Wicks and Sheehan v State Rail Authority of New South Wales known as State Rail [2010] HCATrans 87 (13 April 2010)

Last Updated: 15 April 2010

[2010] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S27 of 2010

B e t w e e n -

DAVID COLIN WICKS

Appellant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL

Respondent

Office of the Registry
Sydney No S28 of 2010

B e t w e e n -

PHILLIP KEVIN SHEEHAN

Appellant

and

STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 APRIL 2010, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR B.J. GROSS, QC: May it please the Court, I appear with MR K.O. EARL for both appellants. (instructed by Baker & Edmunds)

MR J.T. GLEESON, SC: May it please the Court, I appear with MR P.M. MORRIS and MS B.A. ARSTE for the respondent in both matters. (instructed by DLA Phillips Fox Lawyers)

FRENCH CJ: Yes, Mr Gross.

MR GROSS: Your Honours, the appeal books contain a form of the notice of appeal in the Court of Appeal but it was drawn to our attention from the oral argument that there was a further document filed in court in the hearing in the Court of Appeal and so the Court has a complete record. Might I hand up copies of the amended notice of appeal with appointment in the case of Wicks and also the same documents in the same terms in the matter of Sheehan.

Your Honours, the trial before Justice Malpass related to three liability questions and your Honours will find those questions summarised in the judgment of Associate Justice Malpass at volume 3, pages 807 to 808. Could your Honours turn to those agreed issues.

Your Honours, at line 50 Justice Malpass sets out what the five agreed issues were. Your Honours, it is common ground that issues 4 and 5 were postponed because ultimately the splitting of liability issues and damages issues meant 4 and 6 did not have to be dealt with. In relation to 1, 2 and 3, your Honours, it is our submission that this Court will only need to deal with issue 2, and that in relation to issue 1 and issue 3, because Justice Malpass and the Court of Appeal did not effectively deal with those questions it is not appropriate for this Court to be asked to do so the first time. If we succeed in relation to the appeal in relation to issue 2, both matters should be remitted to the Court of Appeal in order to resolve the remaining issues.

Just to explain, your Honours, if I may. Issue 1 is the issue under section 32 of the Civil Liability Act as to whether the defendant owed “the Plaintiff, a rescuer, a duty of care?” In relation to that matter Justice Malpass did not decide that matter, or we argue he did not decide that matter, and without reading the specific paragraphs that is to be found in paragraphs 62, 63, 65 and 66 of Justice Malpass’ judgment. Then the Court of Appeal Justice Beazley did not decide this issue and that is clear from paragraphs 4 and 78 and Justice McColl did not decide this issue. That appears from paragraph 164. I can take your Honours to the detailed paragraphs if your Honours need.

HAYNE J: Can I therefore understand, what are the premises for the argument? Is the premise for the argument in this Court that section 30(1) is engaged?

MR GROSS: Your Honour, yes.

HAYNE J: Does it follow then, or is it still an issue between the parties, that in determining a question presented by section 32, a duty may be found to exist, even though, one, mental harm was not suffered as the result of sudden shock and further or alternatively, two, that the police officers concerned did not witness at the scene a person being killed, injured or put in peril.

Could I put the same point positively, Mr Gross? Is it possible under section 32 that a duty of care could be found to be owed to a rescuer, regardless of whether there was sudden shock, and regardless of whether the rescuer can be said to have witnessed at the scene a person being killed, injured or put in peril?

MR GROSS: Yes, your Honour, and that is because section 32(1) contains some criteria of the duty of care in the circumstances of the case and subsection (2) sets out an inclusive list of the circumstances of the case, so that it is not obligatory to tick every box positively in order to establish a duty of care. So that delineation is merely giving four considerations which may be circumstances of the case so that one could survive section 32 but still have to jump the obstacle in section 30(2)(a).

HAYNE J: But if what you have said were to be accepted, a consequence would be, would it not, that we are required to consider the case on the premise that the mental harm was suffered as the result of sudden shock and to examine, are we, whether the plaintiff witnessed at the scene a person being killed, injured, or put in peril?

MR GROSS: If your Honours are deciding the section 32 issue, those are matters that the Court has to look at.

HAYNE J: But if we are to decide the section 30 issue, which is, as I understand it, the issue both sides say is presented by the appeal? It is the issue on which your side lost in the Court of Appeal. I just want to understand what premises, if any, are implicit in our being required to examine the issue in the way in which it is presented by the course of the litigation that has occurred.

MR GROSS: Yes. Your Honours, although duty of care is a legal issue and involves looking at the available facts and the like, we contend that the Court can deal with the error created in relation to section 30. Of course, that error itself infects or would have implications for looking at one of the circumstances of the case under section 32(2), but, your Honours, there are outstanding issues which have not really been addressed in the courts below and the appellants’ position is it is arguably inappropriate to require this Court to have the first role of delineating and deciding these duty of care issues.

CRENNAN J: When you say outstanding issues, do you mean in relation to section 32?

MR GROSS: The outstanding issues are the section 32 duty of care issue, and that is the first question, and the other issue is the third question which is whether:

the Plaintiff’s attendance at the derailment caused him to suffer a recognised psychiatric illness? If so, what is the nature of that illness?

FRENCH CJ: Section 32 covers all species of mental harm, does it not?

MR GROSS: Yes, your Honour.

FRENCH CJ: Whereas section 30 is concerned only with that species of mental harm which arises wholly or partly from mental or nervous shock, is that right?

MR GROSS: Would your Honour just pardon me on that? Your Honour, that is right, yes?

FRENCH CJ: You have put your case on the sole basis that your client suffered mental harm arising from mental or nervous shock?

MR GROSS: Your Honour, that is correct, yes. Your Honours, I was dealing with the three questions. In relation to the second question – if your Honours still have those questions in front of you at page 807 of the appeal book – Justice Beazley, with whom Justice Giles agreed, found that the plaintiffs did not witness the primary victim being killed, injured or put in peril on the basis that by the time the plaintiffs arrived, the incident was over and they were only present during the aftermath of the incident. That is the same basis as Justice Malpass decided the matter on. I will come to that particular aspect in a moment.

In relation to Justice McColl's judgment, Justice McColl rejected the reasoning of Justice Beazley just described, but found that both plaintiffs lost because the persons being in peril were already injured and, in effect, we would submit on a fair reading of the judgment, “put in peril” excludes those who have already had an injury, and Justice Malpass applied the same approach. I will come back to - - -

GUMMOW J: It is being put in peril, is it not?

MR GROSS: Yes, “being put in peril”, not “put in peril”.

GUMMOW J: It has got a motion of continuation of activity.

MR GROSS: Yes, your Honour - - -

GUMMOW J: Or a status or events, circumstance.

MR GROSS: Yes, it is describing a continuous situation which is presently occurring when the plaintiffs are present at the scene and, of course, the relevant question is the distressing incident and the error of Justice Beazley was in shortening the timeframe of the incident so it only, for relevant purposes, occurs at the initiation point where any harm can be done and regards that which follows thereafter as aftermath which does not qualify.

Your Honours, in relation to the third question, would your Honours note that the question is framed in these terms:

Did the Plaintiff’s attendance at the derailment cause him to suffer a recognised psychiatric illness? If so, what is the nature of that illness?

Your Honours will note that the question as posed is not, did the plaintiff’s perception of persons being killed, injured or put in peril cause him to suffer a recognised psychiatric illness. So that your Honours will note, and I think some point is made of this by the respondent, that there is a lack of delineation in the evidence and, I suppose, the arguments and certainly the medical evidence and the facts of evidence by the plaintiffs between their response to their attendance at the derailment scene and their response to particular features of the scene in terms of victims being killed, injured or put in peril in the plaintiff’s presence.

So, your Honours, if, in fact, this was a liability issues trial of three liability questions as agreed, it is not really open, we would submit, to the respondent to say, well, the psychiatric illness was a result of exposure to the overall scene or else to the dead bodies or the badly injured bodies and it was not the response to seeing persons still being put in peril. So that in relation to issue 3, your Honours, Justice Malpass did not decide that issue, although he made some observations about it at paragraph 83 and 85. Your Honours, I will not read these paragraphs unless your Honours want me to. Your Honours, at paragraph 84, your Honours will note – this is Justice Malpass’ judgment:

The defendant conceded that there is no real dispute that Mr Wicks had suffered a recognised psychiatric illness as a result of his exposure to the derailment. However, it takes the stance that there is a real dispute in the case of Mr Sheehan. In both cases, the considerations concerning their respective mental conditions were of complexity, involving multiple issues.

But although there is that discrimination between the concession on Mr Wicks and the lack of concession on Mr Sheehan and although it can be said that Mr Wicks, at any rate, has certainly passed the test set by the first question in issue 3 – issue 3 has two questions:

Did the Plaintiff’s attendance at the derailment cause him to suffer a recognised psychiatric illness? If so, what is the nature of that illness?

So that, your Honours, in any event, Justice Beazley and Justice McColl did not deal with the third issue. So it is our position that in both cases if the appellants succeed on issue 2 in this Court, both matters should be remitted to the Court of Appeal to deal with the remaining issues, that is issues 1 and 3. Your Honours, can I deal with the concept of aftermath? I appreciate we have put a lot into our written submissions and can I just focus on a number of matters. If your Honours would go to the judgment of Justice Beazley, if I can just deal with what we contend are the areas in her judgment in relation to the - - -

GUMMOW J: Wait a minute, what order do you seek from us? What you just said seems to depart from page 919?

MR GROSS: Yes, your Honours, the position I have announced orally is a modification of that position. I appreciate that in our written submissions we put in what orders we sought. I have raised the matter with my learned friend and I would invite my learned friend to state what his position is, but I would anticipate he has the same position as to how the matters should be dealt with, if we succeed on issue 2. Your Honour, my modified position arises out of further consideration, including seeing what the respondent had to think about.

Now, your Honours, can I then go to the aftermath concept, if I may. In volume 3, page 868, lines 70 and following, Justice Beazley deals with the section 30(2)(a) issue. Your Honours, at line 50 on page 868, her Honour says:

Next, and critically to the respondent's construction of the provision, what must be witnessed is a person being killed, injured or put in peril at the scene. It followed on this submission that direct observation of the causal event whereby the person was being killed, injured or put in peril was required. Had the legislature intended otherwise it could - - -

GUMMOW J: That is a non sequitur, is it not?

MR GROSS: Yes.

GUMMOW J: The sentence beginning, “It followed”, why does it follow?

MR GROSS: Well, it is not a logical outcome of the preceding sentence. It is a gloss where her Honour has focused upon the causal event because that is the meaning her Honour has put on the word being put, that is the initiation of catastrophic events involving the derailment. The causal event is, in effect, the defendant’s breach of duty manifesting itself by virtue of the – I suppose - failure to have a dead man’s handle on the train, but resulting in - - -

HAYNE J: The notion of direct observation of an omission presents its own difficulties.

MR GROSS: Yes, indeed, your Honour. Acts or omissions are, of course, the common currency of all tort cases involving allegations of negligence. One can imagine a whole series of situations where the omission is invisible and the omission, of course, is continuing, but observation in terms of seeing or hearing it is obviously impossible to contemplate. Your Honours, a number of cases — put aside disaster cases which have their own complications and where the event occurs for a considerable period of time, but medical negligence cases, for example, where you can have the breach of duty continuing for quite a period, but that breach of duty may consist in an omission; for example, an omission to give proper warning or advice concerning the relevant medical procedure or the failure to take some other steps.

So setting that requirement as a precondition is an unwarranted gloss on the statute. I appreciate that this Court in Tame expressed its disapproval of all sorts of archaic or artificial or capricious distinctions, but to create this distinction on top of the words which the New South Wales legislature has chosen is a repeating of the same sort of process of applying glosses which do not meet with policy considerations but basically can operate unevenly and unfairly and become very difficult to predict. Your Honours, can I then continue in paragraph 68, line 52:

Had the legislature intended otherwise, it could, by appropriate language, have provided for an entitlement to damages for mental harm suffered by a person who witnessed the aftermath of a shocking event.

So that that which follows is largely an argument that because aftermath could have been chosen as part of the statutory language, but it was not, therefore one has to ignore anything that might otherwise be described as an aftermath of some earlier event, in this case earlier causal event. Justice Beazley then at the bottom of page 868, paragraph 69 says, “There is some support for this construction.” Her Honour then refers to basically three considerations. The first one is the recommendation in the Ipp Report, that the language the legislature could or should use should include the aftermath of shocking events, secondly, the Civil Liability Act (Tas) which chose to add in the words “or the immediate aftermath” and, thirdly, the provisions of the Motor Accidents Compensation Act (NSW) section 141 since repealed.

In the end, although I think we have made the submission in our written submissions, her Honour relied upon three unreliable sources of guidance for statutory construction purposes. We accept the point made by the respondent that although those three matters were mentioned as matters, her Honour ultimately only relied upon the first two of those. If your Honours go to paragraph 77 on page 871 where her Honour says:

There is an immediacy about the language of “witnessed, at the scene” something that was happening, that is, persons “being killed, injured or put in peril”. Had the provision used the language of “aftermath” as recommended in the Ipp Report and as included in the Tasmanian provision, or other language that included persons who came on the scene, the appellants’ argument would be available. The omission of such language is significant, in my opinion, in marking out the operation of the provision.

Her Honour only relied upon the first two of those matters, the non-acceptance of the Ipp Report recommendation on this point and what the Tasmanian legislature had chosen to do. Your Honours, can I say some more about the concept of aftermath.

HAYNE J: Just before you do that, I would have thought that an important element of Justice Beazley’s reasoning appears at page 871, paragraphs 76 and 77 where her Honour appears to inject into the idea the notion of incident or event and to read the section as though it had the meaning of witnessing the event or the incident as a result of which persons were “killed, injured or put in peril”.

MR GROSS: Yes, your Honour, that is right. Perhaps I skipped too quickly to aftermath. I had intended to take your Honours to paragraphs 74 and onwards under the heading, “Conclusion on construction of s30”. In paragraph 74 at line 40 her Honour says – first of all, her Honour relies upon section 30(1):

where the full phrase is “[the victim] being killed, injured or put in peril by the act or omission of the defendant”.

In our written submissions we have argued and we here argue that the fact that those words are found in subsection (1) does not mean that they have to be read into or grafted into subsection (2) in order to make that part of what the plaintiff must directly perceive by seeing it or hearing it. The requirement to not only perceive the relevant distressing incident but also to observe the act or omission of the defendant, as we have already put, is loading up the barriers facing plaintiffs where it is not justified on a proper reading of the legislation. A bit further down at line 32:

The phrase does not refer to a static state of the victim, as it would not be sensible to speak of a victim in the state of “being killed”, and so the phrase also does not speak of a victim being in the state of being injured or of being put in peril. Rather, “being” refers to something occurring, the process of being killed, or being injured, or being put in peril. And the process must be one which occurs “by the act or omission of the defendant”.

The addition of that sentence appears to confirm that her Honour is looking for observation of the act or omission, or the unravelling, of the causal event which flows from that act or omission as a precondition to satisfy section 30(2). At paragraph 75:

There is no doubt that there is an entitlement to claim damages where a person witnessed a person being killed, injured or put in peril in the course of the incident.

Your Honours, in this paragraph, her Honour – I will not read the whole paragraph – allows for the possibility of some separate, observable, external event – that is, another stanchion must have been loosened, ultimately falling and killing, injuring or putting someone in peril. Her Honour appeared to be looking for some observable event which does those things, but her Honour goes on to say, at the top of page 871, the situation:

would, arguably at least, fall within s 30(2)(a). In that situation, “being” would be satisfied, as would the causal connection with the negligent act or omission whereby the derailment occurred. To that extent, there would be substance in the appellants’ argument that an accident extends beyond the time when the impact occurs.

The only extension her Honour allowed beyond the initiating of the catastrophe at the scene is a later event which is an outcome also of the defendant’s acts or omissions, but is postponed in its occurrence, and we make the point that it makes no sense to draw a distinction between a stanchion falling on you, or anything else falling on you, and being trapped inside a carriage, for example, with crushed seats preventing you from moving. From the victim’s viewpoint, both are external events, but certainly both are consequences in terms of putting, or continuing to put the plaintiff in peril.

