aware that there was a fitter inside, repairing it. She alleged that she suffered a great fright, resulting in serious psychiatric illness, because she thought she had killed or seriously injured a fellow-employee. Judge McMahon held that the defendant was liable to her in damages. Mrs Curran was a participant, a “primary victim” in the terminology gaining currency in other jurisdictions. This, in fact, was the 122

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

123

Gregg v Ashbrae Ltd [2005] NIQB 37 at [27].

124

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343, noted by McHugh D (2000) 18 ILT 162.

125

BME McMahon and W Binchy, Law of Torts (4th ed, Bloomsbury Professional, Dublin, 2013).

[26.330]

26 Involuntary Participants

925

first Irish case to involve a primary victim since the Supreme Court in Kelly v Hennessy126 authoritatively stated the ingredients of liability for psychiatric illness in Ireland, and Judge McMahon, while clearly not an enthusiastic supporter of the primary/secondary victim distinction, noted that some of the policy limitations that applied to secondary victim situations were inapplicable in cases such as this. The plaintiff was an employee, and Judge McMahon was clearly sympathetic to the notion that employers owed a duty to take reasonable care to ensure that employees did not suffer psychiatric injury, expressing reservations about this and other aspects of the House of Lords decision in White v Chief Constable of South Yorkshire Police,127 and also Page v Smith.128 However, he did not need to decide the case on this basis, because he was able to rest his decision on the involuntary participation cases: It seems to me that the critical element in these cases is that the defendant’s negligence brought the plaintiff into the accident as an active participant. The plaintiff unwittingly became an essential link in the causative chain which resulted in injury to a fellow-employee. It is clearly foreseeable in those circumstances that the plaintiff might develop a guilt complex which, with the other factors accompanying the accident, and directly perceived by the plaintiff herself, could result in a psychiatric illness.129

[26.330] Judge McMahon confirmed that liability to an involuntary participant was not based on the employer–employee relationship, though it most frequently occurred in that context, but rather on “the more general duty not to put someone in a position where they reasonably think they have killed or seriously injured someone else”.130 This line of cases had never been seriously questioned until the recent House of Lords decisions in Page v Smith131 and White v Chief Constable of South Yorkshire Police,132 which had not been considered by higher courts in the Irish jurisdiction. Of White, he said: The decision has been seriously criticised …,133 is not in accordance with the Australian approach and does not appear to be an approach favoured by the Law Commission (England) in its reports. (The report predated the House of Lords decision, but took account of the Court of Appeal’s view.) Moreover, White was not directly concerned with the category of persons who participated in the accident and can on this basis be distinguished from the case in hand. On this view, White does not undermine the Dooley line of authority. 126

Kelly v Hennessy [1995] 3 IR 253.

127

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

128

Page v Smith [1996] AC 155: see Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 359–361, discussed at [19.440].

129

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 357.

130

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343.

131

Page v Smith [1996] AC 155.

132

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

133

Referring inter alia to P Handford, “Psychiatric Injury in the Workplace” (1999) 7 Tort L Rev 126.

926

Part V: Some Special Cases

[26.340]

Handford’s assessment of the Dooley line of cases is preferable when he says: “… the true explanation of the Dooley line of cases is that the defendant’s negligence placed the plaintiff in the position of being (or thinking he was) the involuntary cause of another’s death or injury”.134

The Irish courts, like the Australian courts, have thus not been afraid to take an independent stance and to affirm that a victim of psychiatric illness may be owed a duty as someone who has unwittingly and involuntarily become the instrument of harm to someone else. They have recognised that this is a wide-ranging principle that does not just apply as between employer and employee (though it often has an application here, as Curran v Cadbury (Ireland) Ltd135 demonstrates) but has an important role to play in other situations. [26.340] Pang Koi Fa v Lim Djoe Phing136 is an interesting application of the involuntary participation principle in the medical context. The defendant doctor had told the plaintiff’s daughter that she needed to have an immediate operation for removal of a tumour of the pituitary gland. Tragically, the doctor negligently removed healthy tissue, and caused a tear in the membrane of the brain. Fluid began to leak from her brain, and she died an agonising death, witnessed by her mother. What made it worse for the mother is that she had encouraged her daughter to have the operation and felt responsible for what had happened. Amarjeet JC held the doctor liable for the mother’s psychiatric illness. The case is primarily important for the way in which the ordinary requirements of secondary victim liability were tempered to meet the situation of medical negligence happening over a relatively long period, rather than the more typical traffic accident situation where everything happens in a few seconds of time.137 However, an alternative duty was argued, and upheld by the court: the defendant had put the plaintiff in a position where she thought she was responsible for her daughter’s death. Through the defendant’s negligence, she had caused her daughter to submit to an operation which had not been necessary such that a perfectly healthy gland was removed and her daughter was subjected to the unnecessary risk of infection from which she died. It was the realization that the defendant had misdiagnosed her daughter’s case which had caused the plaintiff to blame herself for the death of her daughter. … [T]he claim here is neither for grief, sorrow, nor deprivation, but for the psychiatric illness wrought upon the plaintiff as a result of her having, on the basis of the defendant’s negligence and his exhortations that the operation was necessary lest her daughter died or went blind, persuaded her daughter to undergo the operation from which she died. I am of the opinion that here, there is such a “pressing policy need” to allow the recovery since the defendant, as a neurosurgeon and a medical practitioner knew full well the import of his advice, and the consequences it would bring; ought to have 134

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343 at 357–358.

135

Curran v Cadbury (Ireland) Ltd [2000] 2 ILRM 343.

136

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

137

See [22.660]–[22.710].

[26.350]

26 Involuntary Participants

927

known that both the plaintiff and her daughter trusted him implicitly to do his best; yet had carried out his duties as a specialist in such a negligent manner and has taken no responsibility for his own acts; that as such he should reasonably expect that as a result of his actions, he would cause much suffering to the plaintiff who had brought the deceased for consultation with him and between both of whom (ie the plaintiff and the defendant) all subsequent communication passed regarding the medical care of the deceased, to the extent that he would reasonably have expected her to have suffered psychiatric illness as she has, and that he should suffer the consequences of his actions by paying her damages for the injury that he has caused her.138

This case pre-dates the most recent House of Lords decisions, and so we cannot know whether the limiting effect of those judgments would have had some impact. But it is a most interesting application of the rationale of the Dooley v Cammell Laird & Co Ltd139 line of cases as identified by Lord Oliver in a novel fact situation.

Failure to recognise the involuntary participation principle [26.350] The involuntary participation principle has not really been tested in Canadian courts. In Nespolon v Alford,140 the Ontario Court of Appeal was confronted with a situation involving involuntary participation but did not identify it as such. The deceased, a 14-year-old boy, had drunk too much at a friend’s home. Following a conversation with a police officer, the first and second defendants, both aged 16, drove away with the deceased as their passenger. As they drove along a residential street, the deceased claimed that he recognised one of the homes and asked to be dropped off. A little later the defendants returned and saw the deceased wandering over lawns. Shortly afterwards, the deceased was hit and killed by another driver who suffered posttraumatic stress disorder as a result of the experience. He sued the two defendants and the estate of the deceased youth. The court dealt with the claim by applying general principles. As far as the first two defendants were concerned, fault and causation were both negatived, and there was no reasonable foreseeability of psychiatric injury to someone in the plaintiff’s position. In the case of the third defendant, reasonable foreseeability was likewise lacking and there were no policy reasons for adding someone in the plaintiff’s circumstances to the class of persons entitled to claim damages for psychiatric injury. It is in respect of the deceased defendant that the court was guilty of a failure in analysis. First, it was a situation where the tortfeasor was also the immediate victim, but according to the view adopted by Mason P in FAI General Insurance Co Ltd v Lucre141 this was not a reason for saying that there was no duty.142 Secondly, it was arguably a case where the defendant, like the negligent 138

Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317 at 335–336.

139

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

140

Nespolon v Alford (1998) 161 DLR (4th) 646.

141

FAI General Insurance Co Ltd v Lucre (2000) 50 NSWLR 261.

142

See [15.120]–[15.130].

928

Part V: Some Special Cases

[26.360]

car driver in Lucre, had brought about an accident for which the plaintiff felt responsible and so caused him to suffer psychiatric injury.143 It may be that the plaintiff might have failed in establishing crucial elements like fault and causation — and indeed the court did point to the lack of reasonable foreseeability — but better analysis of the legal principles might have enabled the court to come to a conclusion in which one can have complete confidence.144 [26.360] It appears that the involuntary participation principle is not recognised by United States courts. In some instances, the cases raise fact situations that fall into this category but the courts afford no remedy. For example, in one case an employee saw her co-worker crushed to death in a trash compactor that she was operating, but was held not to be among those entitled to recover under the bystander principle;145 in another a truck driver who struck and killed an employee of a hauling company while backing his truck to connect to the company’s refuse trailer was held to have no remedy;146 and in a third a mother who gave her child a wrong dose of medication due to an alleged labelling error by a pharmacist was unable to claim against the pharmacist for the effects of viewing her child’s suffering.147 However, in Kallstrom v United States,148 there was an express refusal to recognise the principle of “unwitting instruments”. At a party held on government property, the plaintiff was requested to get a drink for a friend’s child and poured a drink from a jug that she thought contained fruit juice but in fact contained a caustic detergent that caused the child severe internal injuries. The Alaska Supreme Court rejected her claim for bystander emotional distress because of the lack of a family relationship and expressly declined to permit a new class of claim in favour of those who suffered emotional distress through being the unwitting instrument of injury to others.

143

According to the trial judge, whose judgment was overturned by the New South Wales Court of Appeal, “[T]he public generally and the ordinary reasonable man, even to the extent of the ordinary reasonable 16 year old, ought to be aware … that a person who is made to be the instrument of another’s death, and then exits his vehicle and sees the mangled remains is likely to suffer the exact horrendous damages that have been sustained by Mr Nespolon”: quoted by Abella JA in Nespolon v Alford (1998) 161 DLR (4th) 646 at [36].

144

Nespolon v Alford (1998) 161 DLR (4th) 646 was cited in Irvine v Smith 2008 CanLII 5586, another Ontario case which could have been classified as an involuntary participation case. A university student who had been exhibiting unusual psychiatric symptoms ran away from his home (having already bolted a first time and been brought back) and jumped into the path of a truck, dying of the injuries received. The driver sued the deceased’s parents for negligence causing him psychiatric injury. Just as in Nespolon v Alford, it was held that there was no duty of care on the general ground that the harm was not foreseeable.

145

Bray v Marathon Corporation 553 SW 2d 477 (SC 2001).

146

Lakatos v Republic Waste Services of Ohio 2004 WL 229517.

147

Wilson v Professional Plaza Pharmacy Inc 903 So 2d 651 (La 2005).

148

Kallstrom v United States 43 P 2d 162 (Alaska 2002).

[26.380]

26 Involuntary Participants

929

CONCLUSION [26.370] The involuntary participation cases have thus been through more than one metamorphosis during the more than 60 years that have elapsed since the original decision in Dooley v Cammell Laird & Co Ltd.149 In most jurisdictions, and particularly in Australia, the involuntary participation principle is clearly recognised. The courts have shown the potential of this principle to identify a duty of care to persons who are clearly participants rather than witnesses but do not fit into other categories such as personal endangerment or rescue. They have recognised that the principle is not confined to employment situations, but may have a role to play in other fields, for example on the highway or in the hospital, thus demonstrating the wide range of the principle’s potential applicability. [26.380] Though in the United Kingdom the status of the involuntary principle was thrown into doubt by the House of Lords cases of the 1990s, recent decisions offer some hope that the principle will survive, and that the rationale of these cases as stated by Lord Oliver will continue to be a useful weapon in the armoury of potential duty-situations available to plaintiffs who have suffered mental harm.

149

Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s Rep 271.

Chapter 27

Damage to Property [27.10] THE GENERAL QUESTION .......................................................................................... 931 [27.10] England and Australia ..................................................................................................... 931 [27.70] Other jurisdictions ............................................................................................................ 935 [27.120] PARTICULAR ISSUES ................................................................................................... 939

THE GENERAL QUESTION England and Australia [27.10] Until comparatively recently the question whether it is possible to recover for psychiatric injury stemming from damage to property had not been settled in either England or Australia.1 However, there were some isolated indications that such damage might be remediable. In one early workers’ compensation case, Hoare v Arding & Hobbs,2 a saleswoman in a shop recovered damages from her employers for shock caused by a fire that burnt part of the shop.3 The possibility of recovery for shock caused by damage to property was also signalled in the peculiar case of Owens v Liverpool Corporation4 where a hearse in a funeral parade was negligently damaged by the defendant’s tram driver and mourners present recovered compensation for “severe shock” caused by witnessing the overturning of the coffin and concern that it and its contents might fall from the hearse. Controversially (at least for that time) MacKinnon LJ went so far as to express the view that recovery may be allowed for shock and related apprehension for the safety of pets.5 1 In Dulieu v White & Sons [1901] 2 KB 669, the first important case permitting recovery for nervous shock, Kennedy J at 675 imposed the limitation that the shock must operate from reasonable fear of immediate personal injury to oneself, adding: “A has, I conceive, no legal duty not to shock B’s nerves by the exhibition of negligence towards C, or towards the property of B or C.” 2

Hoare v Arding & Hobbs (1911) 5 Butt WCC 36.

3

The major issue in dispute was whether the defendants were prejudiced by the plaintiff’s failure to give notice of the claim under s 2 of the Workmen’s Compensation Act 1897 (UK). 4 5

Owens v Liverpool Corporation [1939] 1 KB 394 at 399–400.

Owens v Liverpool Corporation [1939] 1 KB 394 at 399. This placed in some doubt the correctness of the decision in Davies v Bennison (1927) 22 Tas LR 52 where the plaintiff, who was shocked on seeing the defendant shoot her cat, failed to recover: see at 54 per Nicholls CJ. More recent cases provide at least indirect support for MacKinnon LJ’s view. In Cox v McIntosh [1992] CLY 1523 the defendant’s Rottweiler twice savaged the 89-year-old plaintiff’s dog, which required extensive veterinary treatment on both occasions. The plaintiff, who witnessed each attack, suffered emotionally, though not to the extent of

932

Part V: Some Special Cases

[27.20]

[27.20] Attia v British Gas plc6 put the matter beyond doubt. There the plaintiff had engaged the defendant to install central heating in her home, and as she returned to the house she saw smoke pouring from the roof. The fire extensively damaged the house and its contents. These events caused the plaintiff to suffer a psychiatric illness. Her claim for property damage was settled, but she also claimed damages for her illness. The defendant pleaded that there could be no liability unless the shock was caused by fear for the safety of another, rather than through injury to property, and this was tried as a preliminary issue. The English Court of Appeal unanimously rejected the defendant’s contention, refusing to recognise any policy rule that there could be no liability for shock caused by witnessing damage to property. In Bingham LJ’s words: Suppose, for example, that a scholar’s life’s work of research or composition were destroyed before his eyes as a result of a defendant’s careless conduct, causing the scholar to suffer reasonably foreseeable psychiatric damage.7 Or suppose that a householder returned home to find that his most cherished possessions had been destroyed through the carelessness of an intruder in starting a fire or leaving a tap running, thereby causing reasonably foreseeable psychiatric damage to the owner. I do not think a legal principle which forbade recovery in these circumstances could be supported.8

Whether such damage was in fact foreseeable was a matter that would have to be decided at the trial in the light of all the circumstances. [27.30] Brooke LJ has noted that Attia v British Gas plc9 has never been expressly overruled, even though the House of Lords in the 1990s was going through a process of restricting the recoverability of damages for psychiatric injury.10 A leading textbook suggests that though cases such as Attia appear to allow recovery for psychiatric harm caused by damage to the property of the plaintiff, an alternative justification would be that the parties were known to each other in advance and the defendant could be

psychiatric illness. Her emotional suffering was reflected in the damages awarded for trespass to goods. In Somerville v Malloy [1999] OJ No 4208 the defendant’s pit bull terrier ripped the plaintiff’s chihuahua from his arms and savaged him. The dog died the next morning. The plaintiff recovered compensation for his physical injury and emotional trauma under the Dog Owners Liability Act, RSO 1990, c D-16. 6

Attia v British Gas plc [1988] QB 304.

7

“[T]he example proposed by Bingham LJ might have been re-worked to refer to the burning of Thomas Carlyle’s manuscript of The French Revolution by John Stuart Mill’s housemaid. The sage of Craigenputtock did not witness the event: but Mill offered him £200 compensation, worth approximately £25,000 in today’s money”: Holdich v Lothian Health Board [2013] CSOH 197 at [87] per Lord Stewart. A more modern example might be the negligent deletion of an author’s manuscript from a computer’s hard drive. 8

Attia v British Gas plc [1988] QB 304 at 320.

9

Attia v British Gas plc [1988] QB 304.

10

Dunnett v Railtrack plc [2002] EWCA Civ 302 at [15]. The plaintiff in this case claimed for damages arising out of the death of the plaintiff’s three horses. The claim failed on the facts.

[27.40]

27 Damage to Property

933

regarded as having assumed a responsibility to the plaintiff not to expose him or her to the risk of psychiatric harm.11 [27.40] One factor that influenced the English Court of Appeal in Attia v British Gas plc12 was that if the property damage claim had not been settled the plaintiff could have recovered for her shock as consequential damage. An Australian case, Campbelltown City Council v Mackay13 illustrates the difference between the two potential causes of action. Smart J at first instance awarded damages, inter alia, for psychiatric injury suffered as a result of the gradual decay of the plaintiffs’ house which was ultimately condemned as unsafe for human habitation. The New South Wales Court of Appeal did not expressly rule out the possibility of recovery for psychiatric injury caused by the perception of property damage,14 but took the view that on the facts of the case the plaintiffs’ mental disorders were not induced by a single sudden perception of property damage but by a combination of other events.15 However, the Court of Appeal was prepared to award compensation for vexation, worry and distress consequent on the damage to the property, including damages for a psychiatric illness that was a reasonably foreseeable result of the negligence.16 Claims for emotional or mental stress consequent on damage to property are not to be confused with actions for propertybased psychiatric illness. The two are conceptually distinct. Claims for psychiatric injury are subject to important limitations, such as the need to prove a recognisable psychiatric illness; such requirements are absent where the claim is for damage to property and the distress damages are one element in the damages awarded.17 The difference between the two kinds of claim becomes significant where the claim for property damage is settled (as in Attia v British Gas plc18): this operates to convert what 11

S Deakin, A Johnston and B Markesinis, Markesinis and Deakin’s Tort Law (7th ed, Clarendon Press, Oxford, 2013), p 136. Similar cases of psychiatric harm arising out of the breach of a relationship are discussed in Chapter 21.

12

Attia v British Gas plc [1988] QB 304.

13

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

14

The defendant accepted that had psychiatric injury been caused by the sudden shock of damage to the home (eg by its immediate rather than gradual collapse) it would have been liable.

15

Note also Storey v Charles Church Developments plc (2001) 73 Con LR 1, where a claim for psychiatric illness allegedly caused by structural failure of a house due to bad building was rejected because there was no sudden shock.

16

In Crump v Equine Nutrition Systems Pty Ltd [2006] NSWSC 512, a claim for psychiatric injury consequent on the death of a horse due to eating contaminated feed, the plaintiffs attempted to claim for direct psychiatric injury resulting from the supplying of contaminated feed, psychiatric injury resulting from damage to property by reason of the death of the horse, and vexation and distress again resulting from the property damage. The first two claims were rejected on the ground that psychiatric injury was not foreseeable. Some damages were awarded for vexation and distress.

17 18

See [12.350]–[12.360].

Attia v British Gas plc [1988] QB 304. Note that the successful property claim in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 was not appealed against.

934

Part V: Some Special Cases

[27.50]

would otherwise be a relatively uncontroversial action for consequential damage into a pure psychiatric injury claim with all its attendant prerequisites to relief.19 [27.50] An Australian case arising out of the Ash Wednesday bushfires that swept through South Australia in 1983 provides a graphic illustration of the possibility that plaintiffs may suffer psychiatric harm through perception of property damage.20 In Electricity Trust of South Australia v Renault,21 the plaintiffs saw their home destroyed in the conflagration. Six years later, a doctor told them that the psychiatric problems they had subsequently suffered from were caused by the experience. Both parties were diagnosed as suffering from post-traumatic stress disorder, and in addition the husband had a panic disorder and the wife was suffering from a major depressive illness. Duggan J granted them an extension of time to sue.22 [27.60] The Civil Liability Act provisions on mental harm will apply to a claim for psychiatric illness resulting from damage to property, just as they apply to any other kind of claim for mental harm. Of the circumstances listed in the legislation as relevant to the determination of whether a duty of care was owed, two are particularly relevant — whether or not the mental harm was suffered as the result of a sudden shock, and whether or not there was a pre-existing relationship between 19

Tort actions for defective building remain possible in Australia, at least in certain circumstances, for example involving private dwellings as opposed to commercial buildings: Bryan v Maloney (1995) 182 CLR 609, which involved a private dwelling, was limited but not overruled by Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515. Such claims were virtually eliminated in England as a result of D & F Estates Ltd v Church Commissioners for England [1989] AC 177, Murphy v Brentwood District Council [1991] 1 AC 398 and Department of the Environment v Thomas Bates & Son Ltd [1991] 1 AC 499. Note Fleming v Strathclyde Regional Council 1992 SLT 161 where a claim for distress and inconvenience, occurring when the house in which the pursuer was living was damaged by floodwater and she was unable to occupy it for several days, was held to form a relevant basis for a claim for solatium under Scottish law.

20

Note also Pibworth v Bevan M Roberts Pty Ltd (unreported, SASC, No 770 of 1986, 28 May 1992) where damages were granted for post-traumatic stress disorder stemming from the destruction of the plaintiff’s home by fire.

21

Electricity Trust of South Australia v Renault (unreported, SASC, No SCGRG 89 910, 1 July 1993).

22

Another case arising out of the Ash Wednesday bushfires, Electricity Trust of South Australia v Carver (unreported, SASC, No SCGRG 90 976, 2 July 1993) is perhaps a little more complex. The plaintiff was living with a friend and two of the friend’s children in a house which was destroyed by fire. The friend and one of the children died in the fire, and the plaintiff subsequently discovered their bodies. She claimed an extension of time to sue on the basis that she first knew she had post-traumatic stress disorder and major depression when she read a doctor’s report six years later. Duggan J confirmed that an extension of time to sue was appropriate. The principles were not discussed, but presumably the major trigger of psychiatric injury was the plaintiff’s own involvement in the fire and the discovery of the bodies, and not just perception of property damage to a house she was living in but did not own. Birti v SPI Electricity Pty Ltd [2011] VSC 566 was a psychiatric injury claim arising out of the Black Saturday bushfires in Victoria in 2009. The issue litigated was whether the plaintiff’s claim could be tried separately from group proceedings.

[27.80]

27 Damage to Property

935

the plaintiff and the defendant. It has been suggested at [27.30] that the relationship factor may be important in determining whether a duty of care exists in cases such as Attia v British Gas plc,23 and the Civil Liability Acts appear to enhance the significance of this approach.

Other jurisdictions [27.70] Examples of psychiatric injury resulting from damage to property can be found in Canadian case law. In the Nova Scotia case of Horne v New Glasgow24 a truck careered out of control down a hill and crashed into the plaintiff’s house, stopping within a few feet of her in the living room. Although suffering no physical injury through the impact of the accident itself, she was shocked through a combination of extreme worry about her elderly parents who had been upstairs at the relevant time, and about the fate of her badly damaged home. McQuarrie J was not moved to deny her recovery on the basis that her psychiatric injury was caused partly by the perception of damage to property and the belief that her home had been destroyed,25 and there is no indication that the damages awarded reflected (or attempted to reflect) only the nonproperty related shock injuries. The facts of Hetherington v Insurance Corporation of British Columbia26 were very similar: the plaintiff and her family were asleep upstairs when a pickup truck slammed into the front of her house in the middle of the night, most of it ending up in the living room. The driver ran away. It was very soon clear that no one was hurt. The plaintiff was initially concerned for the driver, but this fear disappeared when she realised he had absconded. She alleged that the occurrence caused her emotional damage, aggravated by the slow pace of renovations being carried out while the family lived in what was left of the house. Selbie J held that the defendant was liable for the harm caused to her. It was not too remote a consequence that a person would suffer psychiatric shock if his or her home was invaded by a vehicle being driven negligently. His Lordship applied the general doctrines stated in the leading British Columbia case of Rhodes v Canadian National Railway,27 underlining the fact that psychiatric injury caused by property damage should be treated in the same way as psychiatric injury caused by more usual stressors. [27.80] Damage to property causing psychiatric consequences may take many forms. In Heighington v The Queen in Right of Ontario,28 Holland J held that damages for psychiatric illness caused by shock and emotional 23

Attia v British Gas plc [1988] QB 304.

24

Horne v New Glasgow [1954] 1 DLR 832, noted by WR Lederman (1954) 32 Can BR 325.

25

Horne v New Glasgow [1954] 1 DLR 832 at 840. Whilst the fear for the safety of her parents was canvassed, once again it seems that little attention was focused on the plaintiff’s immediate fear for her own life.

26

Hetherington v Insurance Corporation of British Columbia (1994) 2 BCLR (3d) 396.

27

Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

28

Heighington v The Queen in Right of Ontario (1987) 41 DLR (4th) 208.

936

Part V: Some Special Cases

[27.90]

distress were recoverable by persons who learnt that, unbeknown to them, they had been occupying residences built on land contaminated with radioactive waste.29 As in Australia, damages for mental distress may be recoverable in an action for negligent building resulting in structural damage.30 [27.90] Even South Africa, which resisted the modernisation of nervous shock law for many years, has contemplated the possibility of recovery for psychiatric damage arising from damage to property (or fear of such damage) resulting from lack of due care. The incredible case of Masiba v Constantia Insurance Co Ltd31 is illustrative. The facts (which, one might have thought, could only have been dreamed up by a torts examiner) were that the deceased, his wife (the first plaintiff), their three-and-a-halfyear-old daughter, her playmate of similar age and the first plaintiff’s 18-year-old niece were travelling in a car driven by the deceased. The car stalled as it approached a bridge over a railway line and the deceased, the plaintiff and the niece got out to push it, leaving the two children inside. Four men offered their assistance, one of whom then assaulted the deceased intending to steal his watch. The first plaintiff, who was on the opposite side of the car, raced to his aid only to be struck by an oncoming car insured by the first defendant. The assailant having fled, the deceased went to help her. But while he was assisting her a third car insured by the second defendant struck the rear of their stationary car (still containing the two young children). The impact propelled the car forward across the road where it stopped against the side of the bridge. Crying “my children”, the deceased started towards the car, but suffered a stroke due to his (not surprisingly) elevated blood pressure from which he died three days later. The first plaintiff sued the first and second defendants on behalf of herself and her children (one of whom, having come of age, became the second plaintiff) for loss of their breadwinner’s support.32 In examining whether liability for the death followed from the finding that the second driver’s negligence had caused the collision, Berman AJ in the Cape Provincial Division ruled that although it may not have been reasonably foreseeable that the stationary car might contain children (although it is clear that his Lordship inclined to the view that it was), it was reasonably foreseeable that the owner of the car might be among bystanders clearly visible and that he might well suffer “considerable shock” at seeing his property badly damaged. Even a threat of injury to a

29

Note also Burton v Vancouver/Richmond Health [2003] BCPC 440, a claim for “nervous shock” (inter alia) arising out of a toxic spill, which was rejected on the ground that no actual psychiatric injury was established.

30

See eg Stoddard v Atwil Enterprises Ltd (1991) 105 NSR (2d) 315.

31

Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C).

32

Due to an absence of sufficient proof of the first driver’s negligence all claims against the first defendant were dismissed.

[27.100]

27 Damage to Property

937

chattel could suffice to ground liability for shock-induced injury if the other essential elements of liability were present.33 [27.100] Some United States courts have also recognised recovery for property damage-related shock. The first jurisdiction to do so was Nebraska: a majority of the Supreme Court in Rasmussen v Benson34 were prepared to grant relief to a dairy farmer who suffered nervous shock (leading to cardiac decompensation and his eventual death) after his cows were poisoned through feeding on bran contaminated with arsenic. The defendant, intending to kill grasshoppers, had placed the poison in a sack of bran. He had forgotten about both the grasshoppers and the lethal levels of arsenic and sold the bran to the plaintiff at a farm sale. Significantly, in addition to distress from the loss of his entire business, the plaintiff’s emotional injuries were viewed as having been due in part to concern for his customers who had consumed milk from the affected stock.35 In recent years, other States have granted recovery in similar circumstances. In Texas, in Shade v City of Dallas,36 the negligence of a municipal authority caused a sewage backup in the plaintiff’s home. Raw sewage erupted in his bathroom and flooded the whole house, the odour lingering even after it was cleared, and the dampness causing mould to grow throughout. The plaintiff recovered for the mental anguish of having to live with this situation. In Massachusetts, in Sullivan v Boston Gas Co,37 a natural gas explosion caused by the defendant’s negligence destroyed the plaintiffs’ home as they looked on from across the street. This caused the female plaintiff to suffer post-traumatic stress disorder, and her partner also experienced symptoms of psychiatric illness. The Supreme Judicial Court allowed their claims for negligent infliction of emotional distress.38 Louisiana courts have been particularly active in allowing mental injury claims under this head, ruling that damages for 33

Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) at 342–343. Note the comments of JM Burchell, Annual Survey of South African Law 1982 (Juta, Cape Town, 1983), pp 176–180.

34

Rasmussen v Benson 280 NW 890 (Neb 1938). Mr Rasmussen himself commenced this action, but at his death it was revived and continued by his wife as administratrix of his estate.

35

No consideration was made of fear of possible damage to the plaintiff from drinking the milk himself. Other Nebraska cases have reached a different result: note Fournell v Usher Pest Control Co 305 NW 2d 605 (Neb 1981) (no recovery for distress resulting from failure to discover termite damage to home); Fackler v Genetzky 595 NW 2d 884 (Neb 1999) (owners of racehorse negligently destroyed by vet not entitled to recover).

36

Shade v City of Dallas 819 SW 2d 578 (Tex 1991).

37

Sullivan v Boston Gas Co 605 NE 2d 805 (Mass 1993).

38

Other cases allowing recovery include Mullins v Harry’s Mobile Homes Inc 861 F Supp 22 (1994) (applying West Virginia law); Boughton v Cotter Corporation 65 F 3d 823 (1995) (applying Colorado law); Erlich v Menezes 71 Cal Rptr 2d 131 (1998); Hawkins v Scituate Oil Co Inc 723 A 2d 771 (RI 1999); Adams v NVR Homes Inc 135 F Supp 2d 675 (2001) (applying Maryland law). In Alabama Power Co v Murray 751 So 2d 494 (Ala 1999) home owners who woke up to find their house on fire were allowed to claim for mental anguish, though they suffered no personal injury, because they were within the zone of danger; compare White Consolidated Industries v Wilkerson 737 So 447 (Ala 1999) (no action against seller of defective air-conditioner that caused fire that destroyed plaintiffs’ home when plaintiffs were absent).

938

Part V: Some Special Cases

[27.110]

mental anguish caused by negligent damage to property may be awarded where the owner is present when or shortly after the damage is inflicted and suffers psychic trauma as a result,39 or in equivalent circumstances where the property is damaged by an intentional or illegal act.40 [27.110] However, the jurisdictions permitting recovery for emotional distress and trauma caused by property damage remain in the minority41 Many cases involve injuries, fatal or otherwise, to pet cats42 and dogs;43 in a recent decision from New Jersey, the court declined to recognise the right of a dog owner to recover damages for emotional distress consequent on the death of the dog, after a full consideration of all the 39

See Pete v Trent 583 So 2d 574 (La 1991); Simmons v Board of Commissioners of Bossier Levee District 624 So 2d 935 (La 1993). Note Gaynor v State Farm Mutual Auto Insurance Co 727 So 2d 1279 (La 1999) (no recovery where car owner who had left car on highway after it had stalled and was some distance away when he heard the crash); Hardy v Poydras Properties 737 So 2d 793 (La 1999) (owner who witnessed destruction of restaurant by fire could recover, but not shareholders of corporate subtenant); National Union Fire Insurance Co of Lousiana v Harrington 854 So 2d 880 (La 2003) (homeowner witnessed destruction of home as result of fire which started in vehicle parked in her carport).

40 See Freyou v Iberia Parish School Board 657 So 2d 161 (La 1995); Atwood v Hylan 685 So 2d 450 (La 1996); Williams v City of Baton Rouge 731 So 2d 240 (La 1999). 41

For cases denying recovery, see eg Furlan v Rayan Photo Works Inc 12 NYS 2d 921 (1939) (recovery denied for mental distress caused by negligent mutilation of mother’s picture); Blanchard v Reliable Transfer Co 32 SE 2d 420 (Ga 1944) (plaintiff, while in bed at home, heard ambulance he owned crash); Charlie Stuart Oldsmobile Inc v Smith 357 NE 2d 247 (Ind 1976) (no damages for mental anguish caused by dealer’s unsuccessful attempt to repair car); Smith v Clough 796 P 2d 592 (Nev 1990) (plaintiffs in backyard heard car crash into front of house); Kleincke v Farmers Cooperative, Supply and Shipping 549 NW 2d 714 (Wis 1996) (no remedy against company that removed fuel oil tank from plaintiff’s basement but left exterior fill pipe in place, so when supply company pumped oil through pipe, basement was flooded); Carpenter v Land O’Lakes Inc 976 F Supp 968 (1997) (applying Oregon law: dairy farmers could not recover from feed suppliers for emotional distress stemming from seeing cows eat mouldy feed and contemplating likely economic loss); Stechler v Homyk 713 NE 2d 44 (Ohio 1998) (no recovery for nervous breakdown caused by destruction of property by water from flat above); Curbean v Kibel 784 NYS 2d 518 (2004) (emotional distress caused by loss of home and personal property due to fire in apartment not compensable); Re Air Crash at Belle Harbor, New York on November 12, 2001 450 F Supp 2d 432 (2006) (New York law did not permit recovery of damages for non-pecuniary loss for destruction of family home); Exxon Mobil Corporation v Albright 71 A 3d 30 (Md 2013) (property owners not entitled to damages for emotional distress due to fear of diminution in value of home following escape of contaminated gasoline). 42

Buchanan v Stout 108 NYS 38 (1908) (plaintiff saw pet cat mangled by defendant’s dog); Lockett v Hill 51 P 3d 5 (Or 2002) (cat killed by defendant’s pit bull terriers); Anzalone v Kragness 826 NE 2d 472 (Ill 2005) (cat killed by Rottweiler while boarded at animal hospital).

43

Strawser v Wright 610 NE 2d 610 (Ohio 1992) (buyer of puppy that died due to failure to give vaccinations); Soucek v Banham 503 NW 2d 153 (Minn 1993) (dog shot by police); Nichols v Sukaro Kennels 555 NW 2d 689 (Iowa 1996) (no damages for sentimental attachment to injured pet dog); Koester v VCA Animal Hospital 624 NW 2d 209 (Mich 2000) (dog killed due to negligence of veterinarian); Harabes v Barkery Inc 791 A 2d 1142 (NJ 2001) (dog died after being subjected to extreme heat in dog grooming parlour); Lewis v Di Donna 743 NYS 2d 186 (2002) (dog died as result of pharmacy’s inaccurate labelling of prescription); Pickford v Masion 98 P 3d 1232 (Wash 2004) (dog died after being mauled by other dogs); Petco Animal Supplies Inc v Schuster 144 SW 3d 554 (Tex 2004) (dog killed in traffic accident after escaping from pet groomer).

[27.130]

27 Damage to Property

939

policy issues.44 Nor does an animal have any right to sue on its own behalf: in Ohio, a court rejected an attempt to file a claim on behalf of “Poopi”, a miniature poodle, for pain and suffering and emotional distress consequent on a veterinarian making a botched attempt to spay her when she had already been spayed, resulting in a large incision scar on her abdomen — after she had only gone to the animal hospital to have her teeth cleaned.45 The court commented: “A dog cannot recover for emotional distress – or indeed for any other direct claim of which we are aware.”

PARTICULAR ISSUES [27.120] One consequential issue is whether the property must be owned by the mental harm claimant. This has not yet been judicially addressed.46 In Campbelltown City Council v Mackay,47 it so happened that the plaintiffs were joint owners of the home. Had this not been the case the spouse who had no property right would presumably have been unable to recover damages for vexation, worry and distress, notwithstanding that his or her reaction was as predictable as that of the spouse whose name appeared on the title deeds. The as-yet unanswered question is whether a psychiatric injury claim based on perception of damage to property by a non-owner would also fail. [27.130] Another issue is the nature of the property in question. Though the most obvious case is the destruction of a home, as in Attia v British Gas plc,48 but there seems no reason why liability should be limited to particular kinds of property: if foreseeability and other prerequisites to psychiatric injury liability are present, nothing should turn on whether the property is a house or a car, a Ming vase or Stradivarius violin. There may even be a case for not limiting this category of case to tangible property: Bingham LJ’s example of the destruction of a scholar’s work 44

McDougall v Lamm 48 A 3d 312 (NJ 2012) (owner of maltipoo dog witnessed it being shaken to death by larger dog; the court declined to place relationship between pet owner and pet in same category as close family relationships). Hawaii is the only State to allow recovery: see Campbell v Animal Quarantine Station 632 P 2d 1066 (Haw 1981), discussed at [11.690]. 45

Oberschlake v Veterinary Association Animal Hospital 785 NE 2d 811 (Ohio 2003).

46

In O’Sullivan v Williams [1992] 3 All ER 385 an excavator toppled off a passing trailer and wrote off a car parked outside the plaintiff’s home. The car belonged to her boyfriend but she had the right to use it on a regular basis. The County Court judge rejected her claim for psychiatric injury consequent on the damage to the car, but it is clear that had such harm been found to exist liability would not have been denied on the ground that she was not the owner. The psychiatric injury claim was not appealed to the English Court of Appeal, but it would have upheld a claim based on inconvenience, even though the plaintiff was the bailee and not the bailor, had the defendant not already settled with the bailor. Note also Electricity Trust of South Australia v Carver (unreported, SASC, No SCGRG 90 976, 2 July 1993), where it appears that the plaintiff’s perception of property damage to a house she was living in but did not own was not the major factor bringing about her psychiatric injury: see [27.50].

47

Campbelltown City Council v Mackay (1989) 15 NSWLR 501.

48

Attia v British Gas plc [1988] QB 304.

940

Part V: Some Special Cases

[27.140]

clearly envisaged something that went beyond the value of the paper on which it was written.49 Nor should the market value of property have any bearing on the issue of liability. The destruction of or damage to commercially valueless but highly treasured or sentimental property is as likely (perhaps more likely) to trigger psychiatric injury as harm to something that could have been sold for a great sum. [27.140] Two recent cases, on English and one Scottish, involve claims for psychiatric injury caused by the negligent destruction of sperm stored in a sperm bank. In Yearworth v North Bristol NHS Trust,50 it was held that while this was not a personal injury case, there was damage to property that was owned by the plaintiffs, and that they had a cause of action in bailment, which enabled them to recover damages for mental distress according to contractual principles.51 As regards recoverability for psychiatric injury in tort, Lord Judge CJ referred to Attia v British Gas plc52 and noted that this case involved witnessing damage to property, whereas here the psychiatric injury resulted from being told of the loss of the sperm — a distinction firmly embedded in English psychiatric damage law as a result of Alcock v Chief Constable of South Yorkshire Police.53 He suggested that it might be controversial to distinguish between the person who witnessed damage to his or her property and in consequence suffered psychiatric injury and the person who received information about damage to the property and suffered similarly, but given that the plaintiffs had remedies outside the law of tort there was no need to consider this problem further.54 This may be another instance where distinctions drawn up with the standard accident scenario in mind are inappropriate in other contexts. In the Scottish case, Holdich v Lothian Health Board,55 counsel for the defenders described the issue as “trying to put a kilt on Yearworth” — in other words, whether the causes of action recognised by the English Court of Appeal had equivalents in Scottish law. Because of differences between the English law of bailment and the Scottish law on contracts of deposit, it was not so easy to find a remedy 49

Other examples might include the anguish and shock of an author who finds his book being sold under the name of another a few weeks before he was ready to submit the final version to a publisher, or a horticulturist who has devoted years and invested large sums of money in an attempt to produce a unique flower or fruit who discovers her secrets being used to make others rich. Actions for breach of copyright may not be able to remedy all the loss suffered in such cases. Note, however, Paul v Providence Health System-Oregon 273 P 3d 106 (Or 2012) (plaintiff unable to recover for negligent infliction of emotional distress based on possible risk of future identity theft after digital medical files stolen from car belonging to employee of defendant).

50

Yearworth v North Bristol NHS Trust [2010] QB 1. See J Lee, “The Fertile Imagination of the Common Law: Yearworth v North Bristol NHS Trust” (2009) 17 TLJ 130.

51

See eg Jarvis v Swan’s Tours Ltd [1973] QB 233. The leading Australian case is Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1993) 176 CLR 344.

52

Attia v British Gas plc [1988] QB 304.

53

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

54

Yearworth v North Bristol NHS Trust [2010] QB 1 at [55].

55

Holdich v Lothian Health Board [2013] CSOH 197.

[27.160]

27 Damage to Property

941

without resorting to a delictual claim. Issues arose as to whether the pursuers were primary or secondary victims. If the latter, essential elements of liability, such as witnessing the accident or the aftermath, were not present. As to the former, it was debatable whether the case could be appropriately classified with cases on negligent professional services, because of doubt whether there was a continuing professional relationship. In the end, the plaintiffs were left with a possible claim based on Attia, the outcome of which would depend on the evidence. [27.150] A final conundrum is whether there is any possibility of recovery for psychiatric injury stemming not from damage but from loss of property. An Australian authority suggests that there is little likelihood of such a claim being recognised. In Stergiou v Citibank Savings Ltd56 the defendant as mortgagee of a property obtained an order for possession due to default by the plaintiff mortgagors, but the judgment was ultimately struck out and the defendant was obliged to relinquish possession. The plaintiffs claimed damages, inter alia, for nervous shock. Crispin J thought it unlikely that such a claim could be sustained and granted the defendant leave to apply for summary judgment:57 other reasons aside, it seems clear that the plaintiffs had not suffered any more than mental anguish, rather than a recognised psychiatric injury. The Full Federal Court dismissed the appeal. Although it was alleged that the damage flowed from all of Citibank’s wrongful conduct, including making incorrect debit entries, wrongfully demanding payment and entering judgment, a passage in the appeal court’s judgment suggests that the real complaint was taking possession of the property.58 [27.160] Stergiou v Citibank Savings Ltd59 involved an essentially commercial scenario where claims for mental harm were probably inappropriate. However, there may be different situations where mental harm caused by the loss of property may well be a foreseeable consequence. In Lodge v Fraser Health Authority,60 the plaintiff was the de facto husband of Patricia McKay, who died suddenly in the defendant’s hospital. Three rings alleged to have been on her fingers at the time of her death disappeared. The plaintiff sued the hospital in negligence. The first instance judge held that the only issue was whether the plaintiff could show a property interest in the rings (which he could not), and so withdrew the case from the jury. The British Columbia Court of Appeal took a wider view, accepting that the issue was whether the hospital’s obligation to take reasonable care in handing the body of a dead patient, and safeguarding her personal belongings, gave rise to a duty of care that 56

Stergiou v Citibank Savings Ltd [1999] FCA 1321.

57

Stergiou v Citibank Savings Ltd (1998) 148 FLR 244.

58

Stergiou v Citibank Savings Ltd [1999] FCA 1321 at [17] per Higgins, Madgwick and Dowsett JJ. Breach of a relationship of this kind is thus unlikely to give rise to a cause of action: see [21.150].

59

Stergiou v Citibank Savings Ltd [1999] FCA 1321.

60

Lodge v Fraser Health Authority (2009) 91 BCLR (4th) 44.

942

Part V: Some Special Cases

[27.160]

extended to persons such as her spouse, and whether psychiatric injury suffered by such a person as a result of the hospital’s negligence was within the range of foreseeability. A new trial was ordered.

Chapter 28

Bad News [28.10] THE PROBLEM ................................................................................................................. 943 [28.50] FALSE BAD NEWS .......................................................................................................... 945 [28.50] Australian cases ................................................................................................................ 945 [28.80] Effect of the Civil Liability Acts ..................................................................................... 948 [28.90] The law elsewhere ............................................................................................................ 948 [28.170] TRUE BAD NEWS .......................................................................................................... 955 [28.180] Australian cases .............................................................................................................. 956 [28.210] The law elsewhere .......................................................................................................... 958 [28.250] Discussion ........................................................................................................................ 961

THE PROBLEM [28.10] It has been accepted for many years that if information is wilfully conveyed to a person with the actual or imputed intention to cause nervous shock, and physical or mental illness does in fact ensue, the conveyer will be held responsible at law.1 What has not been clarified is whether an action will lie in negligence if information is communicated to another carelessly, rather than intentionally, and that other suffers nervous shock and psychiatric injury as a result.2 Can there, in other words, be tortious liability for breaking bad news badly? This situation is to be distinguished from liability for harm (usually financial loss) suffered through reliance on a negligent statement.3 The potential cause of action under discussion involves psychiatric harm suffered by virtue of the fact that the statement was made and not because it was acted upon.4 1

Wilkinson v Downton [1897] 2 QB 57, discussed in Chapter 30.

2

In Wilkinson v Downton [1897] 2 QB 57, where the plaintiff suffered shock as a result of being told a false story that her husband had had an accident, Wright J at 59 expressly held that the defendant’s conduct was so plainly calculated to produce a harmful effect that an intention to produce such an effect ought to be imputed to him. His Lordship refused to regard the shock to the plaintiff merely as a reasonably foreseeable consequence of the defendant’s actions and was not prepared to hold that the defendant was merely reckless. In his opinion, the harm could be regarded as intentionally (ie distinct from negligently) caused. No guidance can therefore be gleaned from the case with respect to this particular issue.

3 4

The parent case is Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

The courts have acknowledged that these situations are different: see eg Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 221 per Cartwright J (Rinfret CJC concurring), at 227–230 per Kerwin J, at 232–234 per Estey J, but compare at 253–254 per Locke J.

944

Part V: Some Special Cases

[28.20]

[28.20] Older cases in general shed little direct light on the question of the existence of a duty of care not to cause nervous shock and psychiatric injury by a negligent statement.5 However, we get some hints from obiter comments uttered by Windeyer J in the High Court of Australia and Lord Denning MR in the English Court of Appeal. In Mount Isa Mines Ltd v Pusey,6 in perhaps the leading general statement of the law on this particular issue, the traditional focus of the common law on direct physical perception led Windeyer J to state: If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news.7

In somewhat similar vein, Lord Denning MR in D v National Society for the Prevention of Cruelty to Children8 expressed the view that while he could understand the imposition of liability in the intentional shock cases, it would be “a big step forward – or backward – to extend it to a statement which is made honestly in good faith”.9 His Lordship reasoned: Many a person has occasion to investigate a complaint. It may be an employer or a police officer. Someone may report to him that goods have been stolen and that he believes that a man named AB is the thief. The employer or police officer sees the man AB and tells him that he is suspected. He is so shocked that he has a nervous breakdown. Has he cause of action against the employer or police officer on the ground that he conducted the inquiry negligently? The question only has to be posed to see what an extension this would be.10

[28.30] A throwaway line by Parker LJ in Alcock v Chief Constable of South Yorkshire Police11 reveals that analysis of the issue of liability for communicating distressing news had not generally proceeded very far at this point in time. Having assumed that the conveying of information by television was akin to other cases of third party communication, his Lordship suggested that if a duty was owed in such circumstances an action could lie against the reporter for causing psychiatric harm.12 It appears, with respect, that Parker LJ in this passage confused the position of the commentator with that of the party responsible for the original negligent act or omission. This apart, his Lordship appears to have shared 5

Although De Freville v Dill (1927) 96 LJKB 1056, which concerned a doctor who negligently certified the plaintiff to be insane, causing her to be detained in a mental home, is closely related to this issue.

6

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

7

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407.

8

D v National Society for the Prevention of Cruelty to Children [1978] AC 171.

9

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 188–189.

10

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 189.

11

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

12

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 363.

[28.60]

28 Bad News

945

the general reluctance to recognise liability for bearing bad news already expressed by Windeyer J and Lord Denning MR. [28.40] In none of these passages was any distinction drawn based on the truth or falsity of the information conveyed. Recent cases have added much to the store of judicial utterance on the bad news issue, and have shown that this is an essential distinction. While liability for true bad news remains controversial, the possibility of liability for negligently conveying false information of this nature is now supported by a respectable body of authority.13

FALSE BAD NEWS Australian cases [28.50] The earliest discussions of liability for untrue bad news are contained in Australian cases. No action of this kind could originally be maintained. In Blakeney v Pegus (No 2)14 there was a mix-up by a country telegraph operator who mistakenly sent a telegram from Murwillumbah addressed to Walter Black, Yamba and containing the message “James very ill would like to see you” to W Blakeney, Iluka. As fate would have it, Mr Blakeney also had a son named James working near Murwillumbah and he and his wife suffered an anxiety reaction on receiving the telegram, Mr Blakeney in addition incurring expense in embarking on a hastily organised journey to see his son. Although he was stopped when the defendant realised her mistake, his wife’s health deteriorated to the extent that she had to be sent to Sydney for treatment. While Martin CJ (with whom Faucett and Innes JJ agreed) was prepared to compensate the husband for the expenses incurred in preparing to visit his son and in treating his wife, in the absence of fraud or contract between the parties he refused to attribute responsibility in law for the consequences of a negligent misdelivery of the telegram: “[N]o erroneous statement is actionable unless it is intentionally false. … For mere negligence no action will lie.”15 [28.60] Subsequent Australian authorities have suggested, however, that in appropriate circumstances liability may lie for psychiatric injury arising from distressing false information negligently communicated.16 The 13

It appears that nothing turns on whether the statement (true or false) is negligently communicated orally or in writing. In Furniss v Fitchett [1958] NZLR 396 at 403, Barrowclough CJ said: “[T]here seems to be no ground for drawing a distinction between what is said and what is written.” For discussion of this case see [28.210].

14

Blakeney v Pegus (No 2) (1885) 6 NSWR 223.

15

Blakeney v Pegus (No 2) (1885) 6 NSWR 223 at 231–232.

16

In Brown v Mount Barker Soldiers’ Hospital Inc [1934] SASR 128, Piper J held that the hospital was liable for shock suffered by Mrs Brown on receiving the news that her newborn baby had been burnt by a spark from the fire in the hospital nursery. Mrs Brown did not see the accident happen, but liability appears to have been based on the fact that the hospital owed her a duty of care as their patient: see [11.110], [22.150]. Piper J commented at 130: “It

946

Part V: Some Special Cases

[28.70]

husband of the plaintiff in Barnes v Commonwealth17 was a pensioner. The defendant, by its servants, sent the plaintiff a letter quoting her husband’s pension number and informing her that he had been admitted to a mental hospital. This was untrue, but on reading the correspondence the plaintiff suffered nervous shock and emotional distress, requiring expensive nursing and medical treatment. The Full Court of the New South Wales Supreme Court held that shock to the plaintiff was foreseeable as a result of the communication of such a statement and that the defendant therefore owed a duty to ensure that the information communicated was accurate. The court followed its own decision in Bunyan v Jordan18 that, in general, accepted that an action would lie wherever shock to a normal person was a reasonably foreseeable result of negligent conduct. As Davidson J stated: [I]f a person doing an official act, as in the present case, recognised, as he must have done, that he was communicating some serious information which might possibly affect the recipient’s feelings strongly, surely he owed some duty to that person to take care that the information which he was communicating was correct.19

Stephen J was in substantial agreement although he framed his analysis slightly differently, expressing the view that: [T]he defendant is legally responsible if he owes a general duty to the plaintiff not to convey incorrect information, and there is a breach of that duty. In such a case, it may be unnecessary to show a realisation of the harmful nature of the information. … [T]he defendant may be responsible if there is a specific duty to take care not to convey incorrect information arising from the special circumstances of the case.20

His Honour concluded that there was no general duty of care on the facts but that there was a specific duty arising from the relationship between the parties making it reasonable that responsibility be placed on the defendant and under which the conveyer must have realised the capacity of the information that he was entrusted to convey to cause the plaintiff to suffer shock. [28.70] The issue of liability for the careless communication of false news has not arisen in more recent Australian cases, although the decision in Barnes v Commonwealth21 was endorsed by Gummow and Kirby JJ in would be a breach of duty, actionable if followed by damage, to tell her untruly that her child had been burnt. As the truthfulness of the statement was owing to negligence, the truthfulness was no legal excuse for doing harm by telling her – it was a necessary consequence of the negligence that she had to be told.” 17

Barnes v Commonwealth (1937) 37 SR (NSW) 511.

18

Bunyan v Jordan (1936) 36 SR (NSW) 350, affirmed by the High Court: Bunyan v Jordan (1937) 57 CLR 1.

19

Barnes v Commonwealth (1937) 37 SR (NSW) 511 at 515.

20

Barnes v Commonwealth (1937) 37 SR (NSW) 511 at 516.

21

Barnes v Commonwealth (1937) 37 SR (NSW) 511.

[28.70]

28 Bad News

947

their joint judgment in the High Court in Tame v New South Wales.22 The facts in Tame’s case, one of two to be heard together by the High Court in a major restatement of the Australian law on psychiatric injury, deserve a little consideration in the bad news context. Mrs Tame claimed to have suffered a psychiatric illness as a result of a police officer entering an incorrect blood alcohol reading against her name on a road accident report form. The error was corrected, but not before a copy was obtained by one of the insurers, and the news of her incorrect reading ultimately reached Mrs Tame via her solicitor. She immediately assumed that this was the reason why medical bills were not being paid — in fact, the insurers had declined to pay because the treatment was unnecessary. Although at first instance a District Court judge held that she had a valid claim against the State of New South Wales in respect of the negligence of the police officer in question,23 this decision was reversed by the New South Wales Court of Appeal on the ground that the judge below had adopted the wrong approach to the issue of special susceptibility,24 and the Court of Appeal’s decision was endorsed by the High Court. The judgments in this case concentrate on general principles and do not approach the facts on the basis that they involve the communication of bad news. At first instance, a submission that the report was communicated in an inflammatory and incorrect fashion was rejected,25 and this was surely correct, because if this case raises issues involving the communication of news the essential feature was its incorrectness rather than the manner in which it was conveyed. As a false bad news case, the decision is clearly correct because it could not reasonably be foreseen that a person in Mrs Tame’s position might suffer psychiatric injury as a result of a false statement on an accident report that had in any case been corrected as soon as it had been discovered and some time before she found out about it. This was one of the grounds on which the High Court ruled against her; the others were the fact that the police officers in carrying out these responsibilities owed duties to their superiors, not members of the public, and the need for coherence between the law of negligence and the law of defamation — McHugh J pointed out that Mrs Tame could have sued in defamation but not in negligence.26 Overall, what is significant about Tame’s case is that it does not fit into any category of psychiatric injury liability considered in this book. The facts come nearer to a false bad news situation than any other, but the 22

Tame v New South Wales (2002) 211 CLR 317 at [229].

23

Tame v Morgan (1998) Aust Torts Rep 81-483.

24

Morgan v Tame (2000) 49 NSWLR 21. Mason P at [126] commented that Barnes v Commonwealth (1937) 37 SR (NSW) 511 was easily distinguished because of the directness of the communication, the type of information and the obvious potential it had to cause serious distress or worse. He noted (at [154]) that the relationship between the parties contained additional factors which established the necessary proximity.

25

Tame v Morgan (1998) Aust Torts Rep 81-483 at 65,204 per Garling DCJ.

26

Tame v New South Wales (2002) 211 CLR 317 at [122].

948

Part V: Some Special Cases

[28.80]

requirements for liability under that head are not made out. These points underline the correctness of the decision.

Effect of the Civil Liability Acts [28.80] The provisions of the Civil Liability Acts on mental harm are potentially applicable to the bad news situation, just as they are to all the other situations considered in this book. Among the circumstances listed in the legislation to be taken into account in determining whether the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness if reasonable care were not taken, potentially the most important is whether there was a pre-existing relationship between the plaintiff and the defendant. The existence of a relationship between the defendant and the husband, and by extension to the wife, was clearly important in Barnes v Commonwealth;27 by contrast, in Tame v New South Wales,28 the High Court decided that there was no pre-existing relationship between the police and Mrs Tame, because this would be inconsistent with their other obligations.

The law elsewhere [28.90] Like their Australian counterparts the Canadian judiciary has only had to face this particular aspect of psychiatric damage law on isolated occasions. In Guay v Sun Publishing Co Ltd29 a majority of the Supreme Court ruled, in contrast to the court in Barnes v Commonwealth,30 that a newspaper was not responsible in law for shock caused to a wife from its having published a false story that her estranged husband and their three children had been killed in a car accident. The report had not come from any recognised news service, its authenticity had not been checked, and the defendant was unable to identify the source of its information. Although the newspaper was found to have been negligent, the plaintiff failed: interestingly, the majority articulated three different grounds for this decision. Estey J’s verdict of non-liability was based on what he saw as the absence of physical harm resulting from the emotional distress suffered on reading the story (a point not taken by any other judge). He was not prepared to say that there could never be liability for shock caused by a negligent statement.31 Kerwin J considered that no tortious duty was owed on ordinary Donoghue v Stevenson32 27

Barnes v Commonwealth (1937) 37 SR (NSW) 511.

28

Tame v New South Wales (2002) 211 CLR 317.

29

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216. See MM McIntyre, “A Novel Assault on the Principle of No Liability for Innocent Misrepresentation” (1953) 31 Can BR 770; D Butler, “Mass Media Liability for Nervous Shock: A Novel Test for Proximity” (1995) 1 TLJ 75. Note also Lord Denning MR’s comments in D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 188–189.

30

Barnes v Commonwealth (1937) 37 SR (NSW) 511.

31

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 236–238.

32

Donoghue v Stevenson [1932] AC 562.

[28.90]

28 Bad News

949

neighbourhood principles regardless of what damage ensued33 — a conclusion that may still have some validity in Canada but that in Australia would now be questionable given that it is now accepted that psychiatric harm may be foreseeable to those who merely learn of the results of, rather than see, traumatic incidents.34 Distinguishing the case from wilful conduct such as that exhibited in Wilkinson v Downton,35 Locke J opined that even where there was evidence that the plaintiff suffered compensable psychiatric damage, no cause of action would lie in the absence of fraud, deceit, malice or breach of any fiduciary or contractual relationship.36 In contrast to Estey J, Cartwright J (Rinfret CJC concurring) interpreted the expert testimony as evidencing that physical damage and not just mental distress had been suffered by the plaintiff, and unlike Kerwin J was prepared to hold the defendant liable on Donoghue v Stevenson principles for the negligent communication of bad news.37 It was, his Honour said, entirely foreseeable that a person in the plaintiff’s position would suffer shock on reading a report of this nature. With the demise of the Dulieu v White & Sons38 limitation that shock must be caused by fear of injury to oneself, there was no reason for declining to recognise a duty on the facts. Referring to Hambrook v Stokes Bros39 he stated: I cannot distinguish in principle between liability for nervous shock to a mother by carelessly allowing a truck to run away and so to cause her to think that it will injure her children and liability for nervous shock caused to her by carelessly communicating a false statement to her which will cause her to believe that all her children have met a violent death. Indeed, in my opinion the probability of injurious shock to the claimant would be more readily foreseen in the latter instance than in the former.40

As Cartwright J observed, the only distinction between this case and Wilkinson v Downton was the lack of wilfulness — a difference of little importance in relation to the question of the appropriateness of the imposition in principle of tort liability for careless communication. In the light of Estey J’s lone stance on the insufficiency of evidence point and the fact that Kerwin J’s reasoning must now be read as extremely suspect in the light of the general principles enunciated in subsequent psychiatric injury cases, it is arguable that Guay v Sun Publishing Co Ltd may not be inconsistent with the recognition of a tortious duty to prevent causing psychiatric harm through careless statements. 33

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 230.

34

See [11.370]–[11.430].

35

Wilkinson v Downton [1897] 2 QB 57.

36

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 252.

37

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 223–224.

38

Dulieu v White & Sons [1901] 2 KB 669.

39

Hambrook v Stokes Bros [1925] 1 KB 141.

40

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216 at 224.

950

Part V: Some Special Cases

[28.100]

[28.100] An issue highlighted only in the judgment of Locke J was whether a remedy would lie for misrepresentation in the absence of fraud or fiduciary or contractual relationship. Since Guay v Sun Publishing Co Ltd41 was decided, the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd42 initiated a major revolution in the attitude of the law to liability for careless statements. In the light of this development, a leading Canadian scholar suggested that it could safely be forecast that the Supreme Court of Canada would now impose liability in a case with the same facts as Guay.43 However, in Hurley v Sault Star Ltd,44 O’Driscoll J of the Ontario Supreme Court was not swayed by Hedley Byrne to depart from the Guay decision. The plaintiffs claimed damages for the negligent publication of a news story stating that their daughter “was reported to have run across the pavement into the path of” a vehicle as a result of which she was killed. The accident had taken place but the plaintiffs disputed the implication that their daughter was at fault. The paper having refused to publish a retraction, the plaintiffs sued for damages for nervous shock. O’Driscoll J struck out the statement of claim, ruling that because of the result and reasoning in Guay it was doubtful whether such a cause of action existed. Neither Hedley Byrne nor academic opinion inclined him to take a different view. [28.110] Significantly, however, in the later Ontario case of Jinks v Cardwell,45 McRae J awarded compensation to a wife who suffered physical and emotional distress caused by a doctor’s negligent communication of information that was in the main false. Mr Jinks suffered from a severe form of mental illness and was admitted from time to time to the defendant’s psychiatric hospital. One morning he wandered from his ward and locked himself in a bathroom. By the time the door was forced open he had drowned in the bath with severe scalding from the still-running tap. A doctor concerned with how this would look for the hospital contacted the plaintiff and, with no justification for saying so, informed her that her husband had “committed suicide in the bathtub”. This report was true only in so far as the husband was in fact dead. As the judge pointed out, the doctor’s words were at best negligent and at worst callous and unfeeling. Without any reference to Guay v Sun Publishing Co Ltd46 compensation was awarded for the widow’s trauma. The New York Court of Appeals took a similar approach in Johnson v State,47 holding a hospital liable to the daughter of a patient for emotional harm suffered as a result of its false advice that her mother had died. Where there were objective physical manifestations evidencing emotional disruption due to 41

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216.

42

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

43

AM Linden, Canadian Negligence Law (Butterworths, Toronto, 1972), p 332.

44

Hurley v Sault Star Ltd [1973] OJ No 577.

45

Jinks v Cardwell (1987) 39 CCLT 168.

46

Guay v Sun Publishing Co Ltd [1953] 2 SCR 216.

47

Johnson v State 334 NE 2d 590 (NY 1975).

[28.120]

28 Bad News

951

negligent misinformation, the court considered that relief was appropriate.48 It is difficult to find fault with this reasoning. One can appreciate, for example, the potential for suffering psychiatric injury on being informed that one has tested positive for AIDS only to be told later (perhaps much later) that a mistake has been made.49 To hold the negligent communicator of such shattering news responsible for ensuing mental disorder is entirely consistent. [28.120] Following a long period of silence on this issue, the English courts have now joined the debate. The English judicial pronouncements now offer powerful support for the Australian and Canadian cases that earlier suggested that in appropriate circumstances there should be a duty to take care not to cause psychiatric harm by the conveying of false bad news. In the first case, Allin v City & Hackney Health Authority,50 the defendant was held liable for the negligent communication of false news and did not dispute that it owed a duty of care. The plaintiff alleged that, shortly after a difficult birth by caesarean section, she had been informed by hospital staff that her baby was dead. About six hours later, she learnt that the baby had survived. The defendant said that no such misstatement had been made, though the plaintiff and her mother had been told in plain terms that there seemed no chance of the baby surviving. Judge McMullan in the Mayor’s and City of London County Court held that on the balance of probabilities the evidence supported the plaintiff’s 48

See also Molien v Kaiser Foundation Hospitals 616 P 2d 813 (Cal 1980) (dealt with at [6.160] and [18.200]) where liability was imposed for a negligent diagnosis of syphilis which led to the break-up of the plaintiff’s marriage and consequent mental trauma; and note the cases on the negligent transmission of telegraph messages cited at [6.160]. Contrast Hoard v Shawnee Mission Medical Center 662 P 2d 1214 (Kan 1983) where parents were mistakenly notified that their daughter had died whereas in fact she was in a critical condition at another hospital. The retention of the “impact rule” in Kansas (see [3.760]) prevented the imposition of liability. Compare also Jacobs v Horton Memorial Hospital 515 NYS 2d 281 (1987) (wife failed to recover for misdiagnosis that her husband had pancreatic cancer and unfavourable prognosis that he had only six months to live); Duran v Detroit News Inc 504 NW 2d 715 (Mich 1993) (tort of negligent infliction of emotional distress had no application where plaintiff claimed to have been injured by publication of false statements about himself); Armstrong v Paoli Memorial Hospital 633 A 2d 605 (Pa 1993) (hospital erroneously told wife that husband was victim of car accident: no cause of action for emotional distress and consequent injury suffered by the wife on learning that her husband was not the victim).

49

See [29.470]–[29.500]. Some American courts have recognised a right to recovery for emotional distress caused by an incorrect diagnosis that the plaintiff is HIV positive, eg Bramer v Dotson 437 SE2d 773 (WVa 1993); Chizmar v Mackie 896 P 2d 196 (Alaska 1995); Doe v Arts 823 A 2d 855 (NJ 2003). However, some decisions deny recovery to victims of negligent diagnosis on the ground that it does not expose the victim to physical peril: see eg RJ v Humana of Florida Inc 652 So 2d 360 (Fla 1995); Heiner v Moretuzzo 652 NE 2d 664 (Ohio 1995); Hart v Child’s Nursing Home Co Inc 749 NYS 2d 297 (2002).

50

Allin v City & Hackney Health Authority [1996] 7 Med LR 167, noted by NJ Mullany (1998) 114 LQR 380; see also NJ Mullany, “Negligently Inflicted Psychiatric Injury and the Means of Communication of Trauma – Should it Matter?” in NJ Mullany and AM Linden (eds), Torts Tomorrow: A Tribute to John Fleming (LBC Information Services, Sydney, 1998), pp 195–202; MA Jones, “Negligently Inflicted Psychiatric Harm: Is the Word Mightier than the Deed?” (1997) 13 PN 111.

952

Part V: Some Special Cases

[28.130]

version, and on that basis the defendant was liable for the post-traumatic stress disorder that she had been caused to suffer as a result of these events. He said: It is not disputed before me that the defendants were under a duty of care in respect of statements of this sort made to the mother. It is not in dispute and, indeed, if it were, Mr Buchan’s51 view about it was most forcefully expressed. It would have been an extraordinarily negligent thing to do, to inform a mother that her baby was dead when it was not.52

The authority of this case may be weakened by the fact that it is only a decision at County Court level, and by the fact that the defendant did not dispute the existence of a duty, but the strength of Judge McMullan’s statement about the duty in cases of this sort adds weight to the earlier authorities from other jurisdictions. [28.130] More recently, in a case where the facts were very similar, the English Queen’s Bench Division has definitively ruled that in false bad news cases the plaintiff is a primary victim and the defendant owes a duty of care. In Farrell v Avon Health Authority53 the claimant and Elaine Gifford were not in an ongoing relationship but went on holiday together and had sexual intercourse on a single occasion. Some months later (so it was found) the claimant met Elaine Gifford, who told him that she was pregnant. They had no further contact until she telephoned him from the hospital to inform him of the birth of his son. The claimant, very excited at becoming a father, arrived at the hospital soon afterwards and inquired after his son, to which a nurse replied: “Oh, you don’t know. Jordan died about an hour ago.” A dead baby was brought to him and he picked it up, kissed and cuddled it and cried over it. However, 20 minutes later, the nurses returned and told him there had been a mistake. His baby was still alive. The claimant went to see the baby, but had to leave after five minutes to be sick. He already had a history of alcohol and drug abuse; after these events he continued abusing alcohol, became dependant on Class A drugs, and developed post-traumatic stress disorder. He sued the defendant for psychiatric injury caused by the events of the fateful day when he went to see his baby in hospital. [28.140] Judge Bursell QC, sitting in the Bristol District Registry of the Queen’s Bench Division, held the defendant liable in damages.54 He noted that this case was different from secondary victim cases such as Alcock v 51

“The gynaecologist of great experience who gave evidence”: Allin v City & Hackney Health Authority [1996] 7 Med LR 167 at 170 per Judge McMullan.

52

Allin v City & Hackney Health Authority [1996] 7 Med LR 167 at 170. The other ground of negligence alleged (failure to provide appropriate counselling following the unfortunate event in question) was not made out. 53 54

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

Note also Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] All ER (D) 218, cited by MA Jones, Medical Negligence (4th ed, Sweet & Maxwell, London, 2008), p 202 (10-year-old boy awarded damages after overhearing telephone conversation misdiagnosing his mother as having cancer).

[28.140]

28 Bad News

953

Chief Constable of South Yorkshire Police,55 in that here the shock was not caused by seeing what happened to others and the claimant was the only victim;56 but it was different also from the case of a primary victim of a road accident such as Page v Smith57 in that there was no question of foreseeability of physical injury.58 The complications of the primary/ secondary victim distinction as developed in the recent English case law received extended discussion, and Judge Bursell pointed out that on a strict reading of Lord Lloyd of Berwick’s judgment in Page v Smith, as interpreted by Lord Steyn in White v Chief Constable of South Yorkshire Police,59 the claimant had to be a secondary victim since he was not within the area of risk of physical injury, even though he was the principal participant.60 However, he preferred to adopt a less literal reading of these passages, instead noting that the parents in W v Essex County Council61 were regarded as primary victims.62 This is much more consistent with Lord Oliver of Aylmerton’s original formulation of the primary/secondary victim distinction in Alcock, according to which what matters is whether the plaintiff is a participant in the events in question rather than the passive and unwilling witness of harm to others. The complications that Judge Bursell had to attempt to unravel in this case are ample testimony to the unfortunate effects of the primary/secondary victim distinction in English law. Having found that the claimant was a primary victim, the judge held that it was sufficient to show that the defendant ought to have contemplated that the claimant might suffer psychiatric injury as a result of its negligence. If the foreseeability test was fulfilled, the defendant had to take the claimant as it found him.63 Applying the foreseeability test ex post facto meant looking to the facts known to the defendant at the relevant time. It could not be expected to know of the lack of relationship between the claimant and the child’s mother, which meant that foreseeability had to be assessed on the basis of an ordinary paternal relationship with the unborn child.64 Further, in reaching a decision on the foreseeability issue he was entitled to be informed by the expert evidence of psychiatrists.65

55

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.

56

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 466.

57

Page v Smith [1996] AC 155.

58

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 465.

59

White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

60

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 469, 471.

61

W v Essex County Council [2001] 2 AC 592.

62

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 471.

63

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 471.

64

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 472.

65

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 473.

