Aggarwal v The Queen

[2002] HCATrans 476

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2002

B e t w e e n -

DARREN GIFFORD

Appellant

and

STRANG PATRICK STEVEDORING PTY LIMITED

Respondent

Office of the Registry
  Sydney  No S112 of 2002

B e t w e e n -

KELLY GIFFORD

Appellant

and

STRANG PATRICK STEVEDORING PTY LIMITED

Respondent

Office of the Registry
  Sydney  No S113 of 2002

B e t w e e n -

MATTHEW GIFFORD

Appellant

and

STRANG PATRICK STEVEDORING PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 OCTOBER 2002, AT 10.20 AM

Copyright in the High Court of Australia

__________________

MR B.J. GROSS, QC:   May it please the Court, I appear with MR D.E. BARAN for the appellant.  (instructed by G.H. Healey & Co with Graeme R. Jensen & Co)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR T.F. McKENZIE, for the respondent.  (instructed by Gillis Delaney Brown)

GLEESON CJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, it was accepted by the trial judge and the New South Wales Court of Appeal and it seems common ground at both hearings that on 14 June 1990 shortly after the deceased died in a horrific work accident at 4 pm caused by the defendant employer’s negligence, each of the three appellants who were then teenage children with close ties of love and affection with their father received on that evening the distressing and, at least in a lay sense, shocking news of the accident and death at their home at Waterloo.  They were emotionally devastated by the news but did not thereafter view the deceased’s body as they were discouraged from doing so because of the very disfiguring injuries inflicted by a large forklift truck.

Your Honours, the trial judge found that the deceased had “a close and loving relationship with the children” – that is at page 419 – a finding which the Court of Appeal repeated at 463.  The trial judge found it was an “horrific” accident at 419, a finding which the Court of Appeal repeated at 464.  The trial judge found that the three children “were understandably shocked and distressed at the news” – at 420 – a finding which the Court of Appeal repeated at 464.

The issue before the trial judge was whether the plaintiffs had suffered compensable nervous shock. The trial judge disposed of the matter solely by reference to section 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act.  The Court of Appeal disposed of the matter on the basis there was no duty of care owed by the defendant.

Your Honours, it is acknowledged that at trial there was a live issue between the appellants and the respondent as to whether there was a psychiatric injury suffered by the three plaintiffs of the type which the law recognise. Whether one is treating that as being nervous shock at common law or as psychological or psychiatric injury falling within section 151P of Workers Compensation Act.

Your Honours, it is acknowledged that the respondent – which is the defendant employer – in each of the three cases had opinions from a Dr Shand and Dr Dyball, both psychiatrists, that each of the three plaintiffs had only suffered what they described as a normal bereavement reaction or normal grief reaction without any psychiatric disorder, at least at the time when they saw the individual children.

However, in the plaintiffs’ cases, Darren – if I can use the first names for convenience – had support from Drs Dent and Gertler on the relevant issue of there being a psychiatric injury.  Kelly had support from Professor Kennett, Dr Canaris, Dr Dent; although Dr Gertler, when he saw her, felt that by then, that is 1998, some eight years after the accident, she did not present with signs of psychiatric disorder.  As for Matthew, he had the support of Drs Dent, Gertler, Cusbert and Foo.  Your Honours, although the trial judge dealt with the psychiatric evidence in the context of Mrs Gifford’s own claim ‑ ‑ ‑

GUMMOW J:   There has been no finding in relation to the children, has there?

MR GROSS:   Yes, there is just a straight discussion of no entitlement to bring an action without going further.

GUMMOW J:   So if you succeeded it would have to go back?

MR GROSS:   Yes, your Honour, we acknowledge that.

GLEESON CJ:   Does that involve the proposition that it is common ground that unless there is a recognisable psychiatric illness, there will be no damage compensable at law?

MR GROSS:   Yes, that must follow from section 151P itself which has specific requirements in relation to members of the family of the injured worker. It would also follow from the common law position in relation to nervous shock. So that is a factual issue where there are no findings – there is much evidence. It is a fresh trial issue.

Your Honours, the trial judge dismissed the actions by the three children in that part of his judgment which is at 444 to 456.  Using the language at 456 that those actions were:

barred by s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 –

and he found that:

the deceased was not killed, injured or put in peril within the sight of sound of any of –

the plaintiffs. In doing so he was picking up the language of section 4(1)(b) which his Honour found to the exclusive available source of entitlement to damages. He did not visit the common law.

GLEESON CJ:   Is there a notice of contention?

MR GROSS:   There is a notice of contention filed by the respondent and we would seek to respond when they put their arguments on the notice of contention on that particular point.

So far as the Court of Appeal judgment is concerned, your Honours, the Court of Appeal at 475 concluded that the basis relied upon by the trial judge for rejecting the claims was incorrect.  Nevertheless, the Court of Appeal found against the children on the basis there was no duty of care if the children did not have direct perception as witnesses to the distressing events or phenomenon, meaning the accident or its immediate aftermath.

Your Honours, the Court of Appeal followed the decision of the West Australian Court of Appeal in Annetts, particularly Justice Ipp’s judgment, and made some reference to earlier dicta of this Court, and, having done that, found, applying those authorities, there is no duty of care to persons who are merely told about an incident, however horrific the accident and however close the personal relationship.  We submit that this Court’s decisions given in Tame and Annetts have removed from the common law of nervous shock the direct perception rule as an indispensable precondition of establishing a duty of care to secondary victims. 

On perusing the judgment and the 383 footnotes, the court did not refer to the decision of the Queensland Court of Appeal in 2001 on the same point, Hancock v Wallace (2001) Aust Torts Reports 81-616. Your Honours, we apologise, we had not put it onto the list of authorities. Could we hand up some copies of that judgment.

GUMMOW J:   How does that help? 

MR GROSS:   It helps, your Honour, to acknowledge the existence of that authority in dealing with the matter.  Your Honours did not deal with it in ‑ ‑ ‑

KIRBY J:   But why do we have to do that?  We have dealt with it ourselves.  I have the greatest of respect for the Court of Appeal, but this Court has dealt with the matter, and we speak for the whole of Australia. 

MR GROSS:   Your Honours, that is so.

KIRBY J:   You are just completing the record, are you?

MR GROSS:   It does not go beyond that.  However, we would point out that Hancock v Wallace is a case that does not have what may be argued against us here as some of the special features of undertaking, reliance and direct communications made between the defendant and the particular plaintiffs.  We just take the case as an illustration of the proposition that the principles which we seek derive from the Court’s decision do not depend on the special features in Annetts.

GUMMOW J:   That may be important.  Assume that what has gone is some restrictive idea.  What then do you have to show to establish a duty of care to the secondary people?

MR GROSS:   Your Honours, we would submit that the three elements of proximity, that is, distance, time and relationship, distance and time as essential elements of duty of care have been removed but we would still be left with the question of a necessary relationship.

GUMMOW J:   What does that involve?

MR GROSS:   Your Honours, we would submit that it would involve an obligation being owed – I will put this in the context generally, then I will deal with the worker/employer situation.  It would be a requirement that the defendant owes a duty of care to protect a limited class of persons, that is, members of a citizen’s immediate family, against the risk of psychiatric injury as a result of the severe injury or death to the particular citizen.

GUMMOW J:   But what does “immediate family” mean?

MR GROSS:   Your Honours, we would certainly include within the concept of immediate family the relationship between parents and children, going both directions, and we would suggest siblings as falling within this presumptive class that is described.  Now, whether one is to treat that as being a presumptive class where one inquires into the particular relationship for the purposes of a duty of care or whether one takes that as being a class sufficient for duty of care purposes and leaves the detail to consideration under different headings such as whether there was an injury, whether there was causation, whether there were damages.  That is a matter for potential debate.  However, it is our submission, certainly in the context of a relationship of the type covered by the Workers Compensation Act common law provisions, that we are not looking at presumptive situations qua duty of care; we are looking at a defined set of relationships ‑ ‑ ‑

McHUGH J:   So it is a relationship class of duty similar to employer/employee, landlord and tenant, carrier and passenger?  The duty arises imposed by law, is that right?

MR GROSS:   No, what we are really putting is that ‑ ‑ ‑

McHUGH J:   Well, it is a very important distinction.

MR GROSS:   Yes.  We recognise that in England it has been suggested and, indeed, endorsed by the Law Commission that there should be either presumptive or identified classes of relationship, that is persons with close ties of love and affection.  The other expressions used are, I think, close and intimate relationships, close and personal relationships, close and loving relationships within a family so that that is a sufficient characterisation of the relationship so as to found the duty.

GLEESON CJ:   What about financially dependent relationships?  You can get a very nasty shock.

MR GROSS:   We would submit that, obviously, financial dependence or independence within a parent/child situation is always a matter of opinion and speculation.

GLEESON CJ:   What about employer and employee?  There can be employees who are dependent for their livelihood and their family’s welfare upon the continued survival of an employer.

MR GROSS:   Yes.  Well, we would put it this way, that the Workers Compensation Act arguably provides a stronger basis in the present case because of the express articulation, albeit in what appear on the face to be limiting provisions, of a particular narrow class of relationships within a family.

But if we are to deal with the matter generally at common law, rather than just visit the Workers Compensation Act for further sustenance or support, we would argue that when one is looking at a duty of care situation, as distinct from determining whether there is psychiatric injury, whether there is causation and how bad the damage is, it is potentially burdensome on both the court system and, I suppose, the feelings of all concerned to be inquiring as to whether the particular family relationship involved elements of independence, either in economic or emotional terms, which made the assumption based upon natural ties of love and affection less cogent.

We submit the duty of care rule should ordinarily, where possible, have a degree of clarity and we would submit that the relationship can be so defined.  Obviously, when one gets to the ‑ ‑ ‑

McHUGH J:   I have not heard it clarified yet.  Now, what is the test?  Close and intimate, and if it is close and intimate, why should it be confined to family members?  What about two people who live together, not in any sexual relationship, but share accommodation together, maybe for years, great mates?  One of them is killed, the other one suffers a nervous shock.  Is a duty of care owed to the other person, the surviving person?

MR GROSS:   We would submit that if one uses the criterion as being a close and loving relationship, before someone is injured, it is to be assumed that the person who putatively is to be injured, does not live alone on the planet in terms of residence or being surrounded by others, and that if they suffer severe injury or death it is foreseeable and reasonable to expect that their immediate loved ones will or can suffer psychiatric injury.

McHUGH J:   What has foreseeability and reasonableness to do in the way you are putting your case?  You are putting it on a relationship basis, and these matters, the foreseeability can only go to breach or causation?

MR GROSS:   Well, to respond to that question ‑ ‑ ‑

McHUGH J:   Because we are dealing here with duty.

MR GROSS:   Your Honour, that is so.  We would submit that if in fact one is removing some of the earlier stipulated preconditions to finding of duty of care in this context, one does have to have a foundation of principle upon which to enunciate what takes it place.

McHUGH J:   Exactly.  That is what we are trying to find out.

MR GROSS:   We would submit that the duty to avoid psychiatric injury must involve a question of defining those who are likely or can reasonably be anticipated to be closely affected by the particular catastrophic event.

GLEESON CJ:   Why is it only loving relationships that might have that effect?  They might be an example of relationships which you might expect to have that effect, but there could be relationships of financial dependency.  As I said earlier, for example, a relationship between an employee and an employer that could produce the consequence that the death of one party could be emotionally devastating to the other party?

MR GROSS:   Your Honours, that is possibly why the descriptions of this class seem to vary.  The word “close” is used but it is then married with either loving, personal or intimate, recognising that loving is a fairly hard test to administer, let alone to answer.

KIRBY J:   “Loving” is one expression.  The other you used earlier was “blood” or “affection”.  Affection may be – loving may even within some families might be pitching things a bit high.  See, the object you have in mind is to chart off an area so that the scope of the duty is not too broad.  That is your object now.  In a sense, you could say, “Well, whatever the scope is it is going to include the immediate members of the family” if that is available, but we cannot do it that way.  We have to try and clarify what the principle is.  I rather thought the law had turned away from presumptive relationships, and as the questions of the Court indicate, if you start analysing your boundary line, it is pretty malleable because human relationships being what they are, they fall into a whole range of different associations.

MR GROSS:   Duty of care starts off with the fact that it exists before the injury occurs, and often before the victim is identified – and therefore we submit that a duty of care which is graded, depending on the level of love or affection between, what I will call, the immediate family and a person about to be injured, sounds highly artificial and we would submit ‑ ‑ ‑

KIRBY J:   I suppose you could say when a person injures another they can normally be taken to know that people are not normally completely isolated, that others have those who are close to them who are liable to get a shock if they are injured.  The problem is defining what that class is and is it a relationship?  Is it simply a matter of evidence in each particular case?  Is it necessary to express it in terms of a relationship?

MR GROSS:   We would submit that although duty of care and finding appropriate elements in it is an important control mechanism, and that is acknowledged particularly in relation to nervous shock - if immediate family members as I have defined them, that is, parent, child, siblings and of course spouses, I have not left out, it still leaves plenty of room within the conduct of the case to grade such matters as the nature and intensity of the relationship and the family dynamics where, of course, the capacity to cause psychiatric injury is not directly proportional to the level of love that is there because sometimes it is the absence of love or the uncertainty of love which itself can add to either the extent or the vulnerability in a particular person.

We submit that when a nervous shock case is conducted if, in fact, you have a spouse, child, parent or sibling, one can still ask useful questions about first of all the severity of the injury per se, not all injuries can be characterised as horrific although an injury which causes death, particularly in the workplace, is a bit hard ‑ ‑ ‑

KIRBY J:   You are going off into another thing now, Mr Gross.  The horrific injury is not going to help us with the category.  You mention, for example, spouse.  In this day and age you would have to extend that to not just married spouse.  A spouse is a married partner but there are other relationships and then you have to ask yourself in this day and age there are a lot of grandmothers who are particularly close because of a breakdown in marriage or other relationships who look after children.

McHUGH J:   Maybe daily.

KIRBY J:   Why are you excluding grandmothers and grandfathers or uncles?  Then you are really getting into a problem.  I am not blaming you for this and I think in a sense you can say all of this may be at the periphery but you do not get away from spouse or de facto or other partner, and children.  The problem is we have to try to, if the law is to be extended, we have to do it in a principled fashion and give guidance to other courts.

MR GROSS:   Yes.  For our own part we are appearing for children in respect of whom findings of a fairly strong kind have been made as I have detailed and although we are anxious to assist the Court, defining the outer boundaries of the close and personal or close and loving, et cetera, or other relationships, we find as a matter of difficulty.

GLEESON CJ:   Is this a respectable approach?  Would it be open to you to say you only get to this problem upon the hypothesis that these individuals have suffered recognisable psychiatric injury as a result of learning from the death of the primary victim.

MR GROSS:   Yes.

GLEESON CJ:   So, no recognisable psychiatric injury, cadit quaestio.

MR GROSS:   Yes.

