Tame v State of New South Wales S83/2001 [2001] HCATrans 633 (5 December 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S83 of 2001

B e t w e e n -

CLARE JANET TAME

Appellant

and

STATE OF NEW SOUTH WALES

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 WEDNESDAY, 5 DECEMBER 2001, AT 10.22 AM

(Continued from 4/12/01)

Copyright in the High Court of Australia

________________

GLEESON CJ: Yes, Mr Donovan.

MR DONOVAN: May I hand to the Court copies of the consent order, the original of which has been given to the Registrar.

GLEESON CJ: Thank you.

MR DONOVAN: The second thing would be the timetable and timing and I will mention that in a moment.

GLEESON CJ: There is no need to make any provision about costs?

MR DONOVAN: No, there is not, your Honour. In terms of time, the following has been agreed among all counsel here: Mr Mullany 45 minutes; myself 30 minutes; Mr Semmler 15 in reply; Mr Walker one and a half hours; Mr Jackson one and a quarter hours; and Mr Walker 15 minutes in reply.

GLEESON CJ: Thank you. Yes, Mr Mullany.

MR MULLANY: Sullivan v Moody is quite different from the case before your Honours. There are two critical distinguishing features. First, the protection of vulnerable children was at stake in that case. That interest was, and we submit almost always, if not always, will assume paramountcy where interests compete. Secondly, there was a statutory scheme reflecting legislative recognition of the paramountcy of that interest requiring action to be taken on the mere suspicion of abuse and protecting those who take such action from civil liability in respect of it where they act in good faith and in compliance with the Act.

What is said at [62] of that decision highlights what we say are the critical distinctions between the two scenarios. There was, we say, clear incompatibility between the tortious duty contended for in that case and the exercise of statutory function and the obligation to treat the interests of the children as paramount. The interests of the plaintiffs and the children whom it was suspected had been abused were truly irreconcilable. There is no similar incompatibility here. There is no third party standing in the position of the vulnerable children in that case.

Mrs Tame stands affected, alone. There will be no trespass into the statutory arena on the imposition of tortious responsibility for which we press.

CALLINAN J: Is there any difference between a statutory scheme and an administrative scheme? This is an administrative scheme, presumably, at least, under which the report is prepared.

MR MULLANY: We say, yes, your Honour. This is a situation where the legislature has not turned its mind to those balancing questions which need be taken into account when has precious interests at heart like that of the protection of children.

CALLINAN J: The police officer would be performing a duty that would be consistent with his statutory duties.

MR MULLANY: I accept that, your Honour.

CALLINAN J: And it would be in pursuance of his statutory duties that he would be ferrying out the report.

MR MULLANY: That is true, your Honour, but in Sullivan's Case the legislature was quite specific. It specifically declared that the paramountcy of children was to be taken into account. It specifically declared that certain people had to take action on the mere suspicion. It specifically declared that those who took such action, provided they acted in compliance with the Act and in good faith were to be protected from civil liability. That is not the position here.

GLEESON CJ: Mr Mullany, a good deal of defamatory material is published as a result of a careless mistake on the part of the publisher or an employee of the publisher. In a case where the defamed person suffers actual damage, could that person sue in negligence?

MR MULLANY: You are talking about, your Honour, as I take it, injury to the mind?

GLEESON CJ: No, any kind of actual damage, including injury to the mind, or financial damage.

MR MULLANY: Only if it is proven that there has been damage to reputation. This returns to a point I wanted to pick up that your Honour Justice Callinan mentioned yesterday concerning the interrelationship between the two courses of action.

GLEESON CJ: I am not asking about suing in defamation. I am asking about suing in negligence. If a defamatory matter is published as the result of a careless mistake on the part of the publisher, as often occurs, and the publication results in actual harm - physical, emotional or financial - to the defamed person, can the person sue in negligence?

MR MULLANY: Assuming all the normal hurdles to relief in negligence are satisfied, the answer must be yes. Can I return to your Honour Justice Callinan's comments in relation to defamation yesterday? We do not accept, with respect, that Mrs Tame had a clear-cut case of defamation on the basis that she was wrongly accused of drunk-driving. That slur may or may not be defamatory. It is our respectful submission that it is not beyond argument that to assert wrongly that someone is a drunk driver will lower the reputation of that individual in the eyes of the reasonable person.

CALLINAN J: You cannot seriously suggest that.

MR MULLANY: We do, your Honour.

CALLINAN J: It is a very serious offence.

MR MULLANY: Can I explain why we say that. Some people may think less of Mrs Tame for such indiscretion and foolishness for such illegal conduct - I might submit the majority - but it might be a sad reflection on modern society or some parts of it, more accurately, that others would think nothing, or very little, of it.

McHUGH J: That is not the test, the test is that of the right thinking person. You need a better argument than that. I would get off this subject if I were you, Mr Mullany, it is a hopeless point.

MR MULLANY: All right, your Honour, I will do that. Of all of the limitations that the common law has engrafted on to the recovery for infliction of mental illness, the demand for sudden shock, we say, is the most invidious. Your Honour Justice Kirby has already indicated that, on this issue, your door is open. I will not press against that but I seek to open at least three others. The demand for shock is a telling indicator, we submit, of the unjustified prejudice exhibited by the common law towards this species of personal harm and a subordination to bodily injury thought more worthy of legal redress. It is, we submit, a vestige of medically meaningless Victorian language. It has been exposed as an unduly restrictive limitation on recovery for serious loss operating to exclude liability for certain forms of other compensable disorder arising in circumstances which deserve common law support. If control on limits of liability be needed, it is not found in this requirement.

Australian common law has now moved far from the traditional accident scenario. The fact that Mrs Tame's claim does not sit within the traditional shocking accident categories of suit, we say, is not fatal, nor is it a reason supporting dismissal of the claim. The New South Wales Court of Appeal was wrongly influenced, we say, at paragraphs 124 and 166 found at AB 4, 808/17, to deny relief because the appellant's action was not based on the death injury or imperilment or a dramatic accident touching her or anyone near or dear to her.

The boundaries of liability, we submit, should not be set by the demand that she demonstrate that her proven disorder be of a particular kind, namely that it was shock induced. That requirement to negotiate the shock-induced hurdle has been erected consequent upon the dated practice of referring to actionable mental illness in terms of nervous shock. Nowadays when courts speak of injuries sued for, they speak of psychiatric illness. When they speak of the precursor to that illness, they speak of sudden sensory impact.

It is our submission that there remains no compelling reason to continue to compel hunts for events said to trigger the assault to the senses. The abrogation of that requirement, we submit, is part of the logical progression of the development of the common law already evidenced in the earlier authorities, to use the phrase expressed by Chief Justice Gibbs in Jaensch v Coffey [1984] HCA 52; 155 CLR 549 at 552.

As Justice Ward observed in the Ravenscroft decision [1991] 3 All ER 73 at 77 to 78, if we cease to use the inaccurate and misleading expression "nervous shock", then there is no reason why some notion of shock, especially which is not to be understood in terms of recognisable psychiatric illness, should be reintroduced as an element in the chain of causation. A demand in this country for shock-induced disorder stems from the comments of Justice Brennan in Jaensch v Coffey, particularly those at 565 to 567, who considered the expression "nervous shock" to be of some value as a term of art to indicate the aetiology of disorder. At 565 his Honour categorises illness arising in the absence of shock as non-compensable, notwithstanding that it was:

reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness.

His Honour was of the opinion that the notion of psychiatric illness induced by shock was a compound, rather than a simple concept. It was, his Honour considered, comprised of two elements, the disorder and the shock which causes it. The explanation that his Honour advances is found at page 567, beginning at the sentence, "I understand `shock'". I will not read that to your Honours. That, contrary to the view expressed by Justice Ipp in the Annetts' Case at paragraphs 74 to 75 of that decision, his Honour was utilising the term "shock" in the sense of the cause of damage. We say that is clear, not only from the passages I have just referred your Honours to, but also from the following: 563, 560, 565 and 578.

It is evident that his Honour utilised that concept in the sense of the aetiology of damage since his Honour used the term "recognised psychiatric illness" to denote the relevant injury in the same way that it was used in Hinz v Berry [1970] 2 QB 40 at 42 and by his Honour Justice Windeyer in the Pusey decision [1970] HCA 60; 125 CLR 383 at 402 and 414, where his Honour talks of the injury being "set off" by the shock.

The reasoning of all of the justices below, in our submission, indicates that their Honours appreciated the context in which his Honour was using it. The Brennan view, in relation to shock and the concept of recognised - - -

McHUGH J: Please, "Justice Brennan", not "the Brennan view". I mean, please - - -

MR MULLANY: Justice Brennan, I apologise, your Honour - has been treated by many, but not all, of the judges as stating the law in this country. That it does so is not at all clear cut, as the Chief Justice highlighted below at paragraph 67 found at AB 4 772. Although at page 606 Justice Deane was not prepared to sanction recovery sustained as a consequence of post-accident contact with the immediate tort victim, it is uncertain whether his Honour, with whom the Chief Justice agreed, considered shock injury to be a precondition to recovery. I refer your Honours to his comments also at 600 to 601, 587 and 593. Justices Murphy and Dawson were silent on that issue.

The uncertain status of this requirement in Australia has been the subject of comment both below and by justices in intermediate courts. Your Honours find the relevant passages set out in footnote 56 of our written submissions which include your Honour Justice Kirby's comments in the two cases referred to there, namely Coates and Campbelltown. It is our submission that although most Australian courts have regarded it as essential in all cases that disorder be precipitated by shock in the form of an assault on the senses, that its status remains unclear in this country. The pedigree of the requirement is instructive.

There was virtually no Australian authority suggesting that psychiatric injury had to be shock induced prior to the judgment of Justice Brennan in Jaensch v Coffey. On the contrary, there had been early resistance to that. You find it in the dissenting now favoured view of Justice Evatt in Chester's Case [1939] HCA 25; 62 CLR 1 at 21.

McHUGH J: That was certainly my experience. I must say, when I first started doing nervous shocks cases 40 years ago I was rather nervous because I did not think I really understood what the courts were talking about, but I quickly found that with juries judges always spoke in terms of psychiatric illness. There was no question of the sudden assault on senses or anything of that nature. That was my experience anyway of Supreme Court judges sitting with juries in New South Wales. They just, in effect, said whether or not the negligence had caused the psychiatric illness that the person had. But in the last 17 years or so, Justice Brennan's judgment seems to have become very influential on that particular point and, in fact, I think I referred to it in the Campbelltown v Mackay Case.

MR MULLANY: You do, your Honour, and we accept everything your Honour has just put to us. Its influence is seen perhaps best in the decision in the Alcock Case in the House of Lords, prior to which there had been no English case which had identified sudden shock as a separate ingredient of liability. Their Lordships suggested, unconvincingly, we respectfully submit, that the requirement had been implicit in all previous cases. We find that at page 411 of the report.

It appears that the genesis for the demand for sudden shock was Justice Brennan's desire to impose the limitation where psychiatric injury resulted from events subsequent to the accident, such as the spouse worn down over time by caring for a tortiously injured child or a loved one. Regrettably, in our respectful submission, English and Australian courts have hardly ever imposed liability in those circumstances. In what appears to have been an unintended move, that special limitation has been elevated, as your Honour Justice McHugh refers, into a general limitation. A number of recent cases involving other fact situations have been denied recovery on that ground.

It is important, your Honours, to appreciate precisely what is required if the rule does operate. It is the assault on the sensory system which must be sudden rather than the onset of disorder. Contrary to the contention at paragraph 21 of our learned friend's submissions, it is unnecessary for the psychiatric injury to follow this sensory insult immediately or proximately. Liability lies for delayed shock, to use the old language; in other words, for delayed injury consequent upon sudden impact to the senses which occurred a long time previously.

Even if, therefore, it was thought that Mrs Tame did not sustain recognised disorder until some time after receiving the call, that would in no way be fatal to her claim. It is of no significance, in our submission, that she did not collapse on the phone, faint, become immediately disordered or, as Mr Finnane put it at trial, "Need to take a pill after talking to Mr Weller". The authorities which make that submission clear are found in footnote 48 on page 117 of the chapter in Torts in the Nineties published by the Lawbook Company in 1997.

McHUGH J: What is the page, again, Mr Mullany?

MR MULLANY: Page 117, footnote 48, and can I particularly ask your Honours to look at the judgment of Justice Dunford in the decision Dunn v The Commonwealth unreported, Supreme Court of New South Wales 15 December 1994, pages 15 to 16.

McHUGH J: Now, are there still a lot of these cases being run in New South Wales? They used to be run very regularly with compensation to relatives action because of the New South Wales statutes and fairly modest awards would be given for them but the action seems to have developed into its own right in recent years and it is a big production these days. Thirty or 40 years ago they were quit small sums in the award of shock of hearing of a death and you would rely on the statute. A case, Mammoliti v Scala come up to this Court with one of those sorts of cases that you have.

MR MULLANY: They are continuing to be run, your Honour, and they are increasing in awards, that is true, but there certainly has not been an avalanche of claims. There is, of course, the statutory amendments in New South Wales and in the ACT and the Northern Territory as well which sit with the common law position. So, the answer to your Honour's question is that they are around and the damages are increasing. Take Mrs Tame's example, by illustration. Her economic loss in this case was minimal but she is very seriously disordered. Her condition is chronic. It was described as 9 out of 10 on the scale of psychotic depression.

If a highly paid professional had sustained the kind of injury she had due to careless conduct, the claim would be very much more significant. There have been some awards for this kind of injury which are very substantial. The sudden shock rule, your Honours, has come under heavy fire from both within and outside Australia. It has been criticised by a growing number of judges and in the literature. It is significant that the Law Commission of England and Wales has recommended its excision in all cases, that is, irrespective of whether the claimant is properly characterised under the English system as primary or secondary victim.

Your Honours find those relevant references at 5.39 of the consultation paper and 5.30 of its report. The Commission exposes as unpersuasive the arguments advanced for the retention of the rule which reducing the main to the concern that actions will increase and that the test facilitates the proof of causation.

At 5.31 of the report the Commission satisfies itself that both of those main concerns can be counted. It is our respectful submission in relation to the second of those that the existing principles in relation to causation are, as the Commission accepted, well equipped to resolve any of the difficulties that might arise in that - - -

GUMMOW J: This was a consultation paper.

MR MULLANY: At 5.39, your Honour.

GUMMOW J: It was a consultation paper.

MR MULLANY: Both. At 5.39 and 5.30 is the final recommendation.

GUMMOW J: Has anything happened since?

MR MULLANY: No, your Honour. The complete references to the recommendations and to the authorities and to the literature are found in 30 to 33 of our written submissions. There are others.

KIRBY J: Did the Law Commission recommend legislation in England?

MR MULLANY: Yes, it did, your Honour.

KIRBY J: What year was that?

MR MULLANY: The consultation paper was 95. The report was 98. Additional authorities from North America can be found at pages 202 to 206 of Tort Liability for Psychiatric Damage. May we invite your Honours to have regard particularly to three judgments which - - -

GUMMOW J: Who is the author of that work?

MR MULLANY: Myself and Dr Handford.

GLEESON CJ: This report that you have referred us to says that:

The law relating to liability for negligently inflicted psychiatric illness . . . contains a shock requirement.

In several other jurisdictions, including Australia and Canada. Is that still the case in relation to Canada?

MR MULLANY: Yes, it is, your Honour. Although there is authority going both ways, at the pages I have just given you, you will, for example, find the decision of Beecham v Hughes (1998) 52 DLR (4th) 625, a decision of British Columbian Court of Appeal which suggests that the shock requirement should be abrogated. They, we respectfully submit, took the view that Justice McHugh has referred to earlier in relation to the way Justice Brennan's limitation has been interpreted since 1984.

GAUDRON J: Could I just interrupt you briefly? I would have thought that the benefit of the shock requirement was foreseeability. It might be much easier to foresee shock than psychiatric illness.

MR MULLANY: It might be, your Honour. The difficulty is that one does not recover from that. As soon as one acknowledges that - - -

GAUDRON J: The shock, I thought, was the injury and the psychiatric illness was the damage resulting from it.

MR MULLANY: No, your Honour. The old language has led to confusion. In the older cases where nervous shock has been used, it has been used to denote both the precursor and the injury. What we say is that some disorders may arise consequent on shock, others may not. Those which fall in the latter category, as the law currently stands, or if one accepts Justice Brennan's view of it, will be non-actionable. That, we say, is unacceptable.

GLEESON CJ: Could I just pick up a statement from this Law Commission Report that you referred us to. In the course of their discussion they say, "Damages are clearly not available at law for every misfortune that may occur to a person as a result of another's negligence." I wonder whether the predominance of motor vehicle accident litigation and industrial or work-related injury litigation has not led modern lawyers to an assumption to the contrary of that; that is, that damages are usually available for every misfortune that may occur to a person as a result of another's negligence, and there has to be some special reason shown why not.

MR MULLANY: I think that might be a fair statement, your Honour, with respect. We simply say that in that example the careless driver should have, within his contemplation, not only those who might be directly affected by his or her negligence but also those who may be affected indirectly. We are now into the secondary victim scenario.

GAUDRON J: Is there a cut-out point, to those who may be indirectly affected?

MR MULLANY: Well, your Honour, that raises - - -

GAUDRON J: Does it extend to the staff of the casualty ward?

MR MULLANY: It might, your Honour. Can I develop that later, because that gives rise to the second - - -

GAUDRON J: Does it extend to the police officers who investigate accidents?

MR MULLANY: It might, in circumstances, your Honour. It raises, your Honour's inquiry, the control devices under the umbrella of "proximity", which I will deal with in due course if I may. At the minute we are putting to you that the old control of shock-induced injury is no longer acceptable. The three examples that I want to refer your Honours to particularly, we say, demonstrate the fragilities of the requirement that in every single case disorder must stem from shock. The first is that of your Honour Justice Kirby in relation to Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 to 504. I have copies of that. I will make them available later, but will not take you to them. Your Honour Justice McHugh also sat on that case, but it was your Honour Justice Kirby who took particular issue with this orthodox position.

KIRBY J: I do not think I decided the point, did I? I simply referred to it.

MR MULLANY: You did not, your Honour, you make two observations, if I can summarise.

KIRBY J: I think there had been a concession in the case.

MR MULLANY: There had been.

KIRBY J: And I questioned whether the concession was appropriate. Justice McHugh thought it was entirely appropriate.

MR MULLANY: That is correct. Your Honour made - - -

McHUGH J: I am not sure I said that. I thought I said it was probably correct given what was said in Jaensch, I may be wrong.

MR MULLANY: I think your Honour took the view that has been expressed of the opinion of Justice Brennan but did not explore it in great depth in the light of the concession. Your Honour Justice Kirby certainly did that and you made two points if I can summarise what you said. Your Honour made the point that from a medical perspective it is highly unusual for an injury to arise consequent upon a sudden shock and you compared the position of the law with the position of medicine. You made a second and equally important observation, with respect, and it was this: that there were adverse consequences which might flow from the retention of the pre-condition because any utility that the shock requirement may have served in the early part of the 19th century had dissipated if, indeed, it ever had any utility.

Your Honour makes that second observation at the bottom of 503 through to 504. Your Honour talks of the shackling of the common law with 19th century orthodoxy. We respectfully agree with those observations and sentiments. They reflect the position of the South African Supreme Court of Appeal in the Barnard v Santam decision[1998] ZASCA 84; , 1999 (1) SA 202, that the requirement of sudden shock is devoid of both medical content and validity. Your Honours have been provided with an affidavit which annexes an English translation of the Afrikaans judgment in that case.

KIRBY J: Can one justification for the notion of shock be that it is easy - and I think Justice McHugh was referring to this yesterday - for people to make assertions of psychiatric disturbance. A broken arm or leg you can see but the injury to the mind, you cannot. If there is a shock then, at least, that might be more susceptible to proof because as it was said, many centuries ago, I think, "The devil himself knoweth not the mind of man". Therefore, this is a sort of check that proves the truth of the assertion.

MR MULLANY: The short answer is, no, your Honour, with respect. There are two responses. Firstly, we say that confidence is well placed in the psychiatric profession to identify the presence of clinical disorder as distinct from, say, grief. Secondly, that limitation would exclude from recovery all of those disorders which are not inevitably treated by way of a sudden shock. Depression is probably the best example. It is not the case that every depressive episode stems from a particular shocking, triggering event.

I said there were three cases I wish to refer your Honours to particularly - I am not going to take you to any of these but ask your Honours to have particular regard to them - APQ v Commonwealth Serum Laboratories, unreported decision, Supreme Court of Victoria, 2 February 1995. That is a particularly apposite decision because it concerned a primary victim case where the lady in question suffered disorder consequent upon the fear that she would sustain a terminal illness as a consequence of exposure to certain agents, having participated in a Commonwealth fertility program, namely Creutzfeblt-Jakob disease. The significance of the decision is this, at pages 12 through 16 of the decision, his Honour Justice Harper refers to the inappropriateness of this limitation in that particular context. It is the closest case to ours. Again, I will have a copy of that provided to your Honours.