954

Part V: Some Special Cases

[28.150]

[28.150] The case has been criticised on a number of grounds,66 but most of the criticisms stem from the difficulty of reconciling the judge’s approach with other English decisions that are themselves extremely unsatisfactory. So, for example, it has been said that on the better view of the authorities the claimant should have been regarded as a secondary victim, since his concern was for the safety of his baby, and that it is appropriate to classify a claimant as a secondary victim even where there is no primary victim, as in accident cases where the primary victim is thought to have been killed or injured but is in fact unharmed.67 This view undervalues the claimant’s role in the facts of this case, and demonstrates that if the law needs to distinguish between primary and secondary victims then it is more rational to adopt Lord Oliver’s original dividing line between participants and witnesses. Like mothers and fathers in medical negligence cases involving childbirth,68 the father here was much more than a mere witness: the negligent statements were directed at him, in response to his query. The judge’s reliance on W v Essex County Council69 produced a much more satisfactory result than a hardline Page v Smith70 approach. Closer to home are comments that the primary/secondary classification should perhaps be reserved for cases where psychiatric harm is the result of being involved in witnessing physical injury. Another interesting comment is that the case is not just a false bad news case, because the claimant was allowed to see and hold the dead body of what he thought was his son, and that the decision that the defendant was liable in such circumstances is inconsistent with the English aftermath cases, particularly Tranmore v TE Scudder Ltd71 where a court denied liability to a father who waited anxiously for two hours at a building site where his son had been trapped under rubble, only to be told that he was dead. Such arguments simply illustrate the unsatisfactory nature of many of the recent English decisions on aftermath and direct perception72 — apart from once again demonstrating that where the psychiatric injury victim is a participant it does not help to apply decisions dealing with situations where the claimant plays a different role. The claimant in Farrell v Avon Health Authority73 was not simply attending the scene of an accident: he was the father of an unborn child attending the hospital and the act of negligence in question occurred in responding to his question about the child’s welfare. A perhaps more substantial criticism is that the duty recognised here lacks content, and that it should 66

See C Johnston’s commentary on the decision in Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458 at 475; see also P Case, “Curiouser and Curiouser: Psychiatric Damage caused by Negligent Misinformation” (2002) 18 PN 248.

67

Surely, in this situation, there is still at least an apparent primary victim.

68

See [22.380]–[22.590].

69

W v Essex County Council [2001] 2 AC 592.

70

Page v Smith [1996] AC 155.

71

Tranmore v TE Scudder Ltd [1998] EWCA Civ 1895.

72

See [10.280]–[10.410], [11.460]–[11.510].

73

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

[28.170]

28 Bad News

955

have been assessed not just by reference to foreseeability but also by the other Caparo criteria74 of proximity and whether it was fair, just and reasonable. This, of course, is a particularisation of the more general debate about whether the duty to take care not to inflict psychiatric injury involves just foreseeability or also other policy restrictions. [28.160] Whatever imperfections it may embody, the decision in Farrell v Avon Health Authority75 is of considerable importance in confirming earlier decisions from other jurisdictions (none of which were cited) to the effect that the common law recognises a duty to compensate for the psychiatric effects of the negligent imparting of untrue bad news. In passing, the decision also adopts a correct approach to the classification of plaintiffs in such cases as primary victims; in recognising that, even in relation to primary victims, the appropriate test is foreseeability of a recognised psychiatric disorder; and in the application of that test ex post facto and in the light of expert evidence.

TRUE BAD NEWS [28.170] In all the cases at [28.50]–[28.160], the essence of the wrong was that the information communicated was negligently false. What if the information is true, but the negligence relates to the way in which it is conveyed,76 as where it is communicated in a callous or uncaring manner?77 It has been suggested that there can be no liability for the insensitive or heartless announcement of true bad news. During the drafting of the Restatement of Torts Second Prosser referred to the famous exchange: “Are you the widow Murphy?”, “My name is Murphy, but I’m no widow”, “The hell you ain’t” as a case where there would be no liability.78 Other scholars disagree. Winfield and Jolowicz argued that liability may be appropriately imposed where the impact of the news is 74

Caparo Industries plc v Dickman [1990] 2 AC 605: see [7.180].

75

Farrell v Avon Health Authority [2001] Lloyd’s Rep Med 458.

76

Wilson v Canada (1997) 139 FTR 297 raised the issue of liability for failure to deliver true bad news: the plaintiff, who was in prison at the material time, never received a letter from his father advising him of his mother’s death, and claimed damages for depression allegedly suffered as a result. The court assumed the existence of a duty, but ruled against the plaintiff on the issue of causation.

77

“The nature of bad news infects the teller”: William Shakespeare, Antony and Cleopatra, Act 1 Scene II. Note the problem of mobile phones being used to film a disaster as it happens and broadcasting it via the internet: see [11.910].

78

(1957) Proceedings of the American Law Institute 292. Note, however, that there was liability in Price v Yellow Pine Paper Mill Co 240 SW 588 (Tex 1922) where a badly injured worker was taken back to his home and delivered without warning to his wife, who was in an advanced stage of pregnancy. For another example of a similarly insensitive way of conveying bad news, note Strong v Moon (1992) 13 CCLT (2d) 296, where the children of a woman who had just been killed in a road accident outside their school were told by other children that their mother was “road pizza”. (The children unsuccessfully sued the negligent driver. There was no question of suing the other children.)

956

Part V: Some Special Cases

[28.180]

needlessly exacerbated,79 and Walker has gone so far as to express the view that a person communicating a report might be liable if he or she does not take reasonable care to break the news as gently as possible, citing the example where a village policeman charged to tell a woman that her husband had been killed does so using the words: “Mrs McKenzie, your man’s dead.”80

Australian cases [28.180] Prior to the reconsideration of liability for psychiatric injury by the High Court of Australia in Tame v New South Wales,81 there was no Australian authority that dealt with this question directly, but comments by Kneipp J in Petrie v Dowling82 suggested, at least on one interpretation, that liability may lie for the negligent communication of true bad news. In that case a woman arrived at a hospital believing, on the basis of information conveyed to her earlier by two friends, that her daughter had suffered only minor injuries from a fall from her bicycle. Trying to make light of the situation, she said to the nurse “She isn’t dead, is she?”, and the nurse replied “I’m afraid so”. In what was a very significant decision for the development of psychiatric damage law, his Honour awarded damages to the mother for psychiatric injury solely on the basis of what she was told at the hospital.83 What is important, however, for our immediate purposes is not that liability was imposed on the negligent driver responsible for the girl’s fall, but the possibility of an action lying against the nurse as the conveyer of the news of her death. Such a claim was not pleaded by the plaintiff or referred to by Kneipp J directly but his focus on the manner and language adopted by the bearer of bad tidings may indicate a preparedness to impose such liability should the situation arise: after recording the above conversation between the mother and the nurse, he said “The plaintiff said, as might be expected, that she was immediately overcome with shock”, and later in his judgment summed up what had happened by saying the mother was told “bluntly” that her daughter had died.84 In Thomas v Corrective Services Commission of New South Wales,85 the parents of a prisoner in Parramatta Gaol murdered by another prisoner were informed of his death by the Commission in “an extraordinarily callous and uncaring and reprehensible manner”. Their claim for psychiatric injury caused by the death of their son due to negligence in the operation of the prison system was unsuccessful. A 79

WVH Rogers, Winfield and Jolowicz on Tort (18th ed, Sweet & Maxwell, London, 2010), p 277. This passage does not appear in the 19th ed (2014) edited by WE Peel and J Goudkamp.

80

DM Walker, The Law of Delict in Scotland (2nd ed, W Green, Edinburgh, 1981), p 678.

81

Tame v New South Wales (2002) 211 CLR 317: see [2.150]–[2.170].

82

Petrie v Dowling [1992] 1 Qd R 284.

83

See [11.210].

84

Petrie v Dowling [1992] 1 Qd R 284 at 287.

85

Thomas v Corrective Services Commission of New South Wales (unreported, NSWCA, CA Nos 81 and 82 of 1983, 20 December 1989).

[28.200]

28 Bad News

957

claim against the Commission in its capacity as communicator of the news might have met with a better fate.86 [28.190] However, the dictum of Windeyer J in Mount Isa Mines Ltd v Pusey87 quoted at [28.20] still places limits on the ability of Australian law to recognise a duty in respect of true bad news. His Honour said obiter that where shock was caused purely by communication of some happening, then in the absence of an intention to cause such harm no action lay either against the bearer of bad tidings or the person who caused the event of which they tell. There was no duty in law to break bad news gently or to do nothing that creates bad news. [28.200] The law in Australia has moved on since this case, and more recent cases have had to assess the effect of Windeyer J’s dictum now that the former rule requiring direct perception in secondary victim cases has been modified by a series of cases culminating in the High Court’s decision in Tame v New South Wales.88 In Reeve v Brisbane City Council,89 a case decided a few years prior to Tame, Lee J said merely that he would not quibble with the suggestion that the law had not proceeded so far as to impose a duty on a person, whether the mere bearer of bad news or the person who created it, to break it gently to another.90 In Tame itself, Gummow and Kirby JJ in their joint judgment subjected Windeyer J’s dictum to penetrating analysis, suggesting that the rejection of the principle of direct perception made it appropriate to identify some qualifications to Windeyer J’s statement. In their view his Honour’s first proposition, that there is no duty in law to break bad news gently, could be accepted without acceding to the second, that there was no duty to do nothing that creates bad news. They justified this position in the following way: The context of a putative duty of care in novel categories of case accommodates itself to basic values which the corpus of the law promotes or protects. One relevant interest is that of the individual in the privacy of personal affairs. On the other hand, the loved ones of a person who has been killed, injured or put 86

Note the suggestion in White v Butcher (unreported, NSWSC, Nos 9576, 9577 and 9578 of 1981, 13 October 1982) that the news of an accident to a teenage girl was announced to her parents “in somewhat dramatic terms”, which may have been an element in the court’s decision to award damages to the parents. Note also the claim in Miller v Royal Derwent Hospital Board of Management (1992) 14 Tas R 271 that psychiatric injury suffered by a nurse following the death of a patient in her care may have been partly due to the breaking of the news to her. Zeeman J at [29] seems to lend this some support, although the major alleged cause of the harm she suffered was the failure to provide post-trauma counselling. His Honour ruled against the plaintiff on foreseeability and causation grounds. Finally, note X and Y (By her Tutor X) v Pal (1991) 23 NSWLR 26, where Clarke JA at 58 remarked that the plaintiff had been shocked by the revelation that her child, and she herself, had syphilis; however, the basis of her psychiatric injury claim was the doctor’s earlier negligence in failing to submit her to syphilis testing during her pregnancy.

87

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407: see [28.20].

88

Tame v New South Wales (2002) 211 CLR 317.

89

Reeve v Brisbane City Council [1995] 2 Qd R 661.

90

Reeve v Brisbane City Council [1995] 2 Qd R 661 at 671.

958

Part V: Some Special Cases

[28.210]

in peril ordinarily have an interest in being told promptly of that circumstance and the law encourages the free and prompt supply of the relevant information to those persons. It is for this reason that, in the absence of a malign intention, no action lies against the bearer of bad news for psychiatric harm caused by the manner in which the news is conveyed or, if the news be true, for psychiatric harm caused by the fact of its conveyance. The discharge of the responsibility to impart bad news fully and frankly would be inhibited by the imposition in those circumstances of a duty of care to avoid causing distress to the recipient of the news. There can be no legal duty to break bad news gently. This is so even if degrees of tact and diplomacy were capable of objective identification and assessment, which manifestly they are not. Neither carelessness nor insensitivity in presentation will found an action in negligence against the messenger.91

However, their Honours made it quite clear that where the tortious conduct of causing harm of some kind to another could be identified separately from the communication of its consequences — for example, where the tortfeasor and the messenger were different persons — liability would attach to the former but not the latter. It was therefore necessary to reconsider Windeyer J’s suggestion that no action lay against the person who caused the event that the bearer of bad news related, because it was inconsistent with the abolition of the requirement of direct perception.92 But the bearer of bad news would remain immune from liability.

The law elsewhere [28.210] The first decision that clearly imposed liability even though the information in question was true was a New Zealand case, Furniss v Fitchett.93 The Supreme Court allowed a plaintiff to succeed in an action against her doctor for nervous shock caused by his negligent disclosure of his opinion as to her mental stability. Without any foundation the plaintiff had told the defendant that her husband was insane and that he was doping and mistreating her, specifically that he was cruel and violent towards her. Understandably, domestic relations deteriorated and the anxiety resulting from these delusions affected the husband’s health. He wanted to be separated from the plaintiff, if only temporarily, and tried to have the defendant certify her, something that the defendant initially declined to do. Eventually, with the knowledge that it was to be provided to the husband’s legal advisers, the defendant gave the husband a certificate describing her behaviour and expressing the opinion that the plaintiff was exhibiting signs of paranoia and was in need of psychiatric treatment. The defendant was aware that if the certificate’s contents were disclosed to the plaintiff it would be harmful to her and he placed no limitations on the use of it, declining even to mark it “confidential”. The 91

Tame v New South Wales (2002) 211 CLR 317 at [228].

92

Tame v New South Wales (2002) 211 CLR 317 at [230]. In Awad v Bebnowski [2002] SADC 157, the District Court of South Australia relied on these dicta to hold that doctors who breached hospital procedure by communicating news of a relative’s death by telephone owed no duty of care.

93

Furniss v Fitchett [1958] NZLR 396.

[28.220]

28 Bad News

959

plaintiff continued to consult with the defendant for the next year. She first learnt of the certificate’s existence when she instituted separation and maintenance proceedings and it was produced in cross-examination. She suffered shock as a result and sued the doctor. The jury having returned a verdict for the plaintiff, the defendant appealed and Barrowclough CJ, applying the principles of Donoghue v Stevenson,94 accepted that a duty of care could be owed in respect of nervous shock caused by the communication of bad news.95 On the facts it was entirely foreseeable that if the plaintiff was confronted with such a certificate it would do her psychiatric harm, and clear that it would be disclosed to her at some stage.96 Although he did not decide the matter, his Honour went so far as to opine that, apart from any question of libel or slander, a duty of care may be owed by every professional person, and indeed, by a person outside the professions in respect of what he or she writes or says of another if that other thereby suffers personal harm.97 It was recognised, however, that there is a marked distinction between, for example, doctors and other persons, for though in certain circumstances a doctor may be able to foresee that a statement if made by him or her would be likely to cause psychiatric harm, the person in the street who has no medical knowledge might never be expected to foresee such a result.98 [28.220] In recent years, English and Canadian courts have added weight to the case for a cause of action of the kind originally recognised in Furniss v Fitchett.99 The English Court of Appeal considered the issue of liability for true bad news in AB v Tameside & Glossop Health Authority.100 The defendant discovered that a health worker who had given obstetric treatment to female patients at two hospitals was HIV positive, and that there was a remote risk of infection. It decided to inform the patients concerned, and that they should be told by letter. In this action, a number of the patients claimed that the defendant was negligent in choosing to inform them by letter rather than face to face. French J at first instance 94

Donoghue v Stevenson [1932] AC 562.

95

Furniss v Fitchett [1958] NZLR 396 at 403. His Honour said that any contractual, moral, professional or ethical duties owed by the defendant to the plaintiff were irrelevant to the question whether a tortious duty was owed. It has since been suggested that the action could have now been founded on breach of confidence: G v Attorney General [1994] 1 NZLR 714 at 718 per Heron J.

96

Furniss v Fitchett [1958] NZLR 396 at 404.

97

Furniss v Fitchett [1958] NZLR 396 at 403. Note Lawton v BOC Transhield Ltd [1987] ICR 7 where Tudor Evans J recognised that the defendant employers owed a duty of care to the plaintiff to ensure that the opinions contained in their reference were based on accurate facts, even though the law of defamation is available to deal with false statements causing injury to reputation. The case does not involve psychiatric injury: counsel for the plaintiff in opening the case indicated that he would apply for leave to amend the statement of claim to allege that the plaintiff had suffered such damage due to the difficulty of finding employment, but did not do so.

98

Furniss v Fitchett [1958] NZLR 396 at 403–404.

99

Furniss v Fitchett [1958] NZLR 396.

100

AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91.

960

Part V: Some Special Cases

[28.230]

agreed with this view, holding that the defendant should have foreseen that vulnerable individuals might suffer psychiatric injury going beyond the shock and distress that was natural in the circumstances. The Court of Appeal allowed the appeal. The defendant’s duty, once it had decided to inform patients, was to take such steps to inform them as were reasonable, having regard to the foreseeable risk that some might suffer psychiatric injury, but it was wrong to hold that it was negligent because it did not select the best method. Surprisingly, Brooke LJ said that the case broke no new ground, even though there was no previous English case in which liability for negligence had been imposed for communicating accurate but distressing news in a careless manner.101 However, counsel for the defendant conceded that a duty to take reasonable care existed where the relevant relationship was between health authorities and their patients or former patients, so that it was unnecessary to decide the point, or to consider whether a duty existed when there was no pre-existing relationship of care.102 [28.230] The first Canadian case to touch on the point in issue was Peters-Brown v Regina District Health Board,103 where the plaintiff’s name was included on a list of “previously identified cases” in respect of whom body fluid precautions should be taken, published on a notice-board in a non-public area of a hospital. This was because she had previously been treated for hepatitis B. The plaintiff claimed that she suffered mental anguish as a result, and damages were awarded against the hospital for breach of contract and negligence. Of the negligence claim Halvorson J said shortly: I find the hospital was negligent in the manner in which it posted confidential information about the plaintiff. It was foreseeable that wider circulation might occur resulting in mental distress to the plaintiff.104

Equally shortly, the Saskatchewan Court of Appeal dismissed the appeal.105 It seems clear that the plaintiff did not suffer from a recognisable psychiatric illness, which would generally be fatal to liability on the tort claim,106 though not a requirement of the breach of contract action.107 101

AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 at 93. His Lordship’s reference to the section on true bad news in the first edition of this book suggests that he had in mind the cases there cited such as Furniss v Fitchett [1958] NZLR 396. 102

AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91 at 93.

103

Peters-Brown v Regina District Health Board (1995) 136 Sask R 126.

104

Peters-Brown v Regina District Health Board (1995) 136 Sask R 126 at 129–130.

105

Peters-Brown v Regina District Health Board (1996) 148 Sask R 248.

106

Some Canadian first instance cases have suggested that this may not be a problem in Canada, though appellate courts have generally affirmed the need for recognisable psychiatric illness: see [6.260]–[6.410].

107

See Vorvis v Insurance Corporation of British Columbia [1989] 1 SCR 1085; Sun Life Assurance Co of Canada v Fidler [2006] 2 SCR 3.

[28.250]

28 Bad News

961

[28.240] A much more important Canadian contribution to the jurisprudence on liability for true bad news is the British Columbia decision in Lew v Mount St Joseph Hospital Society,108 where the issue received extended discussion. The plaintiff claimed damages for nervous shock on witnessing the effects of a brain injury sustained by his wife during a routine haemorrhoidectomy as a result of being deprived of sufficient oxygen, due to the admitted negligence of the defendant. He went to the hospital to visit his wife, and was shocked to see her attached to numerous tubes. He claimed damages against the anaesthetist as a secondary victim, and also as a primary victim for the hospital’s failure to take reasonable action to prevent him from being exposed to the frightening circumstances that it knew or ought to have known would cause him injury. The hospital moved to have the action struck out as disclosing no reasonable cause of action on the basis that an action for nervous shock can only be maintained against the tortfeasor who actually caused the injuries, in this case the doctor. Henderson J dismissed this application. After a full discussion of all the bad news authorities, he held that while there are few authorities allowing recovery for negligent communication of true bad news, the law of nervous shock was still developing. Though the plaintiff’s case was a novel one and not clearly within the class of cases for which recovery had hitherto been allowed, it could not be said that there was no reasonable prospect of success. The defendant’s application to the British Columbia Court of Appeal for leave to appeal was dismissed by Newbury JA.109

Discussion [28.250] The joint judgment of Gummow and Kirby JJ in Tame v New South Wales110 remains the most important discussion of the bad news issue so far as Australian law is concerned. The important value of free and prompt supply of information emphasised by Gummow and Kirby JJ cannot be ignored in considering whether there should be liability for the callous or careless communication of true bad news. This potential liability is very significant for those such as doctors, nurses, police and fire officers whose unpleasant duties all too frequently include having to deliver distressing news to friends, relatives and loved ones of accident victims, and for that matter, to accident victims themselves. When confronted with some of the suggested examples — such as Walker’s 108

Lew v Mount St Joseph Hospital Society (1997) 36 CCLT (2d) 35.

109

Lew v Mount St Joseph Hospital Society (1997) 44 BCLR (3d) 84. Subsequently, Master Barber in the Supreme Court set aside a notice for jury trial because of the complexity of the issues: see Lew v Mount St Joseph Hospital Society (1998) 55 BCLR (3d) 394. In Dawe v BC Children’s Hospital [2003] BCSC 443, Ross J relied on Lew in holding that a claim against the bearer of bad news could not be struck out on the basis that it failed to disclose a cause of action. The issue before the court was whether the statement of claim could be amended to permit the pleading of a new cause of action.

110

Tame v New South Wales (2002) 211 CLR 317.

962

Part V: Some Special Cases

[28.260]

police officer who said “Mrs McKenzie, your man’s dead”,111 or the nurse in Petrie v Dowling112 who, when asked by the mother “she isn’t dead, is she?”, replied “I’m afraid so”113 — asking how else the communication could have been phrased is a justifiable response.114 [28.260] It is relevant to note that in some cases, such as AB v Tameside & Glossop Health Authority,115 there was a pre-existing relationship between the parties. In other cases there was or may have been another cause of action available to the plaintiff, as in Furniss v Fitchett,116 where there would be a possibility of an action for breach of confidence, or Peters-Brown v Regina District Health Board,117 where there was an alternative cause of action for breach of contract. But in the clearest examples of callous transmission of true bad news, such as the manner in which the prisoner’s parents were informed in Thomas v Corrective Services Commission of New South Wales,118 and the extraordinarily careless behaviour of the hospital in Lew v Mount St Joseph Hospital Society,119 there appears to be no other remedy available to deal with the effects on the plaintiff of the defendant’s behaviour. [28.270] The suggestion by Gummow and Kirby JJ in Tame v New South Wales120 that there should be no liability for the communication of true bad news unless there is a malign intention does not allow for such cases. Their Honours were attempting to explain Windeyer J’s dictum and to salvage something from it in the new situation where the High Court had abandoned the direct perception requirement. This was a desirable development, and if the denial of liability for true bad news is the price that has to be paid for the liberalisation of the law in secondary victim cases such as that of Mr and Mrs Annetts in Tame, then this may well be an acceptable bargain. On the other hand, it is possible to argue that the law should recognise that it is appropriate both to abandon the requirement of direct perception and to recognise liability for true bad news in deserving cases. Windeyer J’s judgment in Mount Isa Mines Ltd v 111

See [28.170].

112

Petrie v Dowling [1992] 1 Qd R 284.

113

See [28.180].

114

Note also Quayle v New South Wales (1995) Aust Torts Rep 81-367 at 62,798 per Judge Hosking, discussing the way in which two of the plaintiffs were told the news of their brother’s death: “The Constable’s approach was certainly direct and devoid of subtlety or euphemism but then, I suppose, there is no painless way of conveying tragic news of this nature.” 115

AB v Tameside & Glossop Health Authority [1997] 8 Med LR 91.

116

Furniss v Fitchett [1958] NZLR 396.

117

Peters-Brown v Regina District Health Board (1995) 136 Sask R 126.

118

Thomas v Corrective Services Commission of New South Wales (unreported, NSWCA, CA Nos 81 and 82 of 1983, 20 December 1989). 119

Lew v Mount St Joseph Hospital Society (1997) 36 CCLT (2d) 35.

120

Tame v New South Wales (2002) 211 CLR 317.

[28.270]

28 Bad News

963

Pusey121 has had a most important beneficial influence in the development of the law of psychiatric damage: this isolated dictum should not be allowed to frustrate the expansion of particular aspects of this area in proper cases.122

121 122

Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

Compare the problems caused by another isolated dictum, that of Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 604: see Chapter 15.

Chapter 29

Fear for the Future [29.10] INTRODUCTION ............................................................................................................. 965 [29.50] EARLY CASES ................................................................................................................... 967 [29.80] APQ AND THE CJD LITIGATION ............................................................................... 970 [29.80] Australia ............................................................................................................................. 970 [29.150] Other jurisdictions .......................................................................................................... 974 [29.220] EMPLOYMENT CASES: FEAR OF ASBESTOS-RELATED DISEASES ................. 979 [29.220] Australia ........................................................................................................................... 979 [29.280] Other jurisdictions .......................................................................................................... 983 [29.440] MEDICAL NEGLIGENCE: FEAR OF AIDS AND OTHER DISEASES ................ 994 [29.440] Australia ........................................................................................................................... 994 [29.520] Other jurisdictions .......................................................................................................... 999 [29.590] MARALINGA: FEAR OF RADIATION-INDUCED CANCER ............................ 1004 [29.660] THE CIVIL LIABILITY ACTS ..................................................................................... 1008 [29.680] THE UNITED STATES EXPERIENCE ....................................................................... 1009

INTRODUCTION [29.10] During the last two decades, liability for psychiatric injury has expanded into new areas. Not so long ago, this area of law seemed to be confined to traditional scenarios involving accidents to relatives and cases where victims were in the zone of physical danger and narrowly escaped injury. Now, however, claims for mental harm arising in other contexts, for example stemming from the relationship of doctor and patient or employer and employee, are no longer unusual. Common to most categories of case is the fact that psychiatric injury is alleged to have been caused by a traumatic experience that has actually taken place, or a potential disaster that was narrowly avoided. But a different subset of psychiatric injury claims has also appeared. In these cases, claimants allege they are suffering from a present psychiatric condition caused by fear and worry of future consequences, such as the possibility of having contracted diseases such as asbestosis, mesothelioma, other forms of cancer, AIDS or Creutzfeldt-Jakob Disease that may manifest themselves at some time in the future, with fatal consequences.1 1 Outside the United States, this area had not been explored in the literature until the appearance of two major studies by Nicholas Mullany: see NJ Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), p 101; NJ Mullany, “Compensation for Fear and

966

Part V: Some Special Cases

[29.20]

[29.20] It is important to distinguish these cases from the original kind of nervous shock claim first recognised in Dulieu v White & Sons:2 they are not claims for mental illness consequent on fear of one’s own immediate physical injury or death, anticipated through one’s own unaided senses.3 Nor are they comparable to the unusual species of claim in Wilks v Haines,4 where the plaintiff sued for mental injury triggered by her appreciation of what might have happened to her had circumstances been different. “Fear for the future” suits are an example of a new and distinct breed of psychiatric injury actions born of the increased cognisance of the potential breadth of liability for such harm. [29.30] Analysis of compensation for mental illness caused by the fear and worry of what may happen is inextricably linked with the nature of actionable damage. The fundamental rule that rejects any mental or emotional response to trauma that does not cross the threshold of recognisable psychiatric disorder5 has to be kept firmly in mind when analysing claims for compensation for mental illness caused by fear for the future: the basis of the claim is that contemplation of the future consequences of exposure to some serious risk factor such as a toxic substance or deadly virus has caused the plaintiff to suffer a present condition that qualifies as a recognisable psychiatric illness. It should also be noted that in the past some have suggested that the root cause of such disorders is significant, and that while the law has long accepted that psychiatric injury may result from terror or horror, grief and worry-based psychiatric conditions should be rejected, because there is no redress for grief and worry standing alone.6 This issue has an obvious significance for a discussion of psychiatric injury claims based on fear and worry about what may happen in the future; if mental harm caused by grief at past happenings is disallowed, the prospects for redress caused by mental harm caused by fear of future consequences will not be favourable. Fortunately, the suggestion that grief-based conditions find no remedy has been firmly repudiated. The view that is now finding general acceptance is that “[W]hat matters is not the label on the trigger for psychiatric damage, but the fact and foreseeability of psychiatric damage by whatever process.”7 Worry-Induced Psychiatric Illness: The Australian Position” (1997) 4 Psychiatry, Psychology and Law 147. With his permission, these two works have been used as the basis of this chapter. See also NJ Mullany, “Negligently Inflicted Psychiatric Injury and the Means of Communication of Trauma – Should it Matter?” in NJ Mullany and AM Linden (eds), Torts Tomorrow: A Tribute to John Fleming (LBC Information Services, Sydney, 1998), pp 186–195. 2

Dulieu v White & Sons [1901] 2 KB 669: see [2.40].

3

For discussion of the distinction between these two kinds of claim see APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [22]–[23] per Harper J.

4

Wilks v Haines (1991) Aust Torts Rep 81-078: see [14.40].

5

See [4.30]–[4.50].

6

See [4.120]–[4.160].

7

Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271 per Henry LJ.

[29.50]

29 Fear for the Future

967

[29.40] Other general issues that are important in this context include the debate about sudden sensory perception and the means of communication of trauma. One of the major difficulties in the face of recognising that present psychiatric injury may result from fear and worry about the future is that it is usually hard in such circumstances to show that the psychiatric injury resulted from a sudden shock. The judgment of Brennan J in Jaensch v Coffey8 requiring that psychiatric injury be shock-induced may not have represented the united view of the High Court in that case,9 but it has exercised a considerable influence in psychiatric damage law, both in Australia and elsewhere, and in fear for the future cases in particular it has presented a considerable obstacle in the path of recovery, as the attention paid to this issue in a number of the cases to be discussed in this chapter reveals. As for the traditional rule requiring direct perception of trauma, rather than having the news communicated via a third party, this too is an artificial limitation in cases where the possibility of infection with diseases such as cancer or AIDS is likely to be communicated by a doctor rather than experienced by some sort of “direct perception”. Fortunately, so far as Australian law is concerned, the High Court in Tame v New South Wales10 has now determined that sudden shock and direct perception are no longer to be regarded as mandatory requirements. This may make establishing liability easier in future fear for the future cases. In jurisdictions such as England, where these requirements remain, the problems will be greater.

EARLY CASES [29.50] Although compensation claims for the psychiatric effects of fear and worry about future consequences have been a recognised part of United States law for some years,11 their appearance in Australian and other Commonwealth courts is comparatively recent. With one possible exception,12 no such claim was litigated in an Australian court before 1994. Then in a remarkable 18-month period, no fewer than seven cases raised fear for the future issues in various contexts, including the judgment of Harper J in APQ v Commonwealth Serum Laboratories Ltd13 that constituted the first extended discussion of the relevant issues.14 Other decisions followed in New Zealand, Canada, Ireland and the United Kingdom. The decisions are still very few in number, and have often taken place in the context of interlocutory proceedings — the novelty of 8

Jaensch v Coffey (1984) 155 CLR 549.

9

See [12.410], [12.430].

10

Tame v New South Wales (2002) 211 CLR 317.

11

For discussion of United States law see [29.680]–[29.750].

12

Stergiou v Stergiou (1987) Aust Torts Rep 80-082: see [29.70].

13

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 (judgment given 2 February 1995).

14

The others were Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994); Dinnison v Commonwealth (unreported, Fed Ct, No NG572 of 1991, 4 March 1994); Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994);

968

Part V: Some Special Cases

[29.60]

such proceedings inevitably generating pleading and strike-out disputes — or applications to extend the limitation period; but in Ireland15 and the United Kingdom16 there are now decisions in which the issues have been fully explored by an appellate court, free of such problems, deciding whether to award damages. It is noteworthy that many decisions have proceeded in isolation, rather than taking note of the gradually accumulating case law from elsewhere: given the paucity of authority, courts would be wise to refer to major judgments in other jurisdictions. [29.60] The quantum leap that the law has made in the last two decades can be illustrated by brief reference to some earlier decisions where courts might have had some vague notion that there should be some sort of compensation for fear for the future but did not express it in such terms; or where the issue might have been aired, but was not. In an early English case, Jones v Griffiths,17 allowance was made in a personal injury damages award for the effect on the plaintiff’s life of fear of recurrence of epilepsy, in addition to a sum for the chance of actual recurrence. In Stephen v Riverside Health Authority18 in 1989, the issue of fear for the future potentially arose in a limitation context. The plaintiff developed a prickly burning sensation in the chest and other symptoms after undergoing a mammography. The doctors she saw gave her reassurances and the solicitors she consulted did not advise action, but she was not satisfied, and eventually, armed with a new medical opinion that she could have received a higher dose of radiation than stated, she commenced proceedings. Auld J held that she did not have the necessary knowledge until a point less than three years before the writ was issued, so the action was brought in time. There was no real discussion about the damage for which the plaintiff might ultimately recover, but it seems likely that she might have been suing for the increased risk of cancer, and her claim might have included damages for anxiety, or something more, caused by the worry of possibly developing cancer in the future. In another English case in 1990, Merlin v British Nuclear Fuels plc,19 a fear for the future claim could perhaps have been made, but was not. The plaintiffs purchased a house 6 miles away from the Sellafield nuclear processing plant in Cumbria. Some years later, a public inquiry alerted them to the possibility of radioactive contamination of their home. Tests done on a sample of house dust from their vacuum cleaner, and also on the family cat, “a heavy consumer of local fish”, showed a high level of radioactive contamination, and the Merlins decided to move and had to sell at an Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994); Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994); Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995). 15

Fletcher v Commissioners of Public Works [2003] 1 IR 465.

16

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281.

17

Jones v Griffiths [1969] 1 WLR 795.

18

Stephen v Riverside Health Authority [1990] 1 Med LR 261.

19

Merlin v British Nuclear Fuels plc [1990] 3 All ER 711.

[29.70]

29 Fear for the Future

969

undervalue. A claim for compensation under the Nuclear Installations Act 1965 (UK) for the diminution in value of their house caused by the level of radioactive contamination and the perception of risk to the health of their children was disallowed on the basis that under the Act compensation was restricted to actual personal injury and property damage, and no award could be made for the increased risk of either, or for pure economic loss.20 [29.70] Elsewhere, appreciation of the possibility of such a claim was shadowy at best. In Australia, the only case that came even close to the situation under discussion was Stergiou v Stergiou,21 where the plaintiff, the passenger in a car driven by her husband that knocked down a cyclist, alleged that she suffered psychiatric injury because she thought her husband had killed him. It is not clear whether the alleged injury stemmed from worry that someone had been killed, or worry that her husband was responsible for another’s death and that unpleasant consequences might ensue. Even on the latter interpretation, the case is very different from cases where the fear and worry stems from possible exposure to toxic substances or deadly diseases. In Canada, in BellGinsburg v Ginsburg22 in 1993, where the plaintiff found out that her husband was bisexual and had engaged in high-risk sexual activities exposing them both to the risk of AIDS and other sexually transmitted diseases, she suffered emotional distress and morbid depression at the possibility that she might have been infected, even though her husband had tested negative to HIV, since it might be 10 years before a positive result became apparent. She sued her husband, pleading various causes of action including breach of fiduciary duty, battery, fraudulent and negligent misrepresentation, and intentional and negligent infliction of emotional distress. The husband moved to strike out the statement of claim. The judge refused, on the ground that it could not be said that the action was obviously doomed to failure. The judgment contemplated the possibility that the Wilkinson v Downton action23 might perhaps be extended to cases where the emotional effects of the defendant’s conduct were direct and immediate, and intended or foreseeable as a probable consequence.24

20

Short v British Nuclear Fuels plc [1997] 1 LPr 747 was another claim alleging psychiatric harm caused by the effects of radioactive contamination emanating from the Sellafield plant, made by a plaintiff based on the other side of the Irish Sea. The principal issue before the Supreme Court of Ireland was whether proceedings could be served on the defendant in England. 21

Stergiou v Stergiou (1987) Aust Torts Rep 80-082: see also [14.30].

22

Bell-Ginsburg v Ginsburg (1993) 14 OR (3d) 217.

23

Wilkinson v Downton [1897] 2 QB 57: see Chapter 30.

24

A suggestion based on GHL Fridman, The Law of Torts in Canada (Carswell, Toronto, 1989), Vol 1, p 49.

970

Part V: Some Special Cases

[29.80]

APQ AND THE CJD LITIGATION Australia [29.80] The interlocutory decision of Harper J of the Supreme Court of Victoria in APQ v Commonwealth Serum Laboratories Ltd25 is now one of the most sophisticated analyses of this challenging area, and his Honour’s enlightened views on the perception and communication of trauma are important not only for fear for the future cases but also in relation to other aspects of psychiatric injury law. The action involved psychiatric disorder allegedly caused by the persistent fear of contracting a terminal disease. Between 1980 and 1985 the plaintiff was treated with human pituitary gonadotrophins (HPG) to stimulate ovulation. This was a drug manufactured by the first defendant from human pituitary glands collected from cadavers by the second defendant, the Commonwealth. It was alleged that the drug was packaged by the first defendant for use in the form in which it was packaged, without intermediate examination. Both defendants distributed the drug. The plaintiff alleged that the defendants knew or ought to have known that she was, as a result of her hormone treatment, at risk of contracting the fatal Creutzfeldt-Jakob Disease (CJD) and should have adopted preventative measures to protect her from injury. She allegedly suffered psychiatric disorder as a result of learning of the risk to which she was exposed and the constant fear and worry that she would contract CJD. Significantly, there was no allegation that she had contracted the disease; she had not suffered any physical damage as a result of the defendants’ alleged negligence. Her psychiatric injury was caused solely by preoccupation with what might happen. Her action was a test case for 130 other women who found themselves in a similar position.26 [29.90] APQ’s action came before Harper J as a result of a strike-out application brought by the defendants on the ground, inter alia, that the claim failed to disclose a cause of action and amounted to an abuse of process. In the alternative, they sought a stay of proceedings on the same 25

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 (a judgment given on 2 February 1995). See AW Hurley, “Prospects of Recovery in Negligence and under Statute for Creutzfeldt-Jakob Disease resulting from Human Pituitary Gland Derived Hormone Products” (1996) 4 TLJ 60. 26

CJD is a progressive and debilitating brain disease which afflicts both sexes, usually between the ages of 50 and 60. The natural route of transmission is unknown. It results in dementia, disorientation, weakness, peripheral muscle wasting and degeneration of the pyramidal and extrapyramidal systems, cortical blindness, dysarthria, spasticity, tremors and other involuntary movements. Pathologically, there is diffuse spongiform degeneration of the cerebral cortex, basal ganglia and descending dorsispinal tracts. CJD is untreatable and invariably fatal. There is a very long incubation period, on average 15 years where the infective agent is inoculated subcutaneously or intra-muscularly. Some cases have extended to 40 years. Unlike HIV, there is as yet no approved test to determine whether a person has contracted CJD. Those inflicted do not know of their predicament until the disease is established. Once the disease becomes clinically diagnostic death is rapid: it can occur within three months, usually occurs within six to nine months, and inevitably occurs within two years.

[29.100]

29 Fear for the Future

971

grounds. Harper J was prepared to assume that the plaintiff had suffered an actionable loss, and focused on the real issues raised by fear for the future cases. He was not swayed from this path by issues that have been much canvassed in United States courts, such as the reasonableness of the plaintiff’s fears and the probability that the threatened consequence would transpire.27 A passing reference to the manifestation of APQ’s fears when distinguishing her action from that in Dulieu v White & Sons28 was as close as the court came to these troublesome concepts. Harper J said: In my opinion, it cannot be said that the plaintiff’s claim has no prospects of success. On the contrary, it seems to me that a person who suffers psychiatric illness when informed that medical treatment undergone by her may leave her with a horrible and terminal disease probably has a good cause of action against the manufacturer of a drug used in the plaintiff’s treatment where its manufacture (and subsequent distribution) was conducted negligently and where that negligence exposed the plaintiff to that risk. Any other conclusion could only be reached were psychiatric injury to be placed in a quite different category to other kinds of harm to one’s body or mind. For it is beyond argument that a person who suffers physical injury as a result of treatment with a negligently manufactured substance has a cause of action against the negligent manufacturer. It follows that, if they are to succeed, the defendants here must establish that psychiatric injury is for relevant purposes so clearly to be treated differently from other categories of harm as to require a conclusion that the plaintiff’s cause of action does not exist.29

[29.100] In the judge’s opinion, it was “beyond argument”30 that the defendants should have foreseen psychiatric harm to a patient treated with HPG when the patient became aware that CJD might result. However, in line with the then-prevailing theory adopted by Australian courts, the defendants submitted that reasonable foreseeability or risk of injury did not of itself create a duty of care, but that the plaintiff had to bring herself within a relationship of proximity with the defendants; and proximity was lacking because although the plaintiff had incurred a 27

Compare Nesom v Tri Hawk International 985 F 2d 208 (1993), where a patient claimed to have suffered emotional distress in the form of fear of contracting CJD due to the remote possibility that contaminated human dura harvested from cadavers had been used in his craniotomy. Confirming the importance of proving actual (rather than possible) exposure to the contaminated agent, the Fifth Circuit, applying Louisiana law, emphasised that the likelihood that the dura was contaminated was one in 1,000, the plaintiff had no symptoms of CJD and no doctor had diagnosed the presence of CJD during the six years following the neurosurgery. It was therefore highly unlikely that the plaintiff would ever contract CJD. The cases are similar in that in neither was it certain the claimant had been exposed to the disease-causing agent. In APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 there was an identifiable risk that the plaintiff might contract CJD in that she had been injected with HPG potentially, but not definitely, contaminated with infected pituitary gland extract. In Nesom v Tri Hawk International it was not known if the dura used was contaminated; the fear stemmed from the fact that it came from the same lot, although not necessarily the same cadaver, as that linked to another patient who contracted the disease.

28

Dulieu v White & Sons [1901] 2 KB 669: see APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [22].

29

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [8]–[9].

30

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [15].

972

Part V: Some Special Cases

[29.110]

psychiatric condition it did not spring from a sudden perception of a shocking event. Harper J did not accept this contention. Referring to the comments of Brennan J in Jaensch v Coffey31 on the need for “sudden sensory perception” (and contrasting them with other judgments in that case that imposed no such limitation32), his Honour said: We may for present purposes accept that a plaintiff who (unlike the present plaintiff) is a secondary victim may recover only if the psychiatric illness is induced by shock … which has been negligently caused. In my opinion, however, one cannot say that such “shock” is so clearly a necessary element of the present plaintiff’s cause of action that she cannot succeed unless it is proved. The shock suffered by someone who is informed without any prior warning that she (or he) might contract a particularly undesirable disease could seldom if ever be said to arise from a “sudden sensory perception of a person, thing or event”. Yet it might well be so distressing that it affronts or insults the mind and thereby causes a recognisable psychiatric illness. This being so, it is difficult to understand why the absence of the sudden sensory perception of a person, thing or event should make the difference between a cause of action on the one hand and no cause of action on the other, where in each instance psychiatric harm has been caused. Unless I have sadly misunderstood the present plaintiff’s claim, this case is not analogous to that of the worn-out spouse or the brain damaged child.33

[29.110] Harper J summarised his conclusions on the various issues raised by the case in the following passage: As I understand the plaintiff’s case, it is that she suffered psychiatric illness on being told that her treatment with a negligently manufactured and distributed substance may lead to the contraction of an unpleasant and terminal illness. In the light of the reasoning set out above, it is in my opinion wrong to say that such a plaintiff not only has no cause of action against the negligent manufacturer and distributor, but so clearly has no cause of action that an application under r 23.01(1) [by the defendant for summary judgment] must succeed. The same point can be made another way. Put at its highest, the defendants’ case is that a plaintiff who suffers no physical injury cannot recover for negligently inflicted physical illness unless that illness were the result of shock caused by fear of immediate physical impact anticipated through one’s unaided senses, and unless there is also a close temporal coincidence between the negligent act, its consequences and the plaintiff’s awareness of those consequences. Even if the temporal connection need not be shown, the defendants submit that shock as described above is a necessary element of the cause of action.

31

Jaensch v Coffey (1984) 155 CLR 549 at 565, 567.

32

Jaensch v Coffey (1984) 155 CLR 549 at 555 per Gibbs CJ, at 556 per Murphy J, at 608–609 per Deane J, at 612–613 per Dawson J.

33

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [26]. The references to the worn-out spouse and the brain-damaged child are to the examples used by Brennan J in Jaensch v Coffey (1984) 155 CLR 549 at 565.

[29.130]

29 Fear for the Future

973

In the light of the reasoning set out above, I do not think that such a conclusion is so clearly correct as to allow an application under r 23.01(1).34

[29.120] Harper J thus demonstrated effectively that this new species of mental injury claim cannot be analysed effectively by reference to the need for “shock” through the unaided senses and the traditional rules about the means of communication of trauma. Fear for the future cases were simply not within the contemplation of courts when these restrictions were introduced. As Harper J observed, had APQ already contracted CJD, proximity would not have presented a difficulty, there being no need in such circumstances to prove mental disorder consequent on the sudden perception of a “shocking event” for which the defendants were responsible.35 As will be the position in many fear for the future cases, she was traumatised by what she was told and nothing else — in this case, presumably, years after her treatment.36 She was not “shocked” by what she saw; the treatment by injection of HPG was not the relevant traumatic event; there was no accident to participate in or observe; there was no aftermath;37 there was no combined visual and aural perception of traumatic stimuli; there was no contemporaneity between the alleged negligent conduct, its consequences and the perception of them. None of this should matter. If recognised psychiatric injury is suffered through careless conduct, and there are no legitimate policy reasons that militate against liability in these circumstances, refusal to compensate for this very real loss on the basis of existing principles ill-equipped to deal with this kind of case cannot be justified. As Harper J observed, there is no sound basis on which to distinguish psychiatric injury rooted in concern for what may or will occur from that sustained due to exposure to more commonplace trauma, or for restricting the rights of those claiming for the former type of loss. Those mentally traumatised by persistent worry or fear for the future may suffer as much as those who witness the death or injury of a loved one. [29.130] The prospect that a mature approach would be taken to fear for the future claims was enhanced by the refusal of the Appeal Division to grant leave to appeal from Harper J’s decision to dismiss the application to strike out the statement of claim or stay the proceedings.38 Their Honours were not prepared to grant leave to appeal in circumstances where there would be no evidence before them on which they could determine whether the existence of the cause of action was arguable. The “very sparingly pleaded facts” were considered an insufficient basis on 34

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [35]–[36].

35

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633 at [17].

36

It is not clear from the judgment precisely when the plaintiff was informed of the risk.

37

Nor did it amount to “physical impact” as suggested by senior counsel for the plaintiff. Although his Honour did not deal with this issue in his judgment, he was, rightly, unimpressed with this submission: see transcript, 29 November 1994, pp 92, 94.

38 APQ v Commonwealth Serum Laboratories Ltd (unreported, Vic SC, App Div, No 8546 of 1993, 28 April 1995).

974

Part V: Some Special Cases

[29.140]

which to express an opinion. The case was scheduled to be tried before a civil jury on 7 April 1997. Unfortunately, just five days before the trial was due to commence, the plaintiff’s claim was compromised on the basis that nothing was paid in relation to her alleged psychiatric injury. Lack of support from State and Commonwealth funding bodies made it impossible for the plaintiff to continue. Apart from the devastating effect on the plaintiff and her family, and other victims in a similar position, an important opportunity to develop the principles of psychiatric injury law was lost. The only positive outcome was the thought-provoking judgment of Harper J, which should prove an important influence in the future development of the law. [29.140] The Victorian Supreme Court has more recently considered another case in which a plaintiff alleged that she had suffered psychiatric injury caused by fear of developing CJD, but the court in Farrell v CSL Ltd39 was mainly concerned with the facts and the evidence, and it was unnecessary to consider the legal issues raised in APQ v Commonwealth Serum Laboratories Ltd.40 Mrs Farrell was treated with HPG at a fertility clinic. She alleged that the defendants negligently failed to inform her of the risks involved, and that as a result she suffered psychiatric injury commencing when she was told that she might have CJD. Bongiorno J made unfavourable findings about Mrs Farrell’s credit and credibility, and held that she had probably suffered no psychiatric injury, but even if she had, its cause was her fixed belief that she had been treated with HPG from batches used to treat other women who had died of CJD, rather than anything the defendant told her. Even if the defendants’ breach of duty was a cause of any psychiatric condition from which she was suffering, the requirement of reasonable foreseeability was not satisfied: For the foreseeability issue with respect to such a psychiatric condition to be determined in her favour it would be necessary for it to be reasonably foreseeable by a person in the position of the defendants that their breach of duty in failing to give allegedly appropriate information to the plaintiff about HPG would create a risk that she would embrace a false belief as to what had happened to her with the consequence that she suffered a psychiatric injury. The risk of that occurring is “far fetched and fanciful”.41

Other jurisdictions [29.150] APQ v Commonwealth Serum Laboratories Ltd42 has been paralleled by similar litigation in England. In CJD Group B Plaintiffs v Medical Research Council,43 Morland J dealt with claims brought by plaintiffs who as children who received human growth hormone (HGH) 39

Farrell v CLS Ltd [2004] VSC 308.

40

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

41

Farrell v CLS Ltd [2004] VSC 308 at [145].

42

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

43

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161. See J O’Sullivan, “Liability for Fear of the Onset of Future Medical Conditions” (1999) 15 PN 96.

[29.170]

29 Fear for the Future

975

as part of a program to cure dwarfism, and now claimed to have suffered psychiatric injury because of the risk that they might develop CJD. After it was discovered in the 1950s that HGH could be extracted from the pituitaries of deceased persons and successfully inoculated into children suffering from defective pituitary glands, the Medical Research Council, with the concurrence of the Department of Health, began a clinical trial that by 1977 had developed into a large-scale therapeutic program. On 1 July 1977 it was taken over by the Department, the Medical Research Council remaining responsible for the collection and processing of pituitaries. Between 1959 and 1985, almost 2,000 children received HGH. In 1976 the Medical Research Council considered a warning regarding a possible risk of transmission of CJD through HGH, and it sought and received an expert opinion on whether two particular methods of processing would eliminate the infectious agent. In 1985 three cases of CJD were established when a post-mortem was carried out on American recipients, and soon afterwards an English recipient of HGH died of CJD. The program was terminated. By 1995, 16 UK recipients of HGH had died of CJD, and in 1996 another three were diagnosed as suffering from terminal CJD. [29.160] Action was brought against the Medical Research Council and the Department of Health on behalf of HGH recipients. By a consent order made on 9 November 1994, Otton J divided the plaintiffs into two groups. The first comprised 11 claimants, eight of whom were representatives of recipients who had contracted and died from CJD, and three who had been diagnosed with the disease. The second group comprised 87 claimants who had been treated and had not contracted CJD but feared that they might suffer the same fate as those who had succumbed to the disease. It was alleged that there had been negligence during two periods, 1973–1974 and 1977, in that in both periods there was a failure to carry out a thorough reappraisal of the program and halt it until the methods of production were proved to be safe. On 19 July 1996, Morland J delivered judgment in relation to the first group of plaintiffs. He held that from 1 July 1977, but not before, the Department was negligent in not partially suspending the program so that no extract would be supplied to new patients.44 [29.170] There remained the question of the second group of plaintiffs, who were claiming in respect of fear for the future.45 Morland J gave judgment in this action on 18 December 1997. In each case, the plaintiffs had taken part in the defendants’ clinical trials and had subsequently learnt, either through doctors, counsellors or the media, that they were at risk of contracting CJD, and of its devastating and potentially fatal consequences. It was assumed for the purposes of the trial that all 44 45

N v United Kingdom Medical Research Council [1996] 7 Med LR 309.

Otton J had ordered that the claims of this group be stayed (following the issue of proceedings to avoid limitation bars), and that findings of fact in the first trial would bind the claims of the second group so far as they dealt with common issues.

976

Part V: Some Special Cases

[29.180]

plaintiffs had suffered psychiatric injury as a result of becoming aware that they might develop this disease. Trial had been ordered of three preliminary issues: whether the duty to avoid foreseeable harm included a duty to avoid the risk of psychiatric as well as physical injury; whether psychiatric injury could, as a matter of law, be caused by the defendants’ negligence in continuing injections after 1 July 1977; and whether the law permitted the recovery of damages for psychiatric injury caused by awareness of the potential development of CJD. His Lordship held that it was foreseeable in the circumstances that the plaintiffs might suffer psychiatric injury as a consequence of learning that they were at risk of contracting CJD, and that the defendants were legally responsible for this damage. [29.180] One problem that loomed large in this litigation was the potential impact of Page v Smith.46 The plaintiffs argued that they were primary victims, and so the principles outlined by Lord Lloyd of Berwick in that case applied; alternatively, if Page was distinguishable as dealing with shock induced contemporaneously by direct involvement in a traumatic physical accident, it was reasonably foreseeable that some at least of the plaintiffs in this group who were of ordinary fortitude might develop psychiatric illness, control mechanisms were in place and there were no public policy reasons why damages should not be recovered. On the other hand, the defendants contended that the Group B plaintiffs were not primary victims because their psychiatric injury was not the direct result of a sudden shocking injury compressed into a short space of time, and that they did not satisfy the requirements of secondary victim liability because they were not bystanders, there was no duty in respect of third party communication, and to find them liable would be a novel step opening the floodgates to many other potential claimants, for example those exposed to asbestos or radiation. [29.190] The defendants’ arguments are a classic example of something often met in psychiatric injury law — an attempt to apply the traditional secondary victim rules developed for accident cases to newly emerging situations very different from those for which the old rules were designed and for which they are not appropriate.47 Morland J very properly rejected these arguments. He did agree with the defence arguments to the extent that he was not prepared to accept the submissions based on Page v Smith.48 In the case of primary victims who fell into the category identified by Lord Lloyd, breach of duty, awareness of danger and participation in the traumatic event, and shock and resultant psychiatric illness all happened immediately. In the case of the plaintiffs in the case before him, there was a breach of duty by the defendants in that they were responsible for a physical impact on the plaintiffs by injecting them with HGH, but the psychiatric injury was not triggered by that event but 46

Page v Smith [1996] AC 155.

47

For other examples, see [22.630].

48

Page v Smith [1996] AC 155.

[29.200]

29 Fear for the Future

977

by later becoming aware of its tragic significance. Their psychiatric illnesses were not caused by what had happened but resulted from their fear for the future. Morland J, accepting submissions made by the defence, stressed the potential consequences of extending the Page v Smith doctrine to such cases: [T]he ramifications would be incalculable. If they were primary victims so would be those exposed to asbestos or radiation where primary liability may depend not upon common law negligence but of [sic] statutory duty or even strict liability even if they became aware of the risk of physical injury years later and consequently developed psychiatric injury. The potentiality of a huge number of claims in similar situations would arise making insurance difficult or impossible. It could involve all manner of products and a huge range of potential tortfeasors. It could inhibit the producers, prescribers and suppliers of a product from warning of the danger of a product. For example a potentially lethal substance has been negligently introduced into a production batch of canned food. It would be disastrous if a supplier or producer were inhibited from warning the public of danger for fear that some of those who had already eaten the canned food might bring a claim as a primary victim for psychiatric injury triggered by the warning. Against such a claim the producer could not raise defences either that the psychiatric injury was unforeseeable to a person of normal fortitude or that the law insists upon certain control mechanisms to limit the number of potential claimants.49

The experience of psychiatric injury claims suggests that floodgates arguments should always be treated with a certain amount of reserve. Here, however, the predicated consequences really flow from the undesirable developments in English law initiated by Lord Lloyd in Page v Smith. Morland J’s judgment illustrates the difficulty of suggesting that the doctrine outlined in that case (assuming it is legitimate at all) should be extended to all categories of primary victim. Morland J in CJD Group B Plaintiffs,50 and Harper J in APQ v Commonwealth Serum Laboratories Ltd,51 were both able to reach a satisfactory outcome in fear for the future situations of this kind without resorting to this new and widely criticised doctrine. [29.200] If the Group B plaintiffs are not to be treated as primary victims, how should the law treat them? In the second part of his judgment Morland J proceeded to answer this question. Here, it was necessary to have regard to the particular situation: the extent of the duty, the nature of the relationship between the parties, the size of the group, the ways in which the plaintiffs might become aware of the risk, the nature of CJD and what the defendants could foresee of the effect on recipients if the risk became a reality. The relationship was akin to that of doctor and patient, one of close proximity — although because the plaintiffs were children it was their parents who had consented to treatment. By 1 July 1977 the defendants were aware of the risk, and that 49

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 165.

50

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161.

51

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

978

Part V: Some Special Cases

[29.210]

it might endure for decades. The cohort of potential victims was small. The terrible nature of CJD was well known. Defence arguments that the plaintiffs might never suffer from CJD were “artificial and unattractive”: only after death could a positive diagnosis be made. Summing up, Morland J said: In my judgment on 1 July 1977 the defendants, in the state of the then available knowledge, could only have concluded that the risk of CJD becoming a reality could occur within a huge time span, that is within a year or two after injection, or within many decades after injection. Thus it was reasonably foreseeable that the patient would receive the shocking news that he was at risk of CJD over a very wide time span. … Each CJD death from HGH would increase the fear of other HGH injectees and this should have been foreseen by the defendants. … Although it may not be reasonably foreseeable that the man of ordinary fortitude would develop psychiatric illness if the information that he was at slight theoretical risk of CJD was given to him by a doctor or counsellor who would no doubt give the information with optimistic stress, in the case of a special therapeutic trial or programme as the HGH programme, it should have been reasonably foreseeable to the defendants by 1 July 1977 that, when the news of the potential risk of CJD broke to those who were or had been children when treated, the news would reach Group B plaintiffs not only from considerate and skilled clinicians and counsellors but also from the media which foreseeably would tend to highlight or sensationalise the risk of the potential terrible outcome and from anxious and perhaps angry relations and friends who would be ignorant of scientific knowledge and likely to use unhelpful language. In my judgment the evidence shows that the defendants not only should have foreseen the risk of psychiatric injury but did in fact do so.52

There was no logic in limiting the defendants’ responsibility to a short period of time contemporaneous to the act of negligence in question. According to Morland J, if the psychiatric injury was reasonably foreseeable, it should be untrammelled by spatial, physical or temporal limits.53 [29.210] Morland J recognised that he was taking a step forward and enlarging the categories of plaintiffs who could recover for psychiatric injury, but also that it was necessary to respond appropriately to the needs of this special situation. “If I have taken an incremental step forward, it is a small step. I hope to echo the words of Lord Wright in Bourhill v Young [1943] AC 92 at page 110 that on the facts of this special situation I have had the good sense to draw the line appropriately.”54 Morland J saw the danger in following United States precedents, noting that the requirement that the plaintiff had to prove a genuine psychiatric injury was a powerful control mechanism, one that was absent in the 52

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 166.

53

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 168.

54

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 168.

[29.230]

29 Fear for the Future

979

American jurisprudence.55 He was undoubtedly influenced by Harper J’s decision in APQ v Commonwealth Serum Laboratories Ltd,56 and resisted the urging of the defendants not to follow it: as a result, in these two decisions Anglo-Australian law has adopted broadly similar attitudes to the problem of psychiatric injury caused by fear for the future, at least in the context of the risk of a terrible disease from the use of defective products.57 These two cases constitute a basis for further development in this area that other courts would be wise to observe.

EMPLOYMENT CASES: FEAR OF ASBESTOS-RELATED DISEASES Australia [29.220] The issue of liability for mental harm caused by fear for the future has arisen in claims against employers for psychiatric illness alleged to stem from anxiety about the possibility of contracting diseases such as asbestosis and mesothelioma as a result of contact with asbestos fibres or other toxic substances during the course of employment. Unfortunately, the Australian cases do not provide very much insight. A Western Australian judge has granted recovery in such a case,58 but the judge failed to identify the relevant issues, and so this case cannot be relied on with any confidence. The issue has also been briefly discussed by the New South Wales Court of Appeal,59 which however relied too heavily on United States authority and may therefore have stifled further developments in this area. In another case from Western Australia, the Full Court reversed a first instance finding in favour of the employer,60 but again the issues were not properly identified; the High Court found fault with the Full Court’s decision on procedural grounds and ordered a retrial.61 Overall, little assistance can be derived from this case. [29.230] In the first of the three cases, Napolitano v CSR Ltd,62 a decision of Seaman J of the Supreme Court of Western Australia given on 30 August 1994, the judge awarded $25,000 as compensation for the severe psychiatric effects of a major depressive disorder brought on by fear of contracting mesothelioma through earlier exposure to asbestos. 55

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 163.

56

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

57

The CJD litigation resulted in a number of other judgments on various aspects of the claim, for example the “straddlers” who received HGH both before and after 1 July 1977: see Newman v Secretary of State for Health (1997) 54 BMLR 85; Newman v Secretary of State for Health (No 2) (1998) 54 BMLR 95. The costs issue was dealt with in Andrews v Secretary of State for Health (1998) 54 BMLR 111.

58

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

59

CSR Ltd v Thompson (2003) 59 NSWLR 77.

60

Maddalena v CSR Ltd [2004] WASCA 231.

61

CSR Ltd v Della Maddalena (2006) 80 ALJR 458.

62

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

980

Part V: Some Special Cases

[29.240]

The plaintiff had worked in an asbestos mine at Wittenoom in Western Australia between 1959 and 1961, where he claimed that he had been exposed to asbestos dust and fibres. Over subsequent years, as more and more of his former workmates succumbed to mesothelioma and other diseases, his anxiety grew, and he alleged that this anxiety caused him to resign from another job in 1989. In 1994, his worst nightmares came true: he was diagnosed as suffering from malignant pleural mesothelioma and was near death at the date of the judgment. But it was the deterioration in his mental condition, rather than his physical decline, that forced him to cease work.63 [29.240] Because damages were awarded, the decision is a valuable precedent, but the discussion of fear and worry induced mental damage is remarkable for its lack of analysis of principle or authority. This is despite the fact that Seaman J regarded the question of liability for psychiatric injury as a matter of “major complexity”. Although the expert evidence could not readily identify any one particular trigger responsible for the plaintiff’s psychiatric disorder, and attributed his mental decline to gradually increasing anxiety, his Honour appears to have assumed that sudden shock to the senses, as required by Australian law at that time, was present. But save for a reference to the judgment of Brennan J in Jaensch v Coffey,64 there was no discussion of the requirement of sudden sensory perception, either generally or in this particular context. Seaman J recognised that the facts did not reveal the degree of proximity of time or space commonly referred to, but there was no discussion of the significance of this, or of the means of communication of trauma or the issue of remoteness of damage. No other decisions were referred to, let alone analysed. The impression gleaned from the judgment is that Seaman J simply formed the opinion that it was just in the particular circumstances to compensate the plaintiff. With respect, it seems questionable whether his Honour appreciated the significance of the fact that, for the first time, an Australian court was imposing liability for psychiatric disorder consequent on fear for the future. He was content to rest his decision on the basis of foreseeability: 63

It was common ground that the plaintiff suffered a recognised psychiatric illness from at least 1989, following a diagnosis that he had inflammation of the lungs and had inhaled asbestos particles. The physical damage was not consequential on the mental damage. Seaman J proceeded on the basis that he had to show that he had suffered a psychiatric injury in order to recover damages for the period prior to 1994, when he was diagnosed as having mesothelioma. In addition to the damages for his psychiatric injury, Mr Napolitano recovered $100,000 for the non-pecuniary loss caused by his physical illness. Presumably, the once-and-for-all rule would bar double recovery where a plaintiff is compensated for psychiatric disorder attributable to feared consequences and those consequences subsequently materialise, even where the subsequent physical damage was not ascertainable at the time when the claim for psychiatric disorder was commenced or determined: see Fitter v Veal (1701) 12 Mod 542; 88 ER 1506; Darley Main Colliery Co v Mitchell (1886) 11 App Case 127 at 132 per Lord Halsbury, at 144 per Lord Bramwell.

64

Jaensch v Coffey (1984) 155 CLR 549.

[29.260]

29 Fear for the Future

981

A central question in this case seems to me to be whether or not it was reasonably foreseeable by the defendants that within the class of persons who were employed in the mill and mine at Wittenoom there would be some who would suffer harm by psychiatric illness resulting not from their own lung disease, but fear of disease which would be either asbestosis or mesothelioma engendered by seeing other workers terminally suffering from those diseases. In my opinion psychiatric illness engendered in that way should have been foreseen by a reasonable employer.65

His Honour added that controlling features of liability for psychiatric illness could not be determined in the abstract, and the case could not turn on statements of policy apt to very different factual situations: the limitations the law imposed on liability in a case such as this were limitations of proof, rather than limitations of policy apt to very different circumstances. [29.250] The result in Napolitano v CSR Ltd66 is to be applauded, but its reasoning cannot be — even if some of the issues not adverted to are no longer as important as they were at the time, in the light of subsequent developments in the law.67 Given the potential importance of this decision for subsequent cases involving the effects of fear of exposure to asbestos and other carcinogens, the lack of rigorous and thorough analysis is very disappointing. This cannot be excused by the form the judgment took: the trial was expedited because of the plaintiff’s very short life expectancy, with oral reasons being given immediately and the written judgment being published later. [29.260] Some years later, two more Australian cases raised the issue of liability for fear of asbestos-related diseases in an employment context. The New South Wales Court of Appeal gave brief consideration to the issue in CSR Ltd v Thompson.68 Like Napolitano v CSR Ltd,69 this was a case where the plaintiff’s fear that he was at risk of contracting an asbestos-related disease sadly proved correct. O’Meally P in the New South Wales Dust Diseases Tribunal awarded damages for his mesothelioma but dismissed a claim for further damages for the fear experienced before the disease became manifest. The plaintiff applied for leave to cross-appeal against the rejection of this claim. It was accepted that the plaintiff’s fear did not give rise to a recognisable psychiatric illness, and Ipp JA distinguished Napolitano on this ground. The plaintiff argued that once he was diagnosed as having malignant mesothelioma, he was entitled to recover damages for all associated mental harm, past or future. Perhaps unwisely, the plaintiff relied for this proposition on the United States Supreme Court case of Norfolk & Western Railway Co v 65

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

66

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

67

That is, the High Court’s decision in Tame v New South Wales (2002) 211 CLR 317: see [29.40].

68

CSR Ltd v Thompson (2003) 59 NSWLR 77.

69

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

982

Part V: Some Special Cases

[29.270]

Ayers:70 as Ipp JA pointed out, this was not a case where the fear preceded the physical injury, and Ginsburg J specifically ruled against recovery in such a situation.71 In Ayers, the plaintiff’s claim for fear was treated as being parasitic on the physical injury of asbestosis. Though the Supreme Court was prepared to allow such recovery, the Civil Liability Acts have rejected it,72 as Ipp JA noted.73 The application was dismissed. Though other jurisdictions have been prepared to treat fear claims as parasitic upon physical damage,74 this approach is no longer available in Australia, which means that the alternative adopted by Seaman J in Napolitano, of treating the mental injury damages as a separate claim and requiring the presence of a recognisable psychiatric injury, is the only one available. CSR Ltd v Thompson is another illustration of the perils of relying on United States authority without a full appreciation of the different background of those cases. While any case decided by the United States Supreme Court is obviously important, Ayers and other recent United States Supreme Court decisions75 deal with claims under the Federal Employers’ Liability Act, where special factors are at work, as shown by the fact that these cases maintain the zone of danger rule now abandoned in the ordinary State law of most States, a restriction that may be explained by the width of the liability created by that Act.76 [29.270] In Maddalena v CSR Ltd77 a Western Australian appellate court awarded damages for fear for the future, but the issues in dispute were mainly issues of fact and credibility, and there was no detailed consideration of the legal issues that potentially arise in such cases. Mr Maddalena, like Mr Napolitano, had been exposed to asbestos dust and fibres when working at Wittenoom. About 20 years after the mine closed, shortness of breath and other symptoms led him to consult a medical practitioner, who carried out tests that revealed that he had been exposed to asbestos and had some non-calcified pleural plaques on his diaphragm, but that there was no pulmonary abnormality and no evidence of interstitial lung disease. However, the fear that these symptoms might develop into a terminal disease caused him to suffer a 70

Norfolk & Western Railway Co v Ayers 538 US 135 (2003).

71

CSR Ltd v Thompson (2003) 59 NSWLR 77 at [35].

72

See [2.320].

73

CSR Ltd v Thompson (2003) 59 NSWLR 77 at [43].

74

In the Northern Ireland case of Bittles v Harland and Wolff plc [2000] NIJB 209, where the plaintiff suffered from severe clinical depression at the possibility that he might develop an asbestos-related disease, and was eventually diagnosed with asymptomatic pleural plaques, Girvan J took the view that the pleural plaques were a physical injury and the psychiatric injury was parasitic to it. 75

See [29.750].

76

See RJ Cox and CH Shott, “Boldly into the Fog: Limiting Rights of Recovery for Infliction of Emotional Distress” (1992) 53 Mont L Rev 197 at 216. The Federal Employers’ Liability Act makes defendants liable for all damage caused in whole or in part by their negligence: 45 USC § 51.

77

Maddalena v CSR Ltd [2004] WASCA 231.

[29.280]

29 Fear for the Future

983

depressive disorder. Though described as a “psychological reaction”, the trial was conducted on the basis that the plaintiff was suffering from a psychiatric injury. The District Court judge preferred the defendant’s medical evidence and dismissed the claim, finding that the plaintiff had failed to prove his case. On appeal, the Full Court took a different view of the medical evidence and also criticised the trial judge for failing to give reasons to support his findings as to credibility. In its view, the plaintiff had proved his case, and the matter should be remitted to the court below for assessment of damages. Templeman J, giving the major judgment, said that it could not be said that the plaintiff’s injury was caused by anything other than his exposure to asbestos. His Honour did not refer explicitly to the need for the psychiatric injury to be foreseeable, but referred to evidence that “in the 1960s, it was well known that the possible consequences of exposure to asbestos might lead to a psychiatric condition”.78 He said that the case had many similarities to Napolitano v CSR Ltd,79 and noted that this case, according to the New South Wales Court of Appeal in CSR Ltd v Thompson,80 “fell within the class of pure mental trauma recognised by Tame v New South Wales”.81 There is no doubt that recent developments in the law relating to psychiatric injury, and in particular the relaxation of the requirement of sudden shock, have made it easier to establish liability in this kind of case, and that the approach of the High Court in Tame means that foreseeability is now the central issue. However, it was disappointing that Templeman J’s judgment, like that of Seaman J in Napolitano, contained no acknowledgment of the special significance of awarding damages for present psychiatric injury based not on something that has already happened but on fear of something that might happen in the future. Templeman J’s judgment was also open to criticism in other respects: on appeal to the High Court, it was found that the Full Court had breached procedural fairness requirements and had made other errors, justifying the High Court in ordering a retrial.82 The unfortunate history of this case means that very little of value can be gleaned from it on the issue of liability for psychiatric injury caused by the fear of asbestos-related diseases.

Other jurisdictions [29.280] Other jurisdictions have given much more thorough consideration to the issue of the liability of employers for psychiatric injury caused by fear and worry of contracting asbestos-related diseases. 78

Maddalena v CSR Ltd [2004] WASCA 231 at [166].

79

Napolitano v CSR Ltd (unreported, WASC, No 1450 of 1994, 30 August 1994).

80

CSR Ltd v Thompson (2003) 59 NSWLR 77.

81

Tame v New South Wales (2002) 211 CLR 317: Maddalena v CSR Ltd [2004] WASCA 231 at [167]–[168].

82

CSR Ltd v Della Maddalena (2006) 80 ALJR 458. Kirby J (Gleeson CJ agreeing) dissented on certain issues but agreed in the overall result.

