THEAMBIT OF LIABILITY FOR NEGLIGENTLY CAUSED MENTM HARM - FINDINGTHE BALANCE A~SIRACI The High COLL?of As~straliain Exmc v Ncw South \Etlis: h n t t t s v ~ Austnlian Stations Pty limitcd und afzlf2,med in Giffurd v Str;u~gPatrick St~vcdoringPty Itd, has restated the common lc~tuof Azrstralia rregligentiy infZzctec1mental harm These common /'LC" fi, initiatzveshave been iurgeiy adopted irr $tatutor-yform in home A~~muiic~nIt'rtes in civil iinbriiq sWnLLes t~hichfollo~~the recornmendations oj the Ipp Report on NegligenrcLc~wThese common i'~tuand statnto,y initiat~uer ~ e e kto strike n balance betueen an rrppropri'rte iimltanon onpotentla1 ci~~~mczrrtsfo, negii~entiyinfllcte~lpsy~hi~rt~i~iliaess and the re'orjery 01rlc~mr~ges ciem and m from the close 07 obvzous sit~~attons mr-ntrilhmrn a?rsing of spe~i~~~rel~~tio~ish~p 0,czxurnstances of the dej&ncl'~nt to,tfeasol: victim and plc6inttfl These mitiatives have alco remoue'i from thi.s area of the lrrw rome policydriven control nre~hcrnisms ivhose applicnt~onsas lire-conditio?rr to illogic~land unjust resr~lrc ~L.LUIIL'P-~ hc6~epro'i~111~ed Nervous shock is similar to purely economic loss in that it has the propensity to manifest at one or more removes hom the dirrct effect or detriment of negligence (the ripple effect) Consequently the common law has developed contr.01 mechanisms beyond the requirement of reasonable foseseeability to limit potential claimants both for neghgently inflicted nervous shock and negligently generated economic loss As Gleeson CJ has stated: Dtfming the cinumstances in which it is rc;tsonahlc to rrquir 1 person to havt in contemplation, and take steps to guard against financial harm to anothcr pcrsun or emotional disturbance that may result in c1inic:tl depression requircs thc caution which courts have displayed He further stated in G z ~ ovYStrung Puhlick Itevedoring Pty Itd that: ' ~ AIL%II OF LUBIIIIYFOR NEGIIGENIIY CAUSED \IENIIU FLWLI - FINDINGIFIERAIIXCF psychiatric illness caused to the parents through the 'agonisingly protracted' communic;~tionsof their son's disappearance, - death by exhaustion and starvation in the desert -would go uncompensated but a similar injury suffered by p;trmts who see their son being run down by a motor car' could be compensated 5' Gleeson CJ cor~sidercdsuch a distinction indefensible 32 The trjection of clisect perception of the distressing event or its immediate aftermath as an indispensable pre-condition to recovery for mental harm has been affirmed by the High Court in Gzflorcord Gzffooll involved claims for damages for negligently inflicted psychiatric injury brought by the childsen of a man who was killed in an accident at work The issue and facts as recited by Gleeson W were whether the man's employer owed a duty of case to the cbildrrn (plaintiffs) 53 The defendant, a stevedoring company, employed the late MI Barry Gifforrl, who was crushed to dcath by a forklift vehicle Negligence on the part of the driver of the vehiclc,whowas also an enlployee of the defendant, and on the part of the defendant itself,was alleged,and was admitted At the time,the plaintiffs were aged 19,17and 14rrspectively They did not witness the accidcnt They were all informed of what had occurred later on the same day The plaintiffs claimed to have suffered psychiatric injury in consequence of lcarning what had happened to their father Gleeson CJ in Gzffoord concisely summarised the common law with respect to 'direct perception' or 'immediate aftermath' as follows: l'lle Court ofhpptai dccid~dag&nst the appellants on tht ground that there can be no iiabilin at common krw for damages for mcntal injur) to ;I pcrson who is told about a horrific accidcllt or injury to a lorcd one but dots not actwall> perceive the incidcnt or its aftcrm;rth [iootnotc omittcdl Ihat proposition is inconsistent with thc reasoningof this Court inIilme andAnnem and cannot standwith the actual decision in ilnneitr Ifootnott omitted] It does not hllow however that the ciicumstancc th:a rhc ;appcUantswere not present when their tathct suiferd his fatal injur? and did not ubstrve its dfttrmath is 1rrclcv;mt to thc question whether the respoildcnt owcd them as well as their father a duty to take reasonable cart to prcvcnt injmj of the kind the) ailcgcdly suffered F Szcdden Shock Gleeson CJ, Gaudron, Hayne, Gummow and Kirby JJ rcjccted the requirement of sudden shock in Tameand Annetts fundamentally on the notion that an action should rest on proof of a recognisable psychiatric disorder; not on the aetiology of the disorder 35 The recognition that 31 Tame xndAnnetts (2002) 76hLJR 1348 1355 32 Tame andAnneits (2002) 76hIJR 1348 1355 13 Cr~jj?orO(2003) 77ALJR 1205 1207 34 Gl//orrl(2001) 77 ALP 1205 1207 35 (2002)76ALJR 