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High Court of Australia Transcripts |
Sydney No S83 of 2001
B e t w e e n -
CLARE JANET TAME
Appellant
and
JOHN MORGAN
First Respondent
STATE OF NEW SOUTH WALES
Second Respondent
Office of the Registry
Perth No P97 of 2000
B e t w e e n -
LESLIE ANNETTS and SANDRA ANNETTS
Applicants
and
AUSTRALIAN STATIONS PTY LIMITED
Respondent
Application for special leave to appeal
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 4 DECEMBER 2001, AT 10.21 AM
Copyright in the High Court of Australia
MR B.H.K. DONOVAN, QC: May it please the Court, I appear with MR S.C. FINNANE, for the respondent in that matter. (instructed by I.V. Knight, Crown Solicitor for New South Wales)
MR B.W. WALKER, QC: May it please your Honours, I appear with my learned friend, MR G.M. WATSON, for the applicants in the second matter. (instructed by Brezniak Neil-Smith & Co)
MR D.F. JACKSON, QC: May it please the Court, I appear for the respondent with my learned friend, MR N.J. MULLANY, for the respondent in that matter. (instructed by Deacons Lawyers)
GLEESON CJ: Mr Semmler, before we commence, I should mention that we have been giving some consideration to the order of proceedings and, subject to any submissions that counsel want to make to the contrary, it appears convenient to hear you first for the appellant in Tame, Mr Walker then for the applicant in Annetts, Mr Donovan then for the respondent in Tame, and Mr Jackson for the respondent in Annetts. Is that a convenient course?
MR SEMMLER: It is so far as we are concerned, your Honours.
GLEESON CJ: Very well. There was a question that occurred to us in relation to the representation of the parties and the written submissions that we have read. You junior, Mr Mullany, is appearing for the respondent in Annetts.
MR SEMMLER: That is correct, your Honour.
GLEESON CJ: Have you and he given consideration to his position in relation to the submissions that have been made?
MR SEMMLER: Your Honours, we have. Our concluded view was that there should not be a problem.
GUMMOW J: Are the clients aware of this?
MR SEMMLER: My client is aware of it.
KIRBY J: Does it not raise the possibility that counsel would be wishing to put arguments on the principles that would be in conflict with the arguments that he is putting in the other case? Counsel should not be in a position of embarrassment and the Court should not be in a position of embarrassment.
MR SEMMLER: Yes, that is perfectly correct, your Honour. Certainly, I proposed in this appeal for Mr Mullany to deal with one aspect of it, to follow me and deal with the question of shock. As I understand - - -
KIRBY J: I do not think it is a question of the oral argument, it is a question of the record.
MR SEMMLER: Yes. If your Honours are sufficiently concerned about this, I can certainly speak to - - -
GLEESON CJ: It is a matter, really, for you and Mr Jackson, as well as for Mr Mullany.
MR SEMMLER: Yes. Your Honours, from our perspective, from the perspective of the appellant Tame, we do not have a problem with it. I am not sure about Mr Jackson's position.
GLEESON CJ: Well perhaps you and Mr Jackson and Mr Mullany might give the matter further consideration and let us know what conclusion you come to. Yes, Mr Solicitor.
MR JACKSON: Your Honours, may I say one thing before - your Honours, one aspect of the matter to which your Honours have adverted is that it may be convenient, and I say no more about it, for the cases to be dealt with one by one as distinct from the order in which your Honour had indicated. Your Honour, I do not have any personal objection to the Court dealing with them in the manner in which they were indicated, but they do give rise under two separate cases in which perhaps slightly different considerations would apply.
GLEESON CJ: Well, then, you raise as a reason why we should deal with the matters sequentially rather than in the order that I originally proposed, the position in which Mr Mullany finds himself.
MR JACKSON: Yes, your Honour. Could I just say I appreciate entirely the issue that your Honour has raised and it is a matter to which I have discussed with Mr Mullany. Could I say, however, your Honours, in relation to it that the two cases, of course, until they were listed together by the Court - and it was appreciated, of course, one gathers from the special leave transcript, that the two matters would be listed together, but they were two quite separate cases, which might have been heard at quite different times by the Court and it may be that the - - -
GLEESON CJ: Very well, we will deal with them sequentially.
McHUGH J: Just before you do, one matter that is a little concern, Mr Jackson, is that in paragraph 47 of your submissions, which is signed by Mr Mullany, as well as yourself, you urge that reformulation of principle on which the applicants' case depends should be left to Parliament at this stage. Now, a different view is taken in the appellant's submissions in the other case: it is an urging of us to reform the law. There does appear to be a real conflict between those two stances.
MR JACKSON: Your Honour, could I say that it may well be that the issue of any conflict is resolved by the time we come to speak.
GLEESON CJ: Thank you. Yes, Mr Semmler.
MR SEMMLER: Thank you, your Honour. Your Honours, as I have already indicated, if it is convenient to the Court, I propose to deal with all of the grounds of appeal, except for (f) and (g), which relate to the sudden shock requirement. My learned junior, Mr Mullany, will follow me and deal with that issue. So far as the notice of contention is concerned, we would propose, if it is convenient to the Court, to deal with that at this stage, rather than in reply. I shall deal with all of the aspects of that, except for grounds 4 and 5 of the notice of contention, which deal with the question of the means of communication, which is related to the shock requirement and the proximity in time and space in ground 4.
GLEESON CJ: Mr Semmler, before you commence your argument, can I raise a matter which is, in a sense, procedural. As I understand it, the facts relating to the alleged negligent conduct appear on pages 728 and 729 of volume 4 of the appeal book.
MR SEMMLER: Yes, your Honour.
GLEESON CJ: The first respondent is Constable Morgan and the second respondent is the State of New South Wales, which is said to be vicariously liable for Constable Morgan.
MR SEMMLER: Yes.
GLEESON CJ: In fact, Constable Morgan does not appear to have done anything wrong.
MR SEMMLER: That is correct.
GLEESON CJ: The mistake was made by Acting Sergeant Beardsley, who filled in some parts of this report that Constable Morgan had left in blank, and then, apparently, a couple of months later, Acting Sergeant Beardsley noticed the mistake and whited out the offending entry.
MR SEMMLER: That is correct.
GLEESON CJ: The proceedings have been conducted so far, have they, on some kind of convention that it does not matter that the defendant was Constable Morgan as distinct from Acting Sergeant Beardsley?
MR SEMMLER: Yes, your Honour. From the time of the verdict of Judge Garling, there should have been a verdict for Constable Morgan because he clearly was not to blame. However, as it turned out, he became an appellant in the Court of Appeal and he remains on the record as a respondent in these proceedings.
GLEESON CJ: So it is really the second respondent's vicarious responsibility for the negligence of Acting Sergeant Beardsley?
MR SEMMLER: That is correct, your Honour.
GLEESON CJ: The other question that I wanted to ask you that may be more substantive is this: the negligence consisted in the manner in which a report into a motor traffic accident was prepared?
MR SEMMLER: That is correct.
GLEESON CJ: I presume that report was prepared, amongst other things, for the purpose of somebody making a decision whether somebody should be prosecuted for a criminal offence?
MR SEMMLER: Certainly there was evidence that it is taken into account in relation to matters such as that. Whether the report itself is critically necessary to that process is unclear from the evidence.
GLEESON CJ: I have not seen any reference in any of the written submissions to the question whether the decision that this Court recently gave in Sullivan v Moody has any bearing on whether or not a person who makes a report for the purposes of deciding whether criminal proceedings should be taken against somebody referred to in that report owes a duty to take reasonable care not to cause psychological harm to the person the subject of the report.
MR SEMMLER: The Sullivan v Moody decision has been referred to, I think, by - - -
GLEESON CJ: Yes, but in a different context.
MR SEMMLER: Yes.
KIRBY J: It is footnoted in your submissions, I think.
GLEESON CJ: It is referred to, but that aspect - indeed, which was the main aspect of the decision of Sullivan v Moody - does not seem to have attracted the attention of anybody.
MR SEMMLER: I think the answer to your Honour's concern lies in the fact that there is no clear evidence in this case - indeed, it would be surprising, we would suggest - that the completion of this traffic accident report is a critical ingredient in the question of whether or not a particular person involved in an accident is to be charged with a criminal offence. There is no clear evidence to that effect. Indeed, the weight of the evidence was really that it is more for the purposes of insurance, for the purposes of third parties making decisions about whether compensation should be paid, that these reports are completed, and presumably also for statistical purposes.
GLEESON CJ: This was actually a hit-and-run accident, was it not?
MR SEMMLER: No, it was a collision between two vehicles.
GLEESON CJ: Yes, and then the person who really was drunk took off.
MR SEMMLER: That is correct. In answer to your Honour's question, I do not think that it can be said from the evidence in this case that the P4 form, which is really a record, I suppose, of what occurred, is an important ingredient in the question of who should be charged.
GLEESON CJ: What prompted me to ask the question is that I see that Constable Morgan is described on page 728 as "the investigating officer".
MR SEMMLER: Yes. He was certainly the person who made inquiries about - he interviewed the appellant. He made inquiries about the accident. Your Honours, I think I would be correct in repeating that, in fact, the report is more of a bureaucratic document, a document intended simply to record information. Other decisions in relation to the accident and who was involved and who should be charged are taken separately.
GLEESON CJ: What page is the report?
GAUDRON J: Yes. It is not a question of whether it is simply a bureaucratic report. I mean, these forms are filled in for a purpose and I do not imagine that their primary purpose is to satisfy the needs of insurers.
MR SEMMLER: It is at 525, your Honour, the P4 itself, in volume 3. In answer to your Honour Justice Gaudron, the purpose of these reports was discussed by three police witnesses who were called whose evidence is found in volume 2, commencing with Constable Morgan at 352 but perhaps more relevantly discussed by Mr Houlton, who is the Deputy Director of the Services Infringement Processing Bureau at the police department. His evidence commences at page 405 of volume 2. He is the head of the unit to which the P4 reports are sent.
GLEESON CJ: What is that unit?
MR SEMMLER: It is the Accident Information Unit. It is at 405, line 26. He indicated at 406, line 33:
that the information that your unit holds and collates about traffic accidents can have important consequences -
It is a "matter of public record". His evidence more goes to the importance of the information being correct than to the - - -
CALLINAN J: What about page 407, line 20?
MR SEMMLER: Yes, I think that is the closest that the evidence comes to - - -
CALLINAN J: This must be the foundation document for any further investigation with a view to prosecution, must it not?
MR SEMMLER: Your Honour, that is not clear from the evidence.
CALLINAN J: Why is it not clear from that? "Some of the information contained within the report is used in criminal proceedings". "Yes, I believe there is."
MR SEMMLER: Your Honour, that is certainly what he said.
CALLINAN J: As Justice Gaudron put to you, the police department is unlikely to be performing a service for the insurance industry.
MR SEMMLER: That may not be the purpose, perhaps, of the compiling of the reports and their filing but indeed it is one of the major uses to which such reports are put, it would seem. There were, I think, 80 something thousand of these reports prepared in 1991, the year of this accident, and about 32,000 applications were made for them, presumably by parties to the accident.
CALLINAN J: You tell me whether this is correct, but would not most prosecutions for mere traffic offences depend upon the decision of fairly low ranked officers? A sergeant or a constable of police would make a decision, would he or she not, whether to prosecute for a traffic offence?
MR SEMMLER: Your Honour, that is what we do not know from this evidence.
CALLINAN J: They have authority to do it, there is no doubt about that.
MR SEMMLER: Yes.
CALLINAN J: All police officers have authority, is that not right?
MR SEMMLER: Yes. We do not know, for instance in relation to serious criminal offences, where the decision is taken and by whom. It is not clear from this evidence.
CALLINAN J: But it could be taken by any police officer at all. It is within a police officer's ordinary authority.
MR SEMMLER: Yes, we would accept that. Your Honour, the answer to your Honour's concern is that it really was not sufficiently explored as to the role of this document in the decision.
GAUDRON J: You are the plaintiff.
MR SEMMLER: Yes, your Honour.
GAUDRON J: And what you have is a document/communication as the basis of your claim in negligence. If there is a defect, it must be rebound to your side of the Bar table I think, must it not?
MR SEMMLER: Yes. Well, we would accept that. In any event, your Honours, perhaps if we could come back to the Sullivan v Moody issue.
KIRBY J: Could I just ask two little questions arising out of this - - -
MR SEMMLER: Yes.
KIRBY J: The first is, do I take it that the Law Reform (Vicarious Liability) Act 1983 , which Justice Mason deals with on 786, overturned the Enever doctrine and establishes the vicarious liability of the State for the actions of the police constable, and that is not in dispute?
MR SEMMLER: Yes. There is no dispute that the State of New South Wales is liable for the carelessness of Acting Sergeant Beardsley.
KIRBY J: The second question is, what are we now to do about Constable Morgan? Justice Mason points out that he is destined to enter the law reports in respect of something never involved him indirectly - - -
MR SEMMLER: Yes, perhaps the case should properly be described as - - -
KIRBY J: I am not concerned of the title, but I am concerned - is he really a proper party or is it too late to remove him now? He was the appellant in the Court of Appeal and he is the first appellant here? It seems all very odd.
MR SEMMLER: Your Honour, perhaps he really should not be a party.
KIRBY J: Perhaps you can give thought to that and at some stage tell us whether he should be removed from the record or not.
MR SEMMLER: Perhaps the proper course would be to amend the notice of appeal - - -
GLEESON CJ: What did Judge Garling do? Did he enter judgment against Mr Morgan?
MR SEMMLER: Yes, he did, your Honour.
GLEESON CJ: Well then, he is a proper party if he has a judgment against him. He has to get rid of it by a process of appeal.
MR SEMMLER: But it was a judgment in his favour.
KIRBY J: He got rid of it in the Court of Appeal and the question is, are you seeking to restore it against him?
MR SEMMLER: Yes, well, strictly, your Honour, we - - -
KIRBY J: You have to give some thought to that, I think.
MR SEMMLER: Yes.
GLEESON CJ: Where is Judge Garling's order?
MR SEMMLER: Page 744 of volume 4. It is a judgment against the defendant. It is not clear against - - -
GLEESON CJ: There seems to be some words omitted from my copy of this judgment.
MR SEMMLER: The critical paragraph would be paragraph 1, "The Plaintiff recover against the Defendant", the word "as" has been struck out.
GAUDRON J: But he has called the first defendant in the order.
MR SEMMLER: Yes.
GUMMOW J: Presumably someone in the New South Wales District Court actually checks these orders before they sign them.
MR SEMMLER: Well, your Honours, perhaps we could give some thought to that. Your Honours are quite correct, with respect - - -
GUMMOW J: It is gibberish.
MR SEMMLER: - - -in observing that he should not be here.
KIRBY J: But you will have to be a little careful, because if you succeed in the appeal, then normally that would mean the restoration of the orders of the primary judge and those orders rest on the reasoning of the primary judge and I just do not quite know where it all leads.
MR SEMMLER: Yes. We will give that some careful thought, your Honour. Your Honours, could I commence with ground 2(a), our first ground of appeal. Our submission is that at the start of the 21st century it is no longer appropriate for Australian courts to treat psychiatric injury as fundamentally distinct from physical injury and in consequence to impose special limitations on recovery for psychiatric injury which do not apply to other personal injury claims.
McHUGH J: Why not?
MR SEMMLER: Well, your Honours, could I summarise the reasons and then deal with them in turn. Your Honours, the past approach whereby these species of injury are treated differently, in our submission, is founded on both ignorance and fear - and I mean no disrespect to the courts in the past - ignorance of the true nature of psychiatric illness and fear of the consequences if it is afforded parity with physical injury. Your Honours, while some judges in the past - - -
McHUGH J: But you could make the same argument about duties of care in relation to economic loss. I mean, the fact is that psychiatric injury is different and does pose different problems. Now, let it be accepted that all your criticisms about foreseeability are absolutely correct. Surely you need a control device or control devices of some kind. In the field of public duties, in the field of economic loss, the court has said that reasonable foreseeability cannot be the sole criterion of a duty of care and the courts have struggled in the area of nervous shock to control the raw application of foreseeability, you would say - and I tend to agree with you - unsatisfactorily, but that does not mean that even if you accept your arguments about reasonable foreseeability, that that is the end of the matter. It seems to me - and your submissions do not deal with this - that one has to consider what other control devices are available or to be used or should not be used.
MR SEMMLER: Your Honour, we accept that sound policy may, in an appropriate case, dictate that something more than reasonable foreseeability should determine whether a duty of care arises in a psychiatric injury case.
HAYNE J: What does that mean? It is a proposition of absolutely no content.
MR SEMMLER: Yes, your Honour. Perhaps it should be regarded in the same way as the courts are now regarding the concept of proximity, in that it can only really be determined when one has a case where sound policy reasons come to the - - -
HAYNE J: "Sound policy reasons" is a proposition of no content. What is the content that you seek to attribute to it? "Sound policy reasons" is voodoo language.
MR SEMMLER: Your Honour, our submission is in this case there are no such reasons, and that is the case that your Honours are dealing with.
KIRBY J: So it is a disappearing voodoo?
MR SEMMLER: It is something that we would accept may well arise in other cases.
GAUDRON J: There is one policy reason, it seems to me, that to some extent relates to your case and, perhaps more directly, relates to the next case. Where you are talking about mere communication of distressing information, you have to factor in, I should have thought, the right of people to be informed, their interest in being informed. I mean, they are really in quite distressing situations such as occurred, perhaps more directly in the second case. They cannot be kept in ignorance.
MR SEMMLER: No.
GAUDRON J: The other matter is that, just as in Sullivan v Moody, this area of the law has to be accommodated to at least co-ordinate it with the law of defamation, concepts of freedom of speech, and so on. So, I mean, the policy issues are not entirely at large and I would have thought that a very considerable number of those policy issues actually impinge in your case.
MR SEMMLER: Yes. Certainly, your Honour, we would readily embrace the first of those policy issues that your Honour Justice Gaudron identified, that is, the right of people to be informed. In relation to that, we would invoke what your Honour Justice Kirby had to say in Coates, that this means of communication notion that has, up until now at least, prevented many people from succeeding in claims for psychiatric injury is something that really is completely at odds with modern telecommunications. To that extent, your Honour, we embrace the policy considerations which, we say, favour recovery in cases where the plaintiff has been told of what occurred because there are rights that people have to be told.
GLEESON CJ: But the relevant communication in the present case was a communication by a police officer to the police department about the circumstances of a traffic accident.
MR SEMMLER: That is true, your Honour, but it was also a communication which he and the police department knew would be made to third parties, including people on whom persons in the position of the plaintiff would rely so far as their decisions were concerned.
GLEESON CJ: So your proposition - to reduce it to this concrete case - is that in completing a report about the results of an investigation of a motor vehicle collision, a police officer owes a duty to take reasonable care not to cause psychological injury to one of the persons whose conduct is the subject of the report.
MR SEMMLER: With respect, that is one way of putting it, but he owes a duty to a foreseeable recipient of that report. Your Honour talks about conduct that is the subject of the report. It may be important to focus upon that in the case of someone who is being charged with a criminal offence, because it is apparent from the report that that person was at fault, in a criminal sense. But it is not an appropriate focus in a case where we are dealing with a completely innocent party in a traffic accident.
GLEESON CJ: You say, you are dealing with an innocent party. One of the consequences of modern life, of being involved in a motor vehicle collision, is that somebody is going to force you to take a breath test.
MR SEMMLER: Yes, we would accept that.
GLEESON CJ: And another of the consequences is that some policeman is going to report to some other policeman on the results of that breath test. A possible consequence is that you might be charged with a breach of the law. That is the context in which you say this duty of care to avoid psychological harm arises in the present case: a policeman reporting to another policeman about the results of a breath test.
MR SEMMLER: That is true, but there is a critical distinction here. If your Honour is, with respect, invoking the principle that was articulated in Sullivan v Moody, the critical distinction is that the person we are dealing with here, who foreseeably will receive this report, was not at fault.
GLEESON CJ: She was a suspect. She was compulsorily breath tested because she was a suspect.
MR SEMMLER: At the time when the form was filled in, she was not a suspect. A mistake was made. She was not - - -
GLEESON CJ: How did she come to be breath tested?
MR SEMMLER: Because she was involved in a motor vehicle accident.
GLEESON CJ: That is right. That is all you have to do: be involved in a motor vehicle accident and the law compels you to submit to an investigative technique.
MR SEMMLER: That is true, your Honour, but, with respect, there is a critical distinction between the time at which she is a suspect and the time at which this form is completed. She is no longer a suspect when it is completed. This is a bureaucratic process of recording information, at a time when there is no chance that she will be charged with any criminal offence. It is a mistake made in a document where she is not a suspect. At that time, she is not a suspect. There is no question of a conflicting responsibility, in a sense of discharging the duties of a policeman to properly investigate crime and at the same time looking over his shoulder and being concerned about possible litigation over that same act, because the relevant act has already been performed. The breath test has been conducted; the results are known; she is no longer a suspect.
