Handford, Peter --- "Psychiatric injury - charting the limits of liability - Dr Peter Handford" [2019] PrecedentAULA 43; (2019) 153 Precedent 14

---

PSYCHIATRIC INJURY – CHARTING THE LIMITS OF LIABILITY

By Dr Peter Handford

2002 was a significant year for Australian psychiatric injury law.

This was the year that saw the landmark High Court decision in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317, rejecting limitations such as direct perception and sudden shock, and restating liability to secondary victims in terms of reasonable foreseeability, supported by the nature of the relationship between the parties. This approach was endorsed and further explored in the Court’s decision in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 which followed soon afterwards. 2002 was also the beginning of the Civil Liability Act era, which saw six jurisdictions enact legislation codifying liability for what was now called ‘mental harm’, in some cases imposing narrower limitations than those recently endorsed at common law. There have been two High Court decisions since Gifford, both of which interpret provisions of the Civil Liability Acts – Wicks v State Rail Authority (NSW) [2010] HCA 22; (2010) 241 CLR 60 on ss30 and 32 of the Civil Liability Act 2002 (NSW) and, more recently, King v Philcox [2015] HCA 19; (2015) 255 CLR 304 on s53(1) of the Civil Liability Act 1936 (SA). Insofar as they simply explore the meaning of the statutory provisions, such decisions are of limited value for other jurisdictions, since the legislation differs so much from one state to another. But what they have to say about the common law is of much more general interest, and it is in this respect that King, particularly the extended consideration of the common law by Nettle J, deserves our attention.

KING v PHILCOX

In King, the plaintiff’s brother was a passenger in a car involved in a collision at an intersection late one afternoon, sustaining fatal injuries. The plaintiff went through that intersection five times over the next few hours, observing that there had been an accident but not knowing that his brother was one of the victims. He only learnt of his brother’s death later that evening. He claimed damages for psychiatric illness that he alleged was caused by being present at the scene of the accident when the accident occurred. This was an attempt to bring himself within the limitations of s53(1), which provided that damages can be awarded for mental harm only if the person was present at the scene of the accident. The other alternatives in s53(1) – that the person was physically injured in the accident, or was a parent, spouse or child of a person killed, injured or endangered in the accident – were not applicable on the facts of this case.

The High Court held that the plaintiff could not have been said to be present at the scene of the accident when the accident occurred. Its reasoning is clear and compelling, but it is not my present purpose to examine this aspect of the decision in any detail: of greater general interest is the fact that all members of the Court were prepared to hold that there would have been liability at common law. The joint judgment of French CJ, Kiefel and Gageler JJ does not comment on this issue at any length, but the concurring judgment of Nettle J provides a detailed analysis and some new insights. Of particular interest is the way in which His Honour breathes new life into the concept of proximity as expounded by Deane J in Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549. According to Nettle J, the duty issue cannot be decided by reference only to the nature of the relationship between the accident victim and the claimant, or that between the victim and the defendant. Following Deane J, the question must be resolved by a process of legal reasoning, by induction and deduction by reference to the decided cases, and ultimately by value judgements of matters of policy and degree. Though proximity is no longer considered determinative, it nonetheless gives focus to the inquiry by ‘directing attention towards the features of the relationships between the parties and the factual circumstances of the case, and prompting a judicial evaluation of the facts which tend for or against a conclusion that it is reasonable (in the sense spoken of by Gleeson CJ in Tame) for a duty of care to arise’.^[1]

HOMSI v HOMSI

There have been a number of lower court decisions subsequent to King, but Homsi v Homsi [2016] VSC 354 is of particular interest, not least because it is a decision on the common law, which continues to apply in Victoria in cases involving transport accidents, unlike the position in other states such as New South Wales and South Australia, where such cases would be governed by the Civil Liability Acts.

The defendant in this case died when his vehicle collided with another vehicle, due solely to the defendant’s negligence. The plaintiff, who was the defendant’s mother, learnt by telephone of her son’s death soon after it occurred. She suffered a severe psychiatric reaction. The question for the court was whether, in these circumstances, the deceased defendant owed his mother a duty of care – as formulated by J Forrest J, a duty of care in the driving of his motor vehicle to ensure that he did not suffer death or injury that might result in psychiatric injury to his close relatives. His Honour found that there was no such duty. He based this finding on the lack of authority supporting the existence of any such duty, and the powerful policy grounds for refusing to recognise a duty in such a case. While not necessarily saying that this decision was incorrect, it seems to rest on somewhat insecure foundations.