1348;it I355 1359~136013841386 1398-1399 individuals may suffer secognisable psychiatric illness without any sudden shock suggests that such a control is pragmatic and leads to harsh results and the rejection of meritorious claims As Gummow am1 Kirby JJ indicate the rrquirement of 'sudden shock means a parent who observes an adult child deteriorate aver 14 days whilst being ncgligcnrly treated in tlic defendant hospital and then dies must be denied recovery in respect of the ncgligcncc of thc liospital becausc t h ~ oartnt s osychiarric harm was not induced by shock and thc dczah when . . a came was expected 3" While the majority accepted that the absence of such shock from smlden sensory perneption of a distressing event or its aftermath may be causation of psychiatric illness, such absence was not automatically a disquallFying fictor ;I factor for consideration in the seasonable foreseeability of the A detailed analysis37of LotdAtkin's celebrated judgment in Donoghue v Stevensoniu and his references therein to the earlier cases of Heaven v Pendeier39 and Le 1ievr.e u Goz~ld~"indicates that Lord Atkin perceived that reasonable foreseeability, as a test for duty of care, 'was demonstrably too wide'41 to use his w a d s He considerrd that 'if 1,ordAtkin then ptwceeded to expound his version of the underlying r;ttiondle for a duty of care: The rule that you are to love your neighhour brcomcs in ktw,you must not injure your ncighbour; and thc lawl;cr s question Who is my neighborn? receives a restricted reply You must take reasonahit carc to avoid acts or omissionswhich you can reasonablyforesee wor~ldbe likely to injure your ncighbour Who thcn in h w is my ncighboor? The answer seems to be persons who are so ch,sriy and dirtctly iaffcctcd by my act that I ought reasonably to have them in contcmplarbn as being so affected when I am directing my mind to the acts or omissionswhich art cded in question 43 Immediately following this statement Lord Atkin continued: 'his appears to me to be the doctrine of Heaven v Pende? as laid down by Lord Esher (then Brett M R) when it is limited by the notion of proximity properly limited was capable of affording a valuable practical guide' 42 36 Tame and Ar~nens(2002) 76ALJR 1348 1385 17 NormmA Kattcr Dirt) of Care in Aurtmlia (Sydney:Ihc law Dook Co ltd 1099)233') ., 58 119'321i\C 562 39 (1883) l 1QRD 503 40 118931 IQR 491 41 Donosbzre a \teuenson 11932lAC562 580 42 Donoghcie u \tez,enson 119321AC 562 580 43 Duno~birc0 Steocnson [I9321iX 562,580 introduced by L,ord Eshcr himself and A L Smith LJ in Le Lievre v Goz~lcl44 L.ord Atkin then stated in his judgment that proximity should not he confined to mere physical nearness: I rhink that this seffrcientlysmres tht truth I proximity be not conhid to mcrt physical proximity hut bt used ;aI think it was intended to extend to such close and direct relations that the act complained of directly itifccts a person whom the PLISO~aliegcd to be bound to take care would know wo~ilrlhe directly aifcctcd by his carclcss act4j L.ord Atkin's test of 'neighbourhood' or 'proximity was ;In overriding control on reasonable foreseeability at large While McHugh J in Tame and Annetts expressly acknowledged that reasonable foreseeability is not at large and that 'you come under a duty only in respect of acts and omissions that you can reasonably for.eseemay affect your neighbours persons who are directly and closely affected by your acts', he concluded that reasonable foresec;tbility and proximity were an amalgam of concepts 46 Whether or not L,ordAtkin intended that rcasonable foreseeability and proximity could be combined or should be treated as independent tests for duty of care,his judgment in Donoghue u Stevenson does indicate that a defendant is not liable to all those whose damage can reasonably be foreseen as a result of the defendant's negligence but only to those 'neighbours'who are in'such close and direct relations'to the defendant or who arc so closely and directly cqfeected by the defendant's act, that the defendant ought reasonably to have them in contemplation4~ (Emphasis added) Four judges explicitly48 (and three implicitly)49 utilised lord Atkin's 'proximity' or 'neighbour' principle in Tame and Annetts in determining the duty issue A Lord Atkin's Test in Annetts and Tame 1 Annetts IJnderpinning the finding of duty by all justices in the High Court in Annetts was the close and direct selationshipjo existing between the employer (defendant) and the parents of the deceased boy, the parents 44 Donoghue v Sreoen~on119321AC 562,580 581 45 Donugh~~e v Steuenson [I9321AC 562 581 (emphasis ;tddcwReform (Ipp Rtcomm~ndltions)Bill 2001 (SA) cl 27 I H E h \ l B l i OF Iihl$ll1l'i FOR NECillCiEXILY