FRENCH CJ: Does not putting someone in peril suggest an event as distinct from the person observing a person in peril, which is a state? For example, one might say of a person who is badly injured and losing blood and so forth, they are obviously in peril of worse injury or death, and I think Mr Wicks in particular observed somebody in that situation. What do you say about the word “put”?

MR GROSS: We submit that one has to judge the words “being put in peril” in the context of the particular factual situation you are dealing with and it cannot be accepted as a requirement that there be an instantaneous occurrence but where, after that there is no continuing putting of the person in peril. So “putting in peril” does not involve merely the initiation of some sort of exposure to risk of injury or harm or loss. “Being put” can be a continuing state depending on what event or what situation is being considered.

We would submit in the present case what you are looking at is defining the parameters of the distressing event and defining, in effect, the way in which the passengers are being put in peril and they are being put in peril not just by the initial event, but by their continuing state of being, in many cases, trapped in carriages, unable to help themselves, unable without assistance to get away from the scene to get required medical treatment, so that - - -

FRENCH CJ: So it not just people who are dead or injured, but people who are at risk, whether through exacerbation of injury or otherwise, of death or further injury witnessed by the plaintiff?

MR GROSS: Yes. Your Honours, in expansion of that, could we just go back to the words of the section? The expression “being killed, injured or put in peril” does not answer the question, put in peril of what? Obviously “put in peril” can include the peril of being killed or injured, but the perils that the passengers, or at least the surviving passengers, faced were the perils of physical injury or harm, the peril of mental injury or harm, or of harm from being unnecessarily exposed to the situation of increased impairment or suffering, whether that be the exacerbation of an injury already caused or the extension of the consequences of an injury already caused.

The words “put in peril” obviously mean being put in peril of something that is of an adverse physical or mental nature. It is not put in peril of pure financial loss, so that only leaves some form of physical or mental consequence, so that the injury, harm or loss itself is obviously capable of being caused – and there is a peril of it being caused – from a whole variety of situations which the plaintiffs directly perceive at the accident scene.

Your Honours, I will go back through the relevant facts very quickly at a later stage just to draw out those elements, but I will just confine myself to the legal submissions at this stage. However, it will be evident from the facts that there are numerous examples in the plaintiff’s evidence, as the evidence of both plaintiffs, not challenged in cross-examination, not only of persons who evidently were in peril of some form of physical injury or exacerbation or mental injury, but also where the plaintiffs explained what they were doing because it was evident to them that they had to safely evacuate the injured passengers in order to avoid peril to them of physical or mental harm. I will go to those passages, which were not cross-examined upon, which went into evidence, and there are numerous examples of statements such as that, which were not really challenged by cross-examination.

GUMMOW J: Now, Mr Gross I think this fixation in the Court of Appeal on the concluding words of (2)(b) involves the tail wagging the dog, really. If you go to section 30(1) what is the subject matter of this provision:

shock in connection with another person (“the victim”) being killed, injured or put in peril by the act or omission of the defendant.

General words reflecting the anterior case law, I would have thought. What is the legislature going to do? It is going to cut this down in two respects. It is going to deal with cases like Annetts and Gifford where the plaintiff was not at the scene but found out later, including by telephone in one case and by information passed on by the relatives to the children in Gifford, I suppose. That is paragraph (a). That is what has been cut down there. Paragraph (b), were there nervous shock cases where the plaintiff was not a family member?

MR GROSS: I think because “member of the family” is pretty widely defined, but there are nervous shock cases - - -

GUMMOW J: Yes, Bourhill v Young was not a relative, I think. That is the perceived mischief in the common law and these words “being killed, injured or put in peril” are words of generality, reflective of the anterior common law which has not been changed.

MR GROSS: Yes. In that common law, one looks at the requirement to find some distressing incident or event which has the particular adverse effect on the plaintiff in terms of mental harm and we would submit that - - -

GUMMOW J: That interpretation of section 30(2) helps explain its relationship to section 32. Section 30 just seems to be cutting out Bourhill v Young and cutting out Gifford and cutting out Annetts, even on the assumption that otherwise there would be recovery.

MR GROSS: Yes, we adopt that approach. Can I just go, if I can, to what I intended to finish saying about Justice Beazley’s judgments. At paragraph 76 her Honour says:

It is another step again to say that a rescuer witnessing matters at the scene as the appellants did witnessed victims “being killed, injured or put in peril”; in context, and confining attention to being “put in peril”, “by the act or omission of the defendant”. The derailment was what put the victims in peril by the respondent’s act or omission. When the appellants arrived the derailment, as the incident which killed, injured and put in peril passengers in the train, was over; there was no consequential event such as the falling of the stanchion knocked loose in the collision.

Well, your Honours, there were consequential events because there were four carriages which were either crushed or overturned, or both, with this occurring in a remote location, in fact a location which ambulances could not even reach, and so that that certainly qualifies as a consequential event, but dividing things up into the incident which, in effect, killed, injured, or put in peril the passengers and consequential events creates an unworkable distinction which is an unnecessary distinction because you have to really fully define, in the overall factual situation you are dealing with, having regard to all the circumstances, what is the relevant distressing incident or event. That does not occur merely instantaneously at the point of derailment. Your Honours, I have already dealt with paragraph 77.

Can I just go to the aftermath concept, if I may, your Honours? Your Honours, before I come to what this Court has said in Tame and Gifford on the question of aftermath, could I hand up some extracts from a very recent book by Professor Harvey Teff, who is the professor of Lord Durham University, Causing Psychiatric and Emotional Harm, Reshaping the Boundaries of Legal Liability, page 69. This was published in 2009. Could I hand those up? I only intend to read one paragraph, your Honours.

GUMMOW J: Does the author deal with the Hillsborough Case, for example?

MR GROSS: Yes, your Honour. Not in the passage I am showing your Honours, but - - -

GUMMOW J: That would be an example of section 30(2)(a) operating, I suppose.

MR GROSS: It is an English text and so the Hillsborough Case gets plenty of mention. It is a publication by Hart Publishing company which appears to publish in - - -

GUMMOW J: Yes, he deals with it in footnote 68.

MR GROSS: Yes, indeed, your Honour has it right. Your Honours, under the heading “The ‘Immediate’ Aftermath” at the middle of page 69 Professor Teff says this:

Invidious distinctions are inevitable when the ‘immediate’ aftermath is treated in isolation, as a crude notion of temporal proximity. Mrs McLoughlin can succeed because she experiences shock only two hours after the crash, whereas a spectator at Hillsborough who identified a victim at the mortuary eight or nine hours after the disaster would almost certainly have failed on that basis alone. A mother affected in precisely the same way as Mrs McLoughlin, but too far away or too overcome to reach the hospital quickly would likewise fail. It may be objected that a broadly contemporaneous emotional response is a practical necessity. But this is primarily an argument about evidential uncertainty in regard to causation and foreseeability. Once the aftermath principle itself is accepted, it is more defensible for any cut-off point to be related to circumstances inextricably linked to the original incident than arbitrarily time limited.

Your Honours, can I go to what this Court has said in Tame and give just some - - -

GUMMOW J: Just before you do that, what do you see is the significance of the disjunction between section 30(2)(a) and (b)?

MR GROSS: Paragraph (b) is merely setting as a criterion of entitlement membership of the family. It is the list of potential plaintiffs approach, whereas (a) incorporates a test which is applied to persons who are not close members of the family and who fall within those words.

FRENCH CJ: Does it not just mean that if you are not related to the victim you have to be there and if you are related to the victim you do not have to be there?

MR GROSS: That is right, yes.

GUMMOW J: So it would not overcome Annetts, would it?

MR GROSS: No, because Annetts were parents.

FRENCH CJ: You get to Annetts through 30(2)(b).

MR GROSS: Yes. You still have to jump through those hoops.

FRENCH CJ: Justice Hayne says and Gifford.

GUMMOW J: And Gifford as well, yes.

MR GROSS: Yes. Gifford were two absent children of the deceased. Your Honours, can I just go to Tame.

GUMMOW J: What cases is (2)(a) getting rid of apart from Bourhill & Young?

HAYNE J: The television viewer of 9/11.

MR GROSS: Yes, the television viewer goes and it gets rid of people who arrive after it is all over, that is if you describe all of it being the entire incident at the scene. So you have to have some victims there. You have to have sighting of or direct perception which combines both the scene and the victim.

GUMMOW J: The relevant plaintiffs in the Hillsborough litigation, they were all relatives, were they not?

MR GROSS: I cannot remember whether some of them - - -

GUMMOW J: Or was it just people who were just shocked by seeing third parties being crushed to death on the television?

MR GROSS: Yes. It was not just their loved ones specifically being crushed, it was other people, therefore the victim was a non-relative. Your Honours, could I just go to Tame v New South Wales, if I can, and also Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 211 CLR 317. Would your Honours go first of all to page 333 of the judgment, that is paragraph 17 in the judgment of Chief Justice Gleeson:

In neither of the cases presented before the Court does the outcome turn upon the application of what are sometimes described as the “control mechanisms” of “sudden shock” and “direct perception or immediate aftermath”. In fact, to some extent both cases demonstrate that those concepts cannot serve as definitive tests of liability.

I will pass over the rest of the paragraph and go to paragraph 18:

I agree with Gummow and Kirby JJ that the common law of Australia should not, and does not, limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock, or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. It does not follow, however, that such factual considerations are never relevant to the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another -

Your Honours, both Tame and Gifford were cases handed down before the Civil Liability Act was enacted, and your Honours, it is notable that there is a reference to a case where a plaintiff has directly perceived a distressing phenomenon. Your Honours, the concept of “a distressing phenomenon” or “a distressing incident” is an expression that recurs in a number of judgments, so if you are looking at a distressing phenomenon or incident, you really have to take into account the entire timeframe of that incident rather than cutting it off at its initiation, as Justice Beazley did. Would your Honours then go to page 339. It is in the judgment of Justice Gaudron at paragraph 47:

In the field of pure psychiatric injury, the “direct perception rule”, as it was originally formulated, is explicable on the basis on that it serves to identify persons who, because of their closeness in time and space, should be in the contemplation of the person whose acts or omissions are called into question as persons closely and directly affected and, thus, persons to whom a duty of care is owed.

I will not read the rest of the paragraph, and then the next paragraph:

In Chester, Evatt J identified those to whom a duty of care is owed in terms which reflect the “direct perception rule”. In his Honour’s view, a person who owed a duty of care to take reasonable steps to avoid the risk of physical injury also owed a duty of care to those “already present at or in the immediate vicinity of the scene of the actual or apprehended casualty, and . . . those who will also be brought to the scene for the purpose either of preventing the casualty altogether, or of minimising its injurious consequences, or in the course of a search to discover and rescue or aid any person who is feared on reasonable grounds to have been injured in the casualty”.

Your Honours, although Tame of course is not a rescue case, it is notable that Chester, which Justice Gaudron quotes from, refers Justice Evatt’s words to the situation of persons who were brought to the scene – perhaps either “preventing the casualty altogether”, that does not arise, or “to minimise its injurious consequences, or in the course of a search to discover and rescue or aid any person”. We would submit that when the legislature said about passing the Civil Liability Act in relation to mental harm provisions, the situation of rescuers is a given when you have some injuries, and it would be odd if rescuers would be excluded, although they arrive after the accident has been initiated, particularly given the public policy questions as to the importance of the work that rescuers do. I appreciate that public policy is an unruly horse, but we would submit that it would be an odd result.

KIEFEL J: It might depend on what you say the rescuers suffer. They may on the one hand suffer nervous shock, which seems to be linked to a requirement of direct perception. They might suffer something else which occurs later. In your pleading, you have referred to both nervous shock and post-traumatic stress disorder.

MR GROSS: Yes, the post-traumatic stress disorder was the recognised psychiatric illness which we had to establish as having occurred in order to qualify - - -

KIEFEL J: The matter is being conducted on the basis that that is the psychiatric illness which results from the nervous shock because it is nervous shock upon which you have based this entire action.

MR GROSS: Yes, but we have to satisfy the recognised psychiatric or psychological entity in order to satisfy section 31.

HAYNE J: But in connection with rescuers, rather than resorting to questions of public policy a possible point of view is that the very definition of a rescuer is someone who relieves the situation of peril.

MR GROSS: Indeed, your Honours. Chief Justice Cardozo’s statement that danger invites rescue is regularly repeated in the rescue cases and sometimes one sees that formulation as being peril invites rescue, but regardless of which noun is used, it is inherent in being a rescuer that there are people at risk unless you rescue. Rescuing can involve shortening the timeframe within which the primary victim is suffering from pain and distress in the absence of appropriate medical treatment, medication, attendances by doctors and at hospitals and the like, so that you have a primary victim who is in peril of adverse consequences, be it the exacerbation of the pain or the impact on their minds of either their painful injuries or the spectacle which they are observing and the helpless state that they are in where the derailment has occurred.

Your Honours, just continuing in relation to Tame, if your Honours would go to the judgment of your Honours Justice Gummow and Justice Kirby at page 380 at paragraph 190:

As will become apparent, the requirements of “sudden shock” and “direct perception” of a distressing phenomenon or its “immediate aftermath” have operated in an arbitrary and capricious manner. Unprincipled distinctions and artificial mechanisms of this type bring the law into disrepute.

Just stopping there, your Honours, those sentences themselves give an obvious explanation as to why the New South Wales Parliament did not choose to enshrine the words “immediate aftermath” into the mental harm provisions of the Civil Liability Act because the distinction itself is one which is very hard to observe and apply and it brings law into disrepute. So rather than creating that potential confusion, the New South Wales Parliament took a path different from that which the Tasmanian legislature took. The judgment continues at paragraph 191 on page 381:

Moreover, the emergence of a coherent body of case law is impeded, not assisted, by such a fixed system of categories. Rigid distinctions of the type required by the “direct perception” rule inevitably generate exceptions and new categories, like the “immediate aftermath” qualification, as the inadequacies of the recognised categories become apparent and “hard cases” are accommodated. The old rule that “nervous shock” sounded in damages only where it arose from a reasonable fear of immediate personal injury to oneself, and its subsequent relaxation to permit recovery where the plaintiff feared for the safety of another, illustrates the point. As the categories and exceptions proliferate, the reasoning and outcomes in the cases become increasingly detached from the rationale supporting the cause of action.

We would make the same comments there, your Honour. Would your Honours then go to the judgment of your Honour Justice Hayne at page 405? In paragraph 258, your Honour Justice Hayne said this:

Physical boundary lines (like the zone of impact or danger zone) are flawed because they treat the infliction of psychiatric injury as if it were no more than another form of insult to physical integrity no different in any relevant way from the bodily injury suffered by a person struck by a motor car. Temporal and relational boundary lines confine the class of those to whom a duty is owed in different ways but each seems unrelated to the nature of the injury suffered or to the way in which it may be brought about. Yet on further analysis, all three forms of boundary line (place, time, relationship) can be seen to find their roots in the common considerations mentioned earlier: the concern to limit recovery to the clearest cases, and the need to identify the class to whom a duty is owed.

We would submit that there is not an appropriate identification of the class if there is to be worked into subsection (2)(a) the need to draw a distinction between an incident and its aftermath or immediate aftermath, one of which creates compensation entitlements and the other which does not. If your Honours then go to pages – this is the last reference in this case – 408 to 409, paragraph 267:

If mechanical considerations of geographical or temporal proximity are rejected, and I consider that they should be, rules of propinquity like the “danger zone”, and rules requiring direct impact of events upon the senses of the plaintiff, must likewise be discarded. Indeed, the actual decision in Jaensch v Coffey, that Mrs Coffey could recover, denies the continued application of any such rules. Yet a distinction was drawn in that case between events forming part of the aftermath of the accident, and more remote events. The drawing of that kind of distinction may suggest that the place and time at which the injury is said to have its origin is not irrelevant, but Deane J described its relevance as being found in considerations of logical or causal proximity, not physical proximity.

Now, your Honours, I will pass over the next two paragraphs which discuss the concept of causal proximity and just go to paragraph 270. Your Honour Justice Hayne continued:

“Aftermath” is, of course, not a term of art and I would not understand it to have been used in Jaensch v Coffey in a sense which sought to mark out an identified outer limit to recovery whether by marking some limit of time or circumstances. Rather, it was used to describe a conclusion that, in the facts of that case, the link between negligent act and psychiatric injury was clear and unaffected by other intervening causes or events. It is in that sense that aftermath should be understood.