984

Part V: Some Special Cases

[29.290]

This question has now been fully examined by final appellate courts both in Ireland83 and in the United Kingdom.84 [29.290] Outside Australia, the earliest case to consider the question of liability for injury caused by worry and fear of future harm was Bryan v Philips New Zealand.85 As with many of the other cases in this area, the proceedings were interlocutory in nature, which may go some way to explain the lack of analysis. The plaintiff alleged that he was exposed to asbestos while employed as a gas bender by a company that made neon lights, and that his employer was in breach of the duty to provide a safe system of work. His statement of claim was struck out by a master on the ground that it failed to allege any identifiable deterioration in mental or physical well-being as a result of the exposure. The plaintiff applied for a review, and was allowed to file an amended statement of claim alleging actual damage to his epithelium and mesothelium. It was necessary for him to allege a present injury because s 17 of the Accident Rehabilitation and Compensation Insurance Act 1992 (NZ) denied a future cause of action if the existence of present injury could not be proved. The plaintiff argued that injury could take the form of lung damage, the medical costs of determining whether he had symptoms, and distress in knowing that it was statistically probable that he might get an asbestos-related disease. Barker J refused to strike out the claim. He held that the plaintiff could maintain a claim for lung damage if he could show the existence of pleural plaques, the minimum discernible injury caused by asbestos, and that the plaintiff could properly claim for the medical costs. As for the alleged distress, he held that this claim also should be allowed to proceed. [29.300] This is a remarkable decision. There was no allegation and no evidence before Barker J that the plaintiff had suffered a recognisable psychiatric illness, only that he had been distressed by knowing of the probability that he might develop an asbestos-related disease. Although this would ordinarily defeat a traditional psychiatric injury action, Barker J allowed the claim to proceed, based entirely on United States case law allowing recovery for emotional distress in so-called “cancerphobia”86 cases: The American cases make it clear that the fear of cancer has to be reasonable and causally related to the defendant’s negligence. That will be a matter for trial. I am not prepared to strike out the allegation of reasonable fear of cancer. “Cancerphobia” is not covered by the nervous shock cases which, as the Master said “involve(s) the sudden appreciation by sight and sound of a horrifying event which violently agitates the mind”. See McLoughlin v O’Brian 83

Fletcher v Commissioner of Public Works [2003] 1 IR 465.

84

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281.

85

Bryan v Philips New Zealand [1995] 1 NZLR 632.

86

This term was coined in the United States, being first used in Ferrara v Galluchio 152 NE 2d 249 (NY 1958). Like “AIDSphobia”, it is a misleading and inaccurate label, even in the United States context. It is often used there to refer to anxiety rather than a true phobia. Similarly, it must be distinguished from fear or worry of contracting cancer, ie emotional distress, which is compensable in certain United States jurisdictions: see [6.160].

[29.320]

29 Fear for the Future

985

[1983] 1 AC 410. Cancerphobia … is “merely a specific type of mental anguish or emotional distress”. It is a head of damage of the plaintiff and not of someone else who has witnessed a horrifying event.87

This decision was not underpinned by reference to any strands of authority from Commonwealth jurisdictions supporting a lowering of the damage threshold:88 it was based solely on United States doctrine that is fundamentally different from the law in other common law jurisdictions. Moreover, Barker J accepted that the fear of cancer had to be reasonable to be recoverable, without any discussion of the wisdom of incorporating this requirement into New Zealand law. In so far as his decision is consistent with repudiating the sudden shock requirement in fear for the future cases, it can be said that it is in line with Australian and other authority discussed at [29.100],89 but this consistency is at best accidental. [29.310] The approach adopted in Bryan v Philips New Zealand90 is undesirable and, it is suggested, misguided. What is objectionable is not that a claim for injury consequent on fear for the future has been allowed to pass through the interlocutory stages — indeed, this aspect of the decision is commendable — but that the “injury” is not actionable as the law now stands in the Commonwealth. Had the plaintiff alleged and adduced evidence of a present psychiatric disorder caused by the fear and worry of contracting cancer or some other asbestos-related disease, he should have been allowed to proceed to trial. Having failed to do this, that part of the claim should have been struck out. If the traditional psychiatric disorder requirement is to be modified, it should be done only after its implications have been thoroughly considered, and not as the result of an unexpected and unconsidered initiative.91 [29.320] In contrast to the Australian and New Zealand cases just dealt with, the Irish Supreme Court in Fletcher v Commissioners of Public Works92 subjected the issue of damages for psychiatric injury caused by fear and worry of future consequences to a detailed examination, against the background of a full consideration of most of the leading authorities on 87

Bryan v Philips New Zealand [1995] 1 NZLR 632 at 640.

88

See [6.190]–[6.440].

89

Eg APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633: see [29.100].

90

Bryan v Philips New Zealand [1995] 1 NZLR 632.

91

In Morris v Johnson Controls Ltd (2002) 169 Man R (2d) 183 a Master of the Manitoba Court of Queen’s Bench refused to strike out a statement of claim alleging that the plaintiffs had been exposed to asbestos fibres as a result of the defendant’s negligence and so were in fear of developing cancer or a related illness. The court found that Anderson v Wilson (1999) 175 DLR (4th) 409 (see [29.560]–[29.570]) offered some guidance; apart from citation of some United States authority, no other relevant case law was discussed. The unsophisticated level of the argument is underlined by the fact that the defendant’s main submission was that the claim should be struck out because the plaintiffs had failed to use the term “nervous shock”. 92

Fletcher v Commissioners of Public Works [2003] 1 IR 465, noted by P Handford (2003) 11 Tort L Rev 61.

986

Part V: Some Special Cases

[29.330]

psychiatric injury generally.93 Moreover, unlike Bryan v Philips New Zealand94 and many of the other authorities in which this issue has been aired, the court was not concerned with interlocutory issues or extending the limitation period. Its task was to consider the case on the merits and determine whether damages should be awarded. The plaintiff alleged that during the course of his employment by the defendants he was required to remove the asbestos lagging covering “an enormous and labyrinthine central heating system”. Despite evidence of a letter stipulating that workers should be supplied with appropriate protective clothing and washing facilities, nothing of this nature was provided and the plaintiff was not informed of the existence of asbestos or the risks of contact with asbestos dust. Over a four-year period the plaintiff was regularly exposed to asbestos dust and inhaled it in significant quantities. Eventually he became aware of the danger he was in and sought medical advice. He was told that, although exposed to the risk of asbestosis and lung cancer, he had not contracted either disease and it was unlikely he ever would. However, there was a very remote risk of contracting mesothelioma. This might not happen for at least 20 years, but if it happened the disease was almost always terminal. The plaintiff was angered and shocked on being informed that he had unnecessarily and without his knowledge been exposed to these risks, and in spite of various reassurances continued to worry about the possible danger to his health. Ultimately, a consultant psychiatrist diagnosed a reactive anxiety neurosis. The plaintiff sued his employers for negligently causing this illness. The trial judge, O’Neill J, said he was satisfied that the illness was the result of exposure to asbestos dust and not merely exposure to the knowledge of it, and awarded damages. The defendants appealed. [29.330] While setting the case in the context of the rules of negligence relating to liability for psychiatric illness, Keane CJ and Geoghegan J (with whose judgments the other members of the court concurred) both adopted the view that in dealing with liability for harm of this kind caused by fear of disease they were entering uncharted territory: existing case law, such as the court’s earlier decision in Kelly v Hennessy,95 the leading Irish case setting out the rules of recovery for psychiatric illness, in the context of an action by relatives for suffering caused by hearing about and then seeing the consequences of a road accident, might not be directly applicable. In the words of Geoghegan J: I take the view that Kelly v Hennessy does not govern these appeals. Whether one adopts the wider or narrower interpretation of Kelly v Hennessy to which I 93

Four other cases were considered by the Supreme Court at the same time as Fletcher v Commissioners of Public Works [2003] 1 IR 465. In these four cases, denials of liability having been withdrawn, damages were awarded: Commissioners for Public Works v Swaine [2003] 1 IR 521. There was no argument in these cases that there could be liability for psychiatric injury resulting from fear of contracting a disease: Commissioners of Public Works v Brewer [2003] IESC 51 per Geoghegan J.

94

Bryan v Philips New Zealand [1995] 1 NZLR 632.

95

Kelly v Hennessy [1995] 3 IR 253: see [3.670].

[29.340]

29 Fear for the Future

987

have already referred,96 the decision should only be taken to relate to accident damage. Given that the courts in all common law jurisdictions have always shown caution in relation to the circumstances in which damages for psychiatric injury can be recovered it is important to consider each kind of liability situation separately. Cases of a mother suffering from great shock on learning that her child has been killed in an accident have almost no factual connection with cases involving fear of disease not actually contracted arising from negligent exposure to such disease. Unless one puts all psychiatric injury on an exact par with all physical injury it makes little or no sense to regard these two examples as being analogous to one another in any relevant way.97

[29.340] While foreseeability of psychiatric injury was a minimum condition of recovery (and, according to the evidence, was established in this case), foreseeability alone did not give rise to a duty. Keane CJ expressed the additional requirement in terms of a “relationship of proximity”,98 recalling the approach of the Australian High Court in the time of Deane J,99 whereas Geoghegan J made mention not only of proximity but also of other factors such as reasonableness,100 seemingly preferring the current approach of the English courts.101 However, both judges clearly acknowledged the crucial role of policy considerations in determining whether it was appropriate to recognise this new kind of liability. For Keane CJ, two policy reasons combined to make it undesirable to allow the plaintiff’s claim. One was the undesirability of awarding damages to plaintiffs who had suffered no physical injury and whose psychiatric condition was solely due to the unfounded fear of contacting a particular disease: “A person who prefers to rely on the ill-informed comments of friends or acquaintances or inaccurate and sensational media reports rather than the considered view of an experienced physician should not be awarded damages by the law of tort.”102 The other was the potentially harmful result for health care, in that increased liability might result in reduced access to prescription drugs because of the prospect of lawsuits by patients who feared adverse effects. For these arguments the Chief Justice relied on a number of United States decisions that had been cited to the court.103 Geoghegan J also drew heavily on the policy reasons adduced in the American cases and emphasised the “objective irrationality” of the plaintiff’s fear of contracting asbestos-related diseases: 96

Geoghegan J had discussed whether the case only applied to secondary victim cases, or was of wider application: Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 493.

97

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 494.

98

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 473.

99

See [7.150].

100

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 491.

101

See [7.180].

102

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 484.

103

Particularly Majca v Beekil 682 NE 2d 253 (Ill 1997) and Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993).

988

Part V: Some Special Cases

[29.350]

In relation to the issue of reasonable foreseeability I would not attach significance to the irrationality aspect. There has been such alarming treatment by the media about asbestos that it would be reasonably foreseeable that a person of normal fortitude might seriously suffer from irrational fears of contracting the diseases. But that is quite different from saying that the irrationality is irrelevant to the questions at issue on this appeal. In my view it would be unreasonable to impose a duty of care on employers whether they be State or non-State (there being no known justification for making any distinction), insured or uninsured, to take precautions, not merely that their employees will not contract disease, but that they will not contract so serious a fear of contracting a disease, however irrational, that they develop a psychiatric overlay. The court should not permit compensation for irrationality in that way. It is quite different from the case of a plaintiff who suffers traumatic neurasthenia linked with physical illness directly resulting from an accident.104

[29.350] However, the possibility of a duty of care in respect of psychiatric injury caused by fear of disease was not entirely ruled out. Keane CJ said that though recovery should not be allowed where there is no more than “a very remote risk” of contracting the disease, “the law would be in an unjust and anomalous state if a plaintiff who was medically advised that he would probably suffer from mesothelioma as a result of his negligent exposure to asbestos could not recover damages for a recognisable psychiatric illness which was the result of his being so informed”.105 The tenor of Geoghegan J’s judgment suggests that he would probably agree. [29.360] The most important positive aspect of this decision is that both judgments stress that liability for the psychiatric consequences of fear of future disease is a new area, and that the legal position should not be determined by a simple application of traditional precedents dealing with shock caused by traffic accidents. Though the court did not undermine its own decision in Kelly v Hennessy106 upholding the sudden shock requirement, there is perhaps just a hint that it might not be relevant in situations such as this.107 On the other side of the ledger, while it would be wrong to ignore the policy considerations militating against recovery that won the day in this case, the heavy reliance placed on United States authorities led the court to place too much emphasis on the issue of irrationality. Had the court been referred to authorities from other jurisdictions, such as the judgment of Harper J in APQ v Commonwealth Serum Laboratories Ltd,108 it may have been dissuaded from going down this path. The problem of relying on American fear for the future 104

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 518.

105

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 485.

106

Kelly v Hennessy [1995] 3 IR 253.

107

Geoghegan J said that psychiatric illness caused by fear of disease cannot be said to have arisen suddenly: Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 505; Keane CJ at 486 referred to the work stress cases, where sudden shock does not play a part.

108

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

[29.380]

29 Fear for the Future

989

jurisprudence, apart from the sheer number of decisions and variety of positions taken by courts in different States, is that the cases generally permit recovery for emotional distress alone, whereas other common law jurisdictions uniformly require plaintiffs to prove a recognisable psychiatric illness as a condition of recovery. It appears that it is the prospect of wide-ranging liability for all emotional harm that causes United States courts to impose restrictions such as a need for actual exposure and that the fear should be objectively reasonable. Unfortunately, the result of Fletcher v Commissioners of Public Works109 is that restrictions imposed by United States courts contemplating liability for any form of emotional harm resulting from fear of disease have caused the Irish Supreme Court to place very narrow limits on recovery for recognisable psychiatric illness — a very different and much narrower category of tortiously caused damage. The court might have avoided this result if it had been made aware of the analysis of American authorities on emotional harm contained in the joint judgment of Gummow and Kirby JJ in Tame v New South Wales,110 wherein their Honours definitively stated that the Anglo-Australian authorities require recognisable psychiatric illness as the essential precondition of liability whereas the United States does not. [29.370] Given that this was the first occasion on which Irish courts had explored this area in any depth,111 the generally cautious approach of the court is probably understandable. Nevertheless, it is important to realise that what is in issue is the present reality of a diagnosable psychiatric illness. Whether the cause of that illness is something experienced in the past, or the possibility of dire future consequences hanging over the plaintiff as a result of exposure to risk due to the defendant’s negligence, should really not be determinative — and in the same way, the objective reasonableness of the fear should not really be a relevant consideration. It can at least be said that, while the ultimate rejection of the claim might be thought disappointing, the possibility of future claims succeeding in slightly different circumstances has not been ruled out.112 [29.380] In England (and Scotland), the leading case on fear for the future claims is now the decision of the House of Lords in Rothwell v 109

Fletcher v Commissioners of Public Works [2003] 1 IR 465 at 491.

110

Tame v New South Wales (2002) 211 CLR 317.

111

Geoghegan J referred to an unreported Northern Irish case, Bittles v Harland and Wolff plc [2000] NIJB 209 (see [27.260]). The court did not refer to Shiels v Minister for Finance (unreported, Irish HC, 2000 No 251 SP, 25 March 2001), where a police officer recovered damages after being stabbed with a needle while escorting prisoners, and endured several months’ anxiety about the possibility of contracting AIDS. I am indebted to Gillian Kelly, formerly of the Dublin bar, for drawing this case to my attention.

112

In Rafter v Attorney General [2004] IEHC 28, where the plaintiff was exposed to asbestos in the course of his employment, Finnegan J noted that recognisable psychiatric illness had not been pleaded, but given the uncertainty of the law prior to Fletcher v Commissioners of Public Works [2003] 1 IR 465, ordered that the action should be stayed rather than dismissed.

990

Part V: Some Special Cases

[29.390]

Chemical & Insulating Co Ltd.113 The claimants had been negligently exposed by their employers to asbestos dust during the course of their employment, and each had developed pleural plaques. These are the most common pathological effect of asbestos inhalation: they do not normally produce symptoms, or threaten or lead to other asbestos-related conditions, but provide evidence of exposure to asbestos. However, there was a risk that the claimants might develop asbestos-related diseases such as asbestosis or mesothelioma, and they claimed they had suffered anxiety as a result. In the cases of all the claimants except one, it was argued that pleural plaques could constitute actionable damage, or alternatively that the pleural plaques, the risk of developing one of the long-term asbestos-related diseases, and the anxiety suffered could be aggregated together to found a cause of action, even though none of these elements on their own amounted to damage for the purposes of the tort of negligence.114 The primary judge rejected the first argument but accepted the second. However, after full consideration, both arguments were comprehensively rejected by the English Court of Appeal (by majority)115 and the House of Lords.116 [29.390] The claim of Mr Grieves differed from the rest, because he relied on a report that stated that as a result of being exposed by two former employers to the risk of developing an asbestos-related disease he had developed a depressive illness. This claim therefore raised the issue of whether the court was prepared to recognise the existence of a duty of care in respect of a present psychiatric disorder caused by anxiety at the risk of developing a serious illness in the future. Though Mr Grieves’s 113

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281, noted by D Leczkiewicz (2008) 124 LQR 548; J Steele [2008] CLJ 28; see MA Jones, “Liability for Fear of Future Disease?” (2008) 24 PN 13; M Fordham, “Risk and Anxiety – Defining Damage in the Tort of Negligence” (2008) 50 Sing JLS 197. 114

Lord Hope of Craighead said (at [42]): “It would be easy to dismiss this argument by applying the simplest of all mathematical formulae: two or even three zeros, when added together, equal no more than zero.” (Note the comment on the case by B Barrett, “Zero + Zero + Zero = Zero” [2009] JBL 229.) However, his Lordship did not think this approach would do justice to what on the evidence was a genuine problem of legal analysis, and the issue was fully analysed in each of the four main opinions.

115

Rothwell v Chemical & Insulating Co Ltd [2006] ICR 1438. Smith LJ, dissenting, accepted that pleural plaques were sufficient to constitute actionable injury. 116

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281. Wright v Stoddard International plc (No 2) [2007] CSOH 173 was a Scottish case which raised the issue of liability for pleural plaques. The decision was held over to await the House of Lords decision in Rothwell. As it was bound to do, the court in Wright eventually held that the pursuer had suffered no harm and was therefore not entitled to damages. The decision in Rothwell was subsequently reversed by the Damages (Asbestos-related Conditions) (Scotland) Act 2009, providing that pleural plaques constitute a personal injury which is not negligible and therefore actionable under Scots law. In AXA General Insurance Ltd, Petitioners 2011 SC 662 the petitioners argued that the Act infringed their rights under Art 1 of the First Protocol of the European Convention on Human Rights and hence was outwith the legislative competence of the Scottish Parliament by virtue of s 29 of the Scotland Act 1998 (UK). This argument was rejected by the Inner House of the Court of Session and their decision was upheld in most respects by the Supreme Court: AXA General Insurance Ltd, Petitioners [2012] 1 AC 868.

[29.400]

29 Fear for the Future

991

claim succeeded at first instance, it failed before the Court of Appeal and the House of Lords. Importantly, however, in the House of Lords the appeal was dismissed because on the facts there was no basis for a finding that the creation of a risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude. The House did not go so far as to rule that no such claim could be recognised as a matter of law. [29.400] The claimant’s case was put in two ways. The problem was that there was no material on which to base a finding that Mr Grieves’s psychiatric injury was a reasonably foreseeable consequence of the defendant’s breach of duty. First, it was argued that since the claimant was a primary victim, the principle of Page v Smith117 was applicable: as long as some form of physical injury was foreseeable, the defendants would be liable for psychiatric injury even though it could not be said that psychiatric injury was foreseeable. This approach was rejected by Lord Phillips of Worth Matravers CJ, giving the majority judgment of the Court of Appeal, and all the judges in the House of Lords. Lord Phillips suggested that the Page v Smith test was applied in the context of a road traffic accident in which the plaintiff was a participant, and that it could not properly be extended to make a defendant who negligently exposed the claimant to the risk of contracting a disease liable to psychiatric injury caused by the fear of contracting the disease.118 The distinction between the two cases was supported primarily by reference to the zone of danger test adopted by the United States Supreme Court in Norfolk & Western Railway Co v Ayers,119 which, as suggested at [29.260], may be suspect. However, the House of Lords judgments did not rely on such reasoning, instead distinguishing Page v Smith on causation grounds. Lord Hoffmann said: In the present case, the foreseeable event was that the claimant would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event has not occurred. The psychiatric injury has been caused by apprehension that the event may occur. The creation of such a risk is … not in itself actionable. I think it would be an unwarranted extension of the principle in Page’s case to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened.120

Lord Hope of Craighead put it a little differently, suggesting there were two reasons for distinguishing Page v Smith: First, the factor that precipitated Mr Grieves’s psychiatric illness was not a stressful event caused by the breach of duty, such as the accident which gave rise to Mr Page’s nervous shock. … 117

Page v Smith [1996] AC 155.

118

Rothwell v Chemical & Insulating Co [2006] ICR 1438 at [88]–[90].

119

Norfolk & Western Railway Co v Ayers 538 US 135 (2003).

120

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [33].

992

Part V: Some Special Cases

[29.410]

Secondly, the causal chain between his inhalation of the asbestos dust and the psychiatric injury is stretched far beyond that which was envisaged in Page’s case. That case was concerned with an immediate response to a sudden and alarming accident, for the consequences of which the plaintiff had no opportunity to prepare himself. In this case Mr Grieves inhaled asbestos dust for about eight years. It was not until the end of the period that he became worried.121

Lord Rodger of Earlsferry drew attention to a further point made by counsel for the defendants: Mr Kent QC drew attention to a further, associated, point of distinction. In Page’s case the mechanism (the crash) which caused the onset of the plaintiff’s psychiatric harm was the same mechanism as had been liable to result in physical harm to him. Here, by contrast, the mechanisms are different. The risk that Mr Grieves would develop asbestosis or mesothelioma was caused by the defendant’s wrongdoing. On the other hand, his depression is due to his doctor intervening to tell him about the plaques and to the events following on that, including, possibly, some misinformation provided to him by other people. The distinction confirms that an award of damages for Mr Grieves’s illness would go further than the award for the plaintiff’s illness in Page’s case.122

Lord Hoffmann and Lord Rodger123 both referred with approval to the grounds on which Page v Smith had been distinguished by Morland J in CJD Group B Plaintiffs v Medical Research Council.124 Though Lord Hoffmann suggested Page v Smith had not caused practical difficulties,125 Lord Hope and Lord Mance suggested that the correctness of the decision be left open.126 [29.410] The second argument advanced on behalf of Mr Grieves was that, despite the evidential difficulties, psychiatric illness was foreseeable. Here again, there was some divergence of approach in the way the judges tackled this issue. For Lord Phillips in the Court of Appeal127 and Lord Hoffmann in the House of Lords,128 this question called for the application of the principles applicable to stress at work cases as outlined by Hale LJ in Hatton v Sutherland.129 Lord Scott agreed with this approach.130 For Lord Hoffmann, even though the judgment was concerned with psychiatric injury caused by subjecting an employee to 121

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [53], [55].

122

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [96]. Lord Scott of Foscote made the same point at [77]. 123

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [34], [95].

124

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161.

125

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [32].

126

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [52], [104]. See [3.220].

127

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [92]–[94].

128

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [24]–[27].

129

Hatton v Sutherland [2002] ICR 613.

130

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [75]. Lord Scott, however, suggested that Mr Grieves might have a remedy for breach of contract: see [29.530].

[29.420]

29 Fear for the Future

993

occupational stress, the general principles were applicable to psychiatric injury caused by any breach of duty on the part of the employer. Hale LJ had said that the threshold question was whether this kind of harm to this particular employee was foreseeable, and she had rejected an undiscriminating application of the ordinary fortitude test because the employer’s duty was owed to each employee. However, in the absence of some particular problem or vulnerability, the employer was entitled to assume that the employee could withstand the normal pressures of the job.131 Lord Hoffmann said: Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude. In the present case, the employer would be unlikely to have any specific knowledge of how a particular employee was likely to react to the risk of asbestos-related illness more than 30 years after he had left his employment. An assumption of ordinary fortitude is therefore inevitable.132

Lord Hoffmann confirmed the Court of Appeal’s decision that there was no basis for a finding that the event that happened (the creation of a risk of asbestos-related disease) would cause psychiatric illness to a person of reasonable fortitude.133 In reaching this conclusion, Lord Phillips had also relied strongly on the Irish Supreme Court’s decision in Fletcher v Commissioners of Public Works.134 [29.420] Lord Hope and Lord Rodger did not find it necessary to invoke the principles of Hatton v Sutherland.135 They nevertheless concluded that on the available evidence it could not be said that Mr Grieves’s illness was a reasonably foreseeable consequence of the defendants’ breach of duty.136 The way in which Lord Rodger put the claimant’s case is of considerable interest: the claimant, he said, was arguing that he could claim damages for the depression and associated symptoms he developed as a result of being told about the plaques on his pleura.137 He continued: [W]hat he asserts is the very different duty to take reasonable care not to cause him psychiatric harm as a result of learning of the risk that he would develop these illnesses. Again, in my view, it would be anomalous to recognise such a duty when the law considers that the risk itself is not actionable. That can only be because the law proceeds on the view that ordinarily people in such a situation can be expected to handle that information, very unpleasant thought it is, without suffering any morbid effects.138 131

Hatton v Sutherland [2002] ICR 613 at [23], [29].

132

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [25]–[26].

133

Hatton v Sutherland [2002] ICR 613 at [30].

134

Fletcher v Commissioners of Public Works [2003] 1 IR 465.

135

Hatton v Sutherland [2002] ICR 613.

136

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [57], [99]. Lord Mance did not deal with this issue. 137

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [93]–[94].

138

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [99].

994

Part V: Some Special Cases

[29.430]

It seems that Lord Rodger’s finding that the harm was not foreseeable may have been influenced by the prevailing English and Scottish denial of liability for psychiatric injury caused by third party communication. [29.430] The conclusion must be that at present there is an unpromising outlook for fear for the future mental harm claims against employers who expose their employees to a risk of asbestos-related diseases. A lot will depend on the available evidence in any particular case, and it may be that particular facts will be strong enough to satisfy the foreseeability test. However, no case in which the issue has been properly considered has succeeded, either in Australia or elsewhere; and two important decisions by final appeal courts present a considerable barrier to further developments.

MEDICAL NEGLIGENCE: FEAR OF AIDS AND OTHER DISEASES Australia [29.440] The prospects for fear for the future liability in the context of claims for medical negligence may hold out a little more promise than the cases just considered. The views expressed by Harper J in APQ v Commonwealth Serum Laboratories Ltd139 were considered by another Australian judge in a somewhat different context in Fritz v Queensland Corrective Services Commission.140 Derrington J refused to strike out a claim for psychiatric illness allegedly caused by fear of contracting AIDS after the plaintiff had been incarcerated with prisoners who were HIV positive or had full-blown AIDS. Although a number of so-called “AIDSphobia”141 suits have proceeded to judgment in the United States, this was the first Australian decision (albeit interlocutory) discussing the issues raised where plaintiffs make claims for mental injuries caused by fear of exposure to HIV or AIDS. The plaintiff alleged that while imprisoned the defendant negligently caused him to be incarcerated in a section of the prison reserved for infected inmates and that certain events occurred that aggravated his perception that he was at risk of infection.142 What these events were cannot be discerned from the judgment. It was said that anxiety and stress associated with fear and worry that he may have 139

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

140

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995).

141

This Americanism is a misleading and inaccurate label, even in the United States context. It is used there to refer to anxiety rather than a true phobia. More fundamental is the need to distinguish the term from fear or worry of contracting AIDS, ie emotional distress (which is compensable in certain United States jurisdictions: see [6.160]). In Commonwealth jurisdictions, if used at all, the term should be used to refer to the recognised psychiatric consequences of that fear and worry.

142

Note generally I Malkin, “Tort Law’s Role in Preventing Prisoners’ Exposure to HIV Infection while in Her Majesty’s Custody” (1995) 20 MULR 423.

[29.450]

29 Fear for the Future

995

contracted AIDS caused the plaintiff longstanding and continuing psychiatric injury. It appeared that these concerns had not materialised. [29.450] Derrington J had to deal with a suggestion that has preoccupied United States courts and obscured the critical issues raised by fear for the future claims: that the plaintiff’s fear and worry was irrational and unreasonable and the duty to take care for his safety did not extend to protecting him from mental injury consequent on this reaction. In his Honour’s words, it was a fundamental first principle of negligence law that the duty of care extended to “include protection in respect of any vulnerability to irrational or unreasonable reactions that could be reasonably foreseeable in an ordinary person”.143 Once the foreseeability test was satisfied, tortfeasors must take their victims as they find them, whether susceptible to mental illness or psychiatrically robust.144 What mattered was the fact that the claimant had been psychiatrically injured as a result of the tortfeasor’s carelessness; whether this should have happened was irrelevant. Derrington J saw the case as analogous to APQ v Commonwealth Serum Laboratories Ltd,145 and the most significant aspect of his judgment was the way in which the sudden shock requirement was diluted in this context. The defendant had questioned whether the plaintiff’s claim was one for “true nervous shock”. Derrington J responded: It is said that shock in this context means the sudden sensory perception of a distressing event which causes the recognisable psychiatric illness. … While this may be so in respect of psychiatric injury resulting from sudden shock, the distinction might not exclude a claim for a similar injury caused by placing a person into a position of great traumatic stress, such as fear or high anxiety, perhaps repeatedly even though there is no suddenness or surprise. There would be close analogy in the impact, which seems to be at the root of liability in this area. This must be distinguished from the ordinary stress or anxiety of life, sadness, distress or unhappiness. If it is analogous to nervous shock in traumatic quality and degree so that it differs from the ordinary unhappy vicissitudes of life, however stressful, there is no reason why the harm is compensable as with nervous shock. While in the latter class of case there is good reason for requiring suddenness or surprise because shock is the factor of the trauma which causes the compensable harm, suddenness is not necessary to great fear or high anxiety which might equally cause the same harm. It would be remarkable if a party could recover damages for psychiatric harm caused by sudden fear of death, say by crushing, but not if the fear grew to the same or greater intensity because it was slow in its realisation. In such circumstances the duration of the life-threatening feature associated with its appearance may have a greater impact. While the limitation of this cause of action is largely dictated by policy 143

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995), citing Jaensch v Coffey (1984) 155 CLR 549 at 568 per Brennan J.

144

See [8.280]–[8.380].

145

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

996

Part V: Some Special Cases

[29.460]

considerations having their source in other factors, there would not seem to be sufficient weight in that direction to overcome the logic of the analogy here.146

[29.460] Derrington J said that it followed from this argument that the matter should go to trial, since it could not be said that the cause of action was so clearly untenable that it could not possibly succeed. His statement identified precisely that although it may be difficult to accommodate fear for the future claims within the framework of traditional doctrine, there was no sound reason for denying recovery once the essential prerequisites of a psychiatric injury claim were satisfied. As in the CJD cases, the relationship between the parties would seem to be an important factor in the ultimate decision that if the foreseeability requirements are satisfied, there is justice in the recognition of a fear for the future claim. [29.470] The need for reassessing conventional wisdom and bringing a new focus to bear on claims for psychiatric injury rooted in the trauma of what may happen, rather than what has happened, is well illustrated by the claim in Graham v Australian Red Cross Society.147 The two interlocutory decisions available involved a successful application for extension of the relevant limitation period148 and an unsuccessful application to strike out the statement of claim based on the alleged failure to disclose a reasonable cause of action.149 The proceedings arose in unusual circumstances. In December 1985 the plaintiff donated blood to the Australian Red Cross. He was informed by doctors working for the Red Cross that he was HIV positive even though he was not in any known risk group and believed that he had not been exposed to the virus. He alleged that he suffered serious mental disorder due to fear that he was going to die from AIDS. A subsequent test in March 1986 confirmed his antibody-positive status, causing a worsening of his mental state. It was alleged that sometime after these events the defendant became aware or ought to have become aware that the diagnosis might have been incorrect, but failed to locate and advise the plaintiff of this fact, with the result that he continued to suffer psychiatric injury due to the belief that he was due to experience an unpleasant and unavoidable death. Approximately seven years later, having remained symptomless, on the urging of his de facto wife he submitted to a further test at a different agency. This indicated that he was not HIV positive. He allegedly suffered further mental injury on the receipt of this good news, due to an appreciation of the years lost through constant fear and worry. [29.480] It should be noted that the plaintiff did not allege that the initial medical advice was negligent: that is, that testing was known to be 146

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995).

147

Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994).

148

Graham v Australian Red Cross Society (unreported, Tas SC, No M334 of 1993, 31 January 1994).

149

Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994).

[29.490]

29 Fear for the Future

997

unreliable and he was not informed of this fact.150 Nor did he allege that there was a want of due care in the administration of the test and the interpretation of the results. Apart from the difficult problem of proving that those who provided advice in December 1985 did so in a manner inconsistent with the state of medical knowledge at the time, a claim of this nature was not open to the plaintiff because the limitation period had expired. In Tasmania, at the relevant time, the limitation period for personal injury claims was three years, and could be extended by an additional three years but no further.151 The claim filed on 31 May 1993 was therefore confined to psychiatric injury allegedly suffered since 1 June 1987. The allegation against the defendant was that after the tests undergone by the plaintiff, medical science progressed to the stage where it became known that the testing procedures used in 1985 were not reliable and were capable of producing false positive results. It was alleged that the defendant became aware or ought to have become aware in the light of improving medical knowledge that the initial diagnosis may have been inaccurate and that it should therefore have contacted the plaintiff, informed him of this possibility and urged him to undergo another test. The plaintiff sought compensation for psychiatric injury caused by this unnecessary and negligently prolonged medical suffering. [29.490] Without discussing any of the relevant authorities or literature, Cox J in a very brief judgment dismissed the strike-out application. Even taking into account the interlocutory nature of the proceedings, it is possible to gain the impression that his Honour, with respect, did not fully appreciate the significance of imposing liability in these circumstances. Nor does counsel for the defendant appear to have appreciated the strength of his case. A more generous interpretation is that the approach adopted is indicative of a long overdue relaxation of the orthodox limitations on liability. Cox J said: It is not alleged that the initial advice was given negligently in the sense that the test was known to be unreliable and he was negligently not acquainted with that fact. Had that been the case, however, I think the facts alleged above clearly enough would have supported an inference that a reasonable person in the defendant’s position would foresee that carelessness in imparting such advice without qualification might be likely to cause the plaintiff damage. It is difficult to see how, when knowledge was subsequently acquired as to the unreliability of the initial test and the defendant had the means of acquainting the plaintiff of that fact and of giving him the opportunity to undergo a further test which in the event would have dispelled the stressful condition he was suffering, that duty could be said no longer to exist. Whether the court at trial will in fact draw such an inference remains to be seen.152

150 Compare Chizmar v Mackie 896 P 2d 196 (Alaska 1995) (liability for emotional distress caused by negligent misdiagnosis that plaintiff had AIDS). 151

Limitation Act 1974 (Tas), s 5(1), (3).

152

Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994).

998

Part V: Some Special Cases

[29.500]

[29.500] Tragically, Mr Graham subsequently committed suicide. This meant that the case was never finally resolved,153 and so whether the trial court would have drawn the suggested inference will never be known. But it seems highly doubtful that it would have done so, especially in the context of the pre-2002 Australian common law that appeared to require that psychiatric injury be caused by a sudden shock and had not clearly ruled out the need for direct perception, as opposed to communication from a third party.154 It is difficult to see how it can be said that separate and identifiable mental damage to the plaintiff was foreseeable as a consequence of an omission to locate him, inform him of the possibility of an incorrect diagnosis and encourage him to undergo further testing. Foreseeability of the infliction of psychiatric injury as a result of these failures to act is a very different matter from foreseeability of the continuation of a pre-existing injury if contact with the plaintiff is not made. Unless it is possible to establish that continuation of a pre-existing mental injury is a compensable loss in its own right, the first requirement of foreseeability, that actionable harm to the plaintiff was foreseeable as a result of the defendant’s want of care, will not be satisfied. Further, if mental harm is required to be “shock-induced”, it is likely that the plaintiff’s claim would have been rejected on the basis that such harm was not foreseeable as a result of the defendant’s alleged negligence. It is most unlikely that courts would hold that the reasonable blood transfusion service or the reasonable medical practitioner should foresee that shock-induced psychiatric injury is a likely consequence of failing to locate past donors diagnosed HIV positive, inform them that the test may have been inaccurate and encourage them to be retested. Prolonged suffering from pre-existing mental disorder consequent on these omissions is foreseeable, but not sudden damage of this nature. Even if this hurdle could have been overcome, it is likely that traditional notions about proximity of time and space and the means of communication of trauma would have defeated the claim. The plaintiff did not “perceive” any traumatic stimuli as a result of the defendant’s failure to locate him. There was no shocking event to perceive. The running of the limitation period meant that it was impossible to recover for any psychiatric injury sustained on the initial receipt of the information that he was HIV positive, and so the question whether it was possible to recover for psychiatric injury caused solely by what a claimant was told by another could not arise. It could not even be said that the damage suffered after 1 June 1987 arose as a result of the combination of what he was told and what he saw: it was what he was not told that was alleged to be significant.

153

For this additional information I am indebted to Mr Richard Howroyd of Bennett Howroyd, Hobart, solicitors to Mr Graham.

154

See [2.120]–[2.140].

[29.520]

29 Fear for the Future

999

[29.510] The best that can be said about Graham v Australian Red Cross Society155 is that if it had been possible for the case to have been litigated in the post-Tame v New South Wales156 environment, after the High Court had recognised that sudden shock and direct perception were not inflexible requirements of liability for psychiatric injury,157 and if the plaintiff had had the benefit of more enlightened limitation rules that would have permitted extension of the limitation period to allow him to claim for his initial trauma on being told that he was HIV positive, magnified and prolonged by the defendant’s subsequent failures, there would have been more prospects of a successful outcome. The case serves as a reminder that rigid judicial adherence to existing rules may result in otherwise deserving claims falling through the gaps. APQ v Commonwealth Serum Laboratories Ltd,158 CJD Group B Plaintiffs v Medical Research Council159 and Fritz v Queensalnd Corrective Services Commission160 show that courts faced with a new class of claim are prepared to abandon irrelevant requirements — all the more so, it appears, because the plaintiffs in these cases were primary rather than secondary victims of the defendants’ alleged want of care,161 and because the parties were in a particular relationship rather than being strangers to each other. Mr Graham, assuming he was able to prove the facts alleged, was just as deserving of a verdict in his favour, and it would be sad if legal niceties were allowed to defeat such a claim.

Other jurisdictions [29.520] Outside Australia, the medical negligence claims for mental harm caused by fear of AIDS and similar diseases are a mixed bag. The Northern Ireland first instance case of Fryers v Belfast Health and Social Care Trust162 suffered from failure to identify the real issues involved. The plaintiff sustained a needle stick injury from a used injection needle during the course of his employment as a ward bedside hygiene operative at the defendant’s hospital. The needle penetrated his skin, causing bleeding. Prophylactic treatment and blood tests were administered, and it was later determined that there was no risk of him developing a disease consequent on the penetration of his skin. However, he developed an adjustment disorder as a result of apprehension that he might develop a serious disease such as AIDS. He sued his employers in tort in the Belfast 155

Graham v Australian Red Cross Society (unreported, Tas SC, No 613 of 1993, 3 June 1994).

156

Tame v New South Wales (2002) 211 CLR 317.

157

Tame v New South Wales (2002) 211 CLR 317.

158

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633.

159

CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161.

160

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995).

161

Though in CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 Morland J ruled that the plaintiffs were not primary victims in the Page v Smith sense: see [29.190].

162

Fryers v Belfast Health and Social Care Trust [2009] LS Law Med 345.

1000

Part V: Some Special Cases

[29.530]

County Court, and on appeal to the High Court was allowed to add a claim in contract. Gillen J confirmed the dismissal of the tort claim by the County Court judge. Though the defendant had been negligent in exposing the plaintiff to the risk of a needle stick injury, penetration of the skin by the needle was trivial and non-actionable, so the negligence had not resulted in damage. The creation of a risk of development of disease was not actionable, because it was not reasonably foreseeable that a person such as the plaintiff would be caused psychiatric injury in this way. The plaintiff was only a potential tort victim, one of an indeterminate group who might at some point suffer damage as a result of “a tortuous [sic] conduct”.163 The plaintiff’s argument based on Page v Smith164 was rejected: the judge said that the plaintiff was not within the zone of danger or placed at immediate risk of physical harm, and so did not fulfil the criteria for being categorised as a primary victim in Lord Lloyd’s sense of that term. These references to Page v Smith show the artificiality of trying to apply the doctrine of that case to situations far removed from the original fact situation for which it was created. Gillen J cannot be criticised for this: judges in United Kingdom fear for the future cases have consistently refused to extend Page v Smith to that scenario. Otherwise, however, Gillen J’s judgment suggests a failure to appreciate the special nature of cases of this kind.165 [29.530] Though according to Gillen J no damages were available in tort, his Lordship found another way to provide the plaintiff with a remedy. In Rothwell v Chemical & Insulating Co Ltd,166 Lord Scott of Foscote had suggested that Mr Grieves in that case should have been able to sue his employers for breach of their contractual duty of care. Since breach of contract was actionable without proof of damage, damages could be awarded in contract for subjecting an employee to the risk of contracting a life-threatening disease at some future time. Since Rothwell was not argued on the basis of breach of contract, Lord Scott’s suggestion was merely obiter. However, Gillen J had allowed Mr Fryers to add a claim for breach of contract, and found that the defendant was in breach of its contractual duty to him. It was within the defendant’s contemplation that needle stick injuries could cause personal injury, and so damages could be awarded for breach of contract where the breach of a contractual duty of care caused recognised psychiatric injury.167 [29.540] When the defendant appealed to the Northern Ireland Court of Appeal, the court adopted an entirely different attitude to the facts of the 163

Fryers v Belfast Health and Social Care Trust [2009] LS Law Med 345 at [11].

164

Page v Smith [1996] AC 155.

165

See the comment by NJ Mullany at [2009] LS Law Med 351.

166

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 at [74].

167

On the policy issues involved in whether damages should be awarded in contract if the court is not prepared to award damages in tort, see C McKay, “Concurrent Liability in Claims for Loss of Chance of a Better Medical Outcome” (2012) 20 TLJ 29; J Edelman, “Loss of a Chance” (2013) 21 TLJ 1.

[29.550]

29 Fear for the Future

1001

case. The court ruled that because the needle was not a sterile needle, the injury was not a trivial one. The plaintiff had established a breach of duty resulting in physical damage. As to the extent of that damage, the defendant had to take the plaintiff as it found him. If physical injury was foreseeable, as it was here, in the view of the Court of Appeal, there was no onus on the plaintiff to prove that the defendant should have foreseen psychiatric illness, and Page v Smith168 was irrelevant. Given the court’s conclusion as to the tort claim, there was no need to consider whether Gillen J had adopted the correct approach to the contract claim. The recognition by the Court of Appeal that Mr Fryers had suffered damage when the needle pricked his skin made this a very simple case. [29.550] The next case to raise fear for the future issues in this context was a Scottish case, Pratt v Scottish Ministers.169 The issue for Lord Emslie was whether to allow proof before answer, and his decision was that on proof of the plaintiff’s averments the claim would not necessarily fail, so the authority of the case may be limited, but the decision is nonetheless encouraging. The pursuer, a prison officer, in the course of intervening in a fight between prisoners, ingested blood from one of them, who was known to be an injecting drug user. Some prisoners were known to be infected with hepatitis B, hepatitis C and HIV. The pursuer underwent blood tests, which eventually showed him to be free of disease, but he nevertheless developed a moderate depressive disorder causing him to take time off work and eventually to retire on the ground of ill-health. The prison service had a counselling and support system for such cases, but the pursuer was unaware of this, and said that had he known of it his mental illness would have been avoided or reduced. The defenders were at pains to argue that fear for the future claims were not actionable, and that to recognise such claims would open the floodgates. There was no recognised category of psychiatric injury liability into which this case could be placed. Counsel for the pursuer on the other hand relied on the general principle of Caparo Industries plc v Dickman,170 averring that psychiatric injury was not only foreseeable but had been foreseen because the defenders had established a counselling system, the employer–employee relationship supplied the requirement of proximity, and the imposition of liability would be fair, just and reasonable. Lord Emslie adopted an approach somewhere in between these two positions. He accepted that this was not a secondary victim case, and that Page v Smith171 could not assist the pursuer, given the approach to that case adopted in Rothwell v Chemical & Insulating Co Ltd.172 However, following the lead of Lord Hoffmann in that case, he was prepared to 168

Page v Smith [1996] AC 155.

169

Pratt v Scottish Ministers 2009 SLT 429.

170

Caparo Industries plc v Dickman [1990] 2 AC 605.

171

Page v Smith [1996] AC 155.

172

Rothwell v Chemical & Insulating Co Ltd [2008] AC 281.

1002

Part V: Some Special Cases

[29.560]

apply the guidelines formulated by Hale LJ in Hatton v Sutherland:173 Lord Hoffmann had emphasised that they covered not merely exposure to work stress but also other breaches of duty by an employer. Looking at the Caparo criteria, proximity was met by the existence of the employer–employee relationship, and the “fair, just and reasonable” requirement was probably not difficult to satisfy, given that the defender had failed to implement the counselling system that had been put in place for purposes such as this. The averments of foreseeability were sufficient to allow proof before answer. Rothwell could be distinguished because in that case supervening psychiatric illness could not have been foreseen at the outset. It is clear that as regards foreseeability the decisions in both Rothwell and Pratt depend on what was adjudged to be foreseeable in the particular circumstances of the case, but Pratt shows that liability for “fear for the future” mental harm in medical situations has not been ruled out in Scotland.174 [29.560] Canadian courts have also confronted the problem of fear for the future caused by medical negligence, albeit in the rather specialised context of determining which plaintiffs qualified for certification under class actions legislation. In Anderson v Wilson,175 two people infected with hepatitis B applied for certification under the Class Proceedings Act 1992 (ONT) in proceedings against a doctor and a technician who operated a clinic that provided electroencephalogram tests. Public health authorities had informed some 18,000 patients about a possible link between the clinic and an outbreak of hepatitis B. A first instance judge certified the plaintiffs to represent all persons who had been patients at the clinic who had contracted hepatitis B, all persons who had contracted the disease from one of these patients, and patients who had been sent notices by public health authorities and had been tested but did not have hepatitis B. The basis of the claims by those in the third group was “nervous shock, ie the psychological trauma of being told of the possibility of infection and the resultant uncertainty as to their condition until they received negative test results”.176 The defendants appealed the certification to the Ontario Divisional Court, which held that there were sufficient common issues to certify the patients in the first two classes, but struck out the claims of patients who were tested but did not contract hepatitis B as disclosing no reasonable cause of action.177 On further appeal, the Ontario Court of 173

Hatton v Sutherland [2002] ICR 613.

174

Note that a Zambian court has also accepted that there may be liability for present psychiatric injury caused by feared exposure to AIDS: Mosho v Phiri [2011] ZMHC 51, where after the parties were married the plaintiff learnt that her husband had concealed his HIV positive status. Chishimba J recognised that this was a novel claim, and referred to Fletcher v Commissioner of Public Works [2003] 1 IR 465 and various United States fear-for-the-future cases. She was prepared to accept that in such a case the plaintiff was entitled to damages for “nervous shock”.

175

Anderson v Wilson (1999) 175 DLR (4th) 409.

176

Anderson v Wilson (1999) 175 DLR (4th) 409 at [8] per Carthy JA.

177

Anderson v Wilson (1998) 156 DLR (4th) 735.

[29.580]

29 Fear for the Future

1003

Appeal ruled that the Divisional Court had been wrong to put this class aside. It was arguable that the defendants’ negligence had the foreseeable consequence that notice would be given to patients saying that they needed to undergo a test, and that some people would suffer shock as a result of the notice. The claimants were limited to this group, so there was no risk of an ever-widening circle, and no policy concern to justify excluding recovery. [29.570] One reason why the Divisional Court struck out the claims of those in the third group was that there was no allegation that any of these plaintiffs suffered a recognisable psychiatric illness, and that the law did not award damages for mental distress standing alone. The court acknowledged the softening of this requirement undertaken by Molloy J in Mason v Westside Cemeteries Ltd,178 but were of the opinion that while such changes could take place incrementally on a case-by-case basis it was not appropriate to consider such an extension of the law in a mass claim with over 10,000 claimants. However, the Court of Appeal said that although the House of Lords had decided that emotional suffering without psychiatric symptoms did not qualify for tort relief,179 Molloy J and another Ontario first instance judge180 had held to the contrary, and therefore the position in Ontario was uncertain. In view of this, it was not appropriate that the court should reach the conclusion that these claims were untenable at this early stage and without a complete factual foundation. [29.580] Whether or not the law should permit compensation for mental distress short of psychiatric injury is not the question being debated here. But, as the other cases discussed in this chapter show, it is not inconceivable that fear for the future may result in present psychiatric illness. The importance of Anderson v Wilson181 is that it shows that appellate judges in at least one Canadian jurisdiction are not prepared to ignore the possibility that mental harm caused by exposure to possible future illness may give rise to a legitimate claim. The same can be said of the first instance decision of Brockenshire J in an earlier case, Nantais v Telectronics Pty (Canada) Ltd,182 where the issue was whether, in a class action on behalf of the recipients of pacemakers with defective wiring, persons whose pacemakers had not failed could be part of the class. His Lordship held that these persons could be included. He rejected defence arguments that the law did not recognise claims for fear of what might happen in the future. Page v Smith183 was not an appropriate analogy: “Here closer analogies would be with women implanted with faulty 178

Mason v Westside Cemeteries Ltd (1996) 135 DLR (4th) 361: for the Canadian position regarding damages for mere mental distress, see [6.260]–[6.410]. 179

Referring to White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

180

Cosgrove J in Vanek v Great Atlantic and Pacific Co of Canada [1997] OJ No 3304.

181

Anderson v Wilson (1999) 175 DLR (4th) 409.

182

Nantais v Telectronics Pty (Canada) Ltd (1995) 127 DLR (4th) 552.

183

Page v Smith [1996] AC 155.

1004

Part V: Some Special Cases

[29.590]

breast implants, persons negligently rendered HIV positive, or perhaps property owners enduring a continuous nuisance from an adjoining property.”184

MARALINGA: FEAR OF RADIATION-INDUCED CANCER [29.590] The nuclear test explosions carried out at Maralinga, South Australia, in 1956 and 1957 gave rise to a series of “cancerphobia” suits in the Federal Court of Australia by former military personnel involved with or present at the detonations. Two of the decisions were concerned with the obvious limitation of actions difficulties engendered by claims alleging tortious conduct committed 40 years earlier.185 Though most of these proceedings did not progress beyond the preliminary stages, they provide further insight into the ways in which courts deal with fear for the future claims. Regrettably, the approach taken was not as enlightened as that of Harper J and Derrington J in other Australian cases.186 [29.600] In Sandstrom v Commonwealth,187 Leold Sandstrom failed to persuade Foster J to extend the applicable limitation period.188 He was a driver in the army, and it had been his responsibility to drive high ranking army officers to observation sites to witness the tests. He was present at a test carried out in July 1956 and observed the detonation of an atomic bomb from a distance of 9 miles. The day after the explosion, he was required to drive the officers back to the test site to observe the damage. He alleged that these experiences and his consequent fear of developing cancer caused him to suffer psychiatric injury. The exposures had not physically harmed him in any way, and he made no claim for radiation damage or genetic impairment. In contrast to the approach taken in APQ v Commonwealth Serum Laboratories Ltd189 and Fritz v Queensland Corrective Services Commission,190 Foster J emphasised the need for proof of mental injury attributable to “nervous shock” as defined by 184

In Doucette v Eastern Region Integrated Health Authority 2007 NLTD 138, certification was granted to a group of women who had been screened for breast cancer, after some had been found negative and then converted to positive using a different test. Thompson J held that women who suffered mental distress or nervous shock on learning that retesting was taking place could be included. The judgment does not clearly identify fear for the future as a distinct category of case.

185

Note also the earlier case of Southworth v Commonwealth (1992) 35 FCR 578, where there was no claim for psychiatric injury. The deceased died from pancreatic cancer allegedly caused by atomic tests carried out at Maralinga in 1956, and his widow brought an action under the Compensation to Relatives Act 1897 (NSW). Her request for an extension of the limitation period was granted by Foster J. 186

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633; Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995).

187

Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994).

188

Limitation Act 1969 (NSW), ss 58(2), 60F and 60G.

189

APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633: see [29.100].

190

Fritz v Queensland Corrective Services Commission (unreported, Qld SC, No 556 of 1993, 24 April 1995): see [29.450].

[29.610]

29 Fear for the Future

1005

Brennan J in Jaensch v Coffey.191 The distinction between the circumstances of those cases and the case before Foster J is obvious: it is not difficult to imagine how witnessing a nuclear explosion could constitute a sudden assault on the senses. The evidence, however, was that Mr Sandstrom, while “frightened”, was not immediately emotionally or psychiatrically disturbed by what he saw; indeed, he drove back to the test site the next day, apparently unshaken by the experience. Neither the detonation nor the return to the test site were traumatic ordeals for him. There was no evidence of “delayed shock”. Although there may have been other personnel whose senses were violently and immediately affronted by what they perceived, the Maralinga claims should not hinge on initial reactions to the explosions. The insistence on sudden shock obscured the true nature of psychiatric injury claims generally and, as Harper J and Derrington J have observed, fear for the future claims specifically. It was inconsistent with the psychiatric literature and ignored the considerable body of medical and other informed opinion that sudden trauma is neither a necessary nor a sufficient control for psychiatric disorder.192 [29.610] Not only did the relevant events fail to “shock” Mr Sandstrom; his alleged psychiatric injury occurred years later. His mental state began to deteriorate after he left the army in 1958, but the diagnosis that he was suffering from post-traumatic stress disorder and phobic anxiety disorder was not made until 1993, a diagnosis not free from difficulty.193 Without resolving the matter, Foster J opined that the plaintiff would face serious factual difficulties in establishing that he had sustained psychiatric injury through nervous shock induced by witnessing the atomic blast, and that it might not be just and reasonable to extend time to sue.194 In the end, the application failed not because of this requirement but because the plaintiff could not be said to have been “unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time”.195 The plaintiff had begun to experience difficulties within three years of leaving Maralinga; moreover, as he admitted, he was a trained psychiatric nurse capable of appreciating the nature of his problems and their cause. He had been possessed of this knowledge prior to the expiration of the limitation period and had chosen to treat himself without professional assistance. 191

Jaensch v Coffey (1984) 155 CLR 549: see Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994) at [5].

192

See eg MJ Scott and SG Stradling, “Post Traumatic Stress Disorder without the Trauma” (1994) 33 Brit J Clin Psych 71.

193

Without deciding questions of fact relevant to the existence of a cause of action, Foster J noted that despite the “fairly positive” diagnosis, there were “very strong factual arguments” that “psychological injury” was never inflicted: Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994) at [22], [24].

194

As required by the Limitation Act 1969 (NSW), s 60G.

195

Limitation Act 1969 (NSW), s 60F.

1006

Part V: Some Special Cases

[29.620]

[29.620] Barrie Dinnison was allowed to pursue his claim, but for the wrong reason. In Dinnison v Commonwealth,196 in a judgment given on the same day as Sandstrom v Commonwealth,197 Foster J granted an extension of time to institute proceedings pursuant to the same provisions of the Limitation Act 1969 (NSW), and the Full Court of the Federal Court dismissed an appeal by the Commonwealth.198 The plaintiff was a 19-year-old motor mechanic in the RAAF at the time he witnessed three atomic explosions in 1957. It was the third and largest detonation that allegedly traumatised him. As in Sandstrom, his claim was for pure psychiatric injury. There was no physical injury; he was not suffering from cancer. In contrast to the evidence of the effect of the explosion witnessed by Mr Sandstrom, the evidence as found by Foster J indicated that there were reasonable prospects that Mr Dinnison could establish that on witnessing the third blast he sustained a shock to the senses, and that this affront led to a recognised psychiatric disorder.199 His earlier experiences may have made him more susceptible to shock on the third occasion. As in Sandstrom, Foster J focused on the “nervous shock” test enunciated by Brennan J in Jaensch v Coffey,200 an approach supported by the Full Court on the appeal.201 This was unfortunate. All other matters being equal, there is no reason why Mr Dinnison should have had his day in court while Mr Sandstrom was denied his simply because the immediate effect on Mr Dinnison of witnessing the explosion was more marked: if both suffered disruption to their psychiatric well-being as a result of negligence, both should recover. All other matters, however, were not equal. Although Mr Dinnison’s mental problems commenced within two or three years of leaving Maralinga shortly after the third explosion, it was not until almost 40 years later that a diagnosis of “chronic anxiety state” was made. In contrast to Mr Sandstrom, the plaintiff was unaware, and could not reasonably have been aware, of the fact, nature and extent of his psychiatric condition202 until after the expiry of the limitation period. In the circumstances, it was just to extend the time to sue. [29.630] In Dingwall v Commonwealth,203 the first Australian “cancerphobia” case to proceed to trial, evidentiary inadequacies operated to defeat Wesley Dingwall’s claim. Again, the task of determination fell to Foster J; again, the claim was for pure psychiatric injury consequent on negligent exposure to radiation. The plaintiff was a mess steward in the 196

Dinnison v Commonwealth (unreported, Fed Ct, No NG572 of 1991, 4 March 1994).

197

Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994).

198

Commonwealth v Dinnison (1995) 56 FCR 389.

199

Dinnison v Commonwealth (unreported, Fed Ct, No NG572 of 1991, 4 March 1994) at [7].

200

Jaensch v Coffey (1984) 155 CLR 549.

201

Commonwealth v Dinnison (1995) 56 FCR 389 at 402–403 per Gummow and Cooper JJ.

202

The Full Court held that even if the plaintiff had some awareness of the fact that he was suffering from psychiatric illness, he was unaware of its nature or extent: Commonwealth v Dinnison (1995) 56 FCR 389 at 403 per Gummow and Cooper JJ.

203

Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994).

[29.650]

29 Fear for the Future

1007

army at the time of the Antler atomic tests at Maralinga in 1957. There was no dispute about the fact that at the time of the proceedings he was suffering from a recognised psychiatric disorder: what was contested was the nature and aetiology of that disorder. The claim failed because Foster J was of the opinion that it was not possible to conclude that the plaintiff more probably than not suffered psychiatric injury, as distinct from natural apprehension about the dangers of radiation, as a consequence of observing the tests and attending blast sites a few days later to deliver food to scientists and other army personnel. After an exhaustive review of the evidence, Foster J was not satisfied that Mr Dingwall crossed the psychiatric threshold as a result of any negligence on the part of the Commonwealth.204 [29.640] It is clear that even if he had overcome this requirement the plaintiff would have faced considerable foreseeability problems. Foster J confessed that on the evidence presented he would have had great difficulty in accepting the argument that the defendant had breached the duty of care that it owed to Mr Dingwall as his employer on the basis that it should have foreseen the risk of immediate or latent psychiatric injury to trained army personnel performing the duties required of them and that it could have prevented such injury.205 [29.650] The most significant aspect of the decision for present purposes was his Honour’s avoidance of the sudden shock issue. The evidence suggested that, like Mr Sandstrom, Mr Dingwall, though frightened by the blasts, was never overcome by terror and never lost control of his emotions.206 Rather than having suffered “any severe psychic shock” by what he had perceived, the plaintiff’s fears and concerns unfolded over the following years and related to the exposure to dust drawn up into the atmosphere by the explosions that he believed to be radioactive.207 The argument was advanced that if psychiatric injury was found to have been caused by fear generated by exposure to dust, the absence of a sudden sensory perception was not fatal to a claim of this nature. It was said that Brennan J’s restricted view of nervous shock in Jaensch v Coffey208 could either be rationally extended to cover such a case, or distinguished on the basis that it was appropriate only in cases where harm to a claimant was indirectly caused by witnessing the initial infliction of physical injury on another person or its immediate aftermath. Foster J’s primary finding made it unnecessary to examine this submission and he declined to do so. His Honour’s decision to leave this important issue for another day seemingly represented a softening of his attitude to the stringent and 204

Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) at [139], [187], [191]. 205

Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) at [192]–[195].

206

Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) at [40].

207

Dingwall v Commonwealth (unreported, Fed Ct, No NG575 of 1991, 18 May 1994) at [187].

208

Jaensch v Coffey (1984) 155 CLR 549.

1008

Part V: Some Special Cases

[29.660]

literal reliance placed on Brennan J’s dictum in Sandstrom v Commonwealth209 and Dinnison v Commonwealth.210 Also, it perhaps reflected a growing appreciation that not all species of psychiatric injury claim can be accommodated within orthodox tort theory. Now that the law in Australia no longer adheres to an inflexible requirement of sudden shock, courts should be able to recognise that lack of evidence of “shock” is legally and medically irrelevant to recovery for mental injury consequent on fear for future events, and the presence of sudden shock to the senses is merely an additional reason to compensate the mentally injured, rather than a fundamental prerequisite of relief.

THE CIVIL LIABILITY ACTS [29.660] As in all the other contexts in which liability for mental harm may arise, the Civil Liability Act provisions211 potentially fall for consideration in the fear for the future context. Thus, it will be necessary to determine whether the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. The application of this test should not cause any special difficulty: the ordinary fortitude issue has been considered in several of the cases discussed in this chapter.212 Of the circumstances set out in the legislation, the common law cases have shown that sudden shock is not likely to be present in fear for the future cases, and witnessing at the scene a person being killed, injured or put in peril, and relationship to such a person, are relevant only in secondary victim situations. At first sight, it might be thought that the witnessing and relationship criteria could be applicable to the Maralinga situation, in the unlikely event of such a case arising in the future; however, Petrovski v Serco Sodexo Defence Services Pty Ltd213 showed that the claim in that case, which involved witnessing a scene that appeared to be a military disaster but was in fact merely an exercise, was not a case where the claim arose in connection with another person being killed, injured or put in peril, but one where the duty depended on the relationship between employer and employee. [29.670] As for the provisions in some jurisdictions that restrict liability to persons who do not witness at the scene except in cases involving close relationships, these again are restricted to cases where the claim arose from mental or nervous shock in connection with another person being 209

Sandstrom v Commonwealth (unreported, Fed Ct, No NG564 of 1991, 4 March 1994).

210

Dinnison v Commonwealth (unreported, Fed Ct, No NG572 of 1991, 4 March 1994).

211

Civil Law (Wrongs) Act 2002 (ACT), s 34; Civil Liability Act 2002 (NSW), s 32; Civil Liability Act 1936 (SA), s 33; Civil Liability Act 2002 (Tas), s 34; Wrongs Act 1958 (Vic), s 72; Civil Liability Act 2002 (WA), s 5S.

212

See CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 (discussed at [29.200]); Fletcher v Commissioners of Public Works [2003] 1 IR 465 (discussed at [29.340]); Rothwell v Chemical & Insulating Co Ltd [2008] AC 281 (discussed at [29.410]).

213

Petrovski v Serco Sodexo Defence Services Pty Ltd [2013] ACTSC 242: see [13.420].

[29.690]

29 Fear for the Future

1009

killed, injured or put in peril — except in South Australia. The Civil Liability Act 1936 (SA), s 53 provides that damages may only be awarded for mental harm if the injured person is physically injured in the accident, present at the scene of the accident or a close relative of a person killed, injured or endangered in the accident, and there is no qualification of the sort found in New South Wales, Tasmania or Victoria. It is hard to see how this requirement can be satisfied in fear for the future claims brought by employees or medical negligence victims.

THE UNITED STATES EXPERIENCE [29.680] Since cases on fear of future harm have been litigated much more frequently in the United States than elsewhere in the common law world, recourse to the American experience may be instructive.214 However, for a number of reasons, caution must be exercised before applying the case law to the situation in Commonwealth jurisdictions.215 Chief among these is the fact that a number of United States jurisdictions permit recovery for emotional distress that does not amount to recognisable psychiatric illness,216 and to balance the equation and keep liability within reasonable bounds restrictions are imposed that will be dealt with at [29.710]. Bryan v Philips New Zealand Ltd217 and Fletcher v Commissioners of Public Works218 illustrate the pitfalls of attempting to apply particular United States decisions without an appreciation of their context.219 The divergence between the law in different jurisdictions, and the retention by some States of older restrictions such as the impact and zone of danger rules,220 are added reasons for caution. [29.690] According to the oldest group of United States cases, plaintiffs in cases where there is actual impact, or something similar like having been exposed to excessive x-rays, even though they cannot prove that some specific future harm will eventuate, may be able to recover for a reasonable fear of future disease.221 Here, the claim is parasitic on the claim for physical injury. 214

For a more detailed account, see NJ Mullany, “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in NJ Mullany (ed), Torts in the Nineties (LBC Information Services, Sydney, 1997), pp 144–166. See also DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 1, pp 596–602; R Price, “Asbestosis and Fear of Cancer in the USA” (2012) 14 Flinders LJ 107.

215

See CJD Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161 at 163 per Morland J.

216

See [6.160].

217

Bryan v Philips New Zealand Ltd [1995] 1 NZLR 632: see [29.300].

218

Fletcher v Commissioners of Public Works [2003] 1 IR 465: see [29.340], [29.360].

219

See P Handford, “Fear of Disease and Psychiatric Injury in Ireland” (2003) 11 Tort L Rev 61 at 63.

220 221

See [3.760]–[3.770].

See eg Ferrara v Galluchio 152 NE 2d 249 (NY 1958); Eagle-Picher Industries Inc v Cox 481 So 2d 517 (Fla 1985).

1010

Part V: Some Special Cases

[29.700]

[29.700] In a true fear for the future claim, a court allows recovery even where there is no impact and so the parasitic damage principle cannot be invoked.222 A leading text suggests that two factors may be important in justifying a finding of liability in such a situation: the existence of a relationship between the parties, usually one where the defendant has undertaken to care for the plaintiff in a professional capacity and has failed to do so; and that fear arises from a specific incident rather than gradual exposure.223 [29.710] Two main situations have occupied the courts: claims for fear of cancer as a result of exposure to toxic materials or otherwise, and claims for the fear of contracting AIDS. Doctrine developed in relation to the former group has been utilised in relation to the latter, obviously a much newer litigation phenomenon. As a broad generalisation, the trend has been to deny recovery where the plaintiff fails to prove (1) actual, as distinct from potential, exposure to the disease-causing agent; and/or (2) that the fear or worry of contracting the disease was reasonable in all the circumstances.224 As noted, some United States authorities appear to impose these limitations in the context of claims for mental states falling short of psychiatric impairment. This may have led the Irish Supreme Court to pay too much attention to the issue of “objective irrationality” in Fletcher v Commissioners of Public Works.225 [29.720] Claims for fear of AIDS best illustrate the actual exposure requirement. A number of “AIDSphobia” suits have resulted from needle stick injuries. It is in relation to cases such as this that the greatest scope exists in non-United States common law jurisdictions for argument that there is a sudden assault on the senses. In the United States many of these claims have failed because victims could not prove that the needle that pierced them had been previously used on HIV or AIDS patients.226 However, it appears that the number of cases that permit actions for fear of AIDS without evidence of actual exposure is growing.227 The picture remains complex: New York, for example, displays a marked lack of

222

See eg Gilliam v Roche Biomedical Laboratories Inc 989 F 2d 278 (1993) (delay in discovering that wrong advice about treatment given following pap smear test, making future cancer more likely).

223

DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 1, p 598.

224

For a recent example, see Exxon Mobil Corporation v Albright 71 A 3d 30 (Md 2013).

225

Fletcher v Commissioners of Public Works [2003] 1 IR 465: see [29.340].

226

See eg Burk v Sage Products Inc 747 F Supp 285 (1990); Carroll v Sisters of Saint Francis Health Service Inc 868 SW 2d 585 (Tenn 1993); Doe v Surgicare of Joliet Inc 643 NE 2d 1200 (Ill 1994); Majca v Beekil 682 NE 2d 253 (Ill 1997); Johnson v American National Red Cross 578 SE 2d 106 (Ga 2003).

227

See Faya v Almaraz 620 A 2d 327 (Md 1993); Barrett v Danbury Hospital 654 A 2d 748 (Conn 748); Williamson v Waldman 696 A 2d 14 (NJ 1997); Hartwig v Oregon Trail Eye Clinic 580 NW 2d 86 (Neb 1998); Madrid v Lincoln County Medical Center 923 P 2d 1154 (NM 1996); South

[29.730]

29 Fear for the Future

1011

consistency in approach,228 and other variations can be seen in other jurisdictions.229 Jilted spouses and other partners have generally failed to recover for the fear of contracting AIDS and other sexually transmitted diseases from lovers who have had sexual relations with third parties in the absence of proof of actual exposure to the disease.230 The actual exposure requirement has also defeated claims based on fear of cancer231 and fear of CJD.232 [29.730] Insisting on actual exposure may have inappropriate and unfortunate results, as shown by Lauterbach v Shiley Inc.233 The recipient of a heart valve learnt that the manufacturer had withdrawn it from the market because of breakages resulting in death or serious injury to patients with implants. The plaintiff developed an extreme fear that he would suffer the same fate. Incredibly, recovery for mental distress was denied on the basis that it had not been shown that his particular heart valve was defective. But was he expected to submit himself to exploratory Central Regional Medical Center v Pickering 749 So 2d 95 (Miss 1999). In Fitzgerald v Tin 2003 BCSC 151, Burnyeat J conducted an exhaustive review of the United States case law (at [46]–[50]) and concluded that the actual exposure approach should not be adopted in Canada. 228

See Ordway v County of Suffolk 583 NYS 2d 1014 (1992) (claim insufficient in absence of any indication that plaintiff’s fear was legitimate); Kaufman v Physical Measurements Inc 615 NYS 2d 508 (1994) (no recovery because person on whom needle had been used had tested HIV negative); compare Marchica v Long Island Railroad Co 31 F 3d 1197 (1994) (recovery allowed though all tests were negative and there was no proof plaintiff had ever been exposed to the virus). See also Hare v State of New York 570 NYS 2d 125 (1991) (recovery denied because no evidence that prison inmate who bit plaintiff had AIDS); compare Johnson v West Virginia University Hospitals Inc 413 SE 2d 889 (W Va 1991) (recovery granted to plaintiff bitten by hospital patient who tested HIV positive, even though plaintiff did not, because patient had some of his own blood in his mouth and so his blood came into direct contact with that of plaintiff).

229

See eg Vallery v Southern Baptist Hospital 630 So 2d 861 (La 1993) (blood from needle landed on ungloved hand of hospital security guard, who went home and made love to his wife, and was told next day that the patient had AIDS: they both recovered because there was a channel for infection, even though they had both consistently tested negative); Lubowitz v Albert Einstein Medical Center 623 A 2d 3 (Pa 1993) (no recovery where IVF program used placental blood later disclosed to have tested HIV positive, but couple consistently tested negative and defendant maintained that the test was a false positive); Marriott v Sedco Forex International Resources Ltd 827 F Supp 59 (1993) (federal court refused to dismiss claim of plaintiff inoculated with hepatitis vaccine remainder of which tested HIV positive, even though plaintiff had consistently tested negative). 230

See eg Neal v Neal 873 P 2d 881 (Id 1994); Petri v Bank of New York Co Inc 582 NYS 2d 608 (1992). Compare Christian v Shelft (Cal SC, No C57 4153, 17 February 1989) (Rock Hudson’s homosexual lover recovered massive multi-million dollar jury award despite fact that he had consistently tested HIV negative in the four years since their last encounter and had remained symptomless).

231

Dobran v Franciscan Medical Center 806 NE 2d 537 (Ohio 2004) (defendant negligently destroyed tissue specimen intended to be used to determine whether cancer had metastasised, but since this exposed plaintiff to nothing, he was unable to recover for fear that the cancer had spread).

232

See eg Nesom v Tri Hawk International 985 F 2d 208 (1993): see [27.90].

233

Lauterbach v Shiley Inc 1991 WL 148137 (Tex).