GLEESON CJ:   By hypothesis, you are dealing with a person who for some reason or another has suffered recognisable psychiatric injury and you are then asking yourself whether that was reasonably foreseeable.  In the case of children, it may be easy to answer that question in the affirmative.  In the case of very sensitive strangers, it may be difficult.

MR GROSS:   Yes, your Honour, we would adopt that, but could I add, of course, that when one is dealing with control devices, not only do we have the requirement for recognisable psychiatric injury at common law, but, in the context of the Workers Compensation Act, we have very ‑ ‑ ‑

McHUGH J:   I do not know why you keep mentioning this.  I am waiting for the explosion from Justice Callinan and Justice Hayne.  What has the New South Wales Compensation Act to do with this case? 

MR GROSS:   Well, because it is an issue in this case. 

McHUGH J:   Or any of these cases. 

MR GROSS:   Well, because it is an extra control device which applies in this particular case.  But we would say it illustrates the way in which the duty problem which we are discussing can be dealt with, because, ultimately, choosing how you will characterise the list of potentially compensable victims – often, that does depend upon some arbitrary set of descriptions which, ordinarily, the courts are not comfortable with setting out in a detailed fashion. 

McHUGH J:   Let us take the manufacturer of a bottle of beer in Paisley in Scotland, who is going to send it out to Australia.  Who does he have to reasonably foresee may be injured by any defects in the ginger beer?  Now, he knows the consumer.  Who else has he to have in mind? 

MR GROSS:   Persons in close physical proximity when the defect materialises and is capable of causing injury. 

McHUGH J:   At what period of time?  And how?  Supposing it is set out to Australia and injures somebody and six months later some relative finds out, suffers nervous shock.  Is a duty of care owed to that person? 

MR GROSS:   We would submit that finding the duty of care cannot be sensibly undertaken by asking how long after the event it is going to take before the relevant person finds out.  We would submit that such a task, that is, looking at the time gap, or the degree to which one might expect a person to suffer such a reaction and the closeness of the relative’s position as regards injured person, that all becomes terribly pertinent when one is looking at the question of whether there was any reaction, whether that amounted to a recognisable psychiatric injury, whether there was causation, and ‑ ‑ ‑

McHUGH J:   But these have nothing to do with duty of care.  As the Chief Justice put to you, you can assume in your favour that somebody suffered nervous shock.  The question is, to whom was a duty owed?  People suffer nervous shock all the time, but that does not mean they have a cause of action.  For a variety of reasons, they will suffer nervous shock because of the death of someone, but are they owed a duty of care?  We should not be looking at these things after the event.  Otherwise, the whole exercise becomes one of fiction. 

People are entitled to determine what their risks are beforehand, so one ought to know to whom you owe a duty.  See, the difficulty about the nervous shock case is that, although it is an independent duty owed to the person who suffers the nervous shock, it is very much a derivative, and I do not think there is any other area of law where there is a derivative liability, in the common law.  If I, through my negligence, cause economic loss to X, it does not mean that Y, who suffers economic loss as a result of X’s loss, gets a cause of action against me. 

After all, the people who developed the common law were not ivory tower lawyers, they were practical men – they were all men.  The common law is practical; it is developed from the customs of the people, and I doubt if it can survive if it gets away from the customs of the people.  So you have to be able to determine what ordinary reasonable people would do, otherwise, the law just falls into disrepute, becomes a fictitious exercise.  Might as well get a member of the Executive Government to hand out money. 

MR GROSS:   Your Honours, we would submit that if, in fact, a person in the position of a defendant, whether he be an employer or a product manufacturer, to take your Honour’s example, where the conduct they are engaging in is capable, if it miscarries, of causing really serious injury or death, it comports to community standards and fits in with what can be foreseen and what is regarded as reasonable if psychiatric injury to close members of the family is to be compensated as well.

HAYNE J:   That rolls together two propositions, foresight and this notion of relationship.  What is the combination that you are making?  Why do you make it?  How do you justify it?

MR GROSS:   We would submit that the removal of time and space or time and distance elements as essential preconditions from the duty of care leaves the duty of care somewhat denuded of rigid elements to be satisfied.  We would submit then a question has to be asked in each individual case as to whether, having regard to the nature of the injury or fatal injury that has occurred, it is not only foreseeable, but reasonable, that close members of the family should suffer psychiatric injury.

HAYNE J:   What is it you are adding by saying “but reasonable”?  Foresight I can understand.  It leads to certain other consequences.  But what is it you are adding by saying, is it reasonable?

MR GROSS:   We would submit in drawing lines for the purposes of duty of care in a given case, one has to ask what the defendant in dealing with risks of injury and death ought to be concerned about.  We would submit that falling within that context is psychiatric injury from hearing about a fatal or really serious injury.

HAYNE J:   But, by hypothesis, will not the defendant have owed a duty to the person killed or injured; will not the defendant be in the position where it should be ordering its affairs so as not to inflict a physical injury, whether fatal or non‑fatal, on the person?  Now, we are into this derivative area as Justice McHugh has identified it.  What is the criterion for which you, in the end, would contend as limiting the ambit of the duty?  Foresight?  Foresight plus something?  What?

MR GROSS:   Foresight plus a reasonableness requirement, meaning in this particular context that they are persons forming a limited group whom, as regards that risk of injury or death, the defendant ought to have had in contemplation apart from the injured worker himself and we would submit that ‑ ‑ ‑

McHUGH J:   We are not talking merely about workers, Mr Gross.

MR GROSS:   I was dealing in the context of this particular case but, speaking generally, we would remove the employer or worker element.

GLEESON CJ:   As I understand the way it developed from Donoghue v Stevenson, the law said it is very easy to come to the conclusion that you ought reasonably to have in contemplation the risk of injury to somebody you are capable of physically injuring.  In other words, your capacity to cause physical harm to a person makes it reasonable to require that you look out for that person.  But where you are dealing with a derivative claim, the question is, what is it that makes it reasonable to require that you not only look out for people that you are capable of physically injuring, but also for other people who might suffer some form of harm as a result of your injury to such a person.

MR GROSS:   We would submit community expectations and standards, the expectations being that if you killed someone it will foreseeably cause psychiatric injury or if you seriously injure them; and, secondly, the community standards that such persons’ interests should be taken into account when one is looking at that kind of risk.  So that it is reasonable to require an employer or a person in the position of the defendant to meet those community standards and expectations as so defined.

GLEESON CJ:   It is obviously foreseeable that if you kill somebody you will cause serious economic harm to other people.

MR GROSS:   Yes.

GLEESON CJ:   But that does not get anybody anywhere, subject to Lord Campbell’s Act and legislation like that.  What is it that justifies distinguishing between derivative economic harm and derivative personal injury in the form of psychiatric harm?

MR GROSS:   We would submit that derivative economic harm is potentially limitless as to how far it can go and how many people it can affect and, of course, the extent can be indeterminate and incapable of being calculated to begin with.  The burden is too great when one goes down that path and that is why the duty to avoid pure economic loss has always stood to be judged by separate criteria and arguments from injuries to persons or even injuries to property.

The concept of derivative claims as applied to nervous shock, we hesitate in so describing them as derivative.  We do appreciate that the defendant’s amenability to suit is expanded so as to cover not only the injured person but also those who suffer nervous shock.  We would argue that is not truly derivative ‑ ‑ ‑

McHUGH J:   No, it is an independent cause of action – no doubt about that – but it is derivative in the sense that your liability arises from what you do not to the plaintiff but to a third party.  So it is your conduct towards a third party from which you derive your action.

MR GROSS:   Yes.  To respond to the question of the Chief Justice and come back to that, of course, where you can closely define the class of persons who are being affected and where, of course, those persons themselves are also suffering injury, that creates totally different considerations from the derivative of economic loss example with which we are being asked to make comparisons.

So far as nervous shock cases are concerned, we submit that once again we are dealing with injury which is of the type that the community recognises can readily happen and where the community will readily accept that such injuries, that is, psychiatric injury to what I will call close family members, should be compensated.

McHUGH J:   But why would you distinguish between close family members and the mass crowd which see a terrible injury occur to a person or several persons?  I mean, take September 11, take the football, something of that nature.  People suffer nervous shock.  We know from the case law that a lot of people suffered nervous shock as a result of seeing what happened at the football.  Why do you exclude them or are they included and, if so, why?

MR GROSS:   If one is looking for the purposes of duty of care at foreseeability and reasonableness, the community against whose standards I suppose courts constantly measure themselves will readily understand that close members of the family could be so affected by that mass disaster, but whether individuals within that wider group, either at qua September 11 or some other disaster, will be affected is, first of all, something that can be only be answered on a case‑by‑case basis but without any assumptions and, secondly, where you are really looking at too large a group to sensibly formulate a particular duty as regards any individual member of that wider class.

McHUGH J:   I can understand the argument that you want to put, but you want to determine the duty in terms of relationship.  You do not seem to want to say it is all a case‑by‑case determination in accordance with, say, Lord Atkin’s general statement of principle at 580 in Donoghue v Stevenson and leave it at that.  You, at the moment, have nailed your flag to the mast of relationship.

MR GROSS:   In terms of the neighbourhood relationships, the sort Lord Atkin talks about, we would submit that in asking who is a neighbour, you again come back to community understanding as to what it is foreseeable to expect and what it is reasonable to compensate, and close family members fit into that widened classification or extension of neighbour.  Now, how many fit in, in terms of generic description, or who fits in, based on the facts of an individual case, depends on, I suppose, a case‑by‑case analysis.

GLEESON CJ:   Do you rely on the legislation that was earlier mentioned as evidence of community standards?

MR GROSS:   Yes, we do, and can I make a couple of points about that, if I may?  When your Honour the Chief Justice was talking about economic loss in the context of a worker being injured, and let us deal with the Workers Compensation Act for the time being, that is a statute which since at least 1926 has acknowledged that when you severely injure a worker or kill one there will be foreseeable economic impacts experienced by members of the family as defined within that Act, including the widow, children and there can be ‑ ‑ ‑

GLEESON CJ:   “Compensation to relatives” is the expression most often used.

MR GROSS:   Yes, and bearing in mind this is a common law regime which occurs within a Workers Compensation Act.  It is a part that has been brought into that Act rather than the common law existing freely outside the Workers Compensation Act.  It is an Act which acknowledges that when you injure a worker you have to take into account those who are economically dependent upon that worker’s health and earnings.  Therefore, it is natural where a worker is injured, to contemplate that that injury will have ramifications for the life of those members of the family who are at least economically dependent, but certainly their interests have to be taken into account.

Secondly, we then come to other manifestations over time in how the legislature, which reflects community values, has defined the classes of people who ordinarily ought be protected against nervous shock or, alternatively, ought be protected in the event of, I suppose, a fatal injury occurring for the purposes of the Compensation to Relatives Act and, traditionally, children fall within that description.

Then thirdly, we go to the particular more recent manifestation of the listing of persons with entitlement where there is nervous shock to be found in section 151P and ‑ ‑ ‑

KIRBY J:   Is that not the point?  Parliaments can list who they like, but you are before a Court of the common law.  We have to act in a principled fashion.  We have to express a genus and you have so far aggressed by general submissions, but has any court, any final appellate court dealt with this issue, or has any Law Reform Commission dealt with it in a principled fashion?

I mean, you are putting your submissions and essentially you say whoever else is in or out, children are in, but that is the gulf between us, you see.  You want to win the case.  We have to decide the matter in a principled fashion.  Now, has any final court dealt with this?  There was a South African case I see.  Did this Court say anything on it in Tame and Annetts?  There must have been some concept in those cases because they related to particular relationships.  I would feel a little more comfortable if we were doing what courts of law normally do, namely looking at the law, either in a statute or in what other courts have said about this issue.

MR GROSS:   To answer the first part of your Honour’s question, although the legislature and the common law courts stand apart with their different roles, we do submit that the common law courts can go to statutes not merely for analogy but also as a reflection of community values.

McHUGH J:   Mr Gross, you argument overlooks a vital difference.  The workers compensation legislation depends on dependency.  So is that going to be the test, that it is only those close relatives who are dependent on the deceased who come within this nervous shock?  Is that the test, dependency?

MR GROSS:   No.  Rather, we are going to that statute not for the purposes of extracting such a narrow lesson or insight but rather for the purposes of demonstrating by analogy what close family interests are normally taken into account by the legislature when an injury or death has occurred.

McHUGH J:   Supposing I have not seen my brother for 25 years.  He lives in northern Queensland.  I have very spasmodic communication with him.  I might have spoken to him five times in the last 25 years.  I get killed and he suffers a nervous shock.  Why should he have a cause of action and yet some person I live with but have no de facto relationship with but is just a great mate who is terribly upset not have a cause of action?  Or should that person have a cause of action?

MR GROSS:   The first thing is your Honour’s question is not a duty of care question; your Honour’s question is ‑ ‑ ‑

McHUGH J:   It is a duty of care.

MR GROSS:   But, no, your Honour has put it in the form of really whether such person should have a cause of action whereas another person, differently placed, should not.  That still leaves an awful lot of room, your Honour, for determination as to whether or not there is a recognisable psychiatric injury or illness, whether there is causation, whether there are damages and whether or not the case itself is sufficient to pass any other tests.

McHUGH J:   It sounds as if you want to join Winfield and give away the duty of tort, that it is of no use at all.  Breach and causation can deal with all the problems in tort.  Nobody, apart from Winfield, has ever really accepted that.

MR GROSS:   We are not putting that as a general proposition for the whole of the laws of negligence.  What we are saying is that ‑ ‑ ‑

KIRBY J:   Not very congenial times for that sort of development.

MR GROSS:   What we are saying is that if, in fact, one looks at what had previously been black‑letter rules which one has to pass in order to establish a duty of care to avoid nervous shock and we look at the rules that, on a head count, the judgments in Morgan v Tame have either gone out or are in serious question, it does not leave many black‑letter rules based upon proximity of time, distance or relationship.  Time and distance appear to themselves as fixed rules have been put aside, although it is recognised they are terribly important in all other phases of the determination of the case.

GLEESON CJ:   Mr Gross, there is still a problem and it may only be a problem of, as it were, industry or research that you have to face up but it is the one that Justice McHugh raised with you earlier.  It might be very easy to persuade a court that it ought to look to statutes to see a reflection of community values for the purpose of developing or stating the common law, but you are going to have to do better than a statute of the State of New South Wales in order to have that exercise done for the common law of Australia.  We ran into a little problem about this in relation to the Evidence Act a year or two ago – I forget the name of the case.

McHUGH J:   Esso, was it not?

GLEESON CJ:   Esso, was it?  So for my part I would be interested to know what statutory provisions in other parts of Australia there are corresponding to the words “compensation legislation” you rely on in New South Wales.

McHUGH J:   Could I just go much wider afield.  In this area it may be we would obtain a great deal of assistance from what the continental courts are doing, what is done in France, Germany and Italy and the Scandinavian countries who do not really have this duty of care problem, but solve this issue in other ways.

KIRBY J:   Justice Davies refers to that in passing in the case you have handed up of Hancock v Wallace.

