Balkin and Davis pp. 236-248

A Summary of the B+D Reading for Week 2.

Pure mental harm or 'nervous shock'

  • When P suffers physical injury for which D is liable, and P also suffers mental harm as a result, D is also liable for the mental harm. However, what about cases of pure mental harm where there is no physical injury?

What is pure mental harm?

  • Only 'recognisable psychiatric injury' is compensable. Sometimes referred to as 'nervous shock' but this term is declining.
  • No compensation for mere grief or sorrow, or ordinary emotional distress at the loss of a loved one.
  • In QLD, WA and NT, common law approach applies: pure mental harm is compensable for recognisable psychiatric injury. In other states and territories, under statute, harm must be recognised: according to B&D this suggests that only injuries recognised at the time of the enactment are compensable.

Development of the law

  • Courts previously cautious because:
    • Difficult to quantify loss
    • Risk of fictitious claims and 'opening the floodgates'
    • Difficulty of proving causation
    • Legal developments are likely to lag behind medical developments
  • Jaensch v Coffey only case of pure mental harm to reach the High Court in last two decades of 1900s
  • UK distinguishes between primary and secondary victims. Primary victims are those exposed to risk of physical injury, who do not suffer physical harm but do suffer recognised mental injury. Secondary victims suffer mental injury as a result of the suffering of others, but are not themselves exposed to physical harm.
    • Liability for primary victims not restricted any more than ordinary physical injury.
    • Liability for secondary victims restricted by 'control devices': must be close and loving relationship between secondary and primary victim, and must be close proximity in time and space between harm to the primary victim and the mental harm of the secondary victim.
  • This distinction is not actually part of the law of Australia.
  • 2002: High Court handed down judgment in 'Tame v NSW' and 'Annetts v Australian Stations'. Sought to clarify the law. Legislation passed soon after in most jurisdictions (not inc. QLD) with the same aim, though may also have sought to limit liability.

The basis of liability

  • Legislation: all jurisdictions EXCEPT Queensland and NT.
    • Duty of care arises only if defendant ought to have foreseen that a person of normal fortitude might suffer recognised psychiatric illness if reasonable care were not taken. Defendant may also be liable if they knew or ought to have known that a particular plaintiff was especially vulnerable.
  • Position at common law, in QLD and NT, is more complex
    • Prior to Tame, it was assumed that duty of care was to be determined with regard to what a normal person would suffer, because reasonable foreseeability is an objective standard.
    • However, majority in Tame and Annetts suggests that foreseeability of injury to a person of normal fortitude was not necessary: only foreseeability in the sense of 'not far-fetched or fanciful'.
      • Gummow and Kirby JJ suggest that this may in some circumstances include risk of injury to persons with less than 'normal fortitude'.

Factors to be taken into account:

  • Not a 'bright-line' test, but an assessment of various factors.

Whether the psychiatric illness was the result of a sudden shock

  • This was recognised as a necessary condition by Brennan J in Jaensch v Coffey. However, in NSW v Seedsman and later cases, it has been held that this is not a necessary condition, just one factor to consider (at least with regard to 'primary victims' suffering mental harm because of employer's conduct).
  • As a result, it is possible that claims for mental illness brought on by (eg.) the loss of a loved one would now be upheld.

Direct perception of distressing events

  • Prior to Tame, it was necessary that a 'secondary victim' directly witness the incident or its aftermath in order to claim. As of Tame, however, the HC has endorsed a more progressive view. Direct perception is just one factor to take into account, and hearing about an incident from someone else can be sufficient.
  • However, in NSW, SA and Tas, per legislation, a 'secondary victim' can only claim if they a) directly witnessed the incident, or b) are a close family member of a victim. This would bar people from recovering who have, in the past, been able to.

Relationship between primary and secondary victim

  • Is a factor, but generally not regarded as an absolute limit. Work-mates and rescuers have recovered, bystanders would find it difficult to recover. This was not addressed in Tame or Annetts because it was not necessary.
  • In NSW, SA, Vic and Tas, legislation would prevent recovery unless there is a close family relationship. Compare to NT and ACT, where legislation provides that close family members and domestic partners can automatically recover, with no other control factors applied.

Relationship between plaintiff and defendant

  • Legislation (excl. Qld and NT) requires courts to take into account whether there was a pre-existing relationship. Relevant when a) there is an employment relationship or something similar, and b) when the mental harm is caused by witnessing injury to D themself.

a) There is an employment relationship or something similar

  • McHugh J in Tame based his decision on the fact that Annetts's employer had a duty to take reasonable care for the boy's safety, which extended to the harm that could be suffered by his parents if such care was not taken.

-In White in the House of Lords it was held that duty to guard against employee's mental harm arises only when there is also risk of physical harm. This view has been rejected in Australia.

b) When the mental harm is caused by witnessing injury to D themself

  • It was suggested by Deane J in Jaensch v Coffey that a plaintiff could not recover for psychiatric harm as a result of the defendant's own injury or death. This has been applied in England, but has been rejected in Australia by the NSWCA in FAI v Lucre.

Extent of mental harm

  • 'Eggshell skull rule': If breach of duty has caused some damage of a foreseeable type, D is liable for all damage flowing from that, even if the latter damage is not reasonably foreseeable. High Court in Tame confirmed that this applies to mental harm in the same way.
  • This rule is concerned with compensation, not liability: it does not establish a duty; rather, once a duty has been established, it applies in determining the proper amount of compensation.

Contributory negligence of a primary victim

  • In NSW only, per legislation: If damages recoverable by a primary victim would be reduced for CN, damages recoverable for psychiatric harm by a secondary victim as a result of witnessing the incident should be reduced by the same proportion. Essentially because D should only be liable to the extent that it was their fault.

Damage to property

  • While most cases relate to witnessing physical injury or risk of injury to other people, there is no principle restricting recovery to these cases. A person may, for example, be able to recover for psychiatric harm resulting from the distress of watching their house burn down.