The third of the three illustrations is important for this reason. It illustrates how judges, as well as counsel, clients and some medical experts, have had to manoeuvre to fit claims within the confines set by the common law demand for shock. That has led to compromise of the dignity of the common law and brought it into disrepute, as your Honour Justice Kirby put it at page 503 in the Campbelltown decision. The third case is Reeve v Brisbane City Council [1995] 2 Qd R 661. This was a traffic accident case where the secondary victim claimant was not present at the scene or the aftermath and was told of the death of her husband.

What his Honour did was to purport to apply Justice Brennan's dictum requiring shock but he extended the concept so that the thing or event that was to be sensorially perceived did not have to be the accident itself but could also merely be being told of the accident. Your Honours find that at 676. In so doing, his Honour rejected Justice Brennan's suggestion that psychiatric illness induced by the mere knowledge of distressing information as opposed to the sensory perception of it was not compensable. Your Honours find that discussion at 671 to 674.

A flexible application of that limitation allowed his Honour to avoid the strict limits of the concept as envisaged by his Honour Justice Brennan, although the claim still failed because there was a want of evidence of causation between shock and disorder. Chief Justice Spigelman below said the same thing at paragraph 49 AB 4 772. The Chief Justice said that the "sudden shock can be occasioned when someone is told of a traumatic event" or a thing. On one view, that would be consistent with what his Honour Justice Brennan said at 567 to 568.

A further illustration of the fluidity of this particular limitation is found in a decision referred to in our submissions, a County Court decision of the English system, Tredget v Bexley Health Authority [1994] 5 Med LR 178 at 184. In that case, a 48-hour period stretching from the birth of a child, the pandemonium surrounding that delivery and the ensuing harrowing hours up to the death of the child were held to satisfy the legal requirements of sudden shock. At 182 to 184 there is specific reference to the need to expand the concept so that these sorts of claims are not denied, denying logic.

Your Honours, there is a degree of tension between the exclusion from recovery of psychiatric illness not induced by shock and the requirement that only the broad category of psychiatric injury need be foreseen rather than the particular manifestation of the disorder.

McHUGH J: How does this submission fit in with statutes of limitation? A fact has to be faced up to that rather than plaintiffs suddenly becoming psychiatrically ill, in some cases, perhaps quite a significant percentage of them, the illness will develop over a considerable period of time and it may be two, three, four years before a full understanding of the illness is apparent. Now, how do you fit statutes of limitation in if you abandon shock, which at least has the advantage, unscientific though it may be, of giving you a date for the statute of limitations?

MR MULLANY: Shock has never constituted actionable damage, therefore the tort has never been complete. One has to rely, it must be conceded, on the expertise of the medical profession to identify the precise point in time, or the window if you like, at which time the psychiatric threshold is crossed.

McHUGH J: I know that doctors always used to say, and probably still do, that the whole notion of shock just had no medical foundation in terms of psychiatric illness, but they still had to get around this notion of shock so they used to relate it to the precipitating event which startled the person, to use a neutral word, and that was regarded as the trigger, in effect.

MR MULLANY: And that can be avoided, your Honour.

HAYNE J: Can it? Any disputed question of causation in the law really, much more often than not, comes down to a question of attribution of legal responsibility. It does not come down to a contest about the history of the matter. In all the causation cases the history is very well known. What is not known and what is contestable is attribution of legal responsibility.

MR MULLANY: I accept that, your Honour. There is the question of the attribution of legal responsibility and the identification of the precise cause of an illness. They are slightly different.

HAYNE J: There are then two factors at play here. Firstly, there is a contestable question of fact about historic significance. Often enough a contestable question about whether event A was a trigger, the trigger, significant, insignificant, et cetera - those are contestable questions that are resolved in the ordinary way, but those questions mask the further legal question that arises about what is the legal attribution of responsibility that is to follow according to the resolution of that contested question of historical significance.

Is it sufficient legally to conclude that in a plaintiff's life which has seen the usual slings and arrows of life, that there is event A caused by the negligence of D which can be seen as a trigger, the trigger, for the psychiatric illness that then ensues? I can understand the argument that says logic dictates discarding the shock rule because the argument assumes, first, resolution of the contestable question of fact and, second, it assumes the attribution of legal consequences or legal responsibility question to which I have referred. If you assume the answers in your process, the answer is self-evident. If you discard shock, what is it that you put in its place? How do you resolve the combination of the contested question of fact and attribution of legal responsibility where you have a chain of events that is lifelong?

MR MULLANY: That requires a number of responses, your Honour. The fact that one accepts psychiatric evidence, in this case from all five doctors, that a particular event played a material contribution in the onset of decompensation does not necessarily carry with it a positive answer to your Honour's second question. The common law can, in our submission, happily accommodate the two inquiries and separately.

Having said that, I accept what your Honour puts to me about there being an overlap and there being an importation of value judgments in relation to both the first and second inquiry. It is not an all-or-nothing thing, your Honour - - -

HAYNE J: But my question is, what are the values that are in play? It cannot be the uninformed, intuitive sense of justice of the judge. That cannot be.

MR MULLANY: I agree with that, your Honour, but one must start from the proposition that if those speaking from an informed position tell us that a particular event was triggered, or triggered the psychiatric disorder in the plaintiff, then we should start from the position that that is so. But that does not necessarily mean that recovery will lie in tort. It is not a question of all or nothing, it is not a question of abrogating every one of the control devices. Your Honours could, for example, remove the sudden shock requirement but retain the controls that your Honour Justice Hayne referred to yesterday. It is a piecemeal process, we submit, as our - - -

McHUGH J: But can the psychiatrist always identify the relevant damage for legal purposes, because often enough, the psychiatric illness is the result of a person continually thinking about something until at some stage they lapse from normality into psychiatric abnormality? Now, the psychiatrists might be able to say - they might be able to say in this particular case - it was reading or hearing about this particular document. But for the purpose of the Statute of Limitations, the question of when the damage is suffered, does the literature suggest the psychiatrists can tell us in these cases, where the abnormality develops over a considerable period, when it occurred?

MR MULLANY: Yes, your Honour, they can and I will develop that in just a minute. I have six minutes left. The pertinent first inquiry is why is that victim thinking that way? Now, if it is as a result of an avoidable want of due care and the disorder takes a particular manifestation, the question must then be asked, why should the format make any difference? Consider the parent who has the misfortune of having to care for a critically injured child over a long period as a result of a careless driving incident. Why should the parent, like Mrs McLoughlin, who runs to the hospital within two hours of the event and is told of a death, recover, and the parent who endures years, perhaps, of harrowing care to see her child wither away and finally die, let us say after two years, fail? It might be thought, as the Law Commission points out at 5.29(7) of the Report, that they are the very types of litigants which society may feel are most worthy of support.

McHUGH J: That brings in statutes of limitation and the rationale for them. Insurance companies want to clear their books, they want to know that after three years or whatever the time is, they have no further liability. People want to get on with their lives. These are factors that with the shock test, unscientific though it may be, it gives some guidance, but - - -

MR MULLANY: But then you are - - -

McHUGH J: Take the illustration you have just given, years later - I mean, we had a little incident in the Court here yesterday. Supposing one of the younger Justices is sitting thinking about this in years time and they suddenly have - they think, "Anything could happen to me".

HAYNE J: I can feel a compensable injury coming on.

MR MULLANY: Your Honour, the point is there needs to be actionable damage. There needs to be something more than a trivial upset or grief or what have you. Unless your Honours were prepared to make an even more radical reform, namely, lowering the actionable damage threshold to include things that are recoverable in the United States, for example. Then one is stuck with, we would submit, a sound well-established position that a certain form of damage needs to be sustained before the tort is complete and the limitation period begins to run. Why should claimants for post-traumatic stress disorder, usually triggered by stresses, recover, and those suffering other disorders, not inevitably triggered by shock, fail, when we are talking about the same kind of injury?

Your Honours, my time is just about up. Can I say this, finally. Once the common law acknowledges that nervous shock has a scientific meaning and embrace the notion that the plaintiff must sustain disorder, any rationalisation of retaining the notion of shock has been removed. We ask this Court to abandon that requirement for the reasons that your Honour Justice Kirby postulates or describes at 503. That last link with the 19th century position should be abandoned.

Your Honours, on the issue of means of communication of trauma, we will rest on what we say in our written submissions and say only this. There is now a choice facing this Court in formulating the contemporary principles governing liability for this type of injury and in addressing the questions of the role of the means of communication of trauma and the role of the precipitant of disorder. Your Honours can choose to confirm the orthodox position, insisting on direct personal perception of trauma and exclude all those claims for injury consequent on the communication by third parties of distressing information. That is an approach which there can be no doubt lacks psychiatric validity and which is tainted by 19th century concerns and, particularly, of over-extensive liability. That is an approach which would see the common law stagnate, as it has in Britain, as a consequence of the last three cases of the House of Lords.

The solution to the dilemma is not found in this difficult area in the Atiyah or Stapleton theses of total abolition. We have, as the Law Commission acknowledged, come too far since Victorian Railway Commissioners v Coultas to turn the clock back 100 years. An enlightened alternative now presents itself. Their Honours should embrace the informed, mature approach favoured by a number of Australian judges in intermediate levels, and overseas, and allow recovery in the absence of proximity in that form and in the absence of sudden sensory perception. That is, we submit, the next logical step to be taken, to use the expression that Chief Justice Gibbs in Jaensch v Coffey did.

Your Honours should embrace, in our submission, the sound stance adopted by the South African Supreme Court of Appeal. A declaration by this Court that both the way in which the trauma is experienced by those who suffer injury and the nature of the precursor to its onset are irrelevant to the question of liability in all types of claim and by all types of claimant would be a declaration of confidence in Australian common law to find a balance between the competing interests. It would be confidence well placed. It would avoid the tortured path trodden by English courts in their so far unsuccessful quest to resolve that tension. It would restore the dignity and reputation of the common law, signal an important social value, and acknowledge and accommodate the changing needs and concerns of contemporary, multicultural, sophisticated Australian society. Those are the submissions.

GLEESON CJ: Thank you. Mr Donovan.

MR DONOVAN: Just to start with, your Honours, may I hand up some additional material which was omitted from the appeal book? It is only a few pages. They relate to letters from Dr Upton who was the GP treating the appellant at the time when the news was given to her.

GLEESON CJ: Thank you.

MR DONOVAN: They just show that there was nothing referred to by him in any of his letters. I am sorry they were omitted. The appeal books ended up being done in rather a hurry. The second thing I wanted to hand up are copies of Makita v Sprowles which we referred to in our written submissions but we did not provide, I am afraid - I am sorry for that - copies at the time when we filed them.

KIRBY J: Is not the anomaly in the law here just as bad as the anomaly that moved the Court in Brodie to re-express the common law? Is it not exactly the same problem that is before the Court?

MR DONOVAN: It certainly is not exactly the same problem.

KIRBY J: It is very similar.

MR DONOVAN: Brodie in a sense was able to be corrected reasonably simply. If one accepts as an anomaly - and I must say there is an argument that there is not - that although there may not be any kind of uniform logicality to it, the common law being an experiential law has developed certain mechanisms which work in a commonsense way reasonably well. Might I add this, your Honour: this is not a case where this Court is being asked to make a fine adjustment, a small change, an increment. It is a case where this Court is being asked to sweep away effectively if not all, then nearly all the control mechanisms that have previously existed. I want to come to that in a moment if I may.

There are a couple of factual matters I need to raise just to correct a few things that were said. I will be very brief on them. It was put to this Court yesterday by Mr Mullany that the appellant made communication with - it was a phone call - Mr McGregor, the counsellor, prior to receiving the news. That is not necessarily so. Mr McGregor can only say that the phone call occurred some time between 8.30 and 5.00 pm and that appears at 295, line 32. Mrs Tame herself deals with Mr McGregor at 22 and 116 and she makes no reference to when the time was. Mr McGregor's record - he was at Richmond Hospital, I think, at the time - is at 558. So we do not know what time that phone call was, nor do we know what time of the day on the 18th Mr Weller received information about the P4. He received it, he said, with a letter which arrived on his desk - 224, line 10 - and he says later that day - but the time again is unspecified - he rang Mrs Tame - 220, line 40. Then Mrs Tame rang Morgan and there is no record of when that was either.

The second preliminary matter I wanted to mention is this: with the written submission we provided to the Court a police instruction. It is the nearest one we have been able to find so far which was applicable at the time, but in fact it came into effect slightly after the date of this event. The one which was before it was very similar but I have not been able to get a copy of it so far.

The next thing I wanted to say as a preliminary matter, is this. So far as this respondent is concerned, the simple answer is that used by two judges of the Court of Appeal, namely, simple foreseeability. Both Justice Mason and Justice Handley said that this was far-fetched and fanciful.

KIRBY J: Far-fetched and fanciful by what standard, foreseeability - - -

MR DONOVAN: By foreseeability. As a foreseeability issue it was far-fetched and fanciful. They did not specify whether that - well, it looks from the context as if they are talking about foreseeability of damage rather than foreseeability in relation to duty. Perhaps it does not matter. I will give your Honours references to those when I go through the points I wanted to make. I now have, your Honours, some 22 points I want to make. Some of them are simple propositions and nothing more, and they are these.

One, experience of the law so far shows that in certain areas of law control mechanisms are needed or appropriate. Two, they are mainly needed in areas where traditional neighbour tests are inapplicable or uncertain because, for example, there is no physical or temporal proximity, there is no special relationship. That is not all of them, but it is some of those sorts of areas. Three, they are needed in those types of cases because indeterminate liability may or will occur. Four, psychiatric injury is just such a class of case. Five - - -

KIRBY J: But so is some physical injury.

MR DONOVAN: Where there is no physical injury, yes, I am sorry.

KIRBY J: But why single out psychiatric injury?

MR DONOVAN: I am not singling it out - - -

KIRBY J: Subdural haematoma may be difficult to diagnose.

MR DONOVAN: It may be, but it will result from some proximity in the sense that there is, as Justice Gaudron pointed out yesterday, a violation of the person in some way. So there is a physical proximity there, whereas psychiatric injury does not need that, nor does pure economic loss, as Perre's Case would illustrate, although there was some physical closeness of the properties there. Now, the next thing is this - five, while it may be appropriate for the law to adjust control mechanisms from time to time, it should not engage in wholesale abandonment of them in a single sweep, which is what this Court has been asked to do. Step by cautious step, as Mr Justice Windeyer said; incremental adjustments, I think was the phrase used by Justice Brennan.

KIRBY J: Where did Justice Windeyer say that? In Pusey, was it?

MR DONOVAN: In Pusey, yes. That is the passage where he talks about the law limping behind medicine. Now, for that reason, Justice Brennan discussed in Jaensh at page 70 point 7, whether the immediate assault was a requirement of law or more a practical requirement of causation and evidence. There was some adjustment that he looked at there and, indeed, the whole Court looked at an adjustment of the traditional approach. But it is a fairly minor adjustment to see how things work, not a wholesale sweeping away.

Six - I want to just point out what traditional control mechanisms have been, that there is a psychiatric illness; that there is foreseeability of psychiatric illness; there is a sudden assault on the senses; there is an actual perception of the event; and, finally, normal susceptibility. Now, we have heard the phrase "reasonable fortitude", and that is a phrase which is used, but if you look at Justice Brennan's reasoning at 568 point 5 in Jaensch, you will find, your Honours, that he uses the term "normal . . . susceptibility" and he associates it, very appropriately, one might think, with foreseeability. This is point 5 on page 568:

Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness.

"Normal susceptibility" may be a more flexible phrase than "reasonable fortitude", but it certainly is consistent with the article by Pound, which your Honour Justice Hayne took us to yesterday, arising out of the judgment of Mr Justice Windeyer in Mount Isa Mines.

Seven: the Court may wish to consider a control mechanism which deals with the nature of the experience. Now, this is an additional one which the Court might wish to consider. It is not necessary for us to succeed, but let me put it forward. The news in the present case has been described, rightly, by one member of this Court as "trivial", in our submission. Perhaps it might be appropriate to have a control mechanism of horrifying news. On the other hand, maybe that is already covered by reasonable foreseeability. That is something which this Court may wish to look at. I raise it simply as a factor. Again, it is not essential to our success in this case. Trivial news would not lead to reasonably foreseeable psychiatric injury. Eight: whatever adjustments are made here - - -

KIRBY J: Can I just interrupt there. There are references in the case as to the horrifying news aspect. Where is that said most clearly, do you remember?

MR DONOVAN: The passage which I was thinking of when I wrote that, your Honour was a passage of Justice Brennan who talks about "distressing news". I think you will find something stronger than that in the English cases but I am not sure - - -

GLEESON CJ: It is at page 568 of 155 CLR about a quarter of the way down the page.

MR DONOVAN: Thank you, your Honour. That is not at the moment a control mechanism, but I just raise it for the thought, nothing more.

Eight, as I started out: whatever adjustments are made here will not allow the plaintiff to succeed. She fails on reasonable foreseeability, whether or not there is a requirement of reasonable fortitude. I wanted, very briefly, to mention what Justice Mason and - - -

GUMMOW J: Do you say she fails also on duty?

MR DONOVAN: Yes. She fails on duty on two bases. One, because there is no reasonable foreseeability and, two, there is none of the traditional types of indicia which would create a duty such as, as Justice Mason refers on page 800, line 45, of the appeal book:

no overriding duty based upon an employment relationship, knowledge of susceptibility, physical proximity or the creation of a situation likely to attract from the respondent a response in which psychiatric illness was a foreseeable prospect

GLEESON CJ: I understand it to be common ground, that the - it is an accurate description of the relationship between Acting Sergeant Beardsley and Mrs Tame that he was a police officer and that she was a person whose conduct, in relation to a motor traffic accident, was under investigation and report.

MR DONOVAN: Yes.

GLEESON CJ: That is the relationship.

MR DONOVAN: Yes, but in response to that we would say that that is not a relationship which gives rise to a duty of care. Now, in saying that I cannot say to this Court there is a precedent which says that.

GLEESON CJ: Is there not? What about Sullivan v Moody? What about cases dealing with the duty owed by police officers investigating crime to people who might be charged with crime?

MR DONOVAN: Your Honour, I know of no particular case - and I may be wrong on this - where there has been any successful claim for a negligent investigation.

GLEESON CJ: On the contrary. I thought there had been decisions which say that an investigating police officer does not owe a duty of care to a person whose conduct is under investigation.

MR DONOVAN: I am sorry, I said where a claim has been successful. I am sorry. Yes, your Honour. I was thinking of it the other way round. That is one of the factors that we would raise which positively - and I will adopt what your Honour says - shows there is no duty, but apart from that - perhaps I will just leave it at that. In what I was just doing there, your Honour, I was really taking more on board what the President had said in the court below. I wanted also, if I might, just to point out a further passage at 808, line 45. The President, Justice Mason said:

The risk that Acting Sergeant Beardsley's negligent act might cause the respondent "shock" or a psychiatric illness induced by it was far-fetched or fanciful.

I am sorry just to jump around but just to go back to 800, this also is what the President said:

In my view, Acting Sergeant Beardsley owed the respondent no relevant duty of care. Wherever the line is to be drawn, in the law as expounded by existing Australian case law, the present case lies well outside it.

Nine is that the particular piece of information in this case in the context where the plaintiff knows it is a mistake is trivial. She tells her solicitor that it is a mistake, it is wrong. She immediately rings Morgan who says, "You know it is a mistake". Ten, looking at it from the other side, from Acting Sergeant Beardsley's point of view, it is a minor slip. Reasonable foreseeability, as this Court discussed yesterday, must be judged from the point of view of the actor, not from the point of view of the victim or the psychiatrist. The test is would the reasonable man in the position of the defendant foresee the events and injury.

Eleven, the reasons in support of the control mechanisms are set out in the submissions of Mr Jackson at paragraph 12, pages 4 and 5. I wanted to raise two others. Distributive justice - but these apply to this case. I do not say they are generally applicable, but to this case - distributive justice and commonsense. Lord Hoffmann in White v Chief Constable [1998] UKHL 45; [1999] 2 AC 455 at 510C said - there is just one sentence I am going to read. For the plaintiff to recover for this cause of action "would be quite unacceptable" and he then explained further. The reason for that was that people who had lost their children back in Alcock could not recover, therefore police officers who were only involved in seeing the aftermath also should not recover, and that was how Lord Hoffmann looked at it.

We would just point out here that if the plaintiff could recover for this type of event in circumstances where the legislature has limited recovery for motor accidents so that this sort of thing and even worse injuries would be excluded and in industrial accidents where worse injuries would be excluded, it would be, to use Lord Hoffmann's words, quite unacceptable for this plaintiff to recover.

GUMMOW J: Is there some theory that the common law adjusts to these other statutes in other fields?