GLEESON CJ: What happened to Mr Lavender?
MR SEMMLER: He was prosecuted, your Honour.
GLEESON CJ: As a result of the information that was conveyed in this document?
MR SEMMLER: We do not know.
HAYNE J: Well, do we not? At 525, on the report, do we not see what he was charged with?
MR SEMMLER: Yes. Certainly, it records the circumstance, but it is not clear from the evidence that this document is the reason why he was charged. Indeed, one would expect that it probably was not. These decisions are taken before the form filling, as it were. The results are obtained and, no doubt, urgent steps are taken to apprehend and charge and proceed to prosecute the person at fault. But, in our submission, it is not appropriate to look at this form in the same way that one might look at a recommendation in a form or the communication of information, like in Sullivan v Moody, about possible criminal offences having been committed. This is an ex post facto completion of material after relevant inquiries have been made and decisions have been taken.
To come back to your Honour Justice McHugh's question, the reasons why it is not appropriate for physical injury to be differently regarded from psychiatric injury, or vice versa, is the ignorance and fear that I have referred to. Although it may be that some judges over the years have recognised that it is not sensible for the law to distinguish between psychiatric and physical injury, the reality is the law has done and has done up until the present time.
GAUDRON J: Again you say it is not logical but there is some logic, I suggest, and one has to deal with it if one is going to attempt to make any principled exposition of the law. The law has traditionally respected your physical integrity. If you are close enough to be physically injured by the careless act of somebody, you can assume proximity is satisfied. But we are talking about a situation here where, ex hypothesi, there is no physical injury. The injury occurs some other way. Thus far sight, presence, et cetera, has perhaps satisfied the proximity criterion. Proximity is not a new idea, notwithstanding that it has been the subject of angst and debate in the field of economic loss, but there is still the neighbourhood test and it is a test that has to be satisfied in this area in a context at least where people are entitled to information and where you cannot easily shield people from the consequences of information.
McHUGH J: You have to face up to what Justice Cardozo spoke about in Ultramares Corporation v Touche about persons being liable in an indeterminate amount for an indeterminate time to an indeterminate class. Take September 11. It may be that the FBI or the airport controllers were guilty of negligence in allowing people to get on that particular plane. It may well be that tens of thousands - perhaps hundreds of thousands - of people all over the world have suffered shock as a result of those events. Is the FBI or the airport to be liable for all the consequences of that? If not, why not? What is the principle? Factors such as indeterminacy, vulnerability, it seems to me, all these matters are matters that have to be considered. You just cannot treat nervous shock cases as you can physical injury cases.
MR SEMMLER: But with respect, the answer to the question your Honour has posed is found in the reasons why there is such concern about events such as September 11. What I am trying to communicate is that it is underlying this kind of question in a psychiatric injury case, which really would not be posed in a physical injury case, is the concern of indeterminate liability. That is as your Honour has articulated.
McHUGH J: It is true that in physical injury cases an act of negligence can cause a great deal of harm to a lot of people, large numbers, particularly when it is a fire or an explosion or something, but in the ordinary run of things nervous shock cases are likely to have a much wider spread than physical injury cases.
MR SEMMLER: Your Honour, with respect, that is true in the sense that people can watch it on television and they do not have to be physically affected by what occurs. That is quite correct, your Honour. But there is an important distinction between the ambit of the effect of something that can cause psychiatric injury and whether or not in reality that will provoke a flood of cases, because underlying your Honour's question, as underlying the questions that have been put in all of the key cases in this area going back for decades, has been this fear of opening the floodgates in psychiatric injury cases.
HAYNE J: No, it is not. It is a question of identifying to whom the duty is owed. Now, portray that as the floodgates, if you will, but is the principle for which you ultimately contend that the duty is owed to anyone in respect of whom this kind of injury is foreseeable?
MR SEMMLER: Yes, your Honour.
HAYNE J: Do you nail your colours to that mast?
MR SEMMLER: No, with the rider that in an appropriate case, of which this is not one, if there are sound policy reasons, then they may constitute a fetter on that.
McHUGH J: That is Anns. So you want us to reintroduce Anns into Australian law after we expelled it in Sutherland v Heyman?
MR SEMMLER: Your Honour, at the present time, with respect, it is really uncertain as to what, in addition to reasonable foreseeability, is to govern the development of the - - -
McHUGH J: I think one thing is certain, Anns does not.
MR SEMMLER: No.
McHUGH J: And it has not since Sutherland Shire v Heyman.
MR SEMMLER: Your Honour, if I can put it this way, if there are legitimate reasons for imposing a particular constraint upon the duty of care in a psychiatric injury case, then no doubt they will be determined in future cases.
HAYNE J: That is simply deferring the problem. It is not answering it. It is deferring it.
MR SEMMLER: But, your Honour, one of the reasons, with respect, that proximity is now no longer the unifying principle in this area is for the very reason that, as your Honours have said repeatedly in recent cases, it does not give any practical guidance as to when in a particular case a duty will arise.
McHUGH J: I know, but that is what we have to - if we are going to change this law, then we have to have some guidance. In Crimmins I attempted to lay down some principles in that type of case. I think I tried to do the same in Perre.
KIRBY J: We all tried to do - - -
MR SEMMLER: Yes.
McHUGH J: But to simply say that once you can reasonably foresee nervous shock occasioning then liability ensues unless there is some policy reasons just seems to me to be introducing Anns into Australian law.
GLEESON CJ: And it makes the ambit of potential liability expand with medical knowledge. The collapse of a major insurance company hurts a lot of people but it does one good thing: it reminds lawyers of the fact that not all defendants are insured.
MR SEMMLER: Yes, your Honour, that is correct, but the reason why they are not insured is because the insurer has collapsed.
McHUGH J: Yes, I know, but it means that there are individuals out in our society today who have very large judgments against them and they cannot pay them and they stare bankruptcy in the face. We have been acting for 50 or 60 years or more on the basis that really there is an insurer always at the back of it, but as the Chief Justice has pointed out, maybe that is not always the case.
MR SEMMLER: Yes, but, your Honour, the remedy to that is to have proper surveillance of insurance companies, not to interfere with sound principle and restrict people's rights simply because of this fear of too many cases and, in some instances, insufficient insurance or - - -
GLEESON CJ: Take the question of principle you wish to raise, that is the distinction between physical injury and psychiatric injury. Suppose that a negligent driver runs down a man on a pedestrian crossing in a street in Darlinghurst, the street is outside St Vincent's Hospital and the man who is run down is a heart surgeon and waiting for him, when he does not arrive, is a critically-ill patient whose wife is attending what was intended to be the operation and when she hears that her husband's heart surgeon has been seriously injured and the operation cannot go on she suffers anxiety which degenerates into clinical depression. Does the driver owe her a duty of care and, if not, why not?
MR SEMMLER: If it is foreseeable that she will suffer as a result of his tort - - -
GLEESON CJ: What do you mean by "foreseeable"? Imaginable?
MR SEMMLER: If it is not far-fetched or fanciful - - -
GLEESON CJ: Is the example I gave you far-fetched or fanciful?
MR SEMMLER: Your Honour, I do not know the full facts, but from the facts that your Honour has given me, it would not seem to be far-fetched or fanciful. In those circumstances, unless the Court considered that there was some legitimate reason for disallowing her right to recover, then she should recover. We would need to know the full facts. Similarly, your Honour, with your Honour's reference to the September 11 events in New York, it may well be that there are some sound reasons why there should be a restriction on recovery there.
McHUGH J: There may be. That is what I want to get from you. What are the principles? At the moment all we have is a re-run of a 1978 decision, Anns.
MR SEMMLER: Your Honour, could I just answer your Honour's question in this way. First of all, the fear that your Honour would have of virtually unlimited liability - people see these events on television, some of them get shocked and become psychiatrically disturbed. That is a fear, first of all which, we would say, there are reasons why it is not justified. Even if it is justified, it is a fear in relation to secondary victim cases. Mrs Tame's case is not a secondary victim case. This is not the occasion to be speculating on that kind of situation. Mrs Tame was injured - - -
McHUGH J: Yes, it is, because you do not want to apply the traditional law. You want us to change the law. If you want us to change the law, then we expect, or at least I do, some assistance in what are the principles that we are to apply that would be of general application. This Court is not here just to decide a case, important though it is to the particular litigants. One of its most important functions is to state principles which are of general applications to thousands of cases or cases that are roughly analogous to this case before the Court.
MR SEMMLER: Your Honour, we accept that and we do wish to be of assistance, but we have just ended an era where this notion of a unifying concept, which does lay down principles of proximity, has just been abandoned. True, it may be helpful to attempt to reconstruct some edifice that will give specific guidance, but this Court has just finished with demolishing an edifice.
GAUDRON J: Yes, but we still have to find a neighbour, and although this Court may have said, "proximity will not be the answer", it has, nonetheless, pointed out a number of indicators which will tell you in a particular case who your neighbour is. Now, in a case of a nervous shock case, who is your neighbour? It seems to me reasonably foreseeable that the communication of bad news affecting an individual or any member of his or her family or his or her close associates, could suffer nervous shock upon the communication of that bad news. That nervous shock could deteriorate into a severe mental illness.
MR SEMMLER: Certainly, your Honour, that is consistent with modern psychiatry understanding.
GAUDRON J: Yes, very well. Now, who are your neighbours? Who owes the duty of care? Obviously, policemen, doctors, school teachers and so on communicate such news to people routinely, regularly, on a daily basis. Did they owe a duty of care to the recipient of bad news?
MR SEMMLER: They do, your Honour, with respect, just as the police department in this case owes a duty because we are dealing with - - -
GUMMOW J: But how would the duty be discharged?
MR SEMMLER: By being more careful.
GAUDRON J: No, well, you are talking about what turns out to be incorrect information.
MR SEMMLER: Yes.
GAUDRON J: Let us look at it in the broader scope at the moment.
GUMMOW J: Often it will be correct.
GAUDRON J: Most of the time it will be correct and the people will have an interest in being informed, must be informed.
MR SEMMLER: Well, there are obviously competing considerations that need to be taken into account. If this Court decides there is this interest in the people being informed, but at the same time there is a conflicting interest in ensuring that they are not subjected to something which might cause psychiatric illness, then that may well be a situation where policy reasons dictate that there is no duty, but that is not this case.
GAUDRON J: Every time there is an industrial accident or a car accident for which a person is liable in negligence, surely it will be foreseeable that the member of the victim's family, on being told, could suffer nervous shock and it could develop into a full-blown neuroses or psychoses.
MR SEMMLER: With respect, that is correct.
HAYNE J: And wherever you draw the boundary, those who are most closely interested are going to lie within the boundary, are they not, so that the problem you confront is testing it against the case of the person who is most closely interested in the fate of the victim that is being communicated to them? Now, you say, repeatedly, "Ah, there may be competing considerations". What are they? What is the competition? How do you resolve it?
KIRBY J: The answer to Justice Hayne's questions is to be found in any of the decisions of equivalent courts which we simply have re-examined this. Let us not reinvent the wheel unnecessarily. As I understand it, from your written submissions, the courts in England, South Africa, and other somewhat exotic places, have revisited this area.
MR SEMMLER: Yes.
KIRBY J: Is there anything in the way they have dealt with it that helps the Court come to the controls that obviously will need to be put in place?
MR SEMMLER: Well, your Honour, our submission is that the trend has been to, in effect, remove the control, certainly in the Barnard's - - -
McHUGH J: Just as well Justice Kitto is not sitting here when you use the word "trend", he would have gone off his head.
MR SEMMLER: Yes, well, it is probably an inappropriate word, your Honour, but I do not know that by referring to cases overseas I am going to answer his Honour Justice Hayne's question.
KIRBY J: But the House of Lords did introduce this primary and secondary classification.
MR SEMMLER: Yes.
McHUGH J: But you criticise it.
MR SEMMLER: Well, in some respects it is helpful to Mrs Tame's case here today. Indeed, it is very helpful. She is a primary victim and according to the test, at least enunciated by Lord Oliver in Alcock's Case, because she is directly affected, she is not a bystander, she would recover.
GLEESON CJ: Could we just look at this concept of primary victim? That division into primary and secondary victims seems to apply in a rather different context from that of the present case. A lot of these psychiatric injury cases were cases where the harm resulted from witnessing or hearing of physical injury to a third party, but that is not this case.
MR SEMMLER: No.
GLEESON CJ: Neither Constable Morgan nor Acting Sergeant Beardsley communicated anything to Mrs Tame. True it is Mrs Tame rang one of them up and complained about it at a later stage but the communication with which we are concerned which involved the negligent conduct, was not a communication to your client. It was an internal police communication and the contents of it were communicated to your client by her solicitor at the same time as telling her that it was a mistake. Now, what is the relevant communication?
MR SEMMLER: Well, it is not so much the communication as the act.
McHUGH J: Now, what is the act? It seems to me insufficient attention was given in the Court of Appeal judgment, for example, as to what the act was. There was a reference to the police service owing a duty. You are using a description that is not even a legal entity.
MR SEMMLER: No.
McHUGH J: And what is the act? Is it the act of Acting Sergeant Beardsley in writing down on the report "0.14"?
MR SEMMLER: Yes.
McHUGH J: So the point is that when he wrote that down he should reasonably have foreseen that that document would be communicated to an insurance company, to its solicitor, and would ultimately be communicated to the plaintiff and that it might affect her.
MR SEMMLER: Yes, that is correct; that is our case.
GLEESON CJ: Why is not the cause of action a cause of action against her solicitor?
MR SEMMLER: Because the clearest psychiatric evidence in this case is to the effect that it was not so much who communicated it as the content of the information of which she became aware.
GLEESON CJ: But presumably on your principle, her solicitor owed her a duty to take reasonable care, when he communicated to her the contents of that traffic report, not to expose her to psychological harm.
MR SEMMLER: Yes, that may be, but that is not this case and the evidence was not that the harm was done by reason of the way in which it was communicated. I know my learned friends in their notice of contention put great store on the fact that there was a conflict. Mr Weller is said to have said, "Well, you know, they say you've been drinking", but the psychiatric evidence which talks about the chain of causation stresses that it was the fact that someone in authority had effectively said this about her in a document, that was the trigger, as Dr Phillips put it, that caused her to move from one state to another, to a very disordered psychiatric state. It was that. This is not a case of communication. As Justice Brennan said in Jaensch v Coffey, the precise chain of events whereby the nervous shock is caused or results is not of critical relevance. If it is foreseeable that she will become aware of this information that has been wrongly recorded, that is all that matters. The fact that it is by medium of a solicitor - as Judge Garling said, it would be expected that the solicitor would communicate this to her and, indeed, Judge Garling went so far as to say he would be careless if he did not.
McHUGH J: Why then is not the person who reads the auditor's report owed a duty of care by the auditor? In Esanda and other cases, this Court and other courts have held that the fact that you know damaging information is going to be delivered to some other person or acted on is insufficient. Now, why in this particular case? Why should we distinguish in this case between Esanda and the position of Acting Sergeant Beardsley?
MR SEMMLER: Well, in this case, psychiatric injury was caused, on the judge's findings - - -
McHUGH J: Yes, but so does the investor who reads the auditor's report and goes and buys shares.
MR SEMMLER: But he is relying upon the error. He is relying upon the information which is a product of carelessness. Mrs Tame is not relying on it. Mrs Tame is injured by reason of the fact that this error is made. She does not act to her financial detriment. She does not act in any way in reliance upon this information.
McHUGH J: I know she does not, but in terms of causal theory there does not seem to me any difference between the two cases. One is a case, causation is brought about by the reliance, and the other case, causation is brought about by hearing or reading the information, but there is still the causal connection.
MR SEMMLER: In our submission, what your Honour says and what our learned friend says in invoking these notions of negligent misstatement, this is not a negligent misstatement case. There is no - - -
GLEESON CJ: It is a defamation case, is it not? She found out that she had been defamed in a police report and it shocked her.
MR SEMMLER: Your Honour, she suffered personal injury.
GLEESON CJ: If she had sued for defamation - - -
McHUGH J: Which she could have.
MR SEMMLER: Whether she would have succeeded or not and how much she would have recovered - - -
GAUDRON J: Exactly.
MR SEMMLER: - - - are moot issues but - - -
GAUDRON J: No, it is an important issue. At the very least it seems to me that the law with respect to communications has to be coherent. It cannot be different depending on the nature of the injury and there can be no doubt that what was in this report was defamatory and it was published.
McHUGH J: And Rigby v Mirror Newspaper says she could get damage for the nervous shock caused by reading the material. So all the damage that she claims in this action could have been claimed in an action for defamation.
GAUDRON J: And if the actions of Acting Sergeant Beardsley would have fallen within one of the defamation defences, it seems to me that it could not at the same time result in liability for nervous shock because it is a negligent misstatement.
MR SEMMLER: In attempting to answer your Honour's questions in relation to that, could I make these submissions. Mrs Tame, her nervous shock arose not simply because of her concern about her good name or the fact that it had been affected, she believed, by this document. There is a whole raft of reasons that she gave and that were discussed by the psychiatrist as to why she suffered this injury. The fact that it was her character that was being brought into question, in her belief, was one, but she also articulated - this is at volume 1, page 34 - that she would get the blame for something that she did not do, if the insurer knew it would not help her, she had a fear about the consequences. Indeed, I think she went so far as to worry that perhaps something might happen to her as a result of what she knew to be a mistake. She ruminated about it and she felt guilt - this is at page 46 - that she felt she was being punished for something.
So, your Honours, with respect, I fully appreciate your Honour's comments about the law of defamation, but, hypothetically, if she had not worried about her character but had been more concerned about these other matters, this issue would not arise.
GAUDRON J: But it is not a factual matter to which I am directing your attention and on which I am seeking your assistance. It is a matter of legal principle. How can it be that your liability for a statement differs depending on whether it is said to be negligent or defamatory?
MR SEMMLER: Because, your Honour, there are different tests; there are different interests that are protected by the two - - -
GAUDRON J: I know that, but I think this is the problem to which Justice McHugh has drawn attention before. It is very difficult to see that the law can march in different directions depending on the cause of action unless there is some principled explanation. I am asking what is the principle that will segregate out defamatory statements which will not result in legal liability and negligent misstatements which will. What is the legal principle that is going to bring about that result?
MR SEMMLER: We first respectfully differ from your Honour in categorising what happened as a negligent misstatement with all the law that is attached to that, but a negligent act - - -
GAUDRON J: But you sued in negligence.
MR SEMMLER: Yes.
GAUDRON J: What do you call it if it is not a negligent misstatement?
MR SEMMLER: The concept of negligent misstatement connotes reliance in the way it has been used.
GAUDRON J: Not necessarily.
MR SEMMLER: The broader answer to your Honour's question is, it is not a question of the law going in different directions. There may be some overlap. There may be, but the evidence in this case has not explored whether or not she would have been successful in a defamation - - -
GAUDRON J: No, but we have to explore the legal principles.
MR SEMMLER: Yes. Your Honour, the answer to the question is that defamation protects a different interest. Defamation protects reputation. It does not protect bodily or mental integrity.
GLEESON CJ: It is interesting the way you put that. The importance of motor vehicle accident cases and industrial accident cases in the workload of the courts seems to have created an assumption that carelessly inflicted physical harm is the paradigm of harm and that there needs to be some justification for treating any other kind of harm differently from it, but carelessly inflicted physical injury is just one way in which a person can suffer detriment.
MR SEMMLER: Yes, but our submission would be that in society today, as indeed throughout the centuries, protection from personal injury is a far more important protection to be afforded by the law than protection to reputation.
GLEESON CJ: A number of things have combined to emphasise carelessly inflicted personal injury as an object of the law's concern, and not the least of those has been the development of systems of insurance around them, but the harm, for example, that the child of a negligently injured or killed victim of a motor accident may suffer may continue through life and manifest itself in a variety of forms.
MR SEMMLER: That is our point, your Honour, with respect. Modern psychiatry - indeed, the community at large - recognises how serious that harm can be, how long lasting. As Dr Phillips said, the metaphorical emotional scar just does not go away. Dr Mitchell, the treating psychiatrist, talked about this illness that this lady suffered being the worst kind of illness, physical or mental. People commit suicide because of the illness that she had and they do not often commit suicide because of physical illnesses. The pain is so great, that is the end of it. The community is becoming more aware of this. The very matter that your Honour the Chief Justice referred to, that is the longitudinal harm of a child caused by the death of a parent, that is the kind of harm that needs to be the subject of compensation, we would say far more important than damage to somebody's reputation.
GLEESON CJ: Including financial harm, loss of economic opportunities, emotional fragility?
MR SEMMLER: To the child?
GLEESON CJ: Yes.