GUMMOW J:   At paragraph 82 of Hancock v Wallace.

MR GROSS:   Yes.  We submit that although we have not visited Continent and we are happy to do so - if your Honours wish a supplement on that, just references, we would be happy to do so.  We submit that certainly in England, the problem was addressed by statute by, in effect, providing for a limited statutory payment for grief following a tortious death and where there was a specified class of persons who could claim for grief.  I know that in the Canadian provincial legislatures, I think it is Alberta certainly has itself taken that sort of approach, that is, treated the claims by the relatives as being claims not only for grief but also loss of those, I suppose, intangible and arguably non-economic elements of companionship, care and the like and treated that as being a claim that can be made where damages are awarded only to a specified list of persons falling within the statutory list.

GLEESON CJ:   But if you could show us that in all or substantially all Australian jurisdiction there is a long history of legislatures setting out to identify people who can claim for recognisable psychiatric injury and they invariably include children in that, then you have not solved our problem but you have certainly taken a step in advancing your own position.

MR GROSS:   Yes, your Honours, we cannot do it now.  We seek leave to provide such a list for the Court’s assistance.

GLEESON CJ:   Yes, certainly.

GUMMOW J:   Do you get any assistance from paragraphs 89 and 90 of Justice Davies’ judgment in Hancock v Wallace?

MR GROSS:   Would you pardon me a moment, your Honours.

GUMMOW J:   Paragraphs 89 and 90.

MR GROSS:   I am sorry, I missed the numbers, your Honour: 90?

GUMMOW J:   Paragraphs 89 and 90.

MR GROSS:   Thank you. 

GUMMOW J:   Particularly footnote 114 which is a reference, amongst other things, to Chief Justice Gibbs and Jaensch v Coffey.

MR GROSS:   Yes.

KIRBY J:   This is the “love and affection” criterion as a minimum.

MR GROSS:   Yes.

CALLINAN J:   Not just a minimum, as an entitlement without more, probably.

KIRBY J:   What I meant by “minimum” was that that at least would be covered and what else is covered is a matter for the usual incremental development of the common law.

MR GROSS:   Yes.

HAYNE J:   And it is a criterion that carries within it an unstated assumption about what causes psychiatric injury.  It carries within it the unstated assumption that the cause of psychiatric injury is connected with the degree of emotional tie, positive emotional tie, that is felt.  Now, that may be right, but it may be – and I simply do not know that the question is not one of closeness of positive emotional tie so much as closeness of tie in the emotions, be it love or hate.  Tucked under all of these questions are some large assumptions about medical questions and it is perhaps inevitable that counsel ask us to address these questions divorced from their medical context. 

MR GROSS:   Your Honours, if I ‑ ‑ ‑

HAYNE J:   May I just add one thing:  with the bland assumption, “The advances in psychiatry have solved everything.”  For my part, they simply have represented a whole range of questions which counsel resolutely ignore. 

MR GROSS:   Addressing those matters, if I may, Justice Hayne, we do accept that psychiatric evidence on this question is invariably conflicting, and the extent to which one can be confident about arriving at a correct answer in many cases is doubtful, in an individual case.  However, the problem here is in ‑ ‑ ‑

HAYNE J:   But the consequence of that may be this, Mr Gross, which may work in your favour, that if the state of scientific and medical knowledge is such that one cannot say confidently how these things emerge, then the law’s response may more readily be a response by way of imposition of apparently arbitrary rule.  If, on the contrary, psychiatric knowledge has advanced to the point where we understand better what is causing it, should not the rules march in step with the identified advances in knowledge? 

MR GROSS:   Yes.  Your Honour, for the purposes of duty of care – bear in mind that it is used not only as an access to entitlement but also as a potential hurdle against entitlement – one does have to formulate, if one is going to formulate rules at that stage, in advance of knowing often who the particular person is and without the defendant having the benefit of the psychiatric knowledge which the subsequent witnesses may later have.  So it is inevitable, in our submission, that the work of resolving nervous shock cases, or psychiatric injury cases, must be done with a fairly critical eye applied to whether there is an injury of the type described, aspects of causation, and also weighing the extent of the disabilities that are said to result. 

That, of course, is the task of all courts in judging evidence where there are competing experts on either side.  We submit that, although the psychiatrists may either be potentially untrustworthy or frequently conflicting, duty of care in this context has to be formulated not by psychiatrists but by courts, and where the relevant standards are ultimately community standards, rather than professional standards. 

GUMMOW J:   There is a long policy of the common law in all sorts of ways which favours the nurture of children by parents and attaches enormous significance to that relationship of parent and child.  That must have something to say here.

MR GROSS:   Yes.  I think a cynical observer described children as being “the little darlings of the law” – and I appreciate we are dealing with teenage children here rather than bouncing infants, but nevertheless, it is a relationship, as is the spousal relationship, and that relationship with parents which is ordinarily in our community given a high value per se regardless of what one knows about the dynamics or particular incidence of a given family.

GUMMOW J:   But there must have been a lot of nervous shock cases where the plaintiffs were children and it has just been assumed that there was a duty in ‑ ‑ ‑

MR GROSS:   Your Honour, that is so.  Yes, putting aside the reported cases, children have frequently brought nervous shock cases over the years and it has been treated not only as being acceptable for courts and for negotiation purposes but also it is not placing much of a financial burden on the system.

McHUGH J:   What do you mean, children have brought actions?  They have brought them when they have been present at the scene.  They have brought them when they qualify under the 1944 New South Wales Act, but where else have they ever brought them?

MR GROSS:   In common law courts for – I am trying to think back ‑ ‑ ‑

HAYNE J:   Well, pre‑Jaensch v Coffey?

MR GROSS:   Well, pre‑ and post‑Jaensch v Coffey children have brought cases.

McHUGH J:   Just give me a name of a case.

MR GROSS:   The Thredbo victims, your Honour.  I think there are about 30 of those and many of those were children.  They were not present at the time.  There have been numerous – dozens of cases that I can think of.

McHUGH J:   Even though they are not present at the aftermath?

MR GROSS:   Yes.

McHUGH J:   They may have brought these actions.  Did they ever succeed?  Has anybody ever ruled on it?  What happened to Jaensch v Coffey?  What, do they just ignore it?

MR GROSS:   No. Well, to begin with, section 4 of the Law Reform (Miscellaneous Provisions) Act has generally been regarded, in our submission, correctly, as being merely one route to recovery, but where general common law concepts still tolerate the notion that children can recover who suffer psychiatric injury although they are not there within the first two hours.

McHUGH J:   What are we doing in this case then?  What are we worrying about this case?  There must be a mile of authority that favours you in this case on that basis, if there are these cases that are there.

MR GROSS:   Well, post‑Gifford in the Court of Appeal such cases plainly have no future if the Court of Appeal case is correct.

McHUGH J:   …..I would have thought they had no future beforehand.

KIRBY J:   Except that Gifford is before Tame and Annetts.

MR GROSS:   Of course, I am saying if Gifford stood and we did not have Tame and Annetts.

KIRBY J:   This is deus ex machina for you, you say.

GLEESON CJ:   In the case of each of your three clients, is it only the opinion of Dr Dent, the psychiatric opinion of Dr Dent that is the psychiatric opinion in favour of a conclusion that there was recognisable psychiatric injury?

MR GROSS:   No, your Honour.  Can I read on to the record the references, if I may?

GLEESON CJ:   I was looking at them myself because I thought they might contain the answers to some of the questions.

MR GROSS:   I can answer the question fairly briefly with very short references.  In relation to Darren, Dr Dent on 1 December 1992, which is two years after the accident, says “pathological grief” and he explains what pathological grief is at 354 to 355.  Dr Gertler – we are still dealing with Darren – on 17 February 1998 found there was “a pathological grief reaction” including “depression” at times.  That is at 358 point 9.  Then Dr Gertler re‑examined the situation on 24 May 1999 and reached the same conclusions at 361 to 362.  Now, I am just dealing with the plaintiffs’ evidence here.  I accept that Dr Shand and Dr Dyball in each case said normal bereavement reaction, no psychiatric disorder, no psychiatric injury.

If I can just deal with the next child, Kelly.  Dr Dent on 1 December 1992, which is two and a half years after the accident, found that the plaintiff had “resolved her grief adequately” and there was no “nervous disorder” at that time and he repeated that view on 17 February 1998 at page 370 where he agreed with Drs Shand and Dyball that there were no signs of psychiatric injury now.  However, in addition on Kelly, there was Professor Kennett.

GLEESON CJ:   He was a psychologist.

MR GROSS:   He was a psychologist who did not fare too well with the trial judge in dealing with Mrs Gifford’s claim, and at pages 183, 190 and 380 – 380 is where the report of 28 April 1999 is – Professor Kennett, a psychologist, found that there was pathological grief and then also on Kelly, Dr Canaris, psychiatrist, in a report of 18 May 1999, that is almost nine years after the accident, at page 384 wrote a report.  He found that there was “pathological” grief.  He also said that at 276K.

At 276X he has pointed out that according to DSM‑IV normal grief lasts no longer than two months. He disagreed with that proposition, but he was drawing essentially between normal grief and pathological grief. That is at 276X. Then he pointed out that DSM‑IV itself recognises complicated grief reaction of the type he found here and at 279T he put the plaintiff, Kelly, into that category. The pathological grief itself is a description of a recognisable psychiatric injury even though it uses the language of grief and it is to be distinguished in terms of its intensity, duration and incapacitating effects, or effects on function, from normal grief reactions of the type which section 151P of the Workers Compensation Act says will not be a basis for damages for nervous shock.

Can I just move on to Matthew just to complete this list.  So far as Matthew was concerned, Dr Dent, on 1 December 1992, at page 385, said there was “pathological grief and dysthymia” which is basically a depressive‑type reaction.  Dr Gertler, at page 393 on 17 February 1997 said there was a “prolonged grief reaction” but “at the present” that reaction was not “pathological” – that is six and a half years after the accident.  He also said that the plaintiff had a condition of “psoriasis” which is a skin condition which he indicated can be associated with aggravation or increase in emotional stress levels.  There was a Dr Cusbert who on 6 August 1992 described the emotional reaction but also made some comments about the “psoriasis”, that is at page 395.  Finally, Dr Foo, on 12 June 1997, some seven years after the death, at page 396, said that there was still an “unresolved grief reaction”.  That really is the totality of the psychiatric and psychological evidence for the three plaintiffs.

GLEESON CJ:   Thank you.

GUMMOW J:   Do you have Jaensch v Coffey to hand?

MR GROSS:   Yes, your Honour.

GUMMOW J:   Could you just go to Sir Harry Gibbs judgment at page 555 ‑ 151 CLR at 555.

MR GROSS:   Would your Honour just pardon me a moment while I get it.  Yes, your Honour, I have it.

GUMMOW J:   About line 10, “Lord Wilberforce pointed out . . . ‘the class of persons’”.

MR GROSS:   I will just read to the bottom of the paragraph, if your Honour would pardon me.

GUMMOW J:   Yes.  At least where the closeness and intimacy is that of parent and child, that must help you.

MR GROSS:   Yes, with respect, and ‑ ‑ ‑

GUMMOW J:   Particularly the reference to policy.

MR GROSS:   Yes, and we adopt readily defensible on grounds of policy but also the emphasis upon the fact that difficult though it is, you should identify the class of person.  I suppose when you are describing a class of person, inherently you are describing class characteristics rather than individual characteristics.

GUMMOW J:   Yes.

MR GROSS:   Also, we would submit that because a duty of care looks prospectively, you cannot subcategorise your class too nicely by reference to the minutiae of the relationship.  You have to satisfy yourself with a general description.

McHUGH J:   But you see, notwithstanding the difficulties of the old law, the pre‑Tame law, it did attempt to treat the action for nervous shock as an independent duty and an independent cause of action.  It required closeness in time and space, presence at the scene and so on, so that the duty was owed to those people who were present or could be expected to come to the scene.  But now you want to make it really derivative and this is the big departure from the previous law.  There is no problem about nervous shock in cases where the person is at the scene.  In Bourhill v Young, for instance, although the particular plaintiff failed, she saw what was going on and suffered a nervous shock.  It is easy to see she should be owed a duty.  In a case which was ultimately settled against the Commonwealth Serum Laboratories, a woman suffers nervous shock years after being treated with something or other, it is understandable that she is owed a duty on being told about that.  But you want to pitch your case wholly on the breach of duty to the third party and hold the defendant liable for the derivative damage which arises from the breach of duty to that person.

MR GROSS:   Whether “derivative” is a correct description and I would certainly baulk at “parasitic” as a competing adjective, the obligation owed by a given defendant, whether it be an employer, manufacturer or, I suppose, motorist, although often that is covered by very specific statutory provisions, is ultimately not to cause serious injury or death and in dealing with that obligation, we would submit that not only the injured person is naturally to be taken into account, but also the close family members who have to deal with a crippled or recently killed father or breadwinner and the like.  So, whether one treats it as ‑ ‑ ‑

McHUGH J:   But why, why as a matter of policy should you draw a distinction between a financial loss and the psychiatric loss in the two cases?  They cannot succeed for derivative financial loss, unless it is a Lord Campbell’s case, but do you want to impose a duty in respect of a psychiatric damage loss case?

MR GROSS:   Well, your Honour said that they cannot qualify, but that is, as it turns out, when one looks at the mathematics of the economic relationships within the family, but before you get to the point of asking whether they succeed, you are really asking the same question.  You are asking the same question about classes of persons who may or may not qualify for damages based on economic loss caused by death.  Then, of course, you are then considering as a separate aspect whether or not the law should compensate for any psychiatric injury or psychological injury suffered by them.  But you are starting with the same threshold inquiry, if one is looking at the Workers Compensation Act as a commencing point.  You are asking about the immediate family and then you are measuring ‑ ‑ ‑

McHUGH J:   But what has the Workers Compensation Act to do with this?  After all, you do not get off the ground down there unless there is dependency. 

MR GROSS:   All right.  Well, put aside the workers compensation situation, just dealing with ‑ ‑ ‑

McHUGH J:   It is a particular statutory form of Lord Campbell’s Act. 

MR GROSS:   Yes.  If we are looking at Lord Campbell’s Act as a way of dealing with the economic loss component and we are looking at the common law or other law concerning nervous shock as dealing with the psychiatric sequelae to members of the family, you start off by asking questions about the same general narrow class of persons.  Now, it may well be there is no financial dependency in the sense of economic benefits flowing to that person, in which case that person, falling within that class, gets zero damages, but you are still asking the same economic question qua them, although getting a nil answer, as you would then be doing when you are asking about nervous shock. 

So we submit that it is not pertinent to say, if they do not qualify for economic loss type benefits under a Compensation of Relatives Act, they cannot qualify for nervous shock.  A lot depends on the facts in every case, but, in the end, you are commencing the inquiry based upon community standards as to whose interests have to be looked at first in order to determine whether there can be a remedy granted and, of course, when you ‑ ‑ ‑

McHUGH J:   Yes, but, again, it is one thing for the legislature to say those who are financially deprived by the death or injury of a person should be compensated.  But you want us then to say we should draw from that some principle or policy that those who would have been the financial beneficiaries, or might have been the financial beneficiaries, should be able to recover for nervous shock, even though the next‑door neighbour, who may have been closer to the deceased, cannot succeed, or a workmate, or a flatmate. 

