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Seeto, (Dyanah) Nicole --- "Shock Rebounds: Tort Reform and Negligently Inflicted Psychiatric injury" [2004] SydLawRw 14; (2004) 26(2) Sydney Law Review 293

Shock Rebounds: Tort Reform and Negligently Inflicted Psychiatric Injury



This short article evaluates Part 3 of the Civil Liability Act 2002 (NSW). The author compares the legislative treatment of plaintiffs seeking to recover compensation for mental harm in NSW (formerly known as ‘nervous shock’), resulting from the NSW government’s extensive tort law reform in 2002, with that of the common law. In this context, the concepts of psychiatric injury, proximity, sudden shock and normal fortitude are analysed. It is argued that the legislative provisions are regrettable and an unfortunate intrusion into the common law of negligently inflicted psychiatric injury. The author concludes that the effect of the new legislative provisions on mental harm is to impede the logical development of the common law in this area, which the High Court of Australia signalled would flow from its decision in Tame v New South Wales; Annetts v Australian Stations Pty Ltd.

* BComm LLB (Hons I). I would like to thank Ross Anderson for his time and patience in the preparation of this comment. All opinions expressed and any errors are mine.

1. Introduction

As part of an attempt to reform negligence law in New South Wales, Part 3 of the Civil Liability Act 2002 (‘the Act’)[1] represents a significant narrowing of the scope of the common law action for pure mental harm.[2] The common law principles governing recovery for negligently inflicted psychiatric injury, particularly those respecting the duty of care, were restated in Tame v New South Wales; Annetts v Australian Stations Pty Ltd [3] prior to the introduction of the legislation. Part 3 contains broader coverage of the area than the High Court decision in Tame and Annetts.[4] However, given that Tame and Annetts [5] was an attempt to address the more recurrent and pressing uncertainties in this area of the law, the following evaluation will only focus on those sections of Part 3 that respond to the common law principles as recently (re)determined.[6]

First, this comment will briefly outline the crux of the decision in Tame and Annetts. Part 3 of the comment will then evaluate the Act by comparing the common law position on the need to establish a recognisable psychiatric injury, and on the relevance of geographical, temporal and relational proximity, sudden shock, and normal fortitude with the referable legislative provisions. In Part 4, the author concludes, arguing that the developments in the common law have been desirable in many respects, and that in winding back these advances and forestalling future developments in the common law, the NSW legislature has taken a regrettable step backwards.

2. The Position at Common Law

Just prior to the introduction of the Act, in Tame and Annetts,[7] the High Court of Australia clarified the common law position on negligently inflicted psychiatric illness. The High Court retained the need for a plaintiff to demonstrate a recognisable psychiatric injury.[8] For the purposes of cases in which the fault of the defendant immediately harms a person other than the plaintiff, the High Court declined to close the class of eligible claimants according to the directness of their perception of the event in question or its aftermath,[9] and the closeness of their ties with the person imperilled.[10] These circumstances, together with sudden shock,[11] were rejected as preconditions to recovery, and were deemed potentially relevant considerations in the overall question of whether a duty of care was owed only. A majority also held that there was no need to establish reasonable foreseeability of injury to a person of normal fortitude.[12]

3. Evaluating the Civil Liability Act 2002 Part 3

A. Recognisable or Recognised Psychiatric Injury

Section 31 of the Act mirrors the common law in stipulating that only recognisable psychiatric illness is compensable.[13] From early on, courts have permitted recovery for recognisable psychiatric illness but not for mere emotional distress or suffering.[14] The distinction is predicated on policy considerations, particularly fear of opening the floodgates,[15] given, inter alia, the ubiquity of emotional reactions to a given stimulus and a perception that psychiatric injury is less verifiable than physical injury.[16]

However, it is still possible to address this concern, assuming it is valid,[17] without requiring proof of recognisable psychiatric injury. The problem with ‘recognisable psychiatric illness’ is that it is elusive. As Butler argues, despite its medically aligned terminology, it is questionable whether psychiatry and courts can properly distinguish between mere emotional distress and recognisable psychiatric injury.[18] This makes the use of the standard to determine the viability of a claim potentially unfair and highly unsatisfactory. It is suggested therefore, that a preferable approach is to question whether the plaintiff has been rendered unable to restore psychiatric homeostatic equilibrium, and if so, has this adversely affected the plaintiff’s normal enjoyment of life.[19] The first limb accommodates the law’s policy refusal to compensate mere grief and sorrow,[20] and its practice of admitting expert testimony.[21] The second limb resonates with the concept of ‘normal enjoyment of life’ relevant in the assessment of damages,[22] and is a fairer criterion in a multicultural society where the notion of mere emotional distress is less definable.[23]

