LAWS1114 Lecture 2

Week 2: Psychiatric Harm 1

Typical Situations

  • Plaintiff (P) involved in accident but suffers only mental harm (ie. no physical injury)
  • P not involved in accident but witnesses or otherwise learns of another being negligently injured or placed in danger (P then suffers mental harm)
  • P suffers mental harm as a consequence of ‘excessive’ pressure in the workplace

Policy Concerns

  • Fear of ‘imaginary’ or ‘fabricated’ claims
  • Difficulties of proof
  • Lack of medical understanding regarding aetiology (ie. cause)
  • Psychiatric harm is simply less serious
  • Compensation neurosis
  • Floodgates argument

The Queensland context

Civil Liability Act 2003 (Qld)

  • Does not have a section dealing with psychiatric harm

Subsection 7(1): ‘This Act does not create or confer any cause of civil action for the recovery of damages.’

Subsection 7(5): ‘This Act is not a codification of the law relating to civil claims for damages for harm.’

A duty of care for psychiatric harm in the Queensland context is therefore determined at common law (compare other Australian jurisdictions)

Schedule 2 of the Civil Liability Act 2003 (Qld)

  • Harm means harm of any kind, including the following: (a) personal injury
  • Personal injury includes – (c) psychological or psychiatric injury

Queensland versus the other Australian States

  • Whether or not a ‘duty of care’ is owed is the principal issue in determining whether there is liability for recognisable psychiatric illness.
  • Under the CLA (Qld), for the purposes of determining liability for recognisable psychiatric illness, whether or not a duty of care is owed is determined at common law.
  • In other Australian States, statutory provisions of the particular CLA (or equivalent) are relevant in determining whether a duty of care is owed for the purposes of liability for mental harm.

‘Recognisable Psychiatric Illness’

  • For a duty of care to be owed at common law, the plaintiff must suffer a ‘recognisable psychiatric illness’
  • Lord Denning in Hinz v Berry: ‘ … no damages are awarded for grief or sorrow caused by a person’s death … Damages are, however, recoverable for … any recognisable psychiatric illness caused by the breach of duty …’
  • Windeyer in Mount Isa Mines v Pusey: ‘Sorrow does not sound in damages.’

Mount Isa Mines v Pusey

Mount Isa Mines: Defendant Employer
Pusey: Employee (Engineer)

One day, two electricians tested some equipment. One of them did not follow proper procedure. This electrician created an electric arc that resulted in critical burns to the electricians.

Pusey came to help. He seemed fine for awhile but after a few weeks, Pusey became depressed and ended up with a form of psychiatric illness.

Reasonable Foreseeability

  • Reasonable foreseeability of psychiatric harm is the doctrinal basis for imposing a duty of care (at common law).
  • Not just a matter of factual predictability, also involves value judgments.
  • Importance of ‘reasonableness’ in determining reasonable foreseeability.
  • Determination of reasonableness at the duty stage must be in the context of all of the circumstances.
  • Proof of ‘neighbourhood’?
  • Role of limiting devices in determining ‘reasonableness’?

Limiting devices (control mechanisms)

  • A ‘recognisable psychiatric illness’ is a requirement at common law (compare other jurisdictions eg. s 31 CLA 2002 (NSW) – ‘recognised psychiatric illness’)
  • ‘Recognisable psychiatric illness’ v. ‘Recognised psychiatric illness’ - former seems more flexible (can be recognised as a psychiatric illness in the future)
  • Sufficiently close relationship between plaintiff and victim? Plaintiff and defendant?
  • Direct perception or immediate aftermath? - In the past, one could not recover unless one directly perceived the incident of its immediate aftermath
  • Sudden shock? Once thought that one could not be harmed psychiatrically over time – had to be shocked
  • Normal fortitude? Not particularly susceptible to psychiatric illness

Jaensch v Coffey (1984) 155 CLR 549

Material Facts

The victim (Mr Coffey) was a motor cycle police officer. One day, he was involved in a motor vehicle accident with a car. He was critically injured (it was the other driver’s fault). Mr Coffey was taken to hospital and his wife was notified.

Mrs Coffey saw her husband in a very bad state. She saw him after the operation and was told to go home. Early the next morning, she was phoned, was advised that Mr Coffey was in a critical condition and was told that she should come back to the hospital. Mr Coffey survived but Mrs Coffey developed a psychiatric illness.