MR GROSS:   We do not argue down from, as it were, the Compensation to Relatives picture down to the position qua psychiatric injury.  What we are saying is that the type of inquiry with which the legislature, and therefore the community is comfortable, in looking at who can get benefits under the Compensation to Relatives Act, that categorisation of the classes, provides some support for a view that the classes who should be protected from psychiatric injury are approximately the same.

McHUGH J:   It is an arbitrary line?

MR GROSS:   Yes.  Well, in the end we submit it is legitimate for the Acts of the legislature in other or related areas to be looked at in order to determine how, on a common law basis, the classes of person can be defined.

McHUGH J:   Have you read the Public Service Board v Osmond?

MR GROSS:   Yes.

KIRBY J:   There is no need to raise that decision.

McHUGH J:   You would not get much assistance from that proposition you are arguing from that case.

KIRBY J:   But there have been decisions of the Court since:  Gray v South Australian Accident Commission which seems more ‑ what will I say – more sensitive to the impact of statute law on common law.  You then run into the problem the Chief Justice raised with you that it is not just a statute law of New South Wales?

MR GROSS:   Yes.

KIRBY J:   The common law being the common law of Australia, you have to look more generally, but you then run into the submission of Mr Hislop who says, “Well, instead of deriving this from the statute law, you just leave it to the Parliament.  Parliament, if it wishes to, can deal with this” and he says, “and by the way, it is not likely that they will do so because even judges are saying that – the High Court and other courts have been acting as Santa Claus and Parliaments and Executive Governments around the country are cutting back on entitlements, not expanding them.”

MR GROSS:   Yes.  We submit that the capacity which the legislatures demonstrate from time to time to cut back supports the notion that if undue costs are being incurred by the community by reference to a particular description, any excesses can be addressed by a concept such as thresholds and other devices that are used for limiting the number and therefore the amount of claims.

KIRBY J:   But you have not done too well so far to define the class that is conceptually coherent that is the limitation?  You have done the best you can.  I mean, in a way, you are entitled to say, “Well, whoever they are, it is going to extend to children because they are, in Justice Hayne’s sense, people who, commonsense suggests, will normally be the type of people who will suffer nervous shock.”  I, at least, would be prepared to assume that in the normal case, a child is a person who, on hearing of the horrible death of a parent, may suffer nervous shock.  It is the nature of that relationship.

MR GROSS:   Your Honours, it is the potential as a matter of foresight for that to occur in a general sense rather than the particular individual facts in the relationship which, in our submission, assists in defining the duty of care.  However, we would, possibly out of cowardice, adopt the incremental approach, that the incremental approach should certainly at least go as far as covering children of the deceased who are in close ties of love and affection with him.

KIRBY J:   My difficulty with that incremental approach is that unless you have a concept of where you are going, the incremental approach is really not very principled and you are just solving one case after another and not guiding yourself by some principle that is coherent.

MR GROSS:   Yes.

CALLINAN J:   Justice Gibbs said in that case that that was the only way to do it, or the best way to do it.  But, in any event, I think each of Justices Gummow and Kirby and myself in Tame and Annetts drew an analogy with the negligent misstatement cases, that if you could find a special relationship or you needed to find some kind of a special relationship.  For my part, I said the children would always be within such a relationship, but their Honours did, I think, derive some assistance, as I did, from looking at negligent misstatement cases and, with respect to them, it is impossible in advance to say what will constitute a special relationship, but you do need to look to some special situation and that, in my view, anyway, tentatively, is about as far as you can go in defining a class.

MR GROSS:   Yes.  In the context, of course, of economic loss cases, one is looking for a relationship between the plaintiff and the defendant and where obviously, unless you have fairly clear rules, there may be too many potential plaintiffs arising out of the same event.  The relationship in a nervous shock situation is not just, of course, the relationship between the defendant and the injured person, but it is basically an extension involving the concept that when you severely injure or kill a person, or before you do so, you should really take into account the expectable emotional repercussions within what I might call the immediate family of that particular person.

GLEESON CJ:   But if the answer is “children”, what is the question?

MR GROSS:   The question is, what relational proximity is sufficient to satisfy the duty of care?

GLEESON CJ:   Sufficient in the absence of any other form of proximity?

MR GROSS:   Yes, your Honour, and so, if you define it in that way ‑ and you are talking about what is sufficient, you are not talking about what compels an outcome in terms of the final result of the case in the various phases, and children comfortably fall into the answer to that question ‑ ‑ ‑

GLEESON CJ:   Is this your proposition:  the relationship of parent and child is a form of relational proximity that of itself suffices to establish the kind of proximity necessary to give rise to a duty of care?

MR GROSS:   Yes, your Honour.

CALLINAN J:   Those paragraphs I referred to are at 238 and 358 in Tame and Annetts. I do not think you need go to them, I just mentioned them.

KIRBY J:   Apart from Tame and Annetts, are there any cases of final courts ‑ the Supreme Court of Canada, the House of Lords or the New Zealand Court of Appeal – though it is not a final court ‑ but are there any courts that you can take us to that have grappled with this problem or are we at sea all on our own?

MR GROSS:   If the problem is how do you define the class of persons who fall within what I call “the family group or the close group”, the House of Lords dealt with the matter originally in Alcock v Chief Constable of South YorkshirePolice, [1992] 1 AC at 311. That is on our list of authorities and your Honours have that. At page 310 to 311, the headnote is ‑ if I can just go to holding 1 in the headnote. Your Honours will recall this was the case involving the crushing of numerous persons at the Hillsborough Stadium at the football match in 1989. Your Honours, holding 1:

that in order to establish a claim in respect of psychiatric illness resulting from shock it was necessary to show not only that such injury was reasonably foreseeable, but also that the relationship between the plaintiff and the defendant was sufficiently proximate; that the class of persons to whom a duty of care was owed as being sufficiently proximate was not limited by reference to particular relationships such as husband and wife or parent and child, but was based on ties of love and affection, the closeness of which would need to be proved in each case; that remoter relationships would require careful scrutiny; and that a plaintiff also had to show propinquity in time and space to the accident or its immediate aftermath.

If we eliminate that last proposition, essentially – I will go to the passage in a moment – the particular relationships such as husband and wife or parent and child were plainly seen as having pre‑eminent claim over other potential claims.  However, the House of Lords there did seem to say that in any event, in relation to remoter relationships, exercise careful scrutiny.  The need to show the closeness of ties of love and affection which would have to be proved in each case appears mainly to be directed at relationships other than those particular, I suppose more popularly treasured relationships of husband and wife, parent and child.

GUMMOW J:   What happened?  There were two groups of plaintiffs, were there not?

MR GROSS:   Yes, there was.

GUMMOW J:   One group was parents, spouses and siblings, was it not?

MR GROSS:   Yes.  At page 310G to H ‑ ‑ ‑

GUMMOW J:   They recovered, did they not, at trial?

MR GROSS:   I have not looked at the win/loss ratio amongst the plaintiffs.  That:

nine of the plaintiffs, who were either parents, spouses or siblings of the victims and who were eye‑witnesses of the disaster or who saw it live on television, were held to be entitled to claim damages for nervous shock.  The remaining six plaintiffs were excluded as claimants because they were in a more remote relationship –

but it seems that on appeal they all lost and for a variety of reasons.

KIRBY J:   That can only be based on some policy ground that it is desirable to mark off the limit of liability for defendants in a semi‑arbitrary way because some people in relationships nominated will hate each other and others will love each other.  Some people outside those relationships will hate each other, others will love each other.  Some will be susceptible to nervous shock, some will not.  In and out of those relationships.  That is the problem with the relationship.

MR GROSS:   Your Honours, it was not so much the relationships issue which caused the plaintiffs to lose.  It was the television aspect and that was not seen as being sufficiently direct, although I think one of the Lords did accept the possibility, in what has been described since as being a very saccharine example, that people on television might succeed in recovering damages for nervous shock if, for example, there were a number of small, bouncy children going up in a balloon.  The balloon then caught fire and then fell to the ground, killing them all and that was all on television.  That was seen as perhaps being enough, but people being crushed at a football match, mainly adults, did not seem to qualify, although that ex‑potential exception was left open.

KIRBY J:   It is all pretty unsatisfactory, is it not?

MR GROSS:   Yes.

KIRBY J:   And that is another reason for a court to say, “It’s all unsatisfactory and we can’t really sort it out in the confines of a litigated case.  We’ve got to leave this to the Law Reform Agency or to Parliament.”  Too many factors.

MR GROSS:   We would submit that the House of Lords accepted the importance of particular relationships which is endorsed by courts and the community, namely husband and wife, parent and child.  We would submit that the difficulty of going beyond that, or those two categories, is one which may invite the attention of the legislature rather than be left to courts to rule subcategories in or out.

GLEESON CJ:   Well, you find this argument being put at page 391 of [1992] AC by counsel for the defendant in the paragraph commencing with the word “Rescuers”.

MR GROSS:   Yes.

GLEESON CJ:   And the argument that seems to have prevailed in that case was an argument along those lines.  It is very much like an argument, is it not, that says advances in psychiatric knowledge are drawing us into a state of information that is going to force courts to treat psychiatric injury much the same way as they treat economic loss?  We are coming to recognise, in other words, how difficult it is to impose bounds or limits on the kinds of people who will suffer psychiatric injury as a result of physical harm, death or injury to someone else, but the class is just about as limitless as the class of people who will suffer economic loss as a result of death or injury to a victim.  The only rational response of the law to that, as a matter of policy, is to limit in some way by some mechanisms the persons who ought reasonably to be in the contemplation of a wrongdoer as likely to suffer this kind of harm.

MR GROSS:   Yes.  Your Honour, we accept the need for limits, and that is repeated frequently in Tame and Annetts.  We also acknowledge that psychiatric injury can be harder to verify than physical injury.  However, we would add that it is harder to persuade a court to give worthwhile damages in an alleged psychiatric injury case than it is in a physical injury case, where the injury is well-documented.  And, of course, the willingness of litigants to take on a nervous shock case alleging psychiatric injury is of a far lower level than those who have actually suffered physical injury. 

So there are natural inhibitions, both against commencement of such cases and success in such cases, of a dimension which makes the risk worth running.  Of course, the way that cost rules are designed these days, and I suppose also the burdens which court cases place on litigants and their attorneys, means that cases are not commenced except for what is perceived on proper advice as being good reason.  I appreciate that cases which do not pass those tests sometimes get commenced or even succeed, but all of those natural inhibitions and the cost risks which control decision making operate to limit both the numbers and the amount of damages that is awarded for nervous shock. 

Although, theoretically, one can say there is a limitless number of people who can bring such claims and therefore the courts will be burdened or the community will go broke, there is no properly validated study as to how many nervous shock cases there are, what is the average payout of them and whether such claims are on the increase or decrease or what.  So we submit there is an awful lot of scare talk running around about what can happen with, I suppose, cases generally, but particularly with nervous shock cases.  They are ordinarily regarded as being very modest or minor cases which, when brought, if they are brought, are usually settled and rarely trouble the courts.  So it is not as though one is dealing with a crisis of high financial dimensions, against which ‑ ‑ ‑

KIRBY J:   Not so far, because there have been checks that have been semi‑arbitrary, or even arbitrary, and that is why they have not troubled the courts.  What you are trying to do is to expand the category of those who will trouble the courts and what we have to consider is how many will be allowed to trouble. 

McHUGH J: Then you want us to disregard the policy of the New South Wales legislature. You want us to render section 4(1)(b) of the 1944 statute irrelevant – extinct.

MR GROSS:   We submit that it has always been treated as being an alternative route to establishing an entitlement to damages, which, in effect, removes requirements for foreseeability and proximity and provides a simple mode of identifying the classes of persons and the circumstances in which they recover damages. 

McHUGH J:   Yes, but the statute gave a parent or spouse of a person killed, injured or put in peril an automatic right of action if the person killed, injured or put in peril would have had a cause of action.  But in respect of other members of the family, those persons could only succeed if the person was killed, injured or put in peril within the sight or hearing of the injured member of the family.  You want us to write that out. 

MR GROSS:   Well, your Honour, it is not ‑ ‑ ‑

McHUGH J:   If you succeed in this case, the statute is a dead letter.  Why should be develop the common law to make the statute a dead letter?  If you want to rely on New South Wales legislation, why should we not take our cue from that? 

MR GROSS:   Your Honour, the sources of entitlement are often overlapping or multiple and, therefore, it is inappropriate, in our submission, to take a statute which in some ways is obsolete, but in any event, is a statute which was intended to provide a particular aid to address a particular problem at a time.  One should not take that as stating, in effect, what either the community standards are or what is reasonable.

GUMMOW J:   The question is ‑ it says “shall extend”.  Does it mean “shall extend and no further”?

MR GROSS:   Yes.

GUMMOW J:   That is the question.  You interpret that by looking at the reasons the law was brought in, and they are pretty clear in Mr Downing’s speech in Hansard of 8 November 1944, and it is all bound up with Bourhill v Young?

MR GROSS:   Yes, it is. It is plain, in our submission, that the common law still survived and was capable of growing and developing to meet community expectations. However, we would add, that that was not the last occasion – at least relevant to my group of plaintiffs – that the legislature spoke. The legislature spoke, once again in terms of criteria, in section 151P of the Workers Compensation Act.

Now, let it be conceded, that on its face, it does appear to expressed in a negative form and it occurs in a group of provisions in that part of the Workers Compensation Act which involved modifications and therefore restrictions on the entitlement to recover damages. But, nevertheless, when in section 151P, criteria was spelt out – and if I could just go to 151P, if I may: Workers Compensation Act 1987, section 151P, the legislature stipulated classes of person who could recover for psychological or psychiatric injury where a worker had been injured – and, obviously, that includes a worker who had been killed.

The descriptions set out there in some detail of the family relationships obviously includes “child”, but also throws in additional restrictions, requiring it to be shown to be: 

a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction. 

Now, I will pass by the basis upon which there is a distinction between “emotional or cultural”. Certainly, when the legislature applied its mind to the specific question of curbing the cost of claims arising out of worker injury, where the paying community was those who presumably paid workers compensation premiums or who were self-insured, it was sufficient to set out the description of what I call the family members who could qualify, and to marry it with a fairly specific criterion concerning the nature of the illness that had to be caused and, indeed, demonstrated, without finding it necessary to discriminate between those classes in a manner akin to what was done in section 4(1)(b).

We would submit that that itself was the legislature again speaking on the topic and, therefore, although it can be acknowledged that, in 1944, the legislature gave some inkling as to what that particular legislature was thinking about what should be done, in effect, in aid of certain classes of plaintiff.  In between time, the common law itself has developed and finally has had a statutory curb placed on it, in this class of case, by reference to those qualifying characteristics in 151P(b). 