Arguably then, it would have been preferable had the legislature reformed the common law and removed this evidently, theoretically and practically unsound barrier to action, especially considering now that the risks that are to be deemed foreseeable have narrowed.[24]

B. Geographical and Temporal Proximity: Direct Perception at the Scene of the Accident

In cases where psychiatric injury is sustained as a result of death, injury or peril to someone other than the plaintiff,[25] as well has having to prove a recognisable psychiatric illness, the Act permits recovery only if the plaintiff witnessed the incident at the scene, or alternatively, is a close relative of the immediate victim.[26] Thus the Act reintroduces the notion of geographical and temporal proximity[27] rejected as irrational and arbitrary by the High Court in Tame and Annetts.[28]

As the High Court reasoned, presence at the scene must be rejected as a precondition to the founding of duty for its want of logicality.[29] It is difficult to see why for example, other than for floodgates fears, a plaintiff who is present at the scene and sees a close friend being hit and seriously injured by a motor vehicle is able to recover, whereas a plaintiff who is also a close friend but only able to attend the hospital a few hours later cannot.[30] Clearly, ‘because the supposed rule lacks any principled foundation, it mandates differential treatment of plaintiffs in substantially the same position.’[31] Hence the courts were soon compelled to ameliorate the irrationality of the rule, developing the ‘aftermath’ doctrine to allow recovery in cases in which it was foreseeable that a plaintiff not present at the scene of the accident would arrive shortly afterwards.[32] This was then extended to include attendance at the hospital: McLoughlin v O’Brian,[33] and further again to encompass ‘the period of immediate post-accident treatment’: Jaensch v Coffey.[34]

Thus floodgates fears or other policy considerations have not restrained the courts from attenuating the rigour of the presence rule and ultimately rejecting its utility as a precondition to recovery. Nonetheless, intent on curtailing tortious liability, the legislature has felt it necessary to reintroduce this restriction for plaintiffs who are not relatives, and in its pre-McLoughlin v O’Brian[35] form. Insofar as being present and witnessing the accident may be relevant to whether or not psychiatric injury was foreseeable, it is submitted that presence can only appropriately be a relevant consideration. To go further than this – s32(2)[36] – becomes indefensible.

Providing further support for this is the fact that to require presence is to require perception with unaided senses. To witness something as it happens is to see it first hand. Over the years, cases have prohibited recovery because the relevant event was not perceived of through unaided senses.[37] The High Court in Tame and Annetts[38] has held that this rule, apparently based on floodgates fears,[39] cannot be defended as an elemental part of the action. As medically accepted, learning of a traumatic event, for instance by third party communication, is not necessarily less affronting and lasting on the mind than seeing something happen with one’s own eyes at the scene.[40] For example, it makes little sense to deny relief to a godparent who learns of the death of his or her godchild from a car collision by telephone but not to an acquaintance who happened to be a passenger in the same car and survived. The rule is also ‘disjoined from the realities of modern communication.’[41] Arguably, a rule so devoid of rationality and arbitrary is indefensible on policy grounds.[42] Arguably, it makes a mockery of the legal system.

C. Relational Proximity: Close Ties

As noted, s30 only discards geographical and temporal proximity if plaintiffs are ‘close members of the family of the [immediate] victim’ as defined.[43] It would seem that the legislature takes the view that defined relatives of the immediate victim should be allowed to recover damages as a matter of policy, or that psychiatric illness may be foreseeable to these plaintiffs regardless of proximity factors.[44] This resembles the common law position insofar as it recognises the foreseeability of close relatives being mentally afflicted by somehow learning of a traumatic event involving a member of family,[45] which is just a reflection of reality.

However, the High Court specifically left open the definition of ‘close members of family’.[46] Thus the common law appreciates that the closeness of certain relations, such as that of parent and child and husband and wife, varies, and accordingly, their response to traumatic events involving their relatives varies. Thus the common law also recognises that some plaintiffs, although not parent, sibling or spouse, may be just as close or even closer to the person injured, killed or imperilled than a parent, sibling or spouse. For example, a child may in fact be closer to a friend than a stepbrother or stepsister.[47]

The legislation also gives regard to the fact that there inevitably is variation in the closeness of bonds in a given family relationship through s32.[48] However, because membership of only certain specified relationships entitles a plaintiff to claim, a close relationship with the immediate victim that would make the infliction of psychiatric injury reasonably foreseeable is necessarily non-compensable if it falls outside the defined class in s30(5).