  • Direct perception or immediate aftermath – according to Deane J at pages 207-8
  • NB: The other members of the High Court in Jaensch v Coffey did not specifically require the necessity of ‘sudden shock’

Uncertainty following Jaensch v Coffey

  • Uncertainty arose in intermediate appellate courts in Australia in the years following the 1984 High Court decision in Jaensch v Coffey.
  • Should recovery only be possible where the plaintiff is a person of normal fortitude?
  • Was ‘sudden shock’ an essential requirement before recovery was possible?
  • Could a plaintiff recover in circumstances other than ‘direct perception’ or ‘immediate aftermath’?
  • Was there a requirement of some relationship between the plaintiff and the accident victim?
  • Relationship between plaintiff and defendant?

Tame v NSW; Annetts v Australian Stations Pty Ltd

  • The High Court considered the issues of ‘relationship’, ‘normal fortitude’, ‘sudden shock’ and ‘direct perception/immediate aftermath’ in Tame and Annetts (two separate appeals heard and decided together)
  • These cases were determined at common law. Therefore, the reasoning in the judgments are common law reasoning.
  • Tame: no third person (victim) involved – the plaintiff alleged that she suffered psychiatric because of the defendant’s negligence (ie. the psychiatric illness was no the consequence of injury or death to a third person)
  • Annetts: a third person was involved (ie. the plaintiff’s alleged psychiatric illness as a consequence of the death of their son (the third person). Note: Gifford v Strang Patrick Stevedoring Pty Ltd also involved a third person type situation.
  • Did the decisions in Tame and Annetts resolve the uncertainty concerning ‘relationship’, ‘normal fortitude’, ‘sudden shock’ and ‘direct perception/immediate aftermath’?

Tame and Annetts

Material Facts

Tame v NSW: Mrs Tame was involved in a motor vehicle accident. As a normal procedure, both drivers were breathalysed. Mrs Tame had a reading of nil while the other driver had a reading of 0.14. The police officer mistakenly reported 0.14 for both the drunken driver and Mrs Tame (a clerical error).

Annetts v Australian Stations Pty Ltd: The victim was a 16 yr-old boy. His parents contacted Australian Stations to check the circumstances of the son’s employment. The parents sought assurances from the employer regarding where the son would work and live. Australian Stations gave assurances that the son would be safe and would be supervised, and would only work at one station. The son commenced work and was then sent to an outlying property alone. The son became lost and perished.

When the police phoned the father that the son was missing, the father collapsed. Eventually, the corpse was found. During the period of the search, the parents were kept informed. Both parents suffered psychiatric harm.

  • Tame: No duty of care owed (no dissenting judges)
  • Annetts: Duty of care owed (no dissenting judges)
  • Importance of ‘reasonableness’
  • Conclusions regarding the limiting devices such as sudden shock etc.
  • The relevance of these decisions in Queensland in the future
  • The relevance of these decisions in the other States in the future

Analysis of Judgments

Gleeson CJ

  • [8] Essential concept = reasonableness;
  • [9]-[12] Lord Atkin’s neighbour principle in Donoghue v Stevenson
  • [14] ‘… reasonablensss, which is at the heart of the law of negligence. Reasonableness is judged in light of the current community standards.’
  • [18] Agrees with Gummow and Kirby JJ that liability is not restricted to psychiatric injury caused by sudden shock and direct perception/immediate aftermath.
  • Tame – [29] Normal fortitude is not a requirement; it was not reasonable to require the police officer to have the mental health of the plaintiff in contemplation when he recorded the results of the blood tests – no duty of care.
  • Annetts – [32] two critical matter (1) the relationship between the parties; (2) the reasonable foreseeability of the kind of injury suffered.
  • [33] In view of the relationship of the parties, was it reasonable to require that the defendant should have in contemplation the danger of psychiatric illness to the plaintiffs?
  • In the context of the assurances asked for and given
  • Yes – duty of care owed

Gaudron J

  • [54] Applied neighbour principle to Annetts
  • [59] – [62] rejected sudden shock, direct perception/immediate aftermath and normal fortitude as requirements but normal fortitude could be a factor to take into account.
  • [63] Tame – not reasonably foreseeable therefore no duty of care owed.
  • [65] Annetts – Applied the neighbour principle to conclude a duty of care was owed.