1012

Part V: Some Special Cases

[29.740]

surgery to determine if his heart valve was defective, followed possibly by major surgery to replace it? The risks of such a course of action outweighed the risk of failure. A claim based on physical injury — that is, one that lies once the valve has been proved faulty — seemingly achieves little. What should matter is that the person has been mentally injured as a result of the defendant’s negligence, assuming of course that such harm is foreseeable. [29.740] The objective reasonableness of the fear of future consequences is closely linked to the actual exposure inquiry, since most United States courts view absence of proof of the latter as indicative of lack of the former. The court asks itself what is the probability that the plaintiff will contract the feared condition and whether, given that probability, the fear is reasonable. Different jurisdictions apply different standards of reasonableness. In some States, a potential exposure may be sufficient to clear the reasonableness threshold.234 Others are more cautious235 — a fact well illustrated by the change of heart that has taken place in California. In Kerins v Hartley,236 the California Court of Appeal awarded damages in a claim by a patient who learnt that her surgeon had AIDS, notwithstanding that the risk of infection by the route of transmission alleged was extremely low. The defendant appealed to the Supreme Court of California, which ordered the Court of Appeal to review the case in the light of the Supreme Court’s decision in Potter v Firestone Tire & Rubber Co,237 a case involving gradual exposure rather than a specific incident. In Potter, plaintiffs who lived near a landfill where the defendant had dumped liquid waste, including suspected carcinogens, over many years had sought compensation for the fear that they would develop cancer from exposure to toxins. Overruling the Court of Appeal’s finding of liability,238 the majority of the Supreme Court stated that damages could be recovered for emotional distress in the form of “cancerphobia” only when it was proved that there was exposure to the carcinogens due to negligence and as a result “it is more likely than not that the feared cancer will develop in the future”.239 Fear had to stem from personal knowledge 234

See eg Castro v New York Life Insurance Co 588 NYS 2d 695 (1991); Marchica v Long Island Railroad Co 31 F 3d 1197 (1994). Contrast Hare v State of New York 570 NYS 2d 125 (1991).

235 Eg Coca-Cola Bottling Co v Hagan 813 So 2d 167 (Fla 2002) (consumers’ fears that they had contracted AIDS from soft drink bottle that appeared to contain used condom held not reasonable); Laurel v Prince 154 So 3d 95 (Ala 2014) (in order to recover damages for fear of getting AIDS or hepatitis C as result of doctor using contaminated syringe, plaintiff had to show medical basis for concluding that she was at risk of developing the disease). 236

Kerins v Hartley 21 Cal Rptr 2d 621 (1993). Faya v Almaraz 620 A 2d 327 (Md 1993) is a similar case.

237

Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993). For an Australian view, see H Luntz, “Fear of Disease as Damage in Negligence: The View of the Supreme Court of California” (1995) 3 TLJ 212. 238

Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993).

239

Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993) at 800, 816.

[29.750]

29 Fear for the Future

1013

corroborated by reliable medical and scientific opinion.240 In Kerins v Hartley, summary judgment for the defendant was accordingly reinstated.241 California moved from being one of the more liberal States to the other end of the spectrum. However, subsequent decisions in other jurisdictions have refused to adopt the Californian approach.242 [29.750] Two important cases decided by the Supreme Court of the United States deal with fear for the future in the context of actions under the Federal Employers’ Liability Act. In Metro-North Commuter Railroad Co v Buckley,243 the plaintiff had been exposed to asbestos while working as a pipefitter and as a result feared contracting cancer, even though there was no evidence that he had done so at the time of the action. The Supreme Court dismissed the claim, holding that exposure alone did not satisfy the zone of danger rule, which the court had already said was applicable to claims under this Act.244 In Norfolk & Western Railway Co v Ayers,245 on the other hand, the plaintiff recovered because he was suffering from asbestosis and damages for fear of contracting cancer could be awarded under the parasitic damage principle.246 As has already been noted, reliance on this decision did not assist the plaintiff in the New South Wales case of CSR Ltd v Thompson.247

240

Several policy reasons were said to justify this high standard of proof: (1) fear of cancer from exposure to or ingestion of carcinogens is so commonplace that some restriction on liability is required to ensure the continued availability of insurance cover; (2) unrestricted liability for fear of future diseases would cripple the health care industry’s research and development of new drugs and threaten their affordability due to concern over incalculable liability; (3) unrestricted liability would erode the resources available to compensate those who actually develop the feared cancer; (4) there was a need to establish a “sufficiently definite and predictable threshold for recovery to permit consistent application from case to case”; (5) the class of potential plaintiffs must sometimes be circumscribed so that injury to emotions absent physical damage remains a recoverable head of loss: Potter v Firestone Tire & Rubber Co 863 P 2d 795 (Cal 1993) at 811–814. Some of these reasons were referred to in Fletcher v Commissioners of Public Works [2003] 1 IR 465: see [29.320]–[29.370].

241

Kerins v Hartley 33 Cal Rptr 2d 172 (1994).

242

See eg Boryla v Pash 960 P 2d 123 (Col 1998).

243

Metro-North Commuter Railroad Co v Buckley 521 US 424 (1997).

244

Consolidated Rail Corporation v Gottshall 512 US 532 (1994) (no liability to plaintiff who witnessed death of co-worker while on the job). For the special conditions applicable to FELA claims, see [29.260]. 245 Norfolk & Western Railway Co v Ayers 538 US 135 (2003), noted by Butler D (2003) 11 Tort L Rev 132. 246

The plaintiff must prove that the alleged fear is genuine and serious: CSX Transportation Inc v Hensley 129 SCt 2139 (2009). 247

CSR Ltd v Thompson (2003) 59 NSWLR 77: see [29.260].

PART VI Intentional Acts 30. Wilkinson v Downton ............................................................................................................ 1017

Chapter 30

Wilkinson v Downton [30.10] INTRODUCTION ........................................................................................................... 1017 [30.20] WILKINSON V DOWNTON ........................................................................................ 1018 [30.20] The case ............................................................................................................................ 1018 [30.70] Other early cases ............................................................................................................. 1021 [30.90] MODERN CASES ........................................................................................................... 1023 [30.100] England ........................................................................................................................... 1023 [30.130] Australia ......................................................................................................................... 1025 [30.160] Canada ............................................................................................................................ 1028 [30.180] Other jurisdictions ........................................................................................................ 1031 [30.190] THE CAUSE OF ACTION .......................................................................................... 1031 [30.190] Requirements of the cause of action ......................................................................... 1031 [30.250] Liability to secondary victims of intentional acts ................................................... 1036 [30.340] Do the Civil Liability Acts apply? ............................................................................. 1044 [30.370] THE LIMITS OF WILKINSON V DOWNTON ....................................................... 1046 [30.370] Wilkinson v Downton and negligence ...................................................................... 1046 [30.430] Enter Lord Hoffmann ................................................................................................... 1052 [30.460] Reactions to Lord Hoffmann ...................................................................................... 1055 [30.480] Restatement by the United Kingdom Supreme Court ........................................... 1056 [30.540] An extension of the tort of negligence? .................................................................... 1060 [30.590] POSSIBLE EXTENSION TO PURE EMOTIONAL DISTRESS .............................. 1062 [30.600] The United States .......................................................................................................... 1063 [30.660] Should Australia follow suit? ..................................................................................... 1074 [30.750] Conclusion ...................................................................................................................... 1081

INTRODUCTION [30.10] So far, we have spoken exclusively of psychiatric injury resulting from negligence; but shock and consequent psychiatric damage are just as likely to result from deliberate wrongdoing, both where such wrongdoing is aimed at the plaintiff and where it is directed at third parties. Here, an action based on the principle of Wilkinson v Downton1 offers an alternative 1 Wilkinson v Downton [1897] 2 QB 57. See generally PR Handford, “Wilkinson v Downton and Acts Calculated to Cause Physical Harm” (1985) 16 UWAL Rev 31; FA Trindade, “The Intentional Infliction of Purely Mental Distress” (1986) 6 OJLS 219; R Magnusson, “Recovery

1018

Part VI: Intentional Acts

[30.20]

to an action in negligence. For over a hundred years, little attention was paid to this cause of action, and few cases relied upon it. However, starting in the 1990s, there has been a resurgence of interest. The principle has been invoked in many more cases than formerly, not only in England where it originated, but also in Australia and elsewhere, and particularly so in Canada where the courts have restated the elements of the cause of action. Moreover, in the 21st century, the principle has become controversial. A decade ago, the House of Lords said that it no longer had any real existence independent of negligence;2 now, in a recent decision of major importance, the Supreme Court of the United Kingdom has redrawn its limits.3 Other decisions, particularly in Australia, have canvassed whether courts should follow the United States example and convert this cause of action into one for the intentional infliction of emotional distress.

WILKINSON V DOWNTON The case [30.20] Wilkinson v Downton is one of those instances where the origins of a new tort can be precisely located in a particular decision.4 The defendant, Charles Downton, entered the Albion public house in St Paul’s Road, Limehouse, East London, and told the landlady, Mrs Lavinia Wilkinson, that her husband Thomas (who that day had gone to a race meeting in Harlow) had on the return journey been injured in a road accident and was lying at The Elms in Leytonstone with both legs broken, and that he desired someone to come and fetch him home. Downton was one of the regular drinkers at the pub, and Mrs Wilkinson believed his story, even though her husband had told her that he intended to return home by train. She sent her son and a servant by train to Leytonstone, with pillows and rugs, but only when they arrived at The Elms was it discovered that the whole thing was a practical joke. Mr Wilkinson arrived home safely at midnight, having returned by train as he said he would. Downton’s actions caused Mrs Wilkinson to suffer a severe shock. She was seriously ill for some time, to the point where at one time her life

for Mental Distress in Tort, with Special Reference to Harmful Words and Statements” (1994) 2 TLJ 126 at 157–166; C Witting, “Tort Liability for Intended Mental Harm” (1998) 21 UNSWLJ 55; M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168; P Watson, “Searching the Overfull and Cluttered Shelves: Wilkinson v Downton Rediscovered” (2004) 23 U Tas LR 207; P Handford, “Wilkinson v Downton: Pathways to the Future?” (2012) 20 Tort L Rev 145; A Gray, “Wilkinson v Downton: New Work for an Old Tort to Do?” (2015) 23 Tort L Rev 127. 2

Wainwright v Home Office [2004] 2 AC 406.

3

O (A Child) v Rhodes [2016] AC 219.

4

Some other examples are deceit (Pasley v Freeman (1789) 3 TR 51; 100 ER 450) and inducing breach of contract: Lumley v Gye (1853) 2 E & B 216; 118 ER 749.

[30.40]

30 Wilkinson v Downton

1019

and sanity were threatened, and her hair turned white.5 She and her husband brought an action against Downton in the High Court, alleging that the words had been falsely, fraudulently and maliciously spoken with intent to aggrieve, injure and annoy. Mrs Wilkinson claimed damages for mental anguish and resulting illness and her husband claimed for medical expenses and loss of services. Downton pleaded that he had no intention to injure, and that the damages were too remote. The jury, in answer to various questions put to them, decided that Downton had spoken the words and meant them to be heard and acted on, and that they were believed and acted on; that they were, to his knowledge, false; and that they caused Mrs Wilkinson to suffer shock and resultant illness. The jury assessed the damages as £100 for this damage, plus a small sum for the wasted train fares to Leytonstone. [30.30] Wright J held that it was appropriate to recover the cost of the train fares in the tort of deceit, since it resulted from acting on the false statement. The shock damages, however, could not be subsumed under the same cause of action. I am not sure that this would not be an extension of that doctrine, the real ground of which appears to be that a person who makes a false statement intended to be acted on must make good the damage naturally resulting from its being acted on. Here there is no injuria of that kind. I think, however, that the verdict may be supported upon another ground. The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.6

[30.40] He went on to consider whether the assumptions made in this proposition were justified. The first involved the mental element: One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs.7 5

Some of these facts are taken from the fuller report of Wilkinson v Downton in (1897) 66 LJQB 493. For further facts and background, see M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 171 et seq, who refers to Downton’s reputation as a noted practical joker, attested to by contemporary press reports. 6

Wilkinson v Downton [1897] 2 QB 57 at 58–59.

7

Wilkinson v Downton [1897] 2 QB 57 at 59.

1020

Part VI: Intentional Acts

[30.50]

The other was whether the effect was too remote to be in law regarded as a consequence for which the defendant was answerable. Wright J said that apart from authority he would answer the question in the same way as the previous one, but found it necessary to deal with two authorities that might seem to stand in the way of such a conclusion. One, Victorian Railways Commissioners v Coultas,8 was distinguished on the ground that “there was not in that case any element of wilful wrong; nor perhaps was the illness so direct and natural a consequence of the defendant’s conduct as in this case”;9 later authorities calling the decision in question were also referred to. The other, Allsop v Allsop,10 a case holding that illness caused by a slanderous accusation of unchastity by a married woman was not actionable, had been decided on the traditional grounds that there were no precedents and that recognising liability in such a case “might lead to an infinity of trumpery or groundless actions”.11 [30.50] The proposition that is at the centre of Wilkinson v Downton is that wilfully doing an act calculated to cause physical harm to another is actionable if physical harm results. This is a potentially wide-ranging proposition capable of drawing together many instances involving the intentional causing of harm to the person12 — though not those based on purely dignitary interests such as assault and some cases of battery and false imprisonment.13 Nowhere does Wright J limit the principle to the intentional causing of shock. It is significant, however, that the cases in which Wilkinson v Downton has been followed and applied all involve shock and shock-related injuries. 8

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222: see [2.10].

9

Wilkinson v Downton [1897] 2 QB 57 at 60.

10

Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292.

11

Wilkinson v Downton [1897] 2 QB 57 at 60.

12

See the discussion of this issue in PR Handford, “Wilkinson v Downton and Acts Calculated to Cause Physical Harm” (1985) 16 UWAL Rev 31 at 34–38. Note in particular the attempt of the High Court of Australia in Beaudesert Shire Council v Smith (1969) 120 CLR 145 to develop a general principle (allegedly derived from the old action on the case) to govern liability for all intentional harm, physical or non-physical. This principle was not adopted in any other case and was later rejected by the Privy Council, the House of Lords and the High Court itself: see Dunlop v Woollahra Municipal Council [1982] AC 158; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; Northern Territory v Mengel (1995) 185 CLR 307. Note also the development of the “prima facie tort” doctrine in the United States, under which a defendant may be liable for harm caused intentionally even where no specific intentional tort applies: see Restatement of Torts Second, § 870; MD Forkosch, “An Analysis of the “Prima Facie Tort” Cause of Action” (1957) 42 Cornell LQ 465; C Witting, “Of Principle and Prima Facie Tort” (1999) 25 Mon ULR 295. This doctrine was based on a suggestion of Sir Frederick Pollock: see F Pollock, The Law of Torts (Stevens, London, 1887), p 21, and a dictum of Bowen LJ in Skinner & Co v Shew & Co [1893] 1 Ch 413 at 422, and was first adopted by Holmes J in Aikens v Wisconsin 195 US 194 (1904). Wright J would have been familiar with these developments. He was in close touch with the academic world, and Pollock in particular: see F Pollock and RS Wright, Essay on Possession in the Common Law (Clarendon Press, Oxford, 1888). He cited Pollock on Torts in Wilkinson v Downton [1897] 2 QB 57 at 60.

13

See [6.80].

[30.70]

30 Wilkinson v Downton

1021

[30.60] The development of this action has run parallel with the growth of liability in negligence for psychiatric injury. The same arguments against recognising liability — for example, that the damage was too remote — were raised, and overcome.14 Confirmation of the close links between the two causes of action is provided by the frequent citation of negligence authorities15 in cases on Wilkinson v Downton.

Other early cases [30.70] Until recently, cases invoking the Wilkinson v Downton principle were few in number. For many years, the only English case that followed Wilkinson v Downton was Janvier v Sweeney.16 During the First World War, the plaintiff lived as a paid companion in a house in London and corresponded with her German fiancé who was interned as an enemy alien on the Isle of Man. The defendant, a private detective, wanted to obtain some of her employer’s documents and sent his assistant, who induced Mlle Janvier to co-operate by pretending to be a Scotland Yard detective and telling her that she was wanted by them for corresponding with a German spy. As a result of this the plaintiff suffered shock and became ill. The English Court of Appeal held that the defendants were liable under the principle of Wilkinson v Downton. In Scotland, Wilkinson v Downton was adopted in A v B’s Trustees,17 where a lodger committed suicide by slashing his throat with a razor in his landlady’s bathroom, which caused shock and injury to the health of the landlady and her daughter when they came upon the scene.18 In New Zealand, Wilkinson v Downton was followed in Stevenson v Basham,19 where a wife suffered shock and a miscarriage on hearing their landlord threatening her 14

See A v B’s Trustees (1906) 13 SLT 830 at 830 per Lord Johnston; Janvier v Sweeney [1919] 2 KB 316 at 323–324 per Bankes LJ, at 327 per Duke LJ; Stevenson v Basham [1922] NZLR 225 at 231–232 per Herdman J; Bielitski v Obadiak (1922) 65 DLR 627 at 632–633 per Lamont JA, at 635–636 per Turgeon JA; Purdy v Woznesensky [1937] 2 WWR 116 at 122–123 per Mackenzie JA. For references to the increase in medical and scientific knowledge since 1888, see Purdy v Woznesensky at 122 per Mackenzie JA, at 126 per Gordon JA; Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226 per McDonald J.

15

For example Bell v Great Northern Railway Co of Ireland (1890) 26 LR Ir 428 was relied on in A v B’s Trustees (1906) 13 SLT 830 and Stevenson v Basham [1922] NZLR 225; Dulieu v White & Sons [1901] 2 KB 669 in Stevenson v Basham, Janvier v Sweeney [1919] 2 KB 316, Bielitski v Obadiak (1922) 65 DLR 627 and Purdy v Woznesensky [1937] 2 WWR 116; and Hambrook v Stokes Bros [1925] 1 KB 141 in Purdy v Woznesensky. More recently, Rosenberg J in Bell-Ginsburg v Ginsburg (1993) 14 OR (3d) 217 at 223 noted that recent developments in negligence liability for psychiatric injury might have the effect of extending the scope of liability for intentional infliction of such harm.

16

Janvier v Sweeney [1919] 2 KB 316.

17

A v B’s Trustees (1906) 13 SLT 830.

18

The court could not see the precise ground of action and suggested breach of contract. In a subsequent case involving similar facts, Anderson v McCrae (1930) 47 Sh Ct Rep 287, the court rejected breach of contract on the ground that damage such as this was too remote a consequence. Wilkinson v Downton was distinguished on the not very convincing ground that it was based on implied malice.

19

Stevenson v Basham [1922] NZLR 225.

1022

Part VI: Intentional Acts

[30.80]

husband to burn them out of their house if they did not give up possession.20 A South African case that relied on Wilkinson v Downton was Els v Bruce,21 where the defendant threatened to have the plaintiff’s husband arrested unless she paid him some money, causing injury to the plaintiff’s health. Canadian courts also recognised liability for the intentional infliction of shock. In Bielitski v Obadiak22 the defendant circulated a false report that Steve Bielitski had hanged himself from a telegraph pole, and the report in due course reached Bielitski’s mother, who suffered a violent shock and became ill. Wilkinson v Downton was followed and the defendant was held liable on the assumption that he must have intended the report to reach the plaintiff. In Purdy v Woznesensky23 the plaintiff and her husband were together at a local dance when the defendant, a neighbour who was still resentful of the fact that he had earlier been sued by the husband for breach of an agreement to deliver cattle, assaulted him in her presence, knocking him to the floor and causing her to think that he was dead. In consequence she became mentally ill. Again the defendant was held liable under Wilkinson v Downton.24 [30.80] The principle was also applied in Australian cases. In Johnson v Commonwealth25 the plaintiff suffered mental anguish and consequent ill-health as a result of acts done to her husband. Agents of the defendant wrongfully entered the plaintiff’s house, assaulted her husband in her presence, and then carried him off to prison, where they kept him for some considerable time. The plaintiff recovered damages under Wilkinson v Downton and also for loss of consortium.26 Most importantly, In Bunyan v Jordan27 the Wilkinson v Downton principle was recognised by the High Court of Australia, which, however, held that there was no liability on the facts. The plaintiff allegedly overheard the defendant threaten to kill himself and then heard a shot being fired, but it was held that her shock and resulting neurasthenia28 were not results that could reasonably be expected to follow in the circumstances.29 20

The court held that the case could be treated either as a case of intentional conduct under Wilkinson v Downton or as one of negligence.

21

Els v Bruce 1922 EDL 295.

22

Bielitski v Obadiak (1922) 65 DLR 627.

23

Purdy v Woznesensky [1937] 2 WWR 116.

24

Note also the recognition of the principle in Abramzik v Brenner (1967) 65 DLR (2d) 651 at 654 per Culliton CJS. 25

Johnson v Commonwealth (1927) 27 SR (NSW) 133.

26

On this ground the case was later overruled by Wright v Cedzich (1930) 43 CLR 493, which held that the action for loss of consortium did not lie in favour of a wife.

27

Bunyan v Jordan (1937) 57 CLR 1.

28

See [1.10].

29

Bunyan v Jordan (1937) 57 CLR 1 at 11–12 per Latham CJ. The distinguishing facts were: (1) the person injured was not the person to whom the words were spoken — they were not

[30.100]

30 Wilkinson v Downton

1023

MODERN CASES [30.90] After 1937, for something like 50 years, the principle in Wilkinson v Downton was not the subject of any reported case anywhere in the Commonwealth. However, over the last 30 years the case has once again come back into focus, and there are now many modern decisions. However, this renewal of interest has also created some differences between the major jurisdictions as to the interpretation of the principle.

England [30.100] In England, starting with a mention by Lord Denning MR,30 the principle has been the subject of discussion by the Court of Appeal on a number of occasions.31 In two cases, further appeals gave the final appellate court an opportunity to reconsider Wright J’s formulation of the cause of action and its relationship with other torts. In Wainwright v Home Office,32 a mother and son were strip-searched for drugs while visiting another son in prison. The prison officers failed to comply fully with the prescribed procedures, and while searching the son one of the prison officers touched the son’s penis. The son was severely affected by this experience and was confirmed to be suffering from post-traumatic stress disorder. The episode caused his mother emotional distress, but no psychiatric illness. Mother and son both brought an action against the Home Office. So far as the son was concerned, it was accepted that the touching of the penis was a battery; the major issue was whether the claimants also had a remedy for invasion of privacy. The trial judge had concluded that requiring them to take their clothes off was also a form of trespass to the person, on the ground that the law should give a remedy for distress caused by infringements of the right of privacy protected by Art 8 of the European Convention on Human Rights; however, this finding was reversed on appeal. Both the English Court of Appeal and the House of Lords held that there was no common law tort of invasion of privacy, and that apart from the battery constituted by the touching of the penis the only remedy available to the plaintiffs was under Wilkinson v Downton. Since this gave no remedy for emotional distress unless bodily harm or recognised psychiatric illness resulted, and since there was no finding that the prison officers had intended to cause harm or were reckless whether they caused harm, this tort was not established. Lord Hoffmann, in a judgment concurred in by the other members of the even spoken in her presence but merely overheard; (2) the acts of the defendant could not, in the circumstances, be said to have been calculated or likely to cause harm to any normal person; (3) there was no intention to cause harm to the plaintiff. 30

D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 188–189.

31

Burnett v George [1992] 1 FLR 525; Khorasandjian v Bush [1993] QB 727; Bowler v Walker [1996] PIQR P22; Powell v Boladz [1998] Lloyd’s Rep Med 116; Wong v Parkside Health NHS Trust [2003] 3 All ER 932; Wainwright v Home Office [2002] QB 1334; Mbasogo v Logo Ltd [2007] QB 846; O v A [2014] EWCA Civ 1277.

32

Wainwright v Home Office [2004] 2 AC 406, noted by A Johnston [2004] CLJ 19.

1024

Part VI: Intentional Acts

[30.110]

court, suggested that Wilkinson v Downton had in effect been superseded by later developments in negligence, which left it “with no leading role in the modern law”.33 [30.110] However, Lord Hoffmann’s views never enjoyed complete acceptance. Lower courts held themselves bound by earlier decisions that had upheld the Wilkinson v Downton principle.34 In 2015, nearly 12 years after Lord Hoffmann’s attempt to consign it to obsolescence, the principle was affirmed and given new life by an important decision of the United Kingdom Supreme Court, which assumed the judicial functions formerly exercised by the House of Lords in 2009. The action in O (A Child) v Rhodes35 was an attempt by the former wife of a well-known concert pianist to prevent the pianist publishing an autobiography containing graphic descriptions of the sexual abuse to which he had been subjected as a child, on the ground that their son, who now resided with his mother in the United States, would read them and might suffer psychiatric harm as a result. The fact that they were no longer resident in England meant that English family courts had no jurisdiction to make orders to protect the child’s welfare; the only alternative was to invoke the common law. Accordingly, the mother on the son’s behalf applied for an interim injunction preventing publication without the deletion of various passages, arguing that by publishing the work the father would be liable for the torts of misuse of private information, negligence and Wilkinson v Downton. The English Court of Appeal rejected the first two claims but held that the Wilkinson v Downton claim should go to trial. It therefore granted the injunction sought. The Supreme Court unanimously allowed the appeal, holding that Wilkinson v Downton could not be used to prevent the book’s publication. The court confirmed that, far from the demise envisaged by Lord Hoffmann, the tort was alive and well, and it took the opportunity to set it on a new basis by redefining the appropriate mental element.36 [30.120] English cases of the early 1990s canvassed the possibility that Wilkinson v Downton could be the starting point of a remedy for harassment or stalking. These cases suggested a potential watering down of the requirement that the defendant’s conduct be calculated to cause physical harm: an intention to harass, or perhaps recklessness, might be sufficient. Also, because the requested remedy was an injunction rather than damages, it might be enough that recognised psychiatric harm was merely a potential result of the conduct, rather than something already established, in line with the general principle that an injunction can be 33

Wainwright v Home Office [2004] 2 AC 406 at [41]. See [30.440].

34

In Mbasogo v Logo Ltd [2007] QB 846, the English Court of Appeal held that it was bound by its earlier decision in Wong v Parkside Health NHS Trust [2003] 3 All ER 932. Two first instance decisions, Austen v University of Wolverhampton [2005] EWHC 1635 and C v D [2006] EWHC 166, also followed Court of Appeal authorities binding on them.

35

Rhodes v OPO [2016] AC 219, noted by CDL Hunt [2015] CLJ 392.

36

See [30.480]–[30.530].

[30.130]

30 Wilkinson v Downton

1025

granted to restrain a threatened tort. Khorasandjian v Bush37 was the leading case. After the relationship between the parties had broken down, the defendant pestered the plaintiff with threats of violence, aggressive behaviour, and persistent phone calls to the home where she lived with her parents. The English Court of Appeal held that threats of violence, being threats to commit a tort, could be restrained by injunction; harassment by unwanted phone calls amounted to interference with the ordinary and reasonable enjoyment of the property where she lived, which could be restrained by a quia timet injunction as a private nuisance; and harassment not amounting to threats but likely to cause a physical or psychiatric illness could be restrained by a quia timet injunction based on the principle of Wilkinson v Downton.38 In so far as this decision related to nuisance, it was later overruled by the House of Lords in Hunter v Canary Wharf Ltd,39 affirming the principle that only persons with a proprietary interest in the affected property were entitled to sue, and that this principle did not extend to the family members of those with a proprietary interest. In so far as the decision depended on Wilkinson v Downton, it probably survived Hunter, but the Court of Appeal later confirmed that in the light of the statutory tort of harassment created in England by the Protection from Harassment Act 1997 there was no tort of harassment at common law.40 It seems that there is little left of Khorasandjian v Bush.

Australia [30.130] In one respect, at least, the Australian courts broke new ground in dealing with Wilkinson v Downton. When the High Court of Australia recognised the Wilkinson v Downton principle in Bunyan v Jordan41 in 1937, it was the first occasion on which the tort formulated by Wright J had been endorsed by an upper level appeal court.42 In more recent years, Wilkinson v Downton has enjoyed mixed fortunes in the High Court. It was expressly recognised in Northern Territory v Mengel43 in 1995, but in Tame v 37

Khorasandjian v Bush [1993] QB 727. See also Burnett v George [1992] 1 FLR 525; Burris v Adazani [1996] 1 FLR 266; J Bridgeman and MA Jones, “Harassing Conduct and Outrageous Acts: A Cause of Action for Intentionally Inflicted Mental Distress?” (1994) 14 LS 180; R Townshend-Smith, “Harassment as a Tort in English and American Law: The Boundaries of Wilkinson v Downton” (1995) 24 Anglo-Am LR 299; P Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Ir Jur 1.

38

Peter Gibson J dissented on the second and third holdings.

39

Hunter v Canary Wharf Ltd [1997] AC 655.

40

Wong v Parkside Health NHS Trust [2003] 3 All ER 932. Hale LJ at [18]–[30] provides an authoritative review of the rise and fall of the suggested harassment tort. 41

Bunyan v Jordan (1937) 57 CLR 1.

42

Since at this time an appeal lay from the High Court to the Privy Council, it could not be said that the High Court was Australia’s final court of appeal.

43

Northern Territory v Mengel (1995) 185 CLR 307 (a case on misfeasance in public office) at 347 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.

1026

Part VI: Intentional Acts

[30.140]

New South Wales44 in 2002 Gummow and Kirby JJ suggested that “the subsequent development of the modern tort of negligence saw the extraction of this rule from what today would be identified as a species of malicious falsehood and its application by incremental steps to the field of non-intentional harm”,45 and four years later in Magill v Magill46 these judges, joined now by Crennan J, repeated the suggestion that “[s]ubsequent developments in Anglo-Australian law recognise these cases as early examples of recovery for nervous shock, by reference to an imputed intention to cause physical harm, a cause of action later subsumed under the unintentional tort of negligence”.47 Most recently, in Monis v The Queen,48 Hayne J left open the extent to which Wilkinson v Downton retained a separate existence,49 though Heydon J appeared to accept that that it was still an independent tort.50 [30.140] However, there is a solid line of intermediate appeal court authority affirming the Wilkinson v Downton principle. Battista v Cooper51 was the first case to apply the decision after an interval of nearly 50 years. This was an application for criminal injuries compensation by the widow and three children of a man who was shot and killed in the presence of his wife during an armed hold-up. The South Australian Full Court said that it was not only the direct victim of the crime who could claim; all who would have had an action for common law damages were eligible. This focused attention on the rights in tort of the four claimants. The court said it was appropriate to apply the rules relating to intentional wrongdoing, and awarded compensation to all four applicants on the basis of the Wilkinson v Downton principle. In Carrier v Bonham52 in 2002, the defendant, who had been allowed to wander away from a psychiatric hospital to which he had been admitted the same evening, stepped out in the road in front of a bus driven by the plaintiff, intending to kill himself. The plaintiff braked sharply, though the defendant still suffered minor injuries. The plaintiff suffered psychiatric injury as a result of the experience. The Queensland Court of Appeal held that the defendant was liable both in negligence and under Wilkinson v Downton. The main point in issue was whether the defendant’s unsoundness of mind affected the outcome. As will be seen later, McPherson JA in a learned judgment 44

Tame v New South Wales (2002) 211 CLR 317.

45

Tame v New South Wales (2002) 211 CLR 317 at [179].

46

Magill v Magill (2006) 226 CLR 551 (a case on the application of the tort of deceit to false representations as to fatherhood).

47

Magill v Magill (2006) 226 CLR 551 at [117].

48

Monis v The Queen (2013) 249 CLR 92 (a criminal prosecution for using the post in a manner that is menacing, harassing or offensive).

49

Monis v The Queen (2013) 249 CLR 92 at [223].

50

Monis v The Queen (2013) 249 CLR 92 at [242].

51

Battista v Cooper (1976) 14 SASR 225.

52

Carrier v Bonham [2002] 1 Qd R 474.

[30.150]

30 Wilkinson v Downton

1027

explored the relationship between Wilkinson v Downton and negligence.53 The Wilkinson v Downton principle was regularly referred to in other cases;54 in one case before the Victorian Supreme Court five plaintiffs involved in an anti-logging protest in the Otway Ranges were held entitled to recover substantial damages under Wilkinson v Downton in respect of various activities by the loggers that caused them to suffer psychiatric injury.55 [30.150] Despite the reservations expressed by Lord Hoffmann in Wainwright v Home Office56 and the views expressed by Gummow, Kirby and Crennan JJ in Tame v New South Wales57 and Magill v Magill,58 State courts of appeal have continued to uphold the Wilkinson v Downton principle. The first post-Magill case to raise the issue of Wilkinson v Downton was Nationwide News Pty Ltd v Naidu,59 where the plaintiff suffered bullying and harassment at work at the hands of his supervisor. As discussed in Chapter 20,60 the New South Wales Court of Appeal held that Nationwide was vicariously liable in negligence for the supervisor’s conduct. Spigelman CJ and Basten JA also found that the supervisor wilfully committed a series of acts calculated to cause Mr Naidu physical harm, being a recognised psychiatric injury, which constituted an intentional tort under Wilkinson v Downton. As for the observations suggesting that this tort had been superseded by negligence, Spigelman CJ said: “[T]his court should follow the acceptance by the High Court of the authority of Wilkinson v Downton in Bunyan v Jordan and in the joint judgment in Northern Territory v Mengel”.61 Another important case was Giller v Procopets62 in the Victorian Court of Appeal. Here the defendant had secretly videotaped himself and his de facto partner having sexual intercourse, and after the breakdown of the relationship showed or 53

See [30.550]–[30.580].

54

See eg Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Rep 80-101; Nichevich v Fullin (unreported, WASC, Appeal No 181 of 1989, 18 July 1990); Wodrow v Commonwealth (1991) 105 FLR 278; Pavlovic v Commonwealth Bank of Australia (1991) 56 SASR 587; Gimson v Victoria Workcover Authority [1995] 1 VR 209; Coyne v Commercial Equity Corporation Ltd (1998) 20 WAR 109; Tuxford v New South Wales [2006] NSWSC 182.

55

McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289. There were 12 plaintiffs and 16 defendants, and the judgment occupied 2,616 paragraphs. Appeals by the plaintiffs were dismissed by the Victorian Court of Appeal in McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250: the Wilkinson v Downton claims were not in issue on the appeal. 56

Wainwright v Home Office [2004] 2 AC 406.

57

Tame v New South Wales (2002) 211 CLR 317.

58

Magill v Magill (2006) 226 CLR 551.

59

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471. See A Rathmell and M Whitbourn, “Wilkinson v Downton at Work: Employer’s Liability for Intentionally Inflicted Psychiatric Injury” (2008) 21 AJLL 339.

60

See [20.400].

61

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [72].

62

Giller v Procopets (2008) 24 VR 1, noted by N Witzleb (2009) 17 TLJ 121.

1028

Part VI: Intentional Acts

[30.160]

attempted to show the videotape to her friends and family. The problem was that although this caused considerable distress to the plaintiff, there was no evidence of resulting psychiatric injury or any other form of physical harm. Maxwell P was prepared to extend the tort to the intentional causing of emotional distress, commenting that “both the law and psychiatry have come a long way since 1897”.63 However, Ashley JA held that the Australian authorities prevented such an extension, and while Neave JA agreed with Maxwell P that the authorities did not prevent the contemplated extension, she was of the opinion that it should be decided upon by Parliament rather than the courts. What is important for present purposes is that all three judges recognised the continuing existence of the Wilkinson v Downton principle. This principle was also the subject of discussion in another case in the Victorian Court of Appeal, Carter v Walker.64 In this case the plaintiff arrived to see his mother being put into an ambulance after the police had been called to deal with a domestic dispute, and alleged that as a result he suffered shock. The plaintiff sued for battery. What should have been a simple enough case was confused by the arguments of counsel and the finding of the first instance judge that the tort of battery was wide enough to cover cases of shock caused to secondary victims — due, it is suggested, to a misinterpretation of Battista v Cooper,65 which was taken to be an authority on battery. The Court of Appeal allowed the appeal on the battery issue by restoring the orthodox view of the scope of this tort. Wilkinson v Downton was discussed at some length. The court recognised the continuing existence of this tort in Australia, but unfortunately the confusion about Battista v Cooper led them to impose some highly debatable limits on its scope.66 Other cases have continued to apply the Wilkinson v Downton principle.67

Canada [30.160] In Canada, the principle of Wilkinson v Downton has given rise to over 50 decisions since the mid-1980s. In Rahemtulla v Vanfed Credit Union,68 the principle was invoked where an employee wrongfully accused of taking money had been summarily dismissed, and in consequence had suffered depression accompanied by signs of physical illness. In earlier cases where employees had sued for wrongful dismissal and claimed damages for mental distress, it was suggested that it might 63

Giller v Procopets (2008) 24 VR 1 at [6].

64

Carter v Walker (2010) 32 VR 1, noted by P Handford (2012) 20 Tort L Rev 3.

65

Battista v Cooper (1976) 14 SASR 225: see [30.280].

66

See [30.290].

67

See eg Habib v Commonwealth (No 2) (2009) 175 FCR 350; Habib v Commonwealth (2010) 183 FCR 62; Aksentijevic v Victoria Racing Club Ltd [2011] VSC 538; JMD v GJH [2012] WADC 124; Clavel v Savage (No 2) [2014] NSWSC 463.

68

Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200.

[30.170]

30 Wilkinson v Downton

1029

be preferable to sue in tort,69 and in Rahemtulla McLachlin J, a future Chief Justice of Canada, acted upon this suggestion and held the employer liable under Wilkinson v Downton. Accepting that in order to be liable under this principle the defendant’s conduct had to be “flagrant and outrageous”, her Ladyship held that the conduct had to be “plainly calculated to produce some effect of the kind which was produced”, and result in a “visible and provable illness”.70 In another leading case, Timmermans v Buelow,71 the plaintiff’s landlord, in an attempt to evict the plaintiff from his apartment, threatened to “bring some guys over”, as a result of which the plaintiff “would be in the hospital”. The plaintiff was already prone to panic attacks, as the defendant knew, and as a result of these threats (even though in the end they were not carried out) his mental condition progressively worsened. Catzman J, without mentioning Wilkinson v Downton by name, held the defendant liable for the intentional infliction of nervous shock.72 A helpful annotation to the report analysed the requirements of the cause of action in detail.73 [30.170] McLachlin J’s judgment in Rahemtulla v Vanfed Credit Union74 is now recognised as the beginning of a restatement by Canadian courts of a tort that is now known as intentional infliction of mental suffering or mental distress. The requirements as outlined by McLachlin J are regularly referred to in subsequent cases, along with subsequent restatements such as that in Prinzo v Baycrest Centre for Geriatric Care,75 which has spelled out McLachin J’s second requirement in a little more detail: according to Weiler J, “the requirement that the conduct be calculated to produce harm is met where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow”.76 The tort has been invoked or 69

See Bohemier v Storwal International Inc (1982) 142 DLR (3d) 8 at 18 per Sanders J; Fitzgibbons v Westpres Publications Ltd (1983) 50 BCLR 219 at 231 per Wallace J.

70

Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200 at 215–216.

71

Timmermans v Buelow (1984) 38 CCLT 136.

72

The principle endorsed in this case was referred to in Frame v Smith [1987] 2 SCR 99 and Hasenclever v Hoskins (1988) 47 CCLT 225, but not applied on the facts because no “visible or provable illness” had been shown to exist. In Frame v Smith the Supreme Court of Canada overruled Cant v Cant (1984) 49 OR (2d) 25, where a county court judge had held that Wilkinson v Downton could be used in the context of a family dispute concerning custody and access to children. See also Sturkenboom v Davies (1996) 187 AR 290; Louie v Lastman (2001) 199 DLR (4th) 726 (appeal dismissed Louie v Lastman (2003) 217 DLR (4th) 257).

73

J Irvine, annotation to Timmermans v Buelow (1984) 38 CCLT 136 at 137–141.

74

Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200.

75

Prinzo v Baycrest Centre for Geriatric Care (2002) 215 DLR (4th) 31 at [45] per Weiler JA. One trial judge misstated the test: see Boucher v Wal-Mart Canada Corporation (2014) 374 DLR (4th) 293.

76

Cases adopting the test include Clark v Canada (TD) [1994] 3 FC 323 at 350 per Dubé J; Cohen v Wilder [1996] BCJ No 856 at [24] per Stansfield Prov Ct J; Clark v Rocky View No 44 (Municipal District) (1996) 183 AR 321 at 357 per Lutz J; Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84 at 103 per Russell J; McGeady v Saskatchewan Wheat Pool (1998) 174 Sask R 110 at 114–115 per Scheibel J; Thibeault v Canadian Airlines

1030

Part VI: Intentional Acts

[30.170]

referred to in dozens of appellate cases and many more at first instance.77 It has been suggested that the tort owes something to the United States tort of intentional infliction of emotional distress,78 but nonetheless it remains necessary to establish a visible and provable illness. In Boothman v Canada,79 the Federal Court held that the Crown in its capacity as employer was vicariously liable for psychiatric harm caused to the plaintiff in her employment. She was a woman with a fragile mental personality; her supervisor, Stalinski, who knew this, attempted to control her by what amounted to systematic harassment, including threats of bodily harm, insults in front of others, profanities, monitoring her breaks and forbidding her to leave the office without permission. There was evidence that this was done deliberately to fragment her personality and destroy her sense of self-worth, and it succeeded. The plaintiff recovered for psychiatric harm. Noël J, adopting statements made in Timmermans v Buelow,80 said that the cause of action required an overt act, whether physical, verbal or both; intent by the defendant; circumstances that would lead a reasonable person in the position of the defendant to foresee a reasonable likelihood of fear or emotional upset on the part of the plaintiff; and actual harm amounting to nervous shock. In Clark v Canada (TD),81 another leading case, the plaintiff, a female officer in the Royal Canadian Mounted Police, complained of harassment by her male colleagues. Dubé J, awarding damages, confirmed that Wilkinson v Downton was capable of applying to a course of harassing and International Inc 2000 BCSC 1191 at [11] per Warren J; Sopinka (Litigation guardian of) v Sopinka (2001) 55 OR (3d) 529 at [41] per Quinn J; Leschyna v CIBC World Markets Inc 2005 CanLII 49205 at [27] per Whitten J; Sulz v Canada (Attorney General) (2006) 263 DLR (4th) 58 at [140] per Lamperson J; High Parklane Consulting Inc v Royal Group Technologies Ltd 2007 CanLII 410 at [31] per Perell J; Young v Borzoni (2007) 277 DLR (4th) 685 at [24] per Thackray JA; Young v Lort 2007 BCCA 1152 at [41] per Wilson J; Correia v Canac Kitchens (2008) 294 DLR (4th) 525 at [77] per Rosenberg and Feldman JJA; Windrem v Couture 2009 SKQB 339 at [130]–[131] per Gunn J; Dechant v Law Society of Alberta (2010) 406 AR 4 at [1135] per Park J; Piresferreira v Ayotte (2010) 319 DLR (4th) 665 at [27] per Juriansz JA; Danovic v Wagner 2014 ONSC 2664 at [52] per Leach J. 77 Appellate examples include Buxbaum (Litigation guardian of) v Buxbaum [1997] OJ No 5166; Louie v Lastman (2001) 199 DLR (4th) 726 (appeal dismissed Louie v Lastman (2003) 217 DLR (4th) 257); Prinzo v Baycrest Centre for Geriatric Care (2002) 215 DLR (4th) 31; Topgro Greenhouses Ltd v Houweling [2006] BCCA 183; Young v Borzoni (2007) 277 DLR (4th) 685; Young v Lort 2007 BCCA 1152; Correia v Canac Kitchens (2008) 294 DLR (4th) 525; Piresferreira v Ayotte (2010) 319 DLR (4th) 665. 78

See [30.600]–[30.650]. Note the suggestion in some cases, apparently based on GHL Fridman, The Law of Torts in Canada (Carswell, Toronto, 1989), Vol 1, pp 47–48, that the cause of action is not so much based on the physical consequences as the causing of emotional harm: see eg Bell-Ginsburg v Ginsburg (1993) 14 OR (3d) 217 at 223 per Rosenberg J; Filion v 689543 Ontario Ltd [1993] OJ 1659 at [55] per Master Sandler.

79

Boothman v Canada [1993] 3 FC 381.

80

Timmermans v Buelow (1984) 38 CCLT 136. Boothman v Canada [1993] 3 FC 381 at 391 per Noël J, referring to these tests as having been outlined by Catzman J; in fact, they are part of the annotation to Timmermans v Buelow by J Irvine (1984) 38 CCLT 136.

81

Clark v Canada (TD) [1994] 3 FC 323.

[30.190]

30 Wilkinson v Downton

1031

intimidating conduct. The judgment contains an in-depth discussion of the principles of the tort with comprehensive references to the case law and the academic literature.

Other jurisdictions [30.180] Wilkinson v Downton has recently been considered at length by Hogan J of the Irish High Court in Sullivan v Boylan.82 The plaintiff was hounded by a debt collector who contacted her repeatedly by phone and email and parked a van outside her house that bore the sign “Licensed Debt Collectors”. Hogan J considered the potential application of Wilkinson v Downton, but concluded that the claim was not for physical injury but for “the acute distress caused by the outrageous invasion of her personal space”.83 However, he was able to award substantial damages to the plaintiff for violation of her constitutional right to the inviolability of her dwelling. Wilkinson v Downton has also been applied by the Scottish courts,84 and considered in Northern Ireland.85 In Hong Kong, the principle has been invoked on at least three occasions since 1994.86 In New Zealand, the principle was discussed, but ultimately not applied, in a case where a “splatter movie” showed footage of the plaintiff’s family burial plot.87 In a South African case, where the claimant suffered shock when a policeman told her that her nephew (to whom she was close) had been shot dead by police, the court adopted a principle closely related to Wilkinson v Downton (which was not cited): it held that a person who deliberately frightens or shocks another cannot be heard to say that he or she could not foresee the natural consequences of his or her act.88

THE CAUSE OF ACTION Requirements of the cause of action [30.190] The case law on Wilkinson v Downton makes it possible to provide some elaboration of the basic prerequisites of the cause of action. First, even though Wright J’s principle contemplated any form of physical 82

Sullivan v Boylan [2013] IEHC 104.

83

Sullivan v Boylan [2013] IEHC 104 at [36].

84

Ward v Scotrail Railways Ltd [1998] ScotCS 95.

85

Breslin v McKenna [2009] NIQB 50.

86

Wong Kwai Fun v Li Fung [1994] HKCFI 21; Tso Yung v Cheng Yeung Hing [2003] HKEC 253; Wong Tai Wai v Hong Kong SAR Government [2004] HKEC 1093.

87

Bradley v Wingnut Films Ltd [1993] 1 NZLR 415. See also Hosking v Runting [2003] 3 NZLR 385 at [172] per Randerson J.

88

Boswell v Minister of Police 1978 (3) SA 678 (E). Unlike Els v Bruce 1922 EDL 295, which was an action for injuria (which deals with interests of personality), Boswell v Minister of Police was an action under the Lex Aquilia (which covers interests of substance). This made little difference to the principle on which liability was based, but limited the scope of the damages awarded. Injuria may still be an available remedy in appropriate cases: in N v T 1994 (1) SA 862 (C) a mother was held to have a cause of action in injuria for emotional shock caused by her daughter’s rape.

1032

Part VI: Intentional Acts

[30.200]

harm, in all the cases the damage of which the plaintiff complains consists of physical harm caused by nervous shock or, in more modern cases, consistently with the rules established for liability in negligence, a recognisable (or recognised) psychiatric illness. For example, in Nationwide News Pty Ltd v Naidu,89 Spigelman CJ said that what was required was a recognised psychiatric condition, and Ashley JA in Giller v Procopets90 referred to the need for a recognised psychiatric injury.91 The English cases are to the same effect: Dillon LJ in Khorasandjian v Bush92 said that the damage under Wilkinson v Downton was to be understood as referring to a recognisable psychiatric illness, and Hale LJ in Wong v Parkside Health NHS Trust93 said “The damage is physical harm or recognised psychiatric illness”.94 Authorities from other jurisdictions tell the same story.95 Even though the elements of liability have now been restated for Canadian law, McLachlin J in Rahemtulla v Vanfed Credit Union referred to the need for “a visible and provable illness”.96 [30.200] Wright J specified that the act must be “wilfully” done, and that it be “calculated to cause” the physical harm that resulted. These requirements have caused considerable difficulties that have been discussed at length in the case law, culminating in the recent restatement of what is required for the tort by the United Kingdom Supreme Court in Rhodes v OPO.97 These issues will be fully dealt with at [30.370]–[30.530]. 89

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [73].

90

Giller v Procopets (2008) 24 VR 1 at [164]–[165]; note also Neave JA at [459], but compare the view of Maxwell P at [7].

91

Note also McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289, where Ashley J at [127] referred to “objective and substantially harmful physical or psychopathological consequences”; and Habib v Commonwealth (No 2) (2009) 175 FCR 350 at [22], where Perram J emphasised that in Australia a distinction was drawn between mere distress and psychiatric harm.

92

Khorasandjian v Bush [1993] QB 727 at 736.

93

Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at [12].

94

Wong v Parkside Health NHS Trust [2003] 3 All ER 932 was followed in Mbasogo v Logo [2007] QB 846 at [100] per Clarke MR. See also C v D [2006] EWHC 166 (QB) at [94] per Field J.

95

See eg Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 421 per Gallen J (“a secondary longer-lasting reaction”, not mere emotional distress). In Sullivan v Boylan [2013] IEHC 104, Hogan J at [37] contrasted the position under Wilkinson v Downton with injuries to personality as recognised by the Roman law delict of injuria and modern civil law systems.

96

Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200 at 216. Many cases have affirmed this test: see [30.170]. Note also Mainland Sawmills Ltd v IWA-Canada 2006 BCSC 1195 at [16] per Prowse J, noting the difference between the Canadian position and the United States tort of intentional infliction of emotional distress, discussed at [30.600]–[30.650]. A few cases suggest that the cause of action is based not so much on physical consequences as on the causing of emotional harm: see eg Tran v Financial Debt Recovery Ltd (2000) 193 DLR (4th) 168 at [34] per Molloy J, followed in Murray v Toth (2012) 97 CCLT (3d) 318 at [37] per Crane J; Haggarty v McCullogh (2002) 309 AR 315 at 322, 324 per Skitsko PCJ; however, this is clearly a minority view, though one which has been espoused by Molloy J in other contexts: see [6.30].

97

O (A Child) v Rhodes [2016] AC 219.

[30.210]

30 Wilkinson v Downton

1033

[30.210] The conduct that precipitates the physical harm may take any form. Statements predominate in the cases — lies, as in Wilkinson v Downton itself,98 or threats, as in Janvier v Sweeney.99 Indeed, some recent judgments seem to suggest that the tort is confined to statements: for example, in O (A Child) v Rhodes,100 Lord Neuberger of Abbotsbury referred to it as “the tort of making distressing statements”, and the headnote in Janvier v Sweeney referred to “false words and threats” calculated to cause physical injury to the person. However, when Rhodes was in the English Court of Appeal, Arden LJ held that the tort was not restricted to false words and threats,101 and Jackson LJ added that statements did not have to be false.102 In the United Kingdom Supreme Court, the joint judgment of Baroness Hale and Lord Toulson defined the conduct element of the tort as requiring words or conduct directed towards the claimant for which there was no justification or reasonable excuse.103 In Carter v Walker,104 the Victorian Court of Appeal also specifically confirmed that Wilkinson v Downton applied to acts as well as words,105 on this point reversing the trial judge’s decision to the contrary.106 Older cases that involved conduct rather than statements, such as the suicide in A v B’s Trustees,107 are thus confirmed. What matters is not the kind of conduct but its likely effect on the plaintiff. The defendant’s motive may vary from the desire to play a practical joke to the opposite extreme — Duke LJ in Janvier v Sweeney referred to this case as “a much stronger case than Wilkinson v Downton”108 for precisely this reason. The action may lie for a course of conduct, rather than something that took place on a particular occasion.109 This has been particularly 98

See also Bielitski v Obadiak (1922) 65 DLR 627; Boswell v Minister of Police 1978 (3) SA 268 (E).

99

Janvier v Sweeney [1919] 2 KB 316. See also Stevenson v Basham [1922] NZLR 225; Els v Bruce 1922 EDL 295; Timmermans v Buelow (1984) 38 CCLT 136.

100

O (A Child) v Rhodes [2016] AC 219 at [101].

101

OPO v MLA [2014] EWCA Civ 1277 at [61]–[65].

102

OPO v MLA [2014] EWCA Civ 1277 at [119].

103

O (A Child) v Rhodes [2016] AC 219 at [74].

104

Carter v Walker (2010) 32 VR 1.

105

Carter v Walker (2010) 32 VR 1 at [254]–[263] per Buchanan, Ashley and Weinberg JJA.

106

Walker v Hamm [2008] VSC 596 at [253] per Smith J.

107

A v B’s Trustees (1906) 13 SLT 830. Note also the American case of Nelson v Crawford 81 NW 335 (Mich 1899) where the defendant dressed up as a ghost to frighten the plaintiff. There was no liability on the facts because the shock suffered by the plaintiff was due to her special susceptibility and the defendant, a “harmless lunatic”, had no intention to frighten her. Omissions are unlikely to give rise to liability: Piresferreira v Ayotte (2010) 319 DLR (4th) 665 at [70] per Juriansz JA. 108 109

Janvier v Sweeney [1919] 2 KB 316 at 326.

This has been confirmed by a number of Canadian authorities: Boothman v Canada [1993] 3 FC 381; Clark v Canada (TD) [1994] 3 FC 323; Bogden v Purolator Courier Ltd (1996) 182 AR 216; Smith v Alwarid [1996] YJ No 139; Young v Borzoni (2007) 277 DLR (4th) 685. See also McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289; Ward v Scotrail Railways Ltd [1998] ScotCS 95.

1034

Part VI: Intentional Acts

[30.220]

useful in cases where there is an employment relationship between the parties, a situation that is well developed in the Canadian jurisprudence.110 However, liability under Wilkinson v Downton can result from the abuse of other relationships, for example those between professionals and clients,111 landlords and tenants,112 debtors and creditors,113 hotels or restaurants and patrons,114 and in marital and like situations.115 In the United States, the case law on intentional infliction of emotional distress features similar relationship cases.116 [30.220] The principle of special sensitivity is recognised: if the defendant knows that the plaintiff is specially susceptible, his or her conduct may be viewed as calculated to cause harm to that particular

110

See Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200; Boothman v Canada [1993] 3 FC 381; Clark v Canada (TD) [1994] 3 FC 323; Blackmore v Cablenet Ltd (1994) 163 AR 41; Chaychuk v Best Cleaners & Contractors Ltd [1995] BCJ No 1203; Campbell v Wellfund Auto-Visual Ltd (1995) 14 CCEL (2d) 240; Bogden v Purolator Courier Ltd (1996) 182 AR 216; Clark v Rocky View No 44 (Municipal District) (1996) 183 AR 321; Smith v Alwarid [1996] YJ No 139; Schuenneman v Riello Canada Inc [1997] OJ No 3299; Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84; McGeady v Saskatchewan Wheat Pool (1998) 174 Sask R 110; Thibeault v Canadian Airlines International Inc 2000 BCSC 1191; Sulz v Canada (Attorney General) (2006) 263 DLR (4th) 58; Correia v Canac Kitchens (2008) 294 DLR (4th) 525. The employment cases are not confined to Canada: note Ward v Scotrail Railways Ltd [1998] ScotCS 95 (ticket inspector constantly harassed another employee with letters containing sexual content, causing anxiety disorder; the decision depends to some extent on Khorasandjian v Bush [1993] QB 727: see [30.120]). 111

See Bowler v Walker [1996] PIQR P22 (carer and patient: the decision deals with limitation issues); Powell v Boladz [1998] Lloyd’s Rep Med 116 (doctor and patient: pleadings did not make allegations necessary to hold defendants liable under Wilkinson v Downton). 112

See Timmermans v Buelow (1984) 38 CCLT 136.

113

See Filion v 689543 Ontario Ltd [1993] OJ No 1659.

114

See Cohen v Wilder [1996] BCJ No 856 (hotel manager offensive, faxed all hotels in area warning them about plaintiff: no liability because no visible and provable illness); Roasting v Lee (cob Famous Chinese Restaurant) (1998) 222 AR 234 (restaurant told would-be patron in wheelchair “we don’t serve your kind”).

115 Bell-Ginsburg v Ginsburg (1993) 14 OR (3d) 217 (bisexual husband exposed wife to risk of HIV and AIDS). However, in Danovic v Wagner 2014 ONSC 2664, the court rejected the proposition that one unmarried and mature individual persuading another unmarried and mature individual to consent to sexual intercourse could amount to flagrant and outrageous conduct, even where pregnancy resulted. In Frame v Smith [1987] 2 SCR 99 and Sturkenboom v Davies (1996) 187 AR 290, both involving child custody situations, claims under Wilkinson v Downton were struck out. In Morgan v Morgan (unreported, Fam Ct of Aust, No SY 9109/95, 9 May 1997) where matrimonial proceedings were transferred to the Supreme Court of New South Wales, the court did not rule on the Wilkinson v Downton claim. 116

See [30.630].

[30.230]

30 Wilkinson v Downton

1035

plaintiff although it would not affect a person of ordinary firmness.117 The physical harm must be caused by the defendant’s act,118 and it must not be too remote.119 [30.230] A number of potential defences are canvassed in the case law. Freedom of speech was an important issue in O (A Child) v Rhodes,120 where the United Kingdom Supreme Court refused to issue an injunction to prevent publication of a book in which the author provided graphic descriptions of his experiences of being sexually abused as a child, in an action brought by his ex-wife in an attempt to ensure that their child did not read it. The joint judgment of Baroness Hale and Lord Toulson commented that “The book is for a wide audience and the question of justification has to be considered accordingly, not in reaction to the claimant in isolation”,121 and that “Freedom to report the truth is a basic right to which the law gives a very high level of protection”.122 It has been suggested123 that in Australia a Wilkinson v Downton cause of action would be subject to a defence based on the implied freedom of political communication that has been recognised by the Australian High Court.124

117 For discussion of this principle, see Bunyan v Jordan (1937) 57 CLR 1 at 14 per Latham CJ, and note Arden LJ’s reference to it in OPO v MLA [2014] EWCA Civ 1277 at [68]. See also Timmermans v Buelow (1984) 38 CCLT 136; Boothman v Canada [1993] 3 FC 381; Campbell v Wellfund Auto-Visual Ltd (1995) 14 CCEL (2d) 240; Els v Bruce 1922 EDL 295. 118

See Bielitski v Obadiak (1922) 65 DLR 627, where it was argued that, since the defendant’s tale had reached the plaintiff through repetition by others, there was no liability on the basis that the intervening acts had broken the chain of causation. The court held that in such a situation there was a responsibility to break the bad news to relatives, and so the story was as certain to reach the plaintiff as if the defendant had told her himself. Haultain CJS, however, dissented from the majority on this ground. Bietlitski v Obadiak was discussed by Gray J in Austen v University of Wolverhampton [2005] EWHC 1635 (QB) at [12].

119

See Wright J’s discussion of remoteness in Wilkinson v Downton [1897] 2 QB 57 at 59–61.

120

O (A Child) v Rhodes [2016] AC 219.

121

O (A Child) v Rhodes [2016] AC 219 at [75].

122

O (A Child) v Rhodes [2016] AC 219 at [76]; see also at [97] per Lord Neuberger of Abbotsbury. Another example is Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Rep 80-101 (family members attempted to get second defendant out of church premises where she worked, were filmed by TV company: claim for injunction to prevent showing of film footage on basis of Wilkinson v Downton refused because it would deter freedom of speech).

123

See A Gray, “Wilkinson v Downton: New Work for an Old Tort to Do?” (2015) 23 Tort L Rev 127 at 144.

124

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

1036

Part VI: Intentional Acts

[30.240]

Other defences recognised in the case law include just cause125 and unsoundness of mind.126 There will be no liability if the harm was self-inflicted.127 [30.240] As noted at [30.120], in English cases of the 1990s there was some suggestion that Wilkinson v Downton could be the basis for a tort remedy for harassment, but the English Court of Appeal ultimately confirmed that there was no tort of harassment at common law.128 Cases in Australia129 and Canada130 have confirmed that the common law does not recognise a tort of harassment as such.131 However, Wilkinson v Downton may give a remedy for conduct of this kind, if the elements of the tort are made out: employment cases such as Nationwide News Pty Ltd v Naidu132 provide examples.

Liability to secondary victims of intentional acts [30.250] Other chapters133 have stressed the importance of the decision in Hambrook v Stokes Bros134 recognising that there could be liability in negligence for shock suffered by someone other than the primary accident victim. Prior to this, all the cases involved plaintiffs who suffered shock through fear for their own safety, because they were within the “zone of danger” created by the defendant’s negligence. Hambrook v Stokes Bros was the catalyst for the recognition of liability to a wide range of secondary parties who suffer psychiatric injury as a consequence of the original act of negligence. The gradual extension of this liability, through avenues such as relationship, aftermath and different means of communication, has been documented in the foregoing pages. [30.260] What is the position of such secondary parties when the original act is intentional rather than negligent? In principle, if there is 125

See Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200 (plaintiff wrongfully accused of taking money, summarily dismissed, suffered distress with physical consequences: allegation of just cause unsuccessful); Potter v Rowe [1990] BCJ No 2912 (dispute between hospital and volunteer worker who ran gift shop: held, there was just cause for removing her from her position).

126 See Buxbaum (Litigation guardian of) v Buxbaum [1997] OJ No 5166; Carrier v Bonham [2002] 1 Qd R 474. 127

Kindret v Cutrozzolo (1986) 72 AR 126 (plaintiff claimed to suffer nervous shock as result of phone call, but she had arranged to record call to obtain evidence against defendant).

128

Wong v Parkside Health NHS Trust [2003] 3 All ER 932.

129

Habib v Commonwealth (No 2) (2009) 175 FCR 350 at [21] per Perram J.

130

Pelletier v Collins (2012) 403 Sask R 125 at [27] per Dawson J. The issue was discussed by Prowse J in Mainland Sawmills Ltd v IWA-Canada 2006 BCSC 1195 at [12]–[17], but since the evidence fell short of establishing harassment her Ladyship did not have to decide the issue. 131 The issue has been canvassed inconclusively in Hong Kong and Ireland: see Wong Tai Wai v Hong Kong SAR Government [2004] HKEC 1093; O’C v The KLH [2006] IEHC 199. 132

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471.

133

See [2.50], [10.10].

134

Hambrook v Stokes Bros [1925] 1 KB 141.

[30.260]

30 Wilkinson v Downton

1037

liability when the initial act is negligent there should be liability in such a case, either under Wilkinson v Downton or in negligence. Acts of intentional violence are prone to leave a trail of shock victims in their wake. A single such act may be seen by one other person or by many. A United States example of the former situation is Mahnke v Moore,135 where the father of the plaintiff, a five-year-old girl, blew her mother’s skull to pieces in her presence and kept the body in the house with them for six days. He then committed suicide by shooting himself with a shotgun, thereby causing masses of blood to lodge upon his daughter’s face and clothing. She successfully sued the executrix of her father’s estate in tort for shock, mental anguish and permanent nervous and physical injuries. A similar action could be contemplated in a case of rape, for example where a mother is sexually assaulted in the presence of her children,136 or where a person is traumatised by the fact of the rape of a loved one even if they did not witness it.137 Turning to cases where there were multiple victims of a single act of violence, two graphic illustrations are provided by an instance in Western Australia where a rejected boyfriend stabbed to death the 15-year-old girl who was the object of his affections in a classroom in front of other students, many of whom suffered shock and required intensive post-trauma counselling,138 and a Queensland case where criminal injuries compensation was awarded to a 27-year-old legal secretary for post-traumatic stress disorder resulting from a distressing incident on her wedding day when a gunman opened fire on the wedding car, narrowly missing the bride herself and wounding the chauffeur and a bridesmaid.139 Other examples could be cited.140 Where there are multiple acts of violence there are likely to be many trauma victims also. There are

135

Mahnke v Moore 77 A 2d 923 (Md 1951). Note CP Malmquist, “Psychiatric Aspects of Familicide” (1980) 8 Bull Am Acad Psy Law 221; RS Pynoos and S Eth, “Familicide” (1984) 40 Journal of Social Issues 87.

136

See Anon (unreported, CICB, 19 June 1992), noted in (1992) 142 New LJ 1415, and N v T 1994 (1) SA 862 (C), discussed at [30.280].

137

As in T v South Australia (1992) 59 SASR 278. The victims themselves will have a civil cause of action for assault and battery, as for example in AB v IJ (1991) 119 AR 210 where three children sued their father for sexual assaults and recovered damages. Another possibility would be a claim for criminal injuries compensation.

138

See “Students witness classroom killing”, The West Australian, 7 November 1991; “Killing still haunts pupils”, The West Australian, 21 March 1992. Note also an incident at Monash University in October 2002 where a student opened fire in an economics tutorial, killing two classmates and wounding five others. 139

Re Kelly and Criminal Code of Queensland (unreported, Qld SC, No 363 of 1991, 26 February 1992). 140

Breslin v McKenna [2009] NIQB 50 was a claim for damages sustained as the result of a bomb explosion at Omagh, Northern Ireland on 15 August 1998. The defendants were named individuals associated with the “Real IRA” (Irish Republican Army). Wilkinson v Downton was one of the potential causes of action discussed by Morgan J, but the claims were brought in trespass.

1038

Part VI: Intentional Acts

[30.270]

far too many recent examples:141 in terms of scale, the most notorious took place in Norway on 22 July 2011, when Anders Breivik killed 77 people, many of them schoolchildren, in a series of shootings in Oslo and then on a holiday island not far away. In Australia, on 28 April 1996, Martin Bryant went on the rampage at the Port Arthur Historic Site in Tasmania, killing 35 people and injuring a further 19.142 In Scotland, only a month earlier, Thomas Hamilton entered the Dunblane Primary School and shot dead 16 schoolchildren and a teacher before turning the gun on himself.143 In Canada in December 1989, Marc Lepine shot dead 14 young women at the University of Montreal. Over the last few years, mass killings have become almost a daily occurrence in the United States.144 In each case, a number of people, relatives and others, witnessed the incidents. Though it cannot be suggested that the killers in these instances intended to cause psychiatric damage to anyone, it would seem that they were at least reckless as to the consequences of their actions as regards third parties and should be under some civil liability if sued. The potential for multiple claims for psychiatric injury is as great, if not greater, in such situations as in disasters caused by negligence, such as Hillsborough. [30.270] The Wilkinson v Downton principle is capable of application where shock is suffered by people other than the primary victim of the defendant’s wrongful act.145 This is demonstrated by some of the early cases. In Johnson v Commonwealth146 the plaintiff suffered shock when agents of the defendant entered her house, assaulted her husband in her 141

Even these cases, of course, are eclipsed by recent mass tragedies resulting from terrorist activity, such as the attack on the World Trade Towers in New York and the Pentagon in Washington on 11 September 2001, the Bali bombings on 12 October 2002 and 1 October 2005, the London underground bombings on 7 July 2005, and the Paris terror attacks on 13 November 2015.

142

Earlier Australian incidents include the shooting of seven people dead and the wounding of 19 others by Julian Knight in Hoddle St, Melbourne in August 1987; the gunning down of eight people by Frank Vitkovic in an office block in Queen St in the same city three months later; and the knifing of a girl in a café and the shooting of another six people in a nearby shopping centre by Wade Frankum at Strathfield, New South Wales in August 1991, culminating in Frankum ordering a car driver to give him a lift and shooting himself in her presence.

143

Another United Kingdom example is Michael Ryan’s rampage through the streets of Hungerford, killing 16 people and wounding 11 others, in August 1987. Jackson (unreported, Eng CICB, 18 May 1989) was a claim for criminal injuries compensation by one of the victims who suffered post-traumatic stress disorder as a result of being shot by Ryan and seeing him shoot his mother, her husband, his workmate and a police officer. 144

Federal Bureau of Investigation, A Study of Active Shooter Incidents in the United States between 2000 and 2013 (2013) reports that there were 160 such incidents in the period studied, resulting in 1,043 casualties including 486 persons killed. Such incidents continue, notably the school shootings at San Bernardino, California on 2 December 2015, in which 16 persons were killed and 19 injured. 145

For the analogous situation under the United States tort of intentional infliction of emotional distress, see [30.640].

146

Johnson v Commonwealth (1927) 27 SR (NSW) 133.

[30.280]

30 Wilkinson v Downton

1039

presence and arrested him. In Purdy v Woznesensky147 the plaintiff’s husband was assaulted in her presence, and the plaintiff suffered shock, thinking that her husband had been killed. In another early case, Stevenson v Basham,148 a wife, lying in bed in another room, overheard a threat made to her husband to burn their house down, and suffered shock. In each case the defendant was held liable to the plaintiff under the theory of Wilkinson v Downton.149 [30.280] If compared with negligence-based liability, these are straightforward cases. The relationship between husband and wife is one of the obvious cases in which the law has always recognised a right to recover, and now presumes it; in each case the plaintiff was present and saw (or in Stevenson v Basham,150 heard) the occurrence. But is the Wilkinson v Downton principle capable of extension to more distant relationships, including those outside the immediate family, or to mere bystanders, or aftermath cases, or any of the other situations dealt with in other chapters? Strong indications of its potential width are given by Battista v Cooper.151 This case recognised that the wife and children of a murdered man had a cause of action under Wilkinson v Downton, on the basis that the defendant’s action was calculated to cause physical harm, in the form of shock, to them. It is especially noteworthy that those who recovered compensation, and could have successfully sued, included not only the wife of the victim, who was present at the time of the shooting, but his three children who, it appears, were not present but learned subsequently of the tragedy, some of them, at least, seeing their father admitted to hospital.152 Bray CJ, delivering the judgment of the court, was clearly of the view that the scope of shock liability flowing from an intentional act was at least as wide as in negligence: [T]here is no reason for restricting the category of plaintiffs who can recover for physical injury from an intentional tort to those who could recover in the same circumstances if the tort were a negligent one, and every reason, in my opinion, for widening it. It is natural to expect much more lasting and serious emotional damage from the murder of a husband or father than from his death by being run down in the street. There is a discussion of this question in Fleming on Torts 4th ed (1971), at 32-35, and, with respect, I agree with what the learned author says. Certainly the intended consequences of a tort can never be too remote. And if intended consequences as to A produce unintended 147

Purdy v Woznesensky [1937] 2 WWR 116.

148

Stevenson v Basham [1922] NZLR 225.

149

Note also Clavel v Savage [2004] NSWSC 292 (cause of action by secondary victim under Wilkinson v Downton held to be adequately pleaded). In Buxbaum (Litigation guardian of) v Buxbaum [1997] OJ No 5166, where the defendant murdered his wife in the plaintiff’s presence and the plaintiff recovered for her nervous shock, the cause of action is not specified, but it can be inferred that it was likely to be Wilkinson v Downton. 150

Stevenson v Basham [1922] NZLR 225.

151

Battista v Cooper (1976) 14 SASR 225.

152

Another instance would be the effect of rape or sexual assault on those not present at the time of the offence, as for example if the mother of the children sexually assaulted by their father in AB v IJ (1991) 119 AR 210 had suffered traumatic injury as a result.

