Tame v NSW; Annetts v Australian Stations Pty Ltd

Citation: (2002) 211 CLR 317

Tame v NSW: Police officer mistakenly recorded a woman's blood alcohol level; she became distressed about this and suffered mental illness. She was particularly predisposed to this.

Annetts v Australian Stations: 16 year old boy died in the course of employment. Parents suffered psychiatric harm, sued employer.

Gleeson CJ

[9] Reference to Lord Atkin in Donoghue. Existence of duty depends on whether it is reasonable that D should have certain persons in contemplation.
[16] There may not be a duty to people who are overly susceptible, because it would not be reasonable to require people to have them in contemplation and take care to prevent harm.
[17]-[18] 'Sudden shock' and 'direct perception' are not necessary conditions for liability, though they may be relevant.
Tame
[26]-[27] Police officer could not have a duty to prevent distress to Mrs Tame in filling out the report, as that would be inconsistent with his duty to honestly report his findings.
[29] It would not be reasonable to require the police officer to have Mrs Tame's mental health in contemplation when filling out a blood test report.

Annetts

[35] The Full Court of WA decision demonstrates the danger of inflexible requirements such as direct perception and sudden shock.
[41] The respondents breached their duty by failing to properly care for the son; the parents' mental anguish leading to psychiatric harm was clearly likely to result from this.

Gaudron J

[44] Damages only for recognisable psychiatric injury, not just distress.
[51] The direct perception rule is contrary to the principle in Donoghue v Stevenson, and can not be used to limit who may claim for psychiatric injury.
[52] However, for those who fall outside the direct perception rule, there must be some special feature of the relationship between P and D which means that D should have P in contemplation.
[54] In the Annetts case, such a relationship existed, because D was employing their son and they had specifically enquired about safety conditions.
[56]-[58] There was no special relationship in Tame. A duty to the subject of the investigation would conflict with a police officer's duties, and in this case finding a duty of care would overlap with the law of defamation.
[62] Ordinary fortitude is often a convenient way of determining whether injury is foreseeable, but is not the sole criterion, and does not apply when D knows of P's vulnerability or when P is a member of a class likely to be more strongly affected (parent etc.)
[66] Sudden shock is not necessary to establish duty or foreseeability.

McHugh J

Tame

[71] Duty of care is only owed when (the defendant ought reasonably to have foreseen that) D's conduct would cause 'nervous shock' to a person of normal fortitude.
[98] Treating foreseeability and preventability as separate considerations in determining breach has excessively widened negligence law.
[105] Reasonable foreseeability in the duty stage should be decided in accordance with the neighbour principle, with foreseeability as a question of fact and reasonableness as a value judgment.
[108] Policy considerations should arguably enter into the question of reasonable foreseeability, and risks that are remote possibilities should be disregarded in reference to Lord Atkin's "…likely to injure your neighbour".
[109]-[110] Defendants are entitled to act on the assumption that there will be a normal reaction to their conduct, unless they know the plaintiff is especially vulnerable. To require everyone to consider the impact of their actions on the most vulnerable people would be an unreasonable burden. Normal fortitude test should be upheld.
[123] A finding in negligence would encroach upon the law of defamation, where the action should have been brought.
[124]-[126] It would be inconsistent for police officers to have a duty of care in recording information towards the subject of the information.

Annetts

[144] The employer's assurance of the son's safety created a duty to the Annetts' to supervise their son, in order to avoid harm that might result to them, including 'nervous shock'. The requirements of ordinary fortitude and 'sudden shock' do not apply.

Gummow and Kirby JJ

[185] The assessment of reasonableness is flexible enough to allow deserving claims to succeed, whereas artificial constrictions on this assessment, such as the direct perception test, are not.
[189] The 'normal fortitude', 'direct perception' and 'sudden shock' tests are not preconditions to liability for negligently inflicted psychiatric harm.
[190] The application of 'sudden shock' and 'direct perception' requirements is arbitrary and unprincipled.
[191] Rigid distinctions do not assist coherence. Rather, they simply generate exceptions, like the 'immediate aftermath' exception to 'direct perception'.
[199] It is not required that a person of normal fortitude would have suffered harm in order to claim damages for pure psychiatric harm.
[201] The question is whether the risk was foreseeable (not far-fetched or fanciful) and, if so, what a reasonable person would have done in response.
[207] A 'sudden shock' requirement would be arbitrary and inconsistent, without basis in principle.
[225] Distance in time and space from an event is not always relevant. Direct perception should not be a pre-requisite for a duty to be established.
[228] There is no duty to deliver bad news gently or tactfully. There is no liability for psychiatric harm caused by the way in which bad news is delivered or (if it is true) by the fact of its delivery.
[232] Tame's appeal fails because it was not reasonably foreseeable that recognisable psychiatric harm would result from D's conduct.
[237] In Annetts, there was a duty founded on the prior relationship between P and D.