It is not hard to imagine that s30(2) will work injustice to some plaintiffs, such as fiancées,[49] who were not present at the scene of the accident, but nonetheless, should have been contemplated as likely to suffer mental harm. Therefore, to move away from the flexibility of the common law position and categorically define who may claim, as the legislation does, is regrettable.

D. Sudden Shock

In respect of sudden shock, however, the legislation admits of more flexibility.[50] As noted, the High Court rejected the sudden shock rule as essential, seeing it only as relevant to the foreseeability inquiry.[51] Using the increase in diagnoses of depressive illness and the need to reach a decision based on sometimes conflicting medical evidence, courts have sought to justify the need for shock[52] to stem the flow of claims.[53]

It is argued that rationality and plausibility require the rejection of sudden shock as a precondition to recovery. For one thing, it has been pointed out that the floodgates concern is misplaced. As Teff states, ‘no liability arises unless factors inducing psychiatric illness are demonstrably bound up with ... the accident’.[54] Secondly, the notion of a single isolated event causing psychiatric illness is medically unsound.[55] Thirdly, faced with the rule, witnesses may ‘distort opinions on what they may feel to be legitimate claims out of deference to [the law]’.[56] Furthermore, the shock requirement sits incongruously with the common law approach to mental suffering consequent upon property damage, which does not require shock.[57] It is also conceptually irreconcilable with the ‘eggshell skull’ rule, which enables a plaintiff to recover for the full extent of his or her illness if the kind of damage sustained was foreseeable, even though the actual gravity or extent of the damage was not foreseeable.[58]

In embracing the common law’s rejection of shock as a precondition to liability, the legislature has given recognition to the artificiality and problematic application of the rule. However, arguably it would have been better had the legislature gone further and declined to specifically provide for its relevance in s32(2) as this suggests psychiatric illness is generally less foreseeable absent proof of sudden shock.

Nonetheless, perhaps the most regrettable feature of s32, and indeed, the entire Part 3, is the provision that no duty of care is owed unless a person of normal fortitude might have suffered psychiatric illness in the circumstances.[59]

E. Normal Fortitude

By circumscribing recovery to those plaintiffs whose illness was foreseeable to a person of normal fortitude, save those instances where the defendant knew or ought to have known of the susceptibilities of the plaintiff,[60] the legislation has abrogated the application of the common law. In Tame and Annetts,[61] the majority did away with normal fortitude as an essential element in the test of foreseeability.[62] Arguably, this is the preferable formulation.

The minority in Tame and Annetts [63] expressed the view that normal fortitude ought normally be retained as a precondition because it forms an inextricable part of the notion of reasonableness in reasonable foreseeability.[64] According to McHugh J, normal fortitude ‘strikes a fair balance between victim and tortfeasor’, precluding liability for unforeseeable responses and respecting ‘the right of citizens ... not to have their freedom of action and communication unreasonably burdened.’[65]

The problem with this reasoning is that it is premised on the assumption that there exists a normal standard of susceptibility to psychiatric illness. In fact, as medically recognised,[66] ‘[t]he community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary.’[67] The discussion concerning the difficulty of differentiating recognisable psychiatric illness and mere emotional grief also applies here. Hence application of the rule necessarily involves value judgments being made by judges as to the normalcy of the plaintiff’s reaction.[68] This makes the outcome of cases dependent on ‘ordinary reaction’ predisposed to arbitrary outcomes.[69] The normality of the Annetts’ reaction to their son’s disappearance and death, as perceived by the Court of Appeal[70] rejected as incorrect by the High Court, bears testimony to this proposition, as does the enactment of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) in response to Chester v Waverley Corporation.[71]

Accordingly, to bar recovery unless injury was foreseeable to a person of normal fortitude is medically unsustainable, artificial and productive of anomalies. This makes the legislative reintroduction of this rule as indispensable to the test of foreseeability highly problematic.