KIRBY J:   Does “spouse” have an extended meaning?

MR GROSS:   I think that “spouse” does not in the Act itself but there is general ‑ ‑ ‑

KIRBY J:   Why would we follow that, for 30 per cent of people now do not get married?

MR GROSS:   There is a specific statute – I think it is something like the Law Reform Family Relations Act – which basically says where in legislation “wife”, “spouse” or similar expressions are used, it includes the wider class including de factos.  So, in other words, it is specific legislation.  Can we get your Honours the reference supplied?

GUMMOW J:   Yes, we have to have that.

MR GROSS:   “Wife” or “spouse” is used in many pieces of legislation, including that related to administration of wills and the like, and so there is one specific piece of New South Wales legislation which gives the distributive or expanded definition to those terms wherever used in a New South Wales Act.

While we are at section 151P, your Honours have our written submissions, but we do recognise that both the trial judge and the Court of Appeal treated this as being a mere limiting provision and not itself as an independent basis for entitlement. But we submit that if in fact we read section 151P alongside the state of the law as to nervous shock as it now appears after Tame and Annetts, it is possible, in our submission, to safely define a duty of care in a manner which meets not only this statute but also community expectations and we submit that if one looks at section 151P in light of Tame and Annetts and then asks, what else is missing, what else should be added in there for any of these persons to succeed, obviously you have to have the existence of negligence on the part of the employer causing injury – that is a given because it is a common law case.  Then on the question of time and space requirements, we submit that is no longer part of the common law as to duty of care in psychiatric injury cases, so that is not there.

You are then left with proximity of relationship where the legislature itself has set out the requisite descriptions in a manner which accords with those earlier suggestions we made as to what immediate family were, although I see “brother and sister” in there, and then adds other controlling elements which themselves are not inconsiderable hurdles to jump either before commencing proceedings or when trying to satisfy a court. So that it becomes, in our submission, odd to read that provision and then to say, “Yes, but because of section 4(1)(b) of the 1944 Act, the children and, I suppose, the siblings have to actually see the accident occur”.

In fact, when one goes to section 4(1)(b), that actually imposes a requirement which eliminates the aftermath, because it requires, in the case of children and siblings, that the person be:

killed, injured or put in peril within the sight or hearing of such member of the family. 

So it would be extremely odd if, in the context of the common law as now established by Tame and section 151P, one is then left with a residual unstated qualification which takes its genesis from a 1944 Act which was intended for a more narrow purpose. We would submit – and I think I have almost completed my submissions – when one is looking at community standards, you are looking at community standards not only as to what employers should do, but what interests they should respect and compensate for by way of damages. Section 151P is a sufficient statement of legislative policy for that purpose.

KIRBY J:   You mentioned the House of Lords, but you did not answer my question about other final courts.  Has the Supreme Court of Canada looked at it? 

MR GROSS:   Your Honour, the last occasion that I looked ‑ ‑ ‑

KIRBY J:   Or are there academic articles that we should have reference to?  Professor Mullany is writing about this subject virtually every couple of months. 

MR GROSS:   Yes. 

KIRBY J:   We have to have help here, Mr Gross.  This is not the Supreme Court of New South Wales.  We cannot just look at a few New South Wales statutes and your case.  We have to deal with the whole thing for this nation. 

MR GROSS:   Yes.  Your Honour, in terms of the articles, we have not been to the articles to see what more precisely they say about the categories of relationships as discussed in Alcock, however, as your Honour is aware, the English Law Commission dealt with that Alcock question by basically recommending the disappearance of the other control mechanisms but keeping in place that related to close ties of, in effect, love and affection. 

KIRBY J:   That is the answer you have given us.  You have taken us to the House of Lords.  Now, if you do not know whether the Supreme Court of Canada or the New Zealand Court of Appeal or the South African Court of Appeals have dealt with this, well, say so. 

MR GROSS:   Your Honour, we do not know, but if it is convenient to the Court, we will go to those cases and give any case references and page and paragraph numbers if the specific matter of the relationships question has been dealt with in a helpful fashion, which explores what your Honours are after.  So far as the periodical literature is concerned, with which we have been to, it only really seems to recite – and we will give the references ‑ the test posed in Alcock and the acknowledgment by the English courts that, really, this is a matter for the legislature, but, at the same time, pointed out that that puts courts and litigants in the unseemly position of having to grade the quality of the relationships, for duty of care purposes, which exist in a particular case – that is, determining how close was that so-called tie of love and affection, and whether they really were affectionate.  Whereas, we would submit, the level of affection that can be proven at trial, whether it reflects the reality or not, is not itself a necessary or proper correlate as to the likelihood or unlikelihood of psychiatric injury resulting from death. 

So, that we come back to our submission that in the end one must define a zone of relationships which will fall within the relevant duty of care, recognising there are other tests to be passed and other evidence to be given, and plainly parent/child and spousal relationships fall within that relationship.  What then can be taken into account on duty of care is really a matter for examining the particular close tie of love and affection in the individual case.  How that is formulated by a court as distinct from a legislature, it is impossible, in our submission, to say.

KIRBY J:   Unless you get through the gateway of the interpretation of section 4(1)(b) of the Miscellaneous Provisions Act 1944 you do not get to all the other issues, do you, in respect of the children? If that Act is covering the field, in a sense, then we do not having to worry about the children.

MR GROSS:   If that Act covers the field to the exclusion of the common law and to the exclusion of what we say section 151P requires as a relevant inquiry, if we do not get through that particular gateway we lose because the injury does not occur within sight or sound.

KIRBY J:   The Miscellaneous Provisions Act, was that copied and in what other jurisdictions?  Do we have a list of those?

MR GROSS:   We have a list.

KIRBY J:   Where stands the authority on those jurisdictions concerning whether it is exclusive of the common law and defines the entirety of the entitlement or allows a residual of the common law to operate?

MR GROSS:   Your Honours, we do not have the precise text rules here but the ACT legislature and the Northern Territory legislature both passed provisions which it is said are in the same terms as section 4.

McHUGH J:   I though South Australia ‑ from recollection, is section 35 of the Wrongs Act of South Australia, does it not enable certain family members to succeed in this class of action on being told of trauma?

MR GROSS:   Section 35A of the Wrongs Act of South Australia?

McHUGH J:   Yes.

MR GROSS:   Your Honours, we had the references to the territorial legislation.  Can we find those and mention those in reply?

Your Honours, we referred in our written submissions to an article by Butler, “Nervous shock at common law and third party communications:  are Australian nervous shock statutes at risk of being outflanked?”, and that is in (1996) 4 Torts Law Journal 120.  Can I hand up copies of those, your Honour?

KIRBY J:   I took a view in Coates.  In a sense it is one thing to conclude on the face of the statute and perhaps other considerations that the statute does not exhaust the residual of the common law.  It is another thing, or possibly another thing, to come along here now and to say in the light of Tame and Annetts that the common law of Australia now is to have an effect which, in a sense, nullifies and invalidates entirely the provisions of the New South Wales statute.  Normally, statutory law, if it be constitutional and valid, has a higher level of authority than the common law.

Is there any case like this that you can think of where, by reason of supervening developments to the common law nationwide, that is then taken to make otiose a State statute?

MR GROSS:   Your Honours, could I answer that by giving those two statutory references and then I will answer your Honour’s question if I may, Justice Kirby.

GUMMOW J:   They are choice of law questions that cope with ‑ ‑ ‑

MR GROSS:   Yes. Your Honours, footnote 5 of Mr Butler’s article that I have given you identifies identical legislation to section 4 of the New South Wales Act as being the Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) section 24(1) and the Law Reform (Miscellaneous Provisions) Ordinance 1956 (NT) section 25(1).

Justice Kirby, can I just respond to the rest of your question, if I may?  The problem arising here is really one where you have an established common law understanding or an established legal principle going back to, I think, 1949 in Anderson v Liddy and where courts, the profession and the community act on the assumption that section 4 did not limit the common law. You then have legislative inactivity on that front while the common law expands, except for that activity in the context of section 151P which then brings in its own restrictions where a worker is killed or injured at work.

The problem your Honour Justice Kirby is posing for me is what happens if, in fact, the common law turns out to be, as now reviewed by the High Court, broader and with less controls than existed over that period from 1944 to 2002.

HAYNE J:   Some analogy, not perfect, but some analogy can be found in the consequences of the decision of this Court in Pfeiffer v Rogerson on those State statutes that regulated choice of law in damages in intra‑national torts.  There the common law, in effect, caught up with – I do not know that it could be said to have overtaken – the statutes, but there is at least an analogy to be drawn to some extent with what happened in Pfeiffer v Rogerson.

MR GROSS:   We prefer “outflanked”, which is Mr Butler’s phrase, rather than “overtook” because my learned friend takes comfort from that being a suggestion that the common law can subtract from the statute or overrule the statute.  But, your Honours, in terms of analogous material, we would suggest there are two areas which can usefully be gone to, and we have not gone there ourselves, in detail.

Your Honours, first of all, there is that line of authority and area of legal periodical literature which deals with the question as to what extent overruling a common law precedent should have retrospective effects and although that is an area of law that is developed in some detail in the United States, I do not recall it as having any specific, well‑recognised operation in Australia.

KIRBY J:   On the contrary, this Court has said that you cannot do that compatibly with Chapter III, so that I think that is really irrelevant.  But taking up Justice Hayne’s point about the Pfeiffer decision and the fact that there may be particular statutes which have operated on a different assumption as to the state of the common law, would it not as a matter of principle be the rule that statutory law being of a higher legitimacy, in a sense, deriving under the Constitution from a Parliament elected by the people will, if it be valid, take precedence over any nation-wide principle of the common law which will operate in those jurisdictions of the Commonwealth where there is no governing statutory law?

MR GROSS:   We would submit that it should not do so where the statute itself only purported to have a limited beneficial operation to address particular situations where that was seen at the time and validly seen as being one of two alternative avenues to recovery of damages where, in other words, there was a simple route you can go down or there was the more perilous, in some cases, common law route that could be explored.  We would submit that if in fact that was how the legislation was properly read then, it cannot cease to be so read because the common law is seen to have had some apparent restrictions removed so that the common law may have a wider operation.

GLEESON CJ:   What was the reason why section 4 did not apply in Annetts?  Mr and Mrs Annetts lived in New South Wales, they suffered the nervous shock in New South Wales and, in fact, they commenced their proceedings in the Supreme Court of New South Wales, from where they were transferred to Western Australia.

MR GROSS:   Yes, they were cross-vested to Western Australia and on my reading of Annetts – only in this Court, I fear – I did not detect any reference in argument to the potential operation of the New South Wales statute.

GLEESON CJ:   If section 4 had applied in Annetts, the problem that entertained the Court would not have arisen.  The people were parents and they did not have to be in the sight and hearing of the killed person.

MR GROSS:   Yes.  Just as I recall in Annetts, the nervous shock as pleaded seemed to be two specific instances of communications rather than what was occurring generally.

GLEESON CJ:   They were communications over the telephone that were received at the family home in New South Wales, were they not?

MR GROSS:   Yes, but one assumes that the parties inferred that because the employer and his negligence and, therefore, the tort occurred qua the child in Western Australia and ‑ ‑ ‑

GUMMOW J:   It says “is killed”.

MR GROSS:   Yes, and  ‑ ‑ ‑

GUMMOW J:   In 1944 that probably meant he was killed in New South Wales – probably today too.

McHUGH J:   It still does.  Section 17 of the Acts Interpretations Act.

GUMMOW J:   Yes, exactly.

MR GROSS:   Yes. So that the place of the tort and of the death married with Western Australia being the venue for the hearing would have removed any consideration of section 4 from anyone’s minds if they had thought about it.

KIRBY J:   It would have been a factor relevant to cross‑vesting, a cross‑vesting decision, one would have thought.

MR GROSS:   Yes, but my recollection was it was a consensual cross‑vesting in Annetts ‑ ‑ ‑

GUMMOW J:   It was, yes.

MR GROSS:   ‑ ‑ ‑ and therefore the advantages of being in one place rather than the other were not explored.

KIRBY J:   Unless you get through that gateway of the section of the Law Reform (Miscellaneous Provisions) Act – and the primary judge, Judge Naughton, listed, I think, seven reasons why he thought the better view was that it was expressing the whole of the law – unless you get through that, then we are not troubled with any of the other issues, are we?

MR GROSS:   Your Honours, that is so, but we add as a rider section 151P has to be read with that statute. Leaving both statutes alive for that purpose,

you really have to look at both and reconcile the two, particularly the absence from the 151P provision of the requirements for physical presence at the time of the injury.

GLEESON CJ:   This, I thought, was a point that you wanted to reserve until reply anyway.

MR GROSS:   Yes, indeed. We felt that the section 4 point is a reply point to the notice of contention. May it please your Honours.

GLEESON CJ:   Thank you, Mr Gross.  Yes, Mr Hislop.

MR HISLOP   May it please the Court. May I commence with the section 4 point because, as has been observed, in the event that the plaintiffs’ remedies are restricted to it, the claim by the plaintiffs must fail. The trial judge held that the plaintiffs fail on that basis, and his reasons are set out at pages 444 to 456 of the appeal book. The Court of Appeal reversed the decision of the trial judge in that regard, but we contend that the trial judge’s conclusion was correct and should have been preferred. The question is perhaps one of statutory ‑ ‑ ‑

KIRBY J:   Could you help me on this, Mr Hislop?  In the Court of Appeal Justice Handley and Justice Ipp reserved certain aspects of the decision of Justice Hodgson.  What did that relate to?  That did not relate to this issue.

MR HISLOP   It did not relate to the children, your Honour.  It related to the mother’s claim which was heard at the same time.

GUMMOW J:   And there was no grant of special leave in that?

MR HISLOP   No, special leave was refused in respect of that claim, your Honour.  The statute may perhaps be looked at at three levels.  Firstly, it may be that it limits claims for nervous shock to family members and no other.  That appears to have been the view taken by Justice Murphy and the relevant part of his judgment in Jaensch is set out by his Honour the trial judge at 448 of the appeal book, where his Honour said:

“In New South Wales, the Law Reform (Miscellaneous Provisions) Act 1944 extends liability to cover injury arising from nervous or mental shock caused to other persons where a person is killed, injured or put in peril but limits it to members of the person’s family and further limits it, except in the case of a parent or spouse, to cases where the person is killed, injured or put in peril within the sight or hearing of the family member.”

One finds the same approach that the effect of the section is a limiting one in the decision in Alcock [1992] 1 AC, to which my friend made earlier reference, at, for present purposes, 419, where Lord Oliver of Aylmerton said:

Policy considerations such as this –

and he had previously dealt with various policy considerations in relation to a nervous shock claim –

could, I cannot help feeling, be much better accommodated if the rights of persons injured in this way were to be enshrined in and limited by legislation as they have been in the Australian statute law to which my noble and learned friend, Lord Ackner, has referred.

And it was section 4 of the Miscellaneous Provisions Act which Lord Ackner had made reference.

