LAWS1114 Lecture 3

Week 3: Psychiatric Harm 2

Feedback on Research and Problem-Solving Exercise

  • Students seemed to have difficulty working out the keywords and legal concepts so we had to give them direction with identifying relevant terms
  • Most groups identified the terms negligence and liability but very few identified ‘obvious risk’ and ‘dangerous recreational activity’.
  • One student stated that they only search on the facts of the case as they know lecturers base the exercises on real cases so they start their research by identifying the case first
  • Their actual skills in searching the legal databases were very good with most groups identifying relevant cases
  • Most of the groups looking specifically at the Australian Torts loose-leaf service were able to find the relevant section12-235 ‘Recreational activities’ and ‘dangerous recreational activities’ and from this identify the Jaber case
  • Some groups, although they found the relevant section, did need to be directed to the case reference but this could have been due to the time constraints
    • It was a large piece of text and the case details were at the bottom of the page
  • The students worked effectively in their groups and the feedback they then presented to the other groups was good. They gave clear explanations and demonstrations of what they found useful and not so useful
  • The exercise based on the circumstances in Jaber v Rockdale City Council. Although the circumstances of this decision occurred in NSW, the decision is relevant in QLD because the equivalent provisions of the CLA are very similar to those in NSW in relation to this exercise.
  • Two main legal issues raised in the exercise:
    • Whether for purposes of any ‘duty to warn’ on the part of the local city council, the relevant risk in the particular circumstances of the exercise was an ‘obvious risk’ under ss13 and 15(1) CLA
    • Whether diving off the wharf in the circumstances of the exercise constituted a ‘dangerous recreational activity’ for the purposes of ss 17 to 19 CLA
  • Obvious risk – Under s15(1), there is no duty to warn of an obvious risk under the CLA. Consequently, the council would argue that the risk was an obvious risk so that there was no duty to warn of any risk. If there is no duty to warn then the council cannot be liable in negligence
  • However, if the risk is not an obvious risk under s13, then arguably the council could still owe a duty to warn of risks associated with diving off the wharf. This would be the argument for John
  • On the basis of the reasoning in cases referred to above, the risk was an obvious risk and therefore the council did not owe John a duty to warn of the risk. This alone would be sufficient to result in the local city council not being liable in negligence
  • Dangerous recreational activity
  • The alternative legal issue concerns dangerous recreational activity. As stated above, the risk of diving off the wharf was an obvious risk. Consequently, was the diving also a dangerous recreational activity?
  • If the diving was also a dangerous recreational activity then under s19 the council is again not liable. On the basis of the reasoning in the above cases, the circumstances of John diving off the wharf would amount to a dangerous recreational activity and again the council would not be liable.

Recognisable Psychiatric Illness in England

  • In England, there is a distinction made between primary versus secondary victims
    • Not made in Australia – that the Law is different in respect to a primary as opposed to a secondary victim
  • Primary: plaintiff is a victim and a participant in the incident
  • Secondary: plaintiff has witnessed an injury to someone else
  • Alcock v Chief Constable of South Yorkshire Police (Lord Oliver): ‘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’.
    • Included rescuers in the category of primary victims (narrowed in Page v Smith)
  • White v Chief Constable of South Yorkshire Police: majority concluded that the plaintiff police officers were neither primary nor secondary victims and as such, they were unsuccessful in their claim for liability for recognisable psychiatric illness.
  • Secondary Victims
    • Policy concerns
      • Acute grief vs psychiatric harm
      • Litigation as an unconscious disincentive to rehabilitation
      • Expansion of the class of potential plaintiffs
        • Lord Steyn (in White) refers to a ‘unconscious effect of the prospect of compensation on potential claimants’
        • Limiting factors to reduce liability
        • We must be careful not to greatly increase the class of person who may recover damages
      • Disproportionate burden of liability
  • Control mechanisms
    • The plaintiff must have close ties of love and affection with the victim but should be established by evidence
    • The plaintiff must have been present at the accident or its immediate aftermath
    • The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else

Analysis of Case Authority

  • For example, according to Lord Hoffmann in White at page 511:
  • ‘It seems to me that in this area of the law, the search for the search for principle was called off in Alcock … No one can pretend that the existing law, which your Lordships have to accept, is founded on principle.’
  • ‘I agree with Jane Stapleton’s remark that “once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer…”’
  • ‘Consequently your Lordships are 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.’
  • According to Lord Steyn in White at page 500: ‘My Lords, the law on the recovery of compensation for pure psychiatric harm is a patchwork quilt of distinctions which are difficult to justify.’
  • Lord Hoffmann openly recognised that the law concerning negligently inflicted psychiatric illness had fallen into an ‘unsatisfactory internal state’, lacked any grounding in legal principle, and required that their Lordships make an attempt to ‘preserve the general perception of the law as a system of rules which is fair between one citizen and another’.
  • Lord Steyn openly recognised that the law in the area was ‘difficult to justify’.