The particular question here is the approach to be adopted where the tortfeasor is also the primary victim. In standard ‘secondary victim’ cases, there are three parties: A negligently kills, injures or endangers B, and C (usually a close relative of B) suffers psychiatric injury. Here, by contrast, A and B are one and the same person. At one time, the issue seemed to have been foreclosed by a dictum of Deane J in Jaensch to the effect that ‘on the present state of the law, ... a duty of care (in respect of psychiatric injury) will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury’.

However, in Shipard v Motor Accidents Commission [1997] SASC 6768; (1997) 70 SASR 240 and FAI General Insurance Co Ltd v Lucre [2000] NSWCA 346; (2000) 50 NSWLR 261, two appeal courts reconsidered Deane J’s dictum. In Lucre Mason P held that in the light of Australian authorities it was no longer possible to say that a duty of care was negated simply because the primary victim was the defendant, or a deceased person represented by the defendant. This did not mean that there was automatically a duty of care in such cases: it remained necessary for claimants to establish a duty of care by one of the recognised routes. In both Shipard and Lucre, the plaintiff was the driver of the other vehicle involved in the accident, and the duty was based on the principle that the plaintiff was an involuntary participant – someone who, through the defendant’s negligence, has unwillingly become involved in the events leading to the death or injury of another person. In Shipard, the court refused a strike-out application on this ground; in Lucre, it was the reason justifying recovery for the plaintiff’s psychiatric injury.

Justice J Forrest endorsed these authorities, saying that they showed that in certain circumstances a person (the ‘immediate victim’) who suffers psychiatric injury will be owed a duty of care by a negligent motorist. The difference between the facts in these cases and in Homsi is of course that in Shipard and Lucre the plaintiff, though a stranger to the defendant, was on the scene and involved in the accident; in Homsi, the plaintiff was a close relative but was not on the scene, so there was no direct perception. Justice J Forrest emphasised the need for ‘close physical proximity’ between the event and the psychiatric reaction of the plaintiff.

It was at this point in his judgment that Deane J’s dictum made a surprising re-entry on the scene. Though now superseded in involuntary participation cases, it apparently trumps other considerations in the entirely different kind of case where reasonable foreseeability and other kinds of proximity justify the imposition of a duty where there is a close relationship, even in the absence of direct perception. According to J Forrest J, the secondary victim cases turn on the presence of an established pre-existing duty between the tortfeasor and the primary victim that gives rise to the discrete duty owed to the secondary victim – in cases such as Tame and Gifford by an employer, in Jaensch and King by a road user. This is questionable: in principle the duty owed to a secondary victim should be independent of that owed to a primary victim, and so a defence existing vis-à-vis the secondary victim should not affect the primary victim’s claim in any way. A modern Australian authority to this effect is Hanlon v Hanlon [2006] TASSC 1. The Civil Liability Act 2002 (NSW), s30(3) says different, but it is clear that this altered the common law.

Justice J Forrest refused to recognise a duty of care on the facts of Homsi. His reasons have a traditional ring to them: there is no previous authority; recognition of such a duty would open the floodgates; and perhaps more importantly, it might result in a rise in insurance premiums. Finally, His Honour suggested there were powerful policy reasons against recognising a duty that had the potential to have a detrimental effect on family relationships. In this respect, he was able to refer to the similar arguments of Cazalet J in an English first instance case, Greatorex v Greatorex [2000] EWHC 223; [2000] 1 WLR 1970, where the plaintiff was a fire officer who attended the scene of an accident only to discover that the victim was his own son. Justice J Forrest might have seen this case as different from Homsi in that the plaintiff was present at the scene as a potential rescuer, but the family policy argument tips the scales against recovery. Without necessarily taking sides on the family policy issue, it should be noted that Greatorex is otherwise a rather shaky authority. Justice Cazalet relied on Deane J’s dictum, unaware that it had been rejected by later Australian cases, and on some very bad Canadian authority.^[2]

Ever since the 1970s, it has been accepted orthodoxy that there can be no liability for psychiatric injury unless the plaintiff can prove the existence of recognisable psychiatric illness. Mere mental distress, or any other mental harm short of a recognisable psychiatric illness, is not enough. There has been some speculation that the mental harm provisions in the Civil Liability Acts, by requiring a recognised (rather than a recognisable) psychiatric illness, set even narrower limits, though as yet there has been no case-law confirmation that this is correct. In a few miscellaneous cases plaintiffs have succeeded even though the damage suffered does not come up to the recognisable psychiatric illness standard,^[3] and Canadian law has recently struck out in a different direction. In Saadati v Moorhead [2017] 1 SCR 543, the Canadian Supreme Court held that a finding of legally compensable mental injury need not rest on proof of a recognisable psychiatric illness. This was justified on the basis that the law of negligence should accord equal treatment to mental and physical injury. Even before this case, Canadian case law recognised various lines of cases that were inconsistent with the general principle, and the effect of the Supreme Court’s decision is that the exceptions have now become the rule.