It is exacerbated by the fact it applies to all plaintiffs (subject to s32(4)), thereby representing a significant reversal of the common law position. Judgments in Tame and Annetts[72] indicate that where there is a pre-existing relationship between plaintiff and defendant, normal fortitude is irrelevant to foreseeability.[73] The Act, however, mandates the application of normal fortitude regardless of whether there exists a pre-existing relationship between the parties.[74] The inversion of the common law is thus pervasive. In this regard, it should also be noted that analysis of the minority reasoning in Tame and Annetts[75] reveals that, were it not for the undemanding test of foreseeability – not far-fetched or fanciful – all judges would apparently have concurred as to the relevance of normal fortitude.[76]

4. Conclusion

Evidently therefore, motivated by concerns that the tort system is geared too heavily in favour of plaintiffs, Part 3 of the Act now restricts plaintiffs in NSW from the benefit of establishing their cause of action free from some illogical and artificial policy limitations. While it is welcome that the legislation has left the relevance of sudden shock to reflect the common law, since the rule seems indefensible medically, conceptually or on policy grounds, regrettably the legislation retains the need for recognisable psychiatric injury, a term that cannot be defined with sufficient precision and fairly applied. The Act also reinstates the notion of direct perception and unaided senses, which as has been shown, is devoid of rational bases so as to be unsupportable on considerations of policy. Moreover, while duly recognising the foreseeability of close relatives suffering psychiatric illness on learning of a traumatic event involving family, the legislation goes an undesirable step further to define which members of family can recover. The effect of this is to arbitrarily preclude some genuine claims.

Probably most lamentable of all, is the legislation’s returning the concept of normal fortitude to the foreseeability test. It is highly regrettable because it affects virtually all claims for psychiatric injury, and the concept’s elusiveness means its application predisposes plaintiffs to subjectivity and potentially arbitrary outcomes. The required application of normal fortitude highlights and compounds the legislature’s arguably grievous attempt to curtail the positive and continuing development of the common law towards a more rational and principled approach to the law of negligently inflicted psychiatric injury.

[1] This Act, as amended by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), was an effort to confine the operation of the common law principles of negligence in response to ‘widespread public concern about large increases in the cost of ... public liability insurance, the impact of this on the community and government’, and the perception that courts were awarding some claimants ‘unjustified and/or excessive damages’: John Ball, ‘Uniform Tort Law: “A Fairer System for a Fairer Result”, Recommendations for a Balanced System That Treats Everyone Equally’, Law Society of New South Wales (2002) at 8. See also Reg Graycar, ‘Public Liability: A Plea for Facts’ (2002) 54 Plaintiff 37 at 37. It was felt that ‘[t]he insurance crisis served to highlight just how far the law has drifted away from the concept of personal responsibility’, and the amending Act was ‘intend[ed] to filter out unmeritorious claims and return tort law to a system that protects people who have been harmed by the bona fide negligence of others and who therefore deserve fair compensation’: New South Wales, Legislative Council, Parliamentary Debates (Hansard), No 52, 19 November 2002 <> (accessed 14 March 2003). The provisions in Part 3 largely adopt the recommendations on mental harm in the report of the Review of the Law of Negligence Panel, which was convened to inquire into tort law and to make suggestions for a principled approach to its reform: Jocelyn Kellam, ‘Negligence Review Has Broad Ramifications’ (2002) 13 Australian Product Liability Reporter 57 at 59. For commentary on the review basis, its assumption that existing tort law principles are contributing to unaffordable and unsustainable public liability insurance, and its approach to tort law reform, see Kellam generally. See also Australian Plaintiff Lawyers Association, ‘Tort Reform and Consumer Protection’ (2002) 54 Plaintiff 46; Law Council of Australia, ‘Second Submission by the Law Council of Australia to the Negligence Review Panel on the Review of the Law of Negligence’, paper submitted to the Review of the Law of Negligence Panel, 2 September 2002 at 2–5.

[2] By pure mental harm is meant psychiatric injury that is not consequent on personal injury of any other kind: see definitions in s27 of the Act.

[3] [2002] HCA 35; (2002) 191 ALR 449 (hereinafter ‘Tame and Annetts’).

[4] Ibid.

[5] Ibid.

[6] Other provisions of the Act that will not be discussed include the Part’s excluded application from workplace injuries but not from motor vehicle accident injuries: s5A, and proportionate reduction of damages based on contributory negligence of the immediate victim: s30(3).

[7] Above n3. This is the first time since Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, decided almost 20 years ago, that the High Court has revisited the principles governing the duty of care in psychiatric injury cases. While a significant decision in itself in allowing recovery in the circumstances of the case, Jaensch v Coffey left the law uncertain in many respects. The High Court was pressed and attempted to resolve these in Tame and Annetts.

[8] Tame and Annetts, id at 460 (Gaudron J); 495–496 (Gummow & Kirby JJ); 522 (Hayne J) and 542 (Callinan J).