GUMMOW J:   Where is that?

MR HISLOP:   The reference to Lord Atkin, your Honour?

GUMMOW J:   Yes.

MR HISLOP:   That is at page 404.  His Honour there does not appear to do anything much more than make reference to the Law Reform (Miscellaneous Provisions) Act.

GUMMOW J:   He does talk about “extend”, does he not?

MR HISLOP:   “Extend” is in the provision.

KIRBY J:   That is the problem, I think, the word “extend”.  It is not a very clear extinguishment of common law rights.  The normal principle is that they are not extinguished unless Parliament does it clearly.

MR HISLOP:   I will come to that shortly, your Honour.  The second way in which it can be approached ‑ ‑ ‑

GUMMOW J:   You see, you have to face what Justice Hodgson says at page 615 in the report in the Court of Appeal, paragraph 35 of his judgment.  The section:

does not expressly say that there should be no liability in respect of mental or nervous shock . . . unless the conditions laid down by that section are satisfied.

That is the way one would have thought it would be drafted.  That seems to be the point.

MR HISLOP:   Yes, to one extent.  Can I just put the two other ways in which it can be looked at and then develop it from there.  It could be looked at as providing a code in respect of circumstances in which family members can sue and only on that basis and it can have a further interpretation, that being which was given by Mr Justice Taylor in Mammolitti.  That is referred to in the trial judge’s judgment at 446H to J.

GLEESON CJ:   What is the reference for Mammolitti?

MR HISLOP: It is (1965) 114 CLR 153, your Honour. Part of the judgment of Mr Justice Taylor to which I wish to refer is contained at page 446 of the appeal book at about line H where his Honour refers to 4(1)(b) and says:

deals with liability to other members of the family of the person so killed, injured or put in peril.  But the same notion is apparent.  It operates to substitute for the test of foreseeability a concrete test – Was the initial victim killed, injured or put in peril within the sight or hearing of such member of the family?  But it does not otherwise affect the cause of any such member of the family.”

So that even if one read it as to that limited extent, what it does do is provide a concrete test, namely that of the sight and hearing, and that concrete test if applied in the case before this Court today ‑ ‑ ‑

KIRBY J:   Yes, but the governing verb is “shall extend to”.  As I pointed out in Coates, “shall extend to” implies the continued existence of the right which is additional to other rights which remain unaffected.  It implies that you still have that right and you are extending the right to others, not subtracting rights.  This is the problem, it seems to me, in the verb.

GUMMOW J:   How did this arise Mammolitti?

MR HISLOP:   The detail of the case is set out ‑ ‑ ‑

GUMMOW J:   How did it become necessary to construe the section?

MR HISLOP:   It probably was not necessary, your Honour.

McHUGH J:   Well, it was very, very necessary, I can tell you.  The reason it was necessary was because it was said that the plaintiff’s action was a derivative action because her husband had sued and failed – or the other way round; I cannot remember now – and therefore that was pleaded in Bar and it was important to determine whether she had an independent right of action.

MR HISLOP:   The difficulty was though, your Honour, that she being the widow she fell within (1)(a) and thus the comment on ‑ ‑ ‑

McHUGH J:   I know, but what is important about Mammolitti for present purposes, perhaps its only importance, is it shows that it is the independent cause of action under the statute.

KIRBY J:   That would tend to confirm the language in which the statute is expressed and it would tend to be reinforced by the principle which this Court has applied in countless cases that you do not take statutes to abolish common law entitlements unless they do so in clear language.

MR HISLOP:   It is necessary, having stated those ‑ ‑ ‑

KIRBY J:   They are your problems.

MR HISLOP:   - - - compense to deal with the matters that your Honour keeps reminding me of.

KIRBY J:   I am not being unduly defensive of Coates because you can have different views later on and, in a sense, the point of the trial judge is as a persuasion.  You look at the history of it and you look at words and intuitively you might reach a different conclusion, but there are those three considerations you have to ‑ ‑ ‑

GUMMOW J:   Did the trial judge look at Hansard?

MR HISLOP:   There is nothing to indicate ‑ ‑ ‑

GUMMOW J:   This is a remedial statute and you can look to find the mischief.

MR HISLOP:   Yes.  There is nothing to indicate in his Honour’s judgment that he did, your Honour.

GUMMOW J:   It is pretty clear what Attorney‑General Downing thought he was doing.

MR HISLOP:   What Attorney‑General Downing thought he was doing was dealing with what was seen to be the result of two cases – Bourhill v Young and Chester v The Waverly Corporation and in each of those cases the plaintiff had failed.  Firstly, it was clear from what Attorney‑General Downing said in the reading speeches that he apprehended, correctly, what the courts had decided in those cases.  Those case provided no remedy in the situation which he then addressed in his legislation so that what he was doing was overriding entirely the results of those cases at common law and replacing it with what we submit is a code or a covering of the field in those areas.

GUMMOW J:   That is the last step, you see.  I do not think he said he was taking the last step.

MR HISLOP:   No, he did not say that but that is the effect and this is the point I wanted to make.  That was the effect of what he did.  It was not a case of him tinkering with cases which have provided a right in some circumstances.  The case had held failure and he was providing a right at that stage where no right existed under the common law.

To that extent then, it is our submission that despite the use of the word “extend”, which is totally understandable in the circumstances because he was extending the common law from nothing to where he placed it, what he was doing in effect was to cover the field at least in relation to family members and he set up a regime which was intended to balance the various competing interests.  He did that by providing what, in our submission, is an objective test and one which is easy of application, which is very important in this area.  Firstly, he gave a much higher entitlement to the parent or the spouse.  He does that in (1)(a).  Then he gives a lesser entitlement to the members of the family, no doubt because that was seen to be a balancing of the competing interests as understood, and he then provides for a test which is easy of application, namely, were they within the sight or hearing of the person who was killed, injured or put in peril?

Now, in our respectful submission, in this very difficult area, it is important to note that the government of the day provided that very simple, straightforward and ease of application test which, undoubtedly, in the view of the Parliament properly dealt with the various competing interests. Now, it was not just a case of them just dropping in a couple of words. When one reads the remainder of the provisions in section 4, one sees that they have very carefully worked out a procedural manner of dealing with such claims. There is to be one claim. It is to be brought in a certain court, and so on, with the initial form.

All in all, when one gives due consideration to the remaining subparagraphs of section 4, coupled with the historical background and coupled also with the nature of the test provided, it is our submission that clearly, as a practical matter, this legislation was covering the field and it was providing a test which would continue to be applied because, by reason of the statutory enactment, the development of the common law could proceed, but only as long as it was not inconsistent with the tests which were laid down by the Parliament. The word “extend”, as I have explained, is really just a use of the word which, when one has regard to the history and to what was achieved by the legislation, carries no weight at all.

GUMMOW J:   When you say “inconsistent”, you are using that in the sense of covering the field, are you not?

MR HISLOP:   Yes.

GUMMOW J:   So we are back to where we started, really.

McHUGH J:   You have to argue that it contains a negative implication.

MR HISLOP:   It does contain a negative implication if one looks at it, because it is the only legislation dealing with the situation and it provides rights.  It is not a case of taking away any rights that previously existed so that one does not get into the ‑ ‑ ‑

KIRBY J:   That is on the knowledge that the Parliament of New South Wales had at that time.

McHUGH J:   That was erroneous.

KIRBY J:   That we now know.

MR HISLOP:   I have difficulty with that as a concept, that it was erroneous, because it was a correct understanding of a decision of the highest Court, of the High Court of Australia at the time.

McHUGH J:   It is wrong.  We just declare the common law.  We do not declare it prospectively.

MR HISLOP:   No, but at the time it was the declared common law.  There was no mistake about it, and the Parliament in acting at the time did not take away any rights.  It provided rights where they did not exist.

GLEESON CJ:   Perhaps we could come back to this at 2.15.

MR HISLOP:   May it please, your Honour.

GLEESON CJ:   We will adjourn till 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:  

GLEESON CJ:   Yes, Mr Hislop. 

MR HISLOP:   Thank you, your Honour.  Your Honours, the Law Reform (Miscellaneous Provisions) Act in its terms states that it is: 

An Act to amend the law . . . in relation to actions for the recovery of damages –

and, in our submission, a proper interpretation of ‑ ‑ ‑

KIRBY J:   That is against you, is it not, because it does not say to abolish common law rights and to substitute statutory ones? 

MR HISLOP:   Well, it does not say that, but our submission is that on an interpretation of the statute it does, if it does nothing else, at least do that which Justice Taylor said it did in Mammolitti, that it substitutes: 

for the test of foreseeability a concrete test – Was the initial victim killed, injured or put in peril within the sight or hearing of such member of the family? 

Now, the claim or the entitlement in the state of New South Wales should, in our submission, be considered as one limited by those words, because to do otherwise would be to render section 4(1)(b) of the Act otiose. It would have no function and ‑ ‑ ‑

KIRBY J:   Not really.  Parliament could have taken the view, “Well, we will just let the common law bubble along there and take its own course, but we are going to make sure that these people, at least, are covered”. 

MR HISLOP:   Well, your Honour, the difficulty of that is that, if one accepts that one is able to go beyond the statute, it means that effectively the statute is repealed by the common law, which would be, in our submission, an inappropriate situation which should not be accepted, because that is a role for Parliament. 

McHUGH J:   But on the true view of the common law, it never had any effect, because supposing there is around today somebody who, in 1943, suffered nervous shock.  Subject to getting an extension of time, they could bring an action at common law. 

KIRBY J:   They might be a bit uphill getting an extension of time. 

MR HISLOP:   Well, a 30‑year limit might apply to rule them out. 

McHUGH J:   They could bring an action based in the common law for what happened in 1943. 

MR HISLOP:   And if they did, it is our submission that they would have to bring themselves within, if a child ‑ ‑ ‑

McHUGH J:   The statute would not apply to them, because it would speak prospectively.  It only operated from some date in 1944. 

MR HISLOP:   Well, if they were to bring a claim based upon the common law as it stood at that time, they would fail.

McHUGH J:   No, not if they brought it now they would not.

MR HISLOP:   No, perhaps not.

McHUGH J:   The common law is now what the courts declared it to be and according to jurisprudential theory, there always was that.  You do not go back to – that is part of the problem of judge‑made law, that it operates retrospectively in a real sense.

KIRBY J:   You can say that that is a reason for restraint.

MR HISLOP:   Indeed.

KIRBY J:   In the other branch of the argument, in the other branch of the case.

MR HISLOP:   Yes, and that was really the next point I would go on to.

GLEESON CJ:   In 1970, Sir Victor Windeyer described this legislation as “a statutory modification of what the common law was in 1944” and went on to say, “in this field the common law . . . is being continuously developed by the courts.”  That was in Mount Isa Mines v Pusey 125 CLR at 408.

MR HISLOP:   Yes.  But in the State of New South Wales, it is our submission, developed subject to the statutory provision which placed a limitation upon it.  Pusey not being a case that was involved with the ‑ ‑ ‑

McHUGH J:   But you are not in the United States.  There is not a common law of each State, there is a common law of Australia.

MR HISLOP:   That is so, but regard must be had to the statute.  It is the common law of Australia but subject to any changes by the governing statute law.

KIRBY J:   That is a bit of a problem for you, is it not, because if the common law is the common law of Australia and if it goes developing, as Sir Victor Windeyer said, then your theory of the statute is one which attempts to arrest the development in other States of Australia which have not enacted this legislation and that just cannot be and has not proved to be so.

MR HISLOP:   Well, it can be if the theory is right.  It can arrest the development of the common law in New South Wales, at least in the case of children.

KIRBY J:   How can it do that?  The common law is the common law of Australia.

MR HISLOP:   The statute law has that effect, if our submission is correct, but really it is governed by the statute law rather than the common law in New South Wales. As to the other wider aspect, if it be that section 4 does not preclude common law claims in respect of nervous shock claims by children, then at least the legislature here has determined what is an appropriate balance between competing interests and, therefore, it provides a reason why the common law should not be extended beyond that which was thought reasonable, or at least that that should be a factor taken into account when considering any extension of the law.

McHUGH J:   You have to say that that this Act operates in the same way as statute law does in respect of the prerogative.  If, for instance, the statute law provides for compensation because of war damage, then it governs the whole question of the taking of property for the purpose of war and you cannot rely on the common law prerogative.  That is what you have to say.

MR HISLOP:   I think we made our submissions in respect of the statute.

McHUGH J:   Yes.

MR HISLOP:   And, in our submission, it governs as the trial judge found and that should be the end of the case.  If the Court is of a different view, it is then necessary to move on to the other section that has been dealt with at 151P of the Workers Compensation Act. The opinion of both the trial judge and the Court of Appeal was unanimous on this, that it did not provide any separate cause of action and, in our submission, that is correct having regard to the purpose of the section as revealed by the group of sections in Division 3 of Part 5 of the Workers Compensation Act.  The intent is to limit entitlements, not to increase them or to provide any separate cause of action and for the reasons that the courts below advanced, we would submit that is clearly correct.

That brings us to the final aspect of the matter, the common law.  In relation to this what we apprehend is put is that it is sought to ask the Court to extend the common law beyond that to which it has previously gone.  If that is to be done, in our submission, there must be effective and principled basis shown to justify that and to indicate what limitations are to be placed upon any such extension.

The discussions between my learned friend and the Court this morning indicated that there really were no effective and principled bases which were able to be advanced to properly limit any such extension.  If the extension were allowed, it would probably make Australia the only jurisdiction to allow the hearing of bad news without some special feature being involved.  My friend relied upon Annetts’ Case but Annetts’ Case was very much a very special case where there was a very special relationship of reliance.

KIRBY J:   Why can you not say that the special feature – I agree, not very well defined – but is that in the normal course of human events people who are very close to a person, their immediate family, can be expected to in some cases suffer nervous shock for which tortfeasors should be liable?

MR HISLOP:   Your Honour, that would have been open in Annetts’ Case, for example, where there was a relationship of parent and child, there was circumstances of death, and that was not, as we would understand the judgments of the Court, sufficient.  What was required was the very special relationship in that case by reason of the reliance upon the employers.

In the present case there was no special relationship between the children and the employer.  The children were of a reasonable age in the sense they were 19, 18 and 15, I think in this case or thereabouts, and if it be relevant, the circumstances of the accident were that the deceased was killed immediately or instantly and there was apparently no pain according to the evidence.

Now, one could question whether, even in these circumstances of injury, being a psychiatric reaction, was foreseeable.  One could readily understand, I suppose, a situation if the child had seen the event but to be told of it at some later stage ‑ ‑ ‑

KIRBY J:   You put a great deal of emphasis on ocular perception, but people who are blind can get perceptions aurally and people can have emotional shocks through the telephone.  So that I just do not understand the principle that supports an exclusive reliance on being there and seeing what occurs.

MR HISLOP:   Only this, your Honour, that it would seem ‑ in the circumstances of this case, it would be more likely that there would be a greater impact if a child observed the event rather than heard it later on the telephone.