MR DONOVAN: I cannot answer that, your Honour; I do not know.

KIRBY J: It is difficult, is it not? This is a statutory regime in two particular statutes in New South Wales and the common law is the common law of Australia.

MR DONOVAN: Yes.

KIRBY J: Just because in particular mass-produced areas of litigation the Parliament of New South Wales has introduced what on some views is an arbitrary restriction, why would the common law impose arbitrary restrictions?

MR DONOVAN: I am putting this forward as a non-arbitrary restriction because in this particular case, and I do not say it applies across the board to nervous shock or psychiatric injury, but where you have such a - I will use the word - trivial piece of news leading to such an extraordinary idiosyncratic result, commonsense and distributive justice, we say, would stand in the way of recovery. This Court may say, "We're not interested in those sorts of tests. They are English tests and shouldn't apply here", but I raise them for consideration.

CALLINAN J: Why is distributive justice relevant? It is an expression I hear from time to time. Judges take an oath to do equal justice between rich and poor, not to distribute the liability among those who can afford to pay or not afford to pay. What does it have to do with the law?

MR DONOVAN: Lord Hoffmann was not using it in that sense, your Honour.

CALLINAN J: In what sense was his Lordship using it?

MR DONOVAN: Lord Hoffmann was using it in the sense of: there should be reasonable consistency of people who are entitled to recover. So that, for example, if the parents cannot recover in the Alcock Case for the loss of their children and the nervous shock they suffer, policemen who have no contact with those children, who have no relationship with them, who happen to see the aftermath at some later stage also should not recover. That is what his Lordship meant by it. I do not say necessarily one way or the other it is a rule that this Court should apply. I raise it as a rule which has been applied in another jurisdiction for the Court's consideration. Again, as I said before, I do not need to establish these various matters in order to win this case. Simple foreseeability is the fundamental matter which would allow us to win.

Twelve: the very reason why Judge Garling gave a verdict was because he ignored the reasonable fortitude or normal susceptibility control mechanism. He specifically said that and this is referred to by Chief Justice Spigelman at appeal book 763 to 764, especially at 764, line 20.

KIRBY J: What is this point, I am sorry?

MR DONOVAN: This was that Judge Garling specifically did not apply one of the traditional control mechanisms, namely normal susceptibility. That is referred to by the Chief Justice at 763 and 764.

Thirteen: the normal susceptibility test does help to avoid idiosyncratic decisions by trial judges, such as happened here. It reminds lawyers that there is an objective test for reasonable foreseeability, and this is something which Justice Brennan refers to. He does not elaborate greatly on it but refers to it at page 568 of Jaensch v Coffey.

KIRBY J: How does it square though with the "eggshell skull" notion in physical injury?

MR DONOVAN: It has been put by the Court of Appeal - and we would adopt this - that "eggshell skull" applies as a principle of quantum. So that once there is physical injury, "eggshell skull" allows the totality of whatever happens; you do not have to break it up.

In psychiatric injury, reasonable fortitude or normal susceptibility is a derivative or derivation of reasonable foreseeability and therefore is a liability test. That is how the Court of Appeal put it and that is how we would adopt it. It certainly is a rational distinction, although I recognise that judicial minds may differ on that.

KIRBY J: It does seem to show a judicial tendency to suspicion of psychiatric injury which certainly was the tendency in the last century, the 19th century and in the 20th century, until quite recent times. It was not really until the Mental Health Act of New South Wales was amended, I think in 68 or thereabouts, that a more enlightened view began to emerge about mental illness.

MR DONOVAN: "Suspicion" is a bit of a loaded word and can I respond to what your Honour said by this. If you take reasonable foreseeability from the position of the plaintiff of the person who is psychiatrically hurt you might come up with one answer. If you take reasonable foreseeability from the point of view of the defendant, the person who is accused of creating the tort, you could come up with a different view, and we are suggesting that the appropriate view for reasonable foreseeability is to look at it from the point of view of the reasonable person in the position of the defendant.

GAUDRON J: But it goes beyond that, does it not, in this area of the law? It certainly can be fitted into that conceptual framework but it does go beyond to the point where the individual must be of normal - - -

MR DONOVAN: Well, no, I am sorry, the individual does not have to be of normal fortitude, that is something I wanted to say. The test is not that the plaintiff is a person of normal fortitude but rather that a person, either of normal fortitude or normal susceptibility, would be affected by this event.

KIRBY J: Yes, but that is a distinction without a difference because you are testing the criterion of the plaintiff's reaction against this mythical objective person of ordinary fortitude.

MR DONOVAN: Well, in a sense that is right, but in a sense that is what comes out of objective reasonable foreseeability. I do not say that one cannot move but if one does move, a person would then leave open the problem of how do you reconcile objective reasonable foreseeability with the idiosyncrasies of a particular plaintiff which no one could ever possibly imagine under any circumstances and this case comes pretty close to that great extreme.

GAUDRON J: Where is the authority that the plaintiff does not have to be a person of normal susceptibility?

MR DONOVAN: I am not sure I can answer that. My memory is it is certainly referred to by the judges of appeal in this case. My memory - look, I cannot answer it, your Honour, I would have to look it up, I just cannot tell you. But if you look at the authorities, although it is often said the plaintiff must be a person of reasonable fortitude, what underlies that, in reality, is vulnerable plaintiffs can recover but they cannot recover if the only reason for their recovery would be their vulnerability and an ordinary person of normal susceptibility would not recover.

McHUGH J: It is there in the English cases, it is in White v Chief Constable, yes, certainly in those cases.

MR DONOVAN: I am sure it is there somewhere, I did not pick it out of the air, your Honour, but I just do not remember where I got it from now. That, your Honour - we passed item 14 I was going to deal with, because that was the next point. Fifteen - - -

GLEESON CJ: Now, you are in much the same position as Adam Gilchrist was when they were about 5 for 310.

MR DONOVAN: Well, perhaps I do not need to say the rest, your Honour.

KIRBY J: I was thinking you were getting past President Wilson's 14 points. How many more did you have?

MR DONOVAN: I have another five.

KIRBY J: That is nine more than the Almighty.

MR DONOVAN: I am happy to keep going, but I do not want to unnecessarily take up the time of - - -

GLEESON CJ: Why do you not just read onto the record the remaining points that you have?

MR DONOVAN: Yes, very well. Fifteen, the appellant will not succeed here because the injury resulting from the error and the steps of communication is far-fetched and fanciful. Two, there is no duty of care - defamation law covers this area of law and there is no reason to take negligent misstatement into that area. The checks and balances of defamation have already been finely developed - Sullivan paragraph [54]. Three, the police officers - - -

KIRBY J: May I just interrupt there. Has this Court held that defamation may not be sued with any other cause of action?

MR DONOVAN: Not that I know of. In principle one could join the two, but what I am suggesting is that where one area covers it with such a long and careful development, the Court would not take another area into it. I do not say it cannot be done, but I am suggesting it might not be appropriate.

CALLINAN J: Well, Astley holds, in effect, that it can be done. You can join whatever causes of action are available. But in Sullivan I think this Court said that it was important in this context to preserve coherence in the law. I think "coherence" was the word used.

GUMMOW J: Yes, paragraph [55].

MR DONOVAN: Paragraph [55]. I am sorry, I thought it was [54], I am sorry.

McHUGH J: It is also not really defamation, but other areas - the area of economic loss. The investor relies on the auditors report which is negligently prepared. The company goes into liquidation. He loses his money. Esanda holds he cannot recover for his financial loss. But supposing he suffers a nervous shock upon hearing that the company has gone into liquidation. It is all brought about by the negligence of the auditors. Can he then recover for nervous shock, even though he cannot recover for economic loss because of the auditors negligence?

MR DONOVAN: I am not able to answer that at this point, your Honour, I mean perhaps so. It depends on what the law of psychiatric injury ends up being, I guess.

GAUDRON J: It depends, does it not, really, on what interests the law is protecting and, I mean, what one is protecting in the economic loss cases, I should have thought, is a person relying on false or misleading information, to use a compendious term. In this area of which we are talking what has to be brought into the equation is the people's right to know. So the knowledge might be distressing, but they have to be told.

MR DONOVAN: Yes.

KIRBY J: Mr Mullany's answer to that point was, yes, they have a right to know but they have a right to know accurately. The complaint here was that there was a misstatement.

MR DONOVAN: Yes. I understand that. I put our responses to that, partly in these earlier submissions and partly by relying upon what the Court of Appeal had to say.

GUMMOW J: Now, does that cover what you wanted to say?

MR DONOVAN: I was going to give your Honours some references of the Court of Appeal. I will not worry about that.

GUMMOW J: Is that all of your points though?

MR DONOVAN: Sorry?

GUMMOW J: Have you all of your points on the transcript?

MR DONOVAN: No, there is one other I need to raise. The primary and secondary distinction is referred to by Lord Jauncey - this is just for your Honour's information - in Page v Smith as coming from Dillon v Legg (1968) 29 ALR 3d 1316, referring in turn to this reference, to Harper and James The Law of Torts, 1956 at 1035 to 1036.

KIRBY J: Which court was that?

McHUGH J: Supreme Court of California. It was Justice Tobriner's judgment?

MR DONOVAN: Just a minute, your Honour. Mr Justice Tobriner, if that is how you pronounce it. Yes, that is all I have to say.

McHUGH J: Before you sit down. I take it you take no point here about causal connection. You do not rely on the broad principle of Rowe v McCartney, that where the mental illness is the result of an irrational reaction on the part of the plaintiff, then it is outside the relevant damage.

MR DONOVAN: I thought we had in our written submissions, your Honour. We raised "causation" in a legal sense, in the sense of legal responsibility, and we raised "causation" in a particular factual sense here. We did not refer to Rowe v McCartney but I thought we had covered that point in there.

KIRBY J: If the Court were of the view, or a member of the Court were of the view, that the psychiatric physical dichotomy was unsatisfactory, that the direct perception was unsatisfactory, that the suddenness was unsatisfactory and that the shock was unsatisfactory, is it your position that the control mechanism that still remains is foreseeability, or is there something more?

MR DONOVAN: As a matter of principle, it may be possible to bring all the control mechanisms back into the general principles, like normal susceptibility being part of foreseeability, but it would appear that unless the Court specifies control mechanisms, there is a danger that things will go off the rails, and this is a good illustration of it.

KIRBY J: I accept that. That is why I was asking whether if one came to the view, as in Brodie, that the current categories were not legally defensible but as it were historical gifts of the past, which do not stand up against proper analysis, have you any additional things to say - - -

MR DONOVAN: No, I have not.

KIRBY J: - - -about what can be put in that place, because the need for control mechanisms is a universal imperative. It is recognised in all the legal systems.

MR DONOVAN: I have no alternative control mechanisms to put for - - -

KIRBY J: You did mention the question of horrifying - - -

MR DONOVAN: Yes, I did. That is the only thing I could think of which might be put in place, but I am not wedded to that in any particular way. May I just answer one other matter? Your Honour spoke about on analysis these mechanisms not standing up. Could I just, with due respect, remind your Honour, that common law is a law which developed by experience. The experience, we would say, is that generally speaking these are practical mechanisms. It does not mean they cannot be loosened a little bit, but not swept away in one - - -

KIRBY J: Courts swept away the distinction in Brodie and if one uses Justice Windeyer's view, the common law in this particular area is limping along and it is almost about to collapse and go through its legs.

MR DONOVAN: I am sorry to take more time, it is a distinction. In Brodie there was one principle and either it was there or it was not. In this the changes can be incremental, step by step, and a safer and more appropriate way to deal with it would be to deal with small steps at a time and see what happens.

KIRBY J: What is the small step we should take here?

MR DONOVAN: None, but others, I think, who are going to follow me are about to argue to the contrary. May it please the Court.

GLEESON CJ: Thank you, Mr Donovan. Yes, Mr Semmler.

MR SEMMLER: Thank you, your Honour. Your Honours, as to the correct categorisation of the relationship between Mrs Tame and the police officer who was careless, in our respectful submission, it is not correct to categorise that as a relationship between a person who may be charged with a crime, who is under investigation on the one hand, or the relationship between the policeman who is doing the investigating and looking at suspects on the one hand, and a person who was a victim of an accident and may be charged with a crime. That is not the relationship we are dealing with here. The relationship was between a person who was an accident victim in respect of whom there was no suspicion of any criminal offence.

That is clear from the evidence in volume 2 of the appeal books, page 398, when Acting Sergeant Beardsley, who is the careless police constable or sergeant, in our respectful submission, said this, at line 11, that the entry that he made which was the careless entry on the accident report, was made:

when Constable Morgan informed me that he had charged Terrence Lavender with a reading of .140.

So they were made at the same time. With respect, it is not correct to say that Mrs Tame was under investigation and that this erroneous entry was made as part of that investigation. There was never any question of her being charged.

GLEESON CJ: Was he not reporting on her conduct as a driver, reporting to his superior? The police was reporting - - -

MR SEMMLER: Constable Morgan?

GLEESON CJ: A police officer was reporting to his superior upon her conduct as a driver. The report might have been a favourable report, but that is what it was.

MR SEMMLER: It was recording of facts about what had occurred. It was not part of any suspicion that she was - - -

GLEESON CJ: But the report might have said, "Mrs Tame was not to blame for this accident", or, "Mrs Tame was the person to blame for this accident" or, "Mrs Tame was partly to blame for this accident". That was the context in which this error was made. It was in the context of reporting upon her conduct as a driver.

MR SEMMLER: Your Honour, we would simply say it is recording objective facts, presumably for statistical purposes, of who was involved in an accident and what were the circumstances, but it formed no part of the train of investigation that led to charges of criminal behaviour. That is what distinguishes this case from Sullivan v Moody. If you go back to page 359 of that volume 2, I asked Senior Constable Morgan, at the bottom of page 359:

after you investigated this accident there was no doubt in your mind that the responsible party was Mr Lavender, correct? . . .

And . . . that Mrs Tame was the innocent victim in the accident, correct.

Your Honours, the question was asked of me yesterday, I think by your Honour the Chief Justice, if there had been a criminal charge laid against Mrs Tame, would there be a duty? The answer to that is that if one assumes that the negligence alleged in that context was not in record-keeping but was in investigation of possible crime, then there may be reasons for denying the existence of a duty.

On the authority of Sullivan v Moody, even if one perhaps took away the statutory context in which that case was decided, it may be that there would be an argument for a policy control that said there may be an inconsistency of obligation - a conflict of responsibility, where a policeman is, on the one hand, investigating possible criminal behaviour and looking at the behaviour of suspects. If he were to pursue that task diligently, it may be that it is inconsistent to have him looking over his shoulder worrying about the possibility of civil action because he is said to owe a duty to the very people he is investigating.

That is not this case because there it is simply incorrect to postulate that Mrs Tame was a suspect in any way, shape or form at the time when this error was made.

GLEESON CJ: Mr Semmler, suppose that Mrs Tame had not suffered any kind of psychiatric harm as a result of this mistake but instead she had lost her job, could she have sued?

MR SEMMLER: That is she had suffered economic loss, your Honour?

GLEESON CJ: Yes.

MR SEMMLER: It would depend upon the application of the settled control mechanisms in relation to recovery for pure financial loss but they are different mechanisms from those concerned with psychiatric injury. So, your Honours, in respect of certain other matters that my learned friend raised, it may be that it is putting it too highly to say that the psychiatric nurse who telephoned Mrs Tame on the day when she learned of this mistake - the reality may be the evidence does not show us whether the conversation was before or after the learning of the error but in the final analysis that is really not determinative in this case. There was an abundance of evidence from people who knew who knew her very well, from other people that she markedly changed after learning of this mistake.

Now, your Honours, my learned friend said that, in effect, the appellant loses on the issue of foreseeability, regardless of whether or not that test embraces reasonable fortitude. He said that both Justices Mason and Handley found that to be the case. Whilst it is clear that Justice Mason, the President of the Court of Appeal, decided it on that basis, he explicitly said, "I find there is no foreseeability, whether or not one assumes normal fortitude". Justice Handley was not so clear in his reasoning and at volume 4, page 817, we see the context in which Justice Handley decided this issue against Mrs Tame. He said at line 16:

She was not a person of ordinary fortitude and the risk of her suffering psychiatric injury as a result of learning about the contents of the police accident report was not reasonably foreseeable. The risk in my view was "far-fetched or fanciful".

Now, a fair interpretation of that passage is that Justice Handley was deciding the foreseeability issue against Mrs Tame because she was not of normal fortitude. True it is he uses the words "far-fetched or fanciful" but he also incorporates at the start of the sentence the concept of ordinary fortitude. So, if that construction of what he says is correct, the only one of the three judges in the Court of Appeal to decide this case against the plaintiff and to override what the trial judge had himself decided on the grounds of the ordinary application of the foreseeability principle was the President.

HAYNE J: What do you do with paragraph 162 of the reasons?

MR SEMMLER: Your Honour, it is the expression of opinion of one judge of three overriding the view of the trial judge which was amply justified, in our respectful submission, by the evidence of the psychiatrist and the totality of the evidence in the case and we would ask your Honours not to uphold this appeal on the basis that the Court of Appeal was justified in interfering with the finding of the trial judge on the issue of foreseeability.

CALLINAN J: When you say "on the issue of foreseeability", do you mean foreseeability in what sense? Foreseeability of harm, or particular harm or what?

MR SEMMLER: Foreseeability of some kind of psychiatric injury, the traditional test. We need to show that some kind of psychiatric harm was foreseeable and we say the trial judge was amply justified, given the evidence before him, in deciding on the traditional test which embraces far-fetched and fanciful - - -

CALLINAN J: But you do not submit that because it was foreseeable to a psychiatrist, it was foreseeable to an ordinary reasonable person?

MR SEMMLER: Your Honour, that is the point. Your Honour raised that yesterday. Our response to that is, that is the approach that the courts have taken. Whilst it is a difficult area, whilst it is difficult on the one - - -

CALLINAN J: What is the best case, what is the best statement that you can point to which says that if it is foreseeable by a psychiatrist, it is therefore foreseeable by the ordinary reasonable person? Which case says that?

MR SEMMLER: There are two, your Honour. One is Lord Bridge's speech in McLoughlin v O'Brian - - -

CALLINAN J: What page is that?

MR SEMMLER: Page 422, your Honour.

CALLINAN J: Yes, and the other one?

MR SEMMLER: The other is Justice Deane's reference to this matter in Jaensch v Coffey.

CALLINAN J: Perhaps before you go to that - - -

MR SEMMLER: Sorry, your Honour, it is at page 601 of Justice Deane's decision.

CALLINAN J: All right, well, you said page 422 of McLouglin v O'Brian - - -

MR SEMMLER: It might be 423, your Honour. The passage starts at 422.

CALLINAN J: I am sorry, yes, it is Lord Wilberforce at page 422.

MR SEMMLER: Then I am sorry, I have misled your Honour. The relevant passage starts at 432, where Lord Bridge - - -

CALLINAN J: Which letter is that, Mr Semmler?

MR SEMMLER: Starting at B, really. He is discussing how does the court determine what was "reasonably foreseeable" in a psychiatric injury case. He discusses the two possibilities, as I indicated yesterday. One is, the court really just defers to the psychiatrist. The other is the more traditional approach which is, the judge makes his own decision - - -

GUMMOW J: I am not sure that is correct, letter D, is it: "Foreseeability . . . is ultimately a question of fact". Is that right? It is not as simple as that.

CALLINAN J: No, it must involve a question of law because one has to posit the ordinary reasonable person, does not one? Perhaps the ordinary reasonable person who might, in particular circumstances, be possessed of particular knowledge - - -

MR SEMMLER: We would say it is a test of what a reasonable man in the position of the defendant - - -

CALLINAN J: But I have to tell you, Mr Semmler, that I have a great deal of difficulty in accepting that because a psychiatrist may foresee something, an ordinary reasonable person should be regarded as being capable of or under a duty to foresee it and examples could be multiplied. One could be talking about a rocket scientist, what he might foresee or she might foresee. An ordinary reasonable person would not foresee it.

MR SEMMLER: Yes, but, your Honour, there is, with respect, validity in what your Honour says, but in the final analysis, the other side of the coin is, courts cannot ignore the progress of psychiatric understanding and in the end - - -

CALLINAN J: No, they cannot from the point of view of causation; I can accept that that might satisfy the causation - - -

McHUGH J: But, Mr Semmler, it depends upon who the defendant is, as I pointed out to you yesterday. You can attribute all sorts of things to an employer that you cannot attribute to a fellow workman, and therefore you may have a breach of a personal duty of care by the employer but not a breach of the vicarious duty. Here you are faced with a vicarious liability case. Why it is important, it seems to me, to concentrate on the foresight of the person on the ground as opposed to the expert psychiatrist is because it must affect what the response of the reasonable person would be.