MR SEMMLER: Certainly they are important considerations, your Honour, but we are dealing in this case with simply the personal injury involved: the psychiatric harm.
GLEESON CJ: When you think about it, the actual decision in Donoghue v Stevenson, which was only by a 3:2 majority anyway, was what would be regarded nowadays as an elementary form of consumer protection. With all the fuss about it and with all the division in the House of Lords, that case decided that a manufacturer of a product owes a duty of care to a consumer in circumstances where there will be no reasonable opportunity for intermediate examination of the product. That does not sound like groundbreaking stuff, but it was.
McHUGH J: And the reason it was was until then you had to find a relationship, usually out of contract or out of physical proximity, and if there was distance between parties, then, in the absence of a contract, there would be no duty owed.
MR SEMMLER: Yes, your Honour, and the reason - - -
McHUGH J: And so Lord Atkin introduced reasonable foreseeability of harm.
MR SEMMLER: Yes, and true to Lord Atkin's fundamental principle, people like Mrs Tame should recover.
GLEESON CJ: There is a question whether Mrs Tame should recover, but you will not forget, will you, that there is also a question whether Sergeant Beardsley should pay? We happen to have behind Acting Sergeant Beardsley in this case a State Government, but if the principle for which you contend is right, it is not only a question whether Mrs Tame should get some damages. It is a question whether she should get them from Acting Sergeant Beardsley.
MR SEMMLER: Your Honour, our answer to that, with respect, is, why not?
McHUGH J: One reason why is that you are sued in vicarious liability. You cannot attribute expert opinions to Sergeant Beardsley. Therefore, the question is this: is there to be attributed to this acting sergeant at Windsor Police Station reasonable foresight that this would cause psychiatric injury? This policeman, with no medical knowledge.
MR SEMMLER: Your Honour, I would readily concede that is the area where, in this case, we are most vulnerable. Leaving aside whether there are or are not, or should or should not be, additional factors, so far as duty is concerned, there is the question of "Was it reasonably foreseeable?". I shall deal with that in a moment, if I may. Can I come back to your Honour the Chief Justice's question as to why should the State Government pay? The answer is because, true to what was said by Lord Atkin, this was reasonably foreseeable harm in circumstances where there are no rational, valid, proper reasons why she should not recover pursuant to that principle.
GLEESON CJ: The question is whether the conduct of Acting Sergeant Beardsley should be identified as tortious and sounding in damages. That is the question.
GAUDRON J: When presumably he was under a duty to make a report with respect to the events that happened. This was not a gratuitous activity on his behalf. He was under a duty, presumably by reason of his engagement as a police constable or by reason of the orders of the Commissioner, to make this report. He was making it presumably to a superior officer.
MR SEMMLER: He was under a duty, we would say, to do it carefully.
GAUDRON J: I know.
GLEESON CJ: And he made a slip.
GAUDRON J: You see, that is what I was trying to put to you earlier. In some respects, one knows what action to take to avoid physical injury. To take an easy example, you keep a lookout, you drive within the speed limit, you obey the traffic signs, you obey the lights and so forth. It is not so easy to work out what action you can take to prevent shock to somebody.
MR SEMMLER: The answer to that question, your Honour, is you do it carefully. You record the information carefully - accurately.
GAUDRON J: No, you are talking only about this case.
HAYNE J: That will not stop shock. The policeman who comes at the door at midnight to inform the parent of the death of the child - what is the content of the duty you impose on that policeman? To do it carefully? What does that mean?
MR SEMMLER: He is not going to be sued, your Honour.
McHUGH J: He may be.
MR SEMMLER: The person who will be sued will be - - -
McHUGH J: I can think of circumstances where you might argue that he could be.
MR SEMMLER: Well, that is a different case and it may be that there are valid sound policy reasons why there should not be a duty owed by the policeman in communicating bad news, but that is not this - - -
GAUDRON J: Well, exactly.
McHUGH J: Maybe he should have inquired about the state of health of the person that he is communicating it to. Maybe he should not have called at a particular time.
MR SEMMLER: Your Honour, with respect, that may be true and there may be valid reasons, if Mrs Tame had sued her own solicitor, Mr Weller, why this Court would find there was not a duty, but that is not this case. In answer to the question, coming back - - -
HAYNE J: Therefore, error in the information is critical to your case, is that right? Because if it is, you tumble over into defamation and all the other related areas, once you say error is critical.
MR SEMMLER: Error in the information is critical. That is the breach of duty.
GAUDRON J: But I should have thought the policeman's first duty is nonetheless to make the report. Now, mistakes are always going to happen, unfortunately, but his first duty seems to me to be to the chain of command, at least.
MR SEMMLER: Yes. That is true.
GAUDRON J: To some extent, I can avoid - well, to a large extent I can avoid causing foreseeable harm by not driving at all. This acting sergeant is in a different position. He must make the report.
MR SEMMLER: But if he is going to do it inaccurately, he probably should not do it at all.
GAUDRON J: He does not have a choice about whether or not he makes the report, it seems to me. He has a duty to make the report.
MR SEMMLER: Yes.
GAUDRON J: His first duty seems to me to be other than to Mrs Tame.
MR SEMMLER: But, your Honour, all of that is true, with respect, but the critical matter is whether there is some conflicting duty that means that Mrs Tame should not have a duty owed to her. Now, there is no conflicting duty here. There is a public interest. There is a real public interest in people such as policeman completing these reports accurately. There is no conflicting duty and this is not a case where it can be said, "Well, it is not a Sullivan v Moody Case". So, your Honours, to come back to the first ground of appeal, our submission is that damage to the psyche is not, these days, properly regarded as fundamentally different to physical damage. As long ago as 100 years ago Justice Kennedy in Dulieu v White was prescient in his observation that:
For my own part, I should not like to assume it to be scientifically true that a nervous shock which causes serious bodily illness is not actually accompanied by physical injury, although it may be impossible, or at least difficult, to detect the injury at the time in the living subject.
Now, your Honours, what has happened in the last 100 years is that medical science, psychiatry, and, following in its path, the courts, have more and more recognised that in reality we are dealing with things that are essentially the same. In this case Mrs Tame's illness was a - - -
GAUDRON J: No, they are not essentially the same.
MR SEMMLER: Your Honour, the psychiatric evidence in this case, with respect, was that her illness was - depression is caused by a biochemical imbalance. It is a lack of a neurotransmitter.
GAUDRON J: Yes, all of that may be the same but there was no immediate violation of her physical integrity. The law is used to that and understands it. The law has over centuries set up other things which it protects - other interests. One thing it protects is your legal right, or one area which is protected are your legal rights. That much now emerges, I think, from the decisions in this Court, particularly in the last few years.
Now, come to malicious prosecution and false arrest. Let us say, instead of communicating this information, Detective Sergeant Beardsley, or somebody higher up, had actually caused Mrs Tame to be charged with PCA, or whatever it is now called - I think it is PCA. One imagines that the nervous shock would have been even worse, but the area of discourse in which we would be, at least on traditional grounds, is malicious prosecution where the law has set limits to the liability. It may well be true, and I think there is probably no argument, that a depressive illness is every bit as much an illness as the other one. It is a physical illness. But what we have to look at are the limits the law has set, not by reference so much to the nature of an illness, but by reference to relationships either with the public or with the State or so on.
It seems to me at some stage your argument must also come to grip with the constable's duty and the constable's obligation. That is every bit as much an unclear area of the law as is what we call nervous shock, but in this area they have to march together, it seems to me.
MR SEMMLER: Your Honour, we accept that it may be a different situation if he had charged Mrs Tame with driving with the prescribed content of alcohol in her blood, there may be a different policy consideration, but there is no reason to look beyond foreseeability in a case where one is doing an act of filling in a form, and where all of the police evidence is, that it is acknowledged that they have to get it right. It is important they get it right. There are important issues involved. So that it is not that case.
Your Honours, Justice Windeyer in Mount Isa Mines v Pusey referred to the Cartesian distinction between mind and body. He said, even in that case in 1970, that the position had given way in medicine and should give way in law. That is 30 years ago. He said also that courts in this area must act in company and not alone, in a developing area of the common law. In recent years, in the last decade in Britain, there have been three decisions of the House of Lords where the fact that the cases are not essentially different has been highlighted by various of their Lordships.
In Alcock's Case Lord Oliver said these cases are not in their essential elements different. In Page v Smith Lord Lloyd said that with psychiatric knowledge expanding fast, it is not sensible for the law to distinguish between physical and psychiatric injury. In the same case, Lord Browne-Wilkinson identified the very matter which we have psychiatric evidence of in this case. That is that some mental illnesses are due to physical causes, to biochemical imbalance. As the treating psychiatrist said, part of the brain, the limbic system, controls - - -
GAUDRON J: But I do not think that is the legal issue, is it? The question is if you deal with it in negligence, who is your neighbour? You still have to come back to that.
MR SEMMLER: The neighbour is the person whom one can foreseeably - - -
GAUDRON J: You have got to say "Anybody who might foreseeably suffer nervous shock by my actions".
MR SEMMLER: Your Honour, that should be the prima facie position. It has been the position since Donoghue v Stevenson. What has happened - - -
GAUDRON J: No, it has not.
McHUGH J: No, it has not.
GAUDRON J: Donoghue v Stevenson still insisted "who is my neighbour?" and, in a particular context said, "anyone whom you can reasonably foresee" but it was speaking in a context where his Honour the Chief Justice has pointed out, was an early form of consumer protection. You still have to find a neighbour.
MR SEMMLER: Your Honour, I am mindful of the fact that then in later cases the concept of "proximity" entered into the equation, and the issue was it is not just a question of "foreseeability", it is a question of how you define your neighbour and what is the necessary proximity with that person to attract the duty. That is no longer the unifying test.
GLEESON CJ: Mr Semmler, why is it that this case is treated as a case about nervous shock? From the plaintiff's point of view, that is the kind of damage that she suffered. From Acting Sergeant Beardsley's point of view, it is a case about the responsibilities of police officers and their tortious liability when they fill in forms. Suppose that the harm that your client had suffered had not been that she responded, as she did, to the information but that this information had come into the hands of some third party who used it to her financial disadvantage; she had been refused employment, for example, because some potential employer who got access to this thought that she was a drink-driver. Suppose she suffered a different kind of harm, in other words, there would still be the question whether there had been a tortious act sounding in damages on the part of Acting Sergeant Beardsley. To describe or to characterise this as a case about whether nervous shock is different from physical injury is to narrow the focus of the case to the nature of the plaintiff's harm, ignoring the character of the allegedly tortious conduct of the defendant.
MR SEMMLER: With respect, your Honour, there may be different situations, different remedies available, but if in law there is a route to recovery, she is entitled to take that route.
GLEESON CJ: That is right, but the questions that have been addressed to you invite your comment on the fact that whatever is the principle that governs the outcome of this case, has to be developed in conformity, not only with the familiar area of the law relating to negligently inflicted personal injuries, but also to other areas of the law, including negligent misstatement and defamation.
MR SEMMLER: Well, we would immediately exclude negligent misstatement because critical to that is reliance, and there is no question of reliance here. So, in our respectful submission, that can be put to one side. It may be she had rights in defamation, but we would respectfully differ with any conclusion that said simply because she had certain rights in relation to the protection of her reputation, they should effectively override any duty which is postulated that she is to be protected from - - -
McHUGH J: Not override the duty, but they may throw light on whether a duty exists. Now, historically the law required a relationship before it would impose a duty or would allow somebody to bring an action for carelessness. Donoghue v Stevenson broke new ground to this extent: it said if there was physical injury and you can reasonably foresee that it was likely to occur to the person, then there is a relationship of proximity - Lord Atkin said. But to say that gives an answer in respect of physical injury cases. It says nothing about the rest of the law of negligence, which still requires you to point to a relationship.
What is put to you is that these cases are very different from pure physical injury cases which, ordinarily, affect a particular person, and in some cases might affect quite a number of persons. But by its nature, as I think you conceded, nervous shock can affect many more people than a person who is physically injured. Therefore, you have to find some reason to create a relationship.
MR SEMMLER: Yes, but the answer to your Honour's question is found in the submission I am attempting to make, that, in effect, they are no different - psychiatric injury and physical injury cases are, or at least should be, no different. The only reason why your Honour says the cases are different is because of these suspicions and concerns that, with respect - - -
McHUGH J: What about the economic loss cases?
MR SEMMLER: Again, it is concerns about indeterminate liability. It is floodgate's concerns that lurk in the background of statements, with respect, that are made, "This kind of case is different from a physical injury case". That is what is driving, with respect, your Honour's reasoning.
GLEESON CJ: No, here we know what the relationship was. The relationship was the relationship between police officer and a person whose conduct is the subject of investigation and report. That was the relationship between Acting Sergeant Beardsley and Mrs Tame.
MR SEMMLER: Well, we would agree with that categorisation except we would put it in the past: "Was the subject of investigation - - -
GLEESON CJ: No, at the time of the report. The negligent act was filling in the report wrongly, so at the time he filled in the report, the relationship between Acting Sergeant Beardsley and Mrs Tame, was the relationship between a police officer and a person whose driving conduct was the subject of investigation and current report, I might add, with a view to possible prosecution.
MR SEMMLER: Yes, but, your Honour, that is only of importance in considering whether there is a duty. If some rational consideration arises out of that circumstance, that suggests that a duty should not be imposed.
GLEESON CJ: Well, is a police officer under a duty to take reasonable care to prevent psychological harm to a person whose conduct is the subject of police investigation and report with a view to possible prosecution?
MR SEMMLER: Well, if your Honour is talking about a suspect, it may be it falls into the category of Sullivan v Moody, but that is not this case; she was never a suspect. To come back to your Honour Justice McHugh's question - perhaps I do not communicate very well on this issue - but the reason why we start with the proposition that the cases are the same is because the only reason why the law over the last several decades has treated them differently is because of what we say are unfounded fears - - -
McHUGH J: But they are not unfounded. If you send a bottle of ginger beer with a snail in it, it is going to affect one, maybe two, people, but if you are going to bring in nervous shock on the same test, it may be you are going to add another 10 - all the members of the family and the friends.
MR SEMMLER: Yes, your Honour, but the difference is, in this case, Mrs Tame is a primary victim. This is not a - - -
McHUGH J: No, you want to use a term in another context, you want to criticise.
MR SEMMLER: No, with respect, I use the term only to make the distinction. There is not an indeterminate number of people who will be affected by - - -
McHUGH J: Mr Semmler, we are trying to test this to lay down general principles.
MR SEMMLER: Yes, and the general principle should be that unless there is an issue such as indeterminate liability, such as thousands of people possibly suing because of what they see on television happening in New York, if you are not dealing with that case, and we are not here; we are dealing with one person who is affected, or possibly two people, affected by this report that is carelessly completed. Mr Lavender and Mrs Tame, that is all we are dealing with.
McHUGH J: Well, if we wrote a judgment like that the profession would be saying, "How did this case ever get special leave? What they do is of no assistance to us to decide any future cases."
MR SEMMLER: Well, your Honour, the cases need to be - given the dethroning of proximity - really the cases must be approached on a case-by-case basis, and if this is not a radical departure from fundamental principle, that is foreseeability is an important ingredient in duty, and we would say determinative, unless there is some other reason why a duty should not arise, then - - -
McHUGH J: No, not determinative, just simply a factor, and that is what the profession has to get into its head.
MR SEMMLER: Yes.
McHUGH J: To have a duty, you have to have something more than foreseeability; you do not say, "Foreseeability; duty, unless". That was Anns, that was exploded in this Court 17 years ago.
MR SEMMLER: Yes. Well, your Honour, all we can say on that is that when a case comes along where there is an issue - and I use the word advisedly - secondary victims and limitless liability, when somebody sues for nervous shock arising from what they saw on television of what happened in New York, that is the case to consider and formulate the principle that applies.
McHUGH J: But just take the facts of this case. Insurance companies pay for these reports. Supposing there was a disclaimer on them so that it affected the relationship between the insurer and the Constable, no liability as between insurer. Now what about Mrs Tame in those circumstances? Would she have a cause of action?
MR SEMMLER: If there were a disclaimer in relation to everyone, your Honour?
McHUGH J: The disclaimer cannot bind her contractually because she is not a party.
MR SEMMLER: It, I suppose, would depend upon the - - -
McHUGH J: You still have foreseeability. Does the fact that the policeman says "I'm not responsible to anybody" - - -
MR SEMMLER: Probably not. It probably would not avoid the duty because the duty would exist regardless of what is said about his carelessness.
McHUGH J: That means then that in a situation where somebody cannot be made contractually liable where the document is handed over contractually, they can be liable to a stranger.
MR SEMMLER: Because it is foreseeable that the information will be communicated ultimately outside of a contractual arrangement.
McHUGH J: Do you not think that has significant social consequences? That is one of the reasons why the law had to cut back in economic loss cases because people were going outside the terms of the contract to sue. Junior Books is the classic case; it has been a retreat from Junior Books v Veitchi ever since.
MR SEMMLER: Your Honour, questions of privity of contract in this Court have not been regarded as necessarily determinative. I mean, of course it is not this case, but in the area of workers' compensation insurance - the name of the case escapes me, but the issue of whether someone has to be party to the contract may sue upon it was not regarded as - - -
McHUGH J: That is Trident you are talking about.
MR SEMMLER: Trident, yes. Your Honours, what I am attempting to say in relation to the first ground of appeal is that it is critical to recognise, as psychiatry recognises, that these cases are the same. If one is mindful of modern psychiatry - and one cannot ignore it, with respect. Modern psychiatry tells us the ambit of the claim; modern psychiatry defines what is a psychiatric illness.
McHUGH J: It might tell us, but does it tell Acting Sergeant Beardsley?
MR SEMMLER: That is the question of foreseeability and I shall come to that. The submission I am attempting to make is that if they are the same - and the courts have increasingly recognised that in Britain at least - then is there a justification in the case of psychiatric injury for imposing these special restrictions? Our answer to that is no, because the fears that in the past have imposed what used to be called proximity restrictions are not founded in fact. There is no empirical evidence that simply because the New South Wales Parliament in 1944 enacted the Law Reform (Miscellaneous Provisions) Act - - -
McHUGH J: I notice that submission in your submissions. It rather overlooked the fact that the people who can sue under the 1944 Act are a very closely defined class.
MR SEMMLER: Yes, that is true.
McHUGH J: I do not think you get anything at all from - - -
McHUGH J: In this case the class of people is even smaller. It is Mrs Tame and Mr Lavender.
McHUGH J: That may be, and it may be if you can establish principles, maybe even unorthodox principles or traditional principles, you will succeed, but we have to look at it in a much wider context than the particular facts of this case.
MR SEMMLER: I appreciate that, your Honour, but what would not be appropriate, with respect, is to deviate simply because of, as it were, with respect, a knee jerk reaction, "This is ridiculous. How can somebody get that kind of illness from that kind of act?", a knee jerk reaction and say we will not apply fundamental principle to this case.
KIRBY J: Mr Semmler, I have listened patiently to all this. You keep, so far as I am concerned at least, hitting against an open door. The law has put checks in place. One of them was the supposed difference between psychiatric and physical injury, one was the supposed need for shock. As far as I am concerned, they are completely unconceptual distinctions and they should be got rid of, but they cannot be got rid of, you seeking a change in the law from the Court, unless you can put in their place some controls which deal with the problems that the Court has been repeatedly putting to you. The best you have been able to come up with is the House of Lords notion of a primary and a secondary victim, but that itself you rightly criticise as simply substituting one artificial check for two that we get rid of.
So this is the difficulty that you face. Unless you can establish an effective control, then it is very likely that a court will say, "We will leave the law as it is and if Parliament wants to change it, let Parliament do so because it's a very complicated matter and it requires consultation and it's just not been shown how we should change it". We can see the problems and you make them quite effectively as far as I am concerned, but I cannot see the solution.
MR SEMMLER: If your Honours invite the appellant in this case to indicate what controls there should be, perhaps it should be best approached in a negative way. That is that if there is no prospect of indeterminate liability in the circumstances of a particular relationship between postulated tortfeasor and victim, then "reasonable foreseeability" should be the test.
KIRBY J: But I thought that has been discarded by the Court. It is just too open-ended. As the Court has said, it is an undemanding requirement and it is circular. What is reasonably foreseeable? That which you should be foreseeing. So it really gives no guidance and that is what has driven courts in Canada, New Zealand and England to try the Caparo check. But this Court has not embraced that, so - - -
MR SEMMLER: Then in the circumstances of this case, could I assist further by perhaps indicating to your Honours that if in the particular case one has, as it were, a relationship between someone in authority, someone having some official status, and - - -
KIRBY J: That is very case-specific. That is not conceptual.
MR SEMMLER: I appreciate that, your Honour, but your Honours are well aware of the problem in searching for a unifying principle. Perhaps the only way that the whole difficulty of determining whether a duty of care arises can be approached is on a case-by-case basis.