1040

Part VI: Intentional Acts

[30.290]

consequences as to B, I think that B can still recover if his connection with A is not too remote. The Canadian and New Zealand cases cited in Fleming support this proposition. A defendant who knowingly spread a false rumour that the plaintiff’s son had committed suicide was held liable for nervous shock to her upon the rumour reaching her: Bielitzki v Obadisk [sic]. A defendant, who made a threat to the plaintiff’s husband inside the house that she and her husband were occupying to burn it down, the threat being overheard by her when she was in a bedroom where she was lying and when she was pregnant at the time, was held liable for the nervous shock she sustained. It is true that he knew that she was there: Stevenson v Basham. In Janvier v Sweeney the defendants during the 1914-1918 war threatened the plaintiff, a French citizen engaged to a German, with internment. They were private detectives and their object was to induce her to hand over to them letters in the possession of her employers for the purpose, presumably, of a divorce suit. The shock caused her actual physical injury and she suffered damages. Supposing she had reported to her German fiancé what had happened and he had sustained physical injury from shock also. Could he not have recovered? I think he could. In my opinion, an intentional tortfeasor is liable, not only for the injury caused directly to his victim, but to [sic] the injury indirectly caused to those connected with his victim or those witnessing the injury to the victim. I realise that the line must not be drawn too widely. Probably some element of foreseeability must still be present, but I think that an intentional tortfeasor, who must, ex hypothesi, be directing his mind to his act, ought to foresee the possibility of injury to a wider class of persons than those whom a court might find to have been within the reasonable foreseeability of the negligent driver of a car. It does not lie in the mouth of the murderer to say that he did not foresee and could not be expected to foresee that his crime would cause injury from shock or other emotional cause to the children of his victim.153

[30.290] The status of this decision has now been placed in some doubt by the decision of the Victorian Court of Appeal in Carter v Walker.154 In this case, the police had been called to deal with a domestic dispute. Marcus Walker arrived to see his 67-year-old mother being put into an ambulance, and suffered shock. His mother and brother, who had both been injured, sued the police for their injuries, and Marcus sued for the shock he had experienced. Due to the confused state of the pleadings, the trial judge managed to hold the police liable for the shock to Marcus in battery,155 on the basis of Battista v Cooper.156 The Victorian Court of Appeal reversed this decision and held that under the established limits 153

Battista v Cooper (1976) 14 SASR 225 at 230–231. Another example of recovery by a non-witness for psychiatric injury caused by an act of intentional violence directed at another is provided by the South African case of N v T 1994 (1) SA 862 (C), where a mother recovered damages for emotional shock and trauma consequent on the rape of her eight-year-old daughter by the defendant. This was justified as an application of the delict of injuria, which provides a remedy for intentionally caused injuries to the feelings. Assuming the requisite psychiatric harm is established, there seems no reason why a similar result could not have been produced under Wilkinson v Downton.

154

Carter v Walker (2010) 32 VR 1. See P Handford, “Battery, Traumatised Secondary Victims and Wilkinson v Downton” (2012) 20 Tort L Rev 3.

155

Walker v Hamm [2008] VSC 596.

156

Battista v Cooper (1976) 14 SASR 225.

[30.300]

30 Wilkinson v Downton

1041

of the tort of battery it could not possibly cover the shock suffered by Marcus. Wilkinson v Downton was discussed at length but despite Battista v Cooper the court was not prepared to recognise the possibility that it might apply on these facts. This was because the court came to the conclusion that the effect of Bray CJ’s judgment was to extend battery to secondary victims.157 It is respectfully submitted that this was wrong. The Chief Justice’s reference to the discussion of Wilkinson v Downton in the fourth edition of Fleming’s text shows quite clearly that he was discussing Wilkinson v Downton, not battery. The court in Carter v Walker solved the problem by holding that the Wilkinson v Downton tort would not be available on the facts of a case like Battista v Cooper.158 Given the error that led to this conclusion, it is respectfully suggested that courts not bound by Carter v Walker should ignore this aspect of the decision. [30.300] Another example of recovery by a secondary victim, which demonstrates that whether the harm was witnessed or not may not be significant in the context of the fact situation, is Butler v Workers’ Compensation Commission (Nfld).159 Mr Butler had suffered an injury at work and made a workers’ compensation claim. Because he could not read or write, his wife acted as his advocate. The Commission dealt with the claim in a high-handed manner, suggesting that the wife was the cause of his not returning to work and that she had an ulterior motive for not wanting him to work again, and Mr and Mrs Butler became concerned that his claim was not being adjudicated properly. As a result of the treatment they received at the hands of the Commission, each of them suffered psychiatric injury — the husband was diagnosed with an adjustment disorder and his wife had treatment for unipolar depression. Each was awarded damages for intentional infliction of mental suffering. The court viewed the Commission’s actions as principally directed towards the wife. Dealing with the husband’s claim, Russell J said: The tort of intentional infliction of mental suffering permits recovery in a case where the plaintiff suffers mental distress as a result of conduct directed not only towards himself but also in a case where the conduct is directed towards a third party. … As early as May, 1984 the defendant knew the first plaintiff was receiving treatment for stress and I accept the evidence of Dr Nurse that these actions, 157

Carter v Walker (2010) 32 VR 1 at [174], [180] per Buchanan, Ashley and Weinberg JJA. The court (at [242]–[244]) expressed concern about the width of Bray CJ’s statement that the intended consequences of a tort could never be too remote, and that if intended consequences to A produced unintended consequences to B, B could still recover if his connection with A was not too remote, and agreed with Brooking JA’s criticism of these propositions in Fagan v Crimes Compensation Tribunal [1981] VR 887 at 903–904. For the High Court decision In Fagan, see [11.160].

158 Carter v Walker (2010) 32 VR 1 at [266]–[267]. Compare the earlier endorsement of Battista v Cooper (1976) 14 SASR 225 by Ashley J in McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289: Ashley J said at [124] that it was not necessary for the defendant’s act to be directed at the plaintiff, but it was sufficient for the plaintiff to be within the range of foreseeable risk of pertinent harm. 159

Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84.

1042

Part VI: Intentional Acts

[30.310]

directed at his wife, caused additional stress and mental suffering. I conclude from this evidence that the first plaintiff has established that this conduct produced actual harm. I am also satisfied that the requisite intention to produce these consequences can be imputed as there was a reckless disregard as to whether or not mental suffering would ensue from these acts.160

The Commission was held liable under the principles of Wilkinson v Downton.161 [30.310] Despite this long line of Australian and overseas authorities, the New South Wales Court of Appeal has recently denied that Wilkinson v Downton can give rise to a cause of action for psychiatric harm at the suit of a secondary victim of intentional violence. In New South Wales v McMaster,162 Justin McMaster was shot by a police officer and his mother and sister, who witnessed the shooting, claimed damages for nervous shock and depressive illness. The claim was based initially on s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), and they were successful at trial, but on appeal it was held that the police could plead defences of self-defence and necessity, thus defeating the claim on the ground that there was no wrongful act.163 The plaintiffs attempted to overcome this obstacle by asserting that they had an independent claim against the defendants at common law under Wilkinson v Downton, based on the old New South Wales case of Johnson v Commonwealth.164 The New South Wales Court of Appeal was not prepared to allow this new argument because the pleadings were insufficient, it had not been raised in the court below, and important facts had not been determined; it was also questioned whether there was evidence of breach of duty. However, the Court of Appeal went further, denying the existence of any such cause of action. Except for Johnson v Commonwealth, none of the cases cited at [30.270]–[30.300] were referred to. Beazley P said: “For my part, I do not consider, at this point in the development of the law of tort, that Johnson ought to be recognised as authority for the existence of an independent tort for nervous shock, not dependent on the plaintiff also suffering physical injury.”165 It appeared that her Honour was much influenced by the High Court’s attitude to Wilkinson v Downton as manifested in Magill v Magill,166 despite the fact that this is by no means a unanimous attitude 160

Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84 at 103.

161

Note also Madden v Doohan [2012] IEHC 422, where a man was gunned down outside his home in an Irish village in 1999. His wife ran down the stairs in response to a loud noise and found him lying in a pool of blood. As a result, she developed symptoms of post-traumatic stress disorder and was awarded damages. There is no mention of Wilkinson v Downton or the nature of the cause of action.

162

New South Wales v McMaster (2015) 328 ALR 309.

163

New South Wales v McMaster (2015) 328 ALR 309 at [250] per Beazley P.

164

Johnson v Commonwealth (1927) 27 SR (NSW) 133.

165

New South Wales v McMaster (2015) 328 ALR 309 at [274].

166

Magill v Magill (2006) 226 CLR 551.

[30.320]

30 Wilkinson v Downton

1043

even in Australia, and is clearly out of line with the view of courts in other jurisdictions, notably the United Kingdom Supreme Court — an issue discussed at [30.460]–[30.530]. The issue of whether there should be a duty to the secondary victim if a defence is available against the primary victim remains open for discussion, although such an approach has generally been repudiated in the negligence context.167 It seems unfortunate that the New South Wales Court of Appeal has rejected this cause of action, especially in the face of a long line of authority to the contrary in other jurisdictions which was not considered by the court. [30.320] Assuming that Wilkinson v Downton remains available to those who are secondarily affected by deliberate wrongdoing, it should not be forgotten that they have an alternative cause of action in negligence, on the basis that the harm that they suffer is a foreseeable consequence of the defendant’s conduct. Sometimes the difference between the two causes of action is not clearly perceived. For example, Mackenzie JA of the Saskatchewan Court of Appeal in Purdy v Woznesensky,168 in describing liability under Wilkinson v Downton, appears to have lapsed into the language of negligence: [I]t seems to me that the defendant must be presumed as a reasonable man to know of the vital concern which a wife instinctively feels for the safety of her husband and the serious physical reactions which an attack upon him threatening injuries to his person would in all likelihood produce in her. Hence I think he should have foreseen that by causing her to witness such a sudden and violent assault as he made upon her husband he would probably upset her nervous system in such a way as to cause her some physical harm even if she were in fact, as she appeared to be at the time, in a healthy condition of body and mind. An intention to produce such an effect must therefore be imputed to him. It follows that by thus disregarding her legal right to maintain the safety and integrity of her person he committed a breach of duty towards her. Such I take to be the result of the authorities.169

However, in Stevenson v Basham,170 Herdman J set out in unambiguous terms the two possible remedies, and other cases are consistent with a negligence action being available independently of a remedy based on intention. In Bassanese v Martin171 a wife was awarded damages in negligence for a depressive illness consequent on the death of her husband, who was visiting the house of another woman for a sexual assignation and was stabbed by that woman’s jealous lover.172 It is noteworthy that the plaintiff was, of course, not present to see the 167

See [16.70]–[16.140].

168

Purdy v Woznesensky [1937] 2 WWR 116.

169

Purdy v Woznesensky [1937] 2 WWR 116 at 119–120.

170

Stevenson v Basham [1922] NZLR 225.

171

Bassanese v Martin (1982) 31 SASR 461.

172

Liability was admitted. Zelling J was unimpressed with the pleadings, which failed to make clear the basis on which the defendant would have been liable to the husband. He speculated that the plaintiff’s shock might, as much as anything, have been due to the activity in which the husband had been engaged when he met his death.

1044

Part VI: Intentional Acts

[30.330]

occurrence.173 In the United States, for many years, secondary victims of intentional wrongdoing have had the choice of recovery in negligence as an alternative to intention-based liability.174 The earliest case recognising such liability is Hill v Kimball175 where the plaintiff suffered shock and a resultant miscarriage when the defendant assaulted two servants in the plaintiff’s presence. This case antedates both Wilkinson v Downton and most of the case law on liability for negligent acts causing psychiatric injury. The continuing potentiality of the principle in secondary victim cases is attested by Ledger v Tippitt176 where the plaintiff was beside her de facto husband in their car when he was stabbed to death. The court held that a negligence claim could proceed. [30.330] Thus, those who suffer psychiatric injury as a result of acts directed at third parties have available remedies both in negligence and in an intention-based tort, provided the necessary preconditions are met. In the massacres described at [30.260] the perpetrators could potentially be liable not only to actions at the suit of the victims (or their estates or relatives) but also perhaps to bystanders and others who suffer psychiatric damage through witnessing the slaughter or its aftermath.

Do the Civil Liability Acts apply? [30.340] As discussed in Chapter 2,177 in the Australian Capital Territory, New South Wales, Tasmania and Victoria, the mental harm provisions of the Civil Liability Acts are limited to negligence and therefore should not apply to actions under Wilkinson v Downton. In addition, in New South Wales and Tasmania it is provided that the mental harm provisions do not apply to civil liability in respect of an intentional act done with intent to cause injury or death or that is sexual assault or

173

Note also Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, a claim for criminal injuries compensation on behalf of a child who suffered shock when told of his mother’s murder. The High Court made it clear that compensation could be claimed by those who had a cause of action for “nervous shock” at common law, although the right to compensation was not necessarily limited to such cases. 174

This action was recognised by Restatement of Torts Second, § 312: “If the actor intentionally and unreasonably subjects another to emotional distress which he should recognise as likely to result in illness or other bodily harm, he is subject to liability to the other for an illness or other bodily harm of which the distress is a legal cause, (a) although the actor has no intention of inflicting such harm, and (b) irrespective of whether the act is directed against the other or a third person.” (For the approach adopted by the Restatement of Torts Third, see § 47.) See also JE Hallen, “Damages for Physical Injuries Resulting from Fright or Shock” (1933) 19 Va L Rev 253. 175

Hill v Kimball 13 SW 59 (Tex 1890). See JE Hallen, “Hill v Kimball – A Milepost in the Law” (1933) 12 Tex L Rev 1. Note also Watson v Dilts 89 NW 1068 (Iowa 1902); Jeppsen v Jensen 155 P 429 (Utah 1916); Rogers v Williard 223 SW 15 (Ark 1920); Duncan v Donnell 12 SW 2d 811 (Tex 1928).

176

Ledger v Tippitt 210 Cal Rptr 814 (1985).

177

See [2.430]–[2.440].

[30.350]

30 Wilkinson v Downton

1045

other sexual misconduct.178 Some cases in which Wilkinson v Downton has been applied might fall within this exception, but many, including Wilkinson v Downton itself, would not, and so it is the sections that limit the mental harm provisions to negligence cases that effectively exclude Wilkinson v Downton liability. South Australia and Western Australia are different. In South Australia, the legislation applies to the determination of liability for harm arising from “an accident”,179 which is an incident out of which personal injury arises.180 The two mental harm provisions are each found in a different Part of the Civil Liability Act 1936 (SA). Section 33, setting out the duty of care, is in Pt 6, entitled “Negligence”, which does not contain any express application provisions but is presumably limited to negligence. Section 53, which limits the situations in which damages can be recovered, is in Pt 8 dealing with personal injury damages, which applies where damages are claimed for personal injury arising from a motor accident (whether caused intentionally or unintentionally) or an accident caused by negligence or some other unintentional act or a breach of a contractual duty of care.181 There is no intentional wrongs exclusion. The presumed limitation of Pt 6 to negligence, and of Pt 8 to accidents caused by negligence, would seem to exclude Wilkinson v Downton claims, though it might be possible to bring such a claim in a case involving a motor accident.182 In Western Australia, the mental harm provisions in the Civil Liability Act 2002 apply to any claim for personal injury damages for mental harm, subject to s 3A,183 which provides that they do not apply to damages relating to personal injury caused by an unlawful intentional act that is done with an intention to cause personal injury to a person, or an intentional act that is a sexual offence, or sexual conduct that is otherwise unlawful. The effect of this is that at least some Wilkinson v Downton claims will be caught by the Act; in Wilkinson v Downton itself, for example, it could not be said that Downton’s false statement was made with an intention to cause personal injury. [30.350] A different question, and one that is potentially rather more important, is whether the damages limitation provisions of the Civil Liability Acts can be avoided by bringing an action under Wilkinson v Downton. As is well known, the Civil Liability Acts provide for caps on the amount awarded for certain categories of loss, and thresholds designed to eliminate smaller claims. The detailed provisions differ from 178

Civil Liability Act 2002 (NSW), s 28(3); Civil Liability Act 2002 (Tas), s 30. For the intentional wrongs exclusion provisions, see Civil Liability Act 2002 (NSW), s 3B(1)(a); Civil Liability Act 2002 (Tas), s 3B(1)(a).

179

Civil Liability Act 1936 (SA), s 4(1).

180

Civil Liability Act 1936 (SA), s 3.

181

Civil Liability Act 1936 (SA), s 51.

182

For examples of motor accidents in which there was an element of intention, but the action was brought in negligence, see Carroll v Folpp (unreported, NSWSC, No 225 of 1996, 10 February 1998); Cusack v Stayt (2000) 31 MVR 517.

183

Civil Liability Act 2002 (WA), s 5R(1).

1046

Part VI: Intentional Acts

[30.360]

one jurisdiction to another. It appears that in no jurisdiction are Wilkinson v Downton claims completely excluded. In New South Wales and Tasmania, the Parts of the legislation dealing with personal injury damages apply to an award of personal injury damages, except for awards excluded by the intentional wrongs exclusion in each jurisdiction.184 As has been noted, these will not necessarily exclude all Wilkinson v Downton claims. In Victoria, Pt VB of the Wrongs Act 1958 on personal injury damages likewise applies to an award of personal injury damages,185 defined as damages that relate to the death of or injury to a person caused by the fault of another person,186 but is again subject to an intentional wrongs exclusion.187 In Western Australia, Pt 2 of the Civil Liability Act 2002 again applies to the awarding of personal injury damages,188 defined in the same terms as in Victoria189 (though it should be remembered that the general provisions of the Act are potentially wider than most others in that they apply to liability for harm caused by the fault of a person).190 However, as in the jurisdictions already referred to, Pt 2 does not apply in cases covered by the intentional wrongs exclusion,191 which will exclude some, but not all, Wilkinson v Downton actions. In South Australia, as noted in [30.340], the personal injury damages provisions in Pt 8 of the Civil Liability Act 1936 apply where damages are claimed for personal injury arising from a motor accident (whether caused intentionally or unintentionally) or an accident caused by negligence,192 and will exclude most Wilkinson v Downton actions. [30.360] In the Australian Capital Territory, the Northern Territory and Queensland, the damages provisions apply to personal injury actions193 and there are no relevant exclusion provisions. It therefore appears that the damages provisions will apply to every case where an action is brought under Wilkinson v Downton.

THE LIMITS OF WILKINSON V DOWNTON Wilkinson v Downton and negligence [30.370] Until the re-awakening of interest in the tort in the 1990s, the Wilkinson v Downton principle was applied in comparatively few cases after the early years, and it was suggested that it might well be a dying 184

Civil Liability Act 2002 (NSW), s 11A(1); Civil Liability Act 2002 (Tas), s 24.

185

Wrongs Act 1958 (Vic), s 28C(1).

186

Wrongs Act 1958 (Vic), s 28B.

187

Set out in Wrongs Act 1958 (Vic), s 28C(2)(a).

188

Civil Liability Act 2002 (WA), s 6(1).

189

Civil Liability Act 2002 (WA), s 3.

190

See Civil Liability Act 2002 (WA), s 5A(1) and the heading to Pt 1A.

191

Civil Liability Act 2002 (WA), s 6(1).

192

Civil Liability Act 1936 (SA), s 51.

193

Civil Law (Wrongs) Act 2002 (ACT), s 93(1); Personal Injuries (Liabilities and Damages) Act (NT), s 4(1); Civil Liability Act 2003 (Qld), s 50.

[30.380]

30 Wilkinson v Downton

1047

cause of action.194 In stark contrast, negligence actions for psychiatric harm made major strides after the repudiation of Victorian Railways Commissioners v Coultas195 in the early years of the 20th century. Is it possible that Wilkinson v Downton owes its existence to the simple fact that it was not possible to sue in negligence for nervous shock in 1897, and that once the Coultas case disappeared into the past, negligence started to do the work once done by Wilkinson v Downton? Was the formulation of the principle in terms of intention by Wright J purely a device to evade the restrictions of the Privy Council decision,196 so once this problem disappeared actions that involved an element of deliberate conduct could more easily be based on failure to comply with the standard set by a reasonable person? There is some substance in this argument. However, another view suggests that this may not be the complete answer. According to this interpretation, the Wilkinson v Downton cause of action and negligence are conceptually distinct. Under Wilkinson v Downton, the act has to be wilful rather than merely negligent, and the harm inflicted must satisfy a higher standard than mere foreseeability. [30.380] Which of these views is correct depends on what Wright J’s statement of the principle actually means. This issue is by no means free from difficulty.197 First, the tortfeasor’s act is required to be wilful, which suggests that this is an intentional tort and not one based on negligence.198 However, in tort recklessness is usually grouped with intention, and the notion of wilful conduct is presumably wide enough to include recklessness as well as intention.199 According to the United States Restatement of Torts Second,200 conduct is intentional when the actor either desires to cause particular consequences or knows that they are certain or substantially certain to result from the act.201 Recklessness denotes that, though the consequences of the act are less than substantially certain the 194

See NJ Mullany and PR Handford, Tort Liability for Psychiatric Damage (Law Book Co, Sydney, 1993), p 290. 195

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

196

Alternatively, as his Lordship was not bound by decisions of the Privy Council he could have simply held that the case did not apply in relation to negligence, as the court in Dulieu v White & Sons [1901] 2 KB 669 did four years later.

197

See generally M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 175–184.

198

There is no need to show an intention to frighten (Bonham v Carrier (2000) 21 Qld Lawyer Reps 87 at 93 per Judge McGill SC), or a desire to cause mental distress or physical injury: McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [123] per Ashley J. 199

On the other hand, according to M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 175, “wilful” may simply have been intended to mean “voluntary”, the meaning given to this term in JF Clerk and WHB Lindsell, The Law of Torts (2nd ed, Sweet & Maxwell, London, 1896), p 7.

200 Parts of the Restatement of Torts Third have now been published (including that dealing with liability for physical and emotional harm) but these general provisions have not yet been superseded. 201

Restatement of Torts Second, § 8A.

1048

Part VI: Intentional Acts

[30.380]

risk of them occurring is greater than the mere foreseeability of consequences that characterises negligent conduct.202 Canadian case law suggested that recklessness was sufficient to ground liability under Wilkinson v Downton.203 Secondly, Wright J said that the defendant must have “wilfully done an act calculated to cause physical harm — that is to say, to infringe her legal right to personal safety”, and in fact thereby caused physical harm to the plaintiff.204 It might be thought that the causing of physical harm and infringing the legal right to personal safety were intended to be one and the same thing, but Lunney has suggested that this may not in fact be so, and that the legal right to personal safety may be more akin to the interest protected by torts of trespass to the person (which do not require proof of damage), rather than physical harm, a requirement that is more consistent with the damage that is an essential feature of liability in actions on the case.205 Thirdly, here and elsewhere, Wright J refers to the wrong done as an “injuria”, which he says is in law malicious. This also is somewhat mystifying. In Roman law terms the action is more closely related to the Aquilian action, which is concerned with injuries to interests of substance, rather than injuria, which redresses injuries to the feelings.206 As for malice, this is a term that is notoriously difficult to pin down, and in the law of torts it may have a

202

Restatement of Torts Second, § 500.

203

See Abramzik v Brenner (1967) 65 DLR (2d) 651 at 654 per Culliton CJS (“There can be no doubt but that an action will lie for the wilful infliction of shock, or a reckless disregard as to whether or not shock will ensue from the act committed”), followed in Rahemtulla v Vanfed Credit Union (1984) 51 BCLR 200 at 214 per McLachlin J; Correia v Canac Kitchens (2008) 294 DLR (4th) 525 at [83] per Rosenberg and Feldman JJA. However, Juriansz JA in Piresferreira v Ayotte (2010) 319 DLR (4th) 665 at [72]–[73] suggested that the court in Prinzo v Baycrest Centre for Geriatric Care (2002) 215 DLR (4th) 31 may have applied a different test. The restatement of Wilkinson v Downton liability by the United Kingdom Supreme Court in O (A Child) v Rhodes [2016] AC 219 excludes recklessness: see [30.530]. 204

Wilkinson v Downton [1897] 2 QB 57 at 58–59. According to M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 181–182, contemporary reports suggest that Wright J’s original formulation might have referred to an act calculated to cause physical pain which had in fact caused physical pain: see eg Wilkinson v Downton (1897) 13 TLR 388. The reports in Wilkinson v Downton [1897] 2 QB 57, Wilkinson v Downton (1897) 66 LJQB 493 and Wilkinson v Downton (1897) 76 LT 493 all contain the words as quoted in the text. 205

M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 180. The Wilkinson v Downton tort is often referred to as an action on the case for intentional harm, but it is suggested that there is no reason why a tort created in 1897, after the abolition of the forms of action, necessarily has to be regarded as an action on the case: PR Handford, “Wilkinson v Downton and Acts Calculated to Cause Physical Harm” (1985) 16 UWAL Rev 31 at 35–36; P Handford, “Intentional Negligence: A Contradistinction in Terms?” (2010) 32 Syd LR 29 at 55–56. For an argument that Wilkinson v Downton should be seen as an extension of trespass to the person, see S Wotherspoon, “Resuscitating the Wilkinson v Downton Tort in Australia” (2011) 85 ALJ 37.

206

See P Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Ir Jur 1 at 38–39.

[30.400]

30 Wilkinson v Downton

1049

number of different meanings. Lunney suggests207 that in view of the fact that Wright J only had a week to prepare his judgment, his source may have been the criminal case of R v Martin,208 where a man who extinguished the lights in a theatre and barricaded the exit, causing panic in which several people were injured, was convicted of unlawful and malicious wounding.209 The Court for Crown Cases Reserved said that the prisoner must be taken to have intended the natural consequences of his actions.210 [30.390] The chief problem in the passage in question from Wright J’s judgment is what was meant by an act “calculated” to cause physical harm211 — a problem compounded by the judge asking himself in the following paragraph “whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant”.212 “Calculated” seems to mean something between “intended” and “foreseeably likely”.213 The meaning cannot be so restricted as to require that the defendant should have intended the physical harm to occur, because in Wilkinson v Downton itself the defendant only intended to play a practical joke and seemingly did not either desire or realise that more serious consequences would follow. Wright J’s reference to imputing an intention to produce physical harm to the defendant may suggest that Downton intended to cause physical harm in the sense that while he had no desire to bring about the harmful consequences, they were substantially certain to follow. Cases where the court expressly referred to the defendant’s conduct as reckless214 are perhaps cases in which the defendant’s conduct was likely, rather than intended, to cause physical harm. [30.400] What is clear is that the physical harm must be more than merely foreseeable, because otherwise it will be difficult, perhaps 207

M Lunney, “Practical Joking and its Penalty: Wilkinson v Downton in Context” (2002) 10 Tort L Rev 168 at 178–179.

208

R v Martin (1881) 8 QBD 54.

209

See O (A Child) v Rhodes [2016] AC 219 at [37]–[44] per Baroness Hale and Lord Toulson, setting Wright J’s discussion of malice in its historical context.

210

Note also Boswell v Minister of Police 1978 (3) SA 268 (E) at 274 per Kannemeyer J: “[W]hen one deliberately frightens or shocks a person one does so with the intention of shocking or frightening and, though the shock or fright administered does not create any imminence of physical danger, the wrongdoer must foresee the natural consequences of his intentional act.” 211

On this see L Vold, “Tort Recovery for Intentional Infliction of Mental Distress” (1939) 18 Neb L Bull 222 at 238. See also Irvine J, annotation to Timmermans v Buelow (1984) 38 CCLT 136 at 139–140.

212

Wilkinson v Downton [1897] 2 QB 57 at 59 (emphasis added).

213

Note PR Glazebrook, “Wilkinson v Downton: A Centenary Postscript” (1997) 32 Ir Jur 46 at 47, suggesting that it might mean simply “capable of”.

214

For example Stevenson v Basham [1922] NZLR 225 at 229 per Herdman; Butler v Workers’ Compensation Commission (Nfld) (1998) 165 Nfld & PEIR 84 at 102 per Russell J.

1050

Part VI: Intentional Acts

[30.410]

impossible, to distinguish the Wilkinson v Downton principle from liability in negligence. This is where there are problems in accommodating the facts of the case within Wright J’s principle. Some commentators have focused on this difficulty. Goodhart, for example, said of the case: The physical harm was intended only in a limited sense – the acts were intentional, but there was no evidence that the defendant intended the plaintiff to become ill.215

Baker addressed the point more specifically, saying: The principle on which the case was decided gives rise to difficulty. The main trouble is with the words “calculated to cause”. If these words mean no more than that harm was foreseeably likely as a result of the act or statement, there is great difficulty in distinguishing the Wilkinson v Downton … principle from negligence. If the words mean more than foreseeable, such as certain or substantially certain, there is difficulty with the case itself since nervous shock, as distinct from mental distress, though a foreseeable result of the news imparted to the plaintiff, was hardly a certain or a substantially certain result. Only if the case is interpreted in this way, however, does it seem that the principle can have a separate existence independent of the tort of negligence.216

[30.410] One way of testing these arguments is to inquire whether Wilkinson v Downton, had it arisen at the present day, could have been accommodated within the principles of negligence. At the time the case was decided, the major obstacle in the path of such a decision was Victorian Railways Commissioners v Coultas.217 In England, this case did not long survive Wilkinson v Downton, being rejected by the King’s Bench Divisional Court in Dulieu v White & Sons218 only five years later. However, it should not be assumed that this of itself would allow Mr and Mrs Wilkinson to sue in negligence,219 because Kennedy J said that there would only be liability for shock in circumstances where the plaintiff was placed in fear of immediate personal injury.220 The issue has to be explored more carefully. Today, there is extensive liability in negligence for acts causing shock and psychiatric injury, but Wilkinson v Downton (and some of the cases that follow it) involve shock caused by a statement. Liability in negligence for statements has expanded considerably since the fundamentally important case of Hedley Byrne v Heller221 but this body of precedent involves harm suffered through reliance on the statement. In Wilkinson v Downton the harm was suffered because the statement was made, and negligence liability based on reliance is just as inappropriate for the shock damage in Wilkinson v 215

AL Goodhart (1944) 7 MLR 87 at 87–88, book review of PH Winfield, Textbook of the Law of Tort (2nd ed, Sweet & Maxwell, London, 1943). 216

CD Baker, Tort (5th ed, Sweet & Maxwell, London, 1991), pp 29–30.

217

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

218

Dulieu v White & Sons [1901] 2 KB 669.

219

As Lord Hoffmann does in Wainwright v Home Office [2004] 2 AC 406 at 425.

220

Dulieu v White & Sons [1901] 2 KB 669 at 675.

221

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

[30.420]

30 Wilkinson v Downton

1051

Downton as was the tort of deceit on which the plaintiffs in that case sought to found their cause of action. There are cases that suggest that there is a duty not to cause shock by making a negligent statement: Stevenson v Basham222 supports such a suggestion, as do the cases holding that there is liability for the negligent communication of bad news.223 Thus there seems no reason why the defendant in Wilkinson v Downton could not have been held liable in negligence. If the shock to Mrs Wilkinson is regarded as no more than a foreseeable consequence of Downton’s conduct, negligence would be the only appropriate cause of action. [30.420] However, Wright J specifically held that an intention to produce some effect of the kind that was produced ought to be imputed to the defendant,224 in this way avoiding the problem of Victorian Railways Commissioners v Coultas.225 It seems that he was not prepared to regard the harm as merely a foreseeable consequence; in his opinion some sort of intention to produce it could be imputed to the defendant. This is the basis on which the argument for the Wilkinson v Downton action being distinct from negligence must rest. According to that argument, the cases adopting that principle involve the intentional or reckless causing of shock, in that the defendant intends to cause, or is reckless as to, the immediate consequences (fright or horror); and the physical harm that results can be regarded as intended or likely, rather than as merely foreseeable. There is some support for this in the cases. The distinction is clearly made in Battista v Cooper,226 where the court stressed that the harm suffered by the wife and children of a man killed during an armed hold-up was to be regarded as intentionally caused. A distinction between Wilkinson v Downton and negligence is also supported by cases such as Bunyan v Jordan227 and Stevenson v Basham,228 where the plaintiffs relied on them as alternatives. In Bunyan v Jordan the Full Supreme Court of New South Wales rejected the claim based on negligence and the High Court of Australia rejected the Wilkinson v Downton claim, but in Stevenson v Basham the New Zealand Supreme Court held that the plaintiff was entitled to recover under either principle.229 Finally, in Bowler v Walker,230 the plaintiff sued both in negligence and for wilful conduct in a case 222

Stevenson v Basham [1922] NZLR 225.

223

See Chapter 28.

224

Wilkinson v Downton [1897] 2 QB 57 at 59.

225

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

226

Battista v Cooper (1976) 14 SASR 225 at 230 per Bray CJ.

227

Bunyan v Jordan (1937) 57 CLR 1.

228

Stevenson v Basham [1922] NZLR 225.

229

See also D v National Society for the Prevention of Cruelty to Children [1978] AC 171, a case mainly concerned with Crown privilege, in which Lord Denning MR assumed that the cause of action would fall under Wilkinson v Downton, if it existed at all, whereas the other two judges assumed that it would be an action in negligence. Note Purdy v Woznesensky [1937] 2 WWR 116 at 119–120 per Mackenzie JA where the language of the two actions appears to have been mixed: see [30.320].

1052

Part VI: Intentional Acts

[30.430]

where the defendant, who was responsible for the care of the plaintiff at a special psychiatric unit, had formed a sexual relationship with him but then rebuffed him after her marriage. The court suggested, following earlier English authority,231 that the limitation period for negligence was inappropriate for actions based on intentional harm.

Enter Lord Hoffmann [30.430] The relationship between Wilkinson v Downton and negligence was put in issue in Wainwright v Home Office.232 As already related,233 the case involved a strip-search of a mother and son at a prison during which a prison officer touched the son’s penis, causing him to suffer posttraumatic stress disorder. In the English Court of Appeal, Lord Woolf CJ and Buxton LJ both considered the nature of the Wilkinson v Downton tort in some detail. Both referred to another case in the English Court of Appeal decided six weeks earlier, Wong v Parkside Health NHS Trust,234 Lord Woolf saying that until this case Wilkinson v Downton “had not been considered extensively”.235 In Wong a differently constituted Court of Appeal had held that harassment at work did not amount to conduct calculated to cause physical harm to the plaintiff. Hale LJ, giving the judgment of the court, said that much depended on the meaning of “calculated”. She rejected a suggestion that the tort would be committed where there was “deliberate conduct which will foreseeably lead to alarm or distress falling short of the recognised psychiatric illness which is now considered the equivalent of physical harm, provided that such harm is actually suffered”. In her view, English law had not gone this far: For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant’s interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not “mean” it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.236

In Wainwright v Home Office, Lord Woolf CJ approved this approach, saying: 230

Bowler v Walker [1996] PIQR P22.

231

Stubbings v Webb [1993] AC 498, but see now A v Hoare [2008] AC 844.

232

Wainwright v Home Office [2002] QB 1334. Note also Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 at 422, where Gallen J, applying the principle of Wilkinson v Downton, asked whether it was foreseeable that the plaintiff would sustain physical damage arising out of mental shock. 233

See [30.100].

234

Wong v Parkside Health NHS Trust [2003] 3 All ER 932.

235

Wainwright v Home Office [2002] QB 1334 at 1348.

236

Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at [12].

[30.440]

30 Wilkinson v Downton

1053

The limiting factor to the “tort” is the intention to cause harm which harm is in fact then caused or recklessness as to whether that harm would be caused. While the tort is not conventional trespass it is closer to trespass than negligence. … Both as a matter of principle and authority I regard it as appropriate that there should be a right to compensation in these circumstances. We are here concerned with an intended tort and intended harm. In such a situation, unlike negligence, problems of foreseeability do not arise. If the conduct is actionable then compensation should be payable for the intended harm.237

Buxton LJ pointed to some of the difficulties with Wright J’s formulation of the rule that have already been discussed. Referring to the headnote to Janvier v Sweeney,238 according to which “[f]alse words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable”, Buxton LJ said that this “comes as close as it is possible to do to a general statement of the rule in Wilkinson v Downton”.239 If this was not correct, then the rule had to be limited to Wright J’s statement that the defendant’s act was so clearly likely to produce a result of the kind that occurred that an intention to produce it should be imputed to him, which Buxton LJ characterised as “objective recklessness”.240 Referring to Wong v Parkside Health NHS Trust, he said: The decision in Wong’s case, to the extent to which it differs from the analysis earlier in this judgment, binds us as an earlier decision of this court. However, in the present case it does not matter which of these various detailed formulations is adopted, because it is plain that the claimants can bring themselves within none of them.241

[30.440] So, while there were minor differences about the interpretation of what Wright J had said, in essence both Court of Appeal judgments stressed that Wilkinson v Downton was concerned with intention rather than negligence. When Wainwright v Home Office242 went to the House of Lords, a somewhat different approach was adopted. The Lords dismissed the claimants’ appeal, confirming that apart from the battery constituted by the touching of the son’s penis there was no tort that offered a remedy for the prison officers’ conduct. The court refused to take up a suggestion that Wilkinson v Downton be extended to cover this case. Lord Hoffmann, in a judgment concurred in by the rest of the court, said that on analysis, Wilkinson v Downton differed very little from negligence and had “no leading role in the modern law”243. Wilkinson v Downton was “a case 237

Wainwright v Home Office [2002] QB 1334 at 1349–50.

238

Janvier v Sweeney [1919] 2 KB 316.

239

Wainwright v Home Office [2002] QB 1334 at 1357.

240

Wainwright v Home Office [2002] QB 1334 at 1357.

241

Wainwright v Home Office [2002] QB 1334 at 1359.

242

Wainwright v Home Office [2004] 2 AC 406, noted by A Johnston [2004] CLJ 19.

243

Wainwright v Home Office [2004] 2 AC 406 at [41] per Lord Hoffmann.

1054

Part VI: Intentional Acts

[30.450]

which has been far more often discussed than applied”.244 Though Wright J had distinguished Victorian Railways Commissioners v Coultas245 on the ground that Downton was not merely negligent but had intended to cause injury, “[q]uite what the judge meant by this is not altogether clear; Downton obviously did not intend to cause any kind of injury but merely to give Mrs Wilkinson a fright.”246 By the time of Janvier v Sweeney,247 Coultas was no longer a problem, and “the law was able comfortably to accommodate the facts of Wilkinson v Downton in the law of nervous shock caused by negligence. It was unnecessary to fashion a tort of intention or to discuss what the requisite intention, actual or imputed, should be.”248 In cases of actual psychiatric injury, there was no point in arguing about whether the injury was in some sense intentional if negligence would do just as well. Given that cases such as Wong v Parkside Health NHS Trust249 had rejected any possibility of damages for anything less than physical or psychiatric injury, there was little or no ground for Wilkinson v Downton to cover that could not be dealt with by negligence.250 [30.450] Lord Hoffmann referred to his own statement in Hunter v Canary Wharf Ltd251 to the effect that he saw no reason why a tort of intention should be subject to a rule that excluded compensation for mere distress, inconvenience or discomfort in actions based on negligence, where the policy considerations were quite different. I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v Downton Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier’s case, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railways Comrs case prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go. If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. 244

Wainwright v Home Office [2004] 2 AC 406 at [36].

245

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

246

Wainwright v Home Office [2004] 2 AC 406 at [37].

247

Janvier v Sweeney [1919] 2 KB 316.

248

Wainwright v Home Office [2004] 2 AC 406 at [40].

249

Wong v Parkside Health NHS Trust [2003] 3 All ER 932.

250

Wainwright v Home Office [2004] 2 AC 406 at [41].

251

Hunter v Canary Wharf Ltd [1997] AC 655 at 453.

[30.460]

30 Wilkinson v Downton

1055

Lord Woolf CJ, as I read his judgment …, might have been inclined to accept such a principle. But the facts did not support a claim on this basis. The judge made no finding that the prison officers intended to cause distress or realised that they were acting without justification in asking the Wainwrights to strip. … Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter v Canary Wharf Ltd, to reserve my opinion on whether compensation should be recoverable. … In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton … . It does not provide a remedy for distress which does not amount to recognised psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established.252

Reactions to Lord Hoffmann [30.460] In England, reaction to Lord Hoffmann’s suggestion that there was little left of Wilkinson v Downton was at best muted. While statements at House of Lords level are of course entitled to be treated with great respect, Wainwright v Home Office253 turned on the court’s decision not to recognise a tort of invasion of privacy, and Lord Hoffmann’s statements about Wilkinson v Downton were no more than dicta. Lower courts held themselves bound by decisions of higher courts confirming the existence of the Wilkinson v Downton tort.254 It was also suggested that if Wilkinson v Downton was now of more limited application, then this had more to do with the enactment of the Protection from Harassment Act 1997 (UK) than with developments in the common law.255 In Australia, while a view similar to that expressed by Lord Hoffmann found favour with three judges of the High Court,256 Gleeson CJ was more equivocal,257 and Heydon J appears to have recognised its continuing existence.258 State

252

Wainwright v Home Office [2004] 2 AC 406 at [44]–[47]. In Mbasogo v Logo Ltd [2007] QB 846, Clarke MR noted that the proposition in the second paragraph was undermined by what Lord Hoffmann said in the following paragraph.

253

Wainwright v Home Office [2004] 2 AC 406.

254

See [30.110]. Note also Bici v Ministry of Defence [2004] EWHC 204 (QB) at [82], where Elias J noted that there may be cases where negligence is not available because there is no duty of care, making Wilkinson v Downton a useful alternative. 255

Austen v University of Wolverhampton [2005] EWHC 1635 (QB) at [7] per Gray J.

256

Tame v New South Wales (2002) 211 CLR 317 at [179] per Gummow and Kirby JJ; Magill v Magill (2006) 226 CLR 551 at [117] per Gummow, Kirby and Crennan JJ: see [30.130]. 257

Magill v Magill (2006) 226 CLR 551 at [20]. Gleeson CJ was the only judge in this case to make express reference to the views of Lord Hoffmann.

258

Monis v The Queen (2013) 249 CLR 92 at [242].

1056

Part VI: Intentional Acts

[30.470]

courts have generally upheld the view that in light of earlier High Court authorities such as Bunyan v Jordan,259 Wilkinson v Downton is alive and well.260 [30.470] The independent line pursued in Canada has meant that Lord Hoffmann’s views have not been the subject of discussion in Canadian case law. However, Lord Hoffmann’s approach has been convincingly refuted by a Canadian scholar, Denise Réaume: Wainwright threatens to take all the mystery out of Wilkinson. Lord Hoffmann’s decision for the court takes the rather striking view that Wilkinson was really grounded in negligence and not a separate cause of action at all. He suggests that generations of judges have all the time been “speaking in negligence” without realising it. This analysis strikes me as anachronistic – it imputes a modern sensibility about and understanding of the tort of negligence to a judge operating at the dawn of the development of negligence as we know it. This seems wrong to me. If there is a thought that cannot sensibly be attributed to Wright J in 1897, it is that the defendant deserved to be held liable simply because he created an unreasonable risk of foreseeably causing physical injury to the plaintiff through the mechanism of the shock inflicted by the tall tale of her husband’s injury. More importantly, by converting these cases into proto-negligence cases, Lord Hoffmann overlooks most of what is interesting in the reasoning in the case law over the years. The judges have been struggling to articulate a cause of action; I just don’t think that they have been struggling to articulate negligence.261

Restatement by the United Kingdom Supreme Court [30.480] In the important recent decision in O (A Child) v Rhodes,262 the United Kingdom Supreme Court has departed from the views of Lord Hoffmann and confirmed that Wilkinson v Downton retains its existence as an independent tort. It has restated its limits in terms that eliminate the difficulties that have arisen from the way Wright J stated the necessary mental element as wilfully doing an act calculated to cause physical harm and applied it so as to hold Downton liable on the facts of the case. Rhodes, as noted at [30.110], was an attempt to get an injunction to prevent the publication of an autobiography containing details of sexual abuse suffered by the author during his childhood, on the basis that it would be undesirable for his young son in the United States to read it. The English Court of Appeal rejected claims based on negligence and misuse of private information, but were prepared to allow the Wilkinson v 259

Bunyan v Jordan (1937) 57 CLR 1.

260

See Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 at [72] per Spigelman CJ; Giller v Procopets (2008) 24 VR 1 at [6]–[7] per Maxwell P, at [161]–[167] per Ashley JA, at [459] per Neave JA (though noting the view of Gummow, Kirby and Crennan JJ that the tort had largely been overtaken by negligence); Carter v Walker (2010) 32 VR 1 at [252]–[263] per Buchanan, Ashley and Weinberg JJA. 261

D Réaume, “The Role of Intention in the Tort of Wilkinson v Downton” in J Neyers, E Chamberlain and S Pitel (eds), Emerging Issues in Tort Law (Hart Publishing, Oxford, 2007), pp 533–534.

262

O (A Child) v Rhodes [2016] AC 219.

[30.490]

30 Wilkinson v Downton

1057

Downton claim to go to trial, and so granted the injunction sought.263 Arden LJ was of the view that Lord Hoffmann was not actually deciding what the law should be in the passages in his judgment referred to at [30.450].264 She was prepared to accept that intent could be imputed; she said that it was possible that in some cases recklessness might suffice, but the court did not have to consider that issue.265 The Court of Appeal was of course bound by its own decision in Wong v Parkside Health NHS Trust.266 [30.490] When O (A Child) v Rhodes267 was appealed to the Supreme Court, two judgments were delivered: one by Baroness Hale of Richmond DPSC and Lord Toulson JSC, with which Lord Clarke of Stone-cumEbony JSC and Lord Wilson of Culworth JSC agreed, and one by the President, Lord Neuberger of Abbotsbury PSC: Lord Wilson also expressed his agreement with this judgment. As noted at [30.210], Lord Neuberger took a somewhat more restricted view of Wilkinson v Downton,268 being of the opinion that it applied primarily to statements. This account concentrates on the judgment of Baroness Hale and Lord Toulson (“the joint judgment”). This judgment performed a valuable function in setting Wright J’s judgment in Wilkinson v Downton in its historical context.269 It noted that the courts below had held that there was no arguable case against the author in negligence270 — an important consideration in the context of Lord Hoffmann’s attempt to argue that the growth of this tort had reduced Wilkinson v Downton to vanishing point. It is also important to notice that the joint judgment endorsed as correct a statement of Hale LJ in the English Court of Appeal in Wong v Parkside Health NHS Trust:271 Hale LJ had said that it followed from the words used by Wright J that it was not necessary to prove actual (subjective) 263

OPO v MLA [2014] EWCA Civ 1277, noted by C Brennan (2015) 31 PN 33. For criticism of the decision, see Ying Khai Liew, “The Rule in Wilkinson v Downton: Conduct, Intention, and Justifiability” (2015) 78 MLR 349.

264

OPO v MLA [2014] EWCA Civ 1277 at [76].

265

OPO v MLA [2014] EWCA Civ 1277 at [77].

266

Wong v Parkside Health NHS Trust [2003] 3 All ER 932. Arden LJ also dealt with the question whether the case ought to be resolved by the application of English law or Ruritanian law: at that stage the identity of the parties and other details had not been revealed, and so, to the delight of conflict of laws specialists, the mother and son were stated to be living in Ruritania. The case was argued in the United Kingdom Supreme Court on the basis that English law was to be applied: O (A Child) v Rhodes [2016] AC 219 at [121] per Lord Neuberger of Abbotsbury. 267

O (A Child) v Rhodes [2016] AC 219.

268

Wilkinson v Downton [1897] 2 QB 57.

269

O (A Child) v Rhodes [2016] AC 219 at [37]–[50], though the judgment is in error in suggesting that the buggy in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 was driven by Mrs Coultas’s brother, rather than her husband (at [47]). The judgment notes that imputed intention survived in the criminal law as late as DPP v Smith [1961] AC 290.

270

O (A Child) v Rhodes [2016] AC 219 at [51].

271

Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at [10].

1058

Part VI: Intentional Acts

[30.500]

intention to injure but was sufficient to prove that the conduct was calculated to do so, in the sense of being likely in the nature of things to cause injury. However, the joint judgment commented: “Whether it should be endorsed by this court is a different question.”272 [30.500] The joint judgment was critical of Lord Hoffmann’s approach, saying that “[t]his interesting reconstruction shows the pitfalls of interpreting a decision more than a century earlier without a full understanding of jurisprudence and common legal terminology of the earlier period”.273 The concept of imputed intention was not novel, but formed part of the mainstream of legal thinking at the time. Wright J would not have been bound to follow the Privy Council decision in Victorian Railways Commissioners v Coultas;274 Kennedy and Phillimore LJJ had made it clear in Dulieu v White & Sons275 that the Divisional Court did not regard itself as bound by this decision. The joint judgment also made a point that is made at [30.410],276 namely that it is wrong to suggest that after Dulieu v White the law would have comfortably accommodated the facts of Wilkinson v Downton within the law of negligence. [30.510] The joint judgment then proceeded to redefine the Wilkinson v Downton principle. It analysed the tort as requiring a conduct element, a mental element and a consequence element, though the last of these was not in issue because it was common ground that the consequence required for liability was physical harm or recognised psychiatric illness. The conduct element required words or conduct directed towards the claimant for which there was no justification or reasonable excuse. The Court of Appeal was right to view the tort as confined to those towards whom the relevant words or conduct were directed, but wrong to treat the publication of the book as directed only towards the claimant. The book was for a wide audience and the question of justification raised important freedom of speech issues. The proposed injunction involved the court in exercising editorial control, which was undesirable. Though vulnerable children needed protection, expanding the Wilkinson v Downton tort was not the right way to do it. The conclusion had to be that the publication of the book was not within the scope of the conduct element of the tort. This was enough to decide the case, but because the issue of the mental element had been fully argued before the court it was appropriate to address this question.277 It is in this part of the judgment that the Supreme Court outlined a new pathway for Wilkinson v Downton. [30.520] Baroness Hale and Lord Toulson crystallised the problem in the following passage: 272

O (A Child) v Rhodes [2016] AC 219 at [57].

273

O (A Child) v Rhodes [2016] AC 219 at [62].

274

Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222.

275

Dulieu v White & Sons [1901] 2 KB 669.

276

See [30.410].

277

O (A Child) v Rhodes [2016] AC 219 at [80].

[30.530]

30 Wilkinson v Downton

1059

There is a critical difference, not always recognised in the authorities, between imputing the existence of an intention as a matter of law and inferring the existence of an intention as a matter of fact. Imputation of an intention by operation of a rule of law is a vestige of a previous age and has no proper role in the modern law of tort. It is unsound in principle. It was abolished in the criminal law nearly 50 years ago and its continued survival in the tort of wilful infringement of the right to personal safety is unjustifiable. It required the intervention of Parliament to expunge it from the criminal law, but that was only because of the retrograde decision in DPP v Smith.278 The doctrine was created by the courts and it is high time now for this court to declare its demise. The abolition of imputed intent clears the way for proper consideration of two important questions about the mental element of this particular tort. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness. Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office. Secondly, is recklessness sufficient and, if so, how is recklessness to be defined for this purpose? Recklessness is a word capable of different shades of meaning. In everyday usage it may include thoughtlessness about the likely consequences in circumstances where there is an obvious high risk, or in other words gross negligence.279

[30.530] As to the first question, the joint judgment adopted the second option — that it is sufficient for the defendant to intend to cause severe distress that in fact results in recognisable illness, without going further and requiring such illness to have been intended. This takes the law one step further along a path already travelled by the law in the United States.280 The answer to the second question, balancing the step taken by the answer to the first question, was to exclude recklessness from the definition of the mental element. In the result, “a person who actually intends to cause another to suffer severe mental or emotional distress (which should not be understated) bears the risk of legal liability if the deliberately inflicted severe distress causes the other to suffer a recognised psychiatric illness”.281 The judgment commented that it would be possible to follow the Canadian example and limit liability to conduct that was flagrant or outrageous, but it was not thought necessary to take that step — perhaps underlining that Wilkinson v Downton is now likely to develop differently in different common law countries. It remains to be seen whether courts in Australia adopt the solution to the problems of Wilkinson v Downton now advanced by the United Kingdom Supreme Court. 278

DPP v Smith [1961] AC 290.

279

O (A Child) v Rhodes [2016] AC 219 at [81]–[84]. On the reference to Salmond and Heuston on the Law of Torts, see [30.660].

280

See [30.600]–[30.620].

281

O (A Child) v Rhodes [2016] AC 219 at [87].

1060

Part VI: Intentional Acts

[30.540]

An extension of the tort of negligence? [30.540] The controversy reviewed at [30.370]–[30.530] would be put in a rather different light if it became generally accepted that the tort of negligence extended into the area of intentional wrongs.282 There is a steadily accumulating body of authority, in Australia at least, suggesting that this has occurred. Negligence has been accepted as an appropriate cause of action in first instance cases involving intentional injuries inflicted through the use of motor vehicles283 and by an appeal court in a sexual abuse case,284 and consideration has also been given to the issue in a High Court case that accepted that exemplary damages may be awarded in some negligence cases.285 One major obstacle is a dictum of Gummow and Hayne JJ in another High Court case to the effect that the intentional infliction of harm cannot be pleaded as negligence,286 but this is matched by a contrary dictum of McHugh J in the same case287 and a statement by the majority of the High Court in another case.288 [30.550] The relationship between Wilkinson v Downton and negligence was reviewed by McPherson J in the Queensland Court of Appeal in Carrier v Bonham,289 in an important judgment that deserves more attention than it has received: it was not cited in either Wainwright v Home Office290 or O (A Child) v Rhodes.291 This was the case of the man who was allowed to wander away from a psychiatric hospital, and stepped in front of a bus, intending to kill himself. The bus driver braked sharply and was able to avoid hitting him, but suffered psychiatric injury as a result of the experience. The bus driver brought an action against the mental patient. The claim that the defendant committed battery by stepping into the path of the bus so the bus collided with him was possibly not very seriously advanced, but it was contended that the defendant was liable under Wilkinson v Downton and in negligence. The Queensland District Court292 rejected the latter contention on the basis that the defendant’s unsoundness of mind justified the adoption of a lower standard of care, and so negligence was not established. However, it held that the defendant had wilfully done an act calculated to cause physical harm. No intention to 282

See P Handford, “Intentional Negligence: A Contradiction in Terms?” (2010) 32 Syd LR

29. 283

Carroll v Folpp (unreported, NSWSC, No 225 of 1996, 10 February 1998); Cusack v Stayt (2000) 31 MVR 517.

284

Wilson v Horne (1999) 8 Tas R 363.

285

Gray v Motor Accidents Commission (1998) 196 CLR 1.

286

New South Wales v Lepore (2003) 212 CLR 511 at [270].

287

New South Wales v Lepore (2003) 212 CLR 511 at [162].

288

Stingel v Clark (2006) 226 CLR 442 at [13] per Gleeson CJ, Callinan, Heydon and Crennan JJ.

289

Carrier v Bonham [2002] 1 Qd R 474, noted by MG Morley (2002) 76 ALJ 552.

290

Wainwright v Home Office [2004] 2 AC 406.

291

O (A Child) v Rhodes [2016] AC 219.

292

Bonham v Carrier (2000) 21 Qld Lawyer Reps 87.

[30.570]

30 Wilkinson v Downton

1061

frighten was necessary, and even if there was no actual intention to cause harm, such intention could be imputed because psychiatric injury was a natural consequence of the defendant’s intentional act.293 On appeal by the defendant, the Queensland Court of Appeal took a different view, holding that there was liability under both torts: on the authorities, unsoundness of mind did not automatically diminish the standard of care in negligence, and the position under Wilkinson v Downton should be exactly the same. [30.560] McPherson JA, who gave the leading judgment, came close to saying that Wilkinson v Downton and negligence were one and the same. One issue dealt with was the meaning of the word “calculated” in Wright J’s formulation of the Wilkinson v Downton tort. The appellant had argued that the use of the word “calculated” demonstrated a need to show an intention to cause, or at least actual foresight of the likelihood of causing, harm of some kind, and that because of his mental condition no such intention or foresight could be attributed to him. However, in his Honour’s view: [T]he expression “calculated” which is used in these passages is one of those weasel words that is capable of meaning either subjectively contemplated and intended or objectively likely to happen. … The implication I draw from the context in which the word appears in the passages quoted is that it was being used in the latter and not the former sense. That seems plainly to be so in what was said by Latham CJ in Bunyan v Jordan (1937) 57 CLR 1, 11, where, reverting to Wilkinson v Downton, his Honour remarked that the words in that case were of such a character and spoken in such circumstances that “it was naturally to be expected that they might cause a very severe nervous shock”. Certainly that seems to have been the view of Dixon J who, in contrasting the facts of Bunyan v Jordan with those of Wilkinson v Downton, concluded (57 CLR 1, 17) that the harm which was said in fact to have ensued in the case before the High Court was “not a consequence which might reasonably have been anticipated or foreseen”.294

[30.570] McPherson JA proceeded to summarise his interpretation of the relationship between Wilkinson v Downton and negligence: Wilkinson v Downton is still sometimes described as being an action “on the case”, as if that would serve to distinguish it from actions for negligence. The implication seems to be that it does not quite fit the traditional dichotomy between liability in trespass for intentional wrongs, and liability in negligence for those that involve conduct that is merely inattentive. Despite the debate generated by Fowler v Lanning [1959] 1 QB 426, the distinction that was recognised by the late 18th century did not correspond to that between intentional and unintentional harm. As is evident from the differences of opinion in the famous case of Scott v Shepherd (1773) 2 Wm Black 892; 96 ER 525 (the Squib Case), the difference was between harm that was immediate and direct, and harm that was caused indirectly. … 293

The hospital, which was also a defendant to the action, was held to owe a duty to take care to prevent patients under their control from causing injury to third parties, but in the circumstances of the case there was no breach of duty.

294

Carrier v Bonham [2002] 1 Qd R 474 at [25].

1062

Part VI: Intentional Acts

[30.580]

The feature that is often singled out as peculiar about Wilkinson v Downton is that it was an intentional act which had reasonably foreseeable consequences that were apparently not in fact foreseen by the defendant in all their severity; but that is, as RS Wright J pointed out in Wilkinson v Downton, “commonly the case with all wrongs”. Most everyday acts of what we call actionable negligence are in fact wholly or partly a product of intentional conduct. Driving a motor vehicle at high speed through a residential area is an intentional act even if injuring people or property on the way is not a result actually intended. Wilkinson v Downton is an example of that kind. The defendant intended to speak the words in question to the plaintiff’s wife. Even if he did not intend to inflict the harm on her that followed, or perhaps any harm at all, he was plainly negligent as regards the result that followed. It is only when injury ensues from inaction or omission to act that problems may still arise at common law about whether the wrong is, properly speaking, the act or conduct of the defendant. Otherwise, since the Judicature Act which, in Maitland’s famous phrase, buried the forms of action, it no longer matters whether the act was done intentionally or negligently, or partly one and partly the other. What matters is whether the consequences of the conduct, whether foreseen or not, were reasonably foreseeable and are such as should have been averted or avoided. What we really have now is not two distinct torts of trespass and negligence, but a single tort of failing to use reasonable care to avoid damage however caused. Negligence, if narrowly understood, is something of a misnomer. It follows, in my opinion, that if the defendant Bonham in this case was, because of his mental condition, not legally responsible for the foreseeable consequences of his action in throwing himself at or under the bus, he was no more liable under the decision in Wilkinson v Downton than he was according to ordinary principles of the law of negligence. On either approach he was, according to the evidence accepted by his Honour, actually unable to foresee that harm might result to the occupants of the bus, including the plaintiff Carrier, from his intentional act.295

[30.580] McPherson JA thus suggested that what we now have is not distinct torts of trespass and negligence — one remedy for intentional conduct, the other for inadvertence — but “a single tort of failing to use reasonable care to avoid damage however caused”. He even went so far as to say that negligence, if narrowly understood, might not be the most appropriate name for this tort, a thought he then proceeded to underline by reference to the Lex Aquilia of Roman law, under which “liability was recognised as arising either dolo or culpa, of which the latter did not precisely mean negligence but rather conduct that was ‘blameworthy’”.296 In such a world there would be no room for a separate tort of Wilkinson v Downton.

POSSIBLE EXTENSION TO PURE EMOTIONAL DISTRESS [30.590] The United Kingdom Supreme Court has now recognised that an action will lie for the intentional causing of severe distress that results 295

Carrier v Bonham [2002] 1 Qd R 474 at [26]–[28].

296

Carrier v Bonham [2002] 1 Qd R 474 at [28].

[30.600]

30 Wilkinson v Downton

1063

in recognisable illness.297 Nearly a century ago, the United States went one step further and extended a cause of action similar to Wilkinson v Downton by removing the requirement of consequent physical harm, resulting in a tort now known as intentional infliction of emotional distress or more simply as “IIED”. Even before the recent Supreme Court case, the recognition of a tort of intentionally causing severe distress had been advocated by many, including Lord Hoffmann298 and more recently, Maxwell P of the Victorian Court of Appeal.299 The arguments for such an extension are reviewed following a brief discussion of the United States tort.

The United States [30.600] The law in the United States300 has long recognised a cause of action precisely the same as Wilkinson v Downton. The earliest case appears to be Hickey v Welch,301 decided four years after Wilkinson v Downton, where relations between neighbours were at a low ebb, and the defendant’s activities, which included abusing the plaintiffs, piling up earth around their water closet so that they could not use it, and brandishing a pistol when they tried to do so, aggravated the plaintiff’s neurasthenia and caused serious injury to her health. Though there was a technical assault, the Missouri court chose to base liability on a general rule that where the defendant intentionally caused the plaintiff to suffer mental anguish that resulted in some proved nervous illness, an action lay. In the words of Goode J: The ancient superstition which found the proximate cause of mental and nervous diseases in diabolical possession, was scarcely more ridiculous than the theory that when an ailment of that kind follows a great fright, due to another’s tortious act, the fright and not the tort is the proximate cause of the injury. Such diseases, like all others, have their origin in a physical lesion, not a metaphysical state.302

297

O (A Child) v Rhodes [2016] AC 219.

298

In Wainwright v Home Office [2004] 2 AC 406.

299

In Giller v Procopets (2008) 24 VR 1.

300

See Restatement of Torts Second, §§ 46 – 48 and comments; Restatement of Torts, §§ 45 – 47 and comments; Annotation, “Modern Status of Intentional Infliction of Mental Distress as Independent Tort: “Outrage”” (1985) 38 ALR 4th 998. On the development of this tort see C Magruder, “Mental and Emotional Disturbance in the Law of Torts” (1936) 49 Harv L Rev 1033; FV Harper and MC McNeely, “A Re-examination of the Basis of Liability for Emotional Distress” [1938] Wis L Rev 426; WL Prosser, “Intentional Infliction of Mental Suffering – A New Tort” (1939) 37 Mich L Rev 874; L Vold, “Tort Recovery for Intentional Infliction of Mental Distress” (1939) 18 Neb L Bull 222; WL Prosser, “Insult and Outrage” (1956) 44 Cal L Rev 40; PR Handford, “Intentional Infliction of Mental Suffering – Analysis of the Growth of a Tort” (1979) 8 Anglo-Am LR 1.

301

Hickey v Welch 91 Mo App 4 (1901).

302

Hickey v Welch 91 Mo App 4 (1901) at 10.

1064

Part VI: Intentional Acts

[30.610]

Many subsequent cases also recognised this principle.303 [30.610] However, American law did not stand still at this point. Round about 1930, United States courts began to grant recovery for the intentional causing of mental distress even though there was no consequent psychiatric illness and no likelihood of it.304 No doubt the courts were beginning to wonder why the physical harm requirement should be all important, since the defendant usually had no actual intention to cause it. In Barnett v Collection Service Co,305 for example, the court stated: The rule seems to be well-established where the act is wilful or malicious, as distinguished from being merely negligent, that recovery may be had for mental pain, though no physical injury results. … In this case the jury could well find that appellants exceeded their legal rights, and that they wilfully and intentionally sought to produce mental pain and anguish in the appellee, and that the natural result of said acts was to produce such mental pain and anguish.306

[30.620] When the original Restatement of Torts appeared in 1936 it did not recognise this principle, confining liability to cases where a wilful act was intended or likely to produce bodily harm, and bodily harm resulted.307 For some years cases in States that had not already recognised the wider principle tended not to go beyond the Restatement,308 but before long it became clear that the Restatement was out of date, and in 1948 it was modified to recognise liability for purely mental distress caused intentionally.309 The Restatement of Torts Second in 1965310 endorsed the position adopted in 1948, holding that there is liability if a person, by 303

See eg Voss v Bolzenius 128 SW 1 (Mo 1910); Kurpgeweit v Kirby 129 NW 177 (Neb 1910); Goddard v Watters 82 SE 304 (Ga 1914); Nickerson v Hodges 84 So 37 (La 1920); Johnson v Sampson 208 NW 814 (Minn 1926); Great Atlantic & Pacific Tea Co v Roch 153 A 22 (Md 1930).

304

The first such case is Wilson v Wilkins 25 SW 2d 428 (Ark 1930), but note Kurpgeweit v Kirby 129 NW 177 (Neb 1910) where recovery was allowed for mental distress without physical consequences, though in fact there was also a technical battery. See also Barnett v Collection Service Co 242 NW 25 (Iowa 1932); La Salle Extension University v Fogarty 253 NW 424 (Neb 1934); Erwin v Milligan 67 SW 2d 592 (Ark 1934); Personal Finance Co v Loggins 179 SE 162 (Ga 1935); Stephens v Waits 184 SE 781 (Ga 1936); Spiegel v Evergreen Cemetery Co 186 A 585 (NJ 1936); Interstate Life & Accident Co v Brewer 193 SE 459 (Ga 1937); Aetna Life Insurance Co v Burton 12 NE 2d 360 (Ind 1938).

305

Barnett v Collection Service Co 242 NW 25 (Iowa 1932).

306

Barnett v Collection Service Co 242 NW 25 (Iowa 1932) at 28.

307

Restatement of Torts 1936, §§ 46 and 47A.

308

See especially Clark v Associated Retail Credit Men 105 F 2d 62 (1939). Note also Kirby v Jules Chain Stores Corporation 188 SE 625 (NC 1936); People’s Finance & Thrift Co v Harwell 82 P 2d 494 (Okl 1938); Pacific Mutual Life Insurance Co of California v Tetirick 89 P 2d 774 (Okl 1938) (where there was also an assault); Brown v Crawford 177 SW 2d 1 (Ky 1943); Toler v Cassinelli 41 SE 2d 672 (WVa 1947); Emden v Vitz 198 P 2d 696 (Cal 1948); Richardson v Pridmore 217 P 2d 113 (Cal 1950); Mahnke v Moore 77 A 2d 923 (Md 1951); Fraser v Morrison 39 Haw 370 (1952); Urban v Hartford Gas Co 93 A 2d 292 (Conn 1952). 309

Restatement of Torts (Supplement) 1948, § 46.

310

Restatement of Torts Second 1965, § 46.

[30.620]

30 Wilkinson v Downton

1065

extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another311 — the tort now known as intentional infliction of emotional distress.312 The Restatement of Torts Third of 2011 makes no change except for substituting “emotional disturbance” for “emotional distress”.313 There is no need for consequent physical harm or the likelihood thereof. Every State has now accepted the Restatement proposition,314 and more case law appears every year.315 However, courts have repeatedly made it clear that very strict standards of liability are applied and that it is only in the most egregious circumstances that claims will be successful. As is clear from the above formulation, recklessness as well as intentional conduct is sufficient: persons who perpetrate acts with reckless disregard of the high probability that emotional stress will occur do not escape liability.316 The standard of “extreme and outrageous 311

Some courts are now adding a requirement that the distress suffered must be of the kind people in general would suffer and not a merely idiosyncratic reaction: see eg 49 Prospect St Tenants Association v Sheva Gardens Inc 547 A 2d 1134 (NJ 1988) at 1147.

312

The first important case to adopt this principle was State Rubbish Collectors Association v Siliznoff 240 P 2d 282 (Cal 1952). Other leading cases dealing in detail with the elements of the tort as outlined in Restatement of Torts Second, § 46 include Halio v Lurie 222 NYS 2d 759 (1961); Alsteen v Gehl 124 NW 2d 312 (Wis 1963); Fletcher v Western National Life Insurance Co 89 Cal Rptr 78 (1970); Harris v Jones 380 A 2d 611 (Md 1977); MBM Co Inc v Counce 596 SW 2d 681 (Ark 1980); American Road Service Co v Inmon 344 So 2d 361 (Ala 1981); Yeager v Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America 453 NE 2d 666 (Ohio 1983); Watte v Edgar Maeyens Jr MD PC 828 P 2d 479 (Or 1992); Honaker v Smith 256 F 3d 477 (2001). 313

Restatement of Torts Third 2011, § 45.

314

The last three jurisdictions to recognise this tort were North Dakota, New Hampshire and Montana: see Muchow v Lindblad 435 NW 2d 918 (ND 1989); Morancy v Morancy 593 A 2d 1158 (NH 1991); Sacco v High Country Independent Press Inc 896 P 2d 411 (Mont 1995). According to ML Carpenter, “Petersen v Sioux Valley: Reckless Infliction of Emotional Distress” (1993) 38 S Dak L Rev 359 at 365, 47 out of the 50 States expressly endorse the principles of Restatement of Torts Second, § 46 and the remaining three — Hawaii, Mississippi and Nevada — recognise some version of it. However, Hawaii has now adopted the Restatement version: see Hac v University of Hawaii 73 P 3d 46 (Haw 2003). Carpenter does not mention the District of Columbia, but it also endorses § 46: see Waldon v Covington 415 A 2d 1070 (1980). Carpenter is critical of South Dakota cases that depart from the principles of the Restatement of Torts Second. Note also the comments of C Tobias, “Intentional Infliction of Mental Distress in Montana” (1996) 57 Mont L Rev 99, on the failure of Sacco v High Country Independent Press Inc to follow the Restatement. 315

For more extensive citation of authorities, see the second edition of this book: P Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage (2nd ed, Lawbook Co, Sydney, 2006), pp 699–712. See also DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, pp 549–571. 316

For the Restatement definitions of intention and recklessness see [30.380]. For examples of recklessness in this context see Blakeley v Shortal’s Estate 20 NW 2d 28 (Iowa 1945) (defendant committed suicide in plaintiff’s kitchen, knowing there was a high degree of probability she would find him); Fletcher v Western National Life Insurance Co 89 Cal Rptr 78 (1970); Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991); Salamone v Oak Park Marina Inc 688 NYS 2d 362 (1999); Ess v Eskaton Properties Inc 118 Cal Rptr 2d 240 (2002). Alsteen v Gehl 124 NW 2d 312 (Wis 1963) would limit liability to intentional conduct, but it is out of line with the other authorities cited above on this point.

1066

Part VI: Intentional Acts

[30.620]

conduct” is the major control device limiting liability.317 Liability exists only where the conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as utterly intolerable in a civilised society.318 Caution must be exercised in applying this standard; as one court has reminded us, “The outrageous and extreme nature of the conduct to be examined should not be considered in a sterile setting, detached from the milieu in which it took place. The salon of Madame Pompadour is not to be likened to the rough-and-tumble atmosphere of the American oil refinery.”319 The distress inflicted must be “so severe that no reasonable man could be expected to endure it”.320 However, an Iowa court has suggested that damages are awarded not just for a horrific event, no matter how wrenching, but for the impact it is shown to have had in terms of the plaintiff’s subsequent emotional condition.321 Defences recognised in particular cases include the constitutional protection of political speech —

317

It is on this basis that the tort must be distinguished from liability for “insult” which was recognised as attaching to carriers, hotels, telegraph companies and certain other public utilities from the mid-19th century onwards: see JW Wade, “Tort Liability for Abusive and Insulting Language” (1950) 4 Vand L Rev 63; PR Handford, “Tort Liability for Threatening and Insulting Words” (1976) 54 Can BR 563. For the distinction between insult and outrage see eg Wallace v Shoreham Hotel Corporation 49 A 2d 81 (DC 1946); Slocum v Food Fair Stores of Florida Inc 100 So 2d 396 (Fla 1958); Browning v Slenderella Systems of Seattle 341 P 2d 859 (Wash 1959); Mitran v Williamson 197 NYS 2d 689 (1960).