MR SEMMLER: Yes, your Honour, that is correct. Certainly true it is in recent decades in the employer/employee context, a great deal of knowledge has been imputed to the employer, the theory being they have limitless resources and what have you. The other side of the coin that Justice Callinan has referred to is that in the end the trial judge must make a value judgment about what he considers is reasonable knowledge and reasonable foresight in the community. That is really in the end the test. Lord Bridge says he must be informed by psychiatry. The impossible position would be reached if judges are permitted to simply ignore the progress of psychiatry - - -

CALLINAN J: What degree of susceptibility does an ordinary person in the community have to assume or be assumed to know about?

MR SEMMLER: Certainly Judge Garling took a different view from the opinions in the Court of Appeal.

CALLINAN J: No, but how do I measure it? How susceptible do you have to be to have a right to claim damages on the basis that somebody should have foreseen that you would have been affected? How susceptible or strong do you have to be?

MR SEMMLER: To recover, you have to be in a vulnerable situation that is not far-fetched or fanciful. Judge Garling was at pains to indicate why he reached the conclusion he did. This was not something that he did not spend time over in his judgment. He said this is at the forefront of the community. He based his opinion not simply on what the psychiatrists said but also upon his knowledge as a trial judge in a busy court determining cases day after day and he said words to the effect that one comes across this phenomenon - - -

CALLINAN J: Let me accept that, but take this case and go, for example, to the appeal book at page 427 and you will see that one of your client's own psychiatrists said that the appellant herself - who was, after all, a nursing sister, I think, is that not correct?

MR SEMMLER: She had been, yes.

CALLINAN J: She had told him that she had been rendered psychologically vulnerable by adverse events in her early life, and then she recounted them. How was that to be foreseen or known or assumed, that particular susceptibility?

MR SEMMLER: As was said earlier this morning, everyone suffers the slings and arrows of life. We know that. People - - -

CALLINAN J: But she says these were ones that had rendered her vulnerable. These were not the ordinary slings and arrows of life. They started in her childhood in England.

MR SEMMLER: With respect, your Honour, Mrs Jaensch was vulnerable and this Court had no difficulty in accepting the trial judge's conclusion that she was of normal fortitude. She had had a very unfortunate upbringing. She had a particular dependence on her husband. She had peculiar vulnerability. The notion that a reasonable person in the position of the defendant driver in that case could ignore vulnerable people like Mrs Jaensch did not enter into the equation 17 years ago, with respect. Our submission is that in those 17 years community awareness of psychiatric illness has increased exponentially, as seen by the - - -

CALLINAN J: Are we to assume that everybody is vulnerable psychologically?

MR SEMMLER: Well, a reasonable person should certainly assume that his neighbour out there on the street, or wherever they may be, does not have the kind of stiff upper lip fortitude that might have been appropriate during the Second World War. The community is aware - we have the National Depression Institute in Victoria. We have increasing knowledge of the extent of depression. It affects judges, it affects community leaders, politicians, and we have a World Health Organisation report saying that outside of a ischaemic heart disease, this illness will be the greatest disease burden for the whole of mankind - - -

CALLINAN J: Was that in evidence?

MR SEMMLER: It is in the evidence of Dr Phillips. There was no contest about this. This is a very, very prevalent illness and the notion that this Court should endorse the idea that we can ignore people's vulnerability to this illness at the start of the 21st century, as I said at the start of my submissions yesterday, is simply, with due respect, unacceptable.

GLEESON CJ: Now, does that cover what you want to say, Mr Semmler?

MR SEMMLER: Almost, your Honour. Your Honour, on the issue of normal fortitude, I do not have it immediately available, but in the course of the argument in Sullivan v Moody, your Honour the Chief Justice made the comment that it would be foreseeable that a person charged with a criminal offence would suffer emotional distress.

GLEESON CJ: And certainly foreseeable that they would suffer economic harm.

MR SEMMLER: Yes, but I think your Honour incorporated the words "a person of normal fortitude would suffer emotional distress" and I assume from your Honour's comment, your Honour was contemplating the kind of emotional disorder that is depression. Now, if that was your Honour's tentative view at least in argument in that case, then why was the Court of Appeal in this case entitled to take the view that a person of normal fortitude in Mrs Tame's position would not suffer an emotional illness as a result of being told something that was incorrect, that is, that a person in authority, a policeman, had said in an official document that was now with the Penrith Court she was a drunk driver?

McHUGH J: That is pretty defamatory.

MR SEMMLER: Your Honours, could I finally say this. The case of Barnes v The Commonwealth (1937) (SR)NSW 511 where the statement was made that persons in this kind of authority ought to be careful about what they write, there should be a duty on them to do it properly, was a case where at page 516 Justice Stephen said this, at about two-thirds of the way down the page:

We have, then, to consider the third class. In my opinion, the official relation which is here stated does constitute something close or special, which renders it reasonable that responsibility should be placed upon the defendant, if the other necessary elements are present.

Now, of course, this is only part of the equation, but his Honour there was identifying the official relationship in the sense that you had a government employee, an officer in the Invalid and Old Age Pensions Department, writing something that was foreseeably likely to cause psychiatric illness negligently and wrongfully and his Honour found that the necessary relationship could be found, at least to that extent, in the official position that that officer held.

We would say similarly, in the case where these things are not being written by a neighbour or somebody of no consequence in this context, it is being recorded by a police officer who has investigated an accident - and, in our submission, that is the relationship we are dealing with - it gives rise to the duty. The control mechanism my learned friend suggests of somehow or other restricting the duty to cases of horrifying news, it has the same problems that arise when one deals with what is encompassed by the concept of normal fortitude, so that does not really solve any of the problems that this Court now confronts.

Finally, your Honours, the defamation issue has reared its head a number of times in argument over the last two days. In the end it is true, your Honours, with respect, that it is a question of what importance the Court places on the respective interests, the competing interests. True it is, as Justice Gaudron says, there may be an interest in people knowing certain facts. Our answer to that is, as has already been noted, they have an interest in knowing the truth, not inaccuracy. In the final analysis, if your Honours are considering an easy answer to this problem imposed in this case, that is, "Well, the law of defamation which has been around for a long while has considered the competing interests and that covers the field. We shouldn't let the law of negligence intrude", effectively, in our respectful submission, what your Honours are saying is that the interest protected by the law of defamation, that is one's reputation, is a more important interest than the interest protected by the law of negligence which is in this context the right of Australian citizens to mental tranquillity.

McHUGH J: Except in this case your client could have recovered, it seems to me, for everything in a defamation action, indeed more, than she could recover in an action for nervous shock, but the defendant would have defences open.

MR SEMMLER: That may or may not be because the question of defamation was not explored in this case but it does not mean as a matter of principle that the protection of reputation is more important than the protection of mental tranquillity.

GLEESON CJ: I have seen many ambitious claims of rights, Mr Semmler, but the assertion that there is a right to mental tranquillity seems to me to go a fair distance and, if it is true, it is one that is violated by judges frequently.

MR SEMMLER: I would accept that, your Honour.

GLEESON CJ: Let us see what we can do with the mental tranquillity of Mr Walker.

MR SEMMLER: Your Honour, could the parties in this case be excused?

GLEESON CJ: Yes.

MR SEMMLER: Thank you.

MR WALKER: May it please your Honours, this is a different case. There are common points which will arise in this argument which to some extent can be shortened by reference in the last day and a half. By dint in any event of the limitation of time in order to allow my friend an appropriate proportion by 4.15, I hope your Honours will forgive me if I abbreviate certain references to case law. The relevant references in particular to the role, if any, of stare decisis for the issue we put up is contained in our written submissions and we will not further visit that.

Could we say at the outset, in particular apropos what has fallen from your Honour Justice Callinan towards the end of the argument in the last case and what has fallen from your Honour Justice Hayne first thing this morning, in our submission, this is a case which not for the first time and no doubt not for the last time raises the issue of the role of foreseeability but in a relatively limited fashion.

CALLINAN J: Mr Walker, that is the question I was going to ask you. I must say it does seem to me, at this stage, that your case on foreseeability is a quite different case from the one which we have just heard argued. It seems to me, with all due respect, that you have a strong case on foreseeability despite what Justice Ipp said. He said something quite contrary to Justice Heenan.

MR WALKER: Yes.

CALLINAN J: With respect, at this stage I am not persuaded that Justice Heenan was by any means wrong. It seems to me to be almost inevitable that a parent would be gravely affected by the news of the death of a 16-year-old boy alone in the desert.

MR WALKER: Yes.

CALLINAN J: That is what I was going to ask you. Assume - and I do not want to anticipate too much - you were to succeed on the issue of foreseeability, you would still have to overcome the hurdle of direct sensory perception of a shocking event and proximity. Is that right?

MR WALKER: Yes.

CALLINAN J: They are the two other things that you have to knock out, is that right?

MR WALKER: You can count them in a number of ways. We have obstacles. Your Honour has named them in, with respect, acceptable ways and we will be grappling with each of the ones your Honour has named. We prefer to name the issue that we confront as follows: first, we would urge that the question as raised by Justice Windeyer in, what we respectfully submit, is a seminal set of reasons in Mount Isa v Pusey, in particular at 125 CLR 395, is the first obstacle we face. That is the question, about three-quarters of the way down that page:

Is this case one? That depends on whether the appellant was in breach of a duty to the plaintiff of care, extending to care lest he should suffer a nervous shock.

Transmuted to the facts of this case, which I shall seek to state in legally essential terms in a moment, that is the question we face first. We face it framed, as it ought to be, "Why should there be a duty?" or, to put it another way, assuming in my favour that the causation via the natural grief, the expected grief, to mental illness is clear or close to undoubted in this case, be that assumed in my favour, why should Australian Stations be legally responsible for that suffering?

CALLINAN J: Do you say because that was the special reliance which the applicants put upon what Mr Loader told them, which they specifically sought?

MR WALKER: Your Honour destroys any suspense I may have created. Yes, that is going to be an essential element, though essential only for this case.

CALLINAN J: Yes.

MR WALKER: Because in the statement of the facts, as we will put them as legally essential, though it is essential for Mr and Mrs Annetts in the sense that we would not want to do without it at trial and would make as much capital out of it at trial as we could, it is to be doubted whether an element analogous to that is truly necessary for recovery, for reasons to which I shall come very shortly.

Your Honours, with respect to "foreseeability" which we must face, we would respectfully submit that this is a case which illustrates that more often than not, in a case of this kind, it will come into play at the second-stage question, whether there was a breach of the duty, whether there was negligence. I will not be addressing your Honours in detail on foreseeability as to the existence of the duty, except in terms which refer to the reasonable expectations of mankind in the Australian social setting. I shall be using that.

As to foreseeability as to breach, we will be submitting that it is a crucial part of the principle and that there is nothing novel or disturbing about what we submit in that regard. In particular, we call in aid what is said by Justice Windeyer. Your Honours will recall the famous passage at 397, where his Honour referred, towards the end of the page after the reference to In re Polemis:

So that now -

his Honour said -

we have the blessed, and sometimes overworked, word "foreseeability" as a single test for both the existence of liability in negligence and the extent of recoverable damage.

The former leg need not concern the Court today and is not part of my argument. The latter is critical. But it is critical to the question of breach or negligence and that is a matter where, in answer to your Honour Justice Callinan's opening question, the issue which has been dubbed "normal fortitude" or "abnormal susceptibility" will be most important.

Your Honours will also, however, recall another wry passage in the reasons of Justice Windeyer at page 402 where, apropos what your Honour Justice Callinan has observed concerning the disagreement between Justice Ipp and the other members of the Full Court on the one hand, and Justice Heenan at trial, albeit a motion on pleadings, where his Honour, having referred halfway down the first paragraph on 402 to the "comfortable latitudinarian doctrine" with respect to the foreseeability of a kind of damage, goes on to say after the quote from Lord Wright, that:

That perhaps does not reckon with courts of appeal, and varying judicial opinions of where in good sense the proper stopping place is.

A phrase that picks up a quotation with which your Honours are familiar from Lord Wright's speech in Bourhill v Young, for one, and also in Jaensch v Coffey. Now, your Honours, the critical thing there, of course, is that we accept that what we talk about when we refer to foreseeability at the second stage, that is the question of breach, will be, in the usual case, a jury question, that is a question of fact, but that there will be a limit of a kind which is illustrated by the fact, for example, that there was a directed verdict in Chester and demurrers argued after the trial of facts.

So that there are, of course, ultimate objective limits to what is the jury's province with respect to foreseeability for the sake of the breach question. We then turn to the threshold and perhaps most difficult question, in light particularly of the attention paid in argument yesterday, with great respect, understandably against us, to the dictum of Justice Windeyer at page 407 of his reasons in Pusey. I will not be going to that directly but will be dealing with it after an opening argument concerning the essential facts of our case, that is, those which are legally essential, but may I foreshadow where we tend with respect to that dictum.

Even interpreting it as a statement of persuasive weight, very great persuasive weight, against the proposition that mere news can be the means by which actionable mental illness may be brought about - and we will contest that interpretation - but even assuming that against us, there are reasons why, in our submission, arising from a fact, arising from the case before your Honours today, which presents facts quite obviously alien to those before Justice Windeyer, why the very fact that my clients had what your Honour Justice Gaudron might directly call "a right to know", is the reason why the relationship between them and Australian Stations imposed a duty of care.

GLEESON CJ: Mr Walker, I might have misunderstood the facts of your case but I thought that it was not suggested that the breach of the duty lay in the communication of any information.

MR WALKER: Quite so, your Honour.

GLEESON CJ: The breach lay in a failure to have a safe system of work.

MR WALKER: Quite so, your Honour. Indeed, it is essential to my argument and picking up both what your Honour has just said - picking up in converse what was said about the previous case in which argument has just concluded, and picking up what your Honour Justice Gaudron has said about the right to know, it is critical to our case that my clients, this boy's parents, had to be told quickly.

GLEESON CJ: Your case would not be any different, would it, if what had happened was that in breach of their obligation to have a safe system of work the respondents had directed your clients' son to break in some wild horses in accordance with a system that was unsafe and he had broken his neck and died and somebody had then rung up and told them over the telephone?

MR WALKER: In broadest essence, in broadest outline, no, it would not be different, your Honour, but there are matters - and this akin to the matter that I offered in answer to Justice Callinan concerning the reliance matter -about this case which make this a stronger case than the risk taken in putting an adolescent on a brumby.

GLEESON CJ: You mean stronger in terms of foreseeability?

MR WALKER: No, it is stronger in terms of a prior relationship, to which I will be coming in just a moment, and also, as it happens, very strong in relation to foreseeability. Your Honour's example and the actual case are equally strong, in our respectful submission, as to foreseeability. Assuming the broken neck is death or a permanent disability, then it is difficult to understand why the grief reaction might not, in the ordinary experience of humankind, without a psychiatrist within cooee, be seen as reasonably likely to be the seed of mental illness.

HAYNE J: Do you, therefore, contend for the general proposition that an employer owes a duty of care to avoid psychiatric injury consequent upon the death or serious injury to a worker where the injury is sustained by the parent or partner of the worker?

MR WALKER: We come very close to that, your Honour, and there are elements of my argument which may well, in the alternative, be indistinguishable from what your Honour has put. However, and importantly for our case, there are elements which we describe as essential, that is, not adventitious or incidental to our success, particularly on the first question of duty that your Honour has raised, which go beyond the outline your Honour has given. May I, particularly in order directly to confront the task that Justice Hayne has presented me, now go to a catalogue where the order is not critical of those facts of our case, that is, the matters grounded in our particular case, stated, we hope, at a level of generality which has these matters as legally essential, that is, of - - -

GUMMOW J: It is paragraph 8 in the statement of claim, is it not, page 5?

MR WALKER: That is at the heart of it, your Honour, paragraph 8, but your Honour will recall the sequence of 7A to 7F beforehand, which is called up and incorporated by reference.

GUMMOW J: Yes.

CALLINAN J: It is 8(e), is it not, in particular I think?

MR WALKER: Yes. Your Honour needs to put that together with (b) as well, (b), (d) and (e). First of all without going to the record, seeking to extract from the passages that your Honours Justices Gummow and Callinan have, with respect, correctly already identified, may I catalogue these essential facts? The defendant employed the plaintiffs' child, so the victim was the child of the plaintiffs.

KIRBY J: But we could not fashion a rule related only to children and parents.

MR WALKER: Rules, your Honour, may or may not emerge from a decision in this case as to whether this case should have gone to trial, bearing in mind that is what presents it to this case. A rule may emerge in the ordinary common law and precedential way from a statement by this Court in our favour on the existence of a duty of care in our case, but, your Honour, it would be, in our submission, unwise for me and, with great respect, it would be wrong for the Court to regard the identity of my clients as the parents of the victim as being of no moment legally to the case. It is - - -

KIRBY J: I am not saying that. In some human relationships, you could have a grandmother - - -

MR WALKER: Quite so.

KIRBY J: - - - or some close friend or a teacher - - -

MR WALKER: Your Honour, I am going to generalise the matter which is based upon in our particular case the fact of parent/child relationship. I am going to generalise it - - -

McHUGH J: The thought has occurred to me: I just wondered why this case had never been pleaded as a breach of fiduciary duty, so that - - -

MR WALKER: "In loco parentis" are the three words that immediately spring to mind when you read the pleaded facts, yes. But it is not - - -

GLEESON CJ: Well, this was an employment of an infant - not a child of tender years, but an infant.

MR WALKER: Yes, your Honour. But it is not.

McHUGH J: On one view of the authorities, questions of foreseeability, remoteness, do not come into it and it is breach of an obligation owed to the parents themselves.

MR WALKER: Your Honour has raised what can only be described as a lost opportunity and it is 12.30. I agree with your Honour utterly. Our obstacle is that this happened a time ago where we either have our common law cause of action or we have nothing, in the nature of the fact of legal advice having been sought as long ago as it has been.

Your Honours, I have started with the plaintiffs or the parent of the victim child or infant - "adolescence" perhaps would be the description which will capture the cusp between real infancy, in a colloquial sense, and mature adult. This is an immature phase shown by it being less than 18 years which has obvious social significance.

CALLINAN J: Mr Walker, I am sorry to take you off your argument. May I ask you this question, though. Might it have been possible - might it have been open on the assumed facts and stated facts to have found two psychiatric injuries, one on the telephone call to the effect that the boy was missing and then, subsequently, the viewing of the skeleton and, indeed, there may have been one or two intermediate events each of which may have caused or exacerbated psychiatric injury?

MR WALKER: No, and yes. No, it would not have been reasonable or necessary to divide out into what your Honour has called two injuries.

CALLINAN J: No, but it might have helped your case, you see. It may be that - - -

MR WALKER: Can I give your Honour the "yes" part of the answer?

CALLINAN J: Yes.

MR WALKER: Yes, the cumulation of what happened stilled to be historically identifiable discrete events is relied upon by us, is in - - -

CALLINAN J: How was it argued below? It seems from reading Justice Ipp's reasons that it was argued as if there were only one injury and I cannot really clearly understand which was - - -

MR WALKER: Your Honour, it partly depends upon whether, by injury, one is focusing upon what I will call "the origin" or whether one is focusing upon the outcome, for example, at the time of trial. If one focuses at the latter which is likely, subject to purely extraneous subsequent insults, to be the position then it is only going to be one injury with a number of different punitive origins. The origins which are pleaded in the statement of claim which contains the admitted and assumed facts that drive this case, those events all combine in our argument just as, as a matter of commonsense, they combined in the lives of my clients and as a matter of informed commonsense - to adapt a phrase of Justice Windeyer's - so they would combine in a psychiatric diagnosis which looks at a history.

GUMMOW J: Was the issue not quite narrow if one looks at page 96?

MR WALKER: Your Honour is there asking about the issue with respect to - - -

GUMMOW J: Yes.

Are those facts -

which we have been looking at -

sufficient, at law, to give rise to an independent tortious duty of care owed by the Defendant to the Plaintiffs to exercise reasonable care and skill to avoid causing them psychiatric injury?

MR WALKER: Yes, it is, and that is redolent of the question that we pose ourselves as the matter we face in persuading your Honours, from 395 of Justice Windeyer. Those facts - - -

GUMMOW J: Yes, but it would also be consistent with what Justice Callinan was putting to you. You would say yes, it could be psychiatric injury because of A or because of B.

MR WALKER: That is right, or by the combination.

GUMMOW J: That is not being tried here. All that is being tried here is the existence of a duty of care.

MR WALKER: Yes, your Honour.

GUMMOW J: There still has to be a trial - - -

MR WALKER: This was a case about whether we could have an action.

GUMMOW J: A trial.

MR WALKER: Whether we could have a trial.

GUMMOW J: Yes.

MR WALKER: Did the snail in the bottle give rise to the possibility of the argument being had without abuse of process? That, in effect, is where we are, in our submission. It is, in the sense your Honour Justice Gummow has identified, narrow. However, it raises very wide and important ramifications, in our submission.

CALLINAN J: I am sorry, Mr Walker. I am going back to your pleading, that is all, which I want to understand properly.

MR WALKER: I think your Honour means the pleading.