CAUSED hlEUTAT K\Rhl HNUING 11lC MWUCE 2 Whether the plaintiff witnessed at the scene, a person being killed, injured or put in peril; 3 The third factor is the closeness of relationshipbetween the plaintiff and the primary victim 4 The fourth factor is whether or not there was a pre-existing relationship between the plaintiffand the defendant As discussed earlier in this paper; L.osd Atkin's 'neighbourhood or 'praximity'principlewas the test appliedfor duty of casein both Tameand Annettfij and Gzroordfi McHugh J in GzJtor'cIlrstated the test as follows: h pcrsoll is ;Incighbour in IordAtkins scnsr it he or she is one ot thos~ persons who are so closely and directlj affected by my act that 1ought reasonably to have thcm in contemplation as bring so affected It thc dcfcndant ought reason;tbly forcstr that its conduct may :%ffectpersons who havc a relationship with th' primary vicrirn a duty will arbc in respect ot those persons ]'he test is would a reasonable pcron in thc defendants position who knew or ought to h o w of that particular tchtionship, consider that the third party was so closely and directly affccttd by the conduct that it was reasonable to kmc that person in contempl.ation as being affectedby that coniluct?('7 The four fi~ctorsabove,included in the civil liability statutes,bear directly on the 'neighhour' question, tbat is, whether the defendant ought reasonably to have had the plaintiff (or plaintiffs) in contemplation as likely to suffer mental harm from the defendant's conduct Relevant to the .neighbour'questionis the physicaland temporalproximityof the plaintiff to the disect detriment or injury to the primary victim (firstand second factors) or the citrumstantial proximity of the parties, namely, the closeness and directness of relationshipbetween the plaintiff and primary victim and thcrrby the plaintiff and defendant(third and fourtl~factors) E No Pve-Condition oj'Di~ectPerception or Immediate Aflermath The rrjection by the High Court of the need for dirrct perception by the plaintiff of the distressing event or its immediate aftermath has been adopted in the civil liability legislation This is achieved by providing that a plaintiff cannot recover damages for pure mental harm unless: the plaintiff was at the scene of the incident causing detriment to the . primaty victim;or the plaintiff is a close member of the family of the primary victim 68 L~valiability A6t 2002 (NSW s 30; Ltvrl lrubil~tyAct 2002 (I&) s 32; C~vzlLaio (WrongsiA~t2002(ACI) s 34;Thclaw ReformOpp Rccommcndations) Rill 2003 (SA) c114 WrongsAct 19~58Wc) i 67ff Ihe latter requirement would allow recovery through communication of distressing news to the plaintiff even though the plaintiff was not present ;lt the scene of the injury or its aftermath Close member of the family' of the victim includes a wide circle of relationship in the New SouthWales legislation" (step-relations, halt-brothers and sisters and de facto partners) The proposed South Australian legislation rrfers only to parent, spouse or child of the victim This legislative drafting is an express acknowledgement that the closeness of relationship between the plaintiff and the p~iunaryvictim may be a more significant causal factor in the case of psychiatric illness than direct perreption of the incident causing injury to the primary victim or its aftermath 7" F Equating The Position oj Plaintzyj and Primary Victim Ihe New SouthWaleslegislationequates the position of the plaintiffwith that of the primary victim for purposes of rrcovery of damages" harm are to be reduced in the same proportion as the contributory neghgence of the primary victim Furthermore, if the law provides a defence to the defendant in relation to any claim for damage by or through the primary victim against the defendant,that same defence will the position of the plaintiff with that of the primary victim, while acknowledging theit closeness of relationship, ignores the two distinct torts The proximity of relationship between the primary victim and plaintiff is merely the cirrumstantial basis for the establishment of a separate duty of care owed by the defendant directly to thc plaintiff Consequently,any damages to be awarded to the plaintiff £01 pure mental prevent recovery by the plaintiff who suffered mental harm 72 Equating VI SUMMARY THE CURRENT ON NEGLIGENTLY OF INFLICTED LAW MENTAL The common law and statutory changes, while reflecting a rejection of some policy-driven control mechanisms which had led to unjust and illogical results, strike a balance between limiting the range of potential claimants and facilitatingrecovery where there is such a close and direct relationship between the parties th;tt foreseeability of mental harm to the plaintiff is