Alcock v Chief Constable of South Yorkshire Police

  • Lord Keith (p. 397-398) referred to Lord Wilberforce and the control factors:
  • Proximity of the plaintiff to the accident in time and space
    • For this purpose, the accident is to be taken to include its immediate aftermath
    • Shock
    • Direct perception (sight or hearing) of the event on or of its immediate aftermath
    • Said that the law should not compensate shock brought about by communication by a third party
    • Brian Harrison and Robert Alcock: ‘in neither of these cases was there any evidence of particularly close ties of love or affection with the brothers or brother-in-law’
    • Mr and Mrs Copoc (son) and Alexandra Penk (fiancé) – a close relationship may be assumed (merely from the type of relationship
    • The viewing of the television scenes did not create the necessary degree of proximity
  • Lord Ackner (s. 399): to succeed in the present appeals the plaintiffs seek to extend the boundaries of the cause of action
  • [I’m sorry. I fell asleep for a few minutes here.]
  • Cardozo J in Wagner v International Railway Co: ‘Danger invites rescue …’
  • McLoughlin v O’Brian: the immediate aftermath extended to a time somewhat over an hour after the accident and to th hospital in which the victims were waiting to be attended to. (mother visited children at the hospital, where they were in the same condition as they would have been had the mother found them at the scene of the accident)
  • In Hinchy’s opinion, Lord Wilberforce’s three limiting factors from McLoughlin v O’Brian were incorrectly applied as strict control mechanisms in Alcock. It is important to note that Lord Wilberforce, himself, concluded that in the particular circumstances of McLoughlin v O’Brian, the case was one which fell squarely within the boundaries set by the three limiting factors. It is also important to note that the concluding paragraph of the judgment, his Lordship referred to the limiting facts as ‘indications, imperfectly sketched’, and that these indications had ‘to be applied with common sense to individual situations in their entirety’. This statement by Lord Wilberforce indicates clearly that his Lordship did not intend the three limiting factors, as imperfectly sketched indications, to take on a future role in the House of Lords as control mechanisms to be applied strictly, irrespective of the particular circumstances of the case.

White v Chief Constable of South Yorkshire Police

  • NB: The rescue details are relevant to the assignment
  • Lord Browne-Wilkinson agreed with Lord Steyn
  • Lord Griffiths dissented on the rescue issue
  • Issues: Could the police recover either as employees and/or could they recover as rescuers?
  • p. 464 para d), Lord Griffiths raises a policy issue and said:
    • If the police, as employees, are allowed to recover and the spectators in Alcock cannot, then this would not be fair or an acceptable state of the law
    • Noted that the police were trained to deal with such information
  • In Alcock, Lord Oliver included a rescuer as a primary victim. That was not taken up in Page v Smith and the majority in White agreed that a rescuer was not a primary victim.
    • If a rescuer is not a primary victim, then the three control mechanisms must apply (and it is for this reason that the police in White failed
  • Lord Steyn (commencing at 491)
    • At bottom of p. 496, Lord Steyn states that the Alcock case was the controlling decision
    • At 500, he has the heading: ‘Thus far and no further’
    • ‘It must be left to the Parliament to undertake the task of radical law reform.’
  • Lord Hoffman (commencing at 500)
    • At bottom of p. 503 and first half of p. 504, he refers to the notions of corrective and distributive justice
      • Corrective justice: the law should have some internal intelligibility and if we have a P and D in Court, it is all about that P and that D
      • Distributive justice: consideration of external factors (more policy-driven)
    • At bottom of p. 504, says too late to go back on the control mechanisms
    • at 510 para f), Lord Hoffman says ‘an extension of the law to cover the police officers but not the spectators would offend against the ordinary person’s notion of distributive justice’
    • at 511: ‘Fairness demands the claims by the police be rejected’

The Ipp Report

  • Section 9.13: ‘The fundamental proposition which Tame/Annetts seems to establish is that reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care. It also establishes, however, that a duty of care to avoid mental harm will be owed to the plaintiff only if it was foreseeable that a person of ‘normal fortitude’ might suffer mental harm in the circumstances of the case if care was not taken. This test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. It only requires it to be foreseeable that a person of normal fortitude in the plaintiff’s position might suffer mental harm. In this sense, being a person of normal fortitude is not a precondition of being owed a duty of care.’
    • This is what it felt was the concluding decision in Tame/Annetts
  • Section 9.14: There are factors but none are preconditions
  • Section 9.19: Report says, in practical terms, the question is whether liability for pure mental harm should be subject to preconditions of the sort that existed before Tame/Annetts was decided.
  • Section 9.24: The authors of the Ipp Report don’t believe that there should be a list of the type of relationships that could recover damages
  • Section 9.27: If the government do want a list, they have suggested a list
  • Recommendation 33: Panel of experts
  • Recommendation 34: The principles that should be embodied in the proposed Act

Civil Liability Act 2002 (NSW)

  • s 30 – Limitation on recovery for pure mental harm arising from shock
  • s 32(1) – A person does not owe a duty of care to another person 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.
  • Does Part 3 Mental Harm implement Chapter 9 of the Ipp Report? Differences?
  • Attempt to give statutory effect to the decisions in Tame and Annetts? Is this possible?
  • Four different statutory approaches in Australia + the common law approach in Queensland and the Northern Territory.
  • Impact on future development of the law in Australia?

Conclusions and issues for thought

  • Relevance of limiting factors in determining ‘reasonableness’ in reasonable foreseeability?
  • Policy concerns regarding ‘floodgates’ and ‘defendant autonomy’?
  • Relevance of the retirement of Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ from the High Court?
  • Future statutory influence in the development of the common law and psychiatric harm?
  • Future common law influence in statutory interpretation with respect to psychiatric harm?
  • Potential fragmentation of the law governing psychiatric harm in Australia?