CALLINAN J: Yes, I am sorry, the pleading. At page 2 paragraph 7:

The death pleaded -

that is the death of James -

in paragraph 5 occurred as a result of the Defendant's negligence.

It is particularised.

MR WALKER: That is not an assumed fact, your Honour.

CALLINAN J: No. Go to page 6 paragraph 9, the second sentence:

By reason of the facts and matters set out in paragraph 7 -

that is the death of James as the result of the respondent's negligence -

the Defendant breached the duty of care owed to the Deceased thereby causing psychiatric harm to his parents, the Plaintiffs.

What is "the event" - the death?

MR WALKER: It is the "negligently caused death", that was the very next matter to which I am coming.

CALLINAN J: I am sorry to get ahead of you.

MR WALKER: Not at all, your Honour.

CALLINAN J: But you say the death, the communication of the death or the further bringing home of the death by the showing of the skeleton or what, or one or more of those?

MR WALKER: No, no, emphatically, it is not the news, be it on the telephone or thereafter, it is not the going to the search area, being involved in the search - - -

CALLINAN J: It is the perception of what?

MR WALKER: - - - it is not the seeing the photograph of the skeleton and having the feared death confirmed. Those are not matters which were wrongful. Indeed, for the reasons that your Honour Justice Gaudron has emphasised in the previous argument, they are in the nature of things expected and properly so that a parent will have the opportunity to go into the ambulance, to go in, for the only person allowed into the casualty department, perhaps to be the only person allowed into the intensive care unit.

CALLINAN J: But, Mr Walker, it has to be the perception of something, has it not?

MR WALKER: Yes, your Honour.

CALLINAN J: It is the perception of what?

MR WALKER: It is the perception of the disappearance in the circumstances which I am about to catalogue and the eventual death.

CALLINAN J: So you do rely on a number of things?

MR WALKER: Yes.

GAUDRON J: When you say "perception", you are not talking sensory perception?

MR WALKER: It is a weasel word, your Honour. There are three matters, all of which I fear are 18th century in their psychology, but none the worse for that - - -

GAUDRON J: Yes, it is the realisation, if you like - - -

MR WALKER: - - - sensory, cognitive and emotional, the idea that I could persuade your Honours or that it was for a moment tenable that they were separate categories of perception would be idle - I will not attempt to do it - but the different words correctly and still with great respect to modern psychology appropriately, at least in a court, concentrate on different aspects of perception. "Sensory", for our purposes, has been described in the cases as two of the senses, sight and hearing. We may leave aside bizarre examples whereby smell or impact, percussion, may have had some effect.

CALLINAN J: But to use Justice Gaudron's word, "realisation" which, with respect, seems to capture it, realisation of, and perhaps you can tell us after lunch precisely which event on which days or over which periods.

MR WALKER: Yes, I will, and, your Honour, the answer, in short form, is the disappearance, the harrowing search, the confirmed death. I am going to put more detail on that but those are the matters.

CALLINAN J: Right, now, is it your case that a realisation of any one of those matters, so long as some psychiatric illness - - -

MR WALKER: No, I do not put that because it is in the nature of things; when a child gets washed down a stormwater drain out to sea; or when a child is negligently allowed to be alone in a desert and perishes in the desert, in all probability, as their Honours in the Full Court observed, as if it were against our case. They observed that my clients must have realised fairly soon that in the nature of things matters were very grim for their son.

CALLINAN J: I read that passage in Justice Ipp's judgment and I do not know whether I found it very persuasive because hope springs eternal.

MR WALKER: Exactly. Now, your Honours, we are relying upon matters which in another era, in a literary form I will not attempt to emulate, Justice Evatt expatiated on in his famous dissent in Chester, and hope springs eternal indeed, as your Honour Justice Callinan has put, and that does not require psychiatry. The notion that people now simply blandly called "war widows" did not suffer from the hope against hope until the bomber was discovered is an important matter.

CALLINAN J: They talk about denial, and people are in denial until they must ultimately confront something.

MR WALKER: Hope is also rational, as in the example I have given. Not all bomber command people were killed when their planes were crashed; some were taken prisoner. So the idea of forlorn hopes may itself be a matter of hindsight. In our submission, there are enough survival stories, in tabloids or otherwise, for your Honours to know that when one's little boy goes missing in the desert, although it may be, on the balance of probabilities - as the Full Court, with great respect to them, rather blandly or complacently put it - that he is probably dead - that does not follow that there is not worse harrowing, worse mental pain, inflicted by not knowing, and understanding that, rationally, there remains a hope, however slight.

Your Honours, can I go back to the catalogue of matters, which has now been, to a useful extent, anticipated. We have the employment relation, which is critical with respect to the safe system of work to which your Honour the Chief Justice has referred. We have the fact that true and terrible news was imparted to the plaintiffs. It is critical that it is both: true and terrible. We are not talking about a case where a false alarm triggered a disease, we are talking about a case where it was true. We are talking about the fact that the news included first an unexpected disappearance. We are talking about the fact that the disappearance was into country which is described in the pleading as "desert", where the well-known idiom is "perishing in the desert" - - -

McHUGH J: Can I just stop you there. Why are these matters relevant on the issue that we have to decide? I have to say, subject to hearing Mr Jackson, it seems to me that you have a very strong case of a duty of care being owed in these circumstances, but it is a very special case. The question that comes to my mind is whether it is a case for special leave by reason of its very special facts and circumstances. I do not think, at the moment - unless you persuade me otherwise - that all these cases about nervous shock have much to do with this.

MR WALKER: Your Honour, you are not going to hear much in terms of a detailed or interstitial analysis of the case law, foreign or otherwise, in what I wish to do in the time limited to me.

McHUGH J: The reasonable foresight here comes from the very beginning of - almost to the relationship between the parties that - - -

MR WALKER: Yes, your Honour. This is a case about relationships.

McHUGH J: Yes.

MR WALKER: Relationships are founded in facts. They are not founded in what might be called standard or abstract social identities. We have a relationship from fact and that, in our submission, is an orthodox common law approach. The more I argue like that, the more I accept the case appears to be an ordinary one not deserving a special leave, except for the fact that the reasons for which this case were dismissed lifts it out of the ad hoc or one-off case because it was dismissed for reasons of a general rule which does not exist in the way in which it was deployed against us.

We submit it does not exist as a matter of stare decisis. Were we wrong in that, it should not exist and this case, presenting facts which have not been the subject of decision before, is one of the steps - by cautious steps - of which Justice Windeyer spoke in Pusey and of which Chief Justice Gibbs spoke in Jaensch v Coffey.

GLEESON CJ: What is the supposed rule that brought you undone?

MR WALKER: The supposed rule, your Honour, was that unless my clients were more or less with their son as he was lost in the desert - an absurdity, on its face - then they could not recover.

GUMMOW J: Where is that actually said?

MR WALKER: Well, that is my unkind paraphrase, your Honour, but it has to do with the fact that in the reasons of the Full Court it is the geographical remoteness which is the key reason why they failed.

GUMMOW J: Yes, there is a lot of emphasis on them being in New South Wales and the child being in Western Australia.

MR WALKER: That is right, which means that for cases where the very danger is being lonely there cannot be recovery.

McHUGH J: This is almost a contract case.

MR WALKER: Your Honour, that occurred to me, with respect, but there is no contract - what there was - - -

McHUGH J: I know, I know, I know.

MR WALKER: There is a relationship in this case to which I am about to come which has to do with the inquiry and the reassurance, of which your Honours are all well aware, which I accept makes this case different from many, but perhaps not entirely unique bearing in mind what is commonly said to the world, including to the parents, of would-be junior employees by modern corporations about work conditions. In our submission, there may well be analogies beyond this case.

GLEESON CJ: Mr Walker, we will adjourn until 2.00 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the next in the catalogue of legally essential matters arising as questions of fact from this case and leading to the web of relationships upon which we build our asserted duty is that there was, as your Honours know from, perhaps, paragraphs 8(b), (d), (e) and (f) in the assumed facts, there was inquiry made, the assurance given and reliance with respect to the looking after and supervision of this young boy, in an obviously lonely and remote part of Australia, in his job after leaving school as a jackaroo.

On the basis of that, one can say that they are relevant material, for current purposes important facts, that the unexpected disappearance, upon being announced, would bring in its reasonable train fears of his death. It would certainly bring in its train reasonably, as a matter of the defendant's anticipation, the involvement of parents - like rescuers, but unlike most rescuers, not strangers - in the search, which did happen. They visited, participated in, the general area of search.

It culminated in the eventual confirmation, in this case by photograph of something as gruesome as a skeleton, of the feared death. After a length of time, in the Full Court, the elapse of time - some five months - was counted against the existence of the duty for the reasons I have already put and I have put in writing, in our submission, it counts the other way. Add to that, bearing in mind, the imaginings which would be reasonable as to the nature of a death alone or with one other in the desert - add to that the reasonable imaginings any Australian parents would have that the mode of death would be awful.

So we have, in combination, shocking - a word we use advisedly - news, followed by harrowing creating and followed by harrowing uncertainty; involvement in a daunting search with reasonably horrid imaginings of the fate of the boy and ultimately the gruesome confirmation supplied by the photographed skeleton. It is that cumulation upon which we rely for that which ought reasonably to have been anticipated by the defendant.

It is a case, therefore, where, by the mode of reasoning which we submit is the proper one, when the relationships are relevantly analysed, the existence of the duty of care for which we contend appears. It may initially appear hard for us but, ultimately, in our submission, it aids our case that the duty which we seek is one which would render the defendant liable for the foreseeable consequences of bad news being consequences suffered by the very people who should, as a matter of social decent expectation, be the very first to be told it, to be the very first to be told it, perhaps, by an uncomfortable policeman who may not know them at unseasonable or ungodly hours; a policeman who would not know whether they liked euphemism or detested it, or they needed to know the bottom line quickly or needed gradual introduction; whether they were - - -

GUMMOW J: But the breach of duty is in 9. The breach of duty is failure to exercise reasonable care and supervision of the son.

MR WALKER: Yes, it is the safe system of work that the Chief Justice referred to. It is the pleading and assumed fact that your Honour has referred to and the news is, of course, an important part of our case but it is not part of our complaint, it is part of the means by which the completed wrongful act completed a tort.

GUMMOW J: Yes.

MR WALKER: It is exactly the same by which the impulse of charity or altruism that drives the rescuer to run into the burning house is an impulse not castigated as an novus actus breaking a chain of causation but embraced as the means by which the person who negligently sets the house on fire is liable for the rescuer's burns because it is the link between them.

GAUDRON J: What, precisely, was the damage and when was it suffered?

MR WALKER: The damage in this case is mental illness. When it was suffered is necessarily obscure because it is ultimately an evidentiary rather than a pleaded question, your Honour, because I apprehended your Honour is asking me about a relatively fine dating question, was it suffered upon the collapse of Mr Annetts with the initial telephone call or was it suffered at some time later. The pleadings, and thus the assumed facts, do not enable us to be precise.

GAUDRON J: Can I tell you why I ask?

MR WALKER: Yes, your Honour.

GAUDRON J: It seems to me that there is some fourth categorisation involved in looking at torts in terms of the damage suffered.

MR WALKER: Yes, your Honour.

GAUDRON J: And that in a case such as yours it may be sufficient that the damage is emotional anxiety.

MR WALKER: No, we do not put that, your Honour, though I do not put any argument which would foreclose in another case that as a further cautious step.

GAUDRON J: Why not?

MR WALKER: Because we do not have material, either in the case law or in the artificial factual foundation upon which this case is argued, namely, a combination of admitted and assumed facts from a Judicature Act pleading by which I could persuade your Honours that the common law distinction hitherto firmly observed between emotional extremity such as distress, sorrow, alarm or fright, on the one hand, and something pathological, itself a question-begging term, or at least a term of indefinite definition, on the other hand. So far, every case in the field has scorned the notion of recovery for the former on what might be called a slings and arrows reasonableness policy or legal responsibility view - - -

GUMMOW J: Yes, but that depends on what is the field, you see.

MR WALKER: Yes, your Honour. The first thing that we would have to observe is - - -

GUMMOW J: You might not be in that field.

MR WALKER: The first thing that we would have to observe is that our case is one where there is undoubted serious mental illness on the assumed facts, so that - - -

CALLINAN J: But, Mr Walker, just following up Justice Gaudron's question, Justice Ipp found direct perception of an event giving rise to a nervous shock to be necessary.

MR WALKER: Yes, your Honour.

CALLINAN J: Now, I do not know whether that question actually arose or whether it was necessary for his Honour to decide it, having regard to the limited nature of the case at that stage, but assume for present purposes that it was necessary to decide it and assume for present purposes that direct perception is a necessary element, which is what Justice Ipp found, direct perception of what caused nervous shock or psychiatric illness in this case?

MR WALKER: It commenced with the news. I cannot evade that, and I will not. It commenced with what is called in the authorities "mere news", mere information.

CALLINAN J: I know we have touched on this area before, but why could it not be either one or more of a number of the events?

MR WALKER: It is, your Honour.

CALLINAN J: So you put it in the alternative. It is either the combination of all of them or one or more of them, is that right?

MR WALKER: Yes, and it would be an evidentiary question of the trial we should have had, or should have, as to whether some of those matters, in the sequence and cumulation I have talked about, were irrelevant to the aetiology of the disease. One may intuitively doubt that that would be possible.

CALLINAN J: Was it necessary for Justice Ipp to go into that question of direct perception at all?

MR WALKER: Yes, on the false basis that his Honour posed for himself, with respect to him, on the basis of his understanding of the case law; that false basis being - - -

CALLINAN J: That this was an aspect of proximity.

MR WALKER: Yes, that being a good example of proximity being ambiguous to the point of inutility. Geographical propinquity, if your Honour will forgive me, seemed to be essential in his Honour's understanding of the case law - - -

CALLINAN J: He cited - - -

MR WALKER: Depending whether you were talking about sight or sound of the event or aftermath, one way or the other, and leaving aside at the moment the internal self-portrayal in the doctrine once you include aftermath, but leaving that aside, his direct sensory perception rule, so called, comes ultimately from geographical propinquity. You beat the ambulance or the ambulance beats you, but you are eventually there and pretty soon, who knows, you may even hear from Mr Jackson a two-hour rule, but you are there.

In our submission, there is no principled reason why there is a difference between the parents who are there and maybe the only people admitted, perhaps along with the priest, to the casualty department or the ICU and, in this case, where they are the first people that any natural, decent society employer and policeman would contact upon something as serious as disappearance in a desert and, ultimately, death.

KIRBY J: But you cannot have a principle related only to parents. You see, every day things are happening which are shocking and torts are happening and there will be a conundrum around the victim of the tort of people who receive the information.

MR WALKER: May I come almost directly to why, first, with great respect, we accept what your Honour has just said and, second, why there are aspects which happen to be displayed in this case by the parent/child relationship which will no doubt to greater or lesser degree be displayed by other kinds of relationship in the future in other cases.

KIRBY J: But you could not frame a principle in terms of the parent/child relationship.

MR WALKER: Your Honour, I am agreeing with that and I am about to come to the aspects - - -

McHUGH J: I have to say I probably have an approach to this case different from everybody else, certainly from what has gone on in the courts below, but it seems to me that this case is more like an employer/employee case. It is one removed from it. The question is: is a general duty of care owed? It relies on a pre-existing relationship. It has nothing whatever to do at the moment, so far as I can see, with any of the problems that have been discussed in the nervous shock cases.

MR WALKER: I am not trying to dissuade your Honour from that but parent/child is important to this case because it is one of the pre-existing relationships of which the defendant - the apex relationship I am aiming at is the relationship between plaintiff and defendant. That is one of the matters that leads to it.

McHUGH J: Yes, but my point is that if an employer is in breach of its duty to its employee, it does not matter whether or not the employee has a peculiar susceptibility. It does not matter whether there was a sudden shock or not.

MR WALKER: We accept all of that.

McHUGH J: You alleged psychiatric illness here. The question is, was there a duty? You might fail on facts.

MR WALKER: There are three relationships in question. There is the employer/employee, there is the parent/child, there is the inquirer/reassurer - the reliance relationship. They are all antecedent to that which actually can be said, in the mechanistic fashion, to have caused the injury, namely, the sequence of intercourse which commenced with the news, the bad news, but which goes on to include the search, which goes on to include the other matters.

GAUDRON J: Can I go back to my question though? There would have been out-of-pocket expenses in relation to the trip to the west, there may even have been out-of-pocket expenses in making phone calls. I would have thought that if there is a relationship here such as to give rise to a duty of care owed to the parents, it is not on to avoid psychiatric illness.

MR WALKER: Your Honour, we do not contend against what your Honour has put, but mental illness is the one that - - -

GAUDRON J: Yes, but if one is looking at - and I think one is - something outside the ordinary categories that we have hitherto come to recognise, it may be important, perhaps not in this case but in another case, to know when damage was first suffered. It may not simply be psychiatric illness.

MR WALKER: Yes, your Honour. May I take up the combination of the two matters your Honour has put to me and I apologise for being slow on the uptake. The distress which would be natural, non-pathological distress, which would be natural upon being told that your child is lost in the desert which may be very similar to being told that your toddler cannot be located on the beach, will lead to certain things being undertaken in the nature of search. It is a very desiccated way of looking at it but one can see, logically, that search is a way of avoiding the loss, seeking to avoid the loss which would otherwise follow from the grief with, perhaps, pathological consequences of the toddler's drowning or the adolescent perishing in the desert.

On that basis, which is entirely orthodox, namely, damages including costs of seeking to avoid the loss, the out-of-pockets of the numerous trips by these two unfortunate parents to Halls Creek and vicinity could well be within the ambit of proper recovery bearing in mind, again, the ease with which that kind of loss would pass any foreseeability test by an employer in this case. It is not what I am obviously concerned to argue principally but I do not, with great respect, spurn what your Honour has raised. Mental illness is that which is the flagship injury, loss, that is, in this case.

KIRBY J: Normally, employers owe their duty to their employees, not to the parents of their employees.

MR WALKER: No, your Honour, that can no longer be said. Pusey, alone, is a sufficient example of that. Can it possibly matter that Mr Pusey was a co-employee as opposed to a contractor who happened that day to be on the job? This was not, after all, a workmate, in any real sense of the word, that Mr Pusey helped burned out of the shed. It was somebody he did not even know in what is obviously a large company. Can there be any doubt that the duty is not one which required both of them to be co-employees? Can there by any doubt if there had been multiple companies, a corporate group, and Mr Pusey being employed by one company and the unfortunate electricians by another company, the result would have been the same?

So that, yes, your Honour, Pusey is authority for there being a duty owed by an employer which goes beyond just the employee. Your Honour, the reason why there is a duty owed by Australian Stations to Mr and Mrs Annetts in this case then, based upon the essential facts as we have sought to state them and coming from those relevant relationships, is that they were known to Australian Stations as a matter of common social expectation at the time and, as it happens, still now, to have standard or normal attributes as parents of love, hope, empathy, psychic connections with their son, and that they would be caused thereby, likely, intense grief by his negligently caused death.

That is a matter which obviously involves the possibility of going beyond what is called in the authorities and elsewhere, the normal grief reaction. The very notion that people talk about a normal grief reaction posits something else and the idiom, which is old and respectable, of "mad with grief" is something which indicates that, again, no psychiatrist is needed to inform a judge or jury that that may be the seed of mental illness in some people. Therefore, when one adds to that the virtually universal expectation that "next of kin", as they are called, parents of a child that old would be the first to be informed, in plain unadorned terms one expects, of the danger and then the death. In our submission, one has a duty where it is the carrying of the news which heightens rather than reduces the propriety of legal responsibility being sheeted home to Australian Stations.

All of the matters that we have just said, as an attempt to generalise from the nature of being a parent of an employee, in this case, are matters which might transcend the particular relation of parent and child.

We then come to the question of news. Does the notion that this case represents a cautious step by putting together parent and news, as opposed to parent and presence, does that threaten Ultramares consequences? If it does, that is a reason for the Court to hesitate, a legitimate reason. The answer is, surely not. The universe of parents and children is obviously a finite one. We are not talking about some exponential increase of liability - - -

KIRBY J: Well, you say that, but it cannot stop at parent and child. You could have a concept of people who are linked by blood or affection because some parents hate their children and vice versa. Some grandparents love their children, look after them much better than the parents. You have to have a different category and then you have a conundrum around the employee - - -

MR WALKER: Your Honours, that is why I have generalised by using the notion of what from the defendant's point of view which is a critical matter - the critical matter - bearing in mind we are going to impose liability on them for what they have done. We have used the pivotal notion of what would be the matter of common social expectation. Now, that will differ from place to place as well as time to time and, as your Honour quite correctly, with great respect, points out, it will differ from case to case.

McHUGH J: But the relevance of the parent and child seems to me to only go, not so much to the duty or the breach of duty, but to how far the damage might extend. The duty here, on your case, seems to me to really arise out of an assumption of responsibility or undertaking a task.