[9] Id at 456 (Gleeson CJ); 461–462 (Gaudron J); 494, 505 (Gummow & Kirby JJ) and 517 (Hayne J). Callinan J dissented at 451.

[10] The idea of restricting claimants according to family relations was not considered an option by the High Court: see id at 460 (Gleeson CJ) and 461 (Gaudron J).

[11] Id at 456 (Gleeson CJ); 465 (Gaudron J); 494, 500, 502 (Gummow & Kirby JJ) and 519–520 (Hayne J). Callinan dissented at 540, 541.

[12] Id at 455–456 (Gleeson CJ); 464 (Gaudron J) and 494, 497, 498 (Gummow & Kirby JJ).

[13] Section 31 uses the term ‘recognised psychiatric illness’. There does not seem to be any significance in the use of ‘recognised’ as opposed to ‘recognisable’.

[14] See for example, Coultas v Victorian Railways Commissioners [1886] VicLawRp 185; (1886) 12 VLR 895 at 896 (Williams J); Dulieu v White [1901] 2 KB 669 at 672–3 (Kennedy J); Chester v Waverley Corporation [1939] HCA 25; (1939) 62 CLR 1 at 7–8 (Latham J); Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 28 (Devlin J); Hinz v Berry [1970] 2 QB 40 at 42–43 (Lord Denning MR); Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 394 (Windeyer J); McLoughlin v O’Brian [1982] UKHL 3; [1983] 1 AC 410 at 431 (Lord Bridge); Jaensch v Coffey, above n7 at 559–60 (Brennan J) and 587 (Deane J).

[15] Tame and Annetts, above n3 at 496 (Gummow & Kirby JJ); Nicholas Mullany & Peter Handford, Tort Liability for Psychiatric Damage (1993) at 21; McRae P, ‘Whither Nervous Shock? The Current State, Future Direction and Possible Reform of Compensation for Negligently Inflicted Psychiatric Injury After Ramstead(2001) 32 Victoria University of Wellington Law Review 521 at 536; Des Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’ (1997) 5 Torts Law Journal 67 at 74. Butler notes that opening the floodgates is perceived to have detrimental effects on the administration of justice, including the overtaxing of judicial resources, the imposition of disproportionate liability, and impediments to the functioning of society with wide liability discouraging parties from engaging in particular conduct that may involve the risk of inciting emotional responses. Floodgates concerns divided the New Zealand Court of Appeal recently in van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179 on this issue: compare Gault, Henry, Keith and Blanchard JJ at 197–199 with Thomas J (dissenting) at 202–206. As will become apparent, it seems that the floodgates fear has been the primary concern of the courts in the development of the common law in this area: see also Christian Witting, ‘A Primer on the Modern Law of “Nervous Shock”’ [1998] MelbULawRw 4; (1998) 22 Melbourne University Law Review 62 at 87–88. For an overview of policy considerations relevant to the law of negligently inflicted psychiatric injury generally, see The Law Commission, Liability for Psychiatric Illness, Item 2 of the Sixth Programme of Law Reform: Damages, Law Com No 249 (1998) at 81–83; Ian Freckelton, ‘Compensability for Psychiatric Injury: An Opportunity for Modernisation and Reconceptualisation’ (2001) 9 Journal of Law and Medicine 137 at 137–138; Des Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 Torts Law Journal 13.

[16] Butler, ‘Identifying the Compensable Damage in “Nervous Shock” Cases’, id at 73–74.

[17] Mullany & Handford argue that the validity of policy concerns is overstated: above n15 at 43–44.

[18] Butler ‘Identifying the Compensable Damage in “Nervous Shock” Cases’, above n15 at 78–9. There will be some cases where it is clear that the plaintiff has suffered a recognisable psychiatric injury rather than just emotional distress and vice versa, but there will also be borderline cases where the harm sustained cannot be objectively categorised. See also Hayne J’s discussion in Tame and Annetts, above n3 on psychiatric illness and emotional distress at 522–523, and contrast with Gummow & Kirby JJ’s discussion at 496. For other criticisms, see Nicholas Mullany, ‘Distress, Disorder and Duty of Care: The New Zealand Front’ (2001) 117 Law Quarterly Review 182 at 186 and Harvey Teff, ‘Mental Suffering Revisited in New Zealand’ (2001) 9 Tort Law Review 109 at 113.

[19] Butler, id at 82–84.

[20] Id at 84.