KIRBY J: It makes it very difficult for courts to decide cases and for lawyers to advise clients, for insurers to write their risks, for people to know where they stand. It is a very unsatisfactory basis for defining the neighbourhood, which is what we are trying to do, and that is what leads your opponent to say that ultimately we have to get back to the basic concept of "neighbourhood". Is it reasonable to impose on a policeman who makes a slip legal liability for all that follows to your client. Intuition seems to say it is not reasonable.
MR SEMMLER: The intuition, yes, we would - - -
KIRBY J: I say that not just on the basis of nervous shock or on the basis of psychiatric injury. It just seems to go beyond that which is reasonable, which is at the heart of the notion of negligence liability.
MR SEMMLER: To answer your Honour's question, we would embrace the approach taken by Justice Brennan in the last case 17 years ago when this Court dealt with the issue of psychiatric injury.
KIRBY J: But that is a proximity test, is it not?
GUMMOW J: Not in Justice Brennan - - -
MR SEMMLER: Not in Justice Brennan's mind. He embraced the notion of foreseeability per se. He said, "Look, the thing will stop when the good sense of the judges says it will stop".
GUMMOW J: He also talked about normal fortitude, did he not?
MR SEMMLER: Yes, he did, and I do not embrace what he said.
GUMMOW J: It does not look as if your client was a person of normal fortitude perhaps.
MR SEMMLER: We would say, on one analysis, she was, and I am happy - - -
GUMMOW J: I am looking at page 561 under the heading "Other Information". She seems to have - - -
MR SEMMLER: She certainly had a vulnerability.
GUMMOW J: Yes.
MR SEMMLER: Yes, but we would say, and I will come - - -
GUMMOW J: By reason of events going back a long way.
MR SEMMLER: I should come to that, your Honour, but we would say that vulnerability, per se, does not mean that she is not of normal fortitude, if this Court considers that normal fortitude should be a control.
KIRBY J: Your position is that normal fortitude is a third check that the law has experimented with. It is equally flawed but if you are stuck with it, then you will try to bring yourself within it.
MR SEMMLER: Yes, that we can satisfy that, yes. But before I move to the question of normal fortitude, to attempt to answer your Honour's concerns, our submission is that the concept of foreseeability itself has real content. True it is, it may be regarded in some quarters as undemanding, but it - - -
HAYNE J: It is a very bold decision to say that that which has happened could not have been foreseen. It bespeaks lack of imagination on the part of the speaker.
MR SEMMLER: The Court of Appeal in this case decided that this was unforeseeable, albeit in the context of normal fortitude. But what I am trying to say when I say it has content is that it involves a value or qualitative judgment about the reasonableness of human appreciation of risks. It is something into which - if your Honours are minded in this very straightforward case, we would say, in terms of what was done, the act and the people affected, if your Honours are minded to attempt to again rebuild an edifice of some unifying principle, then the principle should be that reasonable foreseeability is a device into which matters such as the relationship between the parties can be factored.
GLEESON CJ: With the advance of scientific knowledge appreciation of risk must be constantly increasing, must it not?
MR SEMMLER: Yes, and so it should be that the law should keep pace with that.
GLEESON CJ: Yes, so liability must be ever expanding.
MR SEMMLER: Certainly - well, in the psychiatric injury context - - -
GLEESON CJ: Well, in every context. Foreseeability only ever goes in one direction, does it not, unless you put a word like "reasonable" in front of it?
MR SEMMLER: And we embrace that and it is the reasonable fetter on the concept that we say contains the content. You need look no further than the concept of reasonable foreseeability.
GLEESON CJ: But the more undemanding foreseeability becomes, the less use it has as a control mechanism.
MR SEMMLER: Well, we accept that as a proposition and that is the reason why we say that whilst foreseeability has content, there will, foreseeably, be cases where the Court needs to precisely identify a particular factor in the circumstances under consideration which, as a matter of, not surreptitious policy, but of clear and forthright policy considerations, means that a duty should not arise in that case.
KIRBY J: Well, you are sounding awfully like the Caparo test and which this Court, despite my earnest endeavours, repeatedly and patiently has not accepted. So where does that leave you?
MR SEMMLER: Well, your Honours, could I say this, if, despite our protestations and references in our submissions to the Law Commission Report in Britain about the - - -
KIRBY J: You are pushing against that door again.
MR SEMMLER: Yes.
KIRBY J: We know the problems with the test the courts have established.
MR SEMMLER: If the fear is, nevertheless, of unlimited liability, of too many cases - - -
McHUGH J: Well, it has to be that, and I would have thought one necessary control, if you are going to abandon the orthodox test, is some sort of class to whom the duty is owed, otherwise you have unlimited liability for an unlimited point of time. Supposing in 20 years time somehow or rather Mrs Tame's daughter read this report and suffers nervous shock said, "My mother told me all her life that she never had a drink and here I find that she three times" - suffers nervous shock. Now, is liability to ensue in that case? Statute of limitations does not run, no damage is suffered until then.
KIRBY J: Justice McHugh is very good in thinking up the floodgates; they are pouring down now.
MR SEMMLER: Your Honours, our submission would be that the chance reasonably or the foreseeability reasonably that Acting Sergeant Beardsley should have had of events in 20 years, not in relation to the person that he has made the mistake in respect of, but a relative, would be so far beyond what is reasonably foreseeable as to be far-fetched or fanciful.
HAYNE J: Why?
MR SEMMLER: Because it is not - - -
HAYNE J: All he has to foresee is, "If I do not get this right, somebody might suffer nervous shock"; that is the test, it seems to me, you propound.
McHUGH J: "Somebody may read this".
MR SEMMLER: Now, ultimately it is a question of judicial judgment as to whether this is a far-fetched or fanciful risk.
HAYNE J: Again, that tells us nothing; we have to write a judgment that is capable of application. We have to state a principle. Saying policy might intervene, poses the question, it does not answer it.
MR SEMMLER: The first principle should be that if the number of people potentially affected is small, and if it is reasonably foreseeable that a person within that category could be affected - - -
McHUGH J: Well, in one way, that is what both the legislature and the courts have been struggling to do. When, after Bourhill v Young, the New South Wales Parliament in 1944 introduced its reform of the law of nervous shock, it closed the categories; it closed the classes of those who could sue, and, in Jaensch v Coffey you can see the same idea at work - attempt to close the class. So, accepting all you say about the lack of difference medically between mental illness and physical injury, it seems to me, arguably anyway, that you need some sort of class break on nervous shock actions. It does not hurt you in this particular case.
MR SEMMLER: Well, your Honour, it may be that a class categorisation is going to be of assistance both to other courts and legal practitioners in predicting what is likely to be the outcome in a particular factual circumstance.
KIRBY J: I suppose you can say, "If I establish that the psychiatric, physical dichotomy is completely false or is not satisfactory, and that the other checks that have been put in the way are not satisfactory, then the Court really ought to do what it has done in a number of areas recently in the area of tort", and that is try to find a basis, and you can give all the help you try, but ultimately it is the obligation of the Court to express the common law and to do so in a way that, so far as possible, seeks to meet the defects of the checks: reasonable fortitude, nervous shock, physical psychiatric; I mean, all of these are very unsatisfactory checks.
MR SEMMLER: Your Honours, with respect, that was our approach in the formulation of our written submissions and I regret that I cannot really go much beyond that.
HAYNE J: Can I offer this. It seems to me there are at least the following areas for debate: one, your preferred position is a duty to all who are foreseeable.
MR SEMMLER: Yes.
HAYNE J: If you go beyond that, you can then limit it in at least these ways - and what I want to know later is whether there are other ways that are worthy of consideration. First, you can limit it to those of a particular disposition, the fortitude test or a variant on it. Two, you could limit it to those having certain physical or temporal connection with an event - see the accident, immediate aftermath, all of those ideas are swirling around in that class. Third, you could define it by reference to some identified relationship between alleged tortfeasor and plaintiff. But do we there, with those classes of limits, define the whole universe of possible classes? If not, what are the other classes for consideration?
MR SEMMLER: Certainly, your Honour, in McLoughlin v O'Brian and in this Court in Jaensch v Coffey those kinds of considerations were regarded as covering the field, as it were: relationship proximity, that is, the last of your Honour's categories; circumstantial proximity, that is the closeness in time and space, that is the second of your Honour's categories; and the causal proximity or causal relationship which embraced things such as the means of communication of the trauma, and I believe, your Honour, that the normal fortitude test, at least in some quarters, is regarded as part of that category of relationship. So that all that would be happening, your Honour, is if we were to say to your Honours, "Well, they should be the categories", is really we would be going back to the situation in McLoughlin v O'Brian and Jaensch v Coffey. We would be going back to proximity because Jaensch v Coffey was the case in Australia where the notion of proximity really took hold. We would be going against the - and I will not use the word "trend", but we would be going contrary to the recent cases that suggest that that is not the unifying principle.
GLEESON CJ: Mr Semmler, where, as a matter of history, did the idea of normal fortitude come from?
MR SEMMLER: It first appeared in Britain during the war in Bourhill v Young in Lord Wright's speech and, I think, in Lord Porter, although there are indications in Australian cases earlier than that, in Bunyan v Jordan in 1937, that at least some members of the Court had in mind this notion of a reasonable person.
GLEESON CJ: When you are dealing with carelessly inflicted physical injury, you take your victim as you find him?
MR SEMMLER: Yes.
GLEESON CJ: I can understand how fortitude fits in with foreseeability as a matter of principle, but was any explanation given when it was introduced as to the basis on which it was treated as a limiting factor?
MR SEMMLER: No, your Honour. With respect, I think the background reason was the same reason that we have been criticising this morning, that is the fear of floodgates. The notion that - - -
HAYNE J: Is it also related to a couple of difficulties that need to be brought to the surface? In this sort of case courts might have to confront what is normal, what is a normal individual. There is at least a month's worth of seminar for psychiatrists. What was normal for the plaintiff is probably another month's worth. What effect do we give to the fact that what has now happened takes its place in the whole of the history of the particular plaintiff who comes to this particular event, be it a singular traumatic event or a build-up of events, but the whole history of events, none of which are connected at all with the alleged tortfeasor, so the normal fortitude idea, it may not have some connection with those problems which are again swirling around in the stew.
MR SEMMLER: Your Honours, if I could deal with that issue. We say that even if we are not of great assistance in divining this unifying theme that can be applied in other cases - the circumstances in which a duty will, or will not, arise - we can at least assist your Honours, we hope, in demolishing those constraints upon psychiatric injury cases that do not apply to physical injury cases - - -
GLEESON CJ: You are probably too young to remember, Mr Semmler, but in wartime England the concept of normal fortitude would have had a fairly well-recognised practical meaning as a distinction between some people and others.
MR SEMMLER: Your Honour, that was the reason why I referred to the fact that it was in wartime England because we would say that it may have been appropriate for those days when the "stiff upper lip syndrome" was necessary to get Britain through the darkest days of the Second World War, but it is not appropriate at the start of the 21st century when - - -
GLEESON CJ: Stiff upper lip was not just the last war, it is the whole history of British people.
MR SEMMLER: Yes, and I do not say that critically, your Honour, with respect; it is a very important consideration. But it is not appropriate more than 50 years later when we are faced with evidence in this case of a World Health Organisation report that suggests that in nine years time, by the year 2010, depression will be the second most serious disease burden for the whole of mankind.
GAUDRON J: Exactly.
KIRBY J: Is this in the evidence?
MR SEMMLER: It is in evidence, yes.
GAUDRON J: That brings you to a good point. Take the "eggshell skull" case. You are violating a person's physical integrity and it is easy enough to say you should not have done the head-high tackle, for example, to anyone because the law actually accepts that you are entitled to a bit of personal space. But when you come to this area, there is a whole variety of things that goes into the personality, the make-up, the predisposition, the vulnerability. In a sense there is probably a causation problem that has been masked by speaking about normal fortitude. So that if you have somebody who is vulnerable to depression for a variety of reasons in his or her personality, make-up, education, social background, it is very difficult to say the straw that broke the camel's back, as it were, is the cause of the problem or is in any legal sense properly to be treated as the cause of the problem.
MR SEMMLER: If the law is to be consistent across the range of personal injuries, it is to be treated in the same way as physical injuries are treated.
GAUDRON J: You keep saying that but your consistency really must allow for proper distinctions and differences. It is not uniformity.
MR SEMMLER: Your Honour, with respect, the key element in that sentence is "proper".
GAUDRON J: If the law treats physical integrity, that is, "Thou shalt not hit", at a higher level than "Thou shalt not swear, curse", what have you, all of which might cause nervous shock - give offence - and it seems to me there is a very sensible reason why it might do that and should do that.
MR SEMMLER: Your Honours, if you take normal fortitude out of the equation - this not an open goal for plaintiffs. They still have to satisfy the requirement of the law that there be a diagnosable psychiatric illness and that is not an easy hurdle to overcome.
GAUDRON J: You have got just told me that in 20 years time it is going to be the major one and everybody will know all about it.
MR SEMMLER: No, in nine years time, your Honour - - -
GAUDRON J: Nine years time.
MR SEMMLER: - - -the World Health Organisation predicts - and this is at page 257 in Dr Phillips' evidence and 262.
KIRBY J: Is not that a bit against you because that is going to mean that this is going to be an ever-expanding huge class?
MR SEMMLER: No. The significance of this statistic is that - and the fact, as he also said, that one in five women in the Australian community will suffer depressive illness at some stage in their lives. The only significance of that statistic is that it highlights the vulnerability in the community to mental illness. It does away with the notion that this is some kind of aberration, that the average person has this normal fortitude.
GAUDRON J: Does that material say that there is usually a triggering incident?
MR SEMMLER: It is not as clear-cut as that, your Honour.
GAUDRON J: One is familiar with the language "triggering incident".
MR SEMMLER: Yes. Dr Phillips used it in this case.
GAUDRON J: Yes. And if you carry that over, that really does invite analysis of causation.
HAYNE J: You get into areas like endogenous and exogenous, depression and the like, do you not?
MR SEMMLER: That is so, yes. Endogenous and exogenous is, as I under it, no longer. It used to be used. It was categorising the iatrogenic illness due to constitutional factors, genetic factors, as opposed to illness brought about by external forces life experiences and the like. But, your Honours, the reason why we say this Court should declare that normal fortitude has no part in the law governing whether or not a duty arises in a psychiatric injury case is, first of all, because it simply ignores that report, that World Health Organisation report, and all of the evidence of the psychiatrists, unchallenged, as to the extent of psychiatric vulnerability, particularly to this common cold of psychiatric illnesses which is depression.
In the year 2001, to maintain this notional - this concept of normal fortitude - if it means that you cannot factor in any case into a person with normal fortitude, vulnerability, then it is blind to what psychiatry tells us.
GAUDRON J: Do you go the further point and say that for the purposes of this area of law an act, a negligent act, which triggers a depressive illness, is for the purposes of the law to be treated as having caused it?
MR SEMMLER: If by "trigger" your Honour means has materially contributed to, the consistent with all of the authorities - - -
GAUDRON J: It must have.
MR SEMMLER: Yes.
GAUDRON J: The doctors always speak in terms of "triggering" - well, very often speak in terms of "triggering".
MR SEMMLER: Yes.
GAUDRON J: They do not speak of it necessarily as the major cause.
MR SEMMLER: No, but as long - - -
GAUDRON J: The triggering event.
MR SEMMLER: In accordance with a long line of authorities, starting with Bonnington Castings v Wardlaw , if there is a material that is not an insignificant contribution, that is sufficient in law. That is the test - - -
GAUDRON J: That is sufficient for other areas of the law. You are really asking to eliminate all distinctions. The question we have to ask ourselves is whether those distinctions reflect real differences.
MR SEMMLER: Your Honours, it would be no more appropriate, we say, at the start of this century, to single out the victims of clear carelessness who happen to suffer psychiatric injury because they have had some adverse life events, as all of us have, and may or may not have been predisposed - - -
KIRBY J: As Justice Hayne draws to my attention, if you look at 262, line 44, over to 263, line 2, you see just what Justice Gaudron has been pointing you to. The word "trigger" appears at the top of 263.
MR SEMMLER: Yes, that is correct, your Honour. Doctor Phillips used the word "trigger" He was in no doubt that Mrs Tame's illness was triggered by her knowledge of this mistake. It moved her, as he put it, from one State to another. I asked Doctor Mitchell, the treating psychiatrist, to put it in terms of a pie chart, and in terms of causation of her illness, the bulk of the pie was this mistake, in Doctor Mitchell's view. So on the facts of the this case - I appreciate my learned friend has spent a lot of time, with a lot of references to evidence about causation, but on the facts of this case there is no doubt that Judge Garling was entirely entitled to decide, as he did, that causation had been established. The Court of Appear considered that to be correct. Our submission is that this Court ought not to spend a lot of time on what is really a non-issue.
KIRBY J: Does not "trigger" sound a bit like shock, which is one of the controls that you are rather critical of?
MR SEMMLER: No, your Honour, with respect I think if one looks at the way it is used, it is more a description of the mechanism whereby she has moved from one State to another. Doctor Phillips made quite clear in other parts of his evidence, and Mr Mullany will refer you to those, that you do not have to have this uninformed concept of shock to suffer mental illness. We all know that, your Honours. We know that people suffer mental illness in a variety of ways. You do not have to have shock. The adherence of the law to this notion that developed in the century before last, that was around when Victorian Railway Commissioners v Coultas was decided, is entirely inappropriate now.
Your Honours, Chief Justice Spigelman in this case justified his decision that normal fortitude should apply, and that Mrs Tame was not of normal fortitude, by reference to what he described as a strong body of Australian case law. It is our first submission that he was, with respect, wrong when he said:
There is a strong body of Australian case law to the effect that a plaintiff cannot recover for "pure" psychiatric damage unless a person of "normal fortitude" would suffer psychiatric damage by the negligent act or omission.
His Honour referred to Bunyan v Jordan, and particularly Jaensch v Coffey, as being the cases that he considered constituted this strong body of case law. But when one examines both of those decisions, one sees that, on our submission, the majority did not embrace this concept of normal fortitude. If I could take your Honours, first, to Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1, the pages where this concept was discussed were, first of all, at page 14 in the judgment of Chief Justice Latham.
GUMMOW J: This is a case in which there was an anterior subsisting relationship with employer and employee.
MR SEMMLER: Yes, that is right. At page 14, halfway down the page, Chief Justice Latham seems to have embraced a notion somewhat similar to normal fortitude. He said:
In the case of ordinary persons, if a man said to them that he was going to shoot somebody and they then heard a shot . . . they would not suffer from illness producing a nervous breakdown. Such a consequence is not within the scope of reasonable anticipation.
One must bear in mind, of course, this was before both the Wagon Mound decisions when perhaps the notion of foreseeability was clarified. It is really unclear there whether the Chief Justice is actually fully embracing the notion of a fixed entity or something that is definable, measurable, of normal fortitude, or rather, he is simply talking in terms of what we know to be the normal foreseeability test. But, even accepting for the moment that he adopts the normal fortitude concept, it is not clear that the majority of his brethren similarly adopted it. Justice Rich, on the next page, page 15 - - -
GUMMOW J: He said it was not worthy of serious discussion.
MR SEMMLER: Yes.
GUMMOW J: The whole case, he says it is not worthy of serious discussion.
MR SEMMLER: Yes, well, yes - - -
KIRBY J: That is what your opponent says about your case.
MR SEMMLER: Yes, I know he does, your Honour.
KIRBY J: It is his first submission.
CALLINAN J: Mr Semmler, can I bring you back to something, please? I am looking at your pleading, at pages 3 and 4 and onwards. You plead that the respondents are negligent and the particulars are clear enough that the negligence consists in making the erroneous entry, but where do you link up that negligence with the actual suffering of what I will say, for present purposes, is a nervous shock? You then go on to plead that the communication is made by the solicitor, Mr Weller, and then at page 4, having said that, that the solicitor had informed the appellant of the "erroneous statements", the appellant, learning thereby of what the report contained, suffered injuries.
MR SEMMLER: Yes.
CALLINAN J: Well, how do you say the negligence actually caused the appellant's injuries?
MR SEMMLER: A careless act was done, putting the wrong numbers on the form, in circumstances where it was foreseeable that the plaintiff might suffer injury.
CALLINAN J: But might suffer injury by reason of the communication of the erroneous matter by her solicitor to her.
MR SEMMLER: No, with respect, not by reason of communication; by reason of the foreseeable likelihood that she would become aware of that mistake.
GLEESON CJ: Incidentally, Acting Sergeant Beardsley had corrected the mistake long before your client ever found out about it, had he not?