MR WALKER: Yes, your Honour.

McHUGH J: Historically, the books are full of cases where the duty arises out of control, out of undertaking a task, assuming responsibility, knowledge of the plaintiff's condition, occupation or ownership of property.

MR WALKER: And in this case we have, as it happens, not only undertaking the position of employer of a very young employee in remote conditions but also the prior knowledge of the parent's concern about some of those aspects about which there had been reassurance.

McHUGH J: What I had in mind was a statement that you had received assurances in relation - - -

MR WALKER: Yes, there was the inquiry, the reassurance and the reliance. Now, that is the third relationship.

CALLINAN J: Mr Walker, you might get some support for that in a slightly different context, but in MLC v Evatt Chief Justice Barwick at page 570 uses the expression "bilateral nature of the relationship" and that seems to me to be an apt sort of an expression to cover the special relationships - all three of them perhaps - of the kind you are talking about here.

MR WALKER: Yes, your Honour. In answer to your Honour Justice Kirby there is nothing excessively ad hoc or one-off about - in this case, as I am bound to because I am arguing a case on assumed facts which is a case not a hypothesis about my referring to the parental relationship. We entirely accept what your Honour says, even expressed as a stricture upon the way I am putting the argument, that the aspects of that relationship which emerge upon an attempt modestly to generalise from it will, of course, bring in its train the possibility of relations other than parent and child in other cases, but I am commanded to proffer only step by cautious step and it is sufficient unto my - - -

GLEESON CJ: Yes, but we want to know the direction in which the steps are going.

MR WALKER: It is going, your Honour, in the direction of recognising that it is within the reasonable anticipation of a defendant in a case such as this that a parent of a young employee will be grievously affected by grief upon negligently caused death being, as society requires, notified to them.

GLEESON CJ: But presumably you are setting out to demonstrate that accepting your case does not lead to the conclusion that a newspaper reader or television watcher who read or saw of the death of this boy and was affected in the same way as the parents would be entitled to sue.

MR WALKER: Precisely. I think Judge Posner has given the example of the unnumbered persons who were appalled, disappointed and perhaps traumatised for a long time by the news of President Kennedy's death and your Honour is, with great respect, quite right, I am intent on biting off only what I can chew.

KIRBY J: Yes, but you see, this is the gulf that is between us. Step by cautious step, the advocate wants to win the case, but the judge must test the step by a concept.

MR WALKER: Yes, your Honour.

KIRBY J: Somewhere between the newspaper readers of President Kennedy's assassination and parents, who will virtually always have the most loving and intimate relationship, is a cut-off point; but we have to think and test your proposition by what is that cut-off point and how does one express it.

MR WALKER: The aspects I have offered this Court about what is to be reasonably anticipated by the defendant as a matter of common social expectation about the parent and child in this case, the aspects I have sought to generalise from that would exclude the Chief Justice's example of newspaper readers or television viewers because it would not, with respect, be correct to say that attributing love, hopes, empathy, psychic connection between the audience, the readership and President Kennedy would lead to the causation of intense grief of a kind that carries the reasonably anticipated possibility of mental illness. That does not mean it might not happen, but that comes at the second stage: is it negligent to broadcast something knowing that it contains appalling news? Practically every night there is appalling news. Is that negligent because somewhere people are being desensitised or being traumatised, which seem to be opposite results, perhaps equally damaging, in a way which may sound in both economic or social cost to themselves? In our respectful submission, no, because it is simply not reasonably to be anticipated that there would be that idiosyncratic effect, by contrast, the special link between parent and child which is biological, social and as current today as it has ever been.

HAYNE J: There is a risk of overlooking the importance of the history identified by Justice Windeyer in Pusey, particularly at 404, where his Honour points out that originally the rule was absolute, recover only for bodily injury, to which there was an exception in favour of close relatives. Then the close relatives exception was seen as a limiting rule - - -

MR WALKER: As being unprincipled because the relative in vicinity - yes, your Honour, yes.

HAYNE J: Yes.

MR WALKER: There has been an incremental approach. Some of the increments may appear quite large. The increment that followed Coultas, for example, is obviously enormous, it is a Rubicon. But they are nonetheless step by step. Cautious is just a self-regarding epithet by me, your Honour. But, with respect, the fact that the case law has moved, the fact that all the judges who have looked at this area, particularly Lord Wright in Bourhill v Young observe that the matter develops and in particular the way in which by the combination of his judgment in Federal Broom v Semlitch and Pusey, Justice Windeyer warned about the need to have regard to medical, psychological and even philosophic rethinking of the mind/body matter in this area is all a warning that one should not, with respect, be over-ready to generalise to what might be called an ultimate degree every time a new step is contemplated. In my submission, the proper technique for me to urge upon your Honours, whether or not your Honours find it attractive, is to ask whether the present case fits within the present body of principle and I stress "principle" as opposed to supposed stare decisis.

HAYNE J: Again, it may be, as Justice Windeyer points out, that those who are relatives of a person who is a neighbour in the legal sense may themselves be a neighbour and so too the rescuer.

MR WALKER: In fact his Honour says that directly.

HAYNE J: His Honour speaks in terms of "maybe".

MR WALKER: He says there is a duty. Of course, he finds a duty there, as his Honour recognises, as your Honour points out, the duty to rescuers. We are a tripartite case. We are a case that can and should be analysed as plaintiff/defendant/victim and, pace Justice Kirby, plaintiff/parent, defendant/employer, victim/employee/child. There will no doubt be other identities and positions that ought to be inserted in appropriate cases.

GUMMOW J: That decision of Chief Justice Posner is odd too really because - that is Kuehn v Children's Hospital, 119 Fed 3d 1296 where he refers to President Kennedy at 1298 - that is all about parents who enrolled their child with a bone marrow problem and the defendant hospital.

MR WALKER: Yes, it turns on particular facts. The child was no worse off apart from transient pain, as his Honour held it.

GUMMOW J: Yes, but the hospital was negligent in not sending him off at the wrong - - -

MR WALKER: The hospital was negligent because the first procedure was a total muck-up.

GUMMOW J: Yes. The parents seem to have had a contract with the hospital.

MR WALKER: Yes, a prior relation, one would have thought.

GUMMOW J: I would have thought, but anyhow - - -

MR WALKER: Your Honours, the second thing to say about the news which is significant for our case is that there is nothing whatever about the fact that it is news rather than seeing them or hearing them perish in the desert that contradicts the medical plausibility of their claimed injury. Grief need not be imparted by seeing something happen, as wartime experience alone will tell us. Therefore, the fact that there is not anything other than initially news, albeit later we have involvement at Halls Creek and a photograph of a skeleton, does not attenuate, let alone contradict, the existence of a duty not to have caused the death negligently in the first place - that is, the duty to have a safe system of work and supervision of such a junior employee.

It is for those reasons that the dictum at 125 CLR 407, to which attention has already been directed in the previous hearing, either does not prevent this case because that dictum does not involve the negligent act or omission with respect to a victim - it simply talks about bringing about bad news which, as is well known, as your Honour the Chief Justice observed just before the break, is something that all of us, including your Honours, do without any negligence, perhaps daily, certainly in the law. Either the dictum properly interpreted does not include the case of negligence or this is a case of a kind quite different from what was before his Honour and a kind which ought not to be taken as covered by an obiter by a judge who was very careful in that very passage to warn against - "guard against" is his expression - being taken to have decided one way or the other a certain matter.

It is a weighty obiter but, in our submission, properly interpreted, it does not involve what is clearly, from the nature of his Honour's decision in that case, to him the acceptable duty of care owed to the person who goes to tend an injured employee. Whether learning of matters should be a disqualifying factor which, we understand, is put against us, needs to be weighed as well and measured against the actual facts in the famous cases. In Jaensch v Coffey it is not seriously to be suggested that the unfortunate wife knew of the injury to the liver or the kidney, the internal hidden injuries, by other than being informed of that by the doctors. It would be absurd to suggest otherwise. The mixture of sources of her emotional distress which became illness, namely cognitive and sensory culminating in emotional, was not enough to disqualify her in that case.

In our submission it demonstrates that if emotion can be caused by a mixture of cognitive and sensory, and in this case is caused initially by cognitive alone, the idea that that ought to be a reason not to impose a duty of care needs to be examined carefully, unless there are Ultramares consequences, which there clearly are not, it would not count against it.

GLEESON CJ: How does your argument stand with the decision of the House of Lords in Alcock?

MR WALKER: It does not stand on all fours, your Honour.

GLEESON CJ: We would have to say that was wrong, would we not, in order to accept your argument?

MR WALKER: Yes, your Honour.

GLEESON CJ: Indeed, when Lord Hoffmann came to Frost v Chief Constable of South Yorkshire, the reason he said the policeman could not recover was that the parents of the children in Alcock could not recover.

MR WALKER: Yes. There are reasons why a policeman might not be able to recover which, in our submission, go far beyond that - - -

GLEESON CJ: In a sense, the House of Lords has not just followed Alcock, it has built a further step upon Alcock.

MR WALKER: Yes. The mistake, in my submission, is to treat cases such as policemen, professional rescuers if you like, as being on all fours with cases such as parents who are involuntary in their involvement - - -

GLEESON CJ: But in any event, you invite us to say that the decision in Alcock was wrong.

MR WALKER: Yes.

GUMMOW J: Alcock is not a case of an interior relationship, is it?

MR WALKER: No.

McHUGH J: I do not know why you have to say Alcock is wrong.

MR WALKER: In terms of - - -

GLEESON CJ: The plaintiff had to show propinquity in time and space to the accident or its immediate aftermath.

MR WALKER: That is what I say is wrong. For the parent and news, which is my case, parent and news. That is the increment I want to take.

GLEESON CJ: If you look at the actual outcome, the actual decision in Alcock was that some people were entitled to win and other people were not entitled to win.

MR WALKER: By a criterion of discrimination which we - - -

GLEESON CJ: Of propinquity. The actual decision in Alcock was that the difference between the parents who were entitled to recover and the parents who were not entitled to recover, was whether they were present or whether they only saw it on TV.

MR WALKER: Quite so, your Honour. That we do challenge.

McHUGH J: I do not know why though, because your case has nothing whatever to do, it seems to me, with the Alcock-type situation. I know you keep stressing this parent/child relationship, but your duty arises out of an undertaking and entrusting with care.

MR WALKER: Your Honour, I do not contend against what your Honour is putting to me at all.

McHUGH J: If, for example, Waverley Council had been looking after Mrs Chester's child and it had been negligent in the way it was, it seems to me it would not have mattered two hoots how Mrs Chester found out. They had a duty to take care of the child, a duty to her to safeguard the child and to safeguard her from psychiatric illness, or duty to her to look after the child, save the child from any harm. In those circumstances, why is it not just a straight out case of breach of duty?

MR WALKER: It is, your Honour, that is why it should have been allowed to go to trial without it being thought there was a general rule which does involve what the Chief Justice has put to me from Alcock, namely, a propinquity bar which stopped it.

GUMMOW J: Your complaint is that Justice Ipp fixed on that bit of Alcock, and you dispute that?

MR WALKER: Yes, and he interpreted Justice Windeyer's dictum, understandably, with great respect - we do not criticise that - in a way which we do contest.

GUMMOW J: You, nevertheless, completely outflank Alcock, do you not?

MR WALKER: Yes.

GUMMOW J: What about W v Essex County Council, the more recent one about the child being fostered out and there is an assurance by the authority that the child is okay and it busily sets about assaulting the children of the foster parents. That would be within your range, would it not?

MR WALKER: Easily.

GUMMOW J: What about Foster? Why is that not a master and servant case, assuming the relation of police authority and policeman to be - - -

MR WALKER: That may be a large assumption. It depends upon statutes. Your Honour, we would wish to reserve the question - I will answer your Honour's question but express a misgiving at the outset as to people whose jobs involve risk in danger. It is not only the military, perhaps, that might require a special common law recognition of their difference. I am afraid to say it must be said also of policemen and firemen.

GUMMOW J: Yes.

GLEESON CJ: Is the way you outflank Alcock by pointing to the combination of the circumstances of the assurance and the employer of minor relationship?

MR WALKER: Yes. Another way of putting it is, and in deference to what Justice Kirby has said, parent is not a talisman. It does not mean you win because you have suffered mental illness. There will need to be other matters.

GLEESON CJ: Even if you, on this case, can outflank Alcock, it might be difficult for us to avoid saying something about propinquity.

MR WALKER: In my respectful submission, your Honours need to in order to - - -

GUMMOW J: We have to to explain why Justice Ipp, on your theory, was wrong.

MR WALKER: In order to expose and expunge the error in the Full Court.

GUMMOW J: That is your special leave point in a way.

MR WALKER: I was about to say which is why we need - - -

McHUGH J: That is because otherwise it is - - -

MR WALKER: Which is why we need special leave, your Honour.

McHUGH J: It is a very special case.

MR WALKER: A case which should have won, on its facts, by orthodox principle, was prevented by a fallacious general rule, in our submission, given the state of the authorities concerning what that fallacy sprang from, that is the special leave point.

GAUDRON J: In a way, again, it seems to me this is looking at things the wrong way. Physical propinquity, propinquity in time and space, with relationship to disasters having a physical cause but resulting in nervous shock, to use that expression, may well - well, I would assume, does give rise to a relationship.

MR WALKER: Yes, your Honour.

GAUDRON J: It is a positive way of looking at it rather than the negative way. The error, it seems to me, if you are right, is to say that is an exhaustive rule. It is simply a rule and there may be other relationships brought into play.

MR WALKER: Yes, your Honour. The irony of taking something which would contribute to the existence of a duty in another case as being a requirement of the duty in this case.

GAUDRON J: Yes.

MR WALKER: Your Honours, the only other things I want to say about the so-called direct sensory perception test, apart from asserting that it does not exist, is that other forms of locution could be adopted. Justice Evatt in Chester at page 35 of the report uses the expression "alarm and shock". The notion that one cannot get alarm and shock by the telephone news of your son's disappearance is, in our submission, to be dismissed simply as a matter of ordinary experience and ordinary English. Then one takes the particulars of this case, namely, that that very matter among the constellation of concerns that the mother rang up the station manager about beforehand, something that would result in a lonely death.

That is the very matter which is now said against us to form a subclass of non-compensable cases. Now, that makes, in our submission, no sense whatever, especially when it is a circumstance that has been made known by that prior dealing and especially when it is in the nature of that danger that there cannot be propinquity to it. Justice Evatt refers to that at page 35 in Chester when he gives the example of the child lost at sea. It would not only be children lost at sea, no doubt fishermen in a negligently defective fishing boat would be in the same case.

In our submission, there cannot be, as a matter of principle - it does not sound like a principle; it does not look like a principle - that one would distinguish according to whether people in the nature of their death died alone or not. What about people whose bodies are utterly annihilated by forms of negligently induced death. Can it seriously be suggested that that, which all the horrible imaginings that that might reasonably provoke in a person, without having to brood, as I think your Honour Justice McHugh was capturing from Chief Justice Jordan in Chester 38 SR in the Full Court in the Supreme Court, unnecessarily, what about the person whose beloved one has died a death that utterly destroyed their body in horrible forms?

When one looks at what Chief Justice Jordan says in the Full Court your Honours will find the reference to "mangled bodies" and the question to be asked nowadays is, "Why would it only be mangled bodies that might reasonably be within the anticipation of a defendant as likely to trigger the grief and upset that might lead to illness? What about the entirely disappeared body?"

McHUGH J: Mr Walker, what are we to do with paragraph 9B of the statement of claim? It is not one of the paragraphs referred to in the issues on page 96 and yet it in terms alleges that it was at all material times reasonably foreseeable that in the event of death, the child, et cetera.

MR WALKER: I am not going to ask your Honours to do anything with it.

McHUGH J: We cannot because it is not referred to.

MR WALKER: That is right. I am bound by the order at 96. Furthermore, your Honours will know in the Full Court there was considerable textural and conceptual work done by Justice Ipp to unwind, in particular 8(d).

McHUGH J: On paragraph 8(d), yes.

MR WALKER: At the moment we make no comment about that except to say this. His Honour should have proceeded on the basis of that which was assumed and admitted but his Honour has this in favour of the approach taken in that passage, namely, that there was an argument about whether things were reasonably foreseeable. In our submission, it is the facts which are assumed and admitted, which are the only ones I have talked about, which culminate, as your Honours appreciate, in grief and likelihoods from that which rendered that argument entirely moot.

Of course it is reasonably foreseeable that if you negligently cause the death of a young boy his mother and father will be grief-stricken. It only requires one further step, can grief - the intense grief of the parent for a young child - can that lead to mental illness? No one needs a psychiatrist to be able to answer that "yes".

Your Honours, so as to allay the concerns of my learned friend, may I make it clear that I am now stealing time from my allotted reply so that I may finish two points before my learned friend answers.

McHUGH J: Yes, he is suffering from nervous shock, I think.

MR WALKER: In relation to sudden shock, could I offer these possibilities? The expression is an old-fashioned one, perhaps none the worse for that, but perhaps it nowadays always needs to go out in "public". "Neurasthenia" is another term that can be found from more or less the same era. None of the labels matter, we are talking about what is presently called "psychiatric or mental illness". No doubt, in 20 years, that too will be regarded as quaint and old-fashioned.

KIRBY J: What was neurasthenia?

MR WALKER: Neurasthenia is mental illness, your Honour.

McHUGH J: You used to see it a lot in the workers' compensation reports in New South Wales, in particular.

MR WALKER: Yes. Neurasthenia - it is a 19th century coinage; it was particularly used and became voguish, and I do not mean that disrespectfully of the practitioners, when "shell shock" was first identified - - -

CALLINAN J: First world war - Ms Barker talks about it - - -

GLEESON CJ: It is a matter of philology. It seems to be related to what they used to call "nerves".

MR WALKER: Yes, and nervous breakdown is now perhaps old-fashioned, but still colloquial expression, coming from exactly the same etymology, your Honour. Now, "shell shock", the same word "shock" appears there. Who is it now who could seriously say that a man did not have shell shock because he could not talk about artillery, he could not talk about a particular death or killing? Who would now deny that shell shock is an inaccurate but handy and graphic description of the mental illness caused by gradual cumulative onset of the horrors of trench warfare?

The idea that there was a suddenness required, either as to the initial phenomenon traceable in the history from outside, the outside influence, or in the onset of the pathology later diagnosed, would be rejected by people thinking simply calmly about World War I shell shock. Why should the word "shock" convey the suddenness which Justice Brennan repeatedly inserts, undoubtedly as a prescription, in his judgment in Jaensch? It is not ratio in Jaensch for the reasons pointed out by the reading of Jaensch offered in our written submissions.

It has become influential but, with respect, not in this Court, and there is nothing in that judgment, in our submission, which would persuade your Honours, it not being ratio, that it ought now to be followed. It defies commonsense, not just medical science, that the only mental injuries that are compensable are those that start with the metaphorical clap of thunder and become, as it were, injury immediately. Why would it be so for mental injury where we are so used to the poisons of industrial society gradually, by tiny increment, accumulating over a long period to cause physical injury which is compensable?

Your Honours, we would say this also about sudden shock. Bear in mind that these parents were first told about disappearance in the desert. It is in the nature, known to us from literature as well as ordinary life, of the uncertainty thus caused, the reasonable foreboding of the worst, the continued nurturing of hope, though it not be the most likely outcome, but it would not be less likely actually to cause mental illness, and that is the answer to the entirely legitimate concern that Judge Posner calls "phoney cases"; that Dean Pound called "impostures", that, together with the adversarial system.

We have again the references by Justice Evatt in Chester's Case at 35. In 44, in his proposition II(b) in Chester's Case Justice Evatt, your Honours will recall, specifically includes involvement in a search. It is in the nature of a search for somebody lost at sea, lost in a park, lost in a bush, lost in the desert, but it is not necessarily going to be short and sharp. It is also, as a matter of ordinary human experience, likely that the longer it goes it does not follow that any post-traumatic stress syndrome or the like will be less likely to ensue. A protracted search is not self-evidently one which will cause less impact in terms of a possible later illness. If anything, the reverse is the case.

Finally, can I come to what we wanted to say about the normal fortitude rule so-called. As it is truly expressed in the authorities in this Court and in this country we, with great respect, are content with it. That is our primary argument. It does not appear quite like that in our written submission. That is because, properly understood, the statement which has been given that grandiloquent title, the normal fortitude rule, is really only a question of foreseeability at the point of answering the question as to breach, that is negligence. In particular, we embrace and adopt the approach taken by Justice Windeyer in Pusey 125 CLR 405 to 406. I do not have time to dwell upon it, but your Honours will not be further assisted by my reading aloud a passage with which you are already well familiar.