[21] Ibid.

[22] Id at 84–85.

[23] Id at 85.

[24] Section 5B defines reasonable foreseeable risks as risks that are ‘not insignificant’. This is intended to narrow the range of risks that would otherwise be held to be reasonably foreseeable under the common law test of ‘not far-fetched or fanciful’: see New South Wales, Legislative Council, Parliamentary Debates (Hansard), No 52, 19 November 2002, above n1.

[25] The victim will be subsequently referred to as ‘the immediate victim’.

[26] Section 30.

[27] This had origins in Hambrook v Stokes Bros [1925] 1 KB 141, and was subsequently applied by the High Court in Chester v Waverley Corporation, above n14.

[28] Above n3. Some lower courts have not felt bound by the rule and rejected it for its illogicality: see for example, Petrie v Dowling [1992] 1 Qd R 284; Reeve v Brisbane City Council (1993) 2 Qd R 661; Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR at 11 (Kirby P); Pham v Lawson [1997] SASC 6086; (1997) 68 SASR 124; Hancock v Wallace (2001) Australian Torts Reports 81–616.

[29] Tame and Annetts, id at 456 (Gleeson CJ); 461–462 (Gaudron J) and 494–495, 504–505 (Gummow & Kirby JJ). In the words of Gummow & Kirby JJ at 504 with whom Gleeson CJ at 456 and Gaudron J at 461–462 agreed:

A rule that renders liability in negligence for psychiatric harm conditional on the geographic or temporal distance of the plaintiff from the distressing phenomenon, or the means by which the plaintiff acquires knowledge of that phenomenon, is apt to produce arbitrary outcomes and to exclude meritorious claims.

Gaudron J at 462 also noted that requiring geographical and temporal proximity has the effect of limiting the categories of possible claimants in disconformity with the neighbourhood principle recognised in Donoghue v Stevenson [1932] AC 562.

[30] For more examples, see Rhodes v Canadian National Railway (1990) 75 CLR (4th) 248; Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310; Tranmore v T E Scudder Ltd [1998] EWCA 1895; Annetts v Australian Stations Pty Ltd [2000] WASCA 357; (2000) 23 WAR 35.

[31] Tame and Annetts, above n3 at 505. Continuing at 505, Gummow & Kirby JJ said that to transform what may be a relevant consideration to a prerequisite for duty in all cases ‘carries the risk of attribution of disproportionate significance to what may be no more than inconsequential circumstances.’

[32] See Boardman v Sanderson [1964] 1 WLR 1317; Storm v Greeves [1965] TASStRp 22; [1965] Tas SR 252; Mount Isa Mines Ltd v Pusey, above n14; Chadwick v British Railways Board [1967] 1 WLR 912; Benson v Lee [1972] VicRp 103; [1972] VR 879. This development was noted by Gummow and Kirby JJ in Tame and Annetts, id at 495.

[33] Above n14, see particularly at 422 (Wilberforce LJ).

[34] Above n7 at 607–8 (Deane J).

[35] Above n14.

[36] Section 32(2)(b) provides that whether the plaintiff witnessed at the scene a person being killed, injured or put in peril is relevant to the inquiry of foreseeability.

[37] See for example, Hambrook v Stokes Bros, above n27 at 152 (Banks LJ); 159 (Atkin LJ) and 165 (Sargant LJ); Chester v Waverley Corporation, above n14 at 43 (Evatt J); Bourhill v Young [1942] UKHL 5; [1943] AC 92 at 103 (MacMillan LJ); King v Phillips [1953] 1 QB 429 at 441 (Denning LJ); Mount Isa Mines Ltd v Pusey, above n14 at 407 (Windeyer J); Benson v Lee, above n32 at 422–423 (Wilberforce LJ); Jaensch v Coffey, above n7 at 567 (Brennan J) and 612 (Dawson J); Alcock v Chief Constable of South Yorkshire Police, above n14 at 398 (Keith LJ); 400–401 (Ackner LJ); 416–418 (Oliver LJ) and 423 (Jauncey LJ); Annetts v Australian Stations Pty Ltd, above n30 at 61, 63 (Ipp J, Malcolm CJ and Pidgeon J agreeing); Gifford v Strang Patrick Stevadoring [2001] NSWCA 175; (2001) 51 NSWLR 606 at 616–617, 622 (Hodgson JA, Handley JA and Ipp AJA agreeing). See also Mullany & Handford, above n15 at 153–166.