So, your Honours, if in fact, aftermath is not a term of art and is replete with the risks of confusion and unprincipled distinctions as it has been described it is obvious, we submit, why the legislature did not choose to incorporate that test.

Your Honours, could we just go then to the case of Gifford, where I can just make some brief references. Your Honours, Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269. Your Honours, once again we find in this judgment the reference to “a distressing incident or its aftermath” and I would just like to focus upon those aspects. At page 275, at paragraph 7:

The Court of Appeal decided against the appellants on the ground that there can be no liability at common law for damages for mental injury to a person who is told about an horrific accident or injury to a loved one but does not actually perceive the incident or its aftermath. That proposition is inconsistent with the reasoning of this Court in Tame and Annetts, and cannot stand with the actual decision of Annetts. It does not follow, however, that the circumstance that the appellants were not present when their father suffered his fatal injury, and did not observe its aftermath, is irrelevant to the question whether the respondent owed them, as well as their father, a duty to take reasonable care to prevent injury of the kind they allegedly suffered.

That paragraph, in a way, in its thrust, is reflected in the way in which section 32 sets out a range of circumstances in a list and that is a list which even members of the family have to measure up to. Then can I just go a bit further down on paragraph 9 on page 276 to the last 6 lines:

The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants. Rejection of a “control mechanism”, such as the need for direct perception of an incident or its aftermath, originally devised as a means of giving practical content to that consideration, does not involve rejection of the consideration itself.

Your Honours, the concept of aftermath, in effect, developed as a means of courts mitigating the observed harshness of some of the outcomes in nervous shock cases and so that extension, which I think commenced in England and came here, was one which added some time on but in the end it is not a useful concept in looking at the current legislation where clear lines were intended by the legislature. Your Honours, the judgment of Justice McHugh at page 290 at paragraph 52 – I will not read the first five lines of that, but in paragraph 52, the fifth line of that:

As members of this Court pointed out in Tame, in determining whether the psychiatric injury suffered was reasonably foreseeable, relevant considerations may include whether the person who suffers that injury directly perceived the distressing incident or its immediate aftermath or suffered a sudden shock.

Once again, those factors surface in some of the paragraphs of section 32.
Your Honours, at page 294, paragraph 65, in the judgment of your Honour Justice Gummow and Justice Kirby:

Tame v New South Wales and Annetts v Australian Stations Pty Ltd, which were heard and decided by this Court after judgment was delivered by the Court of Appeal in the present case, determined that liability in negligence for “nervous shock” does not depend upon satisfaction of an absolute requirement that a plaintiff “directly perceive” the relevant distressing incident or its “immediate aftermath”.

Your Honours, the expression “the relevant distressing incident”, however, as an expression is pertinent in the present case because one has to fully describe that distressing incident rather than abbreviate the time span and therefore distort what the true distressing incident is as regards persons in the position of the plaintiff. Your Honours, could I then go to page 304 in the judgment of your Honour Justice Hayne, paragraphs 98 and 99. At the middle of paragraph 98, six lines down:

In Tame and Annetts, the Court held that some forms of control mechanism, which it has been suggested should be applied to limit recovery for psychiatric injury, should not be adopted. “Normal fortitude” was held not to be a precondition to liability. “Sudden shock” was held not to be a necessary requirement for such a claim. “Direct perception” was, as I have said, also rejected.

The rejection of these tests may, or may not, be consistent with developing other control mechanisms in the future. For my own part, I remain of the view that if psychiatric injury extends to all the conditions which psychiatric medicine would classify as a form of “psychiatric injury”, it will be necessary to develop one or more control devices in substitution for those which have now been rejected.

Obviously the Parliament took that line. Your Honours, finally at Justice Callinan’s judgment at page 309, his Honour quotes from what his Honour said in Tame, about eight lines down in paragraph 118:

Those principles are currently in summary these. There must have occurred a shocking event. The claimant must have actually witnessed it, or observed its immediate aftermath or have had the fact of it communicated - - -

et cetera. Once again, one has to have a shocking event. Whether it is called an event or incident or even accident, although accident tends to be applied more to the initiation of damage, your Honours, we submit that Justice Beazley unduly narrowed the time span.

HEYDON J: Can I, if it is a convenient pause in your argument, Mr Gross, ask you this question?

MR GROSS: Yes.

HEYDON J: One thinks of victims being killed or injured or put in peril by stanchions crushing them or live wires swinging near them, but would you accept this argument as part of your case, that these plaintiffs witnessed victims who were being put in peril of themselves suffering psychiatric injury or a mental illness because of everything that was happening around them. In other words, just as the rescuers are greatly distressed by what they see, presumably the victims are too, and they are, therefore, in peril of later manifestations of mental illness.

MR GROSS: Indeed, your Honours, and - - -

HEYDON J: Is there any statutory problem with anything in the section that weakens that argument?

MR GROSS: We would submit not. As discussed, the expression is “put in peril”, and “peril” has to be, obviously, of an adverse physical or mental consequence and as the courts have regularly held, the risk of mental illness is treated on the same basis as risks of physical injury, that is, both are injury-type events that can be of significance, and we would submit, and we have always submitted, that the primary victims, the passengers, were at risk from being exposed to psychological trauma.

Now, your Honours, putting aside the facts which I keep promising I will go to briefly, your Honours, it is evident that there must have been that peril or risk of psychological injury. If one looks at what the cases have held in similar circumstances, the courts have held that it is obvious that when you have a train disaster, or some other horrific injury, it is replete with foreseeable risk of psychological injury to persons who either come to the aid of the injured person or view that particular situation.

Can I just briefly give your Honours those references, if I may? Your Honours, the English case of Chadwick, which was a train disaster case, is a good example - Chadwick v British Railways Board (1967) 1 WLR 912. Your Honours, this was a serious railway accident caused by the defendant’s negligence in which 90 persons were killed. It took place at Lewisham. The plaintiff’s late husband lived nearby and went down and helped with rescue activities for a considerable period of time.

Your Honours, the judgment of Justice Waller, who heard the matter, who heard the matter, at page 915 G, describes the evidence of Mrs Taylor. Mr Chadwick’s evidence is described in the preceding paragraph - I will not read that - but at G:

Mrs. Taylor, who was a passenger in one of the trains and who sustained dislocated hips, a fractured pelvis, a fractured thigh and severely lacerated legs, gave evidence and described how she was trapped up to the waist as a result of this accident. She said that there was a young girl beside her and a man suspended above her, his hands taking his weight. There was another railway carriage on top and a young girl hanging out of the window screaming. Mrs. Taylor was afraid that the other carriage would come on top of her. Then, she said, Mr. Chadwick came; he was cheerful and gave comfort to Mrs. Taylor. After going round to the other side, he told Mrs. Taylor that her legs were broken, and then a light was produced and Mrs. Taylor saw above her a girl impaled on a girder and saw that her own left leg was, as she said, mangled and scarlet with blood. In another phrase, she described herself as being on a sea of bodies, including a man underneath her who was dead, and she also described how there was a hand sticking out which caught hold of Mr. Chadwick’s jaw as he went past. Mr. Chadwick was a fairly small man and the doctor who was attending at that particular part of the accident used Mr. Chadwick to crawl into the wreckage where he, the doctor, was too big to go and he got Mr. Chadwick to give an injection to Mrs. Taylor.

In spite of the great time difficulty, I am quite satisfied that Mrs. Taylor was giving an accurate account and that the scene of this catastrophe was such as would not normally be seen -

et cetera. Then if your Honours then go over to page 918, the first paragraph at the top of that page:

Furthermore, although there was clearly an element of personal danger in what Mr. Chadwick was doing, I think I must deal with this case on the basis that it was the horror of the whole experience which caused his reaction.

Bearing in mind, of course, the passengers were exposed to the whole experience because at the time when the rescuers arrived they had already been through all this. So that while they remained there at such a distressing scene the ongoing cumulative effect of being exposed to all this obviously was replete with risk of mental harm. Your Honours, at page 920, Justice Waller, in the middle of that paragraph around about F, says this:

I therefore must ask myself whether injury by shock was foreseeable in this case. The scene described by Mrs Taylor was the kind of thing to be expected if trains collided as these did and it was one which could, in my view, properly be called gruesome. In my opinion, if the defendants had asked themselves the hypothetical question “If we run one train into another at Lewisham in such circumstances that a large number of people are killed, may some persons who are physically unhurt suffer injury from shock?” I think that the answer must have been “Yes.”

The third question is: did the defendants owe a duty to the plaintiff, who was not their servant but who had come to their aid? The test is: what ought the defendants to have foreseen?

Then on page 921, after the long quote, his Honour at E continues:

In the present case, the defendants were negligent towards their passengers. As a result, passengers were injured and put in peril. All of that could reasonably have been foreseen. It could also be foreseen that somebody might try to rescue passengers and suffer injury in the process, and in my opinion the defendants owed a duty to Mr Chadwick, who was within the area of contemplation.

Your Honours, can I just then briefly refer to the decision of this Court in Mount Isa Mines Limited v Pusey (1970)125 CLR 383 on the same question of the foreseeability of mental harm where persons come across someone who has suffered gruesome injuries. Now, this, of course, is an employer/employee case, so you already have an existing duty of care between the plaintiff and the employer. Your Honours, the headnote at page 383 sufficiently summarises the facts:

The defendant employed the plaintiff as an engineer in its powerhouse. While the plaintiff was so working, two fellow employees who were testing a switch-board were severely burnt by an intense electric arc caused by their negligence. The defendant had not properly instructed them in their duties. The plaintiff went to the scene and saw one of the electricians with whom he was not acquainted, severely burnt . . .

Held, it was not necessary that the particular injury from which the claim arose should have been foreseeable; it was sufficient to found liability that the class of injury, mental disorder, was foreseeable as a possible consequence of particular conduct.

Your Honours, at page 388 in the judgment of Chief Justice Barwick, about a third of the way down the page, this is describing what the trial judge thought:

He thought that injuries which the employer ought to have foreseen could result from the employees’ misuse of the multi-meter could include what he described as “gruesome burning injuries”. The trial judge further found that a reasonable employer in the circumstances ought to have foreseen that a fellow employee seeing another employee suffering from such gruesome burning injuries might well suffer some psychological reaction of more than a transient kind.

Your Honours, the risk of mental harm to these passengers did not have to be a risk of permanent or major psychiatric disorder. It only had to be a risk of some mental harm. It may have been mental harm which was short term in its duration as to how it affected the person, but we would submit that it is evident that some mental harm was at risk of occurring in relation to the surviving passengers. Chief Justice Barwick repeats the same message at page 389, the last paragraph on that page:

Accepting for the purposes of this case that liability is all one question depending solely on foreseeability, I turn to consider the very limited submissions made in this case. I have set out the relevant facts and circumstances. Basically they are that an owner-operator of a powerhouse uses conductors carrying electricity at a high voltage: it employs persons whose duties include the taking of readings by means of a multi-meter. I cannot doubt that it could properly be held that as an employer such an owner-operator could and ought to foresee that misuse of such an instrument in connexion with a high tension current of electricity might, through an intense electric arc, cause an employee in proximity to the conductors carrying such current to be severely burnt. I think it could be held that such an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen - - -

FRENCH CJ: How do these cases relate back to the contested language in section 30(1) and (2)?

MR GROSS: Your Honours, can I just read the last sentence in that then answer your Honour’s question, if I may?

FRENCH CJ: Yes.

MR GROSS: His Honour continues:

So much I think is within the ordinary experience of people who work with electric current, particularly electric current at a high voltage. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances.

Your Honours, answering your Honour the Chief Justice’s question, the words “the plaintiff witnessed at the scene the victim being put in peril”, the surviving passengers were in peril of some form of mental harm by remaining there, or continuing to remain there after the rescuers arrived at the scene, and also both plaintiffs gave evidence that they perceived that those persons were in that peril by reason of that factor. If one is looking at “put in peril”, either from the victim’s actual situation or what the plaintiff witnesses, it satisfies both requirements in subsection (a).

I appreciate, your Honours, that the cases I have gone to are in the context of other cases or other factual situations where the concept is foreseeability of injury rather than peril, but we would submit that the reasoning expressed in those passages I read reflects common understanding and common knowledge as to what the risks are in that situation, so it does not require some psychiatrist to unravel all of the facts and define that there is a risk or peril.

Your Honours, can I then go, if I may, to Justice McColl’s judgment and the errors that we contend arise there, because although Justice McColl disagreed with Justice Beazley in relation to the construction of section 30(2)(a), Justice McColl still found against the appellants. Your Honours, at paragraph 144 of Justice McColl’s judgment – paragraph 144 is in the context of how section 30 should be read. Her Honour is giving a series of reasons which are listed firstly, secondly, thirdly and fourthly over the next couple of pages, but her Honour gives signs of the relevant error in paragraph 145. Just to create context, I will read the last sentence of paragraph 144:

Nor does it -

that is section 30 –

refer to any “accident” per se, but, rather, to the “scene” of the event relevant to establish entitlement to make a claim.

Examples can readily be brought to mind in which an accident may occur, for example the collision of motor vehicles, in which the victim is neither killed nor injured at the moment of impact but, because of the circumstances of the collision, is “being . . . put in peril” until rescue because of the danger of the motor vehicle exploding. Should rescue attempts fail and the victim be killed or injured in an explosion after the immediate impact, those present would witness the victim “being killed, or injured . . . ”.

Then there is another example given of a passenger being left in a carriage teetering, about to plunge over a cliff, or the situation taken from Chadwick that they are put in peril because another train might crash into them. Her Honour then says:

These situations are all capable of falling within s 30(2). It is not helpful, in that context, in my view, to read into s 30(2)(a) concepts such as “immediate aftermath” or “aftermath ”, or interpret s 30(2)(a) by reference to them.

Now, if I can just move on then to the particular error, your Honours. The next passage is at paragraph 150. At paragraph 150 her Honour in the last sentence says:

The question whether the putative plaintiff witnessed the events described in s 30(2)(a) falls for objective factual determination in each case.

Then under the heading “The primary judge’s approach”, paragraph 151, her Honour says:

Malpass As-J held (at [76] – [77]) that the words “at the scene” in s 30(2)(a) were “referable to the scene of the shocking events brought about by the defendant’s acts or omission during which the victim is killed or injured or put in peril”, so that, in order to recover damages, a plaintiff had to “witness, at that scene, the victim being killed, injured or put in peril”. For the purposes of the present case he held that the “scene” was “that of the accident involving the derailment”, but did not refer “to what happened thereafter (which may be conveniently referred to as the aftermath)”. He concluded (at [78]) that the meaning of the expression “to be put in peril” should be determined by reference to the dictionary meaning which he said “connotes being exposed to serious and immediate danger” and the statutory context which “suggest[ed] that the words were intended to pick up persons who were neither killed nor injured but were exposed to serious and immediate danger of being either killed or injured”. He added that he did not consider the words connoted “mere possibilities”, but that there had “to be a witnessing involving an actual state of peril”.

The notable thing about Justice Malpass’ judgment on this point is that the words “being put in peril” confined primary victims in that category to those who were not already injured or, obviously, were not already deceased. So that the words suggest that the words were intended to pick up persons who were neither killed nor injured, but were exposed to immediate danger of being killed or injured. Then her Honour at - - -

HEYDON J: The longer it takes to find the error, the less chance there is that there is an error.

MR GROSS: No, no, your Honour, I am trying to read my writing, your Honour. At paragraph 162 her Honour states this:

I would also reject the appellants’ contention that the possibility that the victims’ conditions may deteriorate either during the rescue operation or if medical attention was not promptly administered, constituted witnessing a victim “being . . . put in peril”. Those being rescued had already been injured. Their causes of action had accrued –

and then some references are given. Paragraph 163:

In my view the evidence that the victims’ conditions may deteriorate did not constitute them “being put in peril” in the sense for which s 30(2)(a) provides. They had been injured and, like all in that position, required expeditious medical treatment. But they were not exposed to a danger which was a sequelae of the derailment in the sense that some aspect of the derailed train and/or the surrounding environment posed a danger. While deterioration in their condition was a continuation of their original injury the evidence did not objectively demonstrate that they were imminently exposed to further injury.