May I then finally offer a further answer to those that your Honour the Chief Justice received yesterday when you asked about the provenance of that so-called rule, because my answer to that justifies what we say about its true character as nothing other than foreseeability as that is deployed still at the second stage question, "Has there been a breach or negligence?". Your Honours will know that in Pusey 125 CLR at 405 Justice Windeyer attributes its origin to Lord Wright in Bourhill v Young. I hesitate even to think Homer nodded. However, there are antecedents before that.

May I simply give your Honours references in deference to the time. In Bourhill v Young [1943] AC at 109 to 110 his Lordship does indeed talk about, in a passage that your Honours have already had drawn to attention, the normal standard of susceptibility. His Lordship on the same page, 110, seeks to illustrate what he accepts is an indefinite matter by reference to a decision with which he disagrees, namely Owens v Liverpool Corporation [1939] 1 KB 394. I handed up to your Honours - and in particular, commend to your Honours the extraordinary finding of fact whereby these attenders at a wedding were held by the trial judge, upheld as a matter of fact, notwithstanding some scepticism, on appeal. At 400 of the report Lord Justice MacKinnon speculates:

It may be that the plaintiffs are of that class which is peculiarly susceptible to the luxury of woe at a funeral so as to be disastrously disturbed by any untoward accident to the trappings of mourning.

Lord Wright thought that decision went beyond the bounds. We would respectfully submit that must be so. It is an illustration - the notion of the tipped over coffin and the tram accident and the hearse - it is an illustration that the good sense that Lord Wright talked about, and Justices Brennan and Deane talk about, is one that ought still to be relied upon, although in that case one could not count on the appeal judges.

Your Honours, in Chester 62 CLR Chief Justice Latham speaks overtly in terms of foreseeability at 10; Justice Rich talks about reasonable contemplation at 11; Justice Starke about the range of human experience and foreseeability at 13 to 14. In the Full Court of the Supreme Court in Chester 38 SR(NSW) 607 Chief Justice Jordan talked in the parenthesis in that passage about the damage being such as contemplated as likely to result - foreseeability. Bunyan v Jordan [1937] HCA 5; 57 CLR 1 was cited both in the Supreme Court and the High Court in Chester. At 14 the Chief Justice refers to a reasonable expectation and uses the expression "peculiar susceptibility"; at 15, Justice Rich, and at 17, Justice Dixon, talk about normal persons, as does Justice McTiernan at 8 talk about the there plaintiff's "delicate constitution".

Add that together with Dean Pound in (1915) 28 Harv L Rev 362, in a passage which really starts at 360, with his reference at the top of 362 to "reasonable foreseeability" of the outcome and, in our submission, one can see that the normal fortitude rule which ought to attract the misgivings, as Justice Windeyer calls it, expressed by him in his reasons ought now to be seen as nothing other than for this particular area of injury, which has attracted perhaps disproportionate attention to questions of doctrine in tort, as nothing other than a matter of foreseeability well and truly satisfied in this case. May it please your Honours.

GLEESON CJ: Thank you, Mr Walker. Yes, Mr Jackson.

MR JACKSON: As your Honours will see from the question which is set out at page 96 of the application book between lines 35 and 40, the case was one which was based in tort and on nothing else. Your Honours have suggested some other possibilities earlier today but the case was one based in tort and your Honours will see that it was based, as appears between lines 35 and 40, on the question whether the facts gave rise:

to an independent tortious duty of care owed . . . to exercise reasonable care and skill to avoid causing them psychiatric injury?

Could I also say two other things about it. The first is that your Honour Justice Gaudron adverted to the possibility of there being other expenses, for example, but your Honours will see if one goes to the pleading and in particular to the losses that are referred to commencing at page 6, paragraph 10 and going through thereafter to page 8, there is no suggestion of anything other than something consequential upon psychiatric damage.

The other feature is this. If I could take your Honours to page 139, your Honours will see at the top of the page that after some discussion of what was actually being alleged and the difficulties there had been in identifying that, commencing at about line 12 on that page Justice Ipp said - and it is a passage that goes through to about line 16 and in particular towards the end of it, where he said:

Counsel's entire argument was predicated upon the psychiatric injury being caused by the appellants learning of the death of James, not by what occurred earlier.

Now, your Honours, I will not go through what precedes that, except to say that at page 137, about line 23, his Honour - - -

McHUGH J: What paragraph, please, Mr Jackson? I am reading from the report.

MR JACKSON: I am sorry, your Honour, I was first referring to paragraph 45 and in particular to the last 10 lines or so of paragraph 45.

McHUGH J: Yes, I heard.

MR JACKSON: I was going then, your Honours, back to paragraph 40 and at paragraph 40 your Honours will see that his Honour referred to the fact that it had not been assumed that there was an admission that we:

ought to have known of the foreseeable risk of psychiatric injury.

So when one goes down to paragraph 46 of the reasons, one sees that the judges were dealing with the case on the basis that what was being argued before them was that the psychiatric injury was caused by their learning of the death of the son, not by what had occurred earlier. In paragraph 46 the way in which his Honour puts it is really to try to assume all the possibilities in the pleading and deal with the case as best they could. So that, your Honours, the case was one where there was a pleading which, as both judgments in the Full Court below illustrate, in our submission, was one which was regarded as unsatisfactory, not very clearly putting forward the case that was being made. One does not see any mention at all of a case being advanced, for example, on the basis of there being the obligation that has been referred to in the course of argument, the undertaking given to look after the boy, although the pleading is referred to. Your Honours, one does not see that aspect of the case being dealt with at all, and that is why, in our submission, one sees the Full Court dealing with the case on the simple basis on which it was put forward to it.

Now, your Honours, could I go from that, then, to this: one does see that this is a case where, in our submission, sad cases of course lead to circumstances where, to use the modern expression, one sees endeavours to, in effect, push the envelope. But, your Honours, this is a case where, in our submission, it fell directly within the ordinary sets of circumstances giving rise to claims for psychiatric injury.

McHUGH J: But, why, Mr Jackson? This is a case of a pre-existing relationship. In the cases to which you refer and which you rely on, the duty, in effect, arises by reason of the actual damage, but here there is a relationship. Why, in this particular case, could not the appellant have recovered the cost of travel looking for the child, even if they had not suffered any nervous shock? There was an existing duty and a breach of it, on one view. That is what I cannot understand about this case. It just seems to me to have gone off the rails.

MR JACKSON: Well, your Honour, could I say in relation to that, if your Honour is right - if I could deal with the last thing your Honour said first - then the case is simply one where one has a situation where the case on behalf of the present applicants was one that was conducted in a particular way. The point that occurs to the Court is a point in which one sees not a hint in the reasons for judgment below. In those circumstances, it is not a case where, with respect, the Court should, of its own motion, intervene for the first time.

HAYNE J: Do we not see the proposition that physical propinquity may give rise to a relationship sufficient to found a duty, inverted into the proposition which may not be right that absence of physical propinquity denies duty?

MR JACKSON: The way in which your Honour puts it involves, if I may so say with respect, a judgment involving the term "inversion", as it were. What I would seek to say about it is this. If one assumes everything in favour of the applicants, so that you have a situation where one says there is some duty brought about by the assumed undertaking, then in those circumstances what one has is a duty to take care of the son - a duty to the parents to take care of the son - so that losses may emerge from that.

The question is whether the duty is a duty in looking after the son not to cause to psychiatric damage to the parents. In relation to that question one arrives, in the end, at a question which is really no different, in our submission, from that which obtains in deciding whether the duty of care is owed to any person who suffered psychiatric damage by reason of a relationship, in one fashion or another, to the circumstances of some negligently caused accident.

McHUGH J: Not necessarily, Mr Jackson, because it may not necessarily, in such a case as I put to you, have all the baggage about aftermath and the nature of a susceptible plaintiff, requirement of sudden shock, and so on, because you are in a different area. Take the ordinary case of a childminder, kindergarten, looking after children. Surely, in those circumstances, if there is a breach of the duty owed to the parents in relation to the care of the child, a case does not depend upon sudden shock or being within the area when the injury the occurs. It just seems to excise from the ordinary law of negligence a special category and says damage determines the nature of liability, and that is not right. In the area of duty one looks, not really at damage, but at the nature of the conduct involved.

MR JACKSON: May I say in relation to that, if one took the instance that your Honour has given, a situation which would emerge would be that if there were some injury suffered by the child, for example, then the parents would have a right to sue the kindergarten in respect of the losses that the child had suffered - by losses, damage caused to the child, losses they suffered by reason of that occurring. Your Honour, that would be something where they would have the ability to sue, in effect, in their own right, leave aside the contractual aspect of it, rather than suing on behalf of the child. No doubt they could sue on behalf of the child as well.

Your Honour, if one is looking to see the ambit of the duty of care in relation to them one does come to an area where, assuming all else, there still is the difficulty that is brought about, in our submission, by the fact that many things such as distress are not in the ordinary course of events compensable.

McHUGH J: That is another matter but if the occupier of premises invites you onto his premises and by reason of the negligence of the landlord or the occupier you suffer nervous shock, you have a straight-out cause of action if there is a breach of duty. You do not have to be concerned about susceptibility.

MR JACKSON: Your Honour, one is looking to see whether it is reasonably foreseeable. What I was saying to your Honour a moment ago was that one does have a situation where there are conditions of the mind, such as distress, if I could use that, which are not compensable and there those that are. Your Honour, what one is looking to see is whether the duty of care is one which extends to those which are compensable. Could I say in relation to that that some of your Honours said this is a case where it was obviously foreseeable and so on that there was a possibility of damage of this kind.

What we would seek to say, your Honours, is that one does start from a position where some classes of mental distress are, and some are not, compensable and if one takes the simplest case, a parent receives nothing for distress on the death of a child - I am assuming negligently caused, of course - but may do so if the distress becomes a psychiatric condition. One can see that adverted to in a passage in White v Chief Constable of South Yorkshire [1992] 2 AC per Lord Steyn at page 491D, the passage commencing "In an ideal world", which goes through to the end of that paragraph.

One can see also in a decision in the New South Wales Court of Appeal quite recently, Gifford v Strang Patrick Stevedoring Pty Ltd [2001] NSWCA 175. Your Honours should have a copy of that.

KIRBY J: What does that stand for?

MR JACKSON: I am sorry, I was going to refer to paragraph 45 along the same lines as the passage to which I just referred. Your Honours, one sees Justice Hodgson saying:

It is not possible to compensate everyone who is injured, and the law must draw lines.

I will not read out the paragraph but your Honours will see in paragraph 45 he refers to the fact that one does have, in effect, mental conditions not compensable resulting from various events and some that are.

McHUGH J: I am sorry, what is the case again?

MR JACKSON: Gifford v Strang Patrick Stevedoring.

McHUGH J: Yes, I am sorry. It is not your fault, Mr Jackson.

MR JACKSON: I am sorry, your Honour. I thought we had given your Honours copies of this today. Could I simply refer to paragraph 45 without trying to read it out. Could I also, finally on the same topic, your Honours, refer to Lord Oliver in Alcock [1992] 1 AC 416G where his Lordship said:

Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation.

Could I pause to say, your Honours, two things? One, a truism, of course, death is part of life. That may occur - - -

GUMMOW J: It is the only certainty in life.

MR JACKSON: Yes, I know, your Honour, and the other thing about it is that if one turns to the law, it is by statute, not the common law, that causes of action originally arose in respect of the death of persons. Your Honours, if I could just go on, back to that passage at page 416:

It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point.

Your Honours will see the next sentence:

In my opinion, the necessary proximity cannot be said to exist -

and your Honours will see what his Lordship there said.

GLEESON CJ: Now, that context, he was speaking, as I would understand it, of a claim for damages for psychiatric injury by someone who had no other claim for damages and who had no other basis for alleging a duty of care. If he had been talking, for example, about a physically injured employee of an employer who also suffered psychiatric injury, that qualification would not have been relevant, would it?

MR JACKSON: Well, your Honour, these cases are, of course, talking about people who are suffering from psychiatric injury, simpliciter, as it were, without there being - - -

GLEESON CJ: Exactly. There is something very familiar here. It is like the problems that arise in relation to so-called "pure economic loss" as distinct from "parasitic" claims, and all these "nervous shock" cases with their controlled mechanisms that we have been discussing over the last day and a half are, are they not, cases where there was no other or pre-existing relationship between the parties or no other claim for damages to which this was attached?

MR JACKSON: Your Honour, I think the latter is right - the former, I think, is right.

GLEESON CJ: And the imperative to find control mechanisms arises, does it not, when you are in a context where the only relevant relationship between the parties is that one has suffered psychiatric harm as a consequence of the conduct of the other?

MR JACKSON: Well, your Honour, one is looking to see, of course, at least relevantly for present purposes, what are the circumstances that give rise to a duty of care, and a duty of care, in our submission, in relation to psychiatric injury where psychiatric injury is "the" injury. Now, it may well be, your Honour, that one says, perhaps by some analogy to the "egg shell skull" case, perhaps otherwise - perhaps for some other reason - that if what you have is some other more tangible, as it were, damage caused, then one simply says this is part of the damage. But where the only damage that is sought is in respect of psychiatric injury, there being nothing else, it is necessary to see whether the ambit of the duty that is created by whatever relationship there is, is a duty that covers that type of damage.

GLEESON CJ: But the need for these controls does not exist, does it, or does not exist to the same extent in a context where there is another relationship that creates a duty?

MR JACKSON: Your Honour, that would be so if the nature of the duty or the nature of the relationship was one that itself gives rise to some identifiable basis for saying the ambit of the duty is such and it provides some control mechanism in a sense. It is not a word I would particularly pick up, your Honour - a control mechanism of its own. If one looks at the Esanda v Peat Marwick Case and cases of that kind, the limitation comes about because of the relationship and the limitation on the damages can be recovered. So to say "relationship" takes one some distance perhaps but it really says nothing unless one looks at the nature of the relationship and sees whether in respect of the type of thing being sued for it is within the ambit of the duty of care brought about by - - -

GLEESON CJ: But each of us in his or her own way goes through life shocking other people from time to time, some to a greater extent than others, and causing economic harm to other people directly or indirectly, some to a greater extent than others. There is obviously a need in the interests of our own liberty of action to control the circumstances in which somebody can put their hands up and say, "Your carelessness has caused me some harm; therefore I can sue you". But when you have, as in the area of inflicting economic harm or in this area perhaps, another relationship that gives rise to a duty, you do not need to be so concerned, do you, about that problem?

MR JACKSON: Your Honour, one may. Your Honour says it gives rise to a duty, but the question is one of the ambit of the duty and a duty to do or not to do what? It may be that in some cases it is possible to say the nature of the duty is such that this type of loss is something that is plainly the subject of the duty not to cause it. On the other hand, if one is looking at another type of loss, the result may well be not provided simply by saying there is a duty.

McHUGH J: But the problem I have - and I am afraid I have always had it about nervous shock - is that the law has assimilated it with the nominate torts. Torts like assault, trespass, defamation, nuisance, false imprisonment and so on protect interests which are defined and that is why you have to have the notion of duty in the law of negligence because the tort itself does not define what the interest is which is protected. So what the law does is it says you must have a duty and it defines it, it controls the area of legal responsibility by reference to the nature of the interest infringed and the type of conduct complained of. It is those two things, nature of interest and type of conduct complained of, that create the duty across the law of negligence in every field except nervous shock and, now in recent years, economic loss.

MR JACKSON: Your Honour, I suppose negligence, in a sense, is a genus with a number of species and if they were all the same, they would not be species. The situation that obtains, in our submission, is that one sees negligence in the sense of being breach of a duty of care as being, if one likes, the unifying factor that allows one to put them together. So far as psychiatric harm is concerned, one is looking at something which can be caused by an intentional tort or can be caused by negligence. Your Honours, so far as each of them is concerned it is necessary, really, to look, in our submission, at the type of damage as a starting point because the type of damage is different from - - -

McHUGH J: I know it is - and this area has been picked out - but just take a simple landlord or occupier of premises, an entrant type of case. You do not worry about what type of damage. There is a duty to take reasonable care to protect the plaintiff or the entrant and whether the entrant suffers economic loss or physical loss or psychiatric detriment does not matter. You get compensated for it.

MR JACKSON: Your Honour, if I may so, with respect, leaving aside fanciful things, the circumstances in which by a breach of that duty one might suffer psychiatric damage are possible but relatively restrictive.

McHUGH J: They are often accompanied by physical injury and therefore it is all part of what you get damage for, even independently. The law does not say - sorry, I am - - -

MR JACKSON: Your Honour, could I say if one looked at a circumstance where a landlord's conduct caused psychiatric damage, in determining whether the landlord's duty to the person, who was, say, the tenant, had brought that about, one would have to look to see whether the landlord's conduct was something that one might reasonably foresee would bring about that type of damage. Your Honour, I am not talking about something where there is a hole in the floor and a person falls down and injures their head, but to some conduct which would bring about only psychological damage.

McHUGH J: There is no doubt you are right, Mr Jackson, but it is on the issue of breach of the duty. The duty of care is there and you might say there is no breach of the duty in the particular circumstances because this particular damage was not reasonably foreseeable, therefore, there was no duty to avoid it. But here we are dealing with a straight out case of duty.

MR JACKSON: I am sorry, your Honour, with respect, the way in which your Honour just put it then said it was not reasonably foreseeable, therefore, no breach of duty, and it is speaking about the psychiatric injury. Your Honour, the question that is asked in this case is whether there was a duty not to cause psychiatric injury. That is the question.

McHUGH J: Is it? Is it in terms like that?

MR JACKSON: Yes, your Honour. Your Honour will see it at page 96.

McHUGH J: Page 96, "to exercise reasonable care and skill to avoid causing them psychiatric injury", yes.

MR JACKSON: Your Honour, the point I am seeking to make in, I am afraid, a rather halting way, is that if one took, for example, a case of an established duty, what one is looking to see is whether that duty extends to taking reasonable care to prevent that kind of injury.

Could I just say, your Honours, now I have spent some time so far on it, the fact that distressed emotional states, on the one hand, exist and are not compensable but psychiatric states are, does reflect, in our submission, in what the law treats as reasonably foreseeable. In that regard, in our submission, Chief Justice Malcolm was right in taking the view which he took at paragraph 7 at page 128, and it is about two-thirds of the way through the paragraph, that:

The question of reasonable foresight is more than a question of fact -

I think the observation that it was ultimately a question of fact in one of the House of Lords decisions, in our submission, is not right. We would submit that Chief Justice Malcolm was right in saying it is:

more than a question of fact because it involves a value or qualitative judgment about the standard of reasonableness of human behaviour or capacity.

Your Honours will then see that there is, in a sense, an objective element in it. In the application of that test in relation to psychiatric damage, we would submit what one looks to see is the ordinary, in a sense, rather than the extraordinary. Your Honours, one could foresee, of course, that parents, hearing of the disappearance, later the death of a child, would be distressed, very distressed indeed. There would be an immense sense of grief and loss, thoughts of what might have been and cannot now be. But, your Honours, what we would submit is that what is said by Chief Justice Malcolm and Justice Ipp on this issue is, in our submission, correct. Could I refer your Honours to Chief Justice Malcolm, paragraph 13, page 129, where he said that:

In relation to the present case, I agree with Ipp J that neither of the alleged consequences of the telephone call . . . nor when Mr and Mrs Annetts were informed of his subsequent death, were reasonably foreseeable. Naturally, it was reasonably foreseeable that the appellants as parents would be deeply concerned when their son went missing and would suffer a deep sense of loss and grief upon learning of his death. It does not follow, however -

now, your Honours I will not read it out, if one goes through to the remainder of that paragraph - - -

McHUGH J: The problem I have with that passage is that it seems a departure from principle because one asks whether or not it was foreseeable in a general way that psychiatric illness would result. That is the way one normally approaches these questions of damages. You do not have to see the precise way that it occurred. It was laid down in this Court in Caledonian Collieries v Speirs back in 97 CLR. But the Chief Justice seems to be not looking as to whether they may have suffered psychiatric injury upon learning that their son was missing, but because of the telephone call.

MR JACKSON: If your Honour looks at the first sentence of that paragraph, what he is doing is summarising the two things that were said to be the events. That is all, he is speaking in the general terms that the case was dealing with and your Honours will there see that the second sentence is one which is simply part of the general reasoning and - - -

McHUGH J: Except that he cuts it back as a result of learning of either of these events. But if it was reasonably foreseeable that they would suffer psychiatric illness as a result of the disappearance of their son, the exact means by which it was suffered is irrelevant, is it not, having regard to standard principle?

MR JACKSON: Well, your Honour, there was a question of degree involved. The case was one where they were suing for, in effect, the psychiatric damage caused by his death and that is the way (a) the pleading reads and the passage in paragraph 45 - - -

GUMMOW J: That is not quite right. You have to allow for paragraph 9, have you not, of the pleading, as well as the actual question? One of the agreed circumstances is paragraph 9, is it not?

MR JACKSON: I am sorry, paragraph 9 of the statement of claim?

GUMMOW J: Yes, the statement of claim, yes.