PEL-AIR AVIATION PTY LTD v CASEY

In Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32, the NSW Court of Appeal reviewed a novel attempt made in a few previous cases to overcome the limitations of the recognisable psychiatric illness requirement by putting forward medical evidence to show that psychiatric injuries such as PTSD cause physical changes to the brain. If this can be proved to be physical damage, then it may be possible to reach a conclusion that the case can be regarded as one of physical, not psychiatric, injury; it might even be possible to say that there is no such thing as a purely psychiatric injury. Plaintiffs might by this means be able to evade the limitations placed on liability for psychiatric injury by the common law, and the even greater restrictions on liability for mental harm under the Civil Liability Acts. Until 2015, judicial acceptance of this approach had been confined to a first instance federal court in Montana (Weaver v Delta Airlines Inc 56 F Supp 2d 1190 (1999)) and an argument put to the House of Lords in Morris v KLM Royal Dutch Airlines Ltd [2002] UKPC 43; [2002] 2 AC 628 which was sympathetically viewed by some members of the court, but not one which had to be resolved for the purposes of their decision.

However, in Casey, a similar argument was accepted by Schmidt J of the NSW Supreme Court at first instance: Casey v Pel-Air Aviation Pty Ltd [2015] NSWSC 566. Karen Casey was a nurse employed by an air ambulance service. Her plane crashed when the pilot was attempting to land at Norfolk Island, and Ms Casey was seriously injured. In addition to her physical injuries, she was diagnosed as suffering from a complex pain syndrome, a major depressive disorder, an anxiety disorder, and PTSD. The issue was whether any of these conditions constituted ‘bodily injury’ under international conventions that had been incorporated into Australian law by the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The defendants conceded that the first three conditions had been caused by her physical injuries and could therefore be classed as bodily injuries. However, they were not willing to accept that the PTSD had been caused by her physical injuries, or that the crash had caused any physical injury to her brain of which the PTSD was a manifestation. Justice Schmidt held, following the accepted authorities, that PTSD did not constitute ‘bodily harm’. However, Her Honour found another way to compensate Ms Casey for her PTSD. She held that the evidence established that the PTSD was consequent on damage to her brain, which made it a compensable bodily injury.

As explained above, this novel approach could have had major consequences for the law of psychiatric injury. However, on appeal the NSW Court of Appeal reverted to more orthodox views. In a judgment concurred in by all three members of the court, Macfarlan JA accepted that there was no reason to regard ‘bodily injury’ as excluding damage to a person’s brain, so if there is evidence that there has been a physical destruction of a part of the brain, ‘bodily injury’ will have been proved. However, there was no proof that Ms Casey’s PTSD resulted from actual physical damage to her brain. There was evidence of biochemical changes to her brain, but these did not constitute bodily injury. His Honour accepted the view of the majority in Morris that biochemical changes do not constitute ‘bodily injury’, and their disapproval of Weaver, and pointed out that later United States authorities opposed Ms Casey’s claim. He said: ‘Consistent with these case authorities, I consider that it is insufficient for a claimant to prove that the function of his or her brain has changed or even that chemical changes have occurred to it. In the absence of compelling medical evidence to the contrary, such malfunctioning or chemical changes cannot fairly be described as “injuries” to the body’.^[4]

Ms Casey received compensation for her physical and other mental injuries, but not for her PTSD. An argument that could have ushered in a new phase of psychiatric injury liability ended up going nowhere. It remains to be seen whether one day its time will come.

Dr Peter Handford is an Emeritus Professor at the Law School of the University of Western Australia. EMAIL [e-mail].

---

^[1] King v Philcox [2015] HCA 19; (2015) 255 CLR 304, [80].

^[2] See P Handford, ‘Psychiatric damage where the defendant is the immediate victim’, LQR, Vol. 117, 2001, 397.

^[3] See P Handford, Tort Liability for Mental Harm, 3rd ed, Lawbook Co, 2017, ch 6.

^[4] Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32, [51].