So her Honour appears to have focused upon “killed, injured, or put in peril” as to what is sufficient - - -

GUMMOW J: I think her Honour may have overlooked the fact that these people were still being killed; they were bleeding to death. It is not just a question of people getting their heads chopped off in some public execution.

MR GROSS: Yes, but in terms of the reasoning, her Honour appears to have adopted Justice Malpass’ reasoning that “put in peril” only includes those who are not injured already, and if in fact you have had sufficient injury – physical or mental – to complete your cause of action as a primary victim, then the injury has already occurred and therefore you cannot be one of the people who are being put in peril, but in any event, paragraph 163 - - -

CRENNAN J: It does not seem to mention at all, or to consider, the possibility of mental harm to the victim.

MR GROSS: No, your Honour, it does not, and that was plainly contemplated in the summary of matters in Justice Beazley’s judgment. True, we lost for other reasons, but her Honour seems to be looking at some separate or different injury from that which you have already got, and her Honour is not really considering exacerbation, or increased pain, or pain for a longer period of time because you are not being treated and the like, so - - -

KIEFEL J: Her Honour is perhaps reading the “put at risk of” as being restricted by the preceding words “killed or injured”. Therefore if you have not been killed and you have not been injured the only thing you could be put at risk of is one of those things yet occurring to you and that seems to be her Honour’s approach.

MR GROSS: Yes. Her Honour appears to have – certainly Justice Malpass did, but her Honour, on this reading, appears to have treated the three alternatives as being mutually exclusive categories and you cannot get into category 3 if you have already reached – well, category 2 – by being injured.

HAYNE J: It assumes that all accidents are single instantaneous events.

MR GROSS: Yes.

HAYNE J: Not all accidents are. Take, for example, the regrettably all too common event of a trench cave in. Has that accident finished once the trench is caved in. What is happening to the people on top who are trying to get the victim out?

MR GROSS: Often in order to extract people for when they are trapped things have to be done in terms of causing pain and disturbance of broken limbs and the like. Your Honours, I note the time. Can I, rather than go back to the facts, just give a number of illustrations. We have summarised these matters in our written submissions but, for example, in the case of Sheehan he describes that after he arrives he sees someone who has severe head injuries and limb injuries and he thinks he is dead but he is going past him and then that person who must have been there for at least 15 or 20 minutes between the time of the crash and when the rescuers arrive moves a limb showing signs that he is still alive. Now, that person is at risk of all sorts of adverse physical consequences that amount to injury or additional injury because unless he is rescued he would remain there and he has no power to get himself off to a hospital or a doctor without being carried.

Your Honours, I think there were 44 people on the train. There is a reference in the evidence to the fact that at one stage – put aside the seven who were killed – 30 of them were on stretchers and if in fact 30 stretchers were required after these people were assessed these were people who were obviously at risk or in peril of further injury to themselves if in fact they were not transported in that way. As your Honours appreciate, there were

some triage areas from which persons would be carried to an additional triage area where a four-wheel drive would then drive them up the hill to where the ambulances were waiting.

So we would submit that it is evident that the entire group of 30 who were on the stretchers certainly required assistance because of the risk of some injury occurring, physical or mental, unless they got that aid from the rescuers. Your Honours, I think that completes my submissions, unless there is some further matter.

FRENCH CJ: Thank you, Mr Gross.

MR GROSS: Thank you, your Honour.

FRENCH CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honours, I propose to offer our construction submissions first and then move to the legislative history, including the common law background and to put a different position on that than has been discussed so far this morning and then finally to deal with the facts. The facts are important because there is a disconnect between the peril which Mr Gross has been emphasising and the psychiatric illness and shock, if any, that the appellants were putting forward. I will come to that last, if I can. Your Honours, with the statute, commencing with section 29 - - -

GUMMOW J: I think you need to raise the podium, Mr Gleeson.

MR GLEESON: Could I commence with section 28. Section 28 indicates that Part 3 of the Act applies however the claim is framed. As long as it is a claim for damages for mental harm, as defined in section 27, resulting from negligence there defined, then the part has application whether the claim is a common law claim or a State statutory claim, one infers. Our first submission is that there is a clear statutory intent that this part will limit or modify rights which might otherwise exist and be recognised by law, and there is no reason to read it restrictively.

Second, coming to section 30(1), the purpose of that section is to identify a subset of actions within the larger set of actions in section 32 which will be governed by certain special rules, that the subset of actions requires there to be first, pure mental harm defined in section 27 to mean it is not consequential upon a personal injury and, secondly, it is pure mental harm arising wholly or partly from mental or nervous shock. That has not received much emphasis this morning from the appellant. This section 30 deals with the subset where mental or nervous shock is said to be the whole or partial cause of the pure mental harm.

Next, there are some linking words in connection with – and we submit that they would link the mental or nervous shock with what follows rather than that they link back to the pure mental harm. We accept that in connection with our broad words of linkage and the linkage is thus between the shock said to be suffered by the plaintiff and an intrusion upon a victim, which must mean an identified victim as the associate justice correctly held. Can I say a little more about that intrusion. The intrusion on the victim involves the victim being killed, injured or put in peril by an act or omission of the defendant.

We do submit that “killed, injured or put in peril” naturally speak to three distinct situations. Of course, one situation, being put in peril, might lead to another injury which might lead to death, but they do seek to capture three situations and when I come to Justice Evatt’s judgment in Chester, I will submit that the real reason we have the words “put in peril” there is to capture what Justice Evatt referred to as the “apprehended casualty”, whereas “killed or injured” spoke of the actual casualty.

It also follows that – coming to one of Justice Heydon’s questions – in our submission, this language which derives from the 1944 Act in the context of the then common law is speaking naturally and primarily of physical processes by which an act or omission of a defendant which can be identified has in a causal sense resulted in an actual or apprehended casualty to an identified victim.

Your Honours, next could I come to section 30(2)? This operates as a bar upon entitlement to recover damages unless either (a) or (b) is met. It can be viewed as a reversion to an approach once favoured by the common law and rejected by this Court at common law in Tame and Gifford of establishing preconditions, preconditions to an entitlement to recover damages, preconditions which govern the entire way in which the plaintiff might otherwise seek to recover those damages.

Could I then mention that whereas subsection (2) creates preconditions by reference to the plaintiff and the plaintiff’s relationship to the victim, subsections (3) and (4) operate to reduce the damages a plaintiff can otherwise recover, again by reference to the identified victim, so the contributory negligence of the victim is inflicted upon the plaintiff and if there is an absolute bar, that is also inflicted upon the plaintiff. What that tends to emphasise, we suggest, is that in the whole of section 30 an approach is being taken, rejected in Tame, but now the statutory approach, of fairly restrictively limiting recovery in this type of case – a nervous shock case – by close reference to the particular victim - - -

GUMMOW J: Why do you say “particular victim”?

MR GLEESON: The particular victim, your Honour - - -

GUMMOW J: It just says “another person”.

MR GLEESON: Another person - - -

GUMMOW J: On ordinary principles it would include person or persons, would it not?

MR GLEESON: There can be more than one, of course, your Honour, I accept that and one of the difficulties of this case and many is what happens where there is more than one victim, but allowing for that, subsection (1) has spoken of “in connection with another person” being - - -

GUMMOW J: I realise that, but as a matter of statutory interpretation, the interpretation legislation would include the plural, would it not?

MR GLEESON: Yes and, your Honour, when one then comes to subsections (2), (3) and (4), which was where I was seeking to draw the close identification - - -

GUMMOW J: That is an artificial definition, “the victim”.

MR GLEESON: “The victim” is the victim who has brought you within this section at all under subsection (1).

GUMMOW J: It may be a plurality. It may be a collective noun is what I am putting to you.

MR GLEESON: Yes, but the submission I am wishing to put is that where one has a single victim it is relatively straightforward. One applies subsection (2) in respect of that victim and one applies subsection (3) and (4) likewise in respect of that victim. Where one has more than one - - -

GUMMOW J: You have to be careful, Mr Gleeson, you may talk yourself out of the section. Maybe the section does not apply to mass catastrophes.

MR GLEESON: Your Honour, there are a number of ways in which the section may play out. One example, which is this case on the facts for at least one and possibly both of the gentlemen but your Honours are not currently concerned with it, is, if a plaintiff says nervous shock is the element of my claim and the plaintiff ultimately fails to establish mental or nervous shock, the plaintiff’s only gateway to recovery is section 30 and the plaintiff will fail. Now, your Honours asked a question earlier of Mr Gross, how does section 30 sit with section 32? It is clear that section 32 covers a broader category of cases of mental harm. It covers the whole gamut of mental harm and then it speaks specifically of pure mental harm in subsection (2). Section 30 is designed to deal with an even narrower subset, which is pure mental harm arising from nervous shock, and it sets out the rules of that area. But coming back to your Honour Justice Gummow’s question, before one moves to the mass rescue, if one takes the simpler case of two victims - - -

GUMMOW J: How does this section work with contract law, by the way? How does section 30 operate in a contract?

MR GLEESON: It says in terms that the - - -

GUMMOW J: It leaves the contract in place, does it, but just denies recovery of damages? Is that what it is doing?

MR GLEESON: It does not avoid the contract, your Honour, is correct, but as with some earlier parts of the Act that were dealt with in Torano, it says the putative claim for damages which the contract might otherwise generate is one which the law does not permit to be enforced and that is part of the breadth of the section. Could I come back to the example of two victims and a case where one victim is put in peril in a relevant sense but ultimately escapes uninjured and a second victim is injured.

Let us assume that the victim injured does not permit subsection (2) to be satisfied, that is, there was no close family relationship, and there was no witnessing at the scene, it was reported afterwards. The view we are offering the Court is that the pure mental harm which is permitted to be recovered is only available where it arises wholly or partly from shock in connection with what I will call a qualifying victim. The difference between the parties on this is rather profound, because what Mr Gross is urging in his written submissions is that this section operates as what one might call a general gateway. Once you tick a box, for instance, I am a close member of the of a victim at a scene, I can then recover for all my pure mental harm arising from any shock without further identification.

The view we are offering to the Court is a narrower view that the victim within subsection (2) is the victim who has brought one within the section under subsection (1) and that the pure mental harm and the shock must be connected to the intrusion upon that victim.

HAYNE J: How does that work in this case where there were by all accounts, what, 40-odd people injured in the accident?

MR GLEESON: Your Honour, I want to come to that on the - - -

HAYNE J: No. Let me just understand this point you are making because it seems to be a point t you regard as important. You say there must be a connection with the particular — I think you describe it as qualifying victim, is that right?

MR GLEESON: Yes. I use that as a - - -

HAYNE J: The nervous shock must be related to the victim, is that right?

MR GLEESON: Yes.

HAYNE J: What, you carve up the shock, do you, of the plaintiff and say, well, so much of the shock was attributable to observing particular injured passenger X and other parts of the shock attributable to witnessing particular injured passenger Y? Is that the submission you are making?

MR GLEESON: Yes.

HAYNE J: That is going to add new complexity, is it not, to not least the medical evidence that would have to be tendered?

MR GLEESON: No, your Honour, because when I come to the facts, one of the particular features of this case is — and I fully accept, as one must, the distressing nature of this scene — the medical evidence, unsurprisingly, went to these points. Firstly, it did not identify shock as such. It, in fact, described a different scene, an eerily quiet scene, but, secondly it identified a distress suffered at a later time by reason of scenes of people who had died or who were injured.

KIEFEL J: I am not sure if this is a convenient time to ask you because I think you might be continuing your answer, but at a convenient time, could I come back to the question of the post-traumatic stress disorder and its connection with shock, but you may have done with that.

MR GLEESON: No. Perhaps your Honour should ask me.

KIEFEL J: The particulars of injuries given in the amended statement of claim in appeal book 5 refer generally to psychological and psychiatric injuries, which is not particularly helpful, and post-traumatic stress syndrome which is, as I understand it, what the medical evidence points to, at least more clearly in one case, nervous shock in (c) and major depressive disorder. The issues stated for the Court which appear in the primary judge’s decision at appeal book 807 and 808 which we are said to be concerned with raise a question first about section 30(2) which assumes that we are talking about nervous shock. Then 3:

Did the Plaintiff’s attendance at the derailment cause him to suffer a recognised psychiatric illness?

Nervous shock I do not think of itself is a psychiatric illness. There appears to be an assumption here that the nervous shock leads to the psychiatric illness that we are talking about, that the two are necessarily entangled and that is where I wonder, has it been conducted on the basis that post-traumatic stress disorder may arise or must arise or is given rise to by shock or are we left in a position where the claim for post-traumatic stress syndrome might be something quite separate and is not connected to, necessarily, any nervous shock immediately occurring? That depends a whole lot on evidence that we do not have before us, of course, but do you see my concern? I am a little confused about the assumptions perhaps upon which this has proceeded.

MR GLEESON: Your Honour, the position appears to be this. The case as pleaded and mounted by the appellants took on section 30 as a necessary gateway in order to obtain recovery. For that purpose the appellants took on a burden of establishing that there was in truth nervous shock and then that post-traumatic stress disorder was pure mental harm arising wholly or partly from that. The difficulty for the appellant in that is that the evidence of the appellants and the medical evidence did not support a case of mental or nervous shock.

Now, one of the reasons why question 3 needs to go back to the Court of Appeal and your Honours cannot deal with it is that the learned associate justice has gone a significant way towards eliminating any case based on shock but has not finally done that. Can I just show why that is? That is at page 820. When he was dealing with question 1 which was the duty of care, having regard to section 32, he rejected the section 32 case between paragraphs 65 to 68. We submit they are findings, brief as they are, but findings that there is no duty of care under section 32.

There are three elements to that finding. The first is a lack of material evidence. The second is that when his Honour came to section 32(2) the first factor was that there be sudden shock and his Honour made a finding of fact that the evidence did not demonstrate that mental harm was suffered as a result of sudden shock. The respondents had the benefit of a current finding that there was no sudden shock. His Honour then went on to say that the circumstance listed in (b) had not been made out. Now, that finding will depend upon what your Honours consider on this appeal but he has eliminated 32(2)(a).

KIEFEL J: Does the application of section 32 require only that there be sudden shock? It is an inclusive list, is it not?

MR GLEESON: It is, and I think - I withdraw that. We accept that the word “include” in section 32(2) must be given its ordinary meaning so it has directed one to four factors to be taken into account, four mandatory factors in determining the circumstances of the case which in turn go to determine when there is a duty. So all I am putting here is that his Honour has found that the first of those factors is not relevant. He has made a finding on the second factor and the third - - -

KIEFEL J: I am sorry, but do you say in relation to sudden shock that it is, although there may be other things which may be added to that list, if you do not establish sudden shock you do not get over the first hurdle of duty of care?

MR GLEESON: Yes.

HAYNE J: Sorry? You accept the proposition that absent sudden shock, no duty?

MR GLEESON: No, your Honour.

HAYNE J: Is that what you are saying? What is your proposition?

MR GLEESON: The question I agreed with was, do we say there is a finding by the trial judge that there was not the sudden shock necessary to establish the first of the four factors in section 32(2)? The answer to that is we do submit that and in the Court of Appeal the respondents said one of the reasons we can properly hold onto the judgment is that we have a finding on duty of care and that is one element of the finding. I did accept, your Honour, that the word “include” in section 32(2) must be given its ordinary meaning and, in effect, the Parliament has taken four of the factors that were referred to in some of the judgments in Tame as still being relevant to the circumstances of the case and given them a particular statutory force.

KIEFEL J: I understood you to accept the proposition that you might say that the word “include” might mean that you might add to other matters in the list but that the four that are listed are, in terms, mandatory requirements that must be met and if A is not met, you fail at the first hurdle. Is that what you - - -

MR GLEESON: Could your Honour just give me a moment?

KIEFEL J: If that is so, Mr Gleeson, I would like to know where that leaves post-traumatic stress syndrome in this case.

MR GLEESON: I do not put that, your Honour. What I wish to put is that in considering what other circumstances of the case, as the Court is required to do under subsection (1), the Court must take into account the four matters in subsection (2) to the extent they are relevant.

FRENCH CJ: But they are not necessary conditions of the foreseeability that grounds the duty of care.

MR GLEESON: I accept that.

KIEFEL J: Does the medical evidence to date suggest that for post-traumatic stress syndrome sudden shock is required?