Hayne J

[247]-[248] Difficult choice: Either a duty is owed to everyone who could reasonably foreseeably suffer this kind of harm; or we keep incoherent rules to limit where a duty exists.
[250] The duty of care requirement does limit liability for negligence beyond just reasonable foreseeability.
[272] The three control mechanisms are a result of the concern of the common law to limit recovery to the clearest cases. Better criteria can perhaps be formed now that we have a better understanding of psychiatric illness. The law of negligence must reflect community standards of "reasonableness", and so some control mechanism beyond foreseeability of psychiatric harm must be identified.
[273]-[274] The standard of care should be to a person of 'reasonable or ordinary fortitude'. This is an important limit to the duty.

  • Strong emphasis on a duty to take reasonable care to avoid psychiatric injury to a person of 'reasonable or ordinary fortitude'

[285]-[289] Difficulty in distinguishing between emotional distress, which is not compensable, and psychiatric harm, which is. While the psychiatric profession recognises a distinction, it is a matter of degrees, and subject to change as knowledge changes.

  • It is problematic distinguishing between compensable and non-compensable harm on the basis of clinical results, which often depend on patients' own subjective descriptions of symptoms.

Tame

[299]-[300] No duty on behalf of police officer, because it would conflict with their other duties. Also, not reasonably foreseeable that a person of reasonable or ordinary fortitude would suffer distress.

Annetts

[301]-[306] A duty was owed, as it was reasonably foreseeable that a person of reasonable or ordinary fortitude would suffer psychiatric harm at the loss of a child. Also, a duty may be said to have been owed in view of the relationship between plaintiffs and defendant.

Callinan J

Tame

[323]-[325] The fact that actions may have been available in negligent misstatement or defamation is relevant, as there is a need for coherency in the law, and certain defences and policy considerations would be available in those actions.
[331] Foreseeability is not sufficient, but it is necessary, and this case fails on that point. The consideration of reasonableness on the part of the defendant is also important, as McHugh said.
[334] 'Nervous shock' cases are distinct from physical injury cases, because susceptibility to psychiatric injury varies much more widely among people. The duty can only be to not act in such a way as to foreseeably cause psychiatric injury to a person of ordinary fortitude.
[337] Dismissed for these reasons.

Annetts

[357] There was a breach, on the basis that Australian Stations, as the boy's employer, owed a duty to the parents to take reasonable care in supervising him. The breach of this duty resulted in psychiatric harm.
[358] There were three relevant relationships: employer-employee, parent-child, assurer (of the child's safety)-assured.
[364] Receiving the news of the boy's disappearance constituted a 'sudden shock'.
[365] Learning of the incident by phone was a sufficiently direct perception.
[366] The principles formulated as a result of judicial caution in this area remain valid. They are: i)A shocking event must have occurred. ii) The claimaint must have witnessed it or its aftermath, or had it communicated to them before having reached a settled state of mind about it. iii) The person making the communication will not be liable, unless they intended to cause psychiatric injury. iv) The event must be likely to cause psychiatric harm to a person of normal fortitude. v) The likelihood of psychiatric injury to a person of normal fortitude must be foreseeable. vi) There must be special or close relationships between the tortfeasor, claimant and primary victim. vii) A true psychiatric injury directly attributable to nervous shock must have been suffered.

Summary of Rulings

  • Gleeson – reasonable forseeability + nature of relationship key factors for both cases
  • Gaudron – reasonable forseeability + some special feature/relationship with the tortfeasor to make it reasonable to have them in contemplation
  • McHugh – duty requires reasonable forseeability, particularly when no pre-existing relationship between defendant and plaintiff is present – but where there is one, the control mechanisms are relaxed. Employment analogy created relationship (Annetts)
  • Kirby/Gummow – duty requires reasonable forseeability, which was assumed in the case of Annetts because of assurances/control/vulnerability
  • Hayne – reasonable forseeability + mental fortitude + nature of relationship. Employment analogy also created by relationship (Annetts)
  • Callinan – All requirements remain, but all eroded to a much easier to meet level (with the singular exception of normal mental fortitude)