LAWS11064 Torts B
Module 5 – Special
Negligence Cases: Psychiatric
Injury
Objectives
At the end of this module you should be able to:
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•
•
•
Define and give examples of psychiatric harm;
Understand the salient features and policy factors used to determine
duty of care in cases involving psychiatric harm;
Explain why the law is concerned to limit potential liability in such
cases, and evaluate the validity of policy justifications for doing so; and
Apply the legal rules and principles governing recovery for psychiatric
harm to fact scenarios.
Negligence so far…
1. Duty of Care
• Established Categories – provide authority
• Novel Cases: Reas. Foreseeability; Salient Features; Relevant Policy
Considerations?
2. Breach of Duty – s 9 CLA
• Standard of Care (Reas Person; Professionals; relevant characteristics)
• Breach – RF risk, not insignificant, what would a RP in Def’s position
do?
3. Damage – s 11 CLA
• Factual Causation – “necessary condition” (s. 11(1)(a))
• Scope of Liability – “RF of kind of harm; normative considerations ”
(s.11(1)(b))
This week….
Special category of case: Psychiatric Injury
Types of psychiatric injury:
– Relational psychiatric harm
» Common law allows recovery for RF mental harm,
provided it is consequential upon physical injury for
which the Def is liable: Nader v Urban Transit
Authority (1985) 2 NSWLR 501.
– Pure psychiatric harm (“nervous shock”)
» Recovery for P.Injury existing independently of any
physical injury is dependent upon control factors.
 Development of the law
 Control Factors
What is psychiatric harm?
• Recognisable psychiatric injury or “nervous shock”
• Page (1883, ‘Injuries of the Spine & Spinal Cord’): ‘nervous shock’ is
bodily illness brought on by fear and alarm as the consequences of
an accident.
• Serious psychiatric condition: more than mere grief or fright
(McPherson v Commr for Government Transport (1959) 76 WN
(NSW) 352).
• Recognised symptoms of psychiatric injury
– Post-traumatic stress disorder (PTSD) forms the basis of many claims
that are brought as a result of accidents and disasters. It is a serious
long term medical condition, distinguishable from temporary feelings of
shock which most people experience after witnessing an accident.
• High Court in Tame v NSW; Annetts v Aus Stations confirmed that
the Pl must establish that they are suffering from a recognised
psychiatric injury.
Reasons for limiting recognition
‘imaginary’ or ‘fabricated’ claims
(eg: Vic Railway Commissioners v
Coultas, per Sir Richard Couch)
Floodgates (Tame v
NSW)
Difficulty with proof
‘compensation
neurosis’ (White v CC
of Sth Yorkshire
Police).
lack of medical
understanding
psychiatric damage
was considered less
serious than physical
damage
from Clarke, Devereux and
Werren (2nd ed, 2011) 724.
Development of law
•Vic Railway Commissioners v Coultas (1888) 13
App Cas 222
•Dulieu v White [1901] 2 KB 669
•Hambrook v Stokes [1925] 1 KB 141 (see also
Dooley v Cammell Laird & Co Ltd [1951] 1 Lloyd’s
Rep 271
Early
cases
Australia
•Mt Isa Mines v Pusey (1970) 125 CLR
383
•Clear guidance came in Jaensch v
Coffey (1984) 155 CLR 549
•Tame v NSW; Annetts v Australian
Stations P/L (2002) 211 CLR 317.
Key case this week
UK
•Alcock v Chief Constable of South Yorkshire
[1992] 1 AC 310
•White v CC of Sth Yorkshire [1999] 2 AC
455
Basis of liability
In order to bring a claim the Pl must show it was
reasonably foreseeable that a person in the Pl’s
position would suffer psychiatric harm if the Def
carried out the act contemplated (or omitted to act).
Remember: Qld
applies the
common law
Pre-Tame:
Post-Tame:
liability determined by reasonable
foreseeability of harm, but this turns on
the assumption that the Pl was of a normal
degree of susceptibility (“of normal
fortitude”).
issue was one of reasonable
foreseeability of the risk of a psychiatric
injury, in the sense of that risk not being
far-fetched or fanciful (see for eg. Koehler
v Cerebos (2005) 222 CLR 44 at [33]).
Cf legislation in other states:
duty only arises if “def 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”.
Normal fortitude is still
a consideration in Qld,
but not a precondition
of liability. Likely more
relevant to breach.
Control Factors
See earlier discussion
Distinction between ‘primary’ and ‘secondary
victim
Def
P
Two-party or ‘primary victim’
cases
 Vic Railways v Coultas (1888)
 Dulieu v White (1901)
 Shipard v Motor Accident
Commission (1997)
 Carrier v Bonham (2002)
 Politarhis v Westpac Banking
(2009)
 Tame v NSW
Source: Julia Davis (2012, OUP) p 523.
Def
P1
P2
Multi-party or ‘secondary
victim’ cases
 Chester v Waverley
Council (1939): mother
 Mount Isa Mines v Pusey
(1970): co-worker
Blue line shows the tracks of
harm. Orange line shows the
new legal relationship
Control Factors: “Sudden Shock”
•
Early cases held that a pl could not recover unless the P.Illness was the
result of a sudden shock. Slow-burning grief reactions excluded.
Eg:
– In Alcock it was held that no recovery was possible where the P.Illness was
caused not by shock, but by the experience of coping with the loss of a loved one
– In Jaensch – Brennan held that P.illness caused by caring for a loved one injured
by negligence was also not recoverable because it was not caused by a sudden
shock.