MR GLEESON: Mr Morris tells me – and I believe it is accurate from my review of it – that the medical evidence in this case did not give close or specific or direct attention to that issue. What the medical evidence was directed to were other issues.

KIEFEL J: So the question of what happens with section 32 and the claim for post-traumatic stress syndrome is at large?

MR GLEESON: If the appellant were successful and the matter went back to the Court of Appeal, we agree with Mr Gross that the Court of Appeal would need to look at question 1 and question 3. In the course of those questions, the respondent would be entitled to say we currently have a finding there is no sudden shock, and coming back to section 30, there is then a question whether mental or nervous shock in section 30 has a broader meaning than sudden shock in section 32.

HAYNE J: Does not the expression “post-traumatic stress disorder” or “post-traumatic stress syndrome” convey the notion that there has been a trauma?

MR GLEESON: It conveys the notion there has been a - - -

HAYNE J: A traumatic event.

MR GLEESON: One or more significantly stressful events and then - - -

HAYNE J: What, in the evidence in this case, was identified as the relevant traumatic event, or the relevant traumatic events?

MR GLEESON: The relevant event was arriving at a scene at which persons had already been killed and at which persons had already been injured, and to use one word perhaps, the devastation of that scene. What the evidence did not explore on the appellant’s case at all, and this is the factual matter I am referring to, the appellants themselves gave no evidence of the impact upon them at the scene. They gave no evidence that the prospect that injured people might get worse or might be suffering psychological trauma had any impact upon them.

KIEFEL J: They might have been rather busy at the time.

MR GLEESON: Yes.

CRENNAN J: Did not one of them say that he carried a person, whose legs were injured, by a particular route so as to avoid increasing her distress by observing other victims.

MR GLEESON: Yes. Your Honour, the best references for that are at pages 60 and 67 of the book. The point I was seeking to get to was that the expert evidence identified the stressful event as seeing the carnage; people dead, people injured. None of the evidence went to say that the stressful event was the fear that people’s injuries would get worse or the fear that people might suffer psychological injury. None of the evidence at the lay level or the expert level identified that as being a stressor for the psychiatric illness or that as involving any form of shock.

KIEFEL J: No, I realise there are questions which often arise when agreed issues are stated as agreed, and one of them perhaps is this. Given the statement of agreed issues, what do you say has happened to the case for post-traumatic stress syndrome? Is it still within the issue numbered 3?

MR GLEESON: It is, and I say that at a factual level it is has been rejected by the master. That is apparent particularly on page 824. This is in a section commencing at paragraph 83 which Mr Gross accurately observed is described as “unnecessary to consider” but “observations”. In paragraph 84:

The defendant conceded . . . that Mr Wicks had suffered a recognised psychiatric illness as a result of his exposure to the derailment.

So Mr Wicks has satisfied the section 31 box. However, there was a dispute about the case of Mr Sheehan and that was for good reason because the expert evidence identified that his difficulties were related to a number of other matters including his hearing loss. In any event that matter is open. At paragraph 86 his Honour found that:

The evidence (including that of the plaintiffs and the experts) falls hopelessly short of relating any psychiatric illness to any victim. The thrust of the evidence is to relate their problems to other matters (including the overall impact of their exposure to the scene of the derailment, the carnage and the seeing of dead and injured bodies). For this deficiency alone, both claims are doomed to failure.

HAYNE J: Do you support that reasoning?

MR GLEESON: Yes.

HAYNE J: What is the relationship that is spoken of as necessary in line 2 of paragraph 86?

MR GLEESON: The relationship is that the pure mental harm which is propounded by the plaintiff must be shown to arise wholly or partly from something which is properly characterised as mental or nervous shock but further, mental or nervous shock which has the requisite connection with an identified victim suffering the relevant intrusion described in the section.

HAYNE J: What is the requisite connection to which you refer in your last answer?

MR GLEESON: That the mental or nervous shock arose through the connection which satisfies subsection (2)(a), namely, one where it arose from the actual witnessing by the appellant at the scene of the victim being “killed, injured or put in peril”. So at that point I accept his Honour’s finding brings one back to the critical construction issues, but to the extent it is a factual finding, he has, with respect, correctly summarised the evidence that none of it sought to embark upon that task, assuming that to be the relevant task as we submit it is. Your Honours, just continuing then with the - - -

GUMMOW J: Was there any discussion by the primary judge of the psychiatric evidence?

MR GLEESON: Yes, your Honour. His Honour proceeds in two steps. Firstly, he identifies the evidence of the appellants themselves as to what occurred. That commences at page 811 in relation to Mr Wicks, particularly paragraphs 29, 31 and 33. There is a credit finding in paragraph 34. In relation to Mr Sheehan, there is then a more detailed discussion commencing at paragraph 35. In both cases his Honour has quite properly reviewed the evidence of the earlier stressful incidents that each of the appellants had suffered.

In the case of Mr Sheehan, we see those earlier incidents in paragraphs 37 and 38 and it left him with a physical ailment being “damage to his hearing and the suffering of tinnitus. Thereafter, his hearing loss deteriorated.” Paragraph 40, “unsuccessful ear surgery”. That was three months after this incident, and it was shortly after that that he was demoted to an exhibits officer and discharged. In paragraph 41 his Honour considered that Mr Sheehan’s initial report as to injury in this event did not include any matters of a mental nature. Those matters were first raised in a “workers compensation claim on 24 May 2004” and he described it as exposure to “injured and deceased persons”.

There is then reference to the reports, including at paragraph 42, the report that:

His symptoms have largely resolved, his work situation is not exacerbating any anxieties –

and then there is reference to the further experts, including the difficulties with his hearing loss at the foot of 44. It was in June of that year that he applied for the medical discharge. So at paragraph 48 we submit that his Honour has made an accurate finding of the state of the evidence led by the appellants as to their experience at the scene and I do observe the last sentence of paragraph 48 which was the matter I adverted to earlier as to the absence of evidence of the impact it had upon them. His Honour then moved more particularly to review the various experts and what they had opined.

FRENCH CJ: He does not seem to reject any of their opinions, but we get to the first what I might call “bottom line conclusion” at 68, that is the 32(2)(a) question and he rejects the proposition that:

mental harm was suffered as the result of a sudden shock.

But he does seem to leave open, and accept that that leaves open, the question whether there was mental harm “arising wholly or partly from mental or nervous shock in connection with another person”, in other words that that poses a different question to which he then proceeds concluding, I think, at paragraph 86, to which you took us earlier.

MR GLEESON: Your Honour, I believe that is accurate. I would just observe that in 58 there is some analysis of one of the expert’s opinion as to what, in truth, was the stressful event for Mr Sheehan and that is why Mr Sheehan’s case raises some particular factual issues. I have accepted that paragraph 68, which rejects “sudden shock” is not a finding in terms of the precise language of section 30.

FRENCH CJ: When he gets to 86 his rejection of the requisite connection seems to be because the psychiatric illness was not “related to any victim” but “other matters”.

GUMMOW J: And that ties up in a way to 48 on page 815 which is perhaps a curious paragraph.

HAYNE J: Paragraph 48, in particular, but the other paragraphs together present the more general question about whether these are findings about duty, which I thought was a question of law, or findings about causation and if they are findings about causation, whether they are relevant findings about causation. Now, there are several questions wrapped up in that proposition, Mr Gleeson. One, do you accept that duty of care is a question of law, not of fact?

MR GLEESON: I do not accept that. In the context of this statute it is a mixed question of fact and law because - - -

HAYNE J: Are the relevant facts, which are bound up in it, the question of foreseeability that a person of normal fortitude might suffer recognised psychiatric illness?

MR GLEESON: In the circumstances of the case, yes, and then the circumstances of the case takes one into matters which have a factual component to them as well as a construction question, of course, as to what these words mean and then there will be a further legal question as to whether there are any circumstances, other than subsection (2), that need to be brought to account. So that is why I say, your Honour, there would be questions of fact and law involved in it.

As to your Honour’s other question, the finding at paragraph 86, which I have accepted has a legal component to it as well as a factual component, is one which his Honour made as an observation at least in relation to the third issue. That the third issue could broadly be described as a causation issue, your Honour is correct.

HAYNE J: It would be a possible point of view about section 32 is that it accepts the common law as it had developed by the time of Tame that the lodestar in this area is foreseeability and that the qualification it makes to the then existing common law is the injection of the – or re-injection if one wishes to have it that way – but the injection into the question of foreseeability of the person of normal fortitude, a point which had been rejected in Tame and that that is the modification that 32 is making to the common law as it had developed by the time of Tame. What do you say as to that view of 32?

MR GLEESON: Subject to a qualification, a fairly small one, that is a correct view of section 32. It has re-injected, to use that language, normal fortitude back in and made it the touchstone. In terms of the circumstances of the case, however, and here we differ from Mr Gross, there was a deliberate decision taken by Parliament not to include the words “or the aftermath” in the circumstances referred to in paragraphs (b) and (c) and that deliberate decision, we would submit, was made because Parliament chose not to identify the mandatory factors with the same breadth that they had been identified in Tame. That is the qualification that I would put on the proposition, your Honour.

One comes then to say, what is the role of section 30? Section 30 says, in a particular subset of cases where my harm is both pure mental harm and I am regarding shock as the lynchpin of my action, then Parliament has chosen restrictively to say I cannot recover my damages save in the manner provided within that section. Your Honours, if it is convenient, could I just put our further construction submissions on section - - -

KIEFEL J: Just before you do, though, Mr Gleeson, if section 32 is limited to sudden shock to that as an absolute requirement - - -

MR GLEESON: No, your Honour, I am sorry, what I put was that the mandatory nature of section 32(2) was to consider each of the four matters in (a) to (d). If one does not have sudden shock, one observes that fact and moves on to look at the other factors. I am not putting that it is essential to have sudden shock in order to have a duty.

KIEFEL J: I understand what you are saying.

MR GLEESON: But if you do not have sudden shock, then you are left with saying, what else have I got which does bring me into a relationship of duty?

KIEFEL J: Yes, I see what you mean.

MR GLEESON: So it is a fairly telling negative, but it is not necessarily fatal. Your Honours, with section 30(2) we have two alternative limbs by which the entitlement can arise. The second limb is easy. All one needs to find is a close family relationship as defined. Once that precondition is satisfied, the submission I have put to the Court in respect of the victim is that the entitlement to recover damages is referable to the pure mental harm arising from the shock in connection with that family member being killed, injured or put in peril, not more general than that. So to that extent, the qualifying condition in subsection (2)(b) is not simply a box that one ticks and then says, I will now simply have a normal negligence action for the whole of the mental harm I may have suffered. The qualifying condition continues to govern the availability of that action.

Then can I come to the critical provision, section 30(2)(a). The first requirement we emphasise is the requirement of witnessing. Witnessing connotes usually direct observation or direct hearing of something. There could possibly be a case where one of the other senses was involved, but they will be the two primary senses involved. Secondly, the witnessing must be at the scene and the scene, we submit, is the physical location at which the act or omission of the defendant works its intrusion upon the victim. We do not submit, of course, that you have to witness the act or omission itself, and it would be wrong to read any of the Court of Appeal judges as requiring that.

In the present case, the relevant act or omission occurred a long time before; it was the failure to ensure there were proper brakes installed in the cabin. We do not say that a person had to witness everything from the act or omission through to the ultimate being killed or injured, but we do submit that the scene takes one to the physical location at which the act or omission is working its intrusion upon the victim and we submit that usually, if not invariably, that intrusion will involve a physical process capable of being witnessed.

KIEFEL J: Can you not witness someone going into shock and therefore observe their mental state and thereby observe someone being injured in a mental way? A person who, because of what is taking place, is suddenly rendered completely speechless, unable to move.

MR GLEESON: Your Honour, it is a little difficult to contemplate a case, I would respectfully submit, where there is not some element of the casual process, as Justice Beazley put it, the process by which the act or omission is doing its work or intrusion upon the person. That is what we submit will normally be there. If it is not required for every single case, then I accept your Honour’s question, but we submit normally witnessing will involve such a requirement.

Could I then go to “killing and injury” next before I come to “put in peril”? Your Honour Justice Gummow referred to the present tense in the “being”, witnessing the victim being killed or being injured, and we embrace those as important words that need to be given their full work.

KIEFEL J: I may not have been clear, Mr Gleeson. I was really positing the position where the victim is injured because they go into shock and the rescuer – or the person coming onto the scene – sees that occurring. You are saying that that is not something you would expect to see?

MR GLEESON: No, your Honour. That is the example. We put a more direct submission that is not the form of witnessing required by the section, and that is what I am coming to now. Can I just take the three limbs in turn, “killing”, “injury”, and “putting in peril”? With the witnessing of a victim being killed, we submit that would require a witnessing of the person being deprived of life, being caused to lose one’s life. Therefore, if you arrive and the person - - -

GUMMOW J: That may not be immediately apparent by observation.

MR GLEESON: If it is not, the witnessing requirement will fail and the person will fail to satisfy the test. It is only dealing with the case where you witness the person being deprived of life. We have given your Honour the dictionary definitions from Macquarie Dictionary and the Oxford English Dictionary – familiar of course – but the concept of killing involves the deprivation of life, some causal process by which life is taken from a person. What that means is this – if you arrive after the person has been killed and you see dead bodies, distressing as that is, you do not satisfy paragraph (a). You have not witnessed a person being killed. You have arrived and seen someone who is now dead.

Your Honour, our submission is the same in respect to the witnessing of a person being injured. To witness a person being injured one needs to witness the person moving from the state of being uninjured to a state of being injured and that will usually involve a witnessing of some process by which the defendant’s act or omission has worked its intrusion upon the person. So if one sees the derailment and one sees passengers unfortunately thrown from the train and injured, one has witnessed the person being injured.

GUMMOW J: You talk about persons being thrown from a train. You may be right about the singularity of the victim in paragraph (b) in a close family member situation, but once you translate singularity back into (2)(a), I think you have a problem.

MR GLEESON: Your Honour has raised that with me. I have attempted to address it by putting our submission which is the section works in a simple fashion where one only has one victim to consider, but where one has more than one victim to consider, it is a restrictive section which requires the condition to be satisfied victim by victim. To take the Hillsborough example that your Honours raised, in the Hillsborough Case, on our view of subsection (2)(a) the persons who could recover were the spectators in the stadium who witnessed the horrific events and saw persons being injured. A person who was outside the stadium who came in afterwards, for whatever motives, rescue or otherwise, and saw a terrible state of injury would not satisfy the limb of the victim witnessing the victim being injured. What they would see is, or witness, is a person who has been injured.

Now, your Honours, I have dwelt on killed and injured because we submit quite some assistance in giving the correct meaning to “put in peril” can be obtained if one has an accurate conception of being killed or injured. There is one matter I do need to mention as to how the case was run. We provided your Honours with the transcript in the Court of Appeal, between pages 32 to 35 for this reason, that some discussion was given in the Court of Appeal to whether the appellant was putting its case not on the “put in peril” limb alone, but whether it was also putting it on the “being injured” or “being killed” limb, which picks up a question your Honour Justice Gummow raised this morning. Mr Gross made clear, after the luncheon adjournment at page 33 between lines 5 to 10, that he was not putting a case that –

turning up and seeing dead bodies or turning up and seeing dead people who have been injured, without more is sufficient to satisfy the requirements.

He went on to give the reasons why they were not putting the case in that fashion. I draw attention to that for two reasons, firstly, the way this case has been fought, it is not available to treat it as a witnessing of persons being killed or being injured, and Mr Gross candidly explains that the case could not be put that way because it had not been put, and at page 34, line 25, when Justice McColl sought to summarise where this debate had reached, he said this:

No, you have to see the act in which they are killed. The act in which they actually die. Not turn up and after the event they’re dead.

We submit, both as to the way the case was run and on the proper meaning of the section, that that is a fair way of looking at the “being killed” and the “being injured” limb, and it casts - - -

HAYNE J: As to “being injured”, leaving aside for the moment the point you make about the way in which this case has been run, the point you make about “being injured” seems to be that a dichotomy can be drawn between a person who has been injured and a person who is being injured. Is it not possible that a person has already suffered some injury but continues to suffer further and worse injuries as the event progresses?