318

See Restatement of Torts Second, § 46 comment (d); Restatement of Torts Third, § 45 comment (c). For general comment on this test see also Rockhill v Pollard 485 P 2d 28 (Or 1971), suggesting that the standard should be worked out on a case-by-case basis. There is a plethora of authorities applying the standard to particular fact situations. Constant repetition, or continuation of conduct over a long period, may be factors which assist in making it extreme and outrageous: see eg Kanzler v Renner 937 P 2d 1337 (Wyo 1997); Travis v Alcon Laboratories Inc 504 SE 2d 419 (WVa 1998); Delfino v Agilent Technologies Inc 52 Cal Rptr 3d 376 (Cal 2006).

319

Eddy v Brown 715 P 2d 74 (Okl 1986) at 77. Recent statements emphasise that courts apply strict standards: see eg Mik v Federal Home Loan Mortgage Corporation 743 F 3d 149 (2014) (Kentucky’s standards strict); Hayward v Cleveland Clinic Foundation 759 F 3d 601 (2014) (“To say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an understatement”). 320

See Restatement of Torts Second, § 46 comment (j); note also Restatement of Torts Third, § 45 comment I, dealing with serious emotional disturbance. Note, however, that a Utah court has suggested that plaintiffs only have to show that they subjectively experienced severe emotional distress in the situation in which they found themselves, and need not satisfy an objective standard that an ordinary reasonable person would have experienced it that way: Campbell v State Farm Mutual Automobile Insurance Co 65 P 3d 1134 (Utah 2001). A North Carolina court has suggested that the element of severe mental distress means an emotional or mental disorder, or any other type of severe and disabling emotional or mental condition, which may be generally recognised and diagnosed by professionals trained to do so: see Waddle v Sparks 414 SE 2d 22 (NC 1992). For affirmations of a similar test in negligence cases, see [5.60]. In many cases, the extreme and outrageous character of the defendant’s conduct is itself important evidence that the plaintiff has suffered severe mental distress: Estate of Trentadue ex re Aquilar v United States 397 F 2d 840 (2005).

321

Roling v Daily 596 NW 2d 72 (Iowa 1999).

[30.630]

30 Wilkinson v Downton

1067

now upheld by the Supreme Court322 — pursuing legitimate interests,323 investigating allegations of crime,324 newsworthiness,325 qualified privilege,326 and public policy.327 Some jurisdictions now stress that this tort is a “gap filler” tort,328 only to be used as a last resort.329 Plaintiffs will not generally be allowed to use this tort to evade statutes abolishing other causes of action.330 [30.630] The tort covers a wide variety of situations. Several broad categories can be identified, including cases where the plaintiff, to the defendant’s knowledge, is specially vulnerable,331 as well as a more

322

Snyder v Phelps 131 S Ct 1207 (2011), where the father of a dead soldier sued members of a fundamentalist church who staged an anti-homosexual demonstration at his funeral. The Supreme Court revoked damages which had been awarded for IIED caused by an undeniably harsh and harmful speech. See also Citizen Publishing Co v Miller 115 P 3d 107 (Ariz 2005) (newspaper published letter saying that next time an atrocity was inflicted on American forces in Iraq five Muslims should be executed at random; plaintiffs sued for IIED on behalf of all Islamic Americans, but claim barred by First Amendment).

323

Mortensen v Stewart Title Guarantee Co 237 P 3d 387 (Idaho 2010) (title insurer deciding to pay up under insurance policy rather than representing insured in litigation simply exercising a legal right: court quoted Restatement of Torts Second, § 46 comment (g): “the actor is never liable … when he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress” and the equivalent provision in Restatement of Torts Third, § 45). 324

Mantis v United Cerebral Palsy Association 662 NYS 2d 698 (1997) (action by mother accused of abuse of paraplegic barred by immunity provisions of law on reporting of abuse).

325 Munoz v American Lawyer Media LP 512 SE 2d 347 (Ga 1999) (truthful reports of a newsworthy event are protected, even if publication would otherwise be extreme and outrageous). 326

Howell v Enterprise Publishing Co LLC 920 NE 2d 1 (Mass 2010) (article in newspaper “Officials find porn on town computer” protected by privilege for fair and accurate reports, and plaintiff could not evade this protection by claiming for IIED instead of defamation). 327

See Welzenbach v Powers 660 A 2d 1133 (NH 1995) (father of ex-nuptial child married to another woman precluded from suing mother for IIED based on her assurances that she had taken adequate contraceptive measures). 328 See eg Brewer v Hillard 15 SW 3d 1 (Ky 1999); Banks v Fritsch 39 SW 2d 474 (Ky 2001); Johnson v Blue Cross/Blue Shield of Texas 375 F Supp 2d 545 (2005); Martinez v Bohls Bearing Equipment Co 361 F Supp 2d 608 (2005). 329

A theme prominent in recent cases in New York: see eg Turley v ISG Lackawanna Inv 774 F 3d 140 (2014) (IIED a highly disfavoured tort under New York law, to be invoked only as a last resort, and may not be used if conduct falls well within the ambit of a traditional tort).

330

See Miller v Ratner 688 A 2d 976 (Md 1997) (claim against former boyfriend prohibited by statute abolishing claims for breach of promise of marriage).

331

See eg Nickerson v Hodges 84 So 37 (La 1920) (old lady obsessed with buried pot of gold; pot of stones planted, “found” and opened in public); Alcorn v Anbro Engineering Inc 468 P 2d 216 (Cal 1970) (black worker called “goddam nigger” and dismissed by employer). For recent examples see Liberty Mutual Insurance Co v Steadman 968 So 2d 592 (Fla 2007) (delaying payment for lung transplant, knowing plaintiff had limited life expectancy); Doe v Corporation of the President of the Church of Jesus Christ of Latter-Day Saints 167 P 3d 1193 (Wash 2007) (teenage girl sexually abused by her father, a high priest of the Morman Church, told by bishop that if she reported the abuse she would be responsible for the break-up of her

1068

Part VI: Intentional Acts

[30.630]

general group of situations where the parties were previously strangers332 or where the case does not obviously fall into any other category.333 A particularly important class of case is where the mental distress is caused by the abuse of a position or relationship.334 There are decisions in which the tort has been invoked against lawyers,335 accountants,336 doctors and hospitals,337 dentists,338 chiropractors,339 therapists,340 banks,341 shops,

family); MacDermid v Discover Financial Services 488 F 3d 721 (2007) (husband had valid claim for IIED under Tennessee law where credit card company, knowing that wife suffered from bipolar disorder, threatened her with prosecution for failing to pay credit card debt, with result that she committed suicide). 332

For example, threats (Wilson v Wilkins 25 SW 2d 428 (Ark 1930); Ruiz v Bertolotti 236 NYS 2d 854 (1962); Dickens v Puryear 276 SE 2d 325 (NC 1981)); offensive acts or statements (Halio v Lurie 222 NYS 2d 759 (1961); Young v Stensrude 664 SW 2d 263 (Mo 1984)); isolated acts (Golden v Dungan 97 Cal Rptr 577 (1971) (writ served at midnight in loud and boisterous manner); Womack v Eldridge 210 SE 2d 145 (Va 1974) (entering home and taking pictures for use in child molestation case); Castellucci v Battista 847 A 2d 243 (homeowner brutally assaulted by armed intruder during home invasion)); course of conduct (Tate v Canonica 5 Cal Rptr 28 (1960) (repeated attempts to ruin business); Mitran v Williamson 197 NYS 2d 689 (1960) (soliciting sexual intercourse, sending obscene photographs)). Even if each individual act would not be actionable, the continuous nature of the conduct may make it extreme and outrageous: Bonner v Guccione 916 F Supp 271 (1996). Compare Jones v Clinton 997 F Supp 657 (1998) (allegation that former State Governor (and future President) made advances to woman in hotel room, and exposed himself: the court held that a single encounter was insufficient to establish outrageous conduct). 333

For recent examples see Almy v Grisham 639 SE 2d 182 (Va 2007) (wife received anonymous letters accusing her husband of infidelity); Delfino v Agilent Technologies Inc 52 Cal Rptr 3d 376 (2006) (repeated threats of physical harm sent to another employee via emails and postings on bulletin boards); Plotnik v Melhaus 146 Cal Rptr 3d 585 (2012) (ongoing dispute between neighbours, including defendant rushing at plaintiff when he was standing on his side of the boundary between their properties photographing fence, making rude comments, threatening plaintiff and his dog, and making veiled threats against his wife).

334

The amount of control the defendant has over the plaintiff may be a key factor in making conduct extreme and outrageous (Curcio v Chinn Enterprises Inc 887 F Supp 190 (1995) (restaurant president abusing his position and behaving in a sexually offensive manner towards waitresses)); see also Osborne v Payne 31 SW 3d 911 (Ky 2000) (claim against priest for sexual misconduct).

335

See eg Walter v Stewart 67 P 3d 1042 (Utah 2003) (attorney used position of trust gained with former client to lure her into sexual relationship). However, the conduct of a lawyer in terminating a sexual relationship with a client and then sending her a bill for legal services rendered during the relationship was insulting but not outrageous: Gaspard v Beadle 36 SW 3d 229 (Tex 2001).

336

See eg Mroz v Lee 5 F 3d 1016 (1993).

337

See eg Rockhill v Pollard 485 P 2d 28 (Or 1971). In particular, improper sexual conduct has often resulted in liability for IIED: see eg McQuay v Guntharp 986 SW 2d 850 (Ark 1999) (trusted physician fondled patient’s breasts during examination); but consensual sexual relations between a doctor and an adult patient are not necessarily outrageous (Iwanski v Gomes 611 NW 2d 607 (Neb 2000)).

338

See eg Macsenti v Becker 237 F 3d 1223 (2001).

339

See eg Pearson v Kancilia 70 P 3d 594 (Col 2003).

340

See eg Lindgren v Moore 907 F Supp 1183 (1995).

[30.630]

30 Wilkinson v Downton

1069

restaurants and other service providers,342 local authorities,343 police,344 prisons,345 child care agencies,346 school and university authorities347 and trade unions.348 Particularly significant cases are those where it has been held that plaintiffs have stated a cause of action against landlords for harassing their tenants349 in an attempt to evict them, and against insurers350 and debt collectors351 who have hounded creditors, or persons whom they believe to be creditors, in an attempt to collect debts. The latter instance is now regarded in a few States as a separate tort in 341 See eg Ledbetter v Brown City Savings Bank 368 NW 2d 257 (Mich 1985); Etchart v Bank One, Columbus NA 773 F Supp 239 (1991) (credit card issuer). 342

See eg Meyers v Hot Bagels Factory Inc 721 NE 2d 1068 (Ohio 1999) (restaurant owner told customer, in presence of other customers, that “you must be a really good fuck” and “you have a nice firm ass”); Wal-Mart Stores Inc v Johnson 547 SE 2d 320 (Ga 2001) (customer detained on suspicion of shoplifting simply because she was black); Stires v Carnival Corporation 243 F Supp 2d 1313 (2002) (cruise line aware of head waiter’s propensity for sexually assaulting passengers but did nothing about it); Gamble v Dollar General Corporation 852 So 2d 5 (Miss 2003) (store employee restrained 19-year-old student suspected of shoplifting by grabbing her panties). 343

See eg Salamone v Oak Park Marina Inc 688 NYS 2d 362 (1999) (installation of video camera in ladies’ restroom).

344

See eg Savage v Boies 272 P 2d 249 (Ariz 1954) (police officer told plaintiff that husband had been involved in accident in order to get her to hospital to be certified as insane). For recent examples see Grager v Schudar 770 NW 2d 692 (ND 2009) (prisoner sexually assaulted by jailer); District of Columbia v Tulin 994 A 2d 788 (DC 2010) (police officer responsible for car accident then caused motorist to be falsely arrested for driving offence); Fox v Hayes 600 F 3d 819 (2010) (detective told plaintiff that her husband had murdered their three-year-old daughter); Hayward v Cleveland Clinic Foundation 759 F 3d 601 (2014) (police officers broke down locked door of home and beat African-American, calling him a “black nigger”, before arresting him for a minor traffic violation).

345

See eg Martin v Ezeagu 816 F Supp 20 (1993) (harassment by chief librarian at prison law library, including racial epithets and profanity); Mathie v Fries 935 F Supp 1284 (1996) (correctional facility inmate suffered repeated sexual abuse, sodomised while handcuffed to pipes). 346

Jordan v City of Philadelphia 66 F Supp 2d 638 (1999) (children placed in foster home sexually assaulted by teenage son of foster parents); Brown v Youth Services Intern of South Dakota Inc 89 F Supp 2d 1095 (2000) (residential treatment facility retained counsellor after receiving reports that counsellor was sexually molesting students). 347

See eg Johnson v Sampson 208 NW 814 (Minn 1926) (schoolgirl accused of immorality, forced to make false confession); Russell v Salve Regina College 649 F Supp 341 (1986) (nursing student persistently accused of being overweight); Smith v Atkins 622 So 2d 795 (La 1993) (law professor engaged in long term campaign of verbal bullying and humiliation directed at particular student).

348

See eg State Rubbish Collectors Association v Siliznoff 240 P 2d 282 (Cal 1952) (union forced plaintiff to become member by threatening to beat him up, destroy his truck and put him out of business); Yeager v Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America 453 NE 2d 666 (Ohio 1983).

349

See eg Hickey v Welch 91 Mo App 4 (1901); Emden v Vitz 198 P 2d 696 (Cal 1948); 49 Prospect Street Tenants Association v Sheva Gardens Inc 547 A 2d 1134 (NJ 1998); Texas v Credit Asset Management Inc 85 F Supp 2d 722 (2000).

350

See eg Fletcher v Western National Life Insurance Co 89 Cal Rptr 78 (1970); Campbell v State Farm Mutual Automobile Insurance Co 65 P 3d 1134 (Utah 2001).

1070

Part VI: Intentional Acts

[30.630]

itself.352 Over recent years, however, one category has come to predominate: cases where employers have made extreme attempts to cause employees to leave their jobs,353 or engaged in other forms of outrageous behaviour.354 The cases on mishandling of dead bodies, originally an independent development,355 are now recognised as another variety of outrageous conduct.356 In recent years the tort has been much

351

See eg Barnett v Collection Service Co 242 NW 25 (Iowa 1932); La Salle Extension University v Fogarty 253 NW 424 (Neb 1934); Duty v General Finance Co 273 SW 2d 64 (Tex 1954). See also Moorehead v JC Penney Co 555 SW 2d 713 (Tenn 1977) (harassment by computer which continued to send out notices even though store admitted mistake).

352

See eg Moore v Savage 359 SW 2d 95 (Tex 1962); Boudreaux v Allstate Finance Corporation 217 So 2d 439 (La 1968). 353 The following are typical of the kinds of allegations held to state a cause of action: Russo v City of Hartford 184 F Supp 2d 689 (2002) (police chief threatened police officer with physical violence on learning he was involved in corruption probe); Lees v Sea Breeze Health Care Center 391 F Supp 1102 (2005) (employee harassed and retaliated against by employer after employee gave notice that had enlisted in US Air Force Reserves); Cabaness v Thomas 232 P 3d 486 (Utah 2010) (extended course of harassment, intimidation and abuse by supervisor). Many cases involve unacceptable sexual conduct, eg Brewer v Hillard 15 SW 3d 1 (Ky 1999) (supervisor made multiple unsolicited requests for homosexual sex); Walla v Vivek Purmasir & Associates Inc 160 F Supp 2d 380 (2000) (supervisor asked secretary to sit on his lap, offered to buy her cocktail dress, and fondled her breasts in elevator); Greenhorn v Marriott Intern Inc 258 F Supp 2d 1249 (2003) (male supervisor exposed himself to female employee). In the reverse situation where the employer is suing the employee it will be much more difficult to establish that the conduct reached the level of outrageous conduct: see eg Langeslag v Kymn Inc 664 NW 2d 860 (Minn 2003) (false reports to police that employer had committed crimes, threatened and shouted at employee did not constitute outrageous conduct). 354

Leading cases include Alcorn v Anbro Engineering Inc 468 P 2d 216 (Cal 1970); Harris v Jones 380 A 2d 611 (Md 1977); MBM Co Inc v Counce 596 SW 2d 681 (Ark 1980); Sacco v High Country Independent Press Inc 896 P 2d 411 (Mont 1995). However, courts applying the extreme and outrageous standard recognise that employers must be allowed reasonable scope to pursue their own legitimate interests: Taggart v Drake University 549 NW 2d 796 (Iowa 1996) (Dean losing temper at private meeting with employee not sufficiently outrageous); Crowley v North American Telecommunications Association 691 A 2d 1169 (DC 1997) (conducting performance evaluations not actionable).

355

See Larson v Chase 50 NW 238 (Minn 1891); Gadbury v Bleitz 233 P 2d 299 (Wash 1925); Boyle v Chandler 138 A 273 (Del 1927). For a recent example, see Adams v King County 192 P 3d 891 (Wash 2008) (unauthorised removal of brain for use in research).

356

See eg Spiegel v Evergreen Cemetery Co 186 A 585 (NJ 1936); Papieves v Lawrence 203 A 2d 118 (Pa 1970); Lascurain v City of Newark 793 A 2d 731 (NJ 2002). For general discussion see Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991) (no liability on facts).

[30.640]

30 Wilkinson v Downton

1071

used in cases involving discrimination on racial357 and other358 grounds, and racist,359 ethnic360 and sexual harassment:361 here the discrimination may take many forms including the use of words alone.362 [30.640] The Restatement of Torts Second specifically mentioned cases where secondary parties are affected by acts principally directed against others. It provided that where extreme and outrageous conduct was directed at a third person, the tort was committed if the actor intentionally or recklessly caused severe emotional distress to a member of that person’s immediate family363 present at the time, whether or not such distress resulted in bodily harm, or any other person present, if such distress resulted in bodily harm.364 A leading example was Knierim v

357

See eg Guillory v Godfrey 286 P 2d 474 (Cal 1955) (attempt to prevent customers using restaurant on ground that it employed black cook); Ruiz v Bertolotti 236 NYS 2d 854 (1962) (Puerto Rican family prevented from buying house in white neighbourhood by threats to builder causing him to rescind contract of sale); Lane v Cole 88 F Supp 2d 402 (2000) (white tenant ejected for refusal to comply with landlord’s demand that tenant not receive black visitors). However, mere discrimination without aggravating circumstances will not amount to outrageous conduct: Browning v Slenderella Systems of Seattle 341 P 2d 859 (Wash 1959). 358

See eg AR v Kogan 964 F Supp 269 (1997) (patient denied medical treatment due to HIV positive status).

359

See eg Flamm v Van Nierop 291 NYS 2d 189 (1968); Alcorn v Anbro Engineering Inc 468 P 2d 216 (Cal 1970); Taylor v Metzger 706 A 2d 685 (NJ 1998); Nieto v Kapoor 182 F Supp 2d 1114 (2000) (discrimination against Hispanic employees). Flizack v Good News Home for Women Inc 787 A 2d 228 (NJ 2001) is especially notable as an example of racist harassment of a white person: a white female employee successfully complained of the conduct of her black female supervisor, who said that if the employee was still angry with her “I am going to have to stare into them big blue eyes and pat those white titties”, simultaneously touching her breast in a sexual manner.

360

See eg Gomez v Hug 645 P 2d 916 (Kan 1982) (“fucking Mexican greaser”); Mehinovic v Vuckovic 198 F Supp 2d 1322 (2002) (Bosnian Serb police officer intentionally harmed and humiliated ethnic Muslims in Bosnia).

361

See eg Samms v Eccles 358 P 2d 344 (Utah 1961) (persistent telephone calls requesting sexual contact); Swentek v USAIR Inc 830 F 2d 552 (1987) (pilot told flight attendant: “I wish I were a coat so that I could wrap myself around your big tits”); Linebaugh v Sheraton Michigan Corporation 497 NW 2d 585 (Mich 1993) (circulation of cartoon showing plaintiff and co-worker in sexually compromising position); Kanzler v Renner 937 P 2d 1337 (Wyo 1997) (repeated incidents of sexually motivated advances and intimidating behaviour, culminating in defendant confining fellow-worker in closet and rubbing his crotch against her leg). “By its very nature, sexual harassment in the workplace is outrageous conduct”: Fisher v San Pedro Peninsula Hospital 262 Cal Rptr 842 (1989) at 858.

362

In these kinds of cases emotional distress damages may also be recoverable under anti-discrimination legislation: see DB Dobbs, PT Hayden and EM Bublick, The Law of Torts (2nd ed, West, St Paul, Minnesota, 2011), Vol 2, p 558.

363

It has been held in Washington that the class of family members entitled to sue consists of those entitled to bring wrongful death actions: see Strickland v Deaconess Hospital 735 P 2d 74 (Wash 1987).

364 Restatement of Torts Second, § 46(2). The Restatement assumes that the defendant is aware of the plaintiff’s presence: see Christensen v Superior Court (Pasadena Crematorium of Altadena) 820 P 2d 181 (Cal 1991) at 202 per Baxter J. Star v Rabello 625 P 2d 90 (Nev 1981) suggests that the outrage requirement may be more difficult to meet when the act is directed against a

1072

Part VI: Intentional Acts

[30.640]

Izzo,365 where an intoxicated defendant in the plaintiff’s presence threatened to murder the plaintiff’s husband and then carried out his threat.366 The plaintiff recovered for intentional infliction of emotional distress, the court holding that the defendant’s conduct was intentional with regard to her.367 A comment in the Restatement of Torts Third suggests that rather than determining at whom the conduct is directed, what should matter is whether the claimant’s emotional harm results from bodily or emotional harm to another.368 All the common situations in negligence cases involving secondary parties have their equivalents in “outrage” cases, and here the limitations that United States courts have canvassed in relation to liability for negligence have sometimes been carried over and applied in the area of intentional mental harm. Examples include cases where the plaintiff was present only at the aftermath of the occurrence of the tort,369 or was only told of what happened.370 However,

third party and the plaintiff is a mere witness to the occurrence. In Arkansas and Kentucky the tort does not extend to conduct directed at a third party: see Poindexter v Armstrong 934 F Supp 1052 (1994); Allen v Clemons 920 SW 2d 884 (Ky 1996). 365

Knierim v Izzo 174 NE 2d 157 (Ill 1961).

366

For another example see Grimsby v Samson 530 P 2d 291 (Wash 1975). In exceptional cases it may be enough that the third party is nearby, though not present, as in Croft by Croft v Wicker 737 P 2d 789 (Alaska 1987) (defendant sexually touched plaintiffs’ 14-year-old daughter, parents nearby but not present, almost immediately learnt of it). 367 For a discussion of intention in this context see Taylor v Vallelunga 339 P 2d 910 (Cal 1959). Liability based on intention under Restatement of Torts Second, § 46 operated as an alternative to liability based on negligence under § 312: see [30.320]. A third possible theory espouses the criminal law doctrine of transferred intent: it was adopted in Lambert v Brewster 125 SE 244 (WVa 1924), but is limited by the Restatement’s requirement of “presence”. A recent case adopting the transferred intent theory is Kunsler ex rel Kunsler v International House of Pancakes Inc 799 NYS 2d 863 (2005) (recovery granted to child who suffered emotional distress when restaurant cashier accused her mother of being a thief). 368

Restatement of Torts Third, § 46 comment l.

369

HLO ex rel LEO v Hossle 381 NW 2d 641 (Iowa 1986); Leo v Hillman 665 A 2d 572 (Vt 1995). But in exceptional circumstances recovery has been allowed despite the third party not being present, see eg Nichols v Busse 503 NW 2d 173 (Neb 1993), where the defendant caused an accident that killed his passenger (who was plaintiff’s daughter), concealed her body, and then telephoned the plaintiff and told her that daughter had stolen his car. The court drew an analogy with Nebraska negligence cases, which have rejected a requirement of contemporaneous observance: see James v Lieb 375 NW 2d 109 (Neb 1985).

370

See eg Miller v Cook 273 NW 2d 567 (Mich 1978) (no cause of action for learning of assault committed on family member). For recent examples see Shemenski v Chapiesky 2003 WL 21799941 (wife taken to hospital after husband called 911, but when police arrived they arrested the husband instead of letting him go to the hospital; however, the wife could not recover for IIED because she was not present); Wooleyhan v Cape Henlopen Board of Education 2010 WL 2635982 (parents of high school student acquitted of charge of offensively touching teacher had no cause of action for IIED against teacher because not present at time teacher made false accusations). For possible dilution of this requirement see Limone v United States 336 F Supp 2d 18 (2004) (son of man who died in prison after being allegedly framed by FBI agents suspected FBI’s involvement at time of father’s sentence: this held to satisfy “substantially contemporaneous” requirement).

[30.650]

30 Wilkinson v Downton

1073

the limitations on the Restatement provision can be overcome by adopting an approach equivalent to the direct victim doctrine recognised in negligence cases.371 [30.650] The volatility of the IIED tort is shown by suggestions that it might apply in a host of diverse situations, including kidnapping of children by non-custodial parents and other family disputes,372 divorce proceedings,373 other issues arising out of personal relationships,374 environmental disputes,375 combating the mass media376 including the

371

See Horak v Biris 474 NE 2d 13 (Ill 1985) (where both spouses were patients of therapist, therapist’s seduction of one of them could amount to intentional or reckless infliction of distress on the other); Destefano v Grabrian 763 P 2d 275 (Col 1988) (clergyman providing marriage counselling). This approach has recently been adopted in actions by relatives of victims of terrorist attacks, on the basis that such attacks are directed against not only the victims but also their families: see eg Murphy v Islamic Republic of Iran 740 F Supp 2d 51 (2010) (family members of American servicemen killed or injured in attack on US Marine Barracks in Beirut could recover for emotional injuries suffered as result, even though not present); compare Bettis v Islamic Republic of Iran 315 F 3d 325 (2003) (nieces and nephews of victim kidnapped and tortured by terrorist group not direct victims). For the direct victim doctrine in negligence cases see [18.190]–[18.240]. 372

See eg Smith v Smith 640 SW 2d 490 (Mo 1982).

373

See Massey v Massey 867 SW 2d 766 (Tex 1993); Christians v Christians 637 NW 2d 377 (SD 2001). A Texas court had earlier refused to recognise IIED as a cause of action in a divorce suit in Chiles v Chiles 779 SW 2d 127 (Tex 1989) (wife, after suffering husband’s drinking and physical and verbal abuse, had nervous breakdown when she found him naked on floor of his office with secretary).

374 See eg Kramer v Downey 680 SW 2d 554 (Tex 1989) (ex-lover of married man followed him around daily for several years); Doe v Roe 598 NYS 2d 678 (1993) (defendant, believing former girlfriend had infected him with sexually transmitted disease, sued her for negligence, made abusive phone calls and defaced her car); Durban v Guajardo 79 SW 3d 198 (Tex 2002) (altercation between partners who had been dating for nine months, defendant finally saying “You want to live your whole life like it’s a Jerry Springer show. I don’t want to see you anymore”; it was held that an action for IIED was available even though there was also a battery). 375

See eg Re Hanford Nuclear Reservation Litigation 780 F Supp 1551 (1991) (property owners and residents of area surrounding nuclear reservation had claim in respect of present and threatened future injuries from storage and release of hazardous substances); Donald v Amoco Production Co 735 So 2d 161 (Miss 1999) (oil company wilfully caused property to become contaminated). 376

See eg Galella v Onassis 487 F 2d 986 (1973) (press hounding of Jacqueline Onassis); Kolegas v Heftel Broadcasting Co 607 NE 2d 201 (Ill 1992) (radio disc jockey said plaintiff’s wife was so hideous that no one would marry her except under duress, and that she and her son had deformed heads due to Elephant Man disease); Green v Chicago Tribune Co 675 NE 2d 249 (Ill 1996) (newspaper reporter entered room to photograph dying child, prevented mother entering until he had finished, published story with mother’s comments and photograph).

1074

Part VI: Intentional Acts

[30.660]

use of parody advertising,377 the activities of anti-abortion activists378 and spiritual counsellors,379 and most recently, terrorist activity.380 There seems no reason why children who have been physically or sexually abused would not also be able to sue for IIED in addition to traditional torts. The extension of this cause of action to pure mental distress is paralleled in a number of United States jurisdictions by a similar extension of negligence liability.381

Should Australia follow suit? [30.660] Is a similar extension in Australia and other Commonwealth jurisdictions possible?382 The case for such an extension has been discussed in the periodical literature.383 Salmond and Heuston in 1996 suggested that the law in England and elsewhere already recognised that a person who by extreme and outrageous conduct intentionally or recklessly caused severe emotional distress to another was liable for such

377

See Falwell v Flynt 797 F 2d 1270 (1986) where Hustler Magazine was held liable for parody advertisement in which television evangelist Jerry Falwell was depicted describing his “first time” (with Campari, a well-known alcoholic drink) in back garden shed with his mother. On appeal sub nom Hustler Magazines Inc v Falwell 108 S Ct 876 (1987) the United States Supreme Court reversed the decision on First Amendment grounds.

378

See eg Planned Parenthood of Columbia/Willamete Inc v American Coalition of Life Activists 945 F Supp 1355 (1996); Tompkins v Cyr 995 F Supp 664 (1998).

379

See eg Lewis v Holy Spirit Association for the Unification of World Christianity 589 F Supp 10 (1983) (action by former member of church of Rev Sun Myung Moon alleging indoctrination and brainwashing); Smith v Calvary Christian Church 592 NW 2d 713 (Mich 1998) (pastor disclosed to congregation parishioner’s previous contacts with prostitutes); Lightman v Flaum 687 NYS 2d 562 (1999) (rabbi made unauthorised disclosure of privileged communications to congregant’s husband and in divorce proceedings); Conley v Roman Catholic Archbishop of San Francisco 102 Cal Rptr 2d 679 (2000) (plaintiff sanctioned by archbishop because made mandatory report of child abuse); Doe v Corporation of President of the Church of Jesus Christ of Latter-Day Saints 167 P 3d 1193 (Wash 2007) (teenage girl sexually abused by her father, a high priest of the Mormon Church). Some religiously motivated conduct may be entitled to First Amendment protection, eg Pleasant Glade Assembly of God v Schubert 264 SW 3d 1 (Tex 200) (pastor and other church members laid hands on plaintiff to exorcise demons). 380

Sutherland v Islamic Republic of Iran 151 F Supp 2d 27 (2001) (hostage held captive by Lebanese terrorist organisation); Burnett v Al Baraka Investment and Development Corporation 274 F Supp 2d 86 (2003) (claim against entities funding and supporting Al Qaeda, the terrorist group responsible for the September 11 terrorist attacks). 381

See [6.160].

382

Note Cutler v Bank of America National Trust and Savings Association 441 F Supp 863 (1977), where a federal court in California, applying conflict of laws rules, held that an action brought in respect of a bank robbery at an English branch of a United States bank was governed by English law; the court said that English law did not recognise the action for IIED, and referred to Wilkinson v Downton as stating the English rule.

383

The first articles to discuss this question in detail were PR Handford, “Wilkinson v Downton and Acts Calculated to Cause Physical Harm” (1985) 16 UWAL Rev 31 at 56–63; FA Trindade, “The Intentional Infliction of Purely Mental Distress” (1986) 6 OJLS 219. Note also HJ Glasbeek, “Outraged Dignity — Do We Need a New Tort?” (1968) 6 Alta LR 77.

[30.670]

30 Wilkinson v Downton

1075

emotional distress, provided that bodily harm resulted from it,384 a proposition that only stopped short of the position taken by the Restatement of Torts Second, § 46 in that it required resulting bodily harm. It thus seemed that the courts in substance already recognised an action for the intentional infliction of mental distress, and that in requiring physical harm they were simply resorting to the fiction of imputing an intention to cause physical or psychiatric injury in order to allow the defendant to recover damages, though in fact the only intention was to cause mental or emotional distress.385 [30.670] Lord Hoffmann himself suggested that the law could move forward from Wilkinson v Downton and develop a tort of intentional harassment causing distress without the need to show actual bodily or psychiatric illness. He first put forward this view in Hunter v Canary Wharf Ltd,386 suggesting that this was the perceived gap in the common law exposed by Khorasandjian v Bush,387 an action in respect of unwanted telephone calls and other unwelcome attention that had not yet resulted in injury to health. An action in nuisance was not available because the plaintiff lacked title to sue, but Lord Hoffmann suggested that this should be seen as a case of harassment, not nuisance: The law of harassment has now been put on a statutory basis (see the Protection from Harassment Act 1997) and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence … . The policy considerations are quite different.388

His Lordship reiterated these sentiments in Wainwright v Home Office;389 however, in a passage quoted earlier,390 he emphasised that the intention requirement would have to be carefully limited. In O (A Child) v Rhodes,391 Lord Neuberger expressed agreement, saying: Like Lord Hoffmann in Wainwright v Home Office …, I consider that there is much to be said for the view that the class of potential claimants should not be limited to those who can establish that they suffered from a recognised psychiatric illness as a result of the actionable statement of the defendant. 384 RFV Heuston and RA Buckley, Salmond and Heuston on the Law of Torts (21st ed, Sweet & Maxwell, London, 1996), p 215; Lord Woolf CJ in Wainwright v Home Office [2002] QB 1334 at [49] said he had no difficulty with this statement, though Buxton LJ at [79] disagreed with it. 385

FA Trindade, “The Intentional Infliction of Purely Mental Distress” (1986) 6 OJLS 219 at 221–222. Trindade’s arguments were referred to by McDonald J in Gimson v Victorian Workcover Authority [1995] 1 VR 209 at 226, and by Gillard J in Giller v Procopets [2004] VSC 113 at [177]–[178]. 386

Hunter v Canary Wharf Ltd [1997] AC 655.

387

Khorasandjian v Bush [1993] QB 727.

388

Hunter v Canary Wharf Ltd [1997] AC 655 at 707.

389

Wainwright v Home Office [2004] 2 AC 406.

390

See [30.450].

391

O (A Child) v Rhodes [2016] AC 219 at [116].

1076

Part VI: Intentional Acts

[30.680]

[30.680] In the same year as Wainwright v Home Office,392 the Scottish Law Commission made a similar suggestion in their report outlining possible statutory reforms to the common law on reparation for psychiatric injury. Though the Commission was in favour of retaining the requirement for “significantly disabling psychiatric injuries” in cases of negligence, it was in favour of relaxing the requirement in intention cases: [W]e have become satisfied that a distinction should be drawn between the situation where mental harm is caused deliberately by the defender and where it has arisen as a result of his unintentional but wrongful conduct, for example negligence. In the case of intentional wrongdoing, we now think that the defender should normally be liable for the harm he intended to cause: this should include distress, anger, grief etc, whether or not this amounts to a medically recognised mental disorder. We believe that a person who deliberately causes mental harm, for example by subjecting the victim to sustained mental cruelty, should make reparation for any harm so caused to the pursuer’s mental state, mental functioning or mental well-being.393

[30.690] In Australia, the case for recognising a tort of intentional infliction of emotional distress has been forcefully put by Maxwell P in the Victorian Court of Appeal in Giller v Procopets.394 The plaintiff had claimed damages for severe distress resulting from the fact that her ex-partner had made videotapes of sexual activity between them and after the ending of the relationship had shown or attempted to show them to others. The trial judge was sympathetic to the claim but held that in the absence of any authority in support he was bound to reject it. In the Court of Appeal Ashley and Neave JJA likewise rejected the claim. Maxwell P, however, was in favour of recognising a tort that had long been recognised in the United States, commenting that both the law and psychiatry had come a long way since 1897. He said: The recognition of a claim for intentional infliction of mental distress reflects the inevitable, and necessary, development of that tort. On the one hand, a requirement of actual intention to cause harm is surely to be preferred to unsatisfactory notions of imputed intention. On the other, the advance of medical science means that it is no longer necessary to insist on physical proof of mental harm and no longer necessary, or appropriate, to insist on proof of a “recognised mental illness”.395

His Honour said that he was not aware of any decision in Australia or any comparable jurisdiction holding that such a claim was untenable; on the contrary, recent statements of high authority in the United Kingdom, such as those of Lord Hoffmann, favoured such a development. After a full review of the authorities in Australia and elsewhere, and reference to DSM-IV, which made it clear “that there are no clearly-defined diagnostic 392

Wainwright v Home Office [2004] 2 AC 406.

393

Scottish Law Commission, Report on Damages for Psychiatric Injury (Scot Law Com No 196, 2004), para 3.7. 394

Giller v Procopets (2008) 24 VR 1.

395

Giller v Procopets (2008) 24 VR 1 at [6].

[30.710]

30 Wilkinson v Downton

1077

boundaries separating ‘recognised mental illness’ from other forms of mental disturbance”, Maxwell P set out his conclusions: First, the requirement to show physical harm as a signifier of psychological harm is anachronistic and should be entirely discarded from this area of discourse. Secondly, the term “nervous shock” – and its modern synonym, “recognised psychiatric illness” – should also be discarded, based as they are on the unsustainable assumption that a clear line separates “psychiatric illness” from other (lesser) types of mental distress. Thirdly, and consequently, the focus of a court’s inquiry should no longer be on whether a clinician would attach a particular diagnostic label to the plaintiff’s condition – about which there will frequently be legitimate differences of opinion – but on the nature and extent of the mental distress actually suffered by the plaintiff as a consequence of the defendant’s conduct.396

This would obviate the need for the fiction of imputed intention. In the case in hand, there was an actual intention to cause maximum distress, and great distress had resulted, for which the defendant should be held liable. [30.700] Similar arguments have been advanced in some Canadian cases.397 Academic writers continue to canvass the arguments in favour of a recognition of a tort of intentionally causing mental distress.398 [30.710] In spite of these arguments, the development by judicial decision of liability for purely mental distress caused intentionally seems on balance unlikely. Courts in England, Australia and other Commonwealth countries have traditionally been reluctant to give direct protection to personality interests — a reluctance also exemplified by the failure to develop a cause of action for invasion of privacy399 and the 396

Giller v Procopets (2008) 24 VR 1 at [31].

397

See Tran v Financial Debt Recovery Ltd (2000) 193 DLR (4th) 168, where Molloy J said (at [34]–[37]) that intentional infliction of emotional harm was tortious and it was not necessary for the harm to amount to a psychiatric condition before it was compensable, followed in Murray v Toth (2012) 97 CCLT (3d) 318 at [37] per Crane J; Haggarty v McCullogh (2002) 309 AR 315, where Skitsko PCJ (at 322, 324) suggested that “outrageous conduct” might be enough in itself to give rise to liability for “intentional infliction of mental suffering”. 398

See eg A Gray, “Wilkinson v Downton: New Work for an Old Tort to Do?” (2015) 23 Tort L Rev 127 at 137–143; P Handford, “Wilkinson v Downton: Pathways to the Future?” (2012) 20 Tort L Rev 145 (inter alia, discussing a possible analogy in the form of the jettisoning of the injury to health requirement in cases on cruelty as a ground for divorce). Note also the scholars who have put forward arguments for the abandonment or modification of the “recognisable psychiatric illness” requirement in negligence cases: see [6.460].

399

Though common law attitudes to invasion of privacy may now be changing. The Australian High Court and the Supreme Court of Canada have left open the question of whether a tort of invasion of privacy exists: see Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199; Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591. However, the New Zealand Court of Appeal has now recognised a tort of invasion of privacy: see Hosking v Runting [2005] 1 NZLR 1. For the earlier Australian attitude, see Victoria Park Racing & Recreation Grounds Co v Taylor (1937) 58 CLR 479. The English courts have rejected any suggestion that a right to privacy has been recognised as a result of the incorporation of the European Convention on Human Rights into English law by the Human Rights Act 1998 (UK): see Wainwright v Home Office [2004] 2 AC 406; Campbell v MGN Ltd [2004] 2 AC 457;

1078

Part VI: Intentional Acts

[30.720]

abolition of torts involving interference with family relationships, such as seduction, enticement and harbouring.400 Another contributory factor may be the existence in the United States of the Restatement, drafted mainly by academic lawyers, which has had a great influence on the courts. There is no real equivalent elsewhere. A further, more pragmatic, reason is that Commonwealth judges tend to be more conservative and ruled by precedent than their American brothers and sisters.401 This is not to say that major doctrinal developments are not possible, as the High Court of Australia402 and the House of Lords403 have demonstrated over recent years; however, the fact remains that the United States consists of a large number of individual jurisdictions without a single final court of appeal (other than on constitutional issues), and so judges who wish to escape from the restrictions of their own case law can always find precedents in other States. By contrast, even though the United Kingdom, Australia and Canada each contain several different legal systems, in each of these countries those legal systems are bound by a single final court of appeal, which exercises an important control on judicial innovation by lower courts. An allied reason may be an unwillingness on the part of legal advisers to advise their clients to put forward claims for intentional infliction of emotional distress, given that the balance of authority is very much against recognition.404 [30.720] Moreover, Commonwealth courts have tended to focus on individual fact situations, rather than the overall field. So, for example, in the case of harassing conduct by a landlord, there may be a remedy if a recognised tort such as trespass to land is committed, or if there is a breach of the covenant of quiet enjoyment, but otherwise the law of tort earlier suggestions to the contrary by Sedley LJ in Douglas v Hello! Ltd [2001] QB 967 were not followed. This continues the traditional approach of English law: see eg Tolley v JS Fry & Son [1931] AC 333; Kaye v Robertson [1991] FSR 62. 400

Family Law Act 1975 (Cth), s 120; Wrongs Act 1936 (SA), ss 35 – 36; Law Reform (Miscellaneous Provisions) Act 1970 (UK), s 5; Domestic Actions Act 1975 (NZ), s 4(1); Family Proceedings Act 1980 (NZ), s 190. On the position in Canada see C Davies, Family Law in Canada (4th ed, Carswell, Toronto, 1984), pp 88–89. 401

See L Brittan, “The Right of Privacy in England and the United States” (1963) 37 Tul L Rev 235, reaching a similar conclusion on the right to privacy.

402 See eg Zecevic v Director of Public Prosecutions for Victoria (1987) 162 CLR 645; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107; R v L (1991) 174 CLR 379; Northern Territory v Mengel (1995) 185 CLR 307; Tame v New South Wales (2002) 211 CLR 317. Note B Horrigan, “Towards a Jurisprudence of High Court Overruling” (1992) 66 ALJ 199. 403

See eg R v Shivpuri [1987] AC 1; R v Howe [1987] AC 417; Murphy v Brentwood District Council [1991] 1 AC 398. Note JW Harris, “Murphy Makes It Eight – Overruling Comes to Negligence” (1991) 11 OJLS 416. For recent cases where the House of Lords has come close to overruling earlier decisions see R v Kansal (No 2) [2002] 2 AC 69; Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309. Note B Harris, “Final Appellate Courts Overruling Their Own “Wrong” Precedents” (2002) 118 LQR 408.

404

See FA Trindade, “The Intentional Infliction of Purely Mental Distress” (1986) 6 OJLS 219 at 223.

[30.730]

30 Wilkinson v Downton

1079

refuses to provide redress. In Perera v Vandiyar405 the landlord cut off his tenant’s gas and electricity, forcing the tenant to leave. The county court judge suggested that there should be a tort of “eviction” but the English Court of Appeal refused to endorse this view. In McCall v Abelesz406 the English Court of Appeal again refused to recognise a tort remedy for harassment of tenants. There was no argument in these cases for an extension of the Wilkinson v Downton principle along United States lines.407 Likewise, the law of tort gives no civil remedy to harassed debtors.408 Though Khorasandjian v Bush409 offered promise as the beginning of a more general tort remedy for harassment, later cases denied the existence of any such tort.410 There are Scottish, Canadian and New Zealand authorities that give some recognition to a liability for intentional interference with dead bodies,411 but none elsewhere. [30.730] These instances apart, the situations dealt with by the American cases are generally dealt with by legislation. In some cases, such as harassment by landlords412 or debt collectors,413 legislation provides criminal penalties;414 it is noteworthy that some of these statutes use a formula reminiscent of Wilkinson v Downton by referring to conduct calculated to subject people to alarm, distress or humiliation.415 More recently, legislation in the United Kingdom has created “statutory

405

Perera v Vandiyar [1953] 1 WLR 672.

406

McCall v Abelsz [1976] QB 585.

407

Note that in Jennison v Baker [1972] 2 QB 52 (action for injunction against landlord) Salmon LJ described the defendant’s conduct as “outrageous”, unconsciously echoing the United States test of liability.

408

See B Kercher, “Debt Collection Harassment in Australia” (1979) 5 Mon ULR 87, 204; Report of the (UK) Committee on the Enforcement of Judgment Debts (Cmnd 3909, 1969), paras 1232–4.

409

Khorasandjian v Bush [1993] QB 727: see [30.120].

410

Hunter v Canary Wharf Ltd [1997] AC 655 at 691–692 per Lord Goff of Chieveley, at 707 per Lord Hoffmann; Wong v Parkside Health NHS Trust [2003] 3 All ER 932.

411

See Pollok v Workman (1900) 2 F 354; Conway v Dalziel (1901) 3 F 918; Hughes v Robertson 1913 SC 394; Stevens v Yorkhill NHS Trust 2006 SLT 889; Philipps v Montreal General Hospital (1908) 33 Que SC 483; Edmonds v Armstrong Funeral Home Ltd [1931] 1 DLR 676; MacKenzie v Attorney-General [2015] NZHC 191.

412

See eg Residential Tenancies Act 1995 (SA), s 65(2); Rent Act 1965 (UK), s 30, later replaced by Protection from Eviction Act 1977 (UK), s 1.

413

Australian Consumer Law (Cth), s 50; Administration of Justice Act 1970 (UK), s 40(1).

414

Note also the Crime and Disorder Act 1998 (UK) which provided for an “anti-social behaviour order” (of potentially indefinite duration) where someone has acted “in a manner that … was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself”. Breach of the terms of the order is punishable by imprisonment or a fine.

415

“Calculated to subject” in s 40(1) of the Administration of Justice Act 1970 (UK) means “likely to subject”, not “intended to subject”: Norweb plc v Dixon [1995] 3 All ER 952.

1080

Part VI: Intentional Acts

[30.740]

torts”416 which make provision for the awarding of damages for distress in cases of sex discrimination,417 race discrimination,418 disability discrimination,419 and, most recently, protection from harassment.420 As courts have noted, the statutory remedy for harassment provided a strong indication that no such tort existed at common law.421 In other jurisdictions, there are remedies for distress caused by racial, sexual and other forms of discrimination, though it would not be appropriate to categorise them as tortious.422 [30.740] Neave JA in Giller v Procopets423 provided a good summary of the arguments likely to be advanced by an Australian court against extension of the Wilkinson v Downton principle to the intentional infliction of emotional distress. Her Honour agreed with Maxwell P that no Australian decision positively precluded the expansion of the tort, but suggested that even though tort law is inconsistent in recognising compensation for distress in some areas, such as defamation and false imprisonment, expansion of the Wilkinson v Downton principle would create further inconsistencies. Given that in the early years of the 21st century Australian legislatures saw fit to impose limits on the availability and amount of damages recoverable in negligence for physical injury, it would be anomalous to expand the scope of damages for hurt feelings, even if intentionally caused. The expanded tort would potentially apply to a very broad range of situations. Other remedies would often be available, either at common law or under statute: Ms Giller herself was able to recover damages for breach of confidence. Courts were poorly equipped to consider the balance that should be struck between providing compensation for intentional mental distress and recognising that the exigencies of life result in some people intentionally causing 416

See generally K Stanton et al, Statutory Torts (Sweet & Maxwell, London, 2003). Note also the possibility of actions for damages for breach of provisions of the Human Rights Act 1998 (UK): see Law Commission and Scottish Law Commission, Damages under the Human Rights Act 1998 (Law Com No 266, Scot Law Com No 180, 2000). 417

Sex Discrimination Act 1975 (UK), s 66(4). Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 is the leading case dealing with compensation for injured feelings in cases of sex and race discrimination, and the problem of double recovery if compensation is also given for psychiatric injury.

418

Race Relations Act 1976 (UK), s 57(4). No other claim is available, because Parliament intended this to be an exclusive remedy: Parchment v Secretary of State for Defence (unreported, Eng QB, 23 February 1998). 419

Disability Discrimination Act 1995 (UK), ss 8(4), 25(2).

420

Protection from Harassment Act 1997 (UK), s 3(2).

421

See eg Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at [29] per Hale LJ.

422

For example, in Australia tribunals dealing with complaints of discrimination on racial, sexual or other grounds have power to order a party to pay money compensation, following an unsuccessful conciliation process and a formal hearing: see Anti-Discrimination Act 1977 (NSW), s 108; Anti-Discrimination Act (NT), s 88; Anti-Discrimination Act 1991 (Qld), s 209; Equal Opportunity Act 1984 (SA), s 96; Anti-Discrimination Act 1998 (Tas), s 89; Equal Opportunity Act 2010 (Vic), s 125; Equal Opportunity Act 1984 (WA), s 127.

423

Giller v Procopets (2008) 24 VR 1.

[30.750]

30 Wilkinson v Downton

1081

mental distress to others from time to time; if such a tort were to be recognised, Parliament was in a much better position to determine how that balance should be struck, and so any possible expansion of the tort should be left to the legislature.424

Conclusion [30.750] A number of judges and scholars have suggested that the common law in Australia and elsewhere could move in the direction of developing a tort based on intentionally causing distress without the need to show actual bodily or psychiatric illness. The Scottish Law Commission has suggested a legislative solution along these lines, but if, as Neave JA suggests, it should be left to Parliament to recognise such a tort this may be a long time in coming. So far as Australia is concerned, the example of the Civil Liability Acts shows that the chances of a uniform legislative solution are virtually nil. All this suggests that if anything is ever to happen, it is up to the courts. Recent judicial consideration suggests that some steps have already been taken, and that there are at least some judges who might be open to going further. Lord Bingham’s remark about moving the boundary stone was quoted at the beginning of this book. Though made in the context of negligence liability, it may be equally prescient in the sphere of intentional wrongs.

424

Giller v Procopets (2008) 24 VR 1 at [473]–[476].

Chapter

Appendix: Mental Harm Provisions in the Civil Liability Acts [A.10] From 2002 onwards, civil liability legislation was enacted in all Australian jurisdictions, consequent on the recommendations of the Ipp Report (Panel of Eminent Persons, Review of the Law of Negligence: Final Report (Commonwealth of Australia, Canberra, 2002)). Six jurisdictions — the Australian Capital Territory, New South Wales, South Australia, Tasmania, Victoria and Western Australia — implemented the recommendations in this report for legislation on mental harm. There are no mental harm provisions in the legislation in the Northern Territory and Queensland. [A.20] The legislative provisions on mental harm in these six jurisdictions differ considerably from each other in matters of detail: see the discussion at [2.220]–[2.370]. The legislation is set out in the following Table. The aim of the Table is to show the differences between comparable provisions in each jurisdiction. This means that, for some jurisdictions, the order of provisions as set out in the Table is not necessarily the order in which they are set out in the statute. Dates of commencement are shown in italics after the individual provisions.

Tas Civil Liability Act 2002 Part 8 – Mental Harm

Vic Wrongs Act 1958 Part XI – Mental Harm

SA Civil Liability Act 1936

5Q. Interpretation

27. Definitions

29. Interpretation

67. Definitions

3. Interpretation

ACT Civil Law (Wrongs) Act 2002 Part 3.2 – Mental Harm

32. Definitions for Pt 3.2 In this Part – In this Part: In this Part – In this Part – (1) In this Act, unless In this Part: the contrary intention appears – [selected] consequential mental consequential mental “consequential “consequential accident means an child, of a person, harm means mental harm means mental mental harm” means mental harm” means incident out of which means the son, harm that is a harm that is a mental harm that is a mental harm that is a personal injury arises daughter, grandson, consequence of a consequence of a consequence of a consequence of an and includes a motor granddaughter, personal injury of personal injury of personal injury of injury of any other accident; stepson or stepdaughany kind; any other kind. any other kind; kind; 1 May 2004 ter of the person, or someone to whom the person is acting in place of a parent. 9 Sept 2003 mental harm means mental harm means “mental harm” “court” includes brother includes consequential mental impairment of a impairment of a means impairment of tribunal, and, in half-brother and harm, to a person, person’s mental person’s mental a person’s mental relation to a claim for step-brother; means mental harm condition; condition. condition; damages, means any to the person that is court or tribunal by a consequence of or before which the bodily injury to the claim falls to be person. determined; 9 Sept 2003

NT Law Reform (Miscellaneous Provisions) Act 1956 Part VII – Injury arising from mental or nervous shock 23. Definitions In this Part-

“child”, in relation to a person, means the son, daughter, grandson, granddaughter, step-son or step-daughter of that person, or a person to whom that person stands in loco parentis.

Tort Liability for Mental Harm

NSW Civil Liability Act 2002 Part 3 – Mental Harm

1084

WA Civil Liability Act 2002 Part 1B – Mental Harm

“member of the family”, in relation to a person, means the husband, wife, de facto partner, parent, child, brother, sister, half-brother or half-sister of that person;

[A.20]

NSW negligence means failure to exercise reasonable care and skill.

pure mental harm means mental harm other than consequential mental harm. 6 Dec 2002

Vic “damages” includes any form of monetary compensation;

“injury” means personal or bodily injury and includes – (a) pre-natal injury; and (b) psychological or psychiatric injury; and (c) disease; and (d) aggravation, acceleration or recurrence of an injury or disease; “mental harm” means psychological or psychiatric injury;

SA child includes son, daughter, grandson, granddaughter, step-son and step-daughter;

ACT family member, of a person, means – (a) a domestic partner; (b) a parent or child of the person; or (c) a brother, sister, half-brother or half-sister of the person. 28 March 2003 consequential mental mental harm, to a harm means mental person, means harm that is a impairment of the consequence of person’s mental bodily injury to the condition. person suffering the 9 Sept 2003 mental harm; 1 May 2004

negligence means failure to exercise reasonable care and skill. 9 Sept 2003

1085

domestic partner, in relation to any cause of action arising under this Act, means a person declared under the Family Relationships Act 1975 to have been a domestic partner on the day on which the cause of action arose; 1 June 2007

NT “parent”, in relation to a person, means the father, mother, grandfather, grandmother, step-father or step-mother of that person, or a person standing in loco parentis to that person.

Appendix: Mental Harm Provisions in the Civil Liability Acts

personal injury includes: (a) pre-natal injury, and (b) impairment of a person’s physical or mental condition, and (c) disease.

Tas “pure mental harm” means mental harm other than consequential mental harm. 4 July 2003

[A.20]

WA pure mental harm means mental harm other than consequential mental harm. 1 Dec 2003

NSW

Tas

SA mental harm means impairment of a person’s mental condition; 1 May 2004

“pure mental harm” means mental harm other than consequential mental harm. 3 Dec 2003

motor accident means an incident in which personal injury is caused by [added 2013] or arises out of the use of a motor vehicle; 1 May 2004, amended negligence means failure to exercise reasonable care and skill, and includes a breach of a tortious, contractual or statutory duty of care; 1 May 2004 parent includes father, mother, grandfather, grandmother, step-father and step-mother; 1 May 2004

ACT parent, of a person, means the father, mother, grandfather, grandmother, stepfather or stepmother of the person, or someone acting in place of a parent to the person. 9 Sept 2003 pure mental harm, to a person, means mental harm to the person other than consequential mental harm. 9 Sept 2003

NT

Tort Liability for Mental Harm

Vic “negligence” means failure to exercise reasonable care;

1086

WA

[A.20]

Vic

5R. Application of Part

28. Application of Part

30. Application of Part 8

68. Application of Part

SA ACT personal injury or injury means bodily injury and includes – (a) mental harm; (b) death. 1 May 2004 pure mental harm means mental harm other than consequential mental harm; 1 May 2004 sister includes half-sister and step-sister; spouse in relation to any cause of action arising under this Act, means a person who was legally married to another on the day on which the cause of action arose; Amended 1 June 2007 (2) For the purposes of this Act, personal injury will arise from a motor accident if the personal injury is caused by or arises out of the use of a motor vehicle. Added 1 July 2013 [No Application section in Part 6] 51. Application of this Part

NT

1087

Tas

Appendix: Mental Harm Provisions in the Civil Liability Acts

NSW

[A.20]

WA

Tas This Part (except section 31) applies to any claim for damages for mental harm resulting from a breach of duty, except civil liability that is excluded from the operation of this Part by section 3B. 4 July 2003

Vic SA This Part applies to [Part 8] any claim for This Part applies – damages resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. 3 Dec 2003 (a) where damages are claimed for personal injury arising from – (i) a motor accident (whether caused intentionally or unintentionally); or (ii) an accident caused wholly or in part by – (A) negligence; or (B) some other unintentional tort on the part of a person other than the injured person; or (C) a breach of a contractual duty of care; or

ACT

NT

Tort Liability for Mental Harm

NSW (1) This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

1088

WA (1) Subject to sections 3A and 4A, this Part applies to any claim for personal injury damages for mental harm unless this section states otherwise.

[A.20]

(3) This Part does not apply unless the personal injury giving rise to the claim for personal injury damages arises out of an incident happening on or after the commencement day. (4) If – (a) it cannot be ascertained whether or not the incident out of which the personal injury arises happened on or after the commencement day; and

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. 6 Dec 2002

Tas

Vic

SA (b) where personal injury arising in the manner described in paragraph (a) results in death and damages are claimed under Part 5 for harm resulting from the death. 1 May 2004

ACT

NT

Appendix: Mental Harm Provisions in the Civil Liability Acts

NSW (2) Section 29 applies to a claim for damages in any civil proceedings.

[A.20]

WA (2) This Part extends to a claim for personal injury damages even if the damages are sought to be recovered in an action for breach of contract or any other action.

1089

Vic

SA

ACT

NT

33. Personal injury arising from mental or nervous shock

24. Personal injury received from mental or nervous shock

Tort Liability for Mental Harm

29. Personal injury arising from mental or nervous shock

Tas

1090

WA NSW (b) the symptoms of the injury first appeared on or after the commencement day, the incident is to be taken, for the purpose of subsection (3), to have happened on or after the commencement day. (5) In this section – commencement day means the day on which the Civil Liability Amendment Act 2003 section 8 comes into operation. [1 Dec 2003] 1 Dec 2003

31. Personal injury arising from mental or nervous shock

71. Effect of this Part on the common law Except as provided by this Part, this Part is not intended to affect the common law. 3 Dec 2003 23. Mental or nervous shock

[A.20]

Tas In any civil proceedings for damages, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock. 4 July 2003

Vic SA [In Part III – Wrongful act or neglect causing death] In any action for injury to the person the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

ACT In an action for personal injury, the plaintiff is not prevented from recovering damages only because the injury arose completely or partly from mental or nervous shock. Originally s 23 of 1955 Act; Formerly s 30; 9 Sept 2003

NT (1) In an action for injury to the person caused after the commencement of this Ordinance, the plaintiff is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock.

(2) In determining a question of liability for injury to the person caused before the commencement of this Ordinance, no regard shall be paid to the fact that this section has been enacted or to the provisions of this section. 30. Limitation on recovery for pure mental harm arising from shock

32. Limitation on recovery for pure mental harm arising from shock

73. Limitation on recovery of damages for pure mental harm arising from shock

Appendix: Mental Harm Provisions in the Civil Liability Acts

NSW In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock. 6 Dec 2002

[A.20]

WA

1091

Tas (1) This section applies to the liability of a person (“the defendant”) for pure mental harm to a person (“the plaintiff”) arising wholly or partly from mental or nervous shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant. (2) The plaintiff is not (2) The plaintiff is not entitled to recover entitled to recover damages for pure damages for pure mental harm unless: mental harm unless – (a) the plaintiff (a) the plaintiff witnessed, at the witnessed, at the scene, the victim scene, the victim being killed, injured being killed, injured or put in peril, or or put in peril or the immediate aftermath of the victim being killed or injured, or

Vic SA (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant. (2) The plaintiff is not entitled to recover damages for pure mental harm unless – (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or

Part 8 – Damages for Personal Injury 53. Damages for mental harm (1) Damages may only be awarded for mental harm if the injured person –

ACT

NT

36. Extensions of liability under Pt 3.2 in certain cases

25. Extension of liability in certain cases

(1) A person’s liability in relation to an injury caused by a wrongful act or omission by which someone else (A) is killed, injured or put in danger includes liability for injury arising completely or partly from mental or nervous shock received by –

(1) The liability of a person in respect of injury caused after the commencement of this Ordinance by act, neglect or default by which another person is killed, injured or put in peril extends to include liability for injury arising wholly or in part from mental or nervous shock sustained by –

Tort Liability for Mental Harm

NSW (1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant.

1092

WA

[A.20]

NSW (b) the plaintiff is a close member of the family of the victim.

Tas (b) the plaintiff is a close member of the family of the victim.

Vic (b) the plaintiff is or was in a close relationship with the victim.

ACT (a) a parent of A; or

NT (a) a parent or the husband or wife or de facto partner of the person so killed, injured or put in peril; or

(b) a domestic partner of A; or

(b) another member of the family of the person so killed, injured or put in peril, where the person was killed, injured or put in peril within the sight or hearing of that other member of the family.

(c) another family member of A, if A was killed, injured or put in danger within the sight or hearing of the other family member.

Appendix: Mental Harm Provisions in the Civil Liability Acts

SA (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident. 1 May 2004

[A.20]

WA

1093

NSW

Tas

Vic

SA

NT (2) Where an action is brought by a member of the family of a person so killed, injured or put in peril in respect of liability for injury arising wholly or in part from mental or nervous shock sustained by the plaintiff and claims have been made against or are apprehended by the defendant at the suit of other members of the family of that person in respect of liability arising by operation of sub-section (1) out of the same act, neglect or default, the defendant may apply to the Court for the exercise of its powers under sub-section (3).

Tort Liability for Mental Harm

ACT (2) If 2 or more family members bring, or may bring, actions in relation to liability arising under subsection (1) out of the same act or omission, the court may proceed in the way the court considers appropriate and may make the orders the court considers appropriate about – (a) which family members are parties to the action; and (b) who is to have the conduct of the action.

1094

WA

[A.20]

NSW

Tas

Vic

SA

ACT (3) The action is for the benefit of all family members who are parties to the action.

Appendix: Mental Harm Provisions in the Civil Liability Acts

NT (3) The Court may thereupon stay any proceedings pending at the suit of any such other member of the family arising out of the same act, neglect or default and may proceed in such manner and subject to such orders as to – (a) making members of the family of the person killed, injured or put in peril parties to the action; (b) who is to have the carriage of the action; and (c) the exclusion of any member of the family who does not come in within a time fixed by the Court, As the Court thinks just.

[A.20]

WA

1095

NSW

Tas

Vic

SA

[A.20]

NT (4) Where an application under sub-section (2) is made, the action shall be for the benefit of the original plaintiff and such member of the family of the person killed, injured or put in peril as are joined by the Court as plaintiffs in pursuance of the application, and the Court (or, if there is a jury, the jury) may give such damages as it thinks proportioned to the injury resulting to the plaintiffs respectively, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the plaintiffs in such shares as the court (or, if there is a jury, the jury) decides. (5) Subsection (4) has (5) An action in respect of a liability effect subject to part 7.1 (Damages for arising by operation of sub-section (1) personal injuries – exclusions and shall be brought in the Supreme Court. limitations).

Tort Liability for Mental Harm

ACT (4) The court may award the damages that it considers to be proportional to the damage to the plaintiffs resulting from the wrongful act or omission.

1096

WA

NSW

Vic

SA

ACT NT (6) The amount of damages awarded must, after deducting the costs not recovered from the defendant, be divided between the plaintiffs in the shares the court decides. Formerly s 31; 9 Sept 2003

Appendix: Mental Harm Provisions in the Civil Liability Acts

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

Tas

[A.20]

WA

1097

Tas

(5) In this section: close member of the family of a victim means: (a) a parent of the victim or other person with parental responsibility for the victim, or (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or

(3) In this section “close member of the family” of a victim means (a) a parent of the victim or other person with parental responsibility for the victim; or (b) the spouse of the victim; or

Vic (3) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law. 3 Dec 2003

SA

ACT

NT

Tort Liability for Mental Harm

NSW (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

1098

WA

(c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility; or [A.20]

Tas (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim; “spouse” means: (a) a husband or wife, or

Vic

(b) a de facto spouse but where more than one person would so qualify as a spouse, means only the last person to so qualify. 4 July 2003 33. Pure mental [See s 75 below] harm – liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from breach of duty unless the harm consists of a recognised psychiatric illness. 4 July 2003 32. Mental harm – 72. Mental harm – duty of care duty of care

SA

ACT

53(2)

35. Mental harm – damages

(2) Damages may only be awarded for pure mental harm if the harm consists of a recognised psychiatric illness. 1 May 2004

Damages must not be awarded for pure mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness. 9 Sept 2003 34. Mental harm – duty of care

Part 6 - Negligence 33. Mental harm – duty of care

NT

Appendix: Mental Harm Provisions in the Civil Liability Acts

5S. Mental harm: duty of care

NSW (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim. spouse or partner means: (a) a husband or wife, or (b) a de facto partner, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify. 3 Sept 2002 31. Pure mental harm – liability only for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 6 Dec 2002 32. Mental harm – duty of care

[A.20]

WA

1099

Vic (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

SA (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a psychiatric illness.

(2) For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following –

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(2) For the purpose of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(2) For the purposes of the application of this section, the circumstances of the case include the following -

(2) For the purposes of this section –

(a) whether or not the mental harm was suffered as the result of a sudden shock;

(a) whether or not the mental harm was suffered as the result of a sudden shock,

(a) whether or not the mental harm was suffered as the result of a sudden shock;

(a) whether or not the mental harm was suffered as the result of a sudden shock;

(a) in a case of pure mental harm, the circumstances of the case to which the court is to have regard include the following:

ACT NT (1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the application of this section in relation to pure mental harm to a person, the circumstances of the case to which the court must have regard include (a) whether or not the mental harm was suffered as the result of a sudden shock; and

[A.20]

Tas (1) A person (“the defendant”) does not owe a duty to another person (“the plaintiff”) to take care not to cause the plaintiff mental harm unless a reasonable person in the position of the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

Tort Liability for Mental Harm

NSW (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

1100

WA (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril;

Tas (b) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

SA (i) whether or not the mental harm was suffered as the result of a sudden shock;

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in danger;

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purpose of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(c) the nature of the relationship between the plaintiff and anyone killed, injured or put in danger; and (iii) the nature of the (d) whether or not relationship between there was a the plaintiff and any pre-existing person killed, injured relationship between or put in peril; the plaintiff and the defendant. (iv) whether or not there was a pre-existing relationship between the plaintiff and the defendant; (b) in a case of (3) For the applicaconsequential mental tion of this section in harm, the circumrelation to consequenstances of the case tial mental harm to a include the nature of person, the the bodily injury out circumstances of the of which the mental case to which the harm arose. court must have regard include the nature of the bodily injury out of which the mental harm arose.

(3) For the purpose [See s 74 below.] of the application of this section in respect of consequential mental harm, the circumstances of the case include the nature and extent of personal injury suffered by the plaintiff.