[38] Above n3 at 456 (Gleeson CJ); 461–462 (Gaudron J) and 494–495, 504–505 (Gummow & Kirby JJ).

[39] Note the reasoning and decision in Alcock v Chief Constable of South Yorkshire Police, above n30.

[40] McLoughlin v O’Brian, above n14 at 442 (Bridge LJ); Jaensch v Coffey, above n7 at 555 (Gibbs CJ); 608–609 (Deane J); Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 at 8–11 (Kirby P); 5, 7 (Gleeson CJ) and 22–23 (Clarke JA); and more generally, the outcome in Alcock v Chief Constable of South Yorkshire Police, ibid. See also Mullany & Handford, above n15 at 166–170. Some decisions at first instance have even abandoned the necessity of the principle: see for example, Petrie v Dowling, above n28; Reeve v Brisbane City Council, above n28; Quayle v State of New South Wales (1995) Australian Torts Reports 81–367. In South Africa the South African Supreme Court of Appeal has rejected the unaided senses rule: Barnard v Santam Bpk [1998] ZASCA 84; 1999 (1) SA 202; Nicholas Mullany, ‘Personal Perception of Trauma and Sudden Shock – South Africa Simplifies Matters’ (2000) 116 Law Quarterly Review 29.

[41] Tame and Annetts, above n3 at 504 (Gummow & Kirby JJ). See also Coates v Government Insurance Office of NSW, id at 11 (Kirby P).

[42] Note that there is actually no evidence that permitting recovery for psychiatric illness induced by learning of a traumatic event other than directly would proliferate claims: see Thomas J (in dissent) at 203 in van Soest v Residual Health Management Unit, above n15.

[43] Section 30(5) defines ‘close member of the family’ as (a) a parent or other person with parental responsibility for the immediate victim; or (b) the spouse or de facto spouse of the immediate victim; or (c) a child or stepchild of the immediate victim or other person for whom the victim has parental responsibility; or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

[44] Compare this to the view of the English Law Commission that where there is a close tie of love and affection between the plaintiff and immediate victim the requirement of direct perception should be abandoned, above n15 at 88.

[45] McLoughlin v O’Brian, above n14 at 422 (Wilberforce LJ); Jaensch v Coffey, above n7 at 605–606 (Deane J) and 569–570 (Brennan J); note also 555 (Gibbs CJ) relating relationship with proximity; Alcock v Chief Constable of South Yorkshire Police, above n30 at 337 (Hidden J); 397 (Keith LJ); 415–416 (Oliver LJ) and 422 (Jauncey LJ).

[46] Tame and Annetts, above n3 at 460 (Gleeson CJ) and 461 (Gaudron J). As Gaudron J stated at 461: Much of the reasoning in Jaensch v Coffey pointed to the illogicality of excluding claims by those in a close and personal relationship with the person killed or injured, but the actual decision serves to signify, in the words of Brennan J in that case, that “the categories of claimants [who suffer pure psychiatric injury] are not closed”.

[47] For further examples, see the discussion of the judgments at the three levels in Alcock v Chief Constable of South Yorkshire Police in Mullany & Handford, above n15 at 119–126.

[48] Section 32(2)(c) provides that the nature of the relationship between the plaintiff and any person killed, injured or put in peril is relevant to the question whether or not psychiatric illness is foreseeable.

[49] Compare the fiancée plaintiff in Alcock v Chief Constable of South Yorkshire Police, above n30.

[50] Section 32(2)(a) provides that ‘whether or not the mental harm was suffered as the result of a sudden shock’ is a factor to consider in the question whether the harm was foreseeable. ‘Sudden shock’ means shock in the sense described by Brennan J in Jaensch v Coffey, above n7 at 567: ‘the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognisable psychiatric illness.’ The need to establish shock denies claims for gradual onset of, or cumulative events causing, psychiatric disorders: see for example, Pratt v Pratt [1975] VicRp 37; [1975] VR 378.