MR GLEESON: It is certainly possible that the injuries can worsen and, in the 30 seconds available, central to the case we wish to put is that the legislature has made a deliberate decision. If you turn up and see people who have died, no matter how horrendous that is, no recovery unless you are a family member. If you turn up and see people who have been injured, the same position. That decision having been taken, the “put in peril” limb is not a backdoor way of reinstating these claims on the hypothesis, which will often be the case, that the injuries might get worse or they might get better and that may be dependent upon the success of the rescue mission.

FRENCH CJ: So a person who is bleeding and whose condition deteriorates because of the bleeding, has been injured at some point and that is all over and the bleeding is not a continuing injury?

MR GLEESON: You have not witnessed the person being injured because you have not witnessed the act in which that person suffered the injury.

GUMMOW J: The initial act seems to be - - -

MR GLEESON: Yes, your Honour, and underlying – your Honours have raised questions about the Court of Appeal’s reasoning - - -

GUMMOW J: So when their lung fills with blood and they stop breathing and while that process is happening that is irrelevant?

MR GLEESON: That is the distinction that has been drawn.

FRENCH CJ: That might be a good time to adjourn. We will come back at 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Gleeson.

KIEFEL J: Mr Gleeson, before you continue with your discussion of section 30 could I return just briefly to section 32. As I understood your answers earlier, I think to Justice Hayne, you agreed that section 32 is to be read as providing generally for a requirement of foreseeability of psychiatric illness concerning “a person of normal fortitude”. Then, foresight, I take it, is to be determined by reference to the circumstances of the case and that is an open question, would you agree? The circumstances of the case would just depend upon the facts of the particular case?

MR GLEESON: Yes. The Court is required to look at the format as in subsection (2), give them - - -

KIEFEL J: No. Subsection (2) allows that - in the case allows that circumstances such as sudden shock, witnessing at the scene, et cetera, might be circumstances sufficient for the purpose of foresight – they might be. They are acknowledgment that they might be relevant circumstances.

MR GLEESON: I would put it slightly stronger that when the Court is dealing with a case of pure mental harm, which is a subset of subsection (1), then when it - - -

KIEFEL J: No, I am talking about pure mental harm.

MR GLEESON: So under subsection (1) the primary mandate is to ask that foreseeability question, applying it to a person of normal fortitude and considering the circumstances of the case.

KIEFEL J: That is the question, is it not?

MR GLEESON: That is the primary question, but in subsections (2) and (3) divided up into two sub-cases, subsection (2) deals only with a pure mental harm case, whereas subsection (3) deals with - - -

KIEFEL J: Consequential.

MR GLEESON: Consequential. If you are in a subsection (2) case of pure mental harm, my submission is the Court is at least required to consider each of matters (a), (b), (c) and (d) and ask, are they present in the circumstances of my case? But they are not an exclusive list of matters that might be relevant in determining the circumstances, and that is a factual inquiry.

KIEFEL J: All right then, but if you qualify under “sudden shock”, then you have to go to section 30 for the further requirements. If your circumstance is sudden shock, you then go to section 30.

MR GLEESON: No, with respect, there is a further subdivision. If it is a sudden shock to yourself, you do not go to section 30, but if it is a sudden shock in connection with another person, a victim being killed, injured or put in peril, then you go to section 30. So section 30 only applies in that very particular case where nervous shock arising from a perception of harm to another is a critical ingredient of your cause of action, as it is with this plaintiff’s case.

KIEFEL J: Given that subsection (2) is not an exclusive list and that the primary question is what is foreseeable in the circumstances of the case, if the circumstances are a major catastrophe where a person is exposed to one or more traumatic events then and following the incident and the person being a person involved in the rescue, is not the question whether it is foreseeable that such a person might get post-traumatic stress disorder, being a recognised psychiatric illness? Is that how you – you would agree that that is a question open in circumstances such as I have posed?

MR GLEESON: Yes, I agree that that is a question open in terms of deciding whether a duty of care will be recognised under section 32, but I would add to that in the particular circumstances that section 30 contemplates, which is where the plaintiff’s case is one which hinges upon the post-traumatic stress - - -

KIEFEL J: No. I think you misunderstand me. I have not said here that the post-traumatic stress is hinged on nervous shock. I have said that they were exposed to one or more traumatic events giving rise to post-traumatic stress syndrome. So section 30 might not be brought into play at all.

MR GLEESON: Your Honour, I accept that there can be such cases.

KIEFEL J: Thank you.

MR GLEESON: So what becomes relevant in a particular case is how the plaintiff asserts the relevant mental harm - - -

KIEFEL J: These are the discussions we were having earlier today about how it was put forward. But here nervous shock and post-traumatic stress disorder are alleged as separate matters.

MR GLEESON: If I understand your Honour’s question is to go to this point, is this plaintiff able, on the way this case was run, to mount a case which asserts a duty under section 32 but is freed of any constraint under section 30 because the plaintiff says, “I do not rely upon nervous shock as an element in my suffering of the mental illness” - - -

KIEFEL J: Yes, a necessary illness, yes.

MR GLEESON: - - - my answer to your Honour would be that that is not open to these plaintiffs as this was not the way this case was pleaded and run. This particular case hinged upon nervous shock as being the lynchpin of the action. Had the plaintiff said, “I have got an alternative case or a separate case where I do not worry about shock, I just want to say my case is one where you owed me a duty because you should have foreseen that a rescuer of normal foresight could suffer a recognised psychiatric illness by reason of the circumstances of the case”, that, with respect, would raise different factual and legal issues to those which Mr Gross has raised.

FRENCH CJ: Pleading was not strictly thus confined, was it? Now, look at page 5, paragraph 17 in the Wicks’ statement of claim, the particulars of injury:

(a) Psychological and psychiatric injuries.

(b) Post traumatic stress syndrome.

(c) Nervous shock –

as though that was a separate category of injury –

(d) Major depressive disorder.

I appreciate in a preceding paragraph, 16A, reference is made to section 30(2)(a) but is there a factual pleading that the plaintiff’s mental harm arose wholly or partly from mental or nervous shock in connection with another person thus confining the case as pleaded?

MR GLEESON: It does not use those words but paragraph 16A which hinges itself upon section 30(2)(a) is then the lynchpin for paragraph 17 which is it is as a result of 16A that the plaintiff suffered the injury.

FRENCH CJ: As a result of the factual matters in 16A.

MR GLEESON: Yes and when I say that was the way in which the case was run that is what is apparent from the way the three questions were identified as we see at pages 807 to 808. Justice Malpass did observe – this is page 810, paragraph 24, that there was some difficulty with the pleading because it did not define the duty of care alleged to be owed and the acts or omissions did not link the conduct of the defendant with the injury and the particulars had a certain difficulty and no particular victim was identified.

KIEFEL J: I understand you were not in the matter, but that is where this problem has perhaps arisen. The duty of care has not squarely been addressed as the first issue and everyone has jumped to an assumption about shock being necessary but then in the context of question 3 which requires you to have a look at the psychiatric evidence. Now, the psychiatric evidence does not identify nervous shock as necessary to a post-traumatic stress disorder. I do not know where that leave us. It leaves it as an open question, I would have thought. It is not foreclosed. If the evidence has been admitted and it is not as limited as this, the matter has been run on a rather ambiguous basis, I would suspect.

MR GLEESON: The direct answer to your Honour’s question is because we accept that if the appeal succeeded questions 1 and 3 must go back to the Court of Appeal, that court would be charged with sorting out that issue. We do not say your Honours can dismiss the appeal on the ground that we have the findings from the associate justice that we do.

KIEFEL J: No.

MR GLEESON: I drew attention to them to indicate why it is that we have findings which go a considerable way upon those two issues and why Mr Gross’ original suggestion that there should be a verdict for the appellant would not be correct but we are now at common ground on that. I would just say in defence of what the associate justice did that he did attempt at least to deal with the questions in the order of duty first, then section 30 and then damage.

KIEFEL J: When you say “the Associate Justice did”, his Honour says these are agreed issues. Were they posed by his Honour though?

MR GLEESON: By the parties. When his Honour came to deal with them, he did deal first with duty, and that is what we saw at page 820 and that is where his Honour made the finding that in absence of sudden shock and the other matters he matters he mentioned, he was not satisfied there was a duty of care. So to the extent there is any attempt to run a broader case under section 32 which jettisons shock and just says, “I otherwise sail through section 32”, that is the issue that we have to accept would have to go back and we would have the benefit of that finding of no sudden shock, unless it is challenged.

The Court will need to deal with paragraphs (b) and (c), which will depend on what your Honours say about section 30, because it is a similar concept involved, and then to the extent there is an argument that absent shock and perhaps absent witnessing, they can still get a duty of care under section 32, that issue would have to be grappled with and unfortunately, your Honour, that is the position I consider the Court is in.

KIEFEL J: Yes, thank you, Mr Gleeson.

BELL J: In terms of the way the matter was run, if one goes back to the GCM documents which were filed, I take it, before the agreement as to the issues, at appeal book 19 one sees with respect to the appellant Mr Wicks’ case, that the narrative of the facts on the issue of liability includes as (b) that the train crash occurred as the result of the defendant’s negligence and then that the plaintiff’s psychological injury, which of course one would think would take up the post-traumatic stress disorder, was a foreseeable outcome of attending the train crash, which really opens up the issue that Justice Kiefel has been raising with you with respect to a claim that depended on section 32 and was not subject to any limitation in section 30.

MR GLEESON: Yes, your Honour, I have to accept that. In terms of the position which the defendant joined – that is made clear from page 25, paragraph 7 – the defendant was asserting that it could invoke section 30 as a complete answer to the claim. Whether that was correct or not is the issue the Court is raising with me.

BELL J: Yes.

MR GLEESON: But unless one puts a more extreme position, which I have stopped short of putting – that section 32 contains some sort of a mandatory code, and once you do not have sudden shock, you can never have a duty of care and I have not put that – then this issue is still there. Your Honours, in relation to what is meant by “shock” in section 30, could we just give a reference to Tame [2002] HCA 35; 211 CLR 317 at paragraphs 362 to 364 in Justice Callinan’s judgment.

Your Honours, I then want to move to the second topic which was the history which brought us to the 2002 Act – both common law and statutory – and the submission I want to make from that history is that it leads to a restrictive view of “putting in peril” consistent with our argument because that is what the 1944 Act had in mind. That is where I wish to go.

The starting point is to identify the two critical cases prior to the 1944 Act and I recognise that this territory was covered in Gifford, but not for the purpose which I am currently seeking to traverse it. The first case was Hambrook v Stokes [1925] 1 KB 141. That case established that the mother was entitled to recover for the shock due to the reasonable fear of the immediate injury to her child from the runaway lorry. It was thus a “put in peril” case, and the difference between the minority and the majority was that the fear of an apprehended casualty to the child was treated as sufficient to enable the action for shock to proceed.

Significantly, however, the majority indicated that the action for shock could not proceed on the second basis, which was that the mother was told after the event that it was her daughter who had in fact been injured. At the time, that was regarded as being something not recoverable. Justice Hayne put to me this morning the logic of our case is that shock and perhaps mental illness may need to be parcelled up. I accept that it may need to be and that is an element which was present in the common law and we submit is there under the 2002 Act.

The relevance of Hambrook to our case is this, that although it was a “put in peril” case, significant doubt was cast on Hambrook by the House of Lords in Bourhill v Young [1942] UKHL 5; [1943] AC 92. Each of the judgments in that case, except for Lord Wright, either expressly reserved the correctness of Hambrook or doubted its correctness. That led to the position before the New South Wales legislature in 1944 that there was a need to make clear whether shock related to an apprehended casualty, as opposed to an actual casualty was something which was to be recoverable. We submit that is one of the sources of the “put in peril” limb.

The second source comes from Justice Evatt’s judgment in Chester v Waverley Council [1939] HCA 25; 62 CLR 1. Could I go to that? Before going to Justice Evatt, each of the majority Justices rejected the claim on the ground that the mother had observed the aftermath, namely the dead body of the child being drawn from the pit, as opposed to a witnessing of the casualty – that is, a distinction was drawn between witnessing what we would now call the victim being “killed, injured and put in peril”, and merely witnessing its aftermath. That can be found in the judgment of Chief Justice Latham on page 7 at about point 7, where the distinction is drawn between “nervous shock” when the mother saw:

not the happening of the injury, but the result of the injury, namely, the dead body of the child.

Justice Rich at page 11, at about point 5, and Justice Starke at page 13, point 6. So in the majority the common law was drawing a distinction between witnessing the casualty and witnessing its aftermath. When we come to the much broader view of Justice Evatt, commencing at page 21 in the middle paragraph, after dealing with Hambrook his Honour uttered a statement of the broadest width, namely, that the principles ought really be the same whether the shock arises in a case where:

at the moment of the onset of the shock, the casualty feared has been completed as where it is still in progress or where it has not yet eventuated but is about to do so; or even perhaps where it has not yet eventuated –

and will never do so. So on his Honour’s view, the principle ought to be the same whether the casualty has occurred at the time it comes to the senses of the plaintiff, whether it is occurring in a witnessing sense or whether it is merely apprehended. So, again, this is a source of the notion of the apprehended casualty being something important to recognise in the law. That same concept of the actual and the apprehended casualty the Court can see in a number of places in the judgment. If I could just give a reference particularly to page 41 at the bottom. To our researches, page 41 at the bottom is the closest we have found to the actual source of the words “put in peril”. That submission involves a deduction, not logical proof. What his Honour says after referring to Haynes and Wagner is that these cases:

show that a defendant who is under a duty of care to a class of people including A and whose breach of duty places A in such a situation of peril, or injures A in such circumstances that B, who is not imperilled at all, is induced to come to A’s rescue, may become liable to compensate B if he sustains personal injury in the course of his attempts at rescue.

That appears to be, we would offer, the source of the language. The breach of duty placing the person in a situation of peril as opposed to the breach of duty injuring the person.

GUMMOW J: Peril comes out of Justice Cardozo, does it not?

MR GLEESON: In Wagner?

GUMMOW J: Yes.

The wrong that imperils life is a wrong to the imperilled victim -

et cetera. That is set out at page 37. They are fairly famous words.

MR GLEESON: Yes. Adopting both those sources, your Honour, on the broader view of Justice Evatt, there really ought be no distinction in the law between whether the peril is apprehended, whether it is causing harm or whether it has caused harm provided shock is related to it. In a sense, putting it respectfully, that is where this Court reached in Tame. What has occurred in New South Wales is a deliberate decision to revert to a more structured approach which divides up categories of cases in advance in a manner designed to provide clarity as to when there can be recovery and when there cannot be recovery.

Could I just finally mention Justice Evatt’s judgment. In his statement of the principles at pages 44 to 45 he speaks of the actual and the apprehended casualty in principles 1, 2 and particularly principle 5. This, of course, was within a framework where the liability to the person suffering shock was treated as an extension of the liability to the primary victim not as a separate cause of action. That can be seen in particular in principle 5.

If your Honours could then go the 1944 Act, section 4. A number of things occurred. Firstly, the legal technique used was to extend the liability to the victim to a liability to certain third parties suffering shock as opposed to establishing a separate duty of care to that third party. Secondly, there is a relatively broad definition of the casualty, and Justice Gummow raised this morning when the words “killed, injured or put in peril” in what is now section 30(1) are words of generation application, and in a sense that is correct because we see that in the opening language of section 4 and to that extent, “killed, injured or put in peril” has covered both the actual and the apprehended casualties to which Justice Evatt had referred.

However, having opened with words of general application, the extension itself was then relatively narrow because it only allowed for two classes of persons. The closest family members, under paragraph (a), were entitled to recover without more. Under paragraph (b), which we submit is the direct origin of the language in the 2002 Act, more remote family members were entitled to recover but only subject to the further condition and, although the expression is slightly different, our submission would be that this captures the same concept as the 2002 Act. For the more remote family members, such person, that is, the victim, must have been killed, injured or put in peril within the site or hearing of such member of the family.

As a number of members of this Court pointed out in Gifford, this involved a compromise in 1944. This is not as broad as Justice Evatt’s principle. First of all, if you are not a family member, you cannot recover at all, at least under this section 4. The Court has held that section 4 was not intended to arrest the separate development of the common law and that occurred 50 years later, but as to section 4’s remedial work, it did not extend to anyone beyond family members and thus it was narrower than Justice Cardozo, narrower that Justice Evatt and was not intended to provide a broad recovery for passers by or rescue cases, and a part of our case, an important part of our case is that the present plaintiffs would not have recovered under the 1944 Act not only because they were not family members, but because they did not meet the condition set out in paragraph (b) and that that language was never intended to provide a broad recovery for passers by or rescuers.