KIRBY J:   It would depend on the person and depend perhaps on the age.  Nowadays you walk around an Australian street and all the young people are on mobiles.  That is the age we live in.

MR HISLOP:   Your Honour, what we put is that in Annetts’ Case there was clearly a very special relationship.  That was the turning point, if one likes to put it that way, in the Court’s decision of that case.  There is no such special relationship here, and what is suggested is that this Court should go beyond anything that has been decided by the higher courts in America, Canada, here and in England, and the like.  The situation is, in our submission, that previous authority is against such an extension.  The New South Wales statute, in so far as it is of assistance, indicates that that is going far beyond what was considered by Parliament an appropriate course or position to take, and is ‑ ‑ ‑

GLEESON CJ:   How much further beyond Jaensch v Coffey does it go? 

MR HISLOP:   Jaensch v Coffey, your Honour, as I would understand it, would have allowed sight and hearing, would also have allowed aftermath, and that would be where it would stop.  That, also, would appear to be the position in England. 

GLEESON CJ:   What would be involved in aftermath? 

MR HISLOP:   Well, it normally involves attending at the scene of the accident shortly after it has occurred, or attending at the hospital shortly thereafter.  They seem to be the range of the decided cases, and there is a requirement of relative immediacy in relation to those attendances.  Obviously, it is an area where pragmatic considerations have a great effect, and, really, what one is asked to do is to determine the question of policy:  whether it should be extended, or should not be. 

In our submission, there was nothing in the circumstances here which would justify an extension beyond that to which the law has already gone and, indeed, in the argument earlier today a number of matters were clearly identified which would be better dealt with by consultation and the like and an inquiry.

With an issue of this nature, which is purely a question of policy, in our submission, it would be appropriate that the Court should leave the law as it presently stands and if Parliament sees fit it should be for Parliament to determine what, having regard to the community attitudes, should be where the lines are drawn.

It is a very complicated matter.  It is apparent from reading the cases that that is so.  It is apparent from the discussion this morning and it would be better aided by consideration there and that sentiment was to be echoed in Alcock v Chief Constable [1992] 1 AC to which reference has been made earlier, but at page 417 of the report at about line F Lord Oliver said: 

I equally believe that further pragmatic extensions of the accepted concepts of what constitutes proximity must be approached with the greatest caution.  McLoughlin v O’Brian was a case which itself represented an extension –

that was, of course, an aftermath extension –

not, as I think, wholly free from difficulty and any further widening of the area of potential liability to cater for the expanded and expanding range of the media of communication ought, in my view, to be undertaken rather by Parliament, with full opportunity for public debate and representation, than by the process of judicial extrapolation.

KIRBY J:   But does not that principle, which I understand, is that not difficult to reconcile with the step that the Court took in Annetts and Tame?  I mean the self‑same principle of restraint might have stood in the way of doing anything in those cases and they were urged on the Court and yet the Court said, “This is just too anomalous”.

MR HISLOP:   That was – and I will be repeating myself, your Honour – that was a particularly special case and at least one member of this Court considered that it was not truly a case that fell within these principles.  In our submission, that can be left to stand alone.  What is being sought here is a complete across‑the‑board extension, as we would understand it, and, in our submission, that is not a matter where it would be appropriate for the Court to determine that issue when it truly is a matter for Parliament to determine where the respective public interests and the like fall and particularly when it is at a time where the Federal Government has clearly indicated that the costs of claims have reached a stage where it proposes to intervene where the State Governments have done likewise.

I see from the newspaper this morning that there has been a report apparently produced in relation to the federal review of tort law which, as I understand it, makes recommendations in respect of nervous shock claims as well as the question of foreseeability and, although I have not had a chance to read the report itself, as I understand it ‑ ‑ ‑

HAYNE J:   You will find it on Treasury’s website.

MR HISLOP:   Yes, thank you, your Honour.

GUMMOW J:   Not on the Attorney-General’s website.

HAYNE J:   Treasury.

MR HISLOP:   It shows the approach, that the matter is the subject of review by the legislature.

KIRBY J:   Mr Hislop, you would know as well as we do that there are many slips betwixt the cup and the lip. First of all, it has to be considered by the government; it has to be accepted by the government; it has to be probably consulted with the States; it has to get through the Federal Parliament and it might well be that that will modify the common law. The Federal Parliament does its work under the Constitution and we do ours. We would not hold up, would we, the proper exposition of the common law in a case between parties who had brought the matter to this Court on the off‑chance that at some future time the Parliament or the government may do something? That is their business and we get on with ours.

MR HISLOP:   If the Court considered that the questions here were appropriate to be dealt with by the Parliament rather than by the Court ‑ ‑ ‑

McHUGH J: That is a large question, is it not? I will be very surprised indeed if the Federal Parliament can legislate in respect of this area. There may be some areas they can legislate in respect of, but I do not see torts or nervous shock among the paragraphs in section 51 of the Constitution. It is an exercise in co-operative federalism, is it not?

MR HISLOP:   It is also the State itself is proposing to legislate and what is ‑ ‑ ‑

McHUGH J:   That is the States, but which States and which ‑ ‑ ‑

MR HISLOP:   What, as I understand it, your Honour, is the situation is that the States are minded to legislate based upon the federal review of the law of torts and to try and, so far as is possible, have uniform legislation but individual States would legislate and I understand that New South Wales may legislate on its own in any event.  But what I am putting is that this area is really one appropriate for the Parliament, just as was said in the case that I have quoted ‑ ‑ ‑

HAYNE J:   That is a proposition that proceeded, first, from the premise that what was proposed was a large, significant or some other qualifying word, extension in the common law.  What do you say the extension that is sought against you amounts to?  What extension is being sought?

MR HISLOP:   As I understand it, it is an extension beyond sight or hearing or aftermath, so that is the first ‑ ‑ ‑

McHUGH J:   But they have already gone.  The law has changed.  Tame changed the law.

MR HISLOP:   They remain relevant considerations.

GLEESON CJ:   Extension to what in this case?

MR HISLOP:   Well, in Annetts’ Case it was decided upon a special relationship.  Now, that special relationship is not present in this case.

GLEESON CJ:   No, but in this case you say it is an extension beyond sight and hearing and aftermath to what?

MR HISLOP:   In this case, notification ‑ ‑ ‑

GLEESON CJ:   Over the telephone.

MR HISLOP:   Or directly, I think it might have been, in fact, but ‑ ‑ ‑

GLEESON CJ:   Within what period of time?

MR HISLOP:   A number of hours after the event.

HAYNE J:   First available opportunity?

MR HISLOP:   Possibly.  The facts do not really ‑ ‑ ‑

HAYNE J:   To the children of the deceased?

MR HISLOP:   Yes.

GLEESON CJ:   Why is that not aftermath?

MR HISLOP:   Because notification has never been accepted as aftermath.  It was not so accepted in the English cases and there are the statements in Jaensch v Coffey and in Pusey which are recorded at 477 of the appeal book which are directly against the proposition that simply being informed is sufficient.

GLEESON CJ:   Was aftermath itself an extension?

MR HISLOP:   It would be an extension from sight and hearing.

GLEESON CJ:   When did it come in?

MR HISLOP:   Probably with the English decision ‑ ‑ ‑

McHUGH J:   McLoughlin.

MR HISLOP:   McLoughlin.

GLEESON CJ:   It is not a very precise term itself.

MR HISLOP:   It is “immediate aftermath”, for what that adds.  It is true, but once you get into notification, then how soon does the notification have to be?  I mean, does it have to be within a couple of hours?  Will two weeks suffice?  What about a couple of months if the person is out of contact?

HAYNE J:   That is why I injected the notion of first available opportunity.

MR HISLOP:   One immediately sees that one is caught up again in a chain of trying to draw lines in order to reach something which is sufficiently precise in principle to be operative in a real sense.

HAYNE J:   If you are willing to draw a line, there are cases that fall either side, understand that.

GLEESON CJ:   If you look at page 410 of Alcock, you will find that Lord Oliver appeared quite uncomfortable with the use of the word “policy” in this connection.  He repeatedly put it in inverted commas.

KIRBY J:   He might have been a man after Justice Kitto’s heart, thinking that there was no policy in the law.

GLEESON CJ:   And he said that what it was probably being referred to in this area was considerations of:

impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity –

If this is some question of policy, what kind of policy are we talking about and what kind of equipment do courts have to decide such questions of policy?  What sort of policy?

MR HISLOP:   At 410 it is said the:

unenunciated rule of “policy” which draws a line as the outer boundary of the area of duty.

It is that sense that there has to be limitations upon what can be claimed in cases of this type and the limitations are drawn often in a pragmatic way and none the worse for it, but at least they are drawn.  Similarly, in economic loss cases and the like, that there are restrictions upon limitation.  They may not be totally logically satisfying but they are there, they are drawn and they are drawn as a matter of policy.

HAYNE J:   Do you accept that the policy of which we speak is legal policy, not, for example, economic or fiscal policy? 

MR HISLOP:   No.  In our submission, matters of that nature are relevant to the question of policy.  So, too, public opinion and matters of that nature. 

GLEESON CJ:   How do we find out about public opinion? 

MR HISLOP:   Well, again, that is suggestive, your Honours, that it is a matter appropriate to be dealt with by the Parliament. 

GLEESON CJ:   And what is “the public”, when you are referring to public opinion? 

MR HISLOP:   Well, it is ‑ ‑ ‑

GLEESON CJ:   People who speak on talkback radio? 

MR HISLOP:   It is obviously a difficult matter to gauge, and it is a matter which is gauged most appropriately by the Parliament.  Could I refer to what Mr Justice Hodgson had to say in the Court of Appeal in this regard, at page 478 of the appeal book.  At line 30, he says: 

quite apart from the strength of the authorities –

and he was ‑ ‑ ‑

McHUGH J:   What page is it, Mr Hislop? 

MR HISLOP:   Page 478, your Honour: 

However, quite apart from the strength of the authorities, I do not think this is a sufficient reason to extend the duty of care or liability at common law to persons who are merely told about an incident, however horrific the incident and however close the personal relationship. 

It is not possible to compensate everyone who is injured, and the law must draw lines.  It should be kept in mind that the civil standard of proof on the balance of probabilities necessarily means that damages may sometimes be awarded for injuries which did not occur or have been exaggerated, and/or against persons whose actions did not cause them.  It is difficult enough for courts to resolve conflicting evidence in relation to claimed physical injuries, and harder still to do so in relation to claimed mental injuries to persons actually perceiving a horrific event.  It is or would be much harder again to resolve conflicting evidence in relation to mental injuries claimed to arise from merely hearing about horrific events.  Floodgates arguments are often criticised, but there are limits to the compensation that the community can afford to pay, particularly in relation to claimed injuries the existence and causation of which are so difficult to determine with assurance.  In my opinion, it is reasonable to maintain the line that has been drawn in the cases. 

GLEESON CJ:   Now, is that a proposition of policy?  Is that paragraph an enunciation of policy? 

MR HISLOP:   We would see it as such, your Honour, to a certain extent. 

HAYNE J:   Well, a competing view of the relevant policies is that of Lord Wilberforce, which is quoted in Alcock [1992] 1 AC 310 at 395 – if you have Alcock, it may be a convenient place to find it – in the speech of Lord Keith, referring to Lord Wilberforce’s speech in McLoughlin.  See, beginning at about letter D on 395, a large quote from his Lordship.  At letter E and the sentence commencing, “As regards the class of persons, the possible range” et cetera, his Lordship identifies the moving factors – if I can use that as a neutral term – as being one of two: 

“Such persons –

that is, the latter class of the ordinary bystander –

must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large.” 

So that the line that is drawn is between close relatives, “the closest of family ties” – that is a category of some difficulty – and the bystander, on the basis that the latter either have to be assumed, can be assumed, to wear the consequences, whereas the former are not.  Now, are those policy considerations?  If they are, are they relevant policy considerations? 

MR HISLOP:   Well, they may be part of the general considerations, but they would not be the only relevant considerations.  There are many others, in our submission, some of which we have referred.

GLEESON CJ:   But policy is something that has to be informed by facts or values, otherwise it is just saying, “This is what I want, this is what I think is just”, but if you are going to enunciate policy it has to be contestable, presumably.

MR HISLOP:   The policy considerations hitherto had led to the lines being drawn around sight or hearing and aftermath.  Now, there are obviously pragmatic and policy considerations which led to the lines being drawn in that way.  What one might have to ask is why would that be departed from?  What has there been shown to justify the lines that were thus drawn to be put aside and new lines drawn a bit further down the road, or a long way down the road, depending on what was thought to be apt.

McHUGH J:   Because they are over or under‑inclusive.  They lay down arbitrary lines and what this Court has done in Tame is to say we should get rid of these artificial barriers and look at the matter as a matter of principle.  As Justice Gummow and Justice Kirby said, the touchstone of liability remains the reasonableness, the conduct of the defendant, and the Chief Justice said that reasonable foreseeability must be judged by community standards as to what is reasonable care.

So why should we not just apply principle and follow the advice of Lord Scarman in McLoughlin v O’Brian.  If I remember rightly, he said that the courts ought to give effect to principle leaving it to the legislature to intervene if they think the principles have gone too far.  So you then proceed on a case‑by‑case basis, in effect.  You have a general principle being outlined by the Chief Justice and other Justices in Tame and say it is just a question of applying it.  Here you have to apply it to a very close relationship:  young children who have a very close relationship with their father.  Why should not the defendant ought to foresee that they were persons who could be affected by his act and have them in contemplation when it backed the forklift over the deceased?

MR HISLOP:   Because those matters were present in the case of Annetts and were not sufficient, as we would read the judgment, at that time to cause liability to fall upon the defendants because there was nothing in Annetts ‑ ‑ ‑

McHUGH J:   You are talking about Annetts, what, in the Court of Appeal?

MR HISLOP:   No, I am talking about it in the High Court, your Honour, because as we would understand the judgments, the factors which your Honour has indicated were present but were not considered determinative.  What was considered ‑ ‑ ‑

McHUGH J:   Yes, but it is a very different case.  As I made clear in my judgment, at all events, that was a case of a pre‑existing duty.  Most nervous shock cases where you ask whether there is a duty, they arise by reason of facts which come into existence at that particular time.  In this particular case, Mr Gross has attempted to make this a relationship‑type case where the duty always exist, imposed by law, but I think we are really in the area where you just have to proceed case by case.

MR HISLOP:   Relationship was not enough in Annetts save for the superadded factor, the very special factor of reliance.  The mere relationship of employer/employee between the deceased and the defendant was not sufficient, nor should it be sufficient here.  Really, there is nothing else here, in our submission, that would cause the Court to extend the duty in this case in the manner in which it is sought.

KIRBY J:   Have you looked at the Canadian or New Zealand authorities on this matter?

MR HISLOP:   The Canadian authorities, your Honour, are limited to ‑ ‑ ‑

McHUGH J:   While your junior is looking for that, the passage I have in mind is in McLoughlin v O’Brian [1983] AC 430 where Lord Scarman said:

Policy considerations will have to be weighed:  but the objective of the judges is the formulation of principle.  And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament.  Here lies the true role of the two law-making institutions in our constitution. By concentrating on principle the judges can keep the common law alive, flexible and consistent, and can keep the legal system clear of policy problems which neither they, nor the forensic process which it is their duty to operate, are equipped to resolve.