MR SEMMLER: Yes, but, your Honour, this point was made again and again at various stages in this litigation, but the clear psychiatric evidence is, it does not matter. Once the damage is done - one of the psychiatrists put it like this, Dr Klug, he said, "I have delusional psychotic patients who think they are poor when, in fact, they are rich, and it is no good telling them, `Look, you are really rich'; it does not affect the illness. The essence of the illness is the delusion, the irrational thought, no matter how many times you say, "Look, the mistake has been corrected, it is okay, there is no problem", the damage has been done. It is what Dr Phillips described as the "metaphorical, psychological scar"; it is there, you cannot undo it. That is, unfortunately, the nature of the illness.
To come back to your Honour's question, it is not the communication of the information that is the causal mechanism, it is the acquisition of the knowledge that the mistake has been made.
CALLINAN J: Well, where do I find that pleaded?
MR SEMMLER: Well, I do not know that it is specifically pleaded. What we say is, as a result of learning that the report - - -
CALLINAN J: Exactly.
MR SEMMLER: That is the causal mechanism. It is her becoming aware of - - -
CALLINAN J: Well, it is a negligent misstatement communicated to the solicitor, who in turn communicates it to the appellant.
MR SEMMLER: Your Honour uses the words "negligent misstatement". She does not rely upon it. True, it is a misstatement of fact - - -
CALLINAN J: But what I am suggesting is that she might need to rely upon it. There might not be, I am suggesting to you, an ordinary - and you know what I mean when I say "ordinary" - cause of action in negligence. It might be the special negligence claim in misstatement.
MR SEMMLER: With respect, no, because it is not a financial loss case. She does not rely upon this to her detriment. This is an ordinary personal injury case in a sense that we have, we say, a duty. We have breach of the duty in the act that is committed; we have causation in the circumstance that she becomes aware of the error that has been made; and the injury is not too remote because it was foreseeable that she would suffer this kind of injury. Now, all of the ingredients are there. It is an ordinary personal injury case. My learned friends, with respect, have created this confusion by talking about negligent misstatement but, on simple analysis, it is not in that area of the law.
CALLINAN J: Why should negligent misstatement necessarily be confined to economic loss? I know there have not been any cases other than for economic loss, but why should it be so confined?
MR SEMMLER: Well, there may be no sound reasons why it should, your Honour, but, certainly, critical in that area of the law is reliance to one's detriment on the statement that has negligently been made. That is not this case.
GLEESON CJ: Mr Semmler, would I be right in thinking that included amongst the kinds of people who are most vulnerable to psychiatric injury are people who are already suffering from psychiatric injury?
MR SEMMLER: They may, I suppose, be vulnerable in the sense that their condition could get worse, I suppose.
GLEESON CJ: A person who is delusional, for example, might suffer serious shock and psychiatric injury as a result of - to information being conveyed on which the delusion works? I just wondered whether the concept of normal fortitude was not formulated to exclude, amongst other things, people whose vulnerability results from the fact that they are already from psychiatric illness.
MR SEMMLER: Your Honour, that may be right although, with respect, it does not seem to be the way in which - it has never been taken to that level of obstruction.
GLEESON CJ: At all events, you would not exclude such people? You would have to have a duty to take reasonable care not to cause further injury to people already suffering from psychiatric illness.
MR SEMMLER: No, your Honour. It may well be that such people would fall within the "far-fetched and fanciful" category.
GLEESON CJ: Why? You keep telling us how many of them there are?
MR SEMMLER: Not delusional people, your Honour, people suffering with depression. Mrs Tame's depression was the most extreme form of depression, psychotic depression where she has delusions, where she thinks irrationally that she may have been responsible because somebody else made a mistake. Whilst this is certainly not that case, there is no suggestion in the evidence in this case that Mrs Tame was delusional or had anything like the degree of illness that she had after this mistake was made, it would be a question of examining all the evidence in such a case - - -
GLEESON CJ: No, she did not have the illness after the mistake was made. As Justice Callinan was pointing out to you, she had the illness after she learned about the mistake some years later.
MR SEMMLER: Yes, that is right. It was after the mistake was made but it was also after she learnt of it. But, your Honour, that is not this case and it may be - - -
GLEESON CJ: I was only prompted to ask the question by this discussion about normal fortitude that we were having.
HAYNE J: Now, normal fortitude may perhaps be something that Dean Pound was looking at in this article in Harvard Law Review that Justice Dixon was referring to in Bunyan v Jordan, 28 Harv L Rev 361. Dean Pound seems to speak of such matters. I do not know whether it is the origin.
MR SEMMLER: Yes. Indeed, it may be the origin. Certainly, as a concept it seems to have appeared in the Australian cases earlier than Bourhill v Young, but to continue. So Justice Rich at page 15, in our submission, does not apply the normal fortitude test. He simply says:
I am unable to take the view that a reasonable person might antecedently expect that it would ensue from the emotions however creditable to the human heart which would be excited by the spectacle -
et cetera. He is simply applying a test of foreseeability. He is not incorporating, in the case he was dealing with, this notion of normal fortitude. Justice Dixon incorporates it at page 17, or might be said to incorporate it, in the sense that he talks about:
could not in a normal person be more than transient.
Although, again, it may be read as simply the application of the usual foreseeability test. At page 18 Justice McTiernan simply again, we would say, talks in terms of what was or was not reasonably foreseeable. He does not specifically talk in terms of this notion of normal fortitude. So, to that extent, with respect to his Honour, we say that Chief Justice Spigelman was wrong.
KIRBY J: Was this after Chester's Case?
MR SEMMLER: It was - no, I am sorry, your Honour, Chester was in - - -
KIRBY J: I see Justice Evatt dissented in the case.
MR SEMMLER: This was before Chester v Waverley Corporation, shortly before. Certainly Justice Evatt maintained his dissent in stronger terms in Chester's Case. The other case relied upon by his Honour Chief Justice Spigelman was Jaensch v Coffey, but it is, in our submission, quite clear from a reading of that that this case does not constitute part of this strong body of case law which his Honour was referring to. That endorses this concept of normal fortitude.
At page 556 we see Chief Justice Gibbs assuming, "(without deciding)" that there has to be "normal fortitude", at 556, the second paragraph. Justice Brennan deals with it at 568 in a passage part of which his Honour Judge Garling referred to - and I will come back to that on the question of whether or not he applied the correct test - but he did not refer to these words, towards the bottom of page 568:
Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility.
Now, it may be that Justice Brennan there is embracing the concept. It may be, on the other hand, as I think my learned friends in the Annetts Case have put on behalf of the plaintiff, that he was not. It may that when he talks about "extraordinary susceptibility", he is really referring to the concept of something that is far-fetched or fanciful.
Justice Murphy dealt with it at 557 but we would say that it is by no means patently clear that he embraced it. He says towards the middle of the page:
if liability extends to "normal" persons, it must also extend to predisposed persons, who at least should be able to recover where a "normal" person would have recovered and to the same extent.
But he does not clearly embrace the test.
KIRBY J: On the contrary. His statement seems to be against it.
MR SEMMLER: It does. That is our submission, your Honour. Chief Justice Spigelman referred to what Justice Deane said and said that Justice Deane had referred to the test with implicit approval in Jaensch's Case but if one looks to the first place at which Justice Deane refers to the test - it is at 593, the second paragraph - he says:
Even on the qualities of sang-froid and fortitude ("the customary phlegm": Hay or Bourhill v Young) which some later members of the Bench have thought are to be expected of ordinary members of the public -
He is certainly not there saying, "Well, I am one of those". He is referring to the thoughts of other people. Then when he deals with it more directly at page 610, he says in the first paragraph - he acknowledges that:
Mrs Coffey was more than . . . usually predisposed "to neurotic upset, anxiety and depression".
I would interrupt myself there to indicate that is what Mrs Tame was. But he says:
That dependence and resulting predisposition were not, however, sufficient to prevent the finding, which was made, that she was a "a person of normal fortitude" or to warrant a conclusion that the injury by nervous shock which she sustained was either beyond the limits of reasonable foreseeability or was other than the reasonably foreseeable result of Mr Jaensch's breach of the duty of care which he owed her. The fact that such injury may have been more likely or more severe in Mrs Coffey's case than in a case of a person of a different disposition does not absolve the defendant of liability in negligence in respect of it -
Now, your Honours, we respectfully disagree with Chief Justice Spigelman's analysis of this case and the judgments within it, that, in effect, it embraced the normal fortitude test. We say there is no clear statement to that effect in Australian law to this time. Justice Kneipp, in a case in Queensland, in Petrie v Dowling - - -
GLEESON CJ: Mr Semmler, I think Justice Kneipp's decision was referred to in the course of the judgment in the next case that we are going to look at.
MR SEMMLER: It was, your Honour, yes. I do not need to take your Honours to that. Can I simply say, in relation to this normal fortitude test, in Jaensch v Coffey - these were obiter dicta on this issue, anyway, because the trial judge had found that she was of normal fortitude, notwithstanding her predisposition to - - -
GLEESON CJ: Now - go ahead.
MR SEMMLER: I am sorry. As your Honour the Chief Justice said in Perre v Apand, in the context of financial loss, a decision that a duty of care is owed to some who suffer financial loss but not to others is only just if it is capable of being explained on a rational basis. Our criticism of the normal fortitude test is that it does not satisfy that test. It is not a rational concept. It may be a limiting concept, but given what we know about human beings, what modern psychiatry knows about the prevalence of psychiatric illness, it simply does not make sense to maintain this notion, that may have been appropriate in the circumstances of the Second World War, that people, when committing acts, when doing things, only have to bear in mind those who have this - whatever the concept may mean - "normal fortitude", because it is common knowledge in the Australian community today that depression is rampant.
We have the National Institute for Depression, the "beyond blue" institute that was set up at the behest of the former Premier of Victoria. People, in our submission, know, just as Judge Garling in this case said, that the community these days knows that people - not everyone is as strong as everyone else emotionally, in the same way they do not all have the same kind of backs. Some people have discs that are about to pop out. Some people in the community are emotionally more fragile than others.
GLEESON CJ: Is that a convenient time?
MR SEMMLER: It is, your Honour.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.18 PM:
GLEESON CJ: Yes, Mr Jackson
MR JACKSON: Your Honour, in the second matter, MR S.C. FINNANE will be appearing with me.
GLEESON CJ: Yes, Mr Semmler.
MR SEMMLER: Your Honour, in relation to the vexed question of Constable Morgan's appearance in this litigation as a party, I have spoken to Mr Donovan about it. Your Honour, it is apparent from the material in the appeal books that the State of New South Wales accepts that it made an error in the P4 report. It is vicariously liable for the policeman who did. Both defendants appealed and the Court of Appeal set aside the orders of Judge Garling and entered verdicts for each appellant. Mr Donovan suggests, and I agree with him, that the appropriate course would simply be for Constable Morgan to be dismissed from the proceedings in this Court, therefore, the decision of the Court of Appeal would stand. That is, there was a verdict in his favour.
GLEESON CJ: Can you bring in a consent order tomorrow, to the effect of that agreement?
MR SEMMLER: We can do that, your Honour, yes.
GLEESON CJ: Yes, Mr Semmler.
MR SEMMLER: Your Honours, before the adjournment I was making submissions in relation to the normal fortitude test. Our submission is that this is not a rational nor a legitimate limiting device in cases of this kind. What is normal fortitude is a concept that is not capable of definition. It is really, in the end, meaningless. If it is to be a rational restriction on the duty in cases such as this, there has to be a mechanism by which a plaintiff, in a given case, can be adjudged to be of normal fortitude or not.
GAUDRON J: But is it not really just an attempt to bring an objective test into the picture, in a sense that what - and it may relate to foreseeability, it may relate to causation, it may slide between the two - but is it not simply an attempt to say this might have the consequence on an ordinary person?
MR SEMMLER: Yes. It probably is an attempt to do that, but it is - - -
GAUDRON J: Well, what is so wrong with that?
MR SEMMLER: Because it is, in the end, an attempt without any substance; it is a test without substance.
GAUDRON J: Well not necessarily. I mean, it may be difficult of application, but if you say there is an objective element to this, to liability in this area, is that - - -
MR SEMMLER: But the real issue is, can it be said to be objective if it does not constitute a yardstick, if it does not constitute a test with any parameters for determining whether someone falls within its scope?
KIRBY J: Where does this Court recently state the "eggshell skull" principle for physical injury? Because that, it seems to me, is the problem with importing the objective notion simply because the nature of the damage is said to be psychiatric. If we do not do that for physical, we have to have a good reason for doing it for psychiatric, which, on the evidence, in many cases, although not all, is probably physical or physically connected.
MR SEMMLER: Yes.
KIRBY J: Justice McHugh in Nader, I think it was, expressed in the Court of Appeal the "eggshell skull" principle, but I do not know whether this Court has referred to it.
MR SEMMLER: Your Honour, I think there was a reference by Justice McHugh to it in March v Stramare in the context of the rule having survived the Wagon Mound principle. Certainly it was referred to in Mount Isa Mines v Pusey [1970] HCA 60; 125 CLR 383, and I will take your Honours to the judgment of Justice Windeyer, because he referred to it in the context of having difficulty with this notion of normal fortitude in a psychiatric injury case. At page 406 Justice Windeyer said at the top of the page:
the supposed rule -
that is the rule that he on the page before has criticised in the second paragraph, the rule of the person needing to be "emotionally and mentally" a normal person. He criticises it at 405. At 406 he says:
the supposed rule does not, at first sight, stand well with the so-called "egg-shell skull" rule in relation to physical harm.
And it is cases like Smith v Leech Brain show that this is still a lively doctrine, that is, it has survived the Wagon Mound principle.
I have no doubt that we should agree and that it is still for us the law that a tortfeasor takes his victim as he finds him. The proposition that a man susceptible to nervous shock is not entitled to damages is said to be reconcilable with that, because it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality : only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him which a normal man would not suffer; only then would he be a tortfeasor and the man with an egg-shell mentality the victim of a tort. I appreciate that. Nevertheless, I do not find the proposition easy.
And, with respect, nor do we, your Honours. We say that there is a real - there is a conflict. Now, although, as my learned friends say in their submissions and as the Court of Appeal said, the talem qualem rule is - it is said to be a rule of damages, not liability. That is, it applies once the duty of care has been - it has been determined that there is a duty of care.
GLEESON CJ: The way it is put by Justice Windeyer there looks as though he is dealing with it as a matter of causation. You see that phrase you just read:
it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality -
He begins by saying "there is no duty of care" and then he uses the expression "suffer harm because of their abnormality".
MR SEMMLER: Yes, with respect, your Honour, I do not think - it is our submission that he is not saying there that this is part of the causation test, he is saying that, in effect, the duty does not arise because of an "egg-shell" skull or "egg-shell" psyche. It is not an issue of causation that he is dealing with. Your Honours, what happens in practice is, in the physical injury context, most physical injuries - physical injury of some degree is, in almost every case, foreseeable, and then one moves to the question of breach and that is why it is not often that one encounters a physical injury case where it cannot be said that some injury was foreseeable even if the ultimate consequences were not.
So that, in practice, people who have physical injuries are treated differently from those who have psychiatric illness caused by carelessness because of this requirement to get over a hurdle constituted by the normal fortitude test. In England, if I could take your Honours to Page v Smith [1995] UKHL 7; [1996] 1 AC 155 at 189, Lord Lloyd of Berwick made this observation between E and F:
Nor in the case of a primary victim is it appropriate to ask whether he is a person of "ordinary phlegm". In the case of physical injury there is no such requirement. The negligent defendant, or more usually his insurer, takes his victim as he finds him. The same should apply in the case of psychiatric injury.
KIRBY J: His Lordship uses "phlegm" in a slightly different sense to the use of it in Australia, I think.
MR SEMMLER: I think that is right, your Honour, yes. It was originally coined in the Bourhill v Young Case, "customary phlegm" they talked about. Australian courts have not picked up that terminology. So his Honour is saying, in effect, in physical injury cases you take your victim as you find him. There should not be any difference in a psychiatric injury case, at least in the context of primary victims, of which we would say Mrs Tame is one.
KIRBY J: But do you or do you not support this primary victims dichotomy?
MR SEMMLER: No, your Honour, we do not. It is clear from our submissions we think that it adds an unnecessary further complication to an already complicated area of the law.
KIRBY J: It does have the merit of at least answering the problem which was troubling the Court earlier about setting the boundaries.
MR SEMMLER: Yes, but, your Honour, the boundaries - in that sense it does but one does not have to - perhaps one could classify Mrs Tame as a primary victim without all of the legal consequences that have been adopted in England that flow from that classification.
KIRBY J: The problem is it is another category.
MR SEMMLER: Yes.
KIRBY J: If you look at what is the essence that the so-called primary victim idea is trying to get at, it is a proximity idea.
MR SEMMLER: Yes, it is the closeness of the relationship.
KIRBY J: It is the neighbourhood - all of this is an endeavour to answer Lord Atkin's question about who is the neighbour.
MR SEMMLER: Yes.
KIRBY J: The problem with introducing the primary victim is that you are simply imposing a categorisation on facts which of their nature are going to be a spectrum.
MR SEMMLER: With respect, that is correct.
KIRBY J: Where does it stand in England now, and has any other country - did South Africa follow it in the Court of Appeals?
MR SEMMLER: No, in the Barnard Case it did not. It was not an issue.
KIRBY J: So has any other country followed the - has New Zealand considered this?
MR SEMMLER: No, your Honour. My understanding is no other country has followed it. In Australia in a decision of FAI General Insurance v Curtin [1997] QCA 241; (1997) Aust Torts Reports 81-442 at 64,500 Justice Lee in the Queensland Court of Appeal there towards the end of the first paragraph on that page really seems to adopt what was said in Page v Smith. He quotes the passage from Lord Lloyd that I have just read in Page v Smith at 188 and 189. He refers to the fact that:
His Lordship said that it was not appropriate to ask whether a plaintiff is a person of "ordinary phlegm", just as in the case of physical injury there is no such requirement. The negligent defendant takes the victim as he finds him. It follows that it is wrong to start off with the proposition that the reaction of a plaintiff in a case such as the present indicates a vulnerability or predisposition to psychiatric illness. Any such question, if it exists, goes not to the existence of the duty of care, but to damage -
It has been referred to, it seems with approval, by Justice Lee. I do not believe, your Honours, that it has been readily embraced, and the situation with it now is that what started off in Alcock's Case, in the House of Lords - Lord Oliver identified a difference between primary and secondary victims, based upon their immediacy of involvement in the particular circumstance that is said to give rise to the duty. Lord Lloyd in Page v Smith took it one step further and defined a primary victim as being one who is within the range of physical impact of an accident - which is not a test that really lends itself to this kind of case - but he said that such persons who are within that range become primary victims.
The tests that we, as appellant in this case, condemn do not apply, in Lord Lloyd's reasoning, to people who fall within the ambit of physical injury in an accident context. So those tests of normal fortitude, the need for shock, do not apply to accident victims who are within the range of physical injury in Britain, according to Lord Lloyd, even if they themselves do not suffer any physical injury. In Page v Smith, it was a simple motor car collision, where there was property damage but no physical injury, no personal injury. The plaintiff in that case suffered a recrudescence of a quasi-psychiatric condition - chronic fatigue syndrome - and the court allowed recovery in the House of Lords, although the Court of Appeal had rejected it.
KIRBY J: The position that you are describing is to be contrasted with the position under the second restatement on torts which Justice Gummow has drawn to my notice, in paragraph 436A. It does seem that in the United States the restatement attaches liability only if the victim has suffered bodily harm or other compensable damage. Otherwise, liability for emotional disturbance is not allowed.
MR SEMMLER: Yes. Well, that is, of course, far from the situation that obtains in Australia.
KIRBY J: But it is aiming at the same problem. That is to say, to chart the boundary.
MR SEMMLER: Yes, it is an endeavour to do that. One of the reasons why the House of Lords has embraced this primary/secondary victim distinction and said that in the case of primary victims, there is no need for these special controls, such as normal fortitude, is because they recognise that there is no risk of - as it were - the floodgates opening, because the number of people directly affected in that context will be restricted. It is not like one is dealing with people who watch something happening on television. It is restricted to the people who were within the range of physical impact.
HAYNE J: That assumes that normal fortitude is something directed to restricting unduly wide recovery. In the article by Pound, the 1915 article to which reference was made by Justice Dixon, Pound might be understood as putting the normal fortitude rule on a rather different basis. At pages 361 to 362 he says:
Where he -
that is the putative tortfeasor -
exercises his faculties for purposes recognized by law and, so far as he could reasonably foresee, does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way.
Dean Pound seems to put "normal fortitude" then as something touching those who can reasonably be within the contemplation of an individual ordering his or her affairs. "I must so order my affairs, I must so act that I do not inflict psychiatric injury upon those of normal disposition", the unstated tailpiece to that proposition being, "I really can't take account of those who are outside normal limits because their range is infinite and I cannot order my affairs to take account of those who are unusually sensitive". What do you say about that form of analysis?