What was achieved, however, by this language was to pick up a Hambrook situation, at least where it is a relevant family member that does the witnessing. Now, could I then indicate the differences between the section 4 in 1944 and the current Act. Whereas section 4 was remedial legislation designed to expand rights, the current section 30 is designed to delimit the outer boundaries of rights. It has a restrictive purpose. Secondly, the category of close family members who can recover without more has been expanded and, in effect, the more remote family members who previously had to satisfy the witnessing limb have now been brought into recovery merely by membership.

Thirdly, and this is the critical difference, the 2002 Act has substantially gone beyond 1944 because it has provided remedies for persons who are not family members. That seems to be a substantial expansion of section 4, although consistent with where the common law had reached. But the critical technique used for that broader class of persons where there need not be any prior relationship is to use the narrow restrictive language of the old section 4(1)(b). So, we submit that the compromise struck in 2002 in New South Wales, which is a compromise, is to permit the class to be broader than section 4, going beyond family members, but using the restrictive technique of witnessing which had been applied in section 4(1)(b).

The final step in this submission concerns the immediate predecessor to the Bill. Justice Beazley has accurately set out the history at pages 858 to 862 and we have provided the Court with chapter 9 from the Ipp Report. If I could go to chapter 9 for a moment. Paragraph 9.4 is a useful summary of some of the underlying reasons why the law has placed particular limitations on the recovery of damages for mental harm and their reasons which explain why the line would rationally be drawn where, we submit, it has been drawn. Next, at paragraph 9.13 and 9.14 we see what the Ipp Report considered this Court had decided in Tame and Annetts. The second sentence of 9.13 may not be an accurate summary of Tame and Annetts, but it is what the Ipp Report thought was required, namely, the normal fortitude test and that explains perhaps why that has been brought into section 32.

Then in 9.14 we see a reference to “in the circumstances of the case”. In that list the court has referred to “sudden shock” That is now paragraph (a):

whether the plaintiff was at the scene of the shocking events, or witnessed them or their aftermath –

That is paragraph (b) of section 32 but the words “or their aftermath” have been deliberately excluded. Similarly, with the next requirement:

whether the plaintiff witnessed the events or their aftermath with his or her own unaided senses –

“aftermath” has been deleted from the Act. Then:

whether or not there was a pre-existing relationship –

and:

the nature of the relationship between the plaintiff and any person killed –

et cetera. None of these factors are preconditions but they are relevant to deciding whether foreseeability was established, et cetera. Paragraph 9.14 confirms, to the extent it is relevant, that the list of factors in section 32 was intended to be a non-exhaustive list. What the Ipp Report thought it was recommending in leading to section 32 is a form of - - -

GUMMOW J: No, no, you have to look at the recommendations of the Ipp Report. That is what matters.

MR GLEESON: Yes. I am sorry. I take your Honour’s correction. What I was seeking to come to was the actual recommendations being rejected by Parliament. That is where I wish to go and I correct what I said. The actual recommendation at 9.28 would have seen the aftermath concept built into section 32. Parliament has chosen not to do that in section 32 and we submit that is of significance. It is one respect in which Parliament has chosen to be more restrictive than recommended by the report.

FRENCH CJ: How does that work as a matter of logic because the circumstances set out – the circumstances of the case to which reference must be made in section 32, the purposes of foreseeability, are circumstances relevant to foreseeability and then going back to paragraph (c) of the recommendation one of those circumstances included witnessing the aftermath of shocking events. That is not put into section 32 as a mandatory relevant factor but does that exclude it as a relevant factor for the purposes of section 32?

MR GLEESON: Consistent with my argument earlier, it cannot exclude it. I simply draw attention to the fact that it has not been brought in as a mandatory relevant factor. That is only half of the picture. The other half of the picture which goes with it is – if your Honours look at paragraph 9.22 what was proposed in the 2002 Bill for what has now become section 30 – not section 32 – was that recovery be limited to various persons, including “a bystander”. The Bill is set out on page 860 of the appeal book. The:

“bystander” was defined, in subs (4), to mean:

“...a person (other than the victim) who was present at the scene of the incident giving rise to a claim when the incident occurred.”

The view of the Ipp Report at paragraph 9.25 was that it would be possible to limit liability for pure mental harm where there was another in peril, injured or killed by requiring a particular relationship between the plaintiff and the victim and the Ipp Report was not enamoured of that view because it saw that it was inconsistent in a sense with the Tame approach, that all attempts to define relationships might create difficulties. What the Ipp Report came up to in paragraph 9.27 was not to recommend a list, but if Parliament wanted one, to give a suggestion. So there was no firm recommendation to have a list as per what we now see in section 30, but there was a recommendation for section 32. So to complete the picture, what Parliament seems to have done is reject the Ipp Committee’s view that we do not need a list. It has decided to have a list and it has drawn the list from two sources.

GUMMOW J: Why do we speculate about this?

MR GLEESON: Your Honour, I cannot point to direct material in the second reading speech.

GUMMOW J: Exactly.

MR GLEESON: I am simply giving an available, rational explanation for where it came to and the end of the argument was simply – and we know what has in fact happened. What has in fact happened was - - -

GUMMOW J: The Minister did not chose to disclose the reasoning process, if any, which had led to this drafting.

MR GLEESON: No, but I can put this to your Honour, that the end result is, as I have said, to take a list of some people who qualify without more, essentially as per paragraph 9.27, and otherwise bring back to life the concept in the 1944 Act of witnessing, but allow it to apply to anyone without having to be a family member.

HAYNE J: The alternative view to that which you have just advanced, which may give rather more than appropriate weight to the fact that the lists being spoken of in the Ipp Report are lists of eligible relationships, is that the general structure of the Act as it is enacted reflects ideas of the kind identified by Professor Goodhart as long ago as 1953 in 16 Mod L Rev 14 where Professor Goodhart discussed the shock case as an area of risk and pointed out at page 25 that there were difficulties in identifying lists of available relationships which he articulated as being these:

If the person threatened –

threatened with injury –

is a husband, wife or child of the person receiving the shock, the foreseeability –

that is the foreseeability of psychiatric injury –

is, of course, greater than in other circumstances, but it is a gloomy view of human nature which suggests that the sight of the death or injury of someone else cannot create such a shock. It must always be a question of reasonable foresight, and this cannot depend on arbitrary categories –

that is arbitrary categories of relationship, but then went on to point out that the really difficult is the case of the person who does not see things, but the person who is told of things. The general structure of the Act is, on one view of things, witnessing, witnessing what is an area for debate, but witnessing, or relationship.

MR GLEESON: Your Honour, most of that, I would submit, is not an alternative to what I was putting. It is consistent in the sense of when Parliament has drawn the Act in 2002 it has chosen one concept of family relationship which, without more, qualifies and that would be an important part on the notion that the foreseeability can be presumed to be high. What it has done is then given attention to how broadly to draw the family category, but with the second category, it has gone beyond family relationship and said witnessing – as your Honour says – is to be treated as a touchstone for there also to be the recovery.

Where I differ from your Honour, respectfully, is this – that your Honour suggests a distinction between witnessing and being told about it afterwards. It is clear being told about it afterwards has been excluded by Parliament from this area. The real debate is whether in the “witnessing” limb, and with the choice of those words, “witnessing the victim at the scene” – that is the identified victim – “being killed”, “being injured”, “being put in peril”, all those words together have drawn, as we say the 1944 Act did, a very tight focus on the shocking event which affronts the senses, being the actual sight of that person being deprived of life, that person going from a state of uninjured to injured, or that person facing an “apprehended casualty”, in Justice Evatt’s sense, a very immediate fear of death or injury.

Could I respectfully offer to the Court that a principal basis which would underpin our construction is this – with the persons who are the direct witnesses in the sense of “identified”, who might be called bystanders in the Bill, the likelihood of them suffering the injury is high, that is, the foreseeability is high. That is the first point. Secondly, they are a small and clearly identified class who ordinarily would have no element of choice in being at the situation. It happens before their eyes, the assault to the victim without them having had any element of choice or decision in being there. Thirdly, they are people who ordinarily have no prior training or equipment for, or provision for, help in respect of that event. That is a relatively tightly defined class. That is where we submit the legislature has drawn the line.

Just to conclude this topic, can I contrast what we submit would be the consequences if the appellant were correct? The appellant’s case seems to amount to this. If you turn up and one or more persons are dead and you suffer an affront, you cannot recover under section 30, assuming it is a shock case. If you turn up and one or more persons are injured, and they can be grievously injured, they are injured at the time you arrive, you cannot recover even if you suffer shock and you suffer a psychiatric illness, but everything seems to hinge upon a further fact – to what extent do I perceive or witness a prospect that an injury might get worse or develop an additional character?

If that is the line that is drawn, once you get that you then can recover. We submit that has departed from the language and creates very real mischief, very real problems. How does one actually apply that line in practice? What is to happen? Does each plaintiff turn up and say, “I turned up; I saw a terrible scene. That affronted me but as well as that here were my thoughts about whether people might get worse”. That, we submit, raises a very grave problem.

In principle, why would the legislature be compensating or allowing compensation if there is shock and illness related to that perception when it is not compensating for what might be thought to be the much more significant shock and illness from seeing people dead and injured when you arrive. A much more sensible view of “put in peril” can be given which is it was designed to deal with the situation in Hambrook and the situation which Justice Evatt identified as a problem in Chester. Your Honour, is it convenient to move to the third topic which was the facts?

These were the submissions we wanted to make on the facts. The first was that the evidence that the appellants suffered a shock, let alone a consequent illness of a mental kind related to what they assert to be the putting in peril was bare to the point of non-existent, and that there is a disconnect between the peril they assert and the shock they in fact seek to claim compensation for.

Could I illustrate that just by three matters? Firstly, in relation to Mr Wicks could I ask your Honours to go to volume 2 of the appeal books at page 507. That is a report which Mr Wicks gave in 2004 about his condition, which listed six incidents. The train crash, he said, was the most important. He then listed four other highly distressing incidents in which he saw, at work, people who were dead and he had to respond to in his professional capacity. In paragraph 6 he says:

All the deceased persons I have gone to over the years is taking its toll on me -

On the logic of the appellant’s case the 2002 Act would provide Mr Wicks with no recovery against any relevant tortfeasor in relation to incidents 2 to 5 even though they are of a distressing nature because at the time he arrived there was no one being killed. Also on the logic of his case, in relation to Waterfall, which is paragraph 1, almost the entirety if not the entirety of that paragraph is about the distress at arriving and seeing people dead and people who were in fact injured and needing help. One can sympathise with the reaction he expresses in the paragraph.

That is the distress which Mr Wicks, on Mr Wicks’ case, developed into a psychiatric illness for which he seeks compensation. It is difficult to identify and to link any of that distress to the putting in peril which he asks this Court to adopt as relevant for the statute. It also indicates, if I might be permitted to say this, one of the difficulties with the appellant’s approach as a matter of law and it is a reason why Parliament has drawn the line where they have. If his case is correct, all one needs is the slightest element of a perception that someone injured might get worse. To suddenly recover for the entirety of one’s psychiatric illness, an illness which would appear in an overwhelming sense to be related to non-compensable matters, and all of that is then laid at the foot of the particular defendant tortfeasor, we submit Parliament has chosen not to do that.

Your Honours, the second matter on the facts was Justice Heydon raised a question about whether there was a perception that the injured persons were at peril of psychological harm and how that might relate to his action. I observe from page 507 that there is no reference of Mr Wicks to that. Could I go to volume 1 to see the highest that that evidence arose.

HEYDON J: What about a man referred to in lines 6 to 7?

MR GLEESON: Is your Honour referring to - - -

HEYDON J: You say that is a closed incident, do you?

MR GLEESON: Is that the people asking for help, bleeding?

HEYDON J: No, the two lines before that.

MR GLEESON: In short, yes.

HEYDON J: Is not that person being put in peril of major mental disease, mental illness? Someone is lying there like a baby too scared to move and can only move his eyes, are we talking about someone who is so badly physically injured that they cannot move or someone who is in a state of mental inability to form decisions and control their limbs?

MR GLEESON: Your Honour, I am not for one minute minimising the seriousness of the injuries or of the fact that they would lead to reactions in right-minded rescuers. The submission I am putting, which is different and I hope the Court appreciates it, is that Parliament has drawn a line which says if you arrive and see death has occurred, which must be grievously shocking, you do not recover. If you arrive and see injury has occurred, you do not recover. If that be true, when you arrive and see that injury has occurred, of course it is the case that with injury, depending upon the nature of the injury and the level of it, steps will be taken to try and alleviate the injury, to triage, to rescue, to take the person away from the scene and it is true that those steps may work out for the best, they may work out not for the best. It is true that the condition of the injured person may deteriorate.

The submission we are putting is that all those elements do not attract the notion of “putting in peril”, giving the emphasis to “putting in peril”, which links back to an act or omission of the defendant. The second submission I am putting, I think your Honours have appreciated our submission about the gateway, that to the extent recovery is permissible in respect of the witnessing of a victim being put in peril, the recovery is for the nervous shock and then, in turn, for the pure mental harm flowing from the witnessing of that happening to that victim. The recovery is not for the large amount as referred to in paragraph 1.

Your Honours, could I go to the second matter which is where there is some evidence of witnessing persons in distress. In volume 1, page 66, paragraphs 15 and 17, Mr Wicks says it was part of his task to prevent further emotional shock to the passengers and he therefore took steps to lead people away from the scene in a particular direction to mitigate their position. Similarly in the evidence of Mr Sheehan at page 82, paragraphs 8 and 10. Our submission is that none of that constitutes the witnessing of victims being put in peril by the act or omissions of the defendant. They are steps which - - -

GUMMOW J: What about paragraph 17 on page 66?

MR GLEESON: Yes, I referred to that, your Honour, and I make the same submission about it, that this is not witnessing persons being put in peril by - - -

GUMMOW J: We know what your construction of the statute is.

MR GLEESON: Thank you, your Honour. I have taken your Honour to this evidence to show that in relation to the case that they were put in peril of psychological harm, this is the highest it gets - - -

GUMMOW J: Is it not the case where the Minister stood up in the Parliament and said, “Take this example, we are going to draw the line near here, and these people are on the wrong side of it”, is it?

MR GLEESON: I cannot put that.

GUMMOW J: No, of course not. But you ask us to infer all sorts of drawing of lines without an overt assumption of political responsibility for the drawing of the line, stating to the house what was being done.

MR GLEESON: I accept the force of your Honour’s question and so your Honours have the submission on behalf of my client. The submission is that - - -

GUMMOW J: Your client is an instrumentality of the State of New South Wales.

MR GLEESON: Yes. The submission is that the decision was to take the concept enacted in 1944 - - -

GUMMOW J: You can say it again, Mr Gleeson, if you like.

MR GLEESON: Your Honour, the third matter in relation to the evidence is that we have prepared and given to Mr Gross, and I seek to hand up, a schedule for each of the appellants. I will hand up a further document at the same time, and then I will explain. We are not asking the Court to decide the factual issues, I think I have made that clear, but we are respectfully asking the Court, when dealing with question 2, to at least understand that the broader framework of fact which will need to be looked at by the court below on issues 1 and 3, if those issues are remitted back, and the point of each document was to try and tabulate fairly non-controversially what was being said about the mental illness, if anything, on the one hand, and then what there was in terms of evidence of things at the scene which might satisfy section 30 on the other hand, and to allow us to make the ultimate submission that the Master was correct to observe that there was a disconnect between the alleged psychiatric illness and witnessing in the relevant sense provided by the section.

In relation to Mr Sheehan, could I just mention item 6, which is some of the evidence indicating that in his case there was a real issue whether he suffered any psychiatric illness which had any connection with the derailment at all as opposed to the other difficulties that he faced. The fourth and final point on the facts was there was some reference to the power lines case made below. We submit that Justice McColl has - - -

HAYNE J: Sorry, just before you pass from these documents, are these intended to be comprehensive, are they?

MR GLEESON: Yes. When I say comprehensive, they have captured each expert and they have attempted to capture the essence of the opinion of each expert. In terms of the cross-examination, we have not, of course, extracted all cross-examination.

