Tame/Annetts (Background Information)

This is some background information to the Tame/Annetts case. It mainly looks at the material facts and issues. See the other page for a summary of the judgments. Most of the information is paraphased from 'Appealing to the Future - Michael Kirby and his Legacy' (2009) edited by Ian Freckelton and Hugh Selby.

New Australian common law principles in the area of pure mental harm were declared by the High Court in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (Tame/Annetts). The two cases were heard together.

In Tame v New South Wales, Mrs Tame sustained physical injuries in a motor vehicle collision for which she was compensated. However, in the course of investigation into that accident, a police officer mistakenly recorded a blood-alcohol level of 0.14 for both drivers (Mrs Tame’s alcohol reading was actually nil). Although the mistake was subsequently corrected, and no-one had acted on the erroneous information, Mrs Tame sued the police (the state of NSW) for pure nervous shock. She claimed that she developed a psychotic depressive illness – not as a result of shock from the collision, but from shock sustained when her solicitor told her of the incorrect entry. The HCA determined that the police officer, and hence NSW, did not owe Mrs Tame a duty to take reasonable care to avoid causing her injury of the kind she suffered.

In Annetts v Australian Stations Pty Ltd, parents of the sixteen-year-old, James Annetts, claimed damages for negligently occasioned mental harm. Prior to James’ employment at the Australian Stations Pty Ltd as a jackaroo, they telephoned his employer who assured them that their son would be safe, and work under constant supervision. James, however, was sent to work alone as a caretaker at a remote location 100km away from the station. After seven weeks, a police officer notified his parents that James and another teenager, Simon, were missing. Mr Annetts collapsed on hearing the news. Subsequently, the Coroner found that James died of dehydration after their four-wheel-drive became bogged in the Gibson Desert (Simon died of a rifle wound).

  • Only parts of the judicial opinions relating to foreseeability and the nature and function of the normal fortitude requirement fell within Tame’s ratio decidendi.
  • In Annetts, given the pre-existing relationship between the parties, the issue of liability was even narrower – namely, the relationship between verbal communications and shock, or a series of shocks, which give rise to psychiatric illness.
  • The HCA determined by a majority that ordinary principles of negligence should govern compensation for this kind of harm. Hence three prerequisites discussed in Coates v Government Insurance Officer (NSW) were changed to merely factors that are relevant when the court examines the issue of the causal responsibility of the defendant’s wrongful conduct for the claimant’s psychiatric injury.
  • Gummow and Kirby JJ decided that the controversial requirement, which made the recovery of damages condition on proof that a person of “normal fortitude” would have suffered pure psychiatric injury as a result of the defendant’s conduct, was not a “free-standing criterion of liability”, but a consideration to be factored into the court’s assessment” at the stage of breach, of the reasonable foreseeability of the risk of psychiatric harm. (at 380 [189])