MR SEMMLER: Your Honour, we would respectfully differ with the notion that anyone falling outside of the normal fortitude circle, whatever that may be, is necessarily entitled to recover on our thesis but within an infinite gradation of emotional sensitivities. What I am trying to communicate is that our submission is that there can be people outside of this notion of normal fortitude who are foreseeably at risk, but in respect of whom the risk is not far-fetched or fanciful, that they will suffer injury. True it is that it is a control device and that is what Dean Pound was clearly indicating. He was, from what your Honour says, indicating that those who behave unreasonably ought only to have in contemplation those who fit within this category of normal fortitude, but what it does not - - -
GAUDRON J: Is not Justice Hayne directing your attention to something else? That is: how do you say what is reasonable; what a reasonable person would have done if he or she cannot judge the likely reaction of a person; if he or she cannot say not just simply what is foreseeable but what might be the triggering event, if you like?
HAYNE J: What does the individual do? What does the policeman do - is the critical question - except judge it against what normal, with all the difficulties of normality, reactions might be?
MR SEMMLER: A reasonable policeman in the 1990s takes into account that depression, in particular, is a very common illness. As time goes by he takes into account that it is so prevalent that we have a national depression institute. He takes into account that his fellow man, as has been recognised in the reports for decades, is not all of one degree of emotional robustness.
GAUDRON J: Yes, but let us move a little bit away from the facts of this case. Let us assume it is the policeman's job to take bad news to Mrs Smith, and he takes it to the wrong Mrs Smith, who thereby suffers nervous shock. It is presumably foreseeable that that might happen. What is a reasonable person to do other than, you say, to get it right? One has to allow for mistakes in this world.
MR SEMMLER: It is a question obviously of degree. We are dealing here with a case of admitted error, a mistake that is made. It is a question of who should be in contemplation as possibly suffering harm as a result of an obvious error.
GLEESON CJ: I would like to understand the significance of the error a little better. Take Justice Gaudron's question, but suppose he got to the right Mrs Smith. He did not make a mistake at all, but he was insensitive in the manner in which he conveyed the bad news. In other words, we here have a case in which a policeman behaved carelessly in filling out a report for his superior. But if a policeman has a duty to take reasonable care to prevent psychiatric harm to another person in certain circumstances, you do not necessarily fulfil that duty by making sure that the information you convey is accurate.
MR SEMMLER: There can be other aspects - - -
GLEESON CJ: You would have a responsibility to convey the information presumably in a certain way.
MR SEMMLER: Yes. That may be right. In another case that may be right. There was a case in New Zealand, Furniss v Fitchett in 1958. There was found to be a duty in a doctor who issued a report about a woman, indicating in the report that she had psychotic features, I believe, in circumstances where he could have contemplated it would come to the attention of the woman herself. I think he gave it to her husband. It came to her attention in the course of litigation, and the court found that there was a duty in him, even though what was said in the report was correct, to take care in relation to - - -
GLEESON CJ: Those television channels that broadcast over and over and over again pictures of a plane flying into a tall building and people jumping out of the building last September owed a duty, did they, to take reasonable care to convey that information in such a way as to avoid psychiatric injury to viewers, including viewers of abnormally sensitive disposition?
MR SEMMLER: They may. They may have that duty but that is where factors such as other fetters on this duty would come into effect. It is not this case. That is dealing with a potential class of claimants which is enormous.
GLEESON CJ: It helps understand the relevance of the error that was made in this case. You said earlier, in one of your submissions, that the error in the information conveyed by Acting Sergeant Beardsley was critical; that is where his breach of duty lay. The proposition you have been putting after lunch would seem to embrace a breach of duty where there was no error in a certain case.
MR SEMMLER: In disseminating the information?
GLEESON CJ: Yes.
MR SEMMLER: The primary error, in this case, was the mistake that was made, but it could be viewed as a case of compounding the error, compounding the problem, by disseminating the information in circumstances where that should not have been done.
CALLINAN J: Mr Semmler, could I draw your attention to what was said by Justice Windeyer at page 407 in Pusey. Unless something quite different has been said, it looks to me as if it might cover this case. At about point 7 his Honour said - and I might say, the appellant describes her injuries as shock, severe shock. That is what is pleaded. Justice Windeyer says:
If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell.
That is Constable Morgan and those for who are vicariously responsible for him. This case, it seems to me, falls squarely within that categorisation by Justice Windeyer, that is how it seems to me at the moment. Has anything different been said by anybody in this Court since then?
MR SEMMLER: Your Honour, could I answer that first by saying that this was a statement in the context of, what is regarded as the - - -
GUMMOW J: It is not the context, it is the identity of the person who said it that is cogent.
MR SEMMLER: Absolutely, we accept that, your Honour. It is dealing with what is called the "told rule", that is, that the orthodox rule that there is not liability for nervous shock because of the reasons which were discussed earlier - - -
CALLINAN J: Has anybody in this Court said anything different from that, at any time, since 1970?
MR SEMMLER: Would your Honour excuse me, one moment?
CALLINAN J: Yes.
KIRBY J: Have we had a chance to?
MR SEMMLER: Your Honours, the "told rule" that I have referred to, which is what was really being discussed by Justice Windeyer, is not clearly settled in Australia and it is dealt with in our written submissions. It is an issue that was raised by the respondent in its notice of contention. It is something that Mr Mullany will be dealing with as part of his submissions in relation to shock, but it is not, definitively, part of the law in Australia.
CALLINAN J: Why is it not? It has been said by Justice Windeyer.
MR SEMMLER: First of all it was obiter dicta in that case.
GUMMOW J: We know that.
MR SEMMLER: Yes, but it is not - there is no - - -
GUMMOW J: All I putting to you is when I read that, like Justice Callinan, I ask myself, that sounds right?
MR SEMMLER: There have been decisions - - -
GUMMOW J: I do not care whether someone said in the Supreme Court of Oodnagalahbi or something else.
MR SEMMLER: No. Well, the Barnard v Santam Case, the case of the Supreme Court of Appeal in South Africa, has rejected the "told rule", they allowed recovery for bad news that was communicated to the plaintiff by telephone. They considered all of the policy reasons against this and decided that the "told rule" should go. There have been cases in Australia, first instance decisions, where the "told rule" has been ignored, Quayle v State of New South Wales, I think a case of a man who hanged himself in gaol, the relatives were told; they recovered. There have been cases, not in this Court, but the issue is not finally settled. It is something we have dealt with in our submissions and I will - - -
GUMMOW J: Yes, but we are here to try and settle it and we want to know why we should not settle it in accordance with page 407 as a matter of cogency, not as a matter of precedent. That is why we sit here.
MR SEMMLER: Yes, I appreciate that, your Honour. Well, your Honours, could I leave that to Mr Mullany, because that is an issue that he is dealing with, as I indicated at the outset. It is an issue of the means of communication rule or the "told rule". It has not been definitely determined by this Court and I will - - -
GLEESON CJ: Have the counsel agreed between themselves on some division of time for their argument?
MR SEMMLER: We have not; I am obviously conscious of the time, your Honour, and I will endeavour to be as expeditious as I can.
KIRBY J: Who is going to deal amongst you with the questions of fact, which are raised in the respondent's submission.
MR SEMMLER: I shall, your Honour. Our submission is that this hurdle that confronts mentally ill claimants is not one - that is, they have to show that it is foreseeable that somebody who was normal would suffer the injury. It is not a hurdle that is faced by persons who have suffered physical injury; it is demonstrative of an unjustified reticence in the common law to afford equal standing to all victims of careless conduct. Our submission is that the preferred approach should be that the vulnerability to psychiatric illness, which we know to be present in the community for the reasons I indicated before lunch, should be accommodated within the reasonable foresight test in all cases; that the reasonable foresight test should apply and the encompassing of vulnerability should apply uniformly to all forms of personal injury.
The Law Commission of England and Wales, whose reports we have referred to, say, in paragraph 5.26 of their report No 249 that this normal fortitude test, which has been regarded by some as an additional control on psychiatric injury claims, should properly be regarded simply as an aspect of the conventional foreseeability inquiry.
GUMMOW J: You may get some support from a dissenting judgment of Justice Thomas in the New Zealand Court of Appeal.
MR SEMMLER: Yes, it is a very strong dissenting judgment, your Honour. It puts our position in this case overall that foreseeability should be the determinate.
GUMMOW J: It is van Soest v Residual Health Management Unit [1999] NZCA 206; (2000) 1 NZLR 179.
MR SEMMLER: His Honour, Justice Thomas, at 200 and onwards neatly summarises, and puts in better language than I, the very arguments we seek to advance before your Honours: the arbitrariness and illogicality of the law relating to compensation for mental injury; the policy-driven approach adopted by courts in the past; the artificial categorisation and restricted interpretations that have prevailed; the fact that the law has been allowed to develop in a confused and illogical fashion. His Honour rejects the notion of floodgates being opened if these artificial restrictions are removed. He makes the point, which we have sought to make in our written submissions, that at each stage in the development of the law in relation to nervous shock, the ambit of liability has been widened, but there has not been a flood of litigation. It moved from a situation in 1888, where there was no liability for pure nervous shock, to 1901, where there was liability if one feared for one's own safety, to where, in 1926, there was liability in Hambrook v Stokes Brothers if one feared for the safety of others - - -
GUMMOW J: Well, you leave out the earlier step, you leave out Wilkinson v Downton, do you not?
MR SEMMLER: In 1897?
GUMMOW J: Yes.
MR SEMMLER: But that was a case of intentional infliction of emotion or distress.
GUMMOW J: Exactly, and that is what Sir Victor Windeyer had in mind in that passage in Pusey, I think, where he says mere conveyance of news without some malign intention is not enough.
MR SEMMLER: Yes.
KIRBY J: That fits in with what Justice Gaudron said earlier, that in our sort of society you should not burden those who bring bad news with the penalty, a tortious penalty.
MR SEMMLER: Yes. All I can say about that, your Honours, is that is not this case. There is no question of suing the bearer of bad news. There was no question in the evidence that it was the way in which the news was brought to Mrs Tame's attention - - -
KIRBY J: You do not sue him because he is your solicitor.
MR SEMMLER: Well, that is right.
HAYNE J: But what you seek to do is to have a wholesale rewrite of the law relating to nervous shock.
MR SEMMLER: That is correct.
HAYNE J: It seems to me you cannot do so unless you first divide the area. There are cases in which somebody is told something that did not happen or is not true: this case. There are cases where people are told something that did happen: Pusey, perhaps. There are cases where people see something that results in nervous shock. Finally, and perhaps most problematically of all, there are those cases where there is a build up of experiences. The police or other emergency worker who says, "My employer should have provided me with other, or different, or better facilities and in consequence I have suffered recognisable psychiatric injury".
Now, if you are in the first category identified, of being told something that did not happen, why is that not resolvable within existing cases concerning the conveyance of false information, be that defamation or misstatement-type torts, and if it is not resolvable within that, it has to be made coherent? Now, we have been round the loop several times. I wonder whether you do not seek to advance far too many bridges too far.
MR SEMMLER: Well, your Honour, we say it is not easily accommodated within negligent misstatement because there is no reliance here.
HAYNE J: As I say, we have been round the loop several times.
MR SEMMLER: Yes.
CALLINAN J: Why is it not defamatory?
MR SEMMLER: It may be, subject to issues of qualified privilege, who was entitled to have the information.
CALLINAN J: Well, assume it is a public document, and that seems a safe assumption on the findings, it is published to a number of people. Why is it not defamatory and why could not the appellant have recovered, in New South Wales, aggravated damages by reason of the psychiatric harm that she said she suffered? That would be so unless there is some provision under the Police Acts, perhaps, or some other Act which might deny liability, but it seems safe, for present purposes, to assume that is not so. It is clearly defamatory, is it not?
MR SEMMLER: Your Honour, it may be. We do not know sufficient about the facts to be able to - - -
CALLINAN J: But it is. If you say somebody was drunk driving a motor vehicle, you are seriously defaming that person.
MR SEMMLER: Your Honour, if it is defamatory and if there is no proper defence to it, the prospects of Mrs Tame being compensated for all of the harm that was suffered in this case - that she was compensated for in this case are not good.
CALLINAN J: I do not know about that. I have seen some very, very big awards of aggravated damages in New South Wales in defamation cases. Indeed, three-quarters of the plaintiff's evidence is often directed to precisely that head of damages.
MR SEMMLER: The harm that she suffered was not simply because of the damage to her reputation.
CALLINAN J: No, and that is another aspect of this case. It was not simply the communication of the contents of the report. There was an added factor which was her knowledge - and I do not know where she got this from - that that was a public document and might be seen by a large number of people, or by a number of people. There are two factors operating, are there not?
MR SEMMLER: Yes. I think that she in her own mind assumed that it would be available to other people. She certainly knew that it had been made available to the insurance company, but it may well have been part of her irrational obsessing about the situation that she assumed that a lot of other people who, in fact, had not received it had received it. But, your Honours, in the end, if it is the case that she was entitled to recover, to some extent, for damage to her reputation, our submission is simply that that is no reason to deprive her of a remedy that protects not just injured feelings but one's physical and mental integrity.
CALLINAN J: If she has more than one cause of action, yes, she can pursue - - -
MR SEMMLER: Yes. It is no reason - that there may be a cause of action that covers some of her harm - to deprive her of a cause of action which we say should exist on basic negligence principles which protects a different interest which is her right, if I can put it that way, to mental integrity.
CALLINAN J: But it makes even more important what Justice Windeyer said in Pusey when his Honour is actually discussing the communication of bad news.
MR SEMMLER: Yes. He was talking about the manner in which it is communicated.
CALLINAN J: No, and the event giving rise to the communication as well. He speaks of both - the person responsible for the event.
MR SEMMLER: Yes. Your Honour, the law in relation to recovery for nervous shock has moved on considerably since Justice Windeyer's obiter dicta in that case.
CALLINAN J: But not in this case - but not in this Court, so far as we have been told.
MR SEMMLER: No, not on that issue.
CALLINAN J: No.
MR SEMMLER: Your Honours, we refer in our written submissions to the fact that in some parts of Canada the "thin skull" rule applies as fully to psychiatric injury as to physical injury, that is, there is not this concept of normal mental fortitude having a role to play in the duty of care inquiry. Our submission is that in this country this Court should declare that to be the situation to afford equality and parity to victims of carelessness who suffer psychiatric injury with those who suffer physical injury.
Your Honours, on the assumption that the normal fortitude rule is indeed part of the duty inquiry, our submission is the Court of Appeal erred in holding that the injuries suffered by the appellant would not have been suffered by a person of normal fortitude. That is, assuming that the normal fortitude test applies, in our submission, the Court of Appeal was not justified in taking the view that a person of normal fortitude would not have suffered the injuries suffered by Mrs Tame. It is ground of appeal 2(d).
Now, your Honours, Chief Justice Spigelman took the view that the question of normal fortitude is a matter of judicial notice. He relied on what Lord Justice Hoffmann said in Page v Smith and he said that it is a question of judicial notice, and he decided that a person of normal fortitude would not foreseeably have reacted this way. Your Honours, our submission is that it is not properly regarded as a question of judicial notice. For judicial notice to apply, the fact must be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. Normal fortitude is not a concept which fits into that class, or that definition. It is a concept about which reasonable minds can differ what is normal fortitude.
Lord Bridge in McLoughlin v O'Brian, who really identified the test that needed to be applied in determining what is foreseeable and what is not, emphasise that it is a question of informed judicial opinion. It is not, if I might put it respectfully, raw judicial opinion That is, a judge is not entitled simply to say, "I don't think that is what a person of normal fortitude would do, or how that person would react". Lord Bridge made clear that it must be informed by psychiatry. If I could just briefly take your Honours to the passage in McLoughlin v O'Brian [1983] 1 AC 413 at 432 to 433 where he deals with that. At 432B he poses the question how does one determine what is "reasonably foreseeable" by a reasonable man.
depends on what knowledge is to be attributed to the hypothetical reasonable man of the operation of cause and effect is psychiatric medicine.
He looks at the two approaches to it. One is the judge simply relies upon the psychiatrists as it were, completely. The second is:
the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, as fairly representative of that of the educated layman, should treat himself as the reasonable man -
Whilst he found compelling reasons to adopt the former approach, he decided that the latter approach, in light of the authorities, was the one that should be taken. However, at the bottom of page 432 he emphasised this. He said:
It would seem that the consensus of informed judicial opinion is probably the best yardstick available to determine whether, in any given circumstances, the emotional trauma resulting from the death or injury of third parties, or indeed the threat of such death or injury, ex hypothesi attributable for the defendant's negligence, was a foreseeable cause in law -
He goes on to say:
But the word I would emphasise in the foregoing sentence is "informed". For too long earlier generations of judges have regarded psychiatry and psychiatrists with suspicion, if not hostility.
He goes on to say:
Likewise, I would suppose that the legal profession well understands that an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals whom it would be wrong to regard as having any abnormal psychological make-up. It is in comparatively recent times that these insights have come to be generally accepted by the judiciary. It is only by giving effect to these insights in the developing law of negligence that we can do justice to an important, though no doubt small, class of plaintiffs whose genuine psychiatric illnesses are caused by negligent defendants.
GUMMOW J: What do we get from reading that apart from consumption of time?
MR SEMMLER: Only that Lord Bridge identifies the problem that generations of judges have - - -
GUMMOW J: We all know that.
MR SEMMLER: All right. What Lord Bridge said was echoed by Justice Deane in Jaensch at page 601 where he said in effect that the outer limits of foreseeability must depend on expert evidence. It is not an issue of simply the judge deciding without being informed by psychiatry. Your Honours, the reality is, as I indicated this morning, psychiatry informs in respect of what illness recovery can be had. Psychiatry tells us what are psychiatric illnesses and the same experts who tell us what the law will permit recovery in respect of should also, in our submission, properly inform courts as to the vulnerability of people to psychiatric harm, what kinds of stressors can bring about foreseeably psychiatric harm and what cannot. It would be, in our respectful submission, illogical for the same experts to define what is recoverable but not be permitted to have an input into who foreseeably might suffer that illness in what circumstances.
GLEESON CJ: What we are dealing with here is a clerical error in filling out a form and we are looking at the foreseeability on the part of the person who made the slip. Clerical errors and slips of this kind, honest mistakes, could be made by all manner of people in all manner of circumstances. To treat the response to the error that occurred in this case as reasonably foreseeable has very large consequences, does it not, in terms of its effect on the behaviour of people generally?
MR SEMMLER: With respect, your Honour, no. This case involves an unusual - some might say most unusual - but we would say foreseeable response to a given factual situation. If your Honour is concerned in asking that question about, in effect, opening the floodgates of litigation that everybody will sue over everything, the answer is no, they will not.
GLEESON CJ: Could you perhaps substitute for the word "floodgates" the word "consequences", which seems to be slightly more respectable?
MR SEMMLER: Yes, your Honour, I am happy to do that. The former term has been used in - - -
GLEESON CJ: Quite; rhetorically.
MR SEMMLER: Yes.
GLEESON CJ: Rationally, let us talk about consequences.
MR SEMMLER: Simply because many people are predisposed to psychiatric illness, simply because Mrs Tame may recover, if your Honours take the view there was a duty and foreseeability, does not mean that everybody will sue over every little clerical error. There are so many hurdles that have to be crossed. One of them is to prove that there is a recognisable psychiatric injury. Even the fifth of the female population in Australia who will at some stage or other develop depression, not everybody will suffer psychiatric injury as a result of a simple clerical error.
McHUGH J: Mr Semmler, one reason why arguably you cannot have any input from psychiatrists on this issue of foreseeability is because one of the key elements of negligence is the reasonably practicable alternatives open to the defendant. Therefore, the defendant has to be able to foresee the risk before he or she knows what it is that they have to avoid in a reasonably practical manner that is open to them. So it must be the individual in this particular case. It may be if you are dealing with an employer, you can attribute psychiatric knowledge to the employer, but you are dealing here at an individual level.
MR SEMMLER: Your Honour, I accept that, but the approach taken by the courts has been, as indicated in Lord Bridge's speech, that this cannot be determined in a vacuum. The judge sitting in the position of the reasonable police officer - his opinion about what is possible, what is foreseeable -must be informed by the same people who delineate the recoverable damage.
McHUGH J: But why? It is not the judge sitting in his court that has to take the action. It is the man or woman on the ground who has to say to him or herself, "If I don't do this, I am exposing somebody to a risk of injury and I have to take steps to avoid it".
GLEESON CJ: And if Acting Sergeant Beardsley had asked a lawyer for advice as to how he could avoid liability of this kind, the only advice he could have been given was, "You must never make a mistake".
MR SEMMLER: "Be careful about what you" - - -
GLEESON CJ: No, no, "Make no mistakes. One clerical error and you are a tortfeasor, because the result of the error you make might cause somebody to be shocked".
