1. Module 5 – Special Negligence Cases: Psychiatric Injury
LAWS11064 Torts B
Module 5 – Special Negligence Cases: Psychiatric Injury

2. Objectives At the end of this module you should be able to:
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.

3. 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))

4. 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

5. 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.

6. Reasons for limiting recognition
‘imaginary’ or ‘fabricated’ claims
(eg: Vic Railway Commissioners v Coultas, per Sir Richard Couch)
Difficulty with proof
lack of medical understanding
psychiatric damage was considered less serious than physical damage
‘compensation neurosis’ (White v CC of Sth Yorkshire Police).
Floodgates (Tame v NSW)
from Clarke, Devereux and Werren (2nd ed, 2011) 724.

7. Development of law Early cases Australia UK
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
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. UK
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
White v CC of Sth Yorkshire [1999] 2 AC 455
Key case this week

8. 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).
Pre-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”).
Post-Tame:
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”.
Remember: Qld applies the common law
Normal fortitude is still a consideration in Qld, but not a precondition of liability. Likely more relevant to breach.

9. Control Factors
See earlier discussion

10. Distinction between ‘primary’ and ‘secondary victim
Def
Def P P1
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 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
Source: Julia Davis (2012, OUP) p 523.

11. 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.

12. 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).

13. 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

14. 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.

15. 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.

16. 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.

17. Acknowledgements – References
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.