obvious The common law and statutory rrstatement of the law indicate there are sufficient controls in an action for negligently inflicted psychiatric illness HARM 69 Crvil tircbility Act 2002 (NSW s 30;Ciuzl trnbilily Act 2002 (kc) s 32; Ciozl Lnzv (IV~ongs)A~t2002 (ACT) ss 29 3l;lheIaw Reform Cpp Kccommcndarions) Bill 2003 (SA) '1 34 70 Tame u iYetu South Wc~lerAnnem v ilurholicrn \tatiorrs Pry limrted (ZOO?) 76AlJK 1348 1388 71 CiuiltinbilityAct 2002 (NSW s 30 72 Ciod Ii'tbd~tyAct2002 mS\V) s 10 TIIEAhlRIT OF IIARIIITl FOR \iEGIIGEXIll CAIISED \IENIAL HAR\I FIXUIXG IHE &UAUCE inherent in the generd determinants for duty, breach and damage and that the controls of direct perception', immediate aftermath and sudden shock, while factors which may assist in the dete~n~inationof seasonable foreseeability and the closeness of relationship between wrongdoer and plaintiff,are not indispensable prc-conditions to recovery A plaintiff must establish for a potential action for neghgently intlictcd psychiatric illness that he or she has a rrcognisable psychiatric illness rather than mere emotional dist1.e~~caused by the defendants ncghgence A duty of carc will arise where the defendant wrongdoer ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness resulting from the defendant's negligent conduct and the plaintiff was a person in the citrumstances, so closely and directly ;~tfectedby the defendant's negligent cotlduct that the plaintiff ought to h m been in the contemplation of the defendant as likely to suffer psychiatric harm The circumstances referred to in the case of pure mental harm would include the physical and temporal proximity of the plaintiff to the incident causing detriment to the primary victim or the closeness of the relationship between plaintitf and primary victim and plaintiff and defendant A plaintiff cannot recovtr for pure mental harm and would not be owed a duty of carc unless be was present at the scene of the incident causing injury to the primary victim (SA legislation) or witnessed the victim being killed, injured or put in peril (NSW legislation) or alternatively, unless the plaintiff is a close member of the family of the victim A duty can alise from the commutlication (not against the communicator) of distressing news which causes psychiatric illness or in the absence of some sudden shock to the plaintiff, providing the relationship and cirrumstanccs werc such that the general dete~minants for duty can be satisfied between plaintiff and defendant The bearer of bad news cannot be liable for psychiatric illness in the absence of malice or intent to cause psychiatric illness,but the wrongdoer who caused the 'bdcl news' may be liable A duty may also arise in circumstances where the plaintiff does not have a normal susceptibility to psychiatric illness,if the defendant was aware of this particular susceptibility Finally, the Ncw South Wales legislation equates the position of plaintiff and primary victim in the case of pure mental harm,reducing any damage awarded to the plaintiff by the extent of contributory negligence of the primary victim and providing a lull defence against the plaintiff's claim where such a defence was available against the primary victim While the common and statutory restatement of the law in this arca potentially may increase the number of claims for negligently inflicted psychiatric illness,the inherent contmls in the generd determinants for the tort will allay any floodgate fears and ensure a limited range of claimants Ihe positive outcome of this restatement is the ~cjectionof controls whose rigid app1ic;ltion had, and w o ~ ~continuc to produce anomalous, l d illogical and unjust results UNIVERSITY NOTREDAME OF R N (19 130 '43 210 Order Form PIEASE RETURN IHlS FORM 1'0IHE LAW 1,IBRhRY Ihc >Planab.ci law Rcvicw Subscriptions C O ~ I Cof~ C Law University of Notre Dame A~lstmlia PO Box 1225 Ft~mantltWA 6959 AUSTRALLA REVIEW LAW Pwmnt Details (Please / tick the required subsui~tionbox) Individual Suhscrihcrs within Ausualia and New Zealand oneyeat rwoYears $49 50 (ti51 lnc ) $88 00 (G5I Inc) Individual Ovrrscas Suhsrriher.s One Year rwoYeais $50 00 $85 00 Iihrarics Within Australia ~ n~c;rr c $60 50 (GSI Inc) Libraries Overseas 0ncYc:~r $60 00 PLEASE PROWE SIUDENI NUMBER AND INSIIIUIION NAME P APPI.YING FOR THE 50% DISCOUNI ~JU~VERSIIY OF NOIRE DAMEACJSIMLL* is published anlxraUy LAW Rmmv R~ynintdet;uls (pltdsc / ock) cHEQm MONEYORDER Please h d enclosed the amount of $A-(GSI CREDII CARD Inclusive)made payable to UNWERSIIYOr NOTREDIME AIIST'IA IAU rrH~*r(~ CREDII CARD DErhnS Plcasr ch~rgemy account with SA Picase circlt one: Bmkcard / Mastcic;trd / Visa Clrtl Card crpiry d ; 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