(ii) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

ACT NT (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger; and

1101

Vic (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger;

Appendix: Mental Harm Provisions in the Civil Liability Acts

NSW (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,

[A.20]

WA (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril;

Tas (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 4 July 2003

Vic (3) This section does not affect the duty of care of a person (the defendant) to another person (the plaintiff) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude. 3 Dec 2003

ACT (4) This section does not affect the duty of care a person (the defendant) has to another person (the plaintiff) if the defendant knows, or ought reasonably to know, that the plaintiff is a person of less than normal fortitude. 9 Sept 2003

NT

[A.20]

74. Limitation on recovery of damages for consequential mental harm (1) A person (the plaintiff) is not entitled to recover damages from another person (the defendant) for consequential mental harm unless – (a) the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken; or

SA (3) This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude. 1 May 2004

Tort Liability for Mental Harm

NSW (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 6 Dec 2002

1102

WA (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff. 1 Dec 2003

Tas

5T. Liability for pecuniary loss for consequential mental harm

33. Liability for economic loss for consequential mental harm

35. Liability for economic loss for consequential mental harm

Vic SA (b) the defendant know, or ought to have known, that the plaintiff is a person of less than normal fortitude and foresaw or ought to have foreseen that the plaintiff might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section, the circumstances of the case include the injury to the plaintiff out of which the mental harm arose. 3 Dec 2003 75. Liability for 53(3) economic loss for mental harm

ACT

35(2)

NT

Appendix: Mental Harm Provisions in the Civil Liability Acts

NSW

[A.20]

WA

1103

Tas A court cannot make an award of damages for economic loss for consequential mental harm resulting from breach of duty unless the harm consists of a recognised psychiatric illness. 4 July 2003

Vic A court cannot make an award of damages for economic loss for mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

SA (3) Damages may only be awarded for economic loss resulting from consequential mental harm if the harm consists of a recognised psychiatric illness. 1 May 2004

ACT NT (2) Damages must not be awarded for economic loss for consequential mental harm to a person resulting from negligence unless the harm consists of a recognised psychiatric illness. 9 Sept 2003

Tort Liability for Mental Harm

NSW A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. 6 Dec 2002

1104

WA A court cannot make an award of personal injury damages for pecuniary loss for consequential mental harm unless the harm consists of a recognised psychiatric illness. 1 Dec 2003

[A.20]

Index A

AIDS — see HIV/AIDS

Aboriginal Australians deaths in custody ................... [22.760], [22.770] “stolen generations” .............. [21.330]–[21.380]

Air travel carrier’s liability ........... [18.40], [23.10]–[23.50] “bodily injury” ...... [5.410]–[5.490], [23.40], [23.120]–[23.320]

Adjustment disorders ................................... [5.150]

damage intentionally or recklessly caused ........................................................ [23.20] death or wounding, for ................... [23.10]

Adoption claim against adoption agency adopted child, by ............................ [21.250] adoptive parents, by ....................... [18.230] natural parent, by ........................... [21.280] Aftermath arrival shortly after accident . [10.50], [10.290] Australian law ........ [10.100]–[10.180], [10.290] borderline cases ...................................... [10.450] Canadian law ......... [10.130], [10.290], [10.310] cases where impossible to see ............. [11.610] Civil Liability Acts .. [10.20], [10.170]–[10.180], [13.340], [13.470] common law ........................... [10.140]–[10.160] criminal injuries compensation ........... [11.570] definition ................................................. [10.120] delay in seeing body ............................. [10.360] denial of access to .................. [10.130], [10.390] doctrine ........................... [2.80], [10.10], [10.20], [10.60]–[10.130] extension of ........................ [10.90]–[10.110] origins of .............................. [10.70], [10.80] English law ................ [10.90], [10.190]–[10.300] foreseeability of arrival at ...................... [10.70] Hillsborough Stadium disaster .............. [3.30], [10.190]–[10.280], [10.360] hospital ... [10.100], [10.120], [10.130], [10.160], [10.180], [10.300]–[10.320] identification of bodies .......... [6.270], [10.180], [10.230], [10.250], [10.340], [10.350] immediate aftermath ............ [10.250], [11.270], [13.340], [13.470] immediate post-accident treatment .... [10.120] Irish law .................................................. [10.320] medical negligence cases ..... [10.380], [10.390], [22.260], [22.690] parent claims ............... [3.660], [6.270], [10.70], [10.120], [10.230], [10.310] presence at ......... [1.40], [2.80], [3.660], [4.140], [10.10], [10.260] proximity and .......... [10.10], [10.110]–[10.160], [10.260] relationship requirement and ............... [10.60], [10.160] time lapse between accident and death ...................................................... [10.400] uncertainty about relative’s fate ........ [10.360], [10.370] US law ........................ [3.790], [10.420]–[10.440]

mental damage resulting from air accident ........................................................ [23.50] Montreal Convention ...................... [23.30], [23.290]–[23.320] non-passengers, to .......... [23.330]–[23.410] Warsaw Convention ......... [23.10]–[23.280] non-passenger claims ............ [23.330]–[23.410] direct perception ............................. [23.400] failure to communicate news ....... [23.370] “loss or damage” ............................ [23.390] non-relatives .................... [23.380], [23.410] spouse of victim .............................. [23.370] witnesses ............ [23.90], [23.330]–[23.360], [23.380] passenger claims ...................... [23.60]–[23.320] “accident”, damage cause by ........ [23.50], [23.120], [23.230] attack on plane at airport ................ [23.60] “bodily injury”, meaning .. [5.410]–[5.490], [23.40], [23.120]–[23.320] carrier’s liability ..... [18.40], [23.10]–[23.50] domestic carriage .............. [23.90]–[23.110] exclusion of domestic law remedies ........................................ [23.60]–[23.100] mental distress ................................... [23.40] mental injury ................................... [23.260] Montreal Convention ...................... [23.30], [23.290]–[23.320] peptic ulcer disease ........ [23.190], [23.240] “personal injury” ............. [23.160]–[23.180] post-traumatic stress disorder ......... [5.410]–[5.490], [23.150], [23.190], [23.300], [23.320] pre-impact emotional distress ....... [6.180], [23.150] psychiatric illness .............................. [23.50] taken prisoner ...................... [23.60]–[23.80] Warsaw Convention ......... [23.10]–[23.280] witnesses to crash, claim by direct perception ............................. [23.400] non-relatives .................... [23.380], [23.410] parents of victims ............................ [23.90], [23.330]–[23.360] Airline passengers — see Air travel Ambulance officers work stress .............................. [20.480], [20.580]

1106

Tort Liability for Mental Harm

Anns test — see Duty of care Anxiety disorders ................ [4.30], [5.160], [5.180] aftermath doctrine ................................. [10.160] medical negligence .................................. [21.70] parent’s fear of injury to child .............. [6.290] Asbestos-related diseases fear of contracting .................. [12.300], [29.10], [29.220]–[29.430], [29.750] Australian law ................. [29.220]–[29.270] English law ....................... [29.380]–[29.420] Irish law ............................ [29.320]–[29.370] New Zealand law ............ [29.290]–[29.310] US law .............................................. [29.750] Assault actionable claim ....................................... [30.50] criminal injuries compensation ........... [11.560] mental effects (NZ) .................................. [3.460] Wilkinson v Downton principle .............. [30.70], [30.80], [30.270] Assessment of psychiatric injury damages absence of direct perception ...................................... [17.140]–[17.180] aggravated damages ............................. [17.210] appeal ........................................................ [17.50] arbitrariness ................................ [17.30], [17.50] Australian approach ............................... [17.20], [17.100]–[17.140] Canadian approach ................ [17.70], [17.200], [17.210], [17.260] caps on amount ...................................... [17.220] children, lower awards for ................... [17.180] common law principles ............ [17.20], [17.30] move away from ............................... [17.20] statutory modification .... [17.220]–[17.240] “compensation culture” ........................ [17.240] death of primary victim ....................... [17.150] depression leading to suicide ................ [17.90] difficulty of determining quantum ...... [17.30], [17.40] direct perception cases ............ [17.50]–[17.100] English approach ...................... [17.50]–[17.90], [17.240]–[17.270] evidence, sparsity of ............................... [17.40] fear for the future cases ........................ [17.270] general damages ........ [17.10], [17.80], [17.130] caps .................................................... [17.220] thresholds ......................... [17.220], [17.230] guesswork ................................................. [17.40] insurance crisis 2002, effect .................. [17.220] Irish approach ........................................ [17.210] Judicial Studies Board guidelines ...... [17.240], [17.260] jury, lack of ............................................... [17.40] lack of commonality in awards ............. [17.40] lack of information in judgments ......... [17.40] medical negligence cases ...... [17.110]–[17.130] non-pecuniary loss .................... [17.10], [17.30] other types of damages not comparable ...................................................... [17.200]

overview .................................................... [17.10] pain and suffering ................................... [17.30] principles ................................... [17.30]–[17.210] pure psychiatric damage ........................ [17.10] reasonable compensation, determining ........................................................ [17.30] reduction of damages children ............................................. [17.180] contributory negligence .... [2.350], [16.50], [16.160] death due to unconnected causes ...................................................... [17.150] refusal to undergo medical treatment ...................................................... [17.170] susceptibility to psychiatric damage ...................................................... [17.160] rescuer case ............................................. [17.150] restitutio in integrum not possible ....... [17.30] separation of compensable and non-compensable elements ..... [17.90], [17.100] sexual abuse case ................................... [17.260] statutory rules ........... [17.20], [17.220]–[17.240] statutory solatium awards distinguished ...................................................... [17.190] threshold for general damages .......... [17.220], [17.230] traditional principles ............... [17.30]–[17.210] expanding liability .......... [17.250]–[17.270] Assumption of risk — see Voluntary assumption of risk Australian law Civil Liability Acts — see Civil Liability Acts common law ............................... [2.120]–[2.210] relationship with legislation .......... [2.200], [2.450]–[2.490], [7.90] development of ............................. [2.10]–[2.110] deviation from other jurisdictions ....... [1.120], [2.100], [3.10], [3.330] focus of book ............................................ [1.130] origins .............................................. [2.10]–[2.20] rejection of traditional limitations ........ [1.100] Autonomic nervous system ........................... [5.90]

B Bad news breach of confidence ............................. [28.260] communication-induced shock — see Communication-induced shock duty not to cause nervous shock ......... [28.20], [28.90], [28.200] false, liability of conveyer ...... [28.50]–[28.160] absence of fraud, deceit, malice or breach of duty ......................... [28.90], [28.100] absence of intention ......................... [28.50] Australian law ..................... [28.50]–[28.80] Canadian Law .................... [28.90]–[28.110] Civil Liability Acts ............................ [28.80]

Index Bad news — cont English law ....................... [28.120]–[28.160] government ........................................ [28.60] hospital or health professional .... [21.100], [22.520], [28.110]–[28.160] intentionally causing harm ............ [28.10], [30.20]–[30.60] newspaper .......................... [28.90], [28.100] police ................................................... [28.70] telegraph operator ............................ [28.50] intentional infliction of psychiatric injury ............ [28.10], [28.270], [30.20]–[30.60] liability of conveyer for psychiatric injury .......................................... [28.10]–[28.40] direct perception rule and ............... [28.20] false news ........................... [28.50]–[28.160] true news .......................... [28.170]–[28.270] means of communication — see Communication-induced shock medical negligence cases ...... [21.100], [22.520] false news ........................ [21.100], [22.520], [28.110]–[28.160] means of conveying ....... [22.360], [22.370] true news .......... [28.180], [28.210]–[28.240] misrepresentation ................................... [28.100] negligent communication ..... [11.210]–[11.230], [28.10]–[28.270] callous or uncaring manner ......... [28.110], [28.170], [28.180], [28.250], [28.260] duty of care ........ [28.20], [28.200], [28.210] false news ........................... [28.50]–[28.160] foreseeability of recognised psychiatric disorder ...................................... [28.160] hospital or health professional .... [21.100], [22.520], [28.110]–[28.160], [28.180], [28.210] lack of care ........................ [11.210]–[11.230] lack of wilfulness .............................. [28.90] needless exacerbation of impact .. [28.170] police ..... [28.70], [28.80], [28.170], [28.250] pre-existing relationship . [28.80], [28.220], [28.260] primary victim dead or thought dead ...................................................... [28.150] true news .......................... [28.170]–[28.270] wrong recipient ................................. [28.50] shock from communication of — see Communication-induced shock television coverage — see Television or radio true news negligently conveyed ...................................... [28.170]–[28.270] absence of intention to cause harm ...................................... [28.190], [28.200] Australian law . [28.180]–[28.200], [28.250] Canadian law ................... [28.220]–[28.240] direct perception rule ..................... [28.200] English law ...................................... [28.220] hospital or health professional .... [28.180], [28.210]–[28.240] lack of care ........................ [11.210]–[11.230] New Zealand case .......................... [28.210] no duty to break bad news gently ........................................ [28.20], [28.200]

1107

Banks claims against ......................... [21.150], [21.160] Battery actionable claim ....................................... [30.50] aggravated damages ................................. [6.80] secondary victims .................. [30.150], [30.290] sexual abuse as ........................................... [6.80] Wilkinson v Downton principle ............ [30.100], [30.150], [30.290] Bipolar disorder ............... [5.160], [5.200], [25.130] Breach of duty .......... [7.10], [7.20], [7.530]–[7.550] damage caused by ..................................... [7.20] reasonable person standard ................... [7.550] standard of care ......................... [7.540], [7.550] statutory statements defining ................ [7.540] Bullying employer’s liability ............... [20.540], [20.720], [20.730] intentionally causing psychiatric harm ...................................................... [30.150] school’s liability ..... [21.400], [21.410], [22.780] Wilkinson v Downton principle ............. [30.150] work stress cases ... [20.360], [20.400], [20.570], [20.720] Bystander recovery Australian law .............. [9.480], [9.500], [9.510] Canadian law ........................................... [9.460] cause of action ............................................ [2.50] chain of causation .................................... [14.90] direct victim cases distinguished ....... [18.220], [18.240] emotional distress .................................... [6.160] English law .................................. [9.440]–[9.510] foreseeability of harm ............................. [9.440] involuntary participation distinguished ...................................................... [26.110] pure psychiatric harm ............................... [1.90] relationship requirement and ................. [9.30], [9.440]–[9.510] US law ........... [3.780], [3.790], [9.220], [18.220] work accidents ......................................... [9.490]

C Canadian law .................................... [3.340]–[3.440] aftermath doctrine . [10.130], [10.290], [10.310] Anns test of duty of care .......... [7.140], [7.180] assessment of damages .......... [17.70], [17.200], [17.210], [17.260] bystanders ................................................. [9.460] challenges to Coultas decision ... [2.30], [3.340] communication-induced shock ............. [11.60], [11.520], [11.530], [11.900] contributory negligence ........... [16.30], [16.50], [16.170] development ............................................. [3.340]

1108

Tort Liability for Mental Harm

Canadian law — cont direct perception ....... [3.340], [11.60], [11.520], [11.530], [22.780] distinctive position ...................... [1.120], [3.10] emotional scarring ..................... [6.260]–[6.320] employer’s duty of care ........................ [19.460] fear of contracting disease .................... [29.70], [29.560]–[29.580] foreseeability ............................... [3.370]–[3.390] intentionally causing mental distress .. [30.10], [30.160]–[30.170], [30.320], [30.470], [30.700] involuntary participation ..................... [26.350] level of damage ............ [3.400], [3.410], [6.330] limitation of actions for tort ............... [16.230], [16.240] limitations on liability ............... [3.340], [3.350] medical negligence ................ [22.600]–[22.620] Mustapha case . [3.360]–[3.420], [6.330]–[6.400], [6.480], [7.20], [7.750], [7.800], [8.60], [17.160] normal fortitude ............ [3.380], [3.420], [8.10], [8.60], [8.70] Ontario legislation ................................. [13.630] primary victim cases ............................. [24.280] property damage ....................... [27.70], [27.80] proximity ................................................... [3.350] pure mental distress .................................. [6.30] recognisable psychiatric illness ............ [3.360], [3.410] recovery for less than recognisable psychiatric illness ................... [3.340], [6.10], [6.30], [6.260]–[6.410], [6.440], [6.480] remoteness ..... [3.370], [3.390], [3.420], [3.430], [7.750], [7.800] rescuer cases ............................ [25.100]–[25.130] right to psychological integrity ............. [6.310] “scar on the mind” ..... [6.260]–[6.320], [6.380], [15.230] secondary victims .................................... [3.340] statutory provisions .............................. [13.630] sudden shock rule . [12.110], [12.180], [12.490] tortfeasor as primary victim ............... [15.190], [15.230]–[15.260] Wilkinson v Downton principle .............. [30.10], [30.160]–[30.170], [30.320], [30.470], [30.700] work stress .............................................. [20.740] Cancer fear of contracting ...... [4.130], [29.10], [29.40], [29.60] asbestos-related ............... [29.220]–[29.430], [29.750] cancerphobia .... [29.300], [29.590], [29.630] radiation-induced ............ [29.590]–[29.650] US law .............................................. [29.750] Caring institutions liability for psychiatric injury ...................................... [21.200]–[21.230] church ................................ [21.200]–[21.210] funeral home .................................... [21.230] nursing home ................................... [21.220]

refuge ................................................ [21.220] Carriage by air — see Air travel Causal proximity doctrine ........................... [3.350] Causation assumption of causal relationship ........ [7.590] Australian law ............................ [7.570], [7.580] balance of probabilities ........................... [7.580] “but-for” test .............................. [7.560], [7.570] chain of ...................................................... [14.90] Civil Liability Acts ................... [7.580], [20.560] common sense .......................................... [7.570] contributory negligence .......................... [16.40] limitation on liability .................. [1.70], [1.160] medical negligence ................................ [22.730] negligence, element of ................. [1.70], [7.20], [7.560]–[7.590] work stress, illness from ....................... [20.560] Cemeteries and funeral homes coffin overturned at funeral ..... [9.130], [27.10] liability for psychiatric injury .............. [21.230] loss of urns ............................... [6.280], [21.230] negligent mishandling of body ............ [6.160], [8.310], [18.40] Central nervous system .................................. [5.90] physical effects of emotions .... [5.100]–[5.170], [5.420] Childbirth — see Pregnancy and childbirth Childcare authorities liability for mental harm ...... [21.240]–[21.320] family members abused by abused children ...................................... [21.290] foreseeability of harm .... [21.260], [21.310] parent suspected of abuse ............. [21.310] parents as secondary victims ....... [18.230], [21.280]–[21.300], [22.780], [22.800] proximity .......................... [21.260], [21.310] sexual abuse cases ......................... [18.230], [21.240]–[21.320] “stolen generations” ....... [21.330]–[21.380] unsuitable adoption ....... [18.230], [21.250], [21.280] statutory responsibilities ...................... [21.240] Children assessment of damages for .................. [17.180] contributory negligence .......... [16.90], [16.130] employer’s duty of care ........... [2.180], [2.190], [7.60], [22.90]–[22.130] foreseeability of psychiatric harm ....... [2.180], [2.190] negligent driving by parent ................. [15.310] neighbour principle ................... [2.190], [9.110] news of parent’s death ............ [2.180], [2.190], [6.220], [13.90]

Index Children — cont normal fortitude rule .............................. [8.130] psychiatric illness after death of parent ............................ [3.300], [3.600], [4.140] relationship requirement ............. [9.50], [9.80], [9.110], [9.130], [9.240], [13.300] witnessing death of parents ... [6.260], [10.400] young children ......................................... [9.130] Chronic fatigue syndrome . [3.50], [7.460], [18.60] Church abuse cases .............................................. [21.210] liability for psychiatric injury ............. [21.200], [21.210] Civil Liability Acts ......................... [2.220]–[2.490], [13.290]–[13.560] accident, meaning .................... [2.440], [13.560] motor accidents ............... [13.490], [13.510] ACT ... [2.370], [2.400], [2.410], [2.430], [2.440], [13.290] additional limitations imposed by ....... [1.110], [1.230], [2.240], [13.290] aftermath ... [10.20], [10.170]–[10.180], [13.470] application ................................... [2.400]–[2.440] accident ............................... [2.440], [13.560] actions in tort ....................... [2.420], [2.430] breach of duty ................................... [2.430] date of commencement ...... [2.400], [2.410] intention-based claims ..................... [2.440] negligence cases .................. [2.430], [2.440] background ............................................... [2.230] bad news cases ......................................... [28.80] causation .................................... [7.580], [20.560] close family member .................. [2.350], [7.80], [9.230]–[9.240], [13.300], [13.310], [13.440], [13.450] common law, relationship with ........... [2.200], [2.450]–[2.490], [7.90] consequential mental harm ........ [2.260], [7.80] contributory negligence ........ [16.150]–[16.170] defences under ......................... [16.20], [16.150] definition of mental harm ...................... [2.260] duty of care .... [2.280]–[2.300], [2.420], [2.430], [7.80], [7.310], [13.400] employer’s duty of care ........................ [19.220] enactment of ............................................. [2.220] fear of contracting disease ... [29.660], [29.670] focus of book ............................................ [1.130] “insurance crisis”, reforms in wake of .......................................... [2.230], [13.20] intentional act causing mental harm ...................... [30.340]–[30.360], [30.750] interpretation .............................. [2.380]–[2.390] involuntary participation cases ...................................... [26.130]–[26.140] Ipp Report leading to ............................. [2.230] recommendations . [2.270], [2.300]–[2.350], [10.170], [11.430], [13.290], [16.150] statement of principle ...................... [2.420] lack of uniformity .................... [2.240], [25.330] mental harm provisions ........................ [2.220], [2.240]–[2.490], [18.80]

1109

application ............................ [2.400]–[2.440] date of commencement ...... [2.400], [2.410] interpretation ....................... [2.380]–[2.390] relationship with common law .............................. [2.450]–[2.490], [7.90] motor accidents ...................... [13.490], [13.510] negligence cases ........... [2.430], [2.440], [6.110] normal fortitude rule ..... [8.10], [8.200]–[8.230] NSW ............. [2.270]–[2.440], [13.290]–[13.430], [25.250]–[25.290], [30.340] NT ................................................. [2.370], [18.80] onus of proof under ................................ [2.290] police claims .............................. [2.360], [2.460], [13.320]–[13.410] pre-existing relationship ......................... [18.80] primary victim cases ............. [24.160], [24.170] pure mental harm ....... [2.260], [2.300], [2.310], [6.110], [7.80], [13.410], [13.550] Qld .............................................................. [18.80] recognised psychiatric illness . [2.260], [2.460], [4.70]–[4.110], [6.110] relationship requirement ......... [9.230]–[9.240], [13.290], [13.300], [22.40] close family member ........... [2.350], [7.80], [9.230]–[9.240], [13.300], [13.310], [13.440] fear of contracting disease cases . [29.660], [29.670] involuntary participation cases ... [26.130], [26.140] list of eligible relationships ............ [3.260], [3.620], [9.430], [13.290] NSW .................................. [13.300], [13.310] rescuers ............................. [25.240], [25.250] SA ....................................................... [13.490] Tas ...................................... [13.450], [13.460] Vic ...................................................... [13.440] rescuer cases ............................ [25.240]–[25.330] restrictions under ................... [13.290]–[13.560] SA .... [2.360], [2.370], [2.400], [2.440], [13.290], [13.480]–[13.560], [25.250], [25.300], [25.310], [30.340], [30.350] sudden shock ............................ [12.20], [12.460] Tas .... [2.360], [2.370], [2.400]–[2.440], [13.290], [13.450]–[13.470], [25.250], [25.290], [30.340] terminology ..................................... [1.10], [4.70] variations between jurisdictions ........... [2.290] Vic ...... [2.290], [2.360], [2.370], [2.400]–[2.440], [13.290], [13.440], [25.250], [25.280], [30.350] WA ... [2.290], [2.400]–[2.420], [2.440], [13.290], [30.340], [30.350] Wilkinson v Downton and ..... [30.340]–[30.360], [30.750] witness requirement . [2.350], [10.20], [10.170], [11.410], [13.310]–[13.410] fear of contracting disease cases . [29.660], [29.670] immediate aftermath ...... [13.340], [13.470] interpretation ................... [13.370]–[13.390] involuntary participation cases ... [26.130], [26.140]

1110

Tort Liability for Mental Harm

Civil Liability Acts — cont police rescue claims ......................... [2.460], [13.320]–[13.410] presence at scene ............. [13.500]–[13.550] rescuer cases ..................... [25.250]–[25.280] temporal relationships ................... [13.350] victim being killed, injured or put in peril ...................... [13.300], [13.340]–[13.380] victim, meaning ............................... [13.430] Class actions fear of contracting disease .... [6.300], [29.560], [29.580] Communication-induced shock Australian law .......... [11.70], [11.200]–[11.430], [11.600] breach of pre-existing duty ..... [11.90]–[11.110] Canadian law ........... [11.60], [11.520], [11.530], [11.900] children ......... [2.180], [2.190], [6.220], [11.520], [13.90] Civil Liability Acts ................. [11.410]–[11.430] combined “told and saw” cases ....................................... [11.120]–[11.130] common law ............................ [11.200]–[11.400] courts’ acceptance of ............................. [10.460] criminal injuries compensation cases ....................................... [11.560]–[11.590] direct perception rule — see also Direct perception rule discontent with ................ [11.140]–[11.190] qualifications to .................. [11.90]–[11.130] rejection of .......... [11.10], [11.200]–[11.400], [11.440], [11.450], [11.600] traditional rule ..................... [11.30]–[11.80] English law ............. [11.460]–[11.510], [11.560], [11.600], [11.710]–[11.890] fear of contracting disease ..................... [29.40] foreseeability of psychiatric injury ...... [2.140], [3.740], [11.140], [11.270], [11.520] modern modes of communication and ...................................................... [11.660] Hong Kong law .......... [3.730], [3.740], [11.540] instantaneous communication ............. [11.910] Irish law ................................... [11.540], [11.670] lack of care ............................... [11.210]–[11.230] means of communication ...................... [3.740], [11.640]–[11.910] emails and text messages .............. [11.910] instantaneous transmissions ......... [11.910] live broadcasts .. [11.710]–[11.870], [11.910] medical negligence cases .............. [22.360], [22.370] modern methods .............. [2.130], [11.660], [11.910] newspaper ........................................ [11.550] note on door ........................ [3.730], [3.740] social media ..................................... [11.910] telephone . [3.550], [3.660], [3.670], [3.700], [11.130], [11.300], [11.320], [11.520], [11.640]–[11.690] television/radio .................. [3.30], [10.220], [11.700]–[11.900]

New Zealand law .................................. [11.450] novus actus interveniens ...................... [11.830] NSW ......................................................... [11.620] oral communication ............................... [11.550] perception-produced shock distinguished ...................................... [11.140], [11.150] proximity and ........ [11.230], [11.270], [11.350], [11.530] recognisable psychiatric injury, whether ...................................................... [11.260] remoteness test ......................... [11.90], [11.100] request to identify body ....................... [11.240] Singaporean law ...................................... [3.710] South African law .. [11.440], [11.600], [11.670] stressors associated with ...................... [11.290] sudden shock — see Sudden shock rule telephone call . [3.550], [3.660], [3.670], [3.700], [11.130], [11.300], [11.320], [11.520], [11.640]–[11.690] injury solely from ............................ [11.680] location of plaintiff .......... [11.680], [11.690] television/radio broadcast ...... [3.30], [10.220], [11.700]–[11.900] Canadian case .................................. [11.900] Hillsborough case ............ [11.710]–[11.890] live transmissions ............ [11.710]–[11.870] recordings .......................... [11.870]–[11.900] US cases ............................ [11.820], [11.880] third party, by ................. [2.90], [11.30], [11.50] “told only” ................. [11.190], [11.610], [12.40] US law ..... [11.550], [11.680], [11.690], [11.820], [11.880] victim injured in same accident ......................................... [11.90]–[11.110] Comparative focus of book ......................... [1.130] Conflict of laws .............................................. [13.50] Contributory negligence attempts to mitigate rule ........................ [16.30] Canadian law ............. [16.30], [16.50], [16.170] causation .................................................... [16.40] child ............................................ [16.90], [16.130] Civil Liability Acts ................. [16.150]–[16.170] common law defence ............................. [16.10], [16.30]–[16.140] defence to negligence claim .................. [16.10], [16.30]–[16.180] doctrine of identification ........................ [16.70] English law .............. [16.90], [16.100], [16.110], [16.170] “last opportunity” doctrine ................... [16.30] loss of consortium cases ....................... [16.170] master–servant cases ............................... [16.70] near-accident, responsibility for ............ [16.50] primary victim .......... [16.70]–[16.140], [24.260] psychiatric injury cases ........... [16.50]–[16.140] reduction of damages .............. [2.350], [16.50], [16.160] rescuer claims ......................................... [16.170] seat belt, failure to wear ......................... [16.60]

Index Contributory negligence — cont shock victim’s claim independent of accident victim ......................................... [16.140] standard of care ....................................... [16.40] statutory defence .................... [16.150]–[16.170] US law ......... [16.30], [16.90], [16.100], [16.170]

1111

Defective products or services contaminated products ......................... [21.180] fear of contracting disease ... [29.210], [29.580] manufacturer’s liability ......................... [21.170] mental harm caused by ........ [21.170]–[21.190] secondary victim claims ....................... [22.790] services .................................................... [21.190]

Conversion disorder ..................................... [5.180] Counselling employer’s failure to provide ............. [19.100], [19.110], [19.140], [19.210] lawyer sued for failing to institute proceedings for ......................... [20.550] work stress cases ............. [20.240], [20.550] Creutzfeldt-Jakob Disease fear of contracting .................... [3.220], [4.130], [12.300]–[12.320], [29.10], [29.80]–[29.210] contaminated products .................. [21.180] Criminal injuries compensation cases aftermath doctrine ................................. [11.570] assault on close relative ........................ [11.560] Canadian schemes ................................. [11.590] direct perception rule and .... [11.560]–[11.590] husband killed in wife’s presence ...... [30.140] Northern Ireland scheme ...................... [11.580] parents of abused child ......... [11.560], [11.570] UK scheme .............................. [11.560], [11.570]

D Damages aggravated damages ............................. [17.210] emotional/mental distress .... [6.70], [6.80] psychiatric injury, for ..................... [17.210] torts .......................................... [6.70]–[6.140] assessment — see Assessment of psychiatric injury damages contributory negligence reducing ........ [2.350], [16.50], [16.160] personal injury awards ......................... [17.240] Dangerous recreational activities statutory defence ..................................... [16.20] voluntary assumption of risk .............. [16.210] Dead bodies cemetery’s loss of urns ........... [6.280], [21.230] coffin overturned at funeral ..... [9.130], [27.10] hospital’s failure to notify next of kin ...................................................... [22.610] identification of ....... [6.270], [10.180], [10.230], [10.250], [10.340], [10.350], [11.240], [22.760], [25.210] loss of personal property from ........... [27.160] negligent mishandling of ........ [6.160], [8.310], [18.40] Defamation mental distress damages ........ [6.100], [30.740]

Defence forces Civil Liability Act, claim under .......... [13.420] imagined harm ......................... [13.420], [14.80] post-traumatic stress disorder .............. [5.210], [5.230], [19.450], [20.720] primary victim cases ............. [24.130]–[24.150] Defences common law ............................. [16.10]–[16.290] contributory negligence — see Contributory negligence freedom of speech ................. [30.230], [30.510] illegality ................................................... [16.220] intentional acts, to . [30.230], [30.510], [30.620] limitation of actions ............... [16.230]–[16.290] statutory ..................... [16.20], [16.150]–[16.170] voluntary assumption of risk ...................................... [16.190]–[16.210] Depression assessment of damages ........... [17.90], [17.130] communication-induced shock ........... [11.230], [11.470], [11.520], [11.530], [11.900] compensable illness, whether ................ [4.140] distinguishing emotion from illness ...... [4.30] employer liability ................................... [19.120] foreseeability ............................................. [7.670] genetically determined risk of .............. [5.330] grief, triggered by ........ [4.140], [4.160], [6.210] level of damage ........................................ [3.400] normal/abnormal responses to trauma .......................................... [5.150], [5.160] secondary reaction to trauma ................ [5.180] subsequent care of primary victim ...................................... [12.140]–[12.190] suicide, leading to ................................... [17.90] survivor guilt .............................. [7.650], [7.670] work stress .............................................. [20.270] Diagnostic and Statistical Manual of Mental Disorders (DSM) acute stress disorder ................................ [5.310] adjustment disorders ............................... [5.150] mental disorder, definition ....................... [5.40] over-reliance on ........................................ [6.460] post-traumatic stress disorder .............. [5.220], [5.230], [5.270], [5.300] Direct perception rule abolition .......... [1.100], [2.150], [2.190], [3.340], [7.60], [7.280], [10.30], [10.330], [11.10], [11.200]–[11.400] Australia ........... [11.200]–[11.400], [11.600], [18.50], [22.50]

1112

Tort Liability for Mental Harm

Direct perception rule — cont conservative reaction ...... [11.320]–[11.360] High Court ........ [11.200], [11.370]–[11.400] lower courts ...................... [11.210]–[11.320] New Zealand ................................... [11.450] South Africa ..................... [11.440], [11.600] aftermath doctrine — see Aftermath aircraft accident witnesses ................... [23.400] Australian law ........ [11.200]–[11.400], [11.600], [18.50], [22.50] blind or deaf person .............................. [11.610] Canadian law ........... [3.340], [11.520], [11.530], [22.780] cases where not possible ...................... [11.610] Civil Liability Acts ...... [2.350], [2.460], [10.20], [10.170], [11.410]–[11.430], [13.310]–[13.420] combined “told and saw” cases ....................................... [11.120]–[11.130] common law ............................ [11.200]–[11.400] criminal injuries compensation cases ....................................... [11.560]–[11.590] damages in direct perception cases ........................................ [17.50]–[17.100] English law . [7.70], [11.460]–[11.520], [11.560], [11.600] damages awards .................. [17.50]–[17.90] hearing accident ......................................... [2.60] “Kennedy limitation” .............................. [10.30] limitation on liability ..... [1.40], [2.50], [2.180], [7.50] New Zealand .......................................... [11.450] original requirement .................. [10.10], [10.30] own unaided senses, with ...... [10.30], [11.140] presence at accident scene .......... [1.40], [2.50], [2.90], [7.70], [9.240], [10.40] not realising relative is victim ...................................... [13.500]–[13.550] road accident .... [13.210], [13.230]–[13.240] proximity — see Proximity seeing accident ................. [2.60], [2.70], [10.10] South Africa ............. [11.200], [11.440], [11.600] traditional rule .......... [11.30]–[11.190], [11.600] discontent with ................ [11.140]–[11.190] qualifications to .................. [11.90]–[11.130] rejection of ............. [1.100], [2.150], [2.190], [3.340], [7.60], [7.280], [10.30], [10.330], [11.10], [11.200]–[11.400], [11.440], [11.450] US law ........ [3.780], [10.420]–[10.440], [11.550] Direct victim doctrine (US) ...... [18.190]–[18.250], [22.640] Doctors negligence by — see Medical negligence rescue principle ........................................ [25.20] work stress .............................. [20.110], [20.810] Duty of care absence of provision precluding ............. [7.10] Anns two-stage test .... [7.130], [7.140], [7.180], [7.750], [7.770]

jurisdictions retaining ...................... [7.180] move away from .. [7.150], [7.180], [7.200], [7.210] psychiatric injury cases .................... [7.250] basic rules ........................................ [7.40]–[7.90] breach of Caparo three-stage test .............. [7.180], [7.210], [7.270], [7.280] Civil Liability Acts ......... [2.280], [2.420], [7.80] application of provision ..... [2.420]–[2.440] foreseeability .......... [2.280], [2.290], [2.300] normal fortitude standard . [2.290], [2.300] relationship with common law .......................................... [2.450]–[2.490] variations between jurisdictions .... [2.290] coherence in law ...................................... [7.220] common law ................................... [7.30]–[7.70] content of ..................................... [7.290]–[7.300] current position .......................... [7.180]–[7.220] doctors — see Medical negligence Donoghue v Stevenson .. [7.110], [7.120], [7.750], [28.90] duty-situations ......................................... [7.290] element of negligence ............................... [7.10] employer — see Employer’s duty of care English law ....... [3.250]–[3.280], [7.70], [7.180], [7.200] Anns test ................. [7.130], [7.140], [7.180] statutory and common law duties ........................................................ [3.280] extension of concept ................................ [7.200] fairness ......................................... [7.190], [7.210] foreseeability — see Foreseeability general principles ....................... [7.100]–[7.220] application to mental harm cases .......................................... [7.230]–[7.280] current approach ................. [7.180]–[7.220] salient features ................................... [7.220] hospital — see Medical negligence incremental approach ................ [7.150], [7.210] limits on liability ...................................... [7.100] mental harm cases ..................... [7.230]–[7.280] neighbour principle ..... [7.100]–[7.120], [7.150] bad news, duty in relation to ......... [28.90] children, application to ...... [2.190], [9.110] employers ............. [19.80], [19.300], [22.70] hospital and next of kin ................ [22.610] proximity ............................................ [7.150] rescuers ................................. [25.60], [25.80] police, to ........................................ [2.460], [3.40] policy considerations .............................. [7.190] proximity — see Proximity reasonableness .......................................... [7.190] relationship, based on .. [2.170]–[2.200], [7.50], [7.70], [7.790], [18.90], [18.110] foreseeability and .... [2.180], [2.190], [7.50] proximity — see Proximity remoteness and ........................... [7.690]–[7.800] salient features ......................................... [7.220] school, to pupils ....................................... [7.290] scope of ........................................ [7.290]–[7.300] secondary victims, to ........... [2.150] — see also Secondary victims employer ............................. [22.50]–[22.140]

Index Duty of care — cont independent of primary claim ....... [3.690] standard of care ......................... [7.540], [7.550] statutory ........................................ [2.280], [7.80] workmates, to ........................................... [3.100]

E Educational authorities bullying, failure to prevent . [21.400], [21.410], [22.780] death of child, liability for ................... [22.780] duty to children with special needs ... [21.390] liability for mental harm ...... [21.390]–[21.410] work stress claims by employees ...... [20.600], [20.620], [20.700] Eggshell skull rule .......................... [8.280]–[8.380] reduction of damages ........................... [17.160] Emotional/mental distress aggravated damages ..................... [6.70], [6.80] common law damages not recoverable .................................. [4.30], [5.70], [6.20] general principle ...................... [6.20]–[6.60] reasons ...................................... [6.50], [6.60] definition ..................................................... [5.70] denial of claims .............................. [6.40]–[6.60] emotional scarring ..................... [6.260]–[6.320] intentional infliction of Canadian law ................................... [30.170] US law ... [6.160], [18.40], [30.600]–[30.650] medical perspective ................................... [5.60] mental harm distinguished ...................... [5.60] minor physical injuries compared .......... [6.40] negligent infliction of ........... [15.270]–[15.320], [25.150] non-compensable ... [4.30], [5.70], [6.20]–[6.60] normal/abnormal responses to trauma .......................................... [5.150], [5.160] ongoing ...................................................... [5.140] physical effects .............. [5.100]–[5.170], [5.420] physical symptoms .................................... [5.60] pre-impact emotional distress ............... [6.180] pure mental distress .................................. [6.30] recognisable psychiatric illness distinguished ................................ [1.160], [4.30], [5.50] recovery for ................................... [6.20]–[6.180] animals not entitled to ................... [27.110] battery ................................................... [6.80] Canada .................................................. [6.30] defamation ......................................... [6.100] equitable principles .......................... [6.140] general principle denying ...... [6.20]–[6.60] injured feelings ...................... [6.90]–[6.110] intentional torts ..................... [6.90], [6.100] negligence ........................................... [6.110] nuisance ................................................ [6.90] “parasitic” damages . [6.70], [6.80], [6.150] part of overall compensation .......... [6.110] pre-impact emotional distress ........ [6.180] professional negligence .................... [6.130]

1113

property damage . [6.120], [6.160], [27.110] reasons for refusing ................ [6.50], [6.60] “revenge porn” .................................. [6.140] trespass ................................................. [6.90] US ................. [3.770], [3.780], [5.60], [6.10], [6.150]–[6.180], [12.130], [27.110] telegraph message, negligent transmission of .......................................... [6.160], [18.40] tortfeasor as primary victim ...................................... [15.270]–[15.320] unpleasant emotional reactions ... [5.70], [5.80] US law ............ [3.770], [3.780], [5.60], [12.130], [13.580] Louisiana .......................... [13.580]–[13.620] negligent infliction of ..... [15.270]–[15.320] use of term ...................................... [5.50], [5.60] Emotional scarring Canadian law .............................. [6.260]–[6.320] Emotions background emotions ............................... [5.80] classification of ........................................... [5.80] fear ................................................ [5.110]–[5.130] normal/abnormal responses to trauma .......................................... [5.150], [5.160] physical effects .............. [5.100]–[5.170], [5.420] primary/universal emotions ................... [5.80] secondary/social emotions ...................... [5.80] Employer’s duty of care — see also Work accidents; Work stress Australian law .......... [19.50]–[19.220], [19.440] Canadian law ......................................... [19.460] children of employee, to .......... [2.180], [2.190], [7.60], [22.90]–[22.130] Civil Liability Acts ................................. [19.220] counselling, failure to provide ........... [19.100], [19.110], [19.140], [19.210], [20.240], [20.550] course of employment, accident in ..... [19.20], [19.30], [19.170] criminal activity ..................................... [19.130] duty not to cause psychiatric injury, ... [7.790], [19.50]–[19.220], [20.380] work stress, by — see Work stress employee witnessing death or injury of another ......... [19.10], [19.250]–[19.270] foreseeability of psychiatric injury .......................................... [19.60]–[19.80] employment contract, limited by ....... [19.200], [20.20] employment relationship creating ........ [19.20] English law .. [19.10]–[19.40], [19.230]–[19.420] early cases ........................................ [19.240] Hillsborough Stadium case ............ [1.100], [3.40], [19.280]–[19.350] rejection of general duty ........................ [19.230]–[19.420], [20.10] family of employee, to . [2.180], [2.190], [7.60], [22.50]–[22.140] foreseeability, based on ............ [2.180], [2.190], [7.60], [19.60]–[19.90], [19.180], [19.380], [22.80]

1114

Tort Liability for Mental Harm

Employer’s duty of care — cont general duty ................ [19.50]–[19.220], [20.10] Australian law ................... [19.50]–[19.220] Civil Liability Acts .......................... [19.220] English rejection of ........ [19.230]–[19.420], [20.10] Hillsborough Stadium case ....... [1.100], [3.40], [19.280]–[19.350] industrial action ..................................... [19.170] involuntary participation cases ............ [26.10]–[26.60], [26.90], [26.100] Irish law .................... [3.650], [19.440], [19.450] limitation period, extension of ............ [19.140] limiting tests not applicable ................ [19.160] neighbour principle ... [19.80], [19.300], [22.70] nervous shock due to accident .............. [19.30] New Zealand law .................................. [19.460] non-delegable ......................................... [20.380] normal fortitude rule ............................ [19.160] novus actus interveniens ...................... [19.380] police claims ........... [19.210], [19.280]–[19.350] bungled operation leading to death ...................................................... [19.390] criminal activity involved ............. [19.130] Hillsborough Stadium case ............ [1.100], [3.40], [19.280]–[19.350] sexual assault ................... [19.380], [20.250] work stress ...... [20.210], [20.240], [20.250], [20.510], [20.550], [20.580] pre-existing relationship ........... [22.50]–[22.80] proximity ................................. [19.300], [22.140] PTSD cases ............. [19.120], [19.210], [19.400], [19.450] railway accidents ................................... [19.240] relatives witnessing injury, to ................ [19.50] rescue cases .. [19.20], [19.60], [19.80], [19.240], [19.290], [19.350] robbery cases .......... [19.390], [19.400], [19.410] safe system of work ............. [19.130], [19.140], [19.180], [19.400], [20.20], [20.190], [20.290], [20.380] Scottish law . [3.570], [3.610], [19.230], [19.360] secondary victims ................. [19.250]–[19.320], [22.50]–[22.140] sudden shock rule and ........ [12.270]–[12.290], [19.160] suicide victim, to spouse of . [19.380], [20.690] US law ..................................................... [19.470] work stress cases — see Work stress English law .......................................... [3.20]–[3.330] aftermath doctrine .... [3.30], [10.190]–[10.280], [10.300], [10.360], [10.450] Alcock case — see Hillsborough Stadium disaster Anns test of duty of care ......... [7.130], [7.140], [7.180], [7.200] assessment of damages ............ [17.50]–[17.90], [17.240]–[17.270] Australian law differing from .............. [1.120], [2.100], [3.10], [3.330] bystanders ................................... [9.440]–[9.510] challenges to Coultas decision ... [2.30], [24.10] childcare authorities, claims against .. [21.250]

communication-induced shock ........ [11.460]–[11.520], [11.710]–[11.890] contributory negligence ......... [16.90], [16.100], [16.110], [16.170] current position .......................... [3.300]–[3.330] deviation from other jurisdictions ....... [1.120], [2.100], [3.10] direct perception rule ............................... [7.70], [11.460]–[11.520] duty of care, test for ... [7.130], [7.140], [7.180], [7.200] fear of contracting disease .................... [29.60], [29.380]–[29.420] five common control mechanisms ....... [3.310], [7.70] foreseeability ................ [3.250], [3.270], [3.310], [7.450]–[7.520], [18.60] Hillsborough cases — see Hillsborough Stadium disaster Law Commission Report .......... [3.240]–[3.290] limitation of actions for tort ............... [16.230], [16.240] limits on liability ......... [1.100], [1.120], [1.170], [1.230], [3.20]–[3.40], [3.310] mass disasters ............................. [3.20], [10.450] medical negligence .. [22.90]–[22.590], [22.650] mental distress, damages for ................. [6.110] mind–body distinction ............................ [5.510] normal fortitude rule ................... [8.10], [8.70], [8.240]–[8.270] “ordinary” shock/“psychiatric shock” distinction .................................... [6.250] primary/secondary victim distinction .. [3.60]–[3.230], [3.310], [18.60], [24.50] primary victim cases .............. [24.20]–[24.120], [24.180]–[24.290] proximity .......... [3.60], [3.120], [3.310]–[3.330], [3.520], [7.70], [7.180] recognisable psychiatric illness ............. [3.250] recovery for less than recognisable psychiatric illness .............................. [6.250], [6.440] relationship cases ...................... [18.50], [18.60], [18.100]–[18.170] relationship to victim ... [2.90], [3.260], [3.310], [7.70], [9.80]–[9.110], [9.150], [9.170], [9.250]–[9.430], [13.440], [18.50] rescue cases ............................................... [3.100] secondary victims ......... [3.60]–[3.230], [3.340], [3.520], [7.70] sudden shock rule ........ [3.250], [3.310], [4.20], [7.70], [12.20], [12.90], [12.100], [12.310], [12.500]–[12.550] test of reasonable foreseeability ............ [3.270] tortfeasor as primary victim ...................... [15.150]–[15.240], [15.320] unsatisfactory state of ............................. [1.100] work stress ............................. [20.110]–[20.150], [20.240]–[20.250], [20.600]–[20.680] Australian law compared ...................................... [20.770]–[20.830] Expert psychiatric evidence proof of actionable injury ......................... [4.40]

Index Ex turpi causa non oritur action — see Illegality

F False bad news — see Bad news Fear “fight or flight” response ......... [5.110], [5.120] physical effects ............................ [5.110]–[5.130] Fear for the future assessment of damages ......................... [17.270] contracting disease — see Fear of contracting disease early cases ................................... [29.50]–[29.70] original nervous shock cases distinguished ........................................................ [29.20] psychiatric injury caused by ................. [3.220], [29.10]–[29.50] sudden shock rule and ........................... [29.40] Fear of contracting disease asbestos-related diseases ....... [12.300], [29.10], [29.220]–[29.430] Australian law ................. [29.220]–[29.270] English law ....................... [29.380]–[29.420] Irish law ............................ [29.320]–[29.370] New Zealand law ............ [29.290]–[29.310] US law .............................................. [29.750] Australian law ........... [29.60], [29.80]–[29.270], [29.440]–[29.510] Canadian law ............ [29.70], [29.560]–[29.580] cancer .............. [4.130], [29.10], [29.40], [29.60], [29.750] asbestos-related ............... [29.220]–[29.430], [29.750] cancerphobia .... [29.300], [29.590], [29.630] radiation-induced ............ [29.590]–[29.650] chronic anxiety state ............................. [29.620] Civil Liability Acts ................. [29.660], [29.670] class action ................ [6.300], [29.560], [29.580] contaminated products ......................... [21.180] Creutzfeldt-Jakob Disease ....... [3.220], [4.130], [12.300], [12.310], [29.10], [29.80]–[29.210] contaminated products .................. [21.180] defective medical product .... [29.210], [29.580] delayed shock ......................................... [29.600] early cases ................................... [29.50]–[29.70] English law ................ [29.60], [29.380]–[29.420] exposure to toxic substances .. [29.30], [29.70], [29.220] foreseeability of psychiatric injury .... [29.100], [29.240], [29.270], [29.340], [29.450], [29.640] future, in .................... [3.220], [12.300]–[12.320] hepatitis B ................. [6.300], [29.550], [29.560] HIV/AIDS .. [4.130], [12.300], [12.320], [29.10], [29.40], [29.70], [29.440]–[29.580], [29.710]–[29.740] AIDSphobia ...................... [29.440], [29.720] Australian cases ............... [29.440]–[29.510]

1115

contaminated products .................. [21.180] foreseeability .................... [29.450], [29.500] medical negligence .......... [29.440]–[29.580] prison, exposure in ......... [29.440], [29.550] US cases ............................ [29.710]–[29.740] Irish law ................................... [29.320]–[29.370] Maralinga radiation cases ................... [24.130], [29.590]–[29.650] means of communication ....................... [29.40] medical negligence ................ [29.440]–[29.580] mere emotional distress ............ [6.360], [6.370] mesothelioma .......................... [12.300], [29.10], [29.220]–[29.420] New Zealand law .................. [29.290]–[29.310] normal fortitude .... [29.180]–[29.200], [29.410], [29.660] Northern Irish law ................. [29.520]–[29.540] objective irrationality ............................ [29.340] post-traumatic stress disorder ............. [29.610] primary/secondary victim distinction ........................ [3.220], [29.190], [29.200] proximity ................. [29.100], [29.240], [29.340] psychiatric condition caused by ........... [4.130] radiation-induced cancer ...... [29.590]–[29.650] reasonableness of fear ............. [29.90], [29.300] recognisable psychiatric disorder ........ [29.30], [29.260], [29.570], [29.630] relatives, claim by .................................... [6.360] Scottish law ............................................. [29.550] secondary victim ...... [3.220], [29.190], [29.200] sudden shock rule and ........ [12.300]–[12.320], [29.40], [29.100]–[29.120], [29.500], [29.650] tuberculosis ................................. [6.360], [6.370] US law ........ [29.50], [29.300], [29.680]–[29.750] vulnerability to irrational reactions .... [29.450] x-rays, exposure to ................................ [29.690] zone of danger ....................... [29.400], [29.520] Fear of injury limits of liability ......................................... [1.40] near-accident cases ..................... [18.10]–[18.40] contributory negligence ................... [16.50] relationship of parties ...................... [18.40] others, to ............. [2.50], [3.30], [3.110], [3.560], [18.50], [26.10]–[26.30] primary victims ... [18.50], [24.40], [24.230] plaintiff outside zone of danger .............. [2.50] primary/secondary victim distinction .......................................... [3.180], [3.190] relationship factor .................................... [18.50] self, to . [2.40], [3.100], [3.180], [3.340], [3.540], [3.560], [3.770], [9.40], [18.10] primary victims .................. [18.50], [24.50], [24.80]–[24.170] statutory restriction .......................... [13.70] sudden shock rule exception ...................................... [12.300]–[12.320] unreasonable ............................................. [3.190] zone of danger ......................................... [3.770]

1116

Tort Liability for Mental Harm

Fiancé/e claims ..... [3.560], [9.190], [9.220], [9.400] Floodgates fears ............................................. [1.180] First edition of book ......................... [1.50], [6.470] approach of ................................................. [1.70] bystander recovery .................................. [9.510] developments since ..................... [1.60], [1.100] jurisdictional focus .................................. [1.120] reform proposals from .................. [1.80], [1.90] sudden shock rule ................................... [12.80] Foreseeability .................................... [7.310]–[7.520] aftermath doctrine ....................... [2.80], [10.70] bystander, harm to .................................. [9.440] communication-induced shock ............ [2.140], [3.740], [11.140], [11.270], [11.520] modern modes of communication ...................................................... [11.660] duty of care based on ... [2.150]–[2.190], [7.10], [7.150], [7.310]–[7.520], [7.690] Civil Liability Acts ............. [2.280], [2.290], [7.310] common law ............. [2.150]–[2.190], [7.50] English law ........................................ [3.250] insufficiency ............ [7.190], [7.260]–[7.280] one of number of considerations ... [7.190] psychiatric injury cases ...... [7.260], [7.270] eggshell skull rule ...................... [8.280]–[8.380] reduction of damages ..................... [17.160] employer’s duty of care based on ....... [2.180], [2.190], [7.60], [19.60]–[19.90] English law ................... [3.250], [3.310], [7.450] primary/secondary victim distinction ................ [3.60]–[3.220], [3.520], [18.60] psychiatric injury, of .......... [7.450]–[7.520], [18.60] test of reasonable foreseeability ..... [3.270] extraordinarily sensitive victim .............. [8.40] factual ........................................................ [3.700] Hong Kong law .......................... [3.740], [3.750] impact theory ........................................... [7.400] injury by shock .. [2.70], [2.80], [7.400]–[7.420], [7.480], [7.620] Irish law ....................................... [3.650]–[3.680] kind of damage ............ [7.390]–[7.440], [7.750] remoteness .............. [7.380], [7.390], [7.640] limitation on liability .... [1.70], [1.100], [1.160] mental harm cases ..................... [7.230]–[7.280] normal fortitude rule — see Normal fortitude rule Page v Smith .... [7.450]–[7.520], [8.240]–[8.270], [18.60], [18.120]–[18.170], [24.180]–[24.290] physical injury .............................. [3.70], [3.250] plaintiff, of ................................... [7.320]–[7.380] origin of rule ...................................... [7.330] parents ..... [6.320], [7.250], [7.350], [7.360], [10.140] “pregnant fishwife” case .... [2.70], [7.340], [8.90], [15.20], [24.80] remoteness, issue of ......................... [7.380]

rescue cases ........... [7.370], [25.30]–[25.50], [25.350] unborn children ................................. [7.370] primary/secondary victim distinction ............... [3.60]–[3.230], [3.270], [3.520], [18.140] proof of ........................................................ [1.70] psychiatric injury, of ..... [5.360], [6.320], [7.50], [7.60], [7.230]–[7.280], [7.310], [7.390]–[7.440], [7.700], [18.50] common-sense point of view .......... [7.430] distinction between categories ...... [7.660], [7.670] English law .......................... [7.450]–[7.520], [18.120]–[18.170] ex post facto test ................. [7.440], [7.470] impact theory .................................... [7.400] informed judicial opinion ................ [7.430] normal fortitude rule — see Normal fortitude rule reasonably foreseeable ..................... [7.420] remoteness principles ......... [7.620]–[7.800] rescue cases ........ [25.60]–[25.140], [25.240] shock theory ...................................... [7.410] standard test ...................................... [7.440] reasonableness standard .......... [1.160], [2.190], [3.270], [7.420] relationship of parties and ...... [2.180], [2.190], [7.50], [7.60], [7.280], [9.260], [18.60], [18.100] remoteness and ........................... [7.600]–[7.800] duty of care rules ................ [7.690]–[7.800] kind of damage ................... [7.380], [7.390] plaintiff ................................................ [7.380] rescue cases ................ [7.370], [25.30]–[25.140], [25.240], [25.350] roles in tort of negligence ...................... [7.690] secondary victim, injury to ......... [3.60]–[3.80], [3.140], [3.520], [7.50], [7.480], [18.160] shock theory ............................................. [7.410] Singaporean law ...................................... [3.700] South African law .................................... [3.550] unforeseeable plaintiff ............... [7.320]–[7.380] US law ......................................... [3.780], [3.790] work stress cases — see Work stress Foster children relationship requirement .......... [9.220], [9.330] sexual abuse by ...................................... [21.300] liability of authorities ..... [21.300], [26.230] parents’ claim .... [3.210], [18.110], [21.300], [22.800] sexual abuse by foster parent ............. [21.250], [21.260] “stolen generations” .............. [21.330]–[21.380]

Index Funeral home — see Cemeteries and funeral homes

G Ganser Syndrome .......................................... [8.310] Good Samaritan defence to liability ................................... [16.20] neighbour principle ..... [7.100]–[7.120], [7.150] rescuers — see Rescuer cases Government authorities liability for mental harm childcare ............................ [21.240]–[21.380] education .......................... [21.390]–[21.410] false statement ................................. [21.490] police ................................. [21.420]–[21.440] prisons ............................... [21.450]–[21.480] statutory responsibilities ................ [21.240] Grandparents ....... [3.580], [9.130], [9.270], [9.330], [13.490] Grief and sorrow actionable nervous shock distinguished ........................................................ [6.270] causally unconnected .............................. [4.120] emotional scarring ................................... [6.270] non-compensable ..................... [1.160], [11.290] psychiatric illness caused by ................ [4.120]–[4.160], [6.210] distinguished ........ [1.170], [1.180], [2.140], [4.30], [4.50], [6.210], [6.220], [16.280]

H Harassment employer’s liability ............... [20.250], [20.540], [20.720], [20.730] intentionally causing psychiatric injury ..... [30.120], [30.150], [30.170], [30.240], [30.720] school’s liability ..................................... [21.400] tort of ....................................................... [30.240] Wilkinson v Downton principle ............ [30.120], [30.150], [30.170], [30.240], [30.720] work stress cases ... [20.160], [20.250], [20.360], [20.400], [20.570], [20.720] Health, definition ............................................ [5.20] Hearing of accident — see Communication-induced shock“Hearsay victims” ......... [3.550], [10.330], [12.470] Hillsborough Stadium disaster aftermath doctrine .... [3.30], [10.190]–[10.280], [10.300], [10.360], [10.450]

1117

communication-induced shock ........... [11.490], [11.710]–[11.890] television/radio coverage ....................................... [11.710]–[11.890] contributory negligence .......... [16.90], [16.100] direct perception rule ............ [11.490], [11.500] duty of care ................................... [3.30], [7.270] employees, to ....................................... [3.40] relatives, to ........................................... [3.30] secondary victims ................. [3.90]–[3.230] employer’s duty of care ............. [1.100], [3.40], [19.280]–[19.350] fear of injury to others .............................. [3.30] first edition of book ................................... [1.50] identification of bodies ........ [10.230], [10.250], [10.340] involuntary participation principle ...... [26.70] Law Commission Report after .......................................... [3.240]–[3.290] limits to liability for psychiatric damage ............................................ [1.100], [3.20] mind–body distinction ............................ [5.510] narrow approach to psychiatric injury issues .................. [1.100], [3.30], [3.40], [18.50] negligence by police .................................. [3.20] police chief’s duty of care ............ [3.30], [3.40] police claims ...... [1.90], [1.100], [3.40], [3.160], [3.620], [12.240], [25.170], [25.180] employer’s duty of care ...... [1.100], [3.40], [19.280]–[19.350] primary or secondary victims ........ [3.160] rescuers .... [3.40], [3.150], [3.620], [19.350], [25.10], [25.170], [25.180], [25.370], [25.380]–[25.430] sudden shock rule .......................... [12.240] pre-impact emotional distress ............... [6.180] primary/secondary victim distinction ................ [3.90]–[3.230], [18.60], [24.50] Lord Lloyd ........................... [3.130]–[3.160] Lord Oliver ............................. [3.90]–[3.150] primary victims . [3.50], [3.60], [18.50], [18.60], [18.160], [24.50] proximity ................... [3.120], [10.190]–[10.280] pure psychiatric harm ............................... [1.90] relationship to victim ................... [3.30], [9.50], [9.90]–[9.110], [9.170], [9.190], [9.210], [9.250]–[9.470], [18.50] relatives, claims by ........ [3.30], [9.250]–[9.430] rescue principle ............. [3.40], [3.150], [3.620], [19.350], [25.10], [25.170], [25.180], [25.370], [25.380]–[25.430] secondary victims ......... [3.90]–[3.230], [18.60], [22.20] sudden shock rule ................................. [12.530] television/radio coverage ........ [3.30], [10.220] communication-induced shock ....................................... [11.710]–[11.890] live transmissions ............ [11.710]–[11.870] recordings .......................... [11.870]–[11.900] tortfeasor as primary victim ............... [15.150], [15.170] HIV/AIDS communication of news to partner .... [11.610]

1118

Tort Liability for Mental Harm

HIV/AIDS — cont false bad news ........................................ [28.110] fear of contracting .. [4.130], [12.300], [12.320], [29.10], [29.70], [29.440]–[29.580], [29.710]–[29.740] AIDSphobia ...................... [29.440], [29.720] Australian law ................. [29.440]–[29.510] contaminated products .................. [21.180] foreseeability .................... [29.450], [29.500] medical negligence .......... [29.440]–[29.580] Northern Irish law .......... [29.520]–[29.540] prison, exposure in ......... [29.440], [29.550] Scottish law ...................................... [29.550] US law ............................... [29.710]–[29.740] Hong Kong law ................................ [3.730]–[3.750] communication-induced shock ............ [3.740], [11.540] foreseeability ............................... [3.740], [3.750] Hospitals — see Medical negligence Hotel-keepers liability to patrons ................................... [18.40] Human nervous system autonomic nervous system ...................... [5.90] central nervous system ............................. [5.90] peripheral nervous system ....................... [5.90] physical changes to brain ......... [5.420], [5.480] physical effects of emotions .... [5.100]–[5.170], [5.420] somatic nervous system ........................... [5.90] Hypochondria ................................................. [5.180]

I Identification of body .... [6.270], [9.160], [10.180], [10.230], [10.250], [10.340], [10.350], [11.240] Illegality defence to negligence claim ... [16.10], [16.220] employer’s duty where criminal activity ...................................................... [19.130] unlawful joint venture .......................... [16.220] Imagined harm to third party ....... [14.60]–[14.80] Impact rule ............. [2.10], [2.40], [3.760], [12.430], [18.10], [18.180] Impact theory ................................................. [7.400] “Insurance crisis” ............. [2.150], [2.230], [8.210], [13.20], [17.220] Intentional act causing psychiatric harm abuse of position or relationship ........ [30.630] acts of violence ....................... [30.260]–[30.310]

alternative to negligence action ............ [30.10] assault of spouse ........ [30.70], [30.80], [30.270] attempted suicide .................. [30.140], [30.550] Australian law ......... [30.80], [30.130]–[30.150], [30.460], [30.690] bad news ................................... [28.10], [28.270] false ........................................ [30.20]–[30.70] true .................................................... [28.270] battery ...................... [30.100], [30.150], [30.290] calculated to cause harm ......... [30.30], [30.50], [30.120], [30.150], [30.200]–[30.220], [30.280], [30.390], [30.400], [30.430], [30.560] Canadian law ........... [30.10], [30.160]–[30.170], [30.320], [30.470], [30.700] cause of action, requirements for ...................................... [30.190]–[30.240] Civil Liability Acts . [30.340]–[30.360], [30.750] debt collector .......................... [30.180], [30.630] defences ................... [30.230], [30.510], [30.620] early cases ..................................... [30.20]–[3.80] English law ................................ [30.10]–[30.750] false words .. [30.20]–[30.70], [30.210], [30.430] fear of contracting disease ..................... [29.70] foreseeability .......... [30.170], [30.180], [30.280], [30.320], [30.390] freedom of speech defence .. [30.230], [30.510] harassment ............. [30.120], [30.150], [30.170], [30.720] Hong Kong law ...................................... [30.180] imputed intention .. [30.500], [30.520], [30.690] intent to cause severe distress ............. [30.530] intentional infliction of mental/emotional distress Canadian law ................................... [30.170] US law ... [6.160], [18.40], [30.600]–[30.650] intentional torts to property .... [6.90], [30.570] Irish law .................................................. [30.180] malice ........................... [30.20], [30.30], [30.380] malicious falsehood ............................... [30.130] mass killings ........................................... [30.260] mental element ......................................... [30.40] modern cases ............................ [30.90]–[30.150] murder, witnesses to ............................ [30.140], [30.260]–[30.280], [30.320] negligence compared ............................. [30.60], [30.370]–[30.420], [30.540]–[30.580] post-traumatic stress disorder ............ [30.100], [30.430] practical joke ............. [30.20], [30.210], [30.390] protesters, claim by ............................... [30.140] pure mental distress .............. [30.590]–[30.750] recklessness ............ [30.100], [30.120], [30.260], [30.380], [30.420], [30.430], [30.480], [30.520] recognisable psychiatric illness .......... [30.190], [30.510], [30.690] relationship between parties .... [18.40], [21.20] remoteness .................................. [30.40], [30.60] Scottish law ............................... [3.600], [30.180] secondary victims . [30.150], [30.250]–[30.330], [30.640] separate tort . [1.30], [30.20], [30.170], [30.580], [30.750]

Index Intentional act causing psychiatric harm — cont sexual assault .......................... [30.260], [30.340] slanderous accusation of unchastity .... [30.40] South African law .................................. [30.180] special sensitivity ................... [30.220], [30.630] stalking .................................................... [30.120] strip search of prison visitors ............. [30.100], [30.430] threats ........ [30.70], [30.120], [30.210], [30.280] tortfeasor’s liability to witnesses ........ [30.280] unsoundness of mind .......... [30.140], [30.230], [30.550] US law ........................ [6.160], [18.40], [30.320], [30.600]–[30.650], [30.710] videotapes of sexual activity .............. [30.150], [30.690] wilfulness ................................ [30.200], [30.380] Wilkinson v Downton principle ................ [1.30], [30.10]–[30.750] cause of action ................. [30.190]–[30.240] facts of case .......................... [30.20]–[30.60] limits .................................. [30.370]–[30.580] restatement of .................. [30.480]–[30.580] witnesses to act ..... [30.140], [30.250]–[30.330], [30.640] wrongful accusations ............................ [30.160] International Classification of Diseases (ICD-10) ........................................................ [5.170] post-traumatic stress disorder .............. [5.220], [5.230], [5.300] Involuntary participation Australian law ........ [26.110]–[26.140], [26.370] Canadian law ......................................... [26.350] Civil Liability Acts ................. [26.130]–[26.140] common law ............................ [26.110]–[26.120] early cases ................................... [26.10]–[26.60] employment situations ............. [26.10]–[26.60], [26.90] English law ............................... [26.70]–[26.100], [26.150]–[26.260], [26.380] fear of injury to others .............. [26.10], [26.20] foreseeability of mental harm . [26.20]–[26.40], [26.80], [26.170] guilt-induced disorder .......................... [26.110] heart attack from shock .......................... [26.40] Hillsborough disaster .............. [26.70], [26.220] Irish law .................................. [26.320], [26.330] Lord Oliver’s statement of principle ........................................ [26.70]–[26.100] mere bystander distinguished ............. [26.110] Northern Irish law ................. [26.270], [26.300] Page v Smith ............................. [26.150]–[26.170] police claims ........................................... [19.340] primary/secondary victim distinction ........................ [26.70]–[26.100], [26.160] proximity ................................................... [26.50] recognition of principle ......... [26.310]–[26.340] Scottish law ............................. [26.270]–[26.290] secondary victims .................... [26.80], [26.190] Singaporean law .................................... [26.340] survivor guilt .......................................... [26.180] US law ..................................................... [26.360]

1119

witnessing injury to others ..... [26.70], [26.80], [26.120] work accidents ........... [19.270], [26.10]–[26.60], [26.90] Ipp Report ............ [2.230], [2.270], [2.300]–[2.350], [2.420], [10.170], [11.430], [13.290], [16.150] Irish law ............................................. [3.640]–[3.680] aftermath doctrine ................................. [10.320] Anns test of duty of care .......... [7.140], [7.180] assessment of damages ......................... [17.210] challenges to Coultas decision .. [2.30], [3.640], [24.10] communication-induced shock ........... [11.540], [11.670] employer’s duty of care ......... [3.650], [19.440], [19.450] fear of contracting disease .... [29.320]–[29.370] first repudiation of non-recovery for nervous shock ............................................ [3.640] foreseeability ............................... [3.650]–[3.680] involuntary participation ..... [26.320], [26.330] normal fortitude rule ................................ [8.80] progressive approach .............................. [3.640] proximity ................................................... [3.670] relationship to victim .............................. [9.160] secondary victims .................................... [3.660] sudden shock rule ................. [12.120], [12.180] work stress .............................. [20.720]–[20.730]

L Law Reform (Miscellaneous Provisions) Act 1944 (NSW) continued effect of provisions ............... [13.40] de facto spouses included ...... [13.30], [13.220] extension of liability .. [13.10], [13.30]–[13.180] fear of injury to self ................................ [13.70] foreseeability, statutory formula ........... [13.50] proof of breach of duty .......................... [13.60] relatives who can claim ......................... [13.30], [13.80]–[13.140] road accidents ......................................... [13.230] secondary victim cases ........................... [13.70] work accidents ....................................... [13.270] Lawyers claims against ........ [18.120]–[18.160], [20.410], [21.30]–[21.60] duty of care ................. [18.120], [21.30]–[21.60] Liability for mental harm defences — see Defences denial of ..................................................... [1.220] limits — see Limitations on liability negligence law — see Duty of care; Negligence recognition of ............................................. [1.10] test of ........................................................... [2.70]

1120

Tort Liability for Mental Harm

Life event research ........................................ [5.320]

“Lucky escape” cases ...................... [14.40], [14.50]

Limitation of actions date when cause of action accrues .... [16.260], [16.270] defence to negligence claim .................. [16.10], [16.230]–[16.290] delayed shock ......................................... [16.280] extension ... [7.680], [16.240], [16.290], [24.140], [24.150], [29.620] employer liability case ................... [19.140] post-traumatic stress disorder ............ [16.270], [16.280] psychiatric injury ................................... [16.250] lack of awareness of nature and extent ...................................................... [16.290] “personal injury”, whether constitutes ...................................................... [16.250] time when suffered ......... [16.270], [16.280] tort actions .............................................. [16.230] unknowable date of injury .................. [16.260]

M

Limitations on liability Canadian law ............................. [3.340], [3.350] Civil Liability Acts imposing ... [1.110], [1.230] differences between jurisdictions .......... [2.100] direct perception — see Direct perception rule English law .... [1.100], [1.120], [1.170], [1.230], [3.20]–[3.330], [7.70] foreseeability — see Foreseeability impact rule ...................... [2.10], [2.40], [12.430] inter-jurisdictional debate ........................ [2.40] negligence law — see also Negligence duty of care — see Duty of care limits provided by .. [1.70], [1.160], [7.100] normal fortitude — see Normal fortitude rule proposal to abolish ........................ [1.80], [1.90] proximity — see Proximity relationship to victim — see Relationship to victim repudiation of traditional limits .......... [1.100], [1.180] statutory extensions ................. [13.30]–[13.180] statutory restrictions — see Statutory provisions sudden shock — see Sudden shock rule tort of negligence providing ...... [1.70], [1.160] Litigation difficulties for psychiatric sufferers ...... [1.210] disincentive to rehabilitation ... [1.160], [1.170] limited number of claims ....................... [1.220] Loss of consortium abolition of right to sue for ................... [13.70] contributory negligence ........................ [16.170] Loss of liberty foreseeability of mental harm ............ [18.150], [18.160] negligence claim against lawyers ...................................... [18.120]–[18.160]

Means of communication — see Communication-induced shock Medical negligence ....................... [21.70]–[21.100], [22.150]–[22.750] “accident” or “event” ........... [22.240], [22.350], [22.390], [22.460] aftermath doctrine ................ [10.380], [10.390], [22.260], [22.370], [22.690] assessment of damages ......... [17.110]–[17.130] Australian law ........................ [22.190]–[22.290] Canadian law .......................... [22.600]–[22.620] causation .................................................. [22.730] childbirth ................................. [22.180]–[22.240] aftermath doctrine .......................... [10.380] bond between mother and foetus ...................................... [22.630], [22.640] communication-induced shock .... [11.180], [11.510] death of child ................. [22.300], [22.310], [22.380]–[22.400] disabled child .. [22.180], [22.200]–[22.220], [22.490], [22.600], [22.620] English cases ................... [22.380]–[22.400], [22.440]–[22.490], [22.560] failed anaesthetic .............................. [21.70] failed termination ........... [22.200], [22.600] failure to test for defects ................ [22.540] injury to child . [18.230], [22.180], [22.220], [22.590] less than recognised psychiatric illness ........................................................ [6.430] primary/secondary victim distinction ........................ [3.200], [10.380], [22.180] secondary victims, parents as ...................................... [22.180]–[22.750] stillborn child .................. [12.480], [22.180], [22.440]–[22.480], [22.560] sudden shock .. [12.480], [12.500], [12.510], [22.230], [22.320], [22.400] US cases ............................ [22.630]–[22.640] wrong baby given to mother ....... [11.610], [22.720]–[22.740] circumcision ................ [7.360], [8.110], [22.170] communication of bad news ............... [21.100] false news ........................ [21.100], [22.520], [28.110]–[28.160] means of ........................... [22.360], [22.370] true news .......... [28.180], [28.210]–[28.240] direct victim doctrine (US) .. [18.200]–[18.240], [22.640] dropping baby ........................................ [22.630] emotional distress damages ................... [6.160] English law .............. [22.290]–[22.590], [22.650] early cases ......................... [22.300]–[22.370] failed procedures ....................... [7.190], [21.80] failure to advise ..................... [22.250], [22.270] failure to diagnose ................ [11.180], [22.280], [22.330], [22.410], [22.520], [22.620]

Index Medical negligence — cont failure to notify next of kin ................. [22.610] failure to treat ......................... [22.250], [22.520] false bad news ....................... [21.100], [22.520], [28.110]–[28.160] fear of contracting disease .... [29.440]–[29.580] foreseeability of psychiatric injury .... [22.570], [22.690] injury to child ......... [18.230], [22.150], [22.250] childbirth, during ........... [18.230], [22.180], [22.220] involuntary participation ..................... [26.240] misdiagnosis ............. [6.160], [18.200], [22.640] normal fortitude and ............................... [21.80] organ removal without consent .......... [22.550] overdose of drug ..................................... [21.70] pre-existing relationship .......... [21.10], [22.40], [22.160], [22.170], [22.290], [22.550], [22.750] primary/secondary victim distinction ....... [3.200], [10.380], [22.180], [22.520], [22.550] proximity ................... [3.330], [22.360], [22.680] psychiatrists ............................. [21.110]–[21.140] relationship, duty based on ... [18.70], [18.200] Scottish law ............................. [22.540]–[22.560] secondary victims .................. [22.150]–[22.750] Singaporean law ..................... [22.660]–[22.710] South African law .................. [22.720]–[22.740] spouse, claim by .... [18.200], [18.210], [22.580] sudden shock ........... [12.50], [12.110], [12.120], [12.500], [12.510], [22.230], [22.270], [22.320], [22.400], [22.700] time gap before death ............................. [3.330] US law ...................................... [22.630]–[22.640] Medical research biological research ................................... [5.330] definition of illness .................................... [5.20] law and ........................................ [5.360]–[5.510] mind–body distinction .............. [5.360]–[5.510] physical effects of emotions .... [5.100]–[5.170], [5.420] psychiatric disorders — see Psychiatric illness/disorder sociological research ................................ [5.320] terminology ..................................... [5.20]–[5.60] Mental disorder — see Psychiatric illness/disorder Mental distress — see Emotional/mental distress Mental harm — see also Psychiatric injury Civil Liability Act provisions .. [2.240]–[2.370], [7.80] consequential .................. [2.260], [2.320], [7.80] definition ....................................... [2.260], [5.60] duty of care, statutory .. [2.280], [2.290], [7.80] emotional distress distinguished ............ [5.60] intentional infliction of . [1.30], [3.600], [6.160] pure mental harm ....... [2.260], [2.300], [2.310], [7.80]