MR SEMMLER: But clerical errors can cause a lot of damage to a lot of people. A check-in clerk at a country airport who wrongly records the weight of the luggage, fails to put on a zero, and it is loaded onto a plane and the plane takes off and crashes because of his writing on a piece of paper, he is going to cause a lot of injury. There would be no question - - -
McHUGH J: Yes, but that goes to breach and that raises a question here, in this particular case. For instance, Justice Thomas in van Soest Case says "reasonable foreseeability" runs through the area of "negligence". That is true in one sense - in fact it is true generally - but it is not true.....An employer owes a duty of care even though the employer does not reasonably foresee that the particular injury may occur. He owes the duty of care but there is no breach because he did not reasonably foresee it. So it is important to distinguish duty and breach.
If you were drawing your case up under the old system of pleading, which often helps clarify legal thinking, the way you would have to plead your case, it seems to me, leaving aside the ordinary preliminaries and the declaration, you would plead that the defendant wrote an entry on a report that was damaging to the plaintiff's reputation and character, knowing that it would be supplied by others to third parties and that its contents were likely to be communicated to the plaintiff. Thereupon, the pleading would say, the defendant so negligently and carelessly conducted himself whereby the plaintiff suffered nervous shock.
But the duty, it would seem to me, would have to arise from the fact that he wrote the entry on the report, that it was damaging to the plaintiff's reputation and character, thirdly, that it would be supplied by others to third parties, and, fourth, that its contents were likely to be communicated to the plaintiff. They are the elements that you would have to argue gave rise to the duty, and it seems to me that brings you pretty fairly and squarely within the area of negligent statement. Questions about foreseeability of nervous shock really go to breach unless you accept your argument that this case is fairly and squarely within the Donoghue v Stevenson physical injury case and say that foreseeability itself creates the duty.
MR SEMMLER: Your Honour, that is our submission. It was not simply an issue of the pleader identifying that this error affected her reputation and character. The pleading in this case would encompass the fact that it was likely to within the undemanding test of foreseeability.
McHUGH J: No, but he had to foresee something. You say in a general - what was it that he foresaw? Just sitting there in his office he did not foresee he was going to cause nervous shock. You have to say that what he should have foreseen was that he was writing an entry that contained something damaging to the plaintiff's reputation and character which, if communicated to her, would be likely to cause a nervous shock. You cannot jump the steps. You could send out a blank piece of paper. Nothing happens. It is what is in the paper that gives rise to the foreseeable risk of injury on your argument.
MR SEMMLER: The answer to your Honour's question is found within the evidence of the psychiatrists who gave evidence in this case. They said, "Look, it's not unforeseeable that a law-abiding person who has a major dislike of drink driving would be shocked, horrified, very worried and, indeed, worried to the extent - - -
McHUGH J: That can be readily accepted for the purposes of the argument but that still comes back to the fact that it is the making of the entry that causes the nervous shock.
MR SEMMLER: Your Honour, yes, that is true, and it must be foreseeable it will cause injury. What I am attempting to put, your Honours, is that it was foreseeable that the Court of Appeal was not justified in assuming that it - - -
McHUGH J: I do not know why foreseeability comes into this case at this stage. It comes in obviously on breach.
MR SEMMLER: No, it comes in as part of the duty inquiry.
McHUGH J: Why?
MR SEMMLER: Because there must be a foreseeability of psychiatric illness to create the duty to a person who - - -
McHUGH J: Well, if you are going to adopt the orthodox view of the law, absolutely. If you are going to abandon that and you want a new test, then you have to look at something else.
MR SEMMLER: Your Honours, we are not abandoning that. We say there must be foreseeability of psychiatric illness and we say in this case there was, or at least Judge Garling was entitled to conclude there was and the Court of Appeal was not entitled to conclude there was not.
McHUGH J: See, in an ordinary highway case, the duty does not arise because you can reasonably foresee damage, it arises from the relationship of users on the road. That creates the duty.
MR SEMMLER: Well, your Honour, with respect, I believe that - our submission is that, in reality in the normal physical injury context, it is assumed by reason of the fact that the act of X caused Y to be physically injured, it is assumed within that context that there is foreseeability. That is the - - -
McHUGH J: No, it is not assumed. Those matters go to breach - employer/employee. It arises from the relationship - innkeeper and guests. The old occupier/invitee cases - it arose from entry on the premises. It does not arise from foreseeability. They go to breach. Foreseeability goes to breach at that issue.
MR SEMMLER: In a psychiatric injury context we have to prove foreseeability of a psychiatric injury of some kind and if it turns out to be worse, well, then the traditional rule applies. Our submission here is that there was such foreseeability, even if we have to establish that it was foreseeability to a person of normal fortitude. The Court of Appeal in that respect got it wrong. Justice Mason, the President of the Court of Appeal, he said that there is no evidence from "the cognoscenti" as he put it at page 808, paragraph 143, but there was. There was an abundance of evidence from the people who knew - that is the psychiatrists - that a person of - well, there was evidence that a person of normal fortitude could suffer this kind of reaction.
Dr Phillips was, at the time he gave evidence, the President-elect of the College, the Royal College of Psychiatrists in Australia and New Zealand. He testified that a person - - -
CALLINAN J: But psychiatrists might know all sorts of things that police constables do not know just as they know a great deal that I would not know.
MR SEMMLER: Yes, that is true, your Honour, but the approach taken by the - - -
CALLINAN J: Or foresee.
MR SEMMLER: Yes. Could I simply quote what Justice Deane said at page 601 in the last case to be dealt with by this Court in this area in Jaensch v Coffey? At about two-thirds of the way down on page 601:
the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance. Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury which the plaintiff has sustained.
CALLINAN J: But how does that help in assessing what an ordinary person without psychiatric knowledge might reasonably foresee?
MR SEMMLER: One cannot necessarily assume that such people have that expert knowledge.
CALLINAN J: You would assume the contrary, that they would not have.
MR SEMMLER: It enables the court to ensure that - by the court being informed by psychiatry, it enables them to ensure that they are not too far behind when it comes to an understanding of what causes this kind of illness. That is what it does.
McHUGH J: That is acceptable in terms of causation theory. There is no problem about that. But I am not sure it is acceptable when you are talking about duty or even breach because it must be the foresight of the individual if negligence law is to have any real meaning in the real world.
MR SEMMLER: I can do no more than refer to what Lord Bridge and Justice Deane said but could I also say in this case we have a trial judge in a busy court in New South Wales saying, "My view is this is at the forefront of community knowledge. The community understands that this kind of reaction can occur" - this is not in the context of causation, this is in the context of foreseeability - "in response to this kind of stress".
McHUGH J: Obviously, I have lived a very sheltered life because I would have to tell you it would never have occurred to me for a moment that if somebody ready a wrong report when they are told that it was wrong that it would bring about a psychiatric illness.
MR SEMMLER: Your Honours, I am very conscious of the time and I do not wish to unduly burden your Honours with unnecessary references to the evidence but could I just on that issue because it is important - could I briefly take your Honours to volume 2 of the appeal books. Starting at page 258, line 25, I asked a rather awkward question, the effect of which was, is it foreseeable:
that a person of reasonable mental fortitude, on learning -
of this kind of error might -
suffer a recognisable psychiatric disorder?
GLEESON CJ: Can I ask a matter of fact? Did the evidence show that at the time your client was told about this by her solicitor she was told that it was an error?
MR SEMMLER: She knew it was an error.
GLEESON CJ: Did she know it had been corrected?
MR SEMMLER: She found out later that it had been corrected; she did not know at the time.
GLEESON CJ: Well, by the time she suffered the psychiatric reaction?
MR SEMMLER: Well, the evidence was that it happened then and there, at least the genesis of it was then and there. At some later stage she learnt that it had been corrected. She, indeed, took steps to ensure that it was corrected. A letter of apology was sent. The form had been corrected. There is no doubt about those matters, your Honour. Dr Phillips, as I say, who was the President of the College, she gave that answer. At the end of it she said, "If a person is a decent law-abiding citizen, that sort of information can have a very major deleterious effect."
Now, your Honours, we readily appreciate the force of what your Honour Justice Callinan says that the policeman does not necessarily know that, but that is the approach the courts have taken; they cannot ignore what the psychiatrists say.
CALLINAN J: I do not read what Justice Deane said in Jaensch v Coffey in the same way as you do at pages 600 and 601. What his Honour is speaking about there is really disasters, catastrophes and traumas. Now, that did not occur here; there was not an event of that kind, and you cannot ignore the somewhat trivial nature of the event, which is said to have given rise to your client's injury. A clerical error of this kind would not, it seems to me, reasonably foreseeability in the mind of the person committing the error, be likely to lead to a long depressive illness.
MR SEMMLER: Yes. Your Honour, one of the problems with this test, this normal fortitude test, is that minds differ - - -
McHUGH J: Supposing he had written .41, supposing in mistake he had been to write .41, and your client saw that and still suffered this illness, would that be reasonably foreseeable? Does it depend upon the nature of the error? Or 91, some absurd number?
MR SEMMLER: In the latter example it would probably create even more disturbance, if it is several times over the limit.
McHUGH J: But should a policeman, in those circumstances, realise that, by writing that number that he might reasonably cause - - -
MR SEMMLER: Well that is the issue. Judge Garling thought, "Yes", and our submission is that proper weight was not given to his opinion, particularly in the light of the unchallenged psychiatric evidence on it.
GLEESON CJ: But it was not just a clerical error; it was a clerical error that would have been obvious to any reasonable reader of the document, because he happened to attribute to your client precisely the same blood alcohol content as he attributed to the other party to the accident.
MR SEMMLER: Your Honour made that point on the special leave application, and that is - - -
GLEESON CJ: Yes, now that would have been an amazing coincidence, if they both had precisely the same reading.
MR SEMMLER: But she did not have the document in front of her when she was told - - -
GLEESON CJ: No, but we are looking at the question of foreseeability. Now, we have got a man who makes a clerical error when he fills out a report, and it is an obvious clerical error that any reasonable reader would identify as such. What is he to foresee as to the consequences of that error upon someone in the position of your client?
MR SEMMLER: He should foresee that someone in Mrs Tame's position, one of the accident victims named, may well have this information communicated in circumstances where that person does not have the form or the document in front of them.
GLEESON CJ: But she was told it was an error at the time it was communicated to her.
MR SEMMLER: Yes, that is true, but the damage has been done. The psychiatrists say, "Look, it doesn't matter". It is like the example I gave to your Honour earlier that Dr Klug gave. Simply because the man is rich does not affect the delusional state that has been triggered by reason of this error. Your Honours, at 269 and 275 of the same appeal book, there is other evidence from Dr Phillips on this issue. Dr Mitchell gave evidence that this kind of - this is in volume 1, pages 186, 188. Page 186, line 11:
Q. Is it a recognised phenomenon in psychiatry that someone can experience this degree of psychiatric disturbance on learning of a mistake such as that?
A. Absolutely.
Q. And have you encountered this kind of cause and effect phenomenon before?
A. About people finding out things that- -
Q. Yes . . .
A. Yes I have -
and then she refers to the DSM. This was the uncontradicted evidence. Even Dr Westmore, psychiatrist for the defendant, had no doubt that being advised that she was thought to have a positive blood alcohol level would have been particularly stressful for her, especially as the history would suggest she was a no-fault driver. He said at volume 3, page 600:
I would certainly agree that one would anticipate an anxiety reaction to occur.
GLEESON CJ: But she was not advised that she was thought to have that blood alcohol level. She was advised that a policeman made a mistake in filling out the form and attributed that level to her, and she was advised that it was a mistake.
MR SEMMLER: Well, she knew it was a mistake, but the critical matter, your Honour, is that she became aware that a person in authority had recorded that fact, erroneous though it was, in respect of her. That was the critical matter. That was what Dr Phillips identified in his evidence. It was the fact that a person in authority had done this. Just as in Barnes v Commonwealth in 1937, there was found to be a justifiable cause of action in respect of the communication by an officer in the Department of Pensions, I think it was, to a woman, the wife of a gentleman, that he was in receipt of a pension. There was a communication which she read to the effect that he would no longer receive the pension because he had been admitted to a lunatic asylum. She suffered nervous shock as a result of that and it was held that that was a reasonable cause of action.
Now, that case was distinguished by the judges in the New South Wales Court of Appeal on the basis that the communication in that case was direct and it was about a more serious problem than the communication to Mrs Tame, but the principle is the same. Certainly, the New South Wales Court of Appeal in Barnes v Commonwealth recognised that there can be liability in respect of the negligent communication of such information.
Your Honours, finally, on this issue of normal fortitude, our submission is that it is not clear in this case that Judge Garling did not apply the normal fortitude test. The Court of Appeal assumed he did not, but he quoted at least part of the passage of Justice Brennan in Jaensch v Coffey where this normal fortitude test was articulated in the last case dealing with psychiatric injury in this Court. Who is to say, we respectfully suggest, that he did not apply the correct test, because, in our submission, normal fortitude in this day and age needs to embrace a vulnerability to psychiatric illness.
In Jaensch v Coffey itself, Mrs Coffey was predisposed to psychiatric illness. The trial judge had found that she was of normal fortitude but the reality was, as the High Court indicated, she was predisposed to psychiatric illness. She had had an unfortunate upbringing and she was not what would classically, I suppose, be described as a person of normal fortitude. In a case in England, Brice v Brown [1984] 1 All ER 997, a lady with a hysterical personality disorder since childhood had a minor taxi accident and then developed a major psychiatric illness - bizarre behaviour, suicide attempts, pleading with people to cut her head off - in response to a minor traffic accident, and the trial judge found that she was of normal fortitude. He applied that test.
So our submission is that Judge Garling was amply entitled to, and may well have - probably did - apply the normal fortitude test, because the realities in this case, Mrs Tame was not as vulnerable as perhaps the Court of Appeal assumed she was. Dr Mitchell, her psychiatrist, referred to the resilience in her personality - this is at volume 1, page 183. Dr Mitchell, who had seen her on 40 occasions, referred to the fact that she "dealt with life's blows extremely well", she had dealt with the war, with migration from Britain to Australia, a difficult marriage, things of that nature. Dr Mitchell went so far as to describe Mrs Tame's resilience as one that we all might envy in dealing with life's traumas.
So that at least if Judge Garling had accepted that evidence - and that statement was not really challenged; there was no doubt she had a lot of traumas in her life - he was, in our submission, amply entitled to take the view that she was a person of normal fortitude.
Your Honours, could I move now to the question of, leaving aside normal fortitude, whether it was foreseeable or not that she would suffer this illness from this error. Judge Garling found foreseeability proven. Justice Mason in the Court of Appeal took the view that the injury was not reasonably foreseeable in this case whether or not one applied this test of normal fortitude. It is not clear that Justice Handley took the same view and the Chief Justice does not seem to have done that. He seems to have decided the case only on the basis that the normal fortitude rule applies.
In relation to this question of whether it was reasonably foreseeable according to the conventional test in Wyong Shire Council v Shirt, our submission is that Judge Garling was amply justified in taking the view that, given all of the evidence, it was not a circumstance that was extremely unlikely to occur or, rather, that it was far-fetched or fanciful. This Court has acknowledged that foreseeability embraces risks even in a most unusual case.
It is an undemanding test. It credits the reasonable man with an extraordinary capacity, we would say, for foresight extending to highly speculative and largely theoretical possibilities. So, in our submission, even if normal fortitude applies, Judge Garling was entitled to reach the view that this was reasonably foreseeable according to that test. The only vulnerability that Mrs Tame had was what Dr Phillips described as a "past history of a not very serious depression" and the fact that she was a very decent law-abiding honest person with a high moral code and was somewhat obsessional and perfectionistic about things. Those were her failings.
Finally, your Honours, on the grounds of appeal, 2(h) deals with the remoteness issue. Our submissions are largely those that we have made in relation to the foreseeability of harm in the context of the duty inquiry. Chief Justice Spigelman took the view that this damage was too remote because it was a wholly irrational response that had too tenuous a link with the carelessness. Our submission in relation to that is that, as we have said in our written submissions, it is the hallmark of mental illness that there is irrational thought. One cannot penetrate the genus of psychiatric injury to this degree of abstraction and one is not required to do so. The Wagon Mound lays down that psychiatric injury of some kind should be foreseeable. Our submission is it was.
It is not appropriate in this case, as we respectfully suggest it was not in Rowe v McCartney, to seek to, as it were, penetrate the category of mental illness to the level that was done in that case. Our submission is that case was not decided in accordance with the principles laid down in Mount Isa Mines v Pusey. As Dr Mitchell said in this case, a person who has psychotic depression does not, and cannot, understand things rationally and once psychiatric injury is foreseeable, it is inappropriate to attempt to apply rational consideration to the kind of injury that occurs.
Before I sit down and Mr Mullany addresses your Honours in relation to the shock requirement and the "told" rule, I indicated that I would deal with the question of causation. My learned friends in their notice of contention and their written submissions put in issue the plaintiff's credibility and the question of causation. They, in effect, say that the plaintiff was unreliable. She should not have been accepted by the trial judge. Because of that, the causation issue is tainted, because the psychiatrists relied upon a history that was unreliable. That is the effect of what they say.
Your Honours, there are simple answers to these things. I shall not take your Honours to the chapter and verse of the evidence, but there was an enormous amount of evidence in this case which was relied upon justifiably by the trial judge on the causation issue. He found, although not explicitly - it is undeniable that he accepted the plaintiff in the end on the key issues that related to causation. He indicated in his judgment that he did not just accept her evidence without close scrutiny. He scrutinised it carefully. He questioned whether he would accept it. In the end he did accept it on critical issues, including the causation issue and her evidence that this mistake "tipped her over the edge", as she put it. As the President of the Court of Appeal said at 782, the plaintiff was:
accepted as a witness of truth by the learned trial judge.
The psychiatrist who examined her did not doubt her voracity. Our submission is no exception to the Abalos principle has been identified in this case. The trial judge's finding in respect of the plaintiff's credit and on causation, based, as they were, on credibility, enjoy that immunity from appellate intervention and, indeed, the Court of Appeal refused to disturb the judgment on that basis.
Your Honours, in our written submissions we set out more comprehensively references to the evidence which we say the judge was amply entitled to rely upon in relation to the causation issue. Your Honour, that completes - - -
GLEESON CJ: Now, in relation to the position of Mr Morgan, you and Mr Donovan are going to bring in a consent order tomorrow.
MR SEMMLER: We shall, your Honour.
GLEESON CJ: And are you going to deal in that with the question of the title of the proceedings?
MR SEMMLER: Yes, it really should be Tame v The State of New South Wales.
GLEESON CJ: He will be dismissed from the action by whatever formula you chose and the title of the proceedings will be entered to Tame v The State of New South Wales?
MR SEMMLER: Yes, your Honour.
GLEESON CJ: All right, thank you.
MR SEMMLER: I might ask my learned junior to address your Honours in relation to the other matter.
GLEESON CJ: Yes, Mr Mullany.
MR MULLANY: Your Honour Justice Kirby asked whether there had been any New Zealand development in relation to primary and secondary victims. There has; it is the case of van Soest [1999] NZCA 206; [2000] 1 NZLR 179. You find the relevant passage at [21] on page 186. Their Honours found the terminology of primary and secondary victims to be convenient, but noted the observations of the Law Commission and their reservations about drawing distinctions between different categories of claimant.
Your Honour also asked my learned leader whether there had been Australian development in relation to that point? The answer is, yes, and they are dealt with at footnote 50 of our written submissions. Your Honour also had regard to the US restatement, and made the observation that in relation to emotional distress there is a requirement in the US that there be an accompanying bodily injury. There is a grave distinction, of course, between the position there and the position in Australia, namely, that in order to get to first base one needs to demonstrate actionable disorder, recognised clinical illness, which is a vastly different thing from emotional distress, so your Honours, in our submission, find little assistance in relation to that document.
KIRBY J: Except that it does show that the American judges have struggled and the writers of the restatement with the problem of putting controls and checks and they have come up with that solution as fulfilling that apparently felt need.
MR MULLANY: I accept that, your Honour, and the reason that they have had those concerns, particularly in that context, is because it is far easier to demonstrate that someone has suffered distress rather than clinical disorder and so the need for control has been felt to be acute.
GUMMOW J: Well, it has something to do with the frequency of juries too.
MR MULLANY: That too, your Honour. The answer to your Honour the Chief Justice's question as to the scope of a duty of care, is yes. The principle of "neighbourhood" is found, we say, in the relationship between the officer concerned and the appellant in this particular case, and in relation to that can I refer your Honours to the following passages in the evidence of Acting Sergeant Beardsley, where his state of knowledge is discussed. He made a number of concessions under cross-examination. They are as follows and included the following: he knew well before 1991 that it was most important that information contained in P4 police accidents reports be accurate and accurately recorded and the accuracy of the information recorded in the reports was important, he said, "because copies are obtained by parties insurance companies to establish a number of matters, including fraud and alcohol", and that is a direct quote. Your Honours find the relevant passages at 401 to 404 of the appeal books and there are relevant findings in relation to those matters at 728, 729, lines 10 to 25, lines 35 to 50, 730, lines 5 to 15.