[51] Tame and Annetts, above n3 at 456 (Gleeson CJ); 465 (Gaudron J); 494, 500, 502 (Gummow & Kirby JJ) and 519–520 (Hayne J). Prior to the High Court pronouncement in Tame and Annetts rejecting sudden shock as a precondition to the founding of a duty, courts denied recovery where psychiatric injury was caused other than by ‘shock’ in the sense described by Brennan J in Jaensch v Coffey, ibid. See for example, Campbelltown City Council v McKay (1988) 15 NSWLR 501; Anderson v Smith [1990] NTSC 43; (1990) 101 FLR 34; Spence v Percy [1992] 2 Qd R 299; Reeve v Brisbane City Council, above n28; Chiaverini v Hockey (1993) Australian Torts Reports 62–254; Pham v Lawson, above n28; Davis v Scott [1998] SASC 7201; (1998) 71 SASR 361. This has met with resistance from some quarters: see for example, Campbelltown City Council v McKay at 503 (Kirby P); Mullany & Handford, above n15 at 200–201; Harvey Teff, ‘The Requirement of “Sudden Shock” in Liability for Negligently Inflicted Psychiatric Damage’ (1996) 4 Tort Law Review 44 at 55–56; Des Butler, ‘A “Kind of Damage”: Removing the “Shock” From “Nervous Shock”’ (1997) 5 Torts Law Journal 255 at 269–275.

[52] Morgan v Tame [2000] NSWCA 121; (2000) 49 NSWLR 21 at 49 (Mason P).

[53] See Brennan J in Jaensch v Coffey, above n7 at 567: ‘If mere knowledge of a phenomenon sufficed, the bearers of sad tidings ... might be held liable’, and Lord Oliver in Alcock v Chief Constable of South Yorkshire Police, above n30 at 416 who expressed the concern that were it not for sudden shock the law would have to permit recovery for psychiatric illness induced by the prolonged aftercare of primary victims and for pathological grief following bereavement. See also Teff, above n51 at 45–46, 47.

[54] Teff, id at 55.

[55] Campbelltown City Council v Mackay, id at 503 (Kirby P); Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271 (Henry LJ); Butler, above n51 at 270–271. The Tame case provides an example of how psychiatric disorders can be sustained without sudden shock: see Tame and Annetts, above n3 at 500 (Gummow & Kirby JJ). In South Africa, the rule has been rejected by the Court of Appeal: Barnard v Santam Bpk, above n40, and in Singapore, the High Court has also rejected rule: Pang Koi Fa v Lim Djoe Phing [1993] 3 SLR 317.

[56] Campbelltown City Council v Mackay, id at 503–504.

[57] Butler, above n51 at 271–272.

[58] Jane Swanton, ‘Issues in Tort Liability for Nervous Shock’ (1992) 66 ALJ 495 at 501. See also Mount Isa Mines Ltd v Pusey, above n14.

[59] Section 32(1) provides that the defendant does not owe a duty of care to the plaintiff to take care not to cause the plaintiff mental harm unless the defendant 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.

[60] Section 32(4).

[61] Above n3 at 455–456 (Gleeson CJ); 464 (Gaudron J) and 494, 497, 498 (Gummow & Kirby JJ).

[62] While Jaensch v Coffey, above n7 cannot be taken as expressly requiring a plaintiff to prove that psychiatric injury was foreseeable to a person of normal fortitude: see at 556 (Gibbs CJ); 568 (Brennan J); 557 (Murphy J); 609–610 (Deane J) and 613 (Dawson J), lower courts have generally interpreted the case as requiring that psychiatric injury be foreseeable to a person of normal fortitude: see for example, Stergiou v Stergiou (1987) 4 MVR 435; Miller v Royal Derwent Hospital Board of Management (1992) Australian Torts Reports 81–175; Wodrow v Commonwealth (1993) Australian Torts Reports 81–260.

[63] Above n3

[64] Id at 475–476 (McHugh J); 519, 524 (Hayne J) and 534 (Callinan J).

[65] Id at 476.

[66] Des Butler, ‘Susceptibilities to Nervous Shock: Dispensing with the Mythical “Normal Person”’ (1997) 1 Macquarie Law Review 107 at 116–117.

[67] Chadwick v British Railways Board, above n32 at 992 (Waller J). See also Mount Isa Mines Ltd v Pusey, above n14 at 405–406 (Windeyer J).

[68] Butler, above n66 at 128–129.

[69] Ibid.

[70] Annetts v Australian Stations Pty Ltd, above n30 at 55–56 (Ipp J).

[71] Above n14. In this case the High Court held that a mother of normal susceptibility witnessing the body of her dead son being extracted from a water-filled trench would not suffer psychiatric illness.

[72] Above n3.

[73] Id at 466, 471, 481–483 (McHugh J); 508 (Gummow & Kirby JJ) and 534 (Callinan J); but see 521 (Hayne J).

[74] Section 32(1), (2)(d).

[75] Above n3.

[76] As noted above, the legislation has provided in s5B that only risks ‘not insignificant’ are foreseeable.

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