1121

duty of care ........................................ [2.320] matters to be taken into account ... [2.310] recognisable illness — see Recognisable/recognised psychiatric illness recognised illness — see Recognisable/recognised psychiatric illness Scottish law ............................................... [3.600] secondary victims ...................................... [6.60] statutory term ..................... [1.10], [4.20], [5.60] terminology ..................................... [5.20]–[5.60] Mesothelioma — see Asbestos-related diseases Mind–body distinction ................... [5.360]–[5.510] arguments against ...................... [5.370]–[5.390] “bodily harm” provisions ......... [4.110], [5.400] “bodily injury” ........................... [5.410]–[5.490] brain as part of body .............................. [5.450] English law ............................................... [5.510] minor injuries ............................................. [6.40] PTSD cases .................................. [5.410]–[5.490] reasons for ..................... [1.160], [1.170], [5.370] Miscarriage — see Pregnancy and childbirth

N Negligence application of tort of ..................... [1.20], [1.30] breach of duty of care .................. [7.10], [7.20], [7.530]–[7.550] damage caused by .............................. [7.20] reasonable person standard ............ [7.550] standard of care .................. [7.540], [7.550] statutory statements defining ......... [7.540] causation ...................................... [7.560]–[7.590] Civil Liability Acts applicable to ......... [2.430], [2.440] class action ................................................ [6.300] contributory — see Contributory negligence corpses, mishandling of .......................... [6.160] damage resulting from ................. [7.10], [7.20] duty of care — see Duty of care elements of tort .............................. [7.10]–[7.30] recent analyses of ................................ [7.20] employer’s vicarious liability .............. [20.400] harm unintentionally but carelessly inflicted .......................................................... [1.30] injured feelings, damages for .. [6.110], [6.160] limits on liability .......................... [1.70], [1.160] medical — see Medical negligence professional — see Professional negligence reasonableness standard ......................... [1.160] remoteness of damage — see Remoteness review of law of (Ipp Report) ............... [2.230] single tort of ............................................... [1.30] standard of care ......................... [7.540], [7.550] telegraph messages .................... [6.160], [18.40] Neighbour principle bad news, duty in relation to ................ [28.90]

1122

Tort Liability for Mental Harm

Neighbour principle — cont children, application to ............. [2.190], [9.110] duty of care ................... [7.100]–[7.120], [7.150] employers .................... [19.80], [19.300], [22.70] hospital and next of kin ....................... [22.610] proximity ................................................... [7.150] rescuers ........................................ [25.60], [25.80] Nervous shock — see also Mental harm; Psychiatric injury limits of liability for .................................. [1.40] outdated terminology ................... [4.10], [4.20] recognition of liability for ........................ [1.10] separate tort, judicial statement as to .... [1.20] special interest tort topic .......................... [1.20] traditional arguments against recovery for .............................. [1.140]–[1.190], [2.20] use of term .. [1.10], [2.30], [4.10], [4.20], [5.60] Neurasthenia ..................................................... [1.10] New Zealand law ............................. [3.440]–[3.520] Accident Compensation Acts ................. [3.10], [3.450]–[3.510] reducing ambit of ............................. [3.470] Anns test of duty of care .......... [7.140], [7.180] “bodily harm” .......................................... [5.400] challenges to Coultas decision ... [2.30], [3.440] childcare authorities, claims against .. [21.250] common law personal injury actions legislation abolishing ....................... [3.440] prevention of double-dipping ........ [3.500] reinstatement of ................... [3.480]–[3.500] employer’s duty of care ........................ [19.460] fear of contracting disease .... [29.290]–[29.310] mental injury .............................. [3.460], [3.520] criminal acts, caused by .................. [3.510] physical injury, resulting from ...... [3.470], [3.480], [3.510] sexual offences, caused by ............. [3.470], [3.480] “personal injury by accident” Accident Compensation Act covering .......................................... [3.450], [3.460] definition of personal injury ........... [3.470] physical and mental consequences ........................................................ [3.450] psychiatric injury included ............ [3.460], [3.520] recovery for less than recognisable psychiatric illness ............................................ [6.420] rejection of traditional limitations ........ [1.100] sexual abuse victims ................. [3.470], [3.480] spouse, death of ......................... [3.490], [3.500] sudden shock rule ................................. [12.490] work stress ................................ [3.460], [20.750] Nominate torts ................................................. [1.30] Non-relatives aircraft accident cases ........... [23.380], [23.410] English law ................................................. [2.90]

recovery by ................................................. [2.60] rescuers — see Rescuer cases workmates — see Work accidents Normal fortitude rule abolition .......... [1.100], [2.150], [3.600], [7.280], [18.50], [22.50] application of rule ..................................... [8.10] assisting assessment of foreseeability .. [8.170] Australian law . [2.100], [2.150], [3.600], [7.50], [7.280], [8.10], [8.150]–[8.190], [18.50], [22.50] Canadian law ..... [3.380], [3.420], [8.10], [8.60] child plaintiff ............................................ [8.130] Civil Liability Acts ......... [8.10], [8.200]–[8.230] cultural background and beliefs ........... [8.110] eggshell skull rule ...................... [8.280]–[8.380] reduction of damages ..................... [17.160] employee claims .................................... [19.160] English law ...................... [8.10], [8.240]–[8.270] existing mental disorder ........... [8.140], [8.230] extraordinarily sensitive victim .............. [8.40] public policy dictating refusal of relief ........................................................ [8.120] fear of contracting disease ... [29.180]–[29.200], [29.410], [29.660] foreseeability of injury to person of .... [1.100], [8.10], [8.50], [8.80] reasonable foreseeability .................. [8.170] general standard of susceptibility ......... [8.50], [8.120], [8.180] hypothetical “normal” citizen ............... [8.130] hysterical personality disorder .............. [8.140] idiosyncratic vulnerabilities ................... [8.230] Irish law ...................................................... [8.80] limitation on liability ...... [1.100], [7.50], [8.50] medical negligence .................................. [21.80] Mustapha case . [3.380], [3.420], [8.60], [17.160] new interpretation ..................... [8.150]–[8.190] Page v Smith ................... [8.240]–[8.270], [18.60] predisposition to psychiatric illness ..... [8.140] primary victims .......................... [8.240], [8.250] reduction of damages ........................... [17.160] remoteness and ........................................ [7.760] Scottish law ............................................... [3.600] secondary victims .......... [3.60], [8.240], [8.250] separate rule, whether ............................ [8.180] statutory standard ...................... [2.290], [8.10], [8.200]–[8.230] Tame case ............ [8.30], [8.150]–[8.220], [18.50] test of ........................................................... [8.80] thin skull rule ............................. [8.280]–[8.380] traditional rule ................................ [8.20]–[8.80] problems with ........................ [8.90]–[8.140] vagueness of test ...................................... [8.120] work stress .............. [20.170], [20.310], [20.460] Northern Irish law criminal injuries compensation scheme ...................................................... [11.580] fear of contracting disease .... [29.520]–[29.540] involuntary participation ..... [26.270], [26.300] Nuisance mental distress damages .......................... [6.90]

Index

1123

Nursing homes liability for psychiatric injury .............. [21.220]

Peptic ulcer disease ........ [5.170], [5.410], [23.190], [23.240]

O

Peripheral nervous system ............................ [5.90]

Obvious risk defence ................................... [16.20]

Pets damages not recoverable by ................ [27.110] emotional distress damages for death of ...................................................... [27.110]

Ordinary fortitude — see Normal fortitude rule

Phobias ............................................................. [5.180]

“Ordinary” shock .......................................... [6.250]

Physical harm combined with mental harm ..... [1.170], [2.10] sudden shock rule ........... [12.350]–[12.360] distinguishing mental harm from .......................................... [5.360]–[5.510] arguments against ............... [5.370]–[5.390] “bodily injury” .................... [5.410]–[5.490] English law ........................................ [5.510] reasons for .............. [1.160], [1.170], [5.370]

Obsessive-compulsive disorders ................ [5.180]

P Parents aftermath, presence at — see Aftermath aggravation of existing disorder .......... [8.140], [17.150] anxiety disorder ....................................... [6.290] continuing effect of initial shock child’s condition contributing to ...................................... [12.370]–[12.400] subsequent care of child ...................................... [12.140]–[12.190] definition ..................... [9.70], [13.200], [13.490] fear of injury to child .... [2.50], [3.350], [6.290] foreseeability of psychiatric injury to . [6.320], [7.250], [7.350], [7.360], [9.260], [10.140] hearing bad news — see Communication-induced shock hospital giving wrong baby to ............ [11.610] identification of body of child ............... [6.270] imagined harm to child ............ [14.60], [14.70] medical negligence cases — see Medical negligence normal fortitude rule ................ [8.140], [8.300] perceiving accident involving child ...... [2.60], [4.50], [4.160] proximity requirement .......................... [10.140] relationship requirement . [9.50], [9.70]–[9.90], [9.130], [9.240], [9.290]–[9.310], [9.350], [13.300], [13.490] secondary victims, as — see Secondary victims sexually abused children, of — see Sexual abuse/assault subsequent care of primary victim ...................................... [12.140]–[12.190] sudden shock .......................................... [12.110] continuing effect of ......... [12.370]–[12.400] subsequent care of victim ...................................... [12.140]–[12.190] watching child die in hospital ............. [3.460], [3.720], [6.270], [10.120], [10.230] witnessing death of child ......... [3.780], [9.300]

Physical symptoms resulting from shock “bodily injury” ........................... [5.410]–[5.490] conversion disorder ................................. [5.180] heart attack .. [5.170], [8.310], [14.90], [14.100], [26.40] miscarriage .................................... [2.10], [5.170] peptic ulcer . [5.170], [5.410], [23.190], [23.240] psychiatric illness distinguished ............. [4.60] PTSD ................................. [5.60], [5.410]–[5.490] somatic damage ....................................... [5.170] stroke .......................................................... [3.180] Piper Alpha disaster ...... [24.70]–[24.120], [25.350] Police claims against ......................... [21.420]–[21.440] bad news, negligent communication of .......... [28.70], [28.80], [28.170], [28.250] error in accident report ... [2.140], [21.440], [28.70] failure to prevent suicide ...................................... [22.810]–[22.840] claims by — see Police claims common law duty of care .... [22.810]–[22.840] duty not to cause psychiatric injury ...................................... [21.420]–[21.440] immunity from ordinary law of negligence ...................................... [21.420], [21.430] informant, duty to ................................. [21.420] victims of crime, duty to ...................... [21.420] Police claims Civil Liability Act, under ........ [2.360], [2.460], [13.320]–[13.410] employer’s duty of care ............. [1.100], [3.40], [19.280]–[19.350], [19.380] bungled operation leading to death ...................................................... [19.390] criminal activity involved ............. [19.130]

1124

Tort Liability for Mental Harm

Police claims — cont sexual assault ................... [19.380], [20.250] work stress ...... [20.210], [20.240], [20.250], [20.510], [20.550], [20.580] Hillsborough Stadium disaster .............. [1.90], [1.100], [3.40], [3.160], [7.790], [12.240], [25.170], [25.180], [25.380]–[25.430] “lucky escape” .......................................... [14.50] post-traumatic stress disorder .............. [2.460], [3.170], [7.790], [12.240], [13.320], [19.210], [21.420] Civil Liability Act, under ...................................... [13.320]–[13.410] “lucky escape” ................................... [14.50] sudden shock rule .......................... [12.240] primary/secondary victim distinction .......................................... [3.160], [3.180] rescue cases ...... [1.100], [2.360], [2.460], [3.40], [25.20], [25.50], [25.170], [25.180], [25.260], [25.270], [25.380]–[25.430] sudden shock rule ................................. [12.240] Waterfall train crash ................. [2.360], [2.460], [13.320]–[13.410], [25.260], [25.270] work stress ............. [20.210], [20.240], [20.250], [20.510], [20.550], [20.580] Post-traumatic stress disorder (PTSD) .......................................... [5.210]–[5.310] Aboriginal “stolen generations” ........ [21.350], [21.360] acute ........................................................... [5.270] acute stress reaction/disorder distinguished ........................................................ [5.310] aetiological features ................................. [5.280] airline passenger claims ........... [5.410]–[5.490], [23.150], [23.190], [23.300], [23.320] assessment of damages ......................... [17.130] assessment procedure ............................. [5.300] bereavement reaction complicated by ...................................................... [11.280] biological markers ................................... [5.300] “bodily injury” ........................... [5.410]–[5.490] chronic ....................................................... [5.270] coexistence with other disorders .......... [5.300] common symptoms ................... [5.240]–[5.260] communication-induced shock ........... [11.280], [11.530], [11.540] comorbidity ............................................... [5.300] confusion with other disorders ............. [5.300] cortisol, reduced ....................................... [5.300] definition ................................................... [5.230] degree of impairment ............................. [5.290] delayed ...................................................... [5.270] delayed shock ......................................... [16.280] detection and diagnostic techniques .... [5.300] diagnostic criteria ...................... [5.230], [5.270] DSM-III ........................................ [5.210], [5.220] DSM-5 .............. [5.220], [5.230], [5.270], [5.300] emotional blunting .................................. [5.250] employer liability .. [19.120], [19.210], [19.400], [19.450] epidemiological approaches .................. [5.300] experience of trauma .............................. [5.230] expert evidence ........................................ [5.480]

extreme environmental condition, exposure to ........................................................ [5.240] fear of contracting disease ................... [29.610] fiancé/e ...................................................... [9.400] foreseeability ............................................. [7.430] guilt-induced ........................................... [26.110] ICD-10 ............................ [5.220], [5.230], [5.300] identification difficulties ........... [5.300], [5.350] identification of body, after .................. [10.350] intentional act causing .......... [30.100], [30.430] involuntary participation principle ... [26.110], [26.250] judicial recognition of ............................. [5.220] lawyer sued in relation to ...... [20.410], [21.30] limitation of actions .............. [16.270], [16.280] Maralinga radiation case ...................... [29.610] normal fortitude and ............................... [8.140] nursing home, claim against ............... [21.210] parent claim .............. [3.670], [10.360], [10.370] phasic features .......................................... [5.240] physical changes to brain ......... [5.420], [5.480] physical symptoms ....... [5.60], [5.410], [5.420], [5.480] police claims ................ [2.460], [3.170], [7.790], [19.210], [20.210], [21.430] Civil Liability Act, under ...................................... [13.320]–[13.410] employer’s duty of care ................. [19.210] “lucky escape” ................................... [14.50] sudden shock rule .......................... [12.240] work stress ....................... [20.210], [20.240] predisposition to psychiatric illness ..... [8.140] previous nomenclature ........................... [5.210] previous psychiatric problems .............. [5.230] prison officer ........................................... [20.190] property damage, resulting from ........ [27.50], [27.100] recognised/recognisable condition ........ [4.80], [4.100] recognition as diagnostic category ...... [5.210], [5.220] refugees in detention ............................ [21.480] rescuers .................... [25.130], [25.260], [25.450] secondary reaction to trauma ................ [5.180] secondary symptoms .............................. [5.270] sexual abuse victim ................. [6.240], [21.280] limitation of actions ........................ [16.270] soldiers ......... [5.210], [5.230], [19.450], [20.720] spouse claims ............................. [3.490], [3.500] subtypes ..................................................... [5.270] sudden shock rule . [12.180], [12.240], [12.450] symptoms ........................ [5.60], [5.240]–[5.270] tonic features ............................................ [5.240] tortfeasor as primary victim ............... [15.110], [15.160], [15.210], [15.260] unrecognised cases .................................. [5.300] Vietnam veteran ......................... [5.210], [8.140] vulnerability to ......................... [5.290], [19.450] women, risk of ......................................... [5.290] work stress ............. [20.190], [20.210], [20.240], [20.580], [20.720]

Index Pregnancy and childbirth defective product, birth defects from ...................................................... [21.180] extraordinarily sensitive victim .............. [8.40] foreseeability of plaintiff ............ [7.340], [8.90], [15.20] medical negligence — see Medical negligence miscarriage caused by nervous shock .. [2.10], [5.170] “pregnant fishwife” case ........... [2.70], [7.340], [8.40], [15.20], [15.130], [22.20], [24.80] premature birth caused by shock ......... [24.30] somatic damage ....................................... [5.170] stillborn child .. [2.70], [7.340], [8.40], [12.480], [22.180] thalidomide, child affected by ............ [12.380], [21.180] tortfeasor as primary victim .. [15.20], [15.130] Pre-impact emotional distress .................... [6.180] Presence at scene aftermath — see Aftermath direct perception — see Direct perception rule limitation on liability ...... [1.40], [2.50], [3.300] not realising relative is victim .............. [2.200], [13.500]–[13.550] reduction of importance ........................... [2.90] road accident .......... [13.210], [13.230]–[13.240], [13.500] Prima facie tort ............................................... [30.50] Primary victim contributory negligence ......... [16.70]–[16.140], [24.260] rescuer as ................. [24.150], [25.320], [25.370] secondary victim distinguished — see Secondary victims tortfeasor as — see Tortfeasor zone of danger, in — see Primary victim cases Primary victim cases Alcock ... [3.50], [3.60], [18.50], [18.60], [18.160], [24.50] armed forces ............................ [24.130]–[24.150] Australian law ........................ [24.130]–[24.180] Canadian law ......................................... [24.280] Civil Liability Acts ................. [24.160]–[24.170] claim by ....... [18.50], [24.10]–[24.290], [25.370] contractual claims .................................. [18.160] direct involvement in accident ............. [18.60], [24.60] direct victim recovery (US) .. [18.190], [18.200] English law ... [18.50], [18.60], [24.30]–[24.120], [24.180]–[24.290] extension of limitation period ............ [24.140], [24.150] fear for own safety ................... [18.50], [24.50], [24.80]–[24.170], [24.220] reasonableness ................. [24.100], [24.120] fear for safety of others ........... [18.50], [24.40], [24.230]

1125

foreseeability of psychiatric injury ........ [3.60], [3.140], [18.50], [18.60], [18.140]–[18.170], [24.40], [24.90], [24.180]–[24.290] foreseeable scope of physical injury, within ...................................................... [18.160] impact rule (US) ....................... [3.760], [18.180] involuntary participation distinguished ........................................................ [26.70] Lord Lloyd’s doctrine ............ [24.190]–[24.250] major accidents ...................................... [24.200] Maralinga case ....................................... [24.130] minor accidents ...................................... [24.200] near-miss cases ........... [24.10]–[24.40], [24.170] normal fortitude ........ [8.240], [8.250], [18.140], [18.170], [24.90] Page v Smith ...... [3.50]–[3.80], [18.60], [18.100], [18.140]–[18.170], [24.20], [24.180]–[24.290] participation . [18.60], [24.50], [24.80], [24.230], [24.240] Piper Alpha cases ..................... [24.70]–[24.120] pre-existing relationship ....................... [24.160] premature birth caused by shock ......... [24.30] presence at scene or aftermath ............ [24.150] primary/secondary victim distinction ........................................ [3.190], [18.190] proximity ................................. [24.250], [24.260] rescuer — see Rescuer cases road accidents ............. [18.60], [18.160], [24.60] Schneider v Eisovitch cases ....... [24.60], [24.210] tortious claims ........................................ [18.160] “two-party” cases .................................... [18.70] Voyager disaster ...................... [24.140], [24.150] work accident ........................................... [3.580] zone of danger, in .................... [24.10]–[24.290] Prison authorities breach of statutory duty ....................... [21.460] duty not to cause psychiatric injury ...................................... [21.450]–[21.480] false imprisonment claim ..................... [21.460] work stress claims by employees ...... [20.180], [20.190] Prison officers strip search of prison visitors .............. [30.100] work stress claims ................. [20.180], [20.190] Prisoners Aboriginal deaths in custody ............. [22.760], [22.770] claims against authorities ..... [21.450]–[21.480] escaped, victims harmed by ................ [21.470] false imprisonment claim ..................... [21.460] fear of exposure to AIDS ...... [29.440], [29.550] lawyer, claim against ............. [18.120]–[18.160] loss of liberty .......................... [18.150], [18.160] refugees in detention ............................ [21.480] release on licence ................................... [21.470] suicide ...................... [21.450], [22.760], [22.770]

1126

Tort Liability for Mental Harm

Privacy, invasion of ..... [30.100], [30.460], [30.710] Professional negligence banks ........................................ [21.150], [21.160] breach of contract .... [18.120], [18.130], [21.30] breach of duty of care ............................. [21.30] breach of fiduciary duty ......................... [21.40] doctors — see Medical negligence duty not to cause psychiatric harm .. [18.120], [21.30]–[21.160] foreseeability of psychiatric injury ...................................... [18.120]–[18.160] lawyers .................... [18.120]–[18.160], [20.410], [21.30]–[21.60] primary victim as plaintiff .............. [21.60] mental distress damages ........................ [6.130] pre-existing relationship ........ [18.120], [21.10], [22.40] psychiatrists ............................. [21.110]–[21.140] sudden shock rule ................................. [12.490] Professional relationships duty of care based on .......................... [18.120], [21.10]–[21.160] breach of — see Professional negligence intentional infliction of emotional distress ........................................................ [21.20] abuse of relationship ...... [30.210], [30.630] Property damage emotional distress damages .... [6.120], [6.160], [27.110] animals not entitled to ................... [27.110] intentional torts .......................... [6.90], [30.570] loss of property distinguished ........... [27.150], [27.160] psychiatric injury caused by .. [27.10]–[27.160] Australian law ...... [27.10], [27.50], [27.60], [27.150] bushfire ............................................... [27.50] Canadian law ....................... [27.70], [27.80] contaminated animal feed ............. [27.100] contaminated land ............................ [27.80] English law ........... [27.10]–[27.40], [27.140] gradual decay of house ................... [27.40] hearse damaged, coffin overturned ........................................................ [27.10] house fire ............................................ [27.20] nature of property .......................... [27.130] ownership of property ................... [27.120] pets, injury to ................................... [27.110] post-traumatic stress disorder ....... [27.50], [27.100] relationship between parties .......... [27.30], [27.60] Scottish law ...................................... [27.140] shock as consequential damage ..... [27.40] South African law ............................. [27.90] truck crash .......................................... [27.70] US law ............................... [27.100], [27.110] value of property ............................ [27.130] Proximity aftermath doctrine — see Aftermath

Australian law ............. [2.100], [2.120], [7.150], [7.180] Canadian law ........................................... [3.350] causal ........................... [3.350], [3.700], [10.130] childcare authorities, duty of .............. [21.260] circumstantial ............................. [3.700], [7.150] closeness .................................................... [7.160] contemporaneous perception ............. [10.420], [10.440] direct perception — see Direct perception rule duty of care based on ................ [2.200], [7.10], [7.150]–[7.190], [7.210], [7.280], [7.770] common law ............................ [7.10], [7.60] demise of ............................................ [7.170] essential component, whether .......... [7.10] foreseeability, added to ...... [7.260], [7.270] incremental approach ....................... [7.150] one of number of considerations ... [7.190] psychiatric injury cases ...... [7.260], [7.270] employer’s duty and ............. [19.300], [22.140] English law ...... [3.60], [3.120], [3.310], [3.320], [7.70], [7.180], [7.270] fear of contracting disease .. [29.100], [29.240], [29.340] flexible concept ........................................ [7.150] general doctrine ..................................... [11.230] Hong Kong law ........................................ [3.740] involuntary participation and ............. [26.260] Irish law .................................................... [3.670] medical negligence cases ....... [3.330], [22.360], [22.680] nearness ..................................................... [7.160] neighbour principle ................................. [7.150] New Zealand law .................................... [3.520] physical ......................... [3.320], [3.550], [3.700], [10.10]–[10.460] presence at accident scene .......... [1.40], [2.50], [2.90], [7.70], [9.240], [10.40] primary victim ....................... [24.250], [24.260] psychiatric injury cases ............. [7.260], [7.270] relationship .... [2.200], [3.300], [3.320], [3.710], [7.10], [7.150]–[7.170], [7.280], [9.210], [9.250], [25.80] remoteness and ........................................ [7.770] secondary victims ......... [2.140], [3.60], [3.120], [3.310], [3.520], [10.400] Singaporean law ........ [3.700], [3.710], [22.680] South African law .................................... [3.550] sudden shock and .................................... [12.40] temporal ....................... [3.300], [3.550], [3.660], [10.10]–[10.460] aftermath doctrine — see Aftermath test of ............................................ [7.150]–[7.170] time lapse ....... [3.300], [3.320], [3.330], [3.660], [10.120], [10.130], [10.310], [10.320], [10.400] uncertainty of meaning .......................... [7.160] US law ...................................... [10.420]–[10.440] zone of danger — see Zone of danger Psychiatric illness/disorder acute stress reaction/disorder ............... [5.310] adjustment disorder ................ [5.150], [29.520] aetiology ...................................... [5.170], [5.320]

Index Psychiatric illness/disorder — cont PTSD ................................................... [5.280] schizophrenia ..................................... [5.190] anxiety disorders .......... [4.30], [5.160], [5.180], [6.290], [10.160] autonomous categorical illnesses .......... [5.160] biological research ................................... [5.330] bipolar disorder ......................... [5.160], [5.200] categorical illness ..................................... [5.160] classification .............................................. [5.170] comorbidity ............................................... [5.300] conversion disorder ................................. [5.180] definition ..................................................... [5.40] depression ........ [3.400], [4.30], [4.140], [4.160], [5.160] dimensional disorder .............................. [5.160] disease/illness distinction ........................ [5.20] disorder ....................................................... [5.30] DSM-5 definition ......................... [5.40], [5.150] emotional distress, distinguished from .................... [1.160], [4.30], [4.50], [5.50] evidence of pre-disposition .................... [8.380] expectable response to stressor distinguished .......................................................... [5.40] functional neurological symptom disorder ........................................................ [5.180] gene-environment interaction ................ [5.330] genetically determined risk of .............. [5.330] hypochondria ........................................... [5.180] identification difficulties ........... [5.300], [5.350] illness, definition ........................................ [5.20] life event research ...................... [5.320], [5.330] mental disorder, definition ....................... [5.40] neurosis ....................................... [5.170], [8.330] normal/abnormal responses to trauma .......................................... [5.150], [5.160] obsessive-compulsive disorders ............ [5.180] phobias ...................................................... [5.180] post-traumatic stress disorder — see Post-traumatic stress disorder (PTSD) psychiatric disorder, definition ............... [5.40] psychoses ...................... [5.170], [5.190], [5.200] recognisable — see Recognisable/recognised psychiatric illness schizophrenia .. [5.160], [5.190], [5.200], [5.320] social readjustment scale ........................ [5.320] sociological research ................................ [5.320] syndrome ......................................... [5.30], [5.40] terminology ..................................... [5.20]–[5.60] traumatic neuroses .................................. [5.170] Psychiatric injury — see also Mental harm advances in understanding of psychology ........................................................ [2.130] apprehension of physical harm ............. [1.170] atypical response ..................................... [1.200] “bodily harm” ............... [4.110], [5.400]–[5.490] common law terminology ........................ [1.10] comparison with physical injury .......... [1.190] deliberate conduct, from .......................... [1.30] difficulty of litigation for person with . [1.210] difficulty of proving ................................ [1.200] distinguishing from physical injury .......................................... [5.360]–[5.510]

1127

arguments against ............... [5.370]–[5.390] “bodily injury” .................... [5.410]–[5.490] English law ........................................ [5.510] reasons for .............. [1.160], [1.170], [5.370] foreseeability — see Foreseeability grief and sorrow caused by ................ [4.120]–[4.160], [6.210] distinguished ........ [1.170], [1.180], [2.140], [4.30], [4.50], [6.210], [6.220], [16.280] “grievous mental injury” threshold, proposed ........................................................ [6.360] lasting nature of ....................................... [1.190] medical research ........................................ [5.20] physical harm with ..................... [1.170], [2.10] sudden shock rule ........... [12.350]–[12.360] proof of — see Recognisable/recognised psychiatric illness proposal to abolish recovery for ............. [1.80] proving existence of .................................. [1.70] psychiatric disorders — see Psychiatric illness/disorder pure psychiatric harm ................. [1.90], [1.170] rarity of ...................................................... [1.200] recognisable illness — see Recognisable/recognised psychiatric illness “scar on the mind” ...... [6.260]–[6.320], [6.380] separate tort, judicial statement as to .... [1.20] statutory term — see Mental harm terminology ............. [1.10], [4.20], [5.20]–[5.60] traditional arguments against recovery for .......................................... [1.140]–[1.190] treating same as physical injury ............. [1.70] use of term ...................................... [1.10], [4.20] Psychiatrists/psychologist claims against .......................... [21.110]–[21.140] PTSD — see Post-traumatic stress disorder (PTSD)

R Radio — see Television or radio Recognisable/recognised psychiatric illness Australian law .... [4.40]–[4.110], [6.10], [6.230] Canadian law ............................. [3.360], [3.410] categories of psychiatric illness — see Psychiatric illness/disorder cause of, materiality .................. [4.120]–[4.160] chronic fatigue syndrome ......... [3.50], [7.460], [18.60] Civil Liability Acts .................... [2.270], [2.460], [4.90]–[4.110], [6.110] consequential mental harm ............ [2.320], [2.330], [6.110] pre-2002 .............................................. [2.260] common law ................................... [4.30]–[4.70] compensable injury ....................... [1.70], [4.30] definition of psychiatric illness — see Psychiatric illness/disorder

1128

Tort Liability for Mental Harm

Recognisable/recognised psychiatric illness — cont dissatisfaction with limitation . [6.450], [6.460] DSM classifications, over-reliance on ... [6.460] emotional distress, distinguished from .................... [1.160], [4.30], [4.50], [5.50] English law ............................................... [3.250] “ordinary” shock/“psychiatric shock” distinction .................................... [6.250] expert psychiatric evidence ..................... [4.40] fear of contracting disease, caused by .......................................... [4.130], [29.30] grief and sorrow caused by ................ [4.120]–[4.160], [6.210] distinguished ........ [1.170], [1.180], [2.140], [4.30], [4.50], [6.210], [6.220], [11.290] guidelines for assessing .......................... [2.340] illness, definition ........................................ [5.20] level of damage .......................... [3.400], [3.410] limitation of actions and onset of ....... [16.270] lowering threshold ....................... [6.10]–[6.480] panel of experts ........................................ [2.340] proof of .......................................... [4.40], [6.210] recognised/recognisable distinction ............................................. [4.70]–[4.110] Civil Liability Acts .. [2.270], [4.90]–[4.110] medical developments, allowing for .......................................................... [4.80] statutory interpretation .................... [4.110] recovery for less than ................ [6.190]–[6.480] Australia ................. [6.200]–[6.240], [6.440] Canada ....... [3.340], [6.10], [6.260]–[6.410], [6.440], [6.480] emotional distress — see Emotional/mental distress England ................................. [6.250], [6.440] New Zealand ..................................... [6.420] Scotland .............................................. [6.430] United States .............. [1.200], [5.60], [6.10] rejection of criterion, support for ......... [6.460] requirement for .. [1.160], [4.40]–[4.60], [5.360], [6.10], [6.110], [6.170], [6.230] Scottish law ............................................... [3.600] Singaporean law ...................................... [3.700] terminology ......................... [4.20], [5.20]–[5.60] use of term .................................................. [4.20] work stress cases .................... [20.150], [20.160] Recreational activities potentially hazardous ........................... [16.210] statutory defence ..................................... [16.20] voluntary assumption of risk .............. [16.210] Refugees detention, mental harm suffered in .... [21.480] Refuges liability for psychiatric injury .............. [21.220] Relationship cases accidents involving strangers distinguished .......................................... [18.40], [21.20] adoption agency ..................................... [18.230]

breach of relationship ............ [18.110]–[18.170] child care centre ..................................... [18.230] direct victim doctrine (US) .................. [18.100], [18.190]–[18.250] duty of care ........ [2.170]–[2.200], [7.50], [7.70], [7.790], [18.40]–[18.260] carriers ................................................ [18.40] doctor — see Medical negligence employer — see Employer’s duty of care hotel-keeper ....................................... [18.40] lawyer — see Professional negligence service providers ............................... [21.10] employment relationship — see Employer’s duty of care English law .. [18.50], [18.60], [18.100]–[18.170] fear for safety of another ........................ [18.50] foreseeability of harm .. [2.180], [2.190], [7.50], [7.60], [7.280], [9.260], [18.60], [18.100], [18.120], [18.130] liability based on relationship ........................................ [18.40]–[18.260] massage therapist .................................. [18.170] medical negligence — see Medical negligence passenger on train ................................... [18.30] passive and unwilling witness .............. [18.60] pre-existing relationship ........................ [18.40], [18.70]–[18.260] professional .......... [18.120], [21.10], [22.40] secondary victims ............... [22.30], [22.40] professional relationships — see Professional relationships public utilities ........................................... [18.40] service providers ...................................... [21.10] US law ...................... [18.100], [18.180]–[18.250] wedding function centre ...................... [18.230] Relationship to defendant — see Relationship cases Relationship to victim “abnormal” tie .......................................... [9.370] Alcock case .......... [9.50], [9.90]–[9.110], [9.170], [9.190], [9.210], [9.250]–[9.470] Australian law ... [2.100], [2.120], [7.60], [9.20], [9.140] biological relationship ............................. [9.300] boyfriend ................................................... [9.200] bystander exception ....... [9.30], [9.440]–[9.510] case law ....................................... [9.130]–[9.210] categories of ...... [9.70], [9.140], [9.220], [9.350] children ..... [9.50], [9.70], [9.80], [9.90], [9.110], [9.130], [9.220], [9.240], [13.300], [13.490] Civil Liability Acts ...................... [2.350], [7.80], [9.230]–[9.240], [13.30], [13.50], [13.300], [13.310] close family member ........... [2.350], [7.80], [9.230]–[9.240], [13.300], [13.310], [13.440] fear of contracting disease cases . [29.660], [29.670] involuntary participation cases ... [26.130], [26.140]

Index Relationship to victim — cont list of eligible relationships ............ [3.260], [3.620], [9.430], [13.290] NSW .................................. [13.300], [13.310] rescuers ............................. [25.240], [25.250] SA ....................................................... [13.490] Tas ...................................... [13.450], [13.460] Vic ...................................................... [13.440] close family member .... [2.350], [7.80], [9.230], [13.300], [13.310], [13.440], [13.450] close friend .................. [9.200], [9.210], [13.310] close ties principle ........ [9.50], [9.220], [9.280], [9.350], [13.440], [18.50] possible reform .................... [9.410]–[9.430] common law principles .............. [9.40]–[9.220] cousin ......................................................... [9.130] de facto spouses .......... [9.180], [9.220], [13.30], [13.220] degrees of .................................................... [1.40] duty of care based on ... [2.170]–[2.200], [7.50], [7.70], [7.150]–[7.170], [7.790] English law ........ [2.90], [3.260], [3.310], [7.70], [9.80]–[9.110], [9.150], [9.170], [9.250]–[9.430], [13.440], [18.50] evidentiary difficulties ............................ [9.360] extension of range ..................................... [2.50] familial relationships ...... [9.50], [9.60], [9.130], [9.220] fiancé/e ........... [3.560], [9.190], [9.220], [9.270], [9.400] foreseeability and .......... [2.180], [2.190], [7.50], [7.60], [7.280], [9.110] foster children ............................ [9.220], [9.330] general principles ......................... [9.40]–[9.120] girlfriend ................................................... [9.200] grandparent ... [3.580], [9.130], [9.330], [9.430], [13.490] half-brother or half-sister ........ [9.170], [9.220], [9.390], [13.300] Hillsborough case ......... [3.30], [9.250]–[9.430], [18.50] importance of ............................................. [2.90] intimacy ............. [9.50], [9.280], [9.350], [9.370] Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ............. [13.30], [13.80]–[13.140] division between classes of relatives ...................................................... [13.100] family members ................ [13.80], [13.130] parent or spouse ............... [13.30], [13.120] list of eligible relationships ..... [3.260], [3.620], [9.430], [13.290] love and affection ....... [9.100], [9.280], [9.290], [9.310], [9.340], [9.360], [9.370], [9.410], [13.440] member of the family, definition ............ [9.70] non-relatives ......................... [9.440]–[9.510] NSW ......................................................... [11.620] parents ...... [9.50], [9.70], [9.80], [9.90], [9.130], [9.240], [9.260], [9.290]–[9.310], [9.350], [12.120], [13.300], [13.490] platonic friendships ................... [9.210], [9.220] presumption of intimacy ........................ [9.370]

1129

proximity ........ [2.200], [3.300], [3.320], [3.710], [7.10], [7.150]–[7.170], [9.210], [9.250], [25.80] nearness and closeness .................... [7.160] test of ..................................... [7.150]–[7.170] uncertainty of meaning .................... [7.160] rescuer ............. [9.60], [25.60], [25.70], [25.100], [25.230] Scottish law ................................. [3.620], [9.430] secondary victim cases .................. [9.10]–[9.30] siblings .. [9.70], [9.90], [9.140]–[9.170], [9.260], [9.270], [9.320], [9.330], [9.410], [13.300], [13.490] spouses ... [9.50], [9.80], [9.90], [9.130], [9.240], [9.260], [9.290], [9.310], [9.350] de facto ... [9.180], [9.220], [13.30], [13.220] step relationships ..................... [9.220], [13.300] uncle ................. [9.130], [9.220], [9.270], [9.330] US law ........................... [3.780], [9.120], [9.220] work colleagues .......... [9.60], [19.250]–[19.270] Remoteness ........................................ [7.600]–[7.800] Canadian law .............. [3.370], [3.390], [3.420], [3.430], [7.750], [7.800] common law test ..................................... [7.700] contributory negligence .......................... [16.40] duty of care and ......................... [7.690]–[7.800] fear of contracting disease ................... [29.240] foreseeability and ....................... [7.600]–[7.800] injury by shock .................................. [7.620] items of damage too remote ........... [7.630] kind of damage ..... [7.380], [7.390], [7.640] plaintiff ................................................ [7.380] range of probability .......................... [7.600] workplace injury ............................... [7.650] general principles ....................... [7.600]–[7.610] intentional act causing psychiatric harm .......................................... [30.40], [30.60] limitation on liability .................. [1.150], [2.10] negligence, element of ............... [7.600]–[7.800] psychiatric injury cases ............. [7.620]–[7.800] distinction between categories ...... [7.660], [7.670] duty of care rules ................ [7.690]–[7.800] foreseeability ........................ [7.600]–[7.680] irrational link ..................................... [7.680] psychiatric issues classified under ......... [7.30] statutory test ............................................. [7.700] Rescuer cases assessment of damages ......................... [17.150] attempt to prevent further harm ........ [25.110], [25.190] Australian law ............................ [25.60]–[25.90] Canadian law .......................... [25.100]–[25.130] care of injured distinguished ............... [25.210] Civil Liability Acts ................. [25.240]–[25.330] close relationship ............ [25.240], [25.280] witness to accident .......... [25.250]–[25.280] common law duty of care ..... [3.100], [13.100], [25.40], [25.60] contributory negligence ........................ [16.170] emergency workers ....... [3.40], [25.20], [25.50]

1130

Tort Liability for Mental Harm

Rescuer cases — cont employer’s duty of care ........... [19.20], [19.60], [19.80], [19.240], [19.290], [19.350] English law .................... [3.40], [3.100], [3.150], [25.10]–[25.150], [25.340]–[25.480] early cases ............................. [25.30]–[25.50] rescue principle ...... [3.40], [3.150], [3.620], [19.350], [25.10]–[25.150], [25.340]–[25.480] failure to arrive at accident .................. [25.200] fellow worker ............................. [25.50], [25.60] firefighters ................. [25.20], [25.440], [25.460] “firemen’s rule” (US) ................................ [3.40] foreseeability of plaintiff .......... [7.370], [25.30], [25.40], [25.50], [25.350] foreseeability of psychiatric harm ....... [25.60], [25.100], [25.120]–[25.140], [25.240] Hillsborough disaster ... [3.40], [3.150], [3.620], [19.350], [25.10], [25.170], [25.180], [25.370], [25.380]–[25.430] identification of bodies ......................... [25.210] large-scale disaster, role in ................... [25.210] nature of involvement .......................... [25.210] negligent infliction of emotional distress (US) ...................................................... [25.150] neighbour principle ................... [25.60], [25.80] non-relatives ................... [2.60], [2.70], [25.230] normal fortitude rule .............................. [8.120] police ... [1.100], [2.360], [2.460], [3.40], [3.620], [25.20], [25.50], [25.170], [25.180], [25.260], [25.270], [25.380]–[25.430] post-traumatic stress disorder ............ [25.130], [25.260], [25.450] primary/secondary victim distinction .......................... [3.150], [3.160], [25.320] professional rescuer doctrine .. [3.40], [25.390], [25.400], [25.430] proximity ................................................... [25.80] “pure” rescue cases ............................... [25.110] recovery distinguished from rescue .. [25.120], [25.220] relationship between parties ..... [9.60], [25.60], [25.70], [25.100], [25.230] Civil Liability Acts .......... [25.240], [25.280] rescue principle ............. [3.40], [3.150], [3.620], [19.350], [25.10]–[25.150] English law ...................... [25.100]–[25.150], [25.340]–[25.480] negligence law ................................... [25.20] rescuers as primary victims . [25.320], [25.370] Scottish law ............................................... [3.620] searchers .................................................. [25.220] tortfeasor as primary victim ................ [15.170] US law ...................................... [25.140]–[25.150] Waterfall train crash ................. [2.360], [2.460], [13.320]–[13.410], [25.260], [25.270] who is a rescuer ..................... [25.160]–[25.230] witness at scene ..................... [25.250], [25.350] victim killed, injured or put in peril ...................................... [25.250]–[25.280] work accidents ............ [19.20], [19.60], [19.80], [19.240], [19.290], [19.350], [25.50], [25.60], [25.450]

Road accidents “accident” including ............. [13.490], [13.510] causal connection ................................... [13.250] contributory negligence .......................... [16.60] driver of vehicle ..... [13.220], [13.230], [13.580] drunk driver, passenger with ............. [16.190], [16.210] illegality defence .................................... [16.220] negligence by primary victim . [15.30]–[15.70], [15.100]–[15.310], [16.60] no-fault compensation schemes .......... [13.250] parent, spouse or child of person killed ...................................... [13.200]–[13.230] de facto spouse ................................ [13.220] parent, definition ............................ [13.200] spouse, definition ............................ [13.220] presence at scene ... [13.210], [13.230]–[13.240], [13.500] not realising relative is victim ...................................... [13.500]–[13.550] primary victim direct involvement ............................ [24.60] tortfeasor as ........................ [15.10]–[15.320] tortious claim by ............................. [18.160] relationship requirement ...... [13.200]–[13.240] secondary victim ...................................... [22.20] serious injury .......................................... [13.250] sibling ...................... [13.210], [13.230], [13.500] statutory restrictions .............. [13.190]–[13.250] common law compared ................. [13.240] NSW .................................. [13.220]–[13.240] NT ...................................................... [13.250] SA ....................................... [13.200], [13.210] Tas ...................................................... [13.250] Vic ...................................................... [13.250] teacher, claim by .................................... [13.240] tortfeasor as primary victim .. [15.10]–[15.320] voluntary assumption of risk ............. [16.190], [16.210]

S Schizophrenia ................................... [5.160], [5.190] aetiological features ................................. [5.190] bipolar disorder compared .................... [5.200] epidemiological approaches .................. [5.320] foreseeability ............................... [7.660], [15.70] precipitated or aggravated ................... [13.230] rescuer case ............................................... [25.60] sudden shock rule ................................. [12.260] thin skull rule ........................................... [8.330] Schools bullying, failure to prevent . [21.400], [21.410], [22.780] death of child, liability for ................... [22.780] duty to children with special needs ... [21.390] liability for mental harm ...... [21.390]–[21.410] sexual assault, failure to prevent ........ [22.780] work stress claim by teacher .............. [20.600], [20.620], [20.700]

Index Scottish law ......................... [3.530], [3.560]–[3.630] challenges to Coultas decision ... [2.30], [3.560] codification of duty ................................. [3.590] conservative approach .............. [3.530], [3.570] employer’s duty of care ........... [3.570], [3.610], [19.230], [19.360] fear of contracting disease ................... [29.550] following English law ............... [3.530], [3.560] involuntary participation ...... [26.270]–[26.290] Law Commission report ........... [3.590]–[3.630] medical negligence ................ [22.540]–[22.560] mental harm ............................................. [3.600] primary/secondary victim distinction . [3.610] recognisable psychiatric illness ............. [3.600] recovery for less than recognisable psychiatric illness ............................................ [6.430] relationship requirement .......... [3.620], [9.430] rescuers ...................................................... [3.620] secondary victims .................................... [3.620] South Africa compared ........................... [3.530] sudden shock rule ................................. [12.290] work stress .............................. [20.690]–[20.710] Second edition of book ................................ [1.100] developments since ................................. [1.110] jurisdictional focus .................................. [1.120] Secondary victims .......................... [22.10]–[22.840] Aboriginal deaths in custody ............. [22.760], [22.770] additional rules applying to .................... [3.60] aftermath doctrine — see Aftermath anxiety for tortfeasor’s position ............ [14.30] Canadian law ........................................... [3.340] chain of causation .................... [14.90], [14.100] contractual claims by ............................ [18.160] defective products ................................. [22.790] different causes of harm .......... [14.10]–[14.110] direct perception of accident — see Direct perception rule distinguished from primary victims ............................................ [3.60]–[3.230] Australian law rejecting ................... [3.230] English law .............. [3.60]–[3.230], [3.270], [3.310], [18.60], [19.280], [24.50] fear for the future cases .. [3.220], [29.190], [29.200] Hillsborough case ... [3.90]–[3.160], [18.60], [19.280], [22.20], [24.50] involuntary participation ........................ [26.70]–[26.100], [26.160] Irish law .............................................. [3.680] law reform recommendations ......... [3.270] medical negligence cases — see Medical negligence New Zealand law ............................. [3.520] parents of abused children .............. [3.210] police claims ........................ [3.160], [3.180] presence in danger zone .................. [3.190] Scottish law ........................................ [3.610] workplace accidents ........... [3.170], [3.580] duty of care to .......................................... [2.150] independent of primary claim ....... [3.690]

1131

employer’s duty to ............... [19.250]–[19.320], [22.50]–[22.140] English law ....... [3.60]–[3.230], [3.260], [3.310], [3.340], [3.520], [7.70] fixed list of relationships ................. [3.260] law reform recommendations ........ [3.260], [3.270] primary/secondary victim distinction ............................................ [3.60]–[3.220] fear of consequences of accident .......... [14.30] fear of contracting disease .... [3.220], [29.190], [29.200] foreseeability of injury to ............ [3.60]–[3.80], [3.120], [3.140], [3.520], [18.160] imagined harm to third party . [14.60]–[14.80] intentional act causing psychiatric harm ...................... [30.250]–[30.330], [30.640] Irish law .................................................... [3.660] “lucky escape” cases ................. [14.40], [14.50] medical negligence — see Medical negligence mental distress ........................................... [6.60] mistaken belief that third party harmed ........................................................ [14.20] no pre-existing relationship with defendant ........................................................ [14.10] normal fortitude — see Normal fortitude rule parents as medical negligence — see Medical negligence relationship requirement — see Relationship to victim school, negligence claim against .. [22.780] sexual abuse — see Sexual abuse/assault parties strangers ....................................... [22.30] passive and unwilling witness .............. [18.60] pre-existing relationship .......... [22.30], [22.40], [22.780] “pregnant fishwife” case ........... [2.70], [7.340], [8.40], [15.20], [15.130], [22.20] presence at scene — see Direct perception rule proximity .......... [2.140], [3.60], [3.120], [3.310], [3.520], [22.140] realisation of what may have happened .......................................... [14.40], [14.50] recognition of liability to .......................... [1.40] relationship to defendant — see Relationship cases relationship to victim — see Relationship to victim road accident ............................................ [22.20] Scottish law ............................................... [3.620] Singaporean law ...................................... [3.690] suicide ...................... [14.110], [22.760], [22.770] “three-party” cases .................................. [18.70] tortious claims by .................................. [18.160] Wilkinson v Downton principle ...................................... [30.250]–[30.330] work accidents ......................................... [22.30] Sexual abuse/assault assessment of damages ......................... [17.260] battery .......................................................... [6.80]

1132

Tort Liability for Mental Harm

Sexual abuse/assault — cont childcare authority’s liability ...................................... [21.240]–[21.320] church’s liability ..................................... [21.210] compensation for mental injury (NZ) . [3.470], [3.480] erroneous identification of perpetrator ...................................... [21.110], [21.290] foster child, by ......... [3.210], [18.110], [21.300], [22.800], [26.230] foster parent, by ..................... [21.250], [21.260] government authorities’ liability ...................... [21.240]–[21.320], [21.470] intentional act causing mental harm . [30.260], [30.340] parent suspected of ............................... [21.310] parents’ claims where child abused childcare authority, against ...................................... [21.280]–[21.300] childcare centre, against ................ [18.230] communication-induced shock .... [11.180], [11.560], [11.570] local authority, against .................. [18.110], [21.280]–[21.300], [22.800] primary/secondary victim distinction ........................................ [3.210], [21.280] prison authority, against ................ [21.470] school, against ................................. [22.780] secondary victims .......................... [18.230], [21.280]–[21.300], [22.780], [22.800] police claim ............................. [19.380], [20.250] post-traumatic stress disorder ............... [6.240] prison authority’s liability .................... [21.470] psychiatrist, claim against .................... [21.110] school’s liability ..................................... [22.780] sudden shock rule exception ............... [12.330] Shell-shock ........................................................ [1.10] Shock theory ................................................... [7.410] Siblings communication-induced shock ............ [11.240] relationship requirement ............. [9.70], [9.90], [9.140]–[9.170], [9.240], [9.260], [9.270], [9.320], [9.330] Civil Liability Acts ........... [9.240], [13.300], [13.490] road accident claims ............. [13.210], [13.230], [13.500] Singaporean law .............................. [3.690]–[3.720] Anns test of duty of care ........................ [7.180] factual foreseeability ............................... [3.700] involuntary participation ..................... [26.340] medical negligence ................ [22.660]–[22.710] principles on liability for psychiatric harm ........................................................ [3.700] proximity ................................... [3.700], [22.680] recognisable psychiatric illness ............. [3.700] secondary victims, duty to .................... [3.690] sudden shock rule ... [3.720], [12.500], [22.700]

Social media Psychiatric injury via ............................ [11.910] Social readjustment scale ............................ [5.320] Somatic nervous system ................................. [5.90] South African law ............................ [3.530]–[3.550] challenges to Coultas decision ... [2.30], [3.540] communication-induced shock ........... [11.440], [11.600], [11.670] direct perception rule ........... [11.200], [11.440], [11.600] foreseeability ............................................. [3.550] “hearsay victims” .... [3.550], [10.330], [12.470] medical negligence ................ [22.720]–[22.740] property damage ..................................... [27.90] rejection of traditional limitations ....... [1.100], [3.540] Scotland compared .................................. [3.530] sudden shock rule ... [12.20], [12.470], [12.550] work stress .............................................. [20.760] Spouse aftermath doctrine ................................. [10.100] de facto spouses .......... [9.180], [9.220], [13.30], [13.220] doctor’s duty to ...................... [18.200], [18.210] foreseeability of psychiatric injury to . [9.260], [18.210] grief from death of .................... [6.210], [17.50] hearing news of accident — see Communication-induced shock heart attack from witnessing accident . [14.90] loss of consortium ................... [13.70], [16.170] post-traumatic stress disorder . [3.490], [3.500] relationship requirement . [9.50], [9.80], [9.90], [9.240], [9.260], [9.290], [9.350] subsequent care of primary victim .... [12.170], [12.180] witnessing death of .... [3.490], [3.500], [15.40], [17.50], [17.60] wrongful death action ............................ [14.90] Statutory provisions background ............................................... [13.10] Canada (Ontario) ................................... [13.630] Civil Liability Acts — see Civil Liability Acts Coultas decision, nullifying effect of .... [13.10], [13.30] extension of liability ................ [13.30]–[13.180] Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ............. [13.10], [13.30]–[13.180] continued effect of provisions ........ [13.40] de facto spouses included .............. [13.30], [13.220] fear of injury to self .......................... [13.70] foreseeability, statutory formula .... [13.50] proof of breach of duty ................... [13.60] relatives who can claim .................. [13.30], [13.80]–[13.140] road accidents .................................. [13.230] secondary victim cases .................... [13.70]

Index Statutory provisions — cont work accidents ................................ [13.270] Law Reform (Miscellaneous Provisions) Act 1955 (ACT) .............. [13.30], [13.40], [13.180] Law Reform (Miscellaneous Provisions) Act (NT) .......................... [13.30], [13.40], [13.180] Louisiana ................................. [13.570]–[13.620] Ontario ..................................................... [13.630] pre-2002 restrictions ..... [2.260], [7.80], [13.30], [13.190]–[13.270] road accidents .................. [13.190]–[13.250] work accidents ................. [13.260]–[13.280] restriction of liability Civil Liability Acts — see Civil Liability Acts pre-2002 ................... [2.260], [7.80], [13.30], [13.190]–[13.270] road accidents ......................... [13.190]–[13.250] Tame v NSW after ..................................... [13.40] US (Louisiana) ........................ [13.570]–[13.620] work accidents .......... [13.260]–[13.280]“Stolen generations” [21.330]–[21.380] Sudden shock rule abolition of ....... [1.100], [2.150], [7.60], [7.280], [12.410]–[12.550] Australia ............ [12.20], [12.410]–[12.460], [12.550], [13.160], [18.50], [22.50] Canada .............................................. [12.490] Singapore .......................................... [12.500] South Africa ....... [12.20], [12.470], [12.550] United States .................................... [12.480] Australian law ... [2.100], [2.120], [4.20], [7.50], [7.60], [7.280], [12.20] Civil Liability Acts ............ [12.20], [12.460] common law .................... [12.410]–[12.450] origins .................................... [12.30]–[12.80] rejection of rule ............... [12.410]–[12.460], [12.550], [13.160], [18.50], [22.50] Canadian law .......... [12.110], [12.180], [12.490] child sexual abuse exception ............... [12.330] Civil Liability Acts ................... [12.20], [12.460] continuing effect of initial shock subsequent care of victim ...................................... [12.140]–[12.190] victim’s condition contributing to ...................................... [12.370]–[12.400] definition of shock ..................... [12.30], [12.90] employee claims ..... [12.270]–[12.290], [19.160] English law ...... [3.250], [3.310], [4.20], [12.20], [12.90], [12.100], [12.310], [12.500]–[12.550] exceptional categories of action ...................................... [12.270]–[12.350] child sexual abuse ........................... [12.330] employee claims .............. [12.270]–[12.290] fear of contracting disease ...................................... [12.300]–[12.320] exclusion of worthy claims .. [12.200]–[12.260] fear of contracting disease ... [12.300]–[12.320], [29.40], [29.100]–[29.120], [29.500], [29.650] gradual worsening of health ............... [12.360]

1133

instantaneous rather than progressive effect ........................................................ [12.60] Irish law .................. [12.120], [12.180], [12.290] Jaensch v Coffey ............. [2.120], [12.30], [12.40], [12.80], [12.90], [12.260], [12.280], [12.410], [12.430], [12.490] subsequent care cases ... [12.140], [12.150], [12.170], [12.190] limitation on liability .................... [1.40], [7.50] medical negligence cases ....... [12.50], [12.110], [12.120], [12.480], [12.500], [22.270], [22.320], [22.700] childbirth ......... [12.480], [12.500], [12.510], [22.230], [22.400] mental harm combined with physical harm ...................................... [12.350]–[12.360] New Zealand .......................................... [12.490] origins in Australia .................... [12.30]–[12.80] overview ...................................... [12.10]–[12.20] proximity and ........................................... [12.40] qualifications ........................... [12.270]–[12.400] Scottish law ............................................. [12.290] Singaporean law ...... [3.720], [12.500], [22.700] South African law .... [12.20], [12.470], [12.550] subsequent care cases ............ [12.140]–[12.190] undesirable consequences .... [12.200]–[12.260] US law ....................... [12.70], [12.130], [12.480] Suicide Aboriginal deaths in custody ............. [22.760], [22.770] attempt, causing psychiatric harm to another ...................................... [30.140], [30.550] claim by witness to .. [14.110], [17.90], [21.450] employer’s duty of care ........ [19.380], [20.690] police failing to prevent ........ [22.810]–[22.840] prisoner witnessing ............................... [21.450] psychiatric injury resulting in ............ [14.110], [17.90] Survivor guilt ................................... [7.650], [7.670] Susceptibility to psychiatric illness — see Normal fortitude rule

T Talem qualem — see Thin skull rule Tame v NSW aftermath doctrine ................................... [10.20] Australian law since ... [1.100], [1.110], [1.160], [1.180], [2.140]–[2.190], [2.300], [2.470], [6.230], [6.470], [8.30] bad news, negligent communication of .......................... [28.70], [28.80], [28.250] communication-induced shock ............ [2.140], [8.30], [11.370]–[11.400] direct perception rule rejected ........... [11.370]–[11.400], [18.50], [22.50] employer’s duty to parents ...... [22.50]–[22.80]

1134

Tort Liability for Mental Harm

Tame v NSW — cont foreseeability ........ [7.50], [7.60], [7.80], [7.280], [7.390], [8.160], [18.50] “insurance crisis” and ............... [2.150], [8.210] legislative changes since ......................... [13.40] normal fortitude rule rejected ................ [8.30], [8.150]–[8.220], [18.50], [22.50] relationship requirement .......... [9.20], [13.300] secondary victims ...................... [22.50]–[22.80] South African law compared ................. [3.550] statutory statement of common law after ........................................ [13.40], [13.290] sudden shock rule rejected .. [12.420]–[12.450], [13.160], [18.50], [22.50] Teachers bullying, failure to prevent .. [21.400], [21.410] duty to children with special needs ... [21.390] liability for mental harm ...... [21.390]–[21.410] road accident claim ............................... [13.240] work stress .............. [20.600], [20.620], [20.700] Telegraph messages negligent transmission of ......... [6.160], [18.40] Telephone communication-induced shock ............ [3.550], [3.660], [3.670], [3.700], [11.130], [11.300], [11.320], [11.520], [11.640]–[11.690] injury solely from ............................ [11.680] location of plaintiff .......... [11.680], [11.690] relationship created by call .................... [22.60] Television or radio bad news conveyed by ........................... [28.30] communication-induced shock .............. [3.30], [10.220], [11.700]–[11.900] Canadian case .................................. [11.900] Hillsborough case ............ [11.710]–[11.890] live transmissions ............ [11.710]–[11.870] novus actus interveniens ............... [11.830] recordings .......................... [11.870]–[11.900] US cases ............................ [11.820], [11.880] Thin skull rule ................................. [8.280]–[8.380] reduction of damages ........................... [17.160] Tortfeasor mental harm from anxiety for ............... [14.30] primary victim, as .................... [15.10]–[15.320] Australian cases ................. [15.10]–[15.140] basis for excluding liability ............. [15.80] Canadian cases ............................... [15.190], [15.230]–[15.260] contributory negligence — see Contributory negligence duty not to cause psychiatric injury ........................ [15.10], [15.110], [16.110] English cases .... [15.140]–[15.240], [15.320] foreseeability of psychiatric injury to others . [15.10], [15.20], [15.40], [15.60], [15.100], [15.140]–[15.170], [15.260]

guilt-induced mental injury ........... [15.60], [15.120] negligent driving ................ [15.30]–[15.70], [15.100]–[15.310] no pre-existing relationship .......... [15.140] policy reasons for denying liability ...................................................... [15.100] “pregnant fishwife” case . [15.20], [15.130] PTSD cases ...... [15.110], [15.160], [15.210], [15.260] self-inflicted injury ............. [15.20], [15.70], [15.150], [15.180], [15.200], [15.220] US cases ............................ [15.270]–[15.320] Torts aggravated damages .................... [6.70]–[6.140] battery ........... [6.80], [30.50], [30.100], [30.150], [30.290] defamation ................................................ [6.100] false imprisonment .................. [21.460], [30.50] intentional ......... [1.30], [6.90], [6.100], [30.440] psychiatric harm, causing — see Intentional act causing psychiatric harm limitation of actions .............................. [16.230] negligence — see Negligence nominate torts ............................................ [1.30] nuisance ....................................................... [6.90] tortfeasor as primary victim — see Tortfeasor trespass ........................................................ [6.90] Traditional arguments against recovery courts having to contend with .............. [1.140] diagnostic uncertainty ............. [1.150], [1.170], [1.190] disincentive to rehabilitation ... [1.160], [1.170] effect of liberalisation .............................. [1.220] false claims .......... [1.150], [1.160], [2.20], [6.50] flood of litigation .......... [1.150], [1.180], [2.20], [6.50] increasing class of persons who can recover ........................................................ [1.170] indeterminate liability ............................. [1.160] lack of precedent ...................................... [1.150] mere mental distress, application to ...... [6.50] rejection of ......... [1.100], [1.180], [2.30], [2.120] remoteness of damage ................ [1.150], [2.10] unreasonable burden on defendants ... [1.160], [1.170] Trespass mental distress damages .......................... [6.90]

U United States law ............................. [3.760]–[3.790] aftermath doctrine ... [3.790], [10.420]–[10.440] “bodily injury” ......................................... [5.420] bystander recovery ..... [3.780], [3.790], [9.220], [18.220], [18.240] close ties .................................................... [9.220] communication-induced shock ........... [11.550], [11.680], [11.690], [11.820]

Index United States law — cont contemporaneous perception ............. [10.420], [10.440] contributory negligence ........... [16.30], [16.90], [16.100], [16.170] differences between States ..................... [3.760] direct perception rule ............................. [3.780], [10.420]–[10.440], [11.550] direct victim doctrine ........... [18.190]–[18.250], [22.640] emotional distress negligent infliction of ..... [15.270]–[15.320] property damage ............... [6.160], [27.110] recovery for ......................... [3.770], [3.780], [6.150]–[6.180], [12.130], [13.580] employer’s duty of care ........................ [19.470] fear of contracting disease .... [29.50], [29.300], [29.680]–[29.750] fear of harm to self or another .............. [3.770] “firemen’s rule” .......................................... [3.40] foreseeability ............................... [3.780], [3.790] impact rule ................................ [3.760], [18.180] intentional infliction of emotional distress ......... [6.160], [18.40], [30.600]–[30.650], [30.710] involuntary participation ..................... [26.360] lower threshold ........................................ [6.470] medical negligence ................ [22.630]–[22.640] normal fortitude rule ................................ [8.70] pre-impact emotional distress ............... [6.180] proximity ................................. [10.420]–[10.440] pure mental injury ................................... [5.420] recovery for less than psychiatric illness ................ [1.200], [6.10], [6.150]–[6.180] relationship cases ... [18.100], [18.180]–[18.240] relationship to victim .. [3.780], [9.120], [9.220] rescuer cases ............................ [25.140]–[25.150] statutory provisions, Louisiana ...................................... [13.570]–[13.620] sudden shock rule ... [12.70], [12.130], [12.480] tortfeasor as primary victim ...................................... [15.270]–[15.320] traditional arguments against recovery ........................................................ [1.150] wrongful death action ............................ [14.90] zone of danger . [1.40], [2.40], [3.770], [18.180]

V Victimisation employer’s duty to protect against ... [20.250], [20.540], [20.720], [20.730] work stress cases ... [20.160], [20.250], [20.360], [20.400], [20.510], [20.570] Victorian Railways Commissioners v Coultas Australian law .................. [1.150], [2.10]–[2.30] challenges to .... [2.30], [3.340], [3.440], [3.640], [24.10] contributory negligence .......................... [16.70] duty of care ............................................... [7.730] legislation to nullify effect of ... [13.10], [13.30] near accident ............................................. [24.10]

1135

passenger claim distinguished .............. [18.30] Wilkinson v Downton and ....... [30.40], [30.370], [30.410], [30.420], [30.440] zone of danger, presence in ................... [24.10] Voluntary assumption of risk defence to negligence claim .................. [16.10], [16.190]–[16.210] difficulty of establishing ....................... [16.190] drunk driver, passenger with ............. [16.190], [16.210] employer–employee cases .... [16.190], [16.200] potentially hazardous pastimes .......... [16.210] prerequisites of plea .............................. [16.190] road users ................................................ [16.200] sport ......................................... [16.190], [16.210] Volunteer defence .......................................... [16.20]

W Warsaw Convention — see Air travel Wilkinson v Downton — see Intentional act causing psychiatric harm Work accidents bystander witnessing .............................. [9.490] common law claims .............................. [13.270] statutes limiting liability ...................................... [13.260]–[13.280] duty to workmates .................................. [3.100] employer’s duty of care — see Employer’s duty of care involuntarily causing another’s death or injury ............................ [19.20], [26.100] involuntary participation .................... [19.270], [26.10]–[26.60], [26.90], [26.100] Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ......................... [13.270], [13.280] non-relatives, recovery by ............ [2.60], [2.70] primary/secondary victim distinction .......................................... [3.170], [3.580] relationship requirement and ................. [9.60], [19.250]–[19.270] remoteness of damage ............................ [7.650] rescuer, employee as .. [19.20], [19.60], [19.80], [19.240], [19.290], [19.350], [25.50], [25.60], [25.450] secondary victims .................................... [22.30] statutory restrictions .............. [13.260]–[13.280] NSW .................................. [13.270], [13.280] NT ...................................................... [13.260] Vic ...................................................... [13.260] sudden shock rule .................. [12.270]–[12.290] thin skull rule ........................................... [8.330] witnessing bystander ............................................ [9.490] death or injury of another .............. [19.10], [19.250]–[19.270] employer’s duty of care — see Employer’s duty of care

1136

Tort Liability for Mental Harm

Work accidents — cont foreseeability of psychiatric injury .......................................... [19.60]–[19.80] Work-related diseases — see Fear of contracting disease Work stress ambulance officers ................. [20.480], [20.580] assumptions about employee .............. [20.630] Australian law ........... [20.30], [20.50]–[20.100], [20.160]–[20.230], [20.260]–[20.560], [20.770]–[20.850] current approach ............ [20.370]–[20.560], [20.770] early cases ........................... [20.50]–[20.100] English law compared .... [20.770]–[20.830] restrictions ........................ [20.260]–[20.360] trends ................................. [20.770]–[20.830] breach of contract terms ....................... [20.390] breach of duty ........................ [20.520]–[20.550] bullying .... [20.360], [20.400], [20.570], [20.720] employer’s duty to protect against ...................................... [20.720], [20.730] failure to protect against ............... [20.540] non-compliance with policy on .... [20.540] Canadian law ......................................... [20.740] causation .................................. [20.140], [20.560] complaint made, whether ... [20.600], [20.620], [20.800] contractual obligations ......... [19.200], [20.110], [20.300], [20.320]–[20.360], [20.440], [20.510], [20.810], [20.820] counselling failure to provide ............ [20.240], [20.550] provision of ...................................... [20.680] cumulative effects .................... [18.70], [19.190] different categories of case ... [20.570]–[20.590] difficulty of establishing ......... [20.30], [20.490] doctor ....................................... [20.110], [20.810] early cases ................................. [20.50]–[20.250] employer’s duty of care ....................... [19.150], [19.190]–[19.210], [20.60], [20.220], [20.380]–[20.430] breach of ........................... [20.520]–[20.550] community standards .................... [20.450] content of .......................... [20.430]–[20.510] contract terms and ........... [19.200], [20.20], [20.110], [20.300], [20.320]–[20.360], [20.440], [20.510], [20.810], [20.820] foreseeability and ............ [20.430]–[20.510] general duty — see Employer’s duty of care harassment or victimisation, to protect against ....... [20.250], [20.540], [20.720], [20.730] industry standards .......................... [20.450] intervening where signs of deterioration ...................................................... [20.500] non-delegable .................................. [20.380] not to cause psychiatric damage ... [20.90], [20.140], [20.210], [20.290], [20.380] safe system of work .......... [20.20], [20.60], [20.290], [20.380]

employer’s vicarious liability .............. [20.400] English law ............................. [20.110]–[20.150], [20.240]–[20.250], [20.600]–[20.680], [20.770]–[20.850] Australian law compared ...................................... [20.770]–[20.830] early cases ......................... [20.110]–[20.150] leading cases .... [20.600]–[20.680], [20.780] trends ................................. [20.770]–[20.830] existing relationship between parties .. [18.70] first awards of damages for ... [20.90], [20.110] foreseeability of psychiatric harm ......................... [20.60]–[20.80], [20.140], [20.270]–[20.290], [20.430]–[20.510], [20.600] content of employer’s duty and ...................................... [20.430]–[20.510] English law ....................... [20.600]–[20.680] normal fortitude ............. [20.170], [20.310], [20.460] threshold question .......................... [20.290] harassment ............. [20.160], [20.250], [20.360], [20.400], [20.570], [20.720] employer’s duty to protect against ...................................... [20.720], [20.730] failure to protect against .............. [20.250], [20.540] hostile environment ................................. [20.50] hours of work ........ [19.190], [19.200], [20.110], [20.200], [20.800] ill treatment by manager ...... [20.160], [20.570] inadequate training or assistance ....... [20.200] Irish law ................................... [20.720]–[20.730] New Zealand law .................... [3.460], [20.750] newspaper photographer ..................... [20.580] normal fortitude rule ........... [20.170], [20.310], [20.460] overview ...................................... [20.10]–[20.40] police officers ......... [20.210], [20.240], [20.250], [20.510], [20.550], [20.580] post-traumatic stress disorder ............ [20.190], [20.210], [20.240], [20.580], [20.720] prison officers ......................... [20.180], [20.190] recognisable psychiatric illness ........... [20.150] return to work after breakdown ......... [20.120] Scottish law ............................. [20.690]–[20.710] South African law .................................. [20.760] standard of care ..................... [20.140], [20.610] sudden shock rule excluded ............... [12.270], [12.290] suicide ...................................................... [20.690] teachers .................... [20.600], [20.620], [20.700] traumatic situations ............... [20.580], [20.590] unusual stresses ....................................... [20.50] victimisation .......... [20.160], [20.250], [20.360], [20.400], [20.510], [20.570] employer’s duty to protect against ...................................... [20.720], [20.730] failure to protect against .............. [20.250], [20.540] non-compliance with policy on .... [20.540] vulnerability, employer’s knowledge of ...................................... [20.470], [20.600] confidential medical information . [20.650]

Index Work stress — cont no previous history ........................ [20.670] workload .. [19.190], [20.20], [20.130], [20.200], [20.260], [20.270], [20.570], [20.590] contractual duty ............. [19.200], [20.300], [20.320]–[20.360]

Z Zone of danger fear of contracting disease ... [29.400], [29.520]

1137

fear of injury ............................................. [3.770] limits of liability ............. [1.40], [2.40], [18.180] New Zealand law .................................... [3.520] plaintiff in .................................... [1.40], [18.180] rejection of requirement ..................... [2.40] plaintiff outside .............. [2.50], [3.150], [7.410] primary victim in — see Primary victim cases primary/secondary victim distinction . [3.190] US law . [1.40], [2.40], [3.770], [9.220], [10.420]