– Campbelltown City Council v Mackay (1989) 15 NSWLR 501: Defs not liable for
pl’s P.illness as they had not suffered any sudden ‘shock’ as a result of damage
to their home, but rather a gradual process of emotional deterioration.
•
•
‘Sudden shock’ as precondition to recovery now rejected, though still
remains a relevant factor: Tame.
In jurisdictions where Civil liability legislation governs recovery, sudden
shock is a relevant factor to be taken into account, but also not a
precondition: Wicks v SRA (2010) 241 CLR 60.
Control Factors: “Direct Perception”
• “Area of Shock/Impact” approach:
• Liability of Def to secondary victims limited by RF
• Hambrook v Stokes [1925] 1 KB 141
• Bourhill v Young (1888) 13 App Cas 222
• Chester v Waverley Corp (1939) 62 CLR 1
• Liability expanded to include “immediate aftermath”:
• Mt Isa Mines v Pusey (1970) 125 CLR 383
• Benson v Lee [1972] VR 879
• Jaensch v Coffey
“aftermath also extends to the ambulance taking an injured person to hospital for
treatment and to the hospital itself during the period of immediate post-accident
treatment. It would, in my view, be both arbitrary and out of accord with common sense
to draw the borderline between liability and no liability according to whether the Pl
encountered the aftermath of the accident at the actual scene or at the hospital to which
the injured person had been quickly taken” (per Deane J).
Direct perception cont.
• High Ct in Tame endorsed more progressive view.
– Cf limitation on secondary victims imposed by civil liability
legislation in NSW, SA, Tas and Vic. For a good example
of the ‘direct perception’ under the NSW legislation see the
case of Wicks v State Rail Authority (NSW); Sheehan v
State Rail Authority of NSW (2010) 241 CLR 60.
• Recovery not available for shock caused as a result of
receiving news of an accident: Mt Isa Mines v Pusey
• Other Rescuer cases:
– Chadwick v British Transport Commission [1967] 1
WLR 912
– White v CC of Sth Yorkshire [1999] 2 AC 455
Control Factors: R’ship between Victim &
Secondary Victim
•
Secondary victim will recover if sufficiently “close and loving relationship” to
primary victim. Mere bystanders not able to recover.
– But ‘relative’ is not the upper limit: see for eg. rescuers in Mt Isa Mines v Pusey
– See civil liability legislation in other Aus jurisdictions
•
•
•
Issue not addressed in Tame and Annetts directly.
Gifford v Strang Patrick Stevedoring (2003) 214 CLR 269: Gifford killed in
horrific work accident; his 3 children told about his death at home later that
day, subsequently developed P.Illness. Employer liable to the children as
their ‘close and loving rship’ with primary victim made them RF to the def
employer if negligence committed.
Stuart v Kirkland-Veenstra [2009] HCA 15: police failed to exercise
discretionary powers under the Mental Health Act to take mentally ill man
into custody. Several hours later he committed suicide, widow found his
body and went into shock. No duty owed to prevent husband’s self harm nor
to exercise authority under the Act so no duty could be owed to wife.
Control Factors: R’ship between Pl & Def
• Annetts: McHugh J based findings of Duty on pre-existing rship
between the Annetts and Def employer.
• See also Gaudron J:
“Save for those who fall with the ‘direct perception rule’, a person will be able to recover for
psychiatric injury if there is some special feature of the relationship between that person and the
person whose acts or omissions are in question such that it can be said that the latter should have
the former in contemplation as a person closely and directly affected by his or her acts (at [52])”
• Koehler v Cerebos (2005) 222 CLR 44: Pl suffered P.Illness as
result of workload and Def’s failure to reduce workload. High Ct held
no breach of duty but also questioned the finding of a duty of care in
the first place, as contrary to statutory and contractual
rights/obligations of both parties. Other employer cases: Taylor v
Haileybury [2013] VSC 58; Brown v Maurice Blackburn Cashman
[2013] VSCA 122. Cf Swan v Monash Law Book Co-operative
[2013] VSC 326.
Review
In this module you have learned to:
•
•
•
•
Define and give examples of psychiatric loss;
Understand the salient features and policy factors used to determine duty
of care in cases involving psychiatric harm;
Explain why the law is concerned to limit potential liability in such cases,
and evaluate the validity of policy justifications for doing so; and
Apply the legal rules and principles governing recovery for psychiatric
harm to fact scenarios.
Acknowledgements – References
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Danuta Mendelson, The New Law of Torts (2nd ed 2010), published by Oxford
University Press.
Rosalie Balkin and Jim Davis, Law of Torts (4th ed, 2009) published by LexisNexis
Butterworths.
Julia Davis, Connecting with Tort Law (2012) published by Oxford University Press.
Bernadette Richards, Karinne Ludlow and Andy Gibson, Tort Law in Principle (5th ed,
2009) published by Thomson Reuters Lawbook Co.
Frances McGlone and Amanda Stickley, Australian Torts Law (2nd ed 2009)
published by LexisNexis Butterworths.
Martin Davies and Ian Malkin, Torts (Focus Series, 6th ed, 2012) published by
LexisNexis Butterworths.
Carolyn Sappideen, Prue Vines, Helen Grant and Penelope Watson, Torts
Commentary and Materials (10th ed, 2009) published by Thomson Reuters Lawbook
Co.
Sarah Withnall Howe, Greg Walsh and Patrick Rooney, Torts (LexisNexis Study
Guide, 2nd ed, 2012) published by LexisNexis Butterworths.