MR JACKSON: Well, yes, your Honour. Your Honour, "in circumstances which could and did cause his death" is that the part your Honour is referring to?

GLEESON CJ: If you look at the reasoning in paragraph 13 that you have drawn our attention to, Chief Justice Malcolm says at line 14:

It does not follow, however, that it was reasonably foreseeable -

then he does not say "and I find it was not reasonably foreseeable". What he says was it was not foreseeable that there would be a "sudden shock". In other words, he negates the foreseeability of a certain kind of injury, the kind of injury being related to the requirement of a sudden shock, one of the control mechanisms that have been referred to earlier.

MR JACKSON: Your Honour, could I say in relation to that, that Justice Ipp and also Chief Justice Malcolm treat the sudden shock element as being part of the matters going to foreseeability.

GLEESON CJ: But that was why he was talking about the telephone calls, and so forth. It was the gradualness of the build-up of this information that led him to what he thought was the relevant conclusion, which was not that psychiatric injury was not foreseeable, but that psychiatric injury following sudden shock was not foreseeable.

MR JACKSON: Your Honour, I am not sure that I quite follow what your Honour was putting to me, but what his Honour seems to have been doing is really to say - and your Honours, this, in a sense, we would submit, reflects some of the English cases - that it is, of course, reasonably foreseeable that in the ordinary course of events a parent will be seriously affected, deeply concerned, if a child goes missing or they hear of a death, but that by itself is not a psychiatric illness and one would not foresee that a psychiatric illness would occur. What he is then saying - - -

McHUGH J: Sorry to interrupt you, Mr Jackson, but paragraph 13 has to be read in the context of the introductory words in the middle of paragraph 12 where his Honour says:

an intermediate appellate court -

cannot -

extend the scope . . . Such liability is dependent upon the existence of an independent duty of care and reasonable foreseeability of harm constrained by the tests of "normal fortitude" and "sudden shock".

MR JACKSON: Your Honour, that is what I was going to say, that is what his Honour was talking about.

McHUGH J: Yes.

MR JACKSON: He is saying there are two elements that go to foreseeability. The point I am seeking to make about it, your Honours, is that if one looks at the decisions, what one sees is that in determining whether there is reasonable foreseeability, then one looks at, on the one hand, the nature of the harm, and on the other hand, if the circumstances not being such where one would ordinarily foresee, according to the normal fortitude test that persons would suffer psychiatric damage from it, one looks to see then whether there was foreseeability of a sudden shock which might bring it about, so it is a combination of the two things.

HAYNE J: Now, as to sudden shock, can the core idea there be expressed by reference to there being a singular event with a singular set of actors? That is, is the contrast that is being drawn a contrast between that kind of event - leave aside its temporal duration - and multiple events in which there are multiple actors which together lead to a gradual onset?

MR JACKSON: Your Honour, broadly speaking, yes. Your Honour will have seen in a passage to which I referred earlier, Lord Goff I think, in - - -

KIRBY J: Lord Steyn, I think, you took us to in White.

MR JACKSON: It is Lord Oliver, I am sorry, in Alcock at page 416, the bottom of the page, where he draws that distinction.

HAYNE J: Then why was not this series of events within that class of sudden shock - singular set of actors, singular set of events, not multiple events, multiple actors?

MR JACKSON: Your Honour, one is looking at a sudden shock in a sense from the point of view of the person to whom the shock occurs. The way in which the expression has in a sense developed, if one looks, for example, at the way in which similar expressions are used by, say, Justice Evatt in Chester, what is spoken of is a shock to the system, in effect causing psychiatric illness. The shock no doubt in theory could come from anything; telephone call, anything of that kind, or observing events. The next point of course is where one gets the control mechanisms. That is all I would seek to say in response to what your Honour put to me.

KIRBY J: So your position here is to support all of the control mechanisms that have been developed by the common law?

MR JACKSON: Yes.

KIRBY J: I think Chief Justice Malcolm mentions them in the succeeding paragraphs: "physical proximity", "physical injury to the person", "normal fortitude", "suffered shock".

MR JACKSON: Your Honours, I will come to some of them in a little more detail in just a moment. Your Honours, I was simply dealing with the question of foreseeability at the moment. I referred your Honours to Chief Justice Malcolm. Could I refer also to what was said by Justice Ipp, paragraphs 80 to 85 at page 152. Your Honours will see what is set out there and essentially, at the end of it, his Honour comes to the conclusion that is set out in paragraph 85.

Now, your Honours, the view that what one foresees is the ordinary rather than the extraordinary is not new at all. One sees it, for example, in Bunyan v Jordan in this Court [1937] HCA 5; (1937) 57 CLR 1. Your Honours, may I just give the references. Your Honours have been to it on a number of occasions. Pages 13 and 14, the bottom of page 13 to the top of page 14, Chief Justice Latham; the last four or five lines of Justice Rich at page 15 where he agreed with the view expressed by Justice Dixon; pages 16-17 of Justice Dixon; and page 18 per Justice McTiernan. The same thing was adverted to by Lord Goff in White [1999] 2 AC 470H and also pages 476F to 477E.

Now, Your Honours, no doubt there is one speaking about a band in a sense rather than a simple line but an important reason for adopting the view that reasonable foreseeability involves considering the ordinary person is that, whilst one knows or ought to know that there will be people of abnormal susceptibilities, one does not know what those susceptibilities are and what effect particular conduct will have on them.

Your Honours, the role played by relationships such as parent and child, spouses, partners, relatives, friends, in the end probably goes to the question of foreseeability, as Lord Oliver had said in Alcock [1992] 1 AC where he discusses the issue at pages 415G to 416D.

Could I come then to the question of mere communication, the notion that mere communication is not enough. Now, in our submission - and this is the matter adverted to by Justice Windeyer at page 407 - that is an aspect which, in our submission, has really been effectively part of the law in this area for quite some time.

GLEESON CJ: Is this related to propinquity?

MR JACKSON: Yes, your Honour. If one goes to the early decision of Hambrook v Stokes Brothers [1925] 1 KB 141, one sees at page 152 in Lord Justice Bankes, the last six or eight lines of his reasons:

that the shock resulted from what the plaintiff's wife either saw or realized by her own unaided senses, and not from something which some one told her, and - - -

GLEESON CJ: Television produced a nice test of that distinction, did it not?

MR JACKSON: Yes, your Honour. The position in relation to television is one which may be of some complication in the future because one could have a situation where, for example, a person is appearing on television and by some negligence dies on television with the family watching. A similar sort of thing can sometimes happen on the stage from time to time.

GLEESON CJ: But that happened in Alcock, did it not?

MR JACKSON: Yes, your Honour.

GLEESON CJ: The parents were watching the event on television.

MR JACKSON: Yes. Your Honour, the extent to which particular persons might have been seen, as distinct from seeing the event, is another question.

GLEESON CJ: In that sense, whether it is right or wrong, Alcock is a very strong decision on propinquity.

MR JACKSON: Yes, your Honour. I was going to come to it in just a moment and give your Honours the references on that topic, but could I just say in the same case, one sees at page 159 Lord Justice Atkin in the last paragraph of his reasons saying:

No doubt at the trial all the facts will be carefully investigated, including the possibility that the shock received by the mother was in no way caused by the sight or sound of the accident and apprehension of danger to the child or children, but solely to the report of the injury to the daughter, made to her by the third person.

Your Honours, one then sees the observation to the same effect made by Justice Windeyer in Mount Isa Mines v Pusey 125 CLR at 407. May I take your Honours to it for just a moment because there has been some doubt expressed about what his Honour was actually saying. At page 407 in the seventh line of the paragraph commencing in the middle of the page what his Honour said was:

In particular I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. 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.

Now, your Honours, that is an obiter dictum, of course, but it is fairly clearly expressed.

GLEESON CJ: What about a primary victim who is in communication by a mobile telephone with a secondary victim and is describing what is happening?

MR JACKSON: Well, your Honour, it may be that within a case of that kind one is able to say this is a case not contemplated by that prohibition, as it were, because the prohibition or the limitation seems to be directed to communication by someone other than the victim. If there is communication by the victim, then that would seem to be a case where one is really part of the events, in a sense, or observing the events, or something of that kind.

McHUGH J: The Solicitor-General for the United States was on the phone to his wife who was in the plane with the hijackers.

MR JACKSON: Yes. Your Honour, no doubt the application of the doctrines has to deal with the particular circumstances but what has been spoken of, in our submission, is communication by some other person rather than being part of the event. Your Honours, the same issue was adverted to by Lord Wilberforce in McLoughlin v O'Brian [1982] UKHL 3; [1983] AC 410. At page 418G where, summarising the principles, principle No 3, your Honours will see he referred to Hambrook v Stokes Brothers and said:

an express distinction was made between shock caused by what the mother saw with her own eyes and what she might have been told by bystanders, liability being excluded in the latter case.

He said to the same effect at page 422H through to 423B and he said, in particular, at the bottom of 422:

there is no case in which the law has compensated shock brought about by communication by a third party.

That goes through to the end of that paragraph. Your Honours, Lord Justice Denning in King v Phillips [1953] 1 QB 429 at 441 said with commendable certainty and brevity, about halfway down the page:

A wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account.

He said that was a case that seemed "plain enough". Now, your Honours, I should say Justice Deane, in Jaensch v Coffey 155 CLR 608, expressed a reservation about that but did not go really beyond that. The issue was adverted to again in the United Kingdom in Alcock [1991] UKHL 5; [1992] 1 AC 310 at 398A by Lord Ackner, where his Lordship said:

As regards the means by which the shock is suffered -

then he referred to what Lord Wilberforce had said, then two lines further down he also said:

it was surely right that the law should not compensate shock brought about by communication by a third party.

Then he referred to two cases which were doubtfully correctly decided, saying:

since in both of these cases, the effective cause of the psychiatric illness would appear to have been the fact of a son's death and the news of it.

I am sorry - I said Lord Ackner. It was Lord Keith, I should have said, your Honours. Lord Ackner, on page 399E to G, and your Honours will see that there set out. Also, at page 400, at the paragraph numbered (2) at the bottom of the page:

Even where the nervous shock and the subsequent psychiatric illness caused by it could both have been reasonably foreseen, it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable.

Your Honours will see that goes over to about letter C on the next page. Then, letter F on page 401 your Honours will see a description of what is meant by "shock", excluding the accumulation of matters. Finally, your Honours, in that case, per Lord Oliver, at page 416, in a passage which starts at D and goes through to 417A - - -

GLEESON CJ: Yes. What happened here evidently was that the television did not show individual people suffering.

MR JACKSON: Yes. Could I refer also to the top of page 418, where he also doubted the correctness of the two decisions earlier adverted to. The issue was adverted to, also, in White. If I could just give your Honours the references, without taking your Honours to them: White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455 at 462G per Lord Griffiths, 472E per Lord Goff, 496D per Lord Steyn and 502 per Lord Hoffmann. Now, if that is to be changed, we would submit that it is something which really is a matter for Parliament, as Lord Oliver said in Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 at page 417.

At page 417, your Honours will see, between letters F and H, that he referred to the potential difficulties in trying to expand the area of liability further. Our submission is that this is a case which, sad and distressing as it must have been, did not fit within that test, and the Full Court was right so to decide. Similarly, if one goes to the other basis on which the Full Court so decided - it is called the "aftermath rule" - your Honours will see that referred to in our written submissions, in paragraphs 20 to 34. May I just say a couple of things about what is contained in there, without going to the detail of it.

Your Honours will see that what is spoken of is that in relation to proximity - and I refer your Honours to paragraph 21 - the immediate aftermath concept does, in our submission, carry with it the requirement of immediacy. We refer to this in paragraph 23. Could I give your Honours a reference in that regard, in relation to the last sentence of paragraph 23, namely, to what was said by Justice Deane in Jaensch at 155 CLR 607.

Your Honours will see in the passage which is the last paragraph on that page, going through to about halfway down page 608, that his Honour is not speaking of any lengthy time that is involved and, your Honour, I do not suggest a two-hour rule or anything of that kind, or that the - - -

GLEESON CJ: No, but there must be some element of flexibility, must there not, in concepts both of propinquity and immediate aftermath, to accommodate cases that happen in the desert over a period of time, or at sea, or whatever?

MR JACKSON: Your Honour, no doubt it must depend on the circumstances. I do not suggest there is an absolute - - -

GLEESON CJ: But these are relative concepts.

MR JACKSON: Of course, your Honour, yes. Immediate and aftermath are both concepts that are flexible. Having said that, if one is speaking about, first of all, the event that gives rise to potential liability and the event being the event causing the death of the son, your Honours, one has, first of all, a notification that the boy is lost or the boy cannot be found or has disappeared, but if one speaking about immediate aftermath, we would submit one is not speaking about something that occurred over a period of months. Your Honours, no doubt there is an element of value judgment in that and we have endeavoured to deal with that in our written submissions which I will not go to in detail.

GUMMOW J: I am not sure that the written submissions deal with W v Essex County Council [2000] UKHL 17; [2000] 2 WLR 601, do they?

MR JACKSON: Your Honour, I do not think so, unless we have it in a - - -

GUMMOW J: It is a decision of the House of Lords in which there seems to be, perhaps, some backtracking from these cases in the 1990s. It is a case about the foster child who then attacked the children of the foster parents when the county authority had told the foster parents that they would take good care to make sure they only hired out a child who was safe and not likely to attack foster siblings. The question was whether that should be struck out but the House of Lords did not strike it out.

MR JACKSON: Your Honour, the - - -

GLEESON CJ: I wonder if Osmond was good law at the time? The striking-out procedure seems to have suffered some inhibition as a result of the decision of the European court.

MR JACKSON: Your Honour, I was going to say that one is, of course, dealing in a case like that with something that is not struck out. The reasons for not striking out can be (a) that the claim is good, or (b) that it is not established that the claim is bad. There is sometimes - - -

GUMMOW J: The parents were claiming "nervous shock" though.

MR JACKSON: Your Honour, equally so. It may mean that the case fails on the way up and it eventually succeeds but at the moment, in our submission, the position has not changed, that to which I adverted. Your Honours, perhaps if necessary if there is anything further we want to say about that, maybe we can give your Honours a note about it.

GUMMOW J: Yes, it might be an idea.

MR JACKSON: Could I just say that we would submit that there is no basis for the extension of the aftermath rule. We have referred to it in our submissions. If I could just go back for one moment to the sudden shock rule. Your Honours, again, in our submission, there are good reasons for its retention. It reflects the fact that one is trying to identify whether negligent conduct is the cause of psychiatric illness and whether that should or should not reasonably have been foreseen.

Could I say, your Honours, there has been much talk about whether the psychiatric position has moved on relevantly. Your Honours will see if one goes to Jaensch for a moment, 155 CLR 600 to 601, that Justice Deane, in the new paragraph on page 600, says:

Despite the advances in knowledge of mental illnesses since the majority decision in Chester v Waverley Corporation, much remains unexplained and uncertain even among experts.

He discusses that through the remainder of that page and through the next page. He goes on to say particularly, your Honours, at page 601 about point 2 or 3:

There is continued expert support for the Freudian view which emphasized the importance of the element of sudden fright or surprise in neurosis following trauma.

Your Honours will also see in the last third of the page that he adverts to the fact that the courts ought not to engage in this area in significant law reform because of the difficulty of doing so very precisely.

In Chester if one looks, your Honours, at pages 18, 43, 44 and 45 one sees Justice Evatt speaking in terms of not sudden shock or nervous shock as being the illness, but speaking of psychiatric injury or psychiatric illness caused by the sudden shock to the person involved. Your Honours will see, for example, at page 18 where, referring to Coultas, he said that:

precludes the courts of the British Dominions from allowing damages to be recovered where injury takes the form of illness due to nervous shock.

Then at page 43 one sees that, about a third of the way down the page, he says:

but I am of opinion that in the present case the plaintiff is clearly entitled to have her claim considered by the jury and to recover damages upon proof that her shock and illness were caused by emotional distress caused by the circumstances -

and, further down the page in the next paragraph, the third line:

provided that her shock and suffering were due in the main to what she realised from her own unaided senses during the period I have defined.

Could I refer your Honours also to the decision of the Court of Appeal of British Columbia in - I will give the short version of it - Devji 180 DLR (4th) 228 paragraph 73.

Your Honours, the remainder of what we would seek to say is, I think, set out in our written submissions. Could I refer particularly to what we have submitted at pages 17 and 18, paragraphs 39 and following, under the headings "The Law of Torts does not cater for all tragedy" and also "The case for change is not all in one direction" and then page 19 "Any Radical Change Should be Statutory".

Your Honours, one sees references made from time to time to the law limping along but is not quite the context in which Justice Windeyer said it but, your Honours, sometimes if one is moving pace by pace or step by step, sometimes it is time to stop as well and to pause before taking the next step or going along the next road. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Walker.

MR WALKER: Your Honours, there is no viable suggestion in this case, (a), because it is being argued on, admitted, assumed facts; and, (b), because this is a question of duty in this argument. There is no viable suggestion possible for what we contend for represents an invitation to the Court to be in the vanguard of a, perhaps, soon to be discredited variant school of pioneer psychiatry. Our case does not turn on anything idiosyncratic but turns on the extremely usual - - -

GUMMOW J: You are saying we cannot be modishly innovative.

MR WALKER: That is right, your Honour, whether as a matter of capacity or prescription is perhaps a matter for your Honours, but it is the modishness that concerns us in the last suggestion from our friend. There is nothing modish about suggesting that intense grief may be the foundation of mental illness. Your Honours, Lord Oliver's comments in his speech in Alcock, cited by my learned friend from [1992] 1 AC 416 to 417, bears, in our submission, an evocative comparison with the passage well known to your Honours from Justice Rich in Chester 62 CLR 11 to 12, where his Honour fore-tendered an "amorphous" state of the law of tort where the step to be taken, which history shows has been taken, with steps taken thereafter.

With respect to the "mere news" argument that my learned friend has put, may I simply draw to attention by way of further reference from the reasons of Justice Hodgson in Gifford v Strang Patrick [2001] NSWCA 175 of 14 June this year. The passage is at paragraphs 70 to 73 where his Honour is talking about the statutory question by contrast with the common law question he referred to at paragraph 44. Perhaps interestingly, that is, perhaps relevantly for our case, where all his Honour was doing was construing the statutory words "sudden shock" and the like, then in that case his Honour had little difficulty, as one would expect from ordinary life, in finding that that could be brought about by so-called "mere news". It is difficult to see why as a matter of principle it should be different when the common law, also using ordinary English words, asks: how can sudden shock be caused? That is even assuming one were to keep something in the nature of sudden shock meaning something which is both instantaneous and memorable.

Your Honour the Chief Justice inquired of my learned friend concerning the question of control mechanisms and perhaps the fact that their need is obviated or reduced in cases of a prior relationship. First, we embrace that as part of our argument. Second, it is to be recalled that control mechanisms are regarded when explicitly described as such as appropriate in the development of the common law or the search for what the common law already is, for a number of different reasons which are conveniently but obscurely lumped under the title of "policy".

In our submission, one needs to identify the social interest, call it policy, which is intended to justify the imposition of a control mechanism upon what would otherwise be a structure intellectually satisfying supported by principle and authority. We have identified two because they seem to be the two which dominate the learning, both curial and extra-curial in this area, starting with Dean Pound from the materials before your Honours. Those two are what we have called the Ultramares spectre and there is also what Dean Pound called "imposture". "Imposture", of course, really means difficulty of proof. But even perhaps I should say especially in that passage in 1915, the way he put it, particularly at page 362 of the Harvard Law Review - I think your Honours already have it, if I may hand up copies of the particular passage - at the end of the paragraph from which I think your Honour Justice Hayne was particularly quoting when drawing attention to the balance between people exercising their faculties freely:

for purposes recognised by law and, so far as he could reasonably foresee -

that is the foreseeability question -

does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way.

An early appearance of the normal fortitude point.

GUMMOW J: I am sorry, which page are you reading from, Mr Walker?

MR WALKER: The foot of 361 and I am now at the top of page 362, your Honour.

GUMMOW J: Yes, thank you.

MR WALKER: At the foot of that paragraph, he goes on:

Probably advance in our knowledge of psychology and mental pathology and progress in means of arriving at the truth in matters where expert evidence is required -

I rely upon the second, not the first -

will determine the development of the law upon this subject. So long as the margin for imposture and the scope of pure expert conjecture remain as large as they are at present, this phase of the interest of personality must remain in some measure insufficiently secured.

No doubt and no doubt all things are relative, but things have advanced and, in our submission, it cannot seriously be suggested that that remains a driving policy, to use that word, which ought to justify a control mechanism imposed, notwithstanding the acceptance, as the Full Court did accept that mental illness had been caused, that is, for the purposes of the argument, by the grief. In our submission, that is to turn on its head the initial purpose of the control mechanism in question. May it please your Honours.

GLEESON CJ: Thank you. We will reserve our decision in these matters.

AT 4.08 PM THE MATTERS WERE ADJOURNED