McHugh J

  • [109] – [115] Normal fortitude test should be maintained because it is linked to the notion of reasonableness.
  • [113] ‘To repudiate the normal fortitude test is to repudiate the touchstone of the common law doctrine of negligence – reasonable conduct
  • Tame – The plaintiff’s illness was not reasonably foreseeable, therefore, no duty of care owed.
  • Annetts [139] – [146] Emphasised the importance of the pre-existing relationship giving rise to a duty of care being owed.

Gummow and Kirby JJ

  • [185] Emphasised the importance of reasonableness of conduct.
  • [186] – [191] Rejection of sudden shock, direct perception/immediate aftermath and normal fortitude as necessary requirements for duty of care.
  • [189] normal fortitude could be a factor to take into account at the breach stage.
  • [201] ‘However, the concept of ‘normal fortitude’ should not distract 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 it was not far-fetched or fanciful’’
  • [233] Tame – The plaintiff’s reaction was not reasonably foreseeable, therefore, no duty of care owed.
  • [240] Annetts - A duty of care was owed because the plaintiffs had no way of self-protecting (ie. they were vulnerable and the defendant exercised control over the circumstances.)

Hayne J

  • [272] His Honour took a different approach suggesting that sudden shock, direct perception/immediate aftermath and normal fortitude could all be relevant to the issue of causation.
  • Tame – no duty; Annetts – duty owed.
  • NB: [303] and [304] are important

Callinan J

  • Concluded that sudden shock, direct perception and normal fortitude were all necessary; His Honour, however, still concluded that no duty was owed in Tame but a duty was owed in Annetts.
  • Arguably, Callinan J’s conclusion in Annetts is questionable in view of the fact that His Honour retained sudden shock and direct perception as necessary. Why is this so? Didn’t really directly perceive the incident… and it’s unclear re: shock

Question: Does the above analysis of the judgments clarify the common law position in Australia following Jaensch v Coffey?

  • Lots of dicta comments about direct perception and normal fortitude
  • When it came down to it, the judges mainly dealt with ‘reasonable foreseeability within the specific circumstances’

Gifford v Strang Patrick Stevedoring Pty Ltd

Material Facts

The victim was the father of the three plaintiffs. The father was an employee of Strang Patrick Stevedoring. He worked at Darling Harbour in Sydney and was killed one day by a large forklift.

There was no contention in regard to whether a duty of care was owed to the father. The three children sued for psychiatric harm and the issue, therefore, was whether a duty of care was owed to the children. The children were notified of their father’s death later on in the DOD. At the time, they were aged 19, 17 and 14. It was determined that a duty of care was owed and the case was sent back down to the District Court to determine whether they had suffered a recognisable psychiatric illness. It was found that there was a recognisable psychiatric illness. The defendant appealed and this appeal was not allowed.

Analysis of Judgments

  • Found that a duty of care was owed (no dissenting judges)

Gleeson J refers to neighbour principle - Placed great emphasis on reasonableness but within the context of the relationships and employment

[8] – Issue and implicit reference to neighbour principle
[12] – Children as a class with reference to reasonableness

McHugh J [51] ‘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?’

[53] – Reasoning for why the employer owed a DOC to the children
[86] – Neighbour principle by Kirby and Gummow JJ
[87] – In the context, how do you determine when it is reasonable to find a DOC was owed? In the context of an employer/employee relationship it would appear to be when the defendant is in ‘control’ (refer to Caltex case) and the Plaintiff is consequently vulnerable
[101] – Hayne J's reasoning for why a DOC is owed to the children (with reference to the pre-existing relationships)
[103] – Further explanation in regards to the employer ‘controlling’ the matters and bound to take reasonable care
[118] – Callinan J’s nice little summary of psychiatric harm which is an extract from Tame.

Gummow and Kirby JJ frame the neighbour principle in the context of the relationship between the parties and employment - Refer to Annetts in terms of vulnerability and control

Callinan J says the answer is 42… as well as the following:

  • s151 does not confer a cause of action, just as it does not exclude the application of s4
  • Nevertheless, s4 was not intended to curtail the development of the common law.

Does Gifford merely reinforce the reasoning in Tame and Annetts?

Somewhat. There does seem to be some consistency that limiting devices such as sudden shock etc are not a set requirement. However, there is still uncertainty in regards to ‘normal fortitude’. Only McHugh and Callinan JJ found it to be an indispensible element of a cause of action of nervous shock. The other members of the court thought that it could be of significance on the issue of foreseeability.

Gifford has relevance in Queensland and NT as it was decided on common law but has limited relevance in other jurisdictions where CLA provisions have taken over.