Can I return to a matter that has been troubling particularly your Honour Justice Gaudron and to a lesser extent your Honours Justice Hayne and your Honour the Chief Justice. The right we say to be informed of distressing news, news of the death of a loved one, for example, does not exculpate the negligent driver in relation to the secondary consequences of his or her negligence. Nor, in our submission, do considerations in relation to freedom of speech, something the Law Commission talked about in the context of communication by a live TV and media, had that effect.
Bad news will usually be communicated to someone, not at least to those who are close to the primary victim. Your Honours, I can refer you to one case which bears that out and which may be of assistance. It is the case of Brown v Mount Barker Soldiers' Hospital [1934] SAStRp 44; [1934] SASR 128. This was a case where a hospital negligently burned a newborn baby out of sight of the mother and she was told of that true bad news and suffered a shock and confirming that a duty was open Justice Piper said this:
Here the defendant in taking charge of Mrs Brown as a patient -
there was a pre-existing duty -
assumed a care of her involving the need to avoid, so far as reasonably practicable, all things that might prejudice her health or comfort, or increase her need for exertion or care. It would be a breach of duty, actionable if followed by damage, to tell her untruly that her child had been burnt. As the truthfulness of the statement was owing to negligence, the truthfulness was no legal excuse for doing harm by telling her - it was a necessary consequence of the negligence that she had to be told.
Your Honours find that passage at 130. We are not talking about here a claim against the communicator of the news. We are not talking about a claim for the negligent dissemination of the information or the manner in which it was communicated. That falls under a special subset of this area of law we might conveniently call "careless communication". Your Honours find that issue discussed at pages 195 to 202 of the collection edited in honour of John Fleming, Torts Tomorrow.
Those considerations that your Honour Justice Gaudron referred to, freedom of information, the right to know, freedom of speech - those matters - they might be relevant in a case where one is considering an action against the way in which or the manner in which bad news is communicated, but they do not operate, in our respectful submission, to militate against the imposition of a duty on a negligent driver, for example, to take care to preserve the psychiatric tranquillity of those who might learn of the consequences of their careless driving.
GLEESON CJ: But Acting Sergeant Beardsley, if he did anything wrong in the present case, was a negligent communicator. His function was to communicate to the person to whom this report was addressed, his superior of some kind presumably, the results of the blood tests and he communicated them wrongly by attributing to your client exactly the same result as the test the other driver produced. So, it was an act of negligent - let me withdraw that word because it might have some overtones - it was an act of careless communication.
MR MULLANY: We would classify him differently, with respect, your Honour. We would call him a negligent or careless recorder. We would put Mr Weller in the group described by the medical practitioners as a mere conduit. In our respectful submission, the way in which the news of the error in the report came to be learned of by Mrs Tame for the purposes of this kind of action is completely immaterial.
McHUGH J: I have real difficulty with that, Mr Mullany, for this reason. Supposing the document was not to be supplied to anybody except to the sergeant's superiors but somehow it was accidentally communicated. Now, surely, you would not be arguing in those circumstances that there was a duty of care. The duty of care, if one exists, arises because, as the judge found at 729 of the book, he knew, among other things, that it would be communicated to an insurance company to assist in determining liability. It is known that the document is going to be communicated to third parties and likely to be communicated to the plaintiff which has to be at the heart of your case.
MR MULLANY: I agree with that, your Honour. Perhaps I am at cross-purposes with your Honour. We do rely heavily on those matters to which I referred you at the beginning, the evidence of Sergeant Beardsley and what he knew, the use to which he knew the form was going to be put. He knew it was important, he knew who was going to rely upon it and he knew that it might have serious consequences if he got it wrong. Your Honour, with respect, we embrace what you have just put to me, but that is a very different case to saying - to adopt the example your Honour the Chief Justice put to my learned leader, of a claim against an officer for the way in which he broke the news at the doorbell.
Your Honour asked my learned leader, "How would that cause of action arise?". Well, it might arise this way. It might arise in rare circumstances where the news, inherently distressing, was conveyed in a particularly uncaring or insensitive manner. The foreseeable distress or disorder or a possibility that it might arise might be augmented by the way in which the news was created. That is not this case. There was a belated attempt to suggest that our instructor had conveyed the news in an inflammatory way and his Honour the trial Judge rejected that, and we deal with that in our submissions in one of the footnotes.
GLEESON CJ: I take it you would disagree with Sir Victor Windeyer's statement that there is no duty to break bad news gently.
MR MULLANY: Not today, because it is - can I answer your Honour this way? I do not really need to nail my colours to the mast in relation to that second half of what his Honour was talking about. His Honour really talks of two things. The communication of bad news or the learning of bad news, let us say, from a car accident; the fact that a loved one be summoned to the hospital or a policeman call at the door in the middle of the night - category 1; and a situation where the bad news, the impact of it, is augmented by the manner in which it is actually conveyed.
I will give you an example. In one of the articles on this subject by Goodhart is an example proffered where it is suggested that the second category of liability might arise if a statement like this was made: "Mrs X, your man is dead". Now, that might be said to be a particularly insensitive way of communicating that inherently and objectively distressing information. The nurse in Petrie v Dowling, for example, would be the target of that claim, but not the negligent driver. That subset, we say, forms no part of this litigation at all and, therefore, the kinds of concerns that your Honour Justice Gaudron has raised need not trouble you when you come to the difficult question - - -
GAUDRON J: No, but what do you say the duty of care is? If you eliminate all that, how do you define a duty of care? Your leader put it on the basis, really, of the foreseeability of harm as a result of your careless acts.
MR MULLANY: I do not shy away from that and I embrace what my learned leader said in response to his Honour the Chief Justice. We have to nail our colours to that mast and we find our relationship or neighbourhood in the relationship your Honour the Chief Justice described.
GAUDRON J: But you accept then that foreseeability alone does not make neighbours of the plaintiff and the defendant?
MR MULLANY: It plays a part, your Honour, and this is why. We do not shy away from our primary position, our primary position being that foresight of both plaintiff and harm, coupled with - and I know this is an unhelpful term - policy considerations - I will explain what I mean by that in a moment - and other value judgments which operate to control the scope of liability. Your Honour Justice Hayne requested an answer to how one might limit within acceptable boundaries the scope for this kind of action.
HAYNE J: No, I did not. I asked for some content to the proposition. Not limits - some content.
MR MULLANY: Yes, your Honour, and you suggested that there would be four possible ways of exercising some restraint if it be thought that restraint was required beyond the duties we have formulated. We are at odds to that extent, your Honour, and we do not shy away from our primary position. Can I answer it this way. In addition to those two elements that I just described, there are two other major impediments to those who come before courts seeking action or damages for pure psychiatric injury and they are no small hurdle to clear. The first is proof of an actionable loss. There is a very grave distinction between even the severest forms of emotional distress and clinical disorder. Most people do not fall into the category into which Mrs Tame falls, happily enough.
The second one is causation. Your Honour Justice Gaudron has particular concerns about this. It is no small hurdle to demonstrate that a trigger, for want of a better word, attributable to the tortfeasor caused the particular illness concerned. The reason is that almost invariably plaintiffs in these sorts of actions have a predisposition to some extent. When this trial opened, the plaintiffs did not shy away from the fact that Mrs Tame had a litany of problems throughout her young life and I believed that there was a schedule handed up listing those. The question of vulnerability and causation is inextricably linked and we may now have a situation where, contrary to what your Honour Justice Gaudron postulates, one test of causation may be able to be applied across the negligence spectrum.
Your Honours moved in Henville v Walker closer to that proposition, developing what you had said in Chappel v Hart, Naxakis and the other cases. Your Honour Justice McHugh said, I think at [114], that if breach be proved and damage ensues, it may be enough for the bridge of causation to be built and an evidential burden to shift to the defendant to demonstrate that the link in fact does not exist. That is what we have here. That did not go down well with your Honours Justice Hayne or Justice Gummow. I will put it differently. There is a suggestion - - -
HAYNE J: Telling me that an evidentiary burden shifts tells me something of enormous value to counsel in the conduct of a case. It tells counsel they have to get on their feet and do something and call some evidence.
MR MULLANY: We accept that, your Honour.
HAYNE J: It does not tell me much about how a judge decides the case.
MR MULLANY: We did that, your Honour, and we had five doctors, all of whom opined that the particular event here triggered the onset of disorder.
McHUGH J: But it is the very difficulty of this particular issue that has no doubt made courts cautious of expanding this tort because the time is taken up on proving what really is unprovable. As respectful as I am of psychiatric opinion, the fact is that psychiatric theories come and go.
MR MULLANY: That is true, your Honour. They do.
McHUGH J: And that is one of the reasons why, I suspect, the courts have been cautious about these matters. Physical injury is observable. Mental injury, and the causes of it, are not so easily proved.
MR MULLANY: I accept everything that your Honour has just put to me, and we would say, unduly cautious. All that need be shown is that there was a material - non-negligible, in other words - contribution to the onset of this woman's decline. Now, the appellant's case, which was accepted at first instance, was that she was vulnerable to injury. That predisposition notwithstanding, she was psychiatrically intact prior to the receipt of the call from Mr Weller in June 1992. All of the experts, including those produced by my learned friends, said that the event which moved her from her ordered to disordered state was the receipt of that information. Yes, she was receiving some counselling beforehand, but she had remained mentally well.
Your Honours, we find the evidence of Dr McGregor instructive. I will give you a reference, I will not take you to it. On the very morning of the call, Dr McGregor had considered her conditioning to have settled sufficiently to have noted in the Wentworth Area Health notes that the case was discharged. That occurred prior to the shocking call. Your Honours find that evidence at ab 2, pages 292 to 293. All of the evidence was consistent that the receipt of that information had played a central role in the aetiology of her disorder. Your Honour Justice McHugh - - -
GUMMOW J: What is the answer to Justice Hayne's question about content?
MR MULLANY: I am going to return to that, if I may, your Honour. All right, I will do it now. Our primary argument is this: we deal with this at paragraph 37 of our outline of submissions. We say that with the dethroning of proximity in different context, a very real question now arises in this context as to its continued utility, nature and form. Now, that is so even though this has been one of the areas where courts have harboured particular concerns about limitless liability. Your Honour Justice McHugh referred to that pressing problem here but, as your Honour said in Perre v Apand, it is not really a question of the number of potential claimants, but that they cannot be determined in advance by the prospective defendant. That is not this situation, and nor is it, in our submission, the situation when one has the four controls that I have already referred to. They do not all have to come - - -
HAYNE J: You have referred to policy considerations, you have referred to value judgments. I wait in vain for any content at all, Mr Mullany. What do you mean by that?
MR MULLANY: If your Honour looks at 37 of the outline of submissions - - -
HAYNE J: Perhaps I am being very slow about it, Mr Mullany, but can you state as simply as you can what you mean by policy considerations, what you mean by value judgments, and what they are?
MR MULLANY: I can answer it this way, your Honour: I can give you an example where liability would be rightly denied or which would militate against the imposition of a duty. It is extremely difficult, as this Court has acknowledged and other courts have, to articulate in advance every single example. Hill v Yorkshire - I forget the second-named party, but your Honours know the Chief Constable of South Yorkshire - would be a very good example with which we would not cavil. You cannot have - - -
KIRBY J: That was analysed on the Caparo basis, was it not, in accordance with the way it is done in England, Canada, New Zealand and other countries, but not here.
MR MULLANY: We may not use that formula but it is unquestionably still the case that the kinds of considerations taken into account under, let us say, limb 3 of that test do bear heavily on courts' considerations of the duty inquiry here. It may at the end of the day, as I think your Honour the Chief Justice has alluded to, be really a matter of semantics so long as all of the relevant considerations are taken into account.
McHUGH J: What do you mean by that? If you are right about foreseeability being either the sole determinant, or certainly the major determinant, then the scope for liability from false communications seems to me to be very much expanded. Take a politician who makes an attack on another politician has his facts wrong, or a shareholder at a public meeting of a company who attacks the directors, and the director or the politician on the receiving end suffers a nervous shock. Do a duty of care, liability ensue?
MR MULLANY: Not necessarily, your Honour.
McHUGH J: Why not?
MR MULLANY: Well, for a couple of reasons. The example in relation to politicians may well give rise to - your Honour Justice Hayne does not like this word - policy arguments about the imposition of duty and they would be, and here is the content, we want free informed unhindered debate, even outside Parliament perhaps, between politicians. It is part of the rough and tumble of political life, one might suggest.
McHUGH J: But what about the personal autonomy of any human being to be able to say or think what he or she wants to say, unless that person has a good reason for not saying it. Does that mean that the law is going to impose on persons in addition to the law of defamation and other areas that you have to be careful about everything you say in case it may cause nervous shock to somebody?
MR MULLANY: It all depends on the circumstances. The law already does that, your Honour, with respect. You cannot run around intentionally inflicting emotional - it is very different.
McHUGH J: That is different. That was the big exception that Justice Windeyer made in the passage at 407. Intention, that is one thing.
MR MULLANY: Yes, he did, but that way the common law prohibits the intentional infliction or reckless disregard of person's health. Our submission is the time has now come for reconsideration of the position where carelessness is involved rather than intentional wrongdoing.
GUMMOW J: Why has the time come?
MR MULLANY: There have been many developments, your Honour, in a number of respects.
GUMMOW J: What are they?
MR MULLANY: There have been medical developments.
GUMMOW J: Yes, we know about that.
MR MULLANY: Well, they are not to be lightly dismissed, with respect to your Honour. Can I refer you to this fact, for example - - -
GUMMOW J: All I am saying to you is they were perfectly well-known when Pusey was decided.
MR MULLANY: Not as well-known. There have been three editions of DSM since 1980, 3, 3R and 4, in the space - - -
GUMMOW J: Yes, well.....all of that, what other developments are there?
MR MULLANY: Life is far more demanding now than it has been in the past.
GUMMOW J: It was much more demanding during the Black Death. It was much more demanding in the early years of European settlement of Australia.
MR MULLANY: That is true, your Honour - - -
GAUDRON J: It was not so good before there was refrigeration and electricity which was as late as about the 1940s, in the bush at least.
HAYNE J: So what have the Romans done for us, Mr Mullany?
MR MULLANY: Not much, your Honour.
GUMMOW J: You are really invoking the rise of victim-hood as a popular response to all sorts of problems.
MR MULLANY: On the contrary, your Honour. I know there are people who suggest that. I know there are people who say the increase in this sort of claim is a reflection of an unhealthy compensation culture, a blame game, and the like. We prefer to categorise it differently. We prefer to say that there has been a growing appreciation of an awareness of the real impact that psychiatric injury may have upon a person - - -
GUMMOW J: Well, that is your first point?
MR MULLANY: It is a development in two respect, your Honour. It is not only a development in the medical profession, it is a develop - three respects; a development amongst the judiciary and a development amongst the general community. Rarely a week goes by where we are not confronted by some media report of an horrendous tragedy, Thredbo, Hillsborough, the World Trade Centre, and the like. We read every other month - - -
GUMMOW J: You have forgotten hat a lot of our ancestors lived through two world wars, Mr Mullany.
MR MULLANY: Yes, your Honour, and with respect - - -
GUMMOW J: And a number of people who came to this country, settled it, after themselves, who have gone through horrific experiences in actual war theatres.
MR MULLANY: They have. War is a good example.
GUMMOW J: Now, what has changed?
McHUGH J: The mortality rates were much higher. People had bereavements, families would lose four and five children.
MR MULLANY: There is a different attitude which prevails today, can I suggest to your Honour.
McHUGH J: There certainly is a different attitude in terms of expanding liability or allowing courts to deal with it. Doctors negligence has been cut back in New South Wales. Auditors liability has been cut back. Workers liability is cut back. Why? Because the perception is that the legal system is not the proper place for the settlement of these issues.
MR MULLANY: There are lots of reasons, your Honours. Can the societal purse afford it and so on, insurance premiums, these kinds of questions. Everybody knows that. The question is whether today, in 2001, that 1950s, 1940s "be a man" mentality ought prevail. The question really should be phrased this way. If I drive my - - -
GUMMOW J: What sort of a man?
MR MULLANY: "Be a man" mentality, or woman, your Honour.
GAUDRON J: "BA".
MR MULLANY: "Be a" - not British Airways, "Be a".
GAUDRON J: You will have to inform me, I am sorry.
GUMMOW J: You walked right into that, Mr Mullany.
MR MULLANY: I did. The question is - - -
GUMMOW J: The question is what are these other factors that have changed since the times of Pusey? We have not got very far it seems to me.
MR MULLANY: I think I have given you three of those, your Honour.
GUMMOW J: They cut both ways.
MR MULLANY: They do cut both ways.
GUMMOW J: Yes, at the very best they cut both ways.
MR MULLANY: It is a question of finding the right balance between the competing interests, between the defendant who has a right to be able to live a life without unduly worrying about the legal consequences of his or her actions and permitting recovery in tort for those persons harmed by avoidable conduct. Take the negligent driver example. Why should the negligent driver, who knows that if he or she fails to take care persons may be physically injured, escape liability for the equally foreseeable result that learning of that accident may bear for a loved one. It is only when one moves to the secondary sphere that the common law has expressed its concerns in these limitations.
Can I return to the answer I was proffering to your Honour Justice Hayne about content and policy. The wartime example is a very good one. One could foresee, or make a strong case for not imposing a duty, leave statutory restrictions aside, on those involved in the negligent infliction of disorder during wartime or perhaps even on peacetime manoeuvres. Take our crack SAS troupes. One might suggest that there ought not be recovery for those men psychiatrically injured as a consequence of the collision of the Black Hawk helicopters. Why? Because a strong case might be able to be advanced that we need those men to be of a particular hardness, a particular robustness, indeed a higher standard may apply to them in terms of their fortitude.
CALLINAN J: They are supposed to be trained killers.
MR MULLANY: Precisely. If we fail to persuade your Honours about our primary argument, the search then is made for the additional control devises. I have suggested to your Honours, submitted to your Honours, that it is found in at least three respects; can I suggest a fourth. Your Honour Justice Hayne postulated that perhaps it could be found in the closeness of the relationship, familial for example - - -
GAUDRON J: Closeness of the relationship between whom?
MR MULLANY: The tortfeasor, the plaintiff or the secondary and primary victim, as I understood his Honour, spatial or temporal concerns or the question of normal fortitude. If we are not persuasive on our first argument, can I submit to your Honours that the most appropriate control would be the last of those.
GAUDRON J: Most appropriate - - -?
MR MULLANY: Appropriate control. The reason is this: it is the reason advanced in Bourhill v Young when the case was in the Scottish Courts and it is the reason advances I understand Dean Pound to be suggesting in the passage your Honour Justice Hayne referred us to. It is not appropriate, one might say, to compel members of the community to walk around with the highly supersensitive in mind. Now, we do not shy from our primary submission - - -
GAUDRON J: Why is this?
MR MULLANY: Because one has to draw a line.
GAUDRON J: No, one does not just draw a line. This is not an arbitrary game of judicial law making we are engaged in. We are looked for a principled answer and is it because it would simply be unreasonable to impose a duty and consequential liability for taking what would be perfectly lawful conduct but for the particular susceptibilities of the person who in the end suffers the shock - we will call it shock - or is it some other principled reason in - - -
MR MULLANY: No, it is that reason, your Honour.
GLEESON CJ: It would be an intolerable limitation on personal autonomy to make people liable in tort, in those circumstances.
MR MULLANY: Intolerable. Correct. That would be the principled reason if one was persuaded that an additional control was needed.
McHUGH J: But the other side of the coin is that you are then discriminating against vulnerable people.
MR MULLANY: Therein lies the difficulty, your Honours. In Bourhill v Young when the case was in the Scottish courts, the observation was made that in many cases it would be foreseeable that particularly vulnerable people may be out and about and, as your Honours know, in this area there have often been references to pregnant women who were the claimants in this sort of litigation and they were inappropriately referred to as particularly sensitive and vulnerable. The suggestion in that case was made and in other footnotes on pages 226 to 227 of "Tort Liability for Psychiatric Damage", it was suggested that it was plain that persons within that group would be out and about and if they were not protected by the common law, it would be tantamount to asking them to remain indoors. Therein does, we accept, a difficulty lie.
GLEESON CJ: Now, Mr Mullany, we are about to adjourn. This case is going to finish at 4.15 tomorrow or earlier. How long do you expect to require for the remainder of your argument?
MR MULLANY: I will be less than an hour.
GLEESON CJ: We would expect counsel to agree between themselves on a reasonable division of time tomorrow and if you are unable to make that agreement, we will engage in some alternative dispute resolution. We will adjourn until 10.15 tomorrow morning.
AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 5 DECEMBER 2001
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