HAYNE J: No, I simply notice that in the case of Mr Wicks there is no reference, I think, to page 466, lines 20 to 30; page 491, lines 25 to 35; page 503, lines 53 and following, which may perhaps be necessary to take account of. You may wish to reconsider whether these are comprehensive, Mr Gleeson, for they are of little value unless they are.

MR GLEESON: Would your Honours permit us to do that tomorrow, and give the Court a note with our answer to that question?

GUMMOW J: What is the purpose of this document headed “Benefits & Entitlements”?

MR GLEESON: Your Honour, that purpose was a different one; it was simply to explain within the statutory scheme why it is that persons such as the appellants do have entitlements to some benefits.

GUMMOW J: So what.

MR GLEESON: To show that in terms of our argument which has the result that in general rescuers will not be able to claim for these damages against the tortfeasor, where does that fit within the larger system where they are professional rescuers, there are long-established schemes by which they are provided with some benefits in respect to these events. That is all, your Honour.

The power lines case, nothing has been said about orally, it was mentioned briefly in writing. We submit Justice McColl has adequately made findings on that case at page 900, paragraph 161. The short point was that there was initial perception that the power lines may be live. It was quickly established that they were not, and there was no evidence that either appellant was concerned they posed a risk to the victim.

Your Honours, in relation to the – the fourth topic is, and I have just about concluded, the judgments themselves. Could I defend the judgment of Justices Beazley and McColl from what has been said about them - firstly at page 868? Paragraph 68 is a record of a submission said to be made on our side; it is not a finding by her Honour. Secondly, paragraph 74 correctly, we submit, reflects the distinction between a static state, which is not picked up in the statute, and the process of a person being killed, being injured, or being put in peril, and we also submit that her Honour correctly concluded that the “by the act or omission of the defendant” is relevant to the concept in subsection (2).

In paragraph 75 her Honour accepted an example where the act or omission of a defendant could lead to a physical process with the causing of injury, but also consequential physical processes such as the stanchion being knocked loose and falling, and her Honour accepted that there could be recovery in that situation. We submit that her Honour has correctly reflected that the witnessing requirement is looking at these physical operations upon, or threatening upon, the persons of victims.

In paragraphs 76 and 77 we submit that there is sufficient to conclude that there has been a deliberate choice not to introduce the concept of aftermath which is found in the Tasmanian statute. We have given your Honours the Tasmanian statute. In relation to Justice McColl, we would respectfully submit there is sound sense in paragraphs 162 to 163, which are the critical paragraphs. Parliament, having decided it is not enough to witness the fact that a person has already been injured, it sits comfortably with that with the “put in peril” would not be used to reverse that result.

GUMMOW J: I hope you do not endorse line 18, is it, “they were not exposed to a danger which was a sequelae”?

MR GLEESON: Your Honour, the notion that underlies that, with respect - - -

GUMMOW J: I do not think you grasped my point either, anyhow, go on.

FRENCH CJ: It is the use of the plural.

MR GLEESON: Your Honour, underpinning this is a notion of a physical process by which the act or omission of the defendant is apprehended to work harm to the person of the victim. In that sense, we submit there is sound common sense in what her Honour has put.

GUMMOW J: You have used this expression “a professional rescuer”, what do you seek to get out of that?

HEYDON J: You have also used the expression and drew a distinction between those who could not avoid seeing something, the car smashed into them before their very eyes, and people who had a choice about going to the scene. Do professional rescuers have a choice about going to the scene? They are under orders, are they not?

MR GLEESON: I am sorry, your Honour.

HEYDON J: They are under orders like centurions.

MR GLEESON: Yes. The distinction I sought to draw was what was this? I am trying to indicate what would be a rationale for the words having the meaning that I offered and under that meaning, the person who is the bystander, as I have called it, would recover. Once we move beyond the bystander, the next class we come to are those who might be called the passers by. The witness has happened, they come there and they see it. That class of persons in general we say do not have recovery.

FRENCH CJ: Being a professional rescuer, to coin your term, would not be a circumstance relevant to foreseeability, for example, under section 32.

MR GLEESON: Your Honour, could I reserve on that, because if one is having the full debate about section 32 and if one is not confined by section 30, nervous shock case, the law will be grappling squarely with a fairly large question of when and whether prospective tortfeasors should be contemplating rescuers as within their foresight and what they should be contemplating as to the rescuer of normal foresight.

To attempt to answer your Honours, Justice Heydon and Justice Gummow, the reason I invoked professional rescuer was only to indicate that if the appellant’s argument is correct the class of persons who can then recover is very broad, it has a very large number of possible persons in it, possible claims, and persons whose - - -

GUMMOW J: The answer to that was that for the legislature which introduced this Act to say so.

MR GLEESON: I am sorry, your Honour?

GUMMOW J: The answer for those concerns you are putting to us lay in the hands of those in the Parliament of New South Wales.

MR GLEESON: Yes. I have given my submission on that.

GUMMOW J: I can imagine it might have been the sort of legislation that would attract some opposition, not the least from those looking after the interests of the police force.

MR GLEESON: Yes. Your Honour, it is clear that it is legislation which has not in terms expressly directed itself to the question are rescuers, professional or other, in or out of the legislation? It has not done that. It has chosen the language for 1944. I am simply pointing out that on the appellant’s argument it would seem to have a consequence where the frame is opened up to those I have called passers-by, those who are rescuers, whether they professional or mere volunteer rescuers and our submission is that none of that is what is intended to be caught by the narrow concept of witnessing.

Our other submission is, which is the alternative submission, to the extent that that sort of person can recover it is in respect to the mental illness and shock referable to the identified victim, not simply the whole of the shock and illness generally.

Your Honour, in terms of the disposition of the appeal, if the appeal fails the ordinary orders would be made. If the appeal were successful we agree with Mr Gross’ position that the matter would be remitted for disposition by the Court of Appeal of all remaining issues on liability and damages.

HEYDON J: Damages. The Court of Appeal would not deal with damages.

MR GLEESON: I am sorry, on liability, yes. Unless there were further questions, that is what I wished to put.

FRENCH CJ: Thank you, Mr Gleeson. Yes, Mr Gross.

HEYDON J: Just pausing there, of course there was no dealing – we start with five issues and we have ended up with one being thoroughly dealt with, but I suppose it is for the Court of Appeal to decide whether if the appeal here is allowed it thinks it is able to deal with issues other than the one that has been dealt with and if it does not feel so able it can remit it to the trial level at the Supreme Court.

MR GLEESON: That is our assessment, your Honour, given that there are findings on issues 1 and 3 which cover part of the territory needed for the defendant and therefore it is proper for the Court of Appeal to review what to do with those findings in the light of what this Court considers.

HAYNE J: But is there any finding directed in terms to whether the State Rail Authority ought to have foreseen that a person of normal fortitude might, that is, is it a case where the order which the Court of Appeal ought to have made, in any event, was remitter for retrial because there was no decision of the question of duty as presented by section 32(1), or that aspect of the question of duty? It is not a whole question, that aspect of the question of duty that is presented by section 32(1).

MR GLEESON: Our submission would be that the associate justice did deal with section 32(1) in a fashion. The fashion that he dealt with it, which may be open to some criticism, was to say, “There are parts of this section that I can deal with which are enough to allow me to conclude no duty”, and he did conclude no duty. That is paragraph 65 to 68, and it is for the Court of Appeal to decide what is to be done with that finding. If the Court of Appeal is satisfied with that conclusion, no duty is correct for those reasons or any advanced by way of notice of contention, then the Court of Appeal will properly uphold the decision of the associate justice.

FRENCH CJ: And that was based upon his adverse findings in relation to (a) and (b) and section 32(2).

MR GLEESON: Primarily those. As well there is, such as we get, or the respondent gets out of paragraph 66, which is a little general.

FRENCH CJ: Yes, thank you, Mr Gleeson.

MR GLEESON: If your Honours please.

FRENCH CJ: Mr Gross.

MR GROSS: Your Honours, we agree with the statements made in the exchange between your Honour Justice Heydon and my learned friend in relation to the Court of Appeal’s future role in the event that the appeal succeeds. Just a few matters, your Honours. The label “professional rescuers” is, it appears, being used in the context of consideration of the section 32 issue, which I think we have all agreed at the Bar table at any rate, is a matter to go back to the Court of Appeal if we succeed in the appeal.

These are not professional rescuers, they are general duties police officers. Mr Wicks was an exhibits officer and Mr Sheehan was a general duties police officer. They were professionals in the sense that they were paid to perform their job, but they were not professionals in the sense of being practised in dealing with situations involving severe injury and the like. They were not ambulance officers or fire officers dealing with that sort of disaster situation. They just happened to be the first responders and so we do not adopt that expression.

Your Honours, an interesting thing is that the defence was raised in the defence of voluntary assumption of risk by each of the plaintiffs by virtue of their roles as police officers. That defence did not become part of the issues or questions for decision on the liability matter, although we do acknowledge that under section 32 it can be raised as a fact, or section 32 being squarely decided to be a question or issue for decision between the parties. Your Honours, just in relation to the questions for decision, could I just saying something about that. These were not questions which were, as it were, formulated on the run in the course of the trial. There were directions given as part of case management by the Supreme Court.

I think Chief Justice McClellan in common law gave directions as to the parties agreeing on what would be the question of liability to be decided by the court, and there was a document discussed and negotiated between the parties and eventually, I think, signed off on by both parties. So those were the liability questions for separate decision. There was not some broader liability issue which encompassed, to some extent, those questions and so therefore, in looking at just some of the issues raised by my learned friend, both parties were bound by the questions as formulated. However, we do acknowledge that the extent to which positions taken by the parties before Justice Malpass, that should all be dealt with by the Court of Appeal rather than having the Court being troubled by such matters.

HAYNE J: Is that agreed statement of issues at volume 2 of the appeal book pages 336 to 337?

MR GROSS: Yes, your Honour, that is, and the parties were ordered to file that, and I think it bears a date – it does not have a date, but it was filed some time prior to the hearing and so the parties prepared their evidence and their submissions directed to those particular questions. Your Honours, could I just go to a different matter. Your Honour Justice Kiefel raised the question of reasonable foreseeability of post-traumatic stress disorder in the context of section 32(1). I appreciate we are proposing that the matter, in effect, go back to the Court of Appeal, but what is required under section 32 is that:

the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

So it does not have to be foresight of the particular mental disorder pleaded. It has to be of some recognised psychiatric illness. For example, it might be a depressive reaction or an anxiety state or an adjustment disorder and, of course, different psychiatrists classify psychiatric illnesses according to different methods. This Court’s decision in Mount Isa Mines v Pusey, which I have already taken the Court to, I pointed out that is not required that the particular psychiatric condition from which the plaintiff did ultimately suffer has to be foreseen. It just has to be some form of recognised psychiatric illness.

Your Honours, my learned friend made some points about Justice Malpass’ reasoning that the evidence did not show that mental harm was caused as a result of sudden shock. Your Honours, that is at paragraph 68 of Justice Malpass’ judgment. Although that was a statement made in relation to sudden shock, there was no finding made either way by either Justice Malpass or the Court of Appeal on whether pure mental harm arose wholly or partly from mental or nervous shock.

In any event, that was not an issue which was posed in terms by the five questions which were agreed upon between the parties and which Justice Malpass had to decide. The resolution of this particular issue is, once again, a matter which should be dealt with by the Court of Appeal as part of finally resolving question 3.

Can I just move onto another matter? Justice Malpass at paragraphs 83 to 86, made certain observations which my learned friend has taken your Honours to and I just wanted to make a very brief point there. At paragraphs 83 to 86, one of the paragraphs my learned friend bypassed was paragraph 85:

A consideration of the evidence provides further reasons for the lack of necessity to explore these matters.

So when we read paragraph 85 of Justice Malpass’ judgment with paragraph 83 -

In these circumstances, it is unnecessary to consider the third issue -

one cannot really attach much weight to what follows paragraph 85, namely paragraph 86 where Justice Malpass, after discussing various shortfalls in the evidence, goes on to say:

For this deficiency alone, both claims are doomed to failure.

On one view that is predictive as to what may happen in relation to other issues yet to be decided in the case. Doomed to failure seems to be looking in the future rather than a decision in relation to matters already fully litigated. In then end, we submit that nothing can be made of this and this section 32 issue will have to be dealt with by the Court of Appeal.

Your Honours, my learned friend referred to the credit findings made by Justice Malpass at paragraphs 34 in the case of Mr Wicks and 46 in the case of Mr Sheehan. At 34 and 46 there are some reservations expressed in relation to the need for caution in approaching the evidence of both witnesses. Mr Wicks:

His oral evidence revealed him to be an unreliable historian. It seems to me that he was less than frank in his evidence-in-chief. I formed the opinion that his evidence should be treated with care.

Mr Sheehan at 46:

I make similar observations concerning the evidence of Mr Sheehan to those made of the evidence of Mr Wicks.

Now, without endorsing those findings can I say this, that although his Honour made those observations in the context of dealing with the matter so far as he did, it needs to be remembered that the facts regarding what each of the plaintiffs witnessed at the scene remain undisputed and there was not any cross-examination challenging any of those matters so that the credit findings have no real weight. The credit findings are, of course, relevant to the need to have the matter be remitted back and, if necessary, remitted back by the Court of Appeal to the first instance for a retrial of remaining issues.

Your Honours, your Honours, Justices Crennan and Kiefel, dealt with the situation that my learned friend – of one or other of the primary victims going into shock and what was raised were two things. First of all that that itself can be something affecting someone’s physical condition and also that a witness would be in a position to say that they could see someone going into shock, or in shock, as both plaintiffs described in their statements. The importance, your Honours, of shock is that if you have that condition, especially in the first hour after a severely traumatic event that obviously requires immediate treatment so as to mitigate those effects.

But, your Honours, what we submit is that the impairment of that primary victim’s mental condition, or indeed physical condition, if you see shock as being a physical manifestation, fits in well with the definition of “mental harm” and the definition of “personal injury” in section 27, because in section 27:

mental harm means impairment of a person’s mental condition -

and -

personal injury includes:

(b) impairment of a person’s physical or mental condition -

Your Honours, we submit that if, in fact, you have impairment, that is mental impairment or a physical aspect of that, which lasts for longer, you are in peril of having that impairment in a period when you would not otherwise have it if you have been appropriately treated, so you are in peril at that point, or alternatively, if in fact you were going to suffer a deeper shock, or shock which is more resistant to treatment, that obviously puts you in peril of impairment in the form of impairment of your mental condition or your physical condition.

Your Honours, just a couple of other matters. The argument put by my learned friend as to instantaneous events focused on the matter of the definition of someone being killed, and my learned friend argued that that occurs at the particular instant when you depart this life, and I think my learned friend then sought to work from there so as to show the injury and put in peril likewise have that instantaneous flavour, which meant that all of those three alternative events – and bearing in mind those events can overlap with each other, although you cannot overlap back from death but certainly you can overlap between being put in peril, being injured and being killed, and that can take a considerable amount of time depending on the circumstances.

Your Honours, we submit that in determining whether the plaintiff directly witnessed at the scene a shocking event or distressing incident does not require that you be restricted to what I think has been described as the frozen moment in time at the very outset when any primary victim began to experience any adverse event. We submit that a shocking event or distressing incident may be made up of a number of components. Indeed, in the field of medical negligence, which was discussed with your Honour Justice Hayne, in some medical negligence cases a medical emergency may last for some hours or even days and sometimes is one seamless overall event rather than a series of happenings.

Your Honours, the discussion of the interrelationship of section 32 and section 30 with my learned friend established, we would submit, that there is a difference between damages for pure mental harm, which is the expression used in section 31 and also in section 30(1) and section 30(2) and section 30(3) – there is a difference between that concept and pure mental harm arising wholly or partly from mental or nervous shock. We would submit that it is clear that the damages are awarded for, in effect, the consequences of the larger entity, that is, pure mental harm and, your Honours, we would submit that in looking at section 32 and, indeed, section 31, that is a dominant consideration.

Your Honours, I think that that is all that we would seek to address your Honours on in reply. Unless there is some further matter, that completes my submissions.

FRENCH CJ: Thank you, Mr Gross. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 3.45 PM THE MATTER WAS ADJOURNED