MR HISLOP:   And one finds, if one goes through the various cases, different statements in relation to what is to be considered; different acceptances of pragmatic development in this area and the like.  What seems to be contended ‑ ‑ ‑

KIRBY J:   Perhaps Lord Scarman’s view was born of his years as chairman of the Law Commission of England and Wales.  The fact that you often cannot leave it to Parliament because nothing gets done in areas of this fine turning unless the courts do something, that is the reality, Mr Hislop.

MR HISLOP:   I am not sure it is a reality at this time, your Honour, but ‑ ‑ ‑

KIRBY J:   You make a fair point that this is very much in the public agenda at the moment.

MR HISLOP:   Very much so, your Honour, and one would expect that there would be legislative changes within a very short time.

As to the Canadian case, Rhodes v Canadian National Railway, (1990) 75 DLR (4^th)248 at 289 – the Canadian cases require that the plaintiff must have experienced the shock of the event which killed, injured or imperilled the loved one, not merely heard of it from a third party. On the Canadian law it would seem that the claim in this case would be excluded and apparently in New Zealand they have not decided, the position is reserved.

GLEESON CJ:   What do you mean by that?

MR HISLOP:   As I understand it, your Honour, as far as I can see they do not appear to have determined the question of the restrictions based on physical and temporal proximity as to whether they are essential or not.

GLEESON CJ:   I see, I thought you might have meant they have a reserved decision on this issue.

MR HISLOP:   No, no, I am sorry, your Honour, if I mislead you by a choice of words.  What my friend seems to contend for is the relationship of being a child is enough and, in our submission, that is not and cannot be the test.  There has to be an additional test or tests, something to create a special situation.  In Annetts it was the special relationship with the employer.  That is not here, there is nothing here to justify the extension which is sought.

KIRBY J:   What is wrong with the reasoning that if you injure a person through negligence and that person has a child and that child has a pathological psychiatric condition that you, the negligent tortfeasor, must be taken by the law to be knowledgeable of the fact that in that close relationship, in a limited number of cases, that kind of reaction may occur simply because of the proximity of the relationship and that in those circumstances if the pathological effect occurs beyond ordinary grief that you are liable not only for the damage you do to the person you injure but to that person’s child – leaving to the future the determination of any other categories, like a child, that may in a different case persuade the court to expand the area of obligation?

MR HISLOP:   Well, your Honour, because that really relies upon the relationship of being a child as being in itself sufficient.

McHUGH J:   No, it does not.  It is the consequence of applying Lord Atkins’ definition, of “neighbour”, namely, that the children of an injured person, are persons who are so closely and directly affected by my act that I ought reasonably to have them in mind or to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which I should avoid.

MR HISLOP:   One needs more than just the relationship.  One needs ‑ ‑ ‑

McHUGH J:   You have to have reasonable foresight but they are people that I ought to foresee are so closely and directly affected by my act or omission that, as a matter of community standards, I ought reasonably to have them in contemplation.

MR HISLOP:   The mere fact that it is a relative does not mean that they are such.  I think your Honour in argument earlier gave the example of a brother whom you had not seen for 25 years or something.

McHUGH J:   Yes.

MR HISLOP:   So that in itself does not provide the solution and one needs something more, therefore, than just the existence of the relationship.  Now, the is something more has always been found in requirements relating to the relationship with the incident, essentially of a physical sense, and you need something more, in our submission.  You needed something more in Annetts, you need something more in any case.  It is not enough to say that he is a brother or whatever.  The legislature in the Law Reform (Miscellaneous Provisions) Act has made that clear.

GLEESON CJ:   If your argument is right, I think in any event until recently, in its application to parents that legislation extended common law rights by removing any requirement about sight and hearing.

MR HISLOP:   Yes.

GLEESON CJ:   In other words, I would not have read an aftermath limitation into that legislation.

MR HISLOP:   Not in respect of the parent, no, and, you see, Parliament there drew the distinction.  It said, in the case of “a parent or the husband or wife” there is no additional requirement, but in respect of other members of the family there is the additional requirement.  It has always, in our submission, been the approach that there must be an additional requirement met over and above the mere fact that one is a member of the family.  What is contended for here appears to be to the contrary of that, namely to say that being a member of the family is itself enough.  It never has been, in our submission, nor should it be.

GLEESON CJ:   Incidentally, does your construction of section 4 produce the result that nobody other than a person who is in one of the classes specifically referred to in section 4 can ever recover for nervous shock?

MR HISLOP:   No, but it may do in relation to pure nervous shock and that would seem to be the intent of the Parliament and it certainly is the view, we would submit, taken by the two authorities that I quoted earlier in argument.  But it is not necessary for our purposes to look into that because 151P would mean that for an industrial accident such persons would have no claim in any event.

GLEESON CJ:   But under section 4 parents and spouses and children and siblings are in; pregnant fishwives are out.

MR HISLOP:   That would seem to be so, and that would appear to be what was the intention of Parliament at the time.  If it be relevant, I suppose it is the fact that the majority of people would not suffer a psychiatric reaction such as to sound in damages on notification of the death of anyone.  It is an abnormal reaction, if you like, to that situation and it would be inappropriate further, we would say, to extend that which was thought appropriate by the Parliament to cover additional situations in those circumstances.

GLEESON CJ:   Is it part of your argument that once you get beyond sight and hearing and aftermath, there is no rational basis on which you can limit hearing bad news to hearing particular kinds of bad news or hearing bad news in relation to particular kinds of people?

MR HISLOP:   It is very difficult to envisage proper tests or restraints that can be fashioned to deal with that situation.  There can be all types of circumstances in which notice is given.  It can occur at various times, months or years later.  It would be very difficult to fashion appropriate restraints upon recovery for that type of information.

GUMMOW J:   The Attorney-General said the choice made in 4(1)(a) of the class of relatives which has this oddity about it, but it does not have children, that the class of relatives specified is chosen to correspond with what was then recognised in the Compensation to Relatives Act.  Does anything follow from that, at page 830 of Hansard, the top of the second paragraph?

MR HISLOP:   Sorry, which page did your Honour say? 

GUMMOW J:   Page 830 of Hansard.  The top of the second column, or bottom of the first column. 

MR HISLOP:   My copy seems to be differently numbered, your Honour. 

GUMMOW J:   I will just read it out: 

He is not liable to all the world, but only to relatives as defined.  The classes of relatives specified correspond with those recognised by the Compensation to Relatives Act. 

MR HISLOP:   I do not know what follows from that.  It confirms the intent that it should not cover other persons, but whether the correlation with those who can claim under the Compensation to Relatives Act is of assistance is a – the other thing that perhaps is of some relevance is that it is the tortious act and the response to the tortious act that is really the basis of the claim and the fact of death may be communicated at such a time and in such a way that it is no different than the communication of death occurring in any way and thus should not be singled out. 

GLEESON CJ:   Mr Hislop, just before you pass from that, it seems that a case of Hay v Young was very influential in this ‑ ‑ ‑

MR HISLOP:   I think it might have been Bourhill v Young. 

McHUGH J:   That is Bourhill.  It is a Scottish ‑ ‑ ‑

GLEESON CJ:   The pregnant fishwife.

McHUGH J:   Yes. 

GLEESON CJ:   It says: 

Clause 4 is a statutory extension of liability to meet the position created by –

that decision.  I wonder, what exactly does that mean? 

McHUGH J:   Well, they have put in the words “put in peril”, which covered precisely the Bourhill Case, but they actually extended it a bit beyond that. 

MR HISLOP:   They also dealt with Chester’s Case. 

HAYNE J:   The speaker’s understanding of the case is given at page 829, column 2, where some emphasis is given to the fact that the defendant had passed the plaintiff, ridden on and then collided, thus taking the plaintiff outside the zone of impact, to adopt an Americanism. 

GLEESON CJ:   From one point of view, the introduction of aftermath was a considerable extension, I would have thought.  At a time when the duty was limited by the condition of sight and hearing, then the defendant was under a duty of care to people who might foreseeably be physically injured by the defendant’s act and also to people who were in the presence of the potential victim and who might suffer a slightly different kind of injury from the injury directly inflicted on the victim. 

No one would ever have doubted, for example, that if you physically injured X and that caused X to stumble up against and cause some further injury to Y, then there would be a duty of care owed to Y, also.  But once you introduce the notion of aftermath, you are going beyond a duty to a person you might physically injure and other people around the person you might physically injure.  Once you introduce aftermath, you are into the area of news, are you not? 

MR HISLOP:   Well, it was not seen to be so, your Honour, in the English case of Alcock.  They drew the line at aftermath, which did not include news, and as one sees in relation to the reading speech, it was thought that you had to put the limit somewhere and they put the limit where they did in that statute.

KIRBY J:   Have you looked at the European authority?  Justice Davies says that they have not followed our checks so they have ended up with some checks all of their own which are different.

MR HISLOP:   Yes.  I am not familiar with the European authorities, your Honour.

GLEESON CJ:   They do not quite have authorities, do they?

MR HISLOP:   I am sorry, I thought I ‑ ‑ ‑

GLEESON CJ:   They have codes.

KIRBY J:   They have decisions of the courts.

GLEESON CJ:   Yes, which are not precedents.

HAYNE J:   Professor Markesinis’ book on German Tort Law has just gone into a fourth edition.  What is notable about it is that whereas the German decisions were largely rooted in causation, and that seems to be something that more recent German decisions have tended to veer away from.  They, too, understanding the policy elements that decisions about causation inject.  But what is notable about the German decisions is that they appear to regard the problem of nervous shock as presenting similar difficulties to the difficulties that the common law courts in this country and other countries have wrestled with.

GLEESON CJ:   Is there any consistent line of United States authority on this?

MR HISLOP:   As I understand it, the United States authority does not permit recovery for news. 

KIRBY J:   Well, you pick up a piece of paper.  You ponder upon it and tell us that, but I do not know what you are referring to or where I should look, or is it in the restatement?

HAYNE J:   Because the restatement treatment of it is not universally adopted in the States of the United States, I think.  Unsurprisingly, there is a considerable diversity.

MR HISLOP:   Your Honour, the comment that I made was based upon Spinosa v The Republican County Central Committee of San Francisco which my learned junior tells me was footnoted in Annetts and that is the source of it.  It is footnoted at 131 and 133.

KIRBY J:   In the old days, Mr Hislop, all we had to do was to look to England, look what the Privy Council did and they would say what we should do and that was it.  But the world is more complicated now in issues of large principle.  You know, because you appear here often, that we just have to look to what other countries of the common law are doing.

GLEESON CJ:   You must have those footnote numbers wrong, Mr Hislop.  Footnotes 131 and 133 refer to a case of Thing v La Chusa, a 1989 decision.  Is that the reference you are giving us?

MR HISLOP:   I will just have that checked, your Honour.

GUMMOW J:   It is talking about emotional distress, which is something less than psychiatric injury.

MR HISLOP:   I think perhaps a better reference might be – my learned junior says that is the reference but can I in addition give a reference to the decision of this Court in Annetts, the joint judgment of Justices Gummow and Kirby.  At paragraph 220 there is reference to:

Other courts in the United States have denied recovery to plaintiffs who did not witness first‑hand the relevant tragedy.  This restriction finds its counterpart in the rule, to which reference has been made earlier in these reasons, that, to recover for mental distress, plaintiffs must personally have been within the “zone of physical danger”.  That common law rule has been adopted by the Supreme Court of the United States in Consolidated Rail Corporation v Gottshall with respect to recovery under the Federal Employers’ Liability Act.  Canadian courts too have refused recovery to parents who have sustained psychiatric harm on being told that their child had been killed by the negligent act of the defendant where they themselves did not witness the accident or its aftermath; but the reasoning at least to some degree depended upon absence of foreseeability and lack of legally sufficient causation.

That was how your Honours dealt with the American ‑ ‑ ‑

GLEESON CJ:   That prompts me to ask this again in relation to your construction of section 4, Mr Hislop. Where did section 4 leave rescuers? They were a long‑recognised class of people who could claim for nervous shock, were they not?

MR HISLOP:   Your Honour, certainly if it was pure nervous shock there would be a difficulty with section 4 and as was intended, according to the reading speech, but, as I have sought to say in relation to section 4, it is perhaps unnecessary to pursue that because it clearly has a focus upon members of the family and husband and wife, et cetera, which we seek to take advantage of in the way we have previously outlined.

McHUGH J:   Your interpretation would also have problems in relation to the case where the negligent defendant had a duty to report the bad news to the plaintiff who suffers nervous shock.  Back in the 1930s, in Barker’s Case in South Australia it was held that a hospital was liable for the negligent shock suffered by a mother when she was informed by the hospital that as a result of its negligence it had burnt her baby.  Now, (a) protects that situation, but supposing it was a child who was told in those circumstances that a mother had been burnt or died as a result of the hospital’s negligence.  On your theory they would not have a cause of action.

MR HISLOP:   That would appear to be the case under section 4 in this State.

McHUGH J:   Even though they had a cause of action in South Australia at common law back in the 1930s.

MR HISLOP:   Well, it seems an odd result, having regard to the other authorities to which the Attorney-General made reference in his reading speech and it seems inconsistent with what are the legislative provisions here which were made, by the sound of it, some 14 years after that decision to which your Honour refers.  So then, if it please the Court, they are the submissions which we make.  Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Hislop.  Yes, Mr Gross.

MR GROSS:   Your Honours, in relation to the United States cases, we can give your Honours some references now but if it is suitable to the Court, with my learned friend’s consent, we can assemble the references to the American materials, New Zealand materials, Canadian materials and photocopy the relevant extracts and provide them to the Court.

GLEESON CJ:   Thank you.

MR GROSS:   But just in terms of answering the specific questions.  In relation to Canada to begin with, I get the Canadian cases on the law of torts and nothing has happened recently in Canada.  The most that I recall is that there was a British Columbia Supreme Court decision that may have been at an appellate level which effectively applied the English approach, but the Canadian approach has been quite conservative.  So far as New Zealand is concerned, there is a very recent article which we will provide to the Court by Andrew Barker, “Lights in the Fog, Secondary Victims and Recovery for Mental Injury in New Zealand”.

McHUGH J:   I think I have read.

MR GROSS:   Yes, and that is (2002) Torts Law Journal 1 and so far as the United States position is concerned, there is an article by Hansley which is also referred to in Tame in1996 and that has a very extensive discussion of the American authorities, particularly Dillon v Legg and its progeny and I think Justice Hayne is correct, there is no uniform position.  Of course, it is a State‑by‑State situation.

McHUGH J:   What is your answer to Mr Hislop’s proposition that being a member of a family is not enough, that foreseeability and being a member of a family is not enough at common law, that is just cannot be justified?

MR GROSS:   Well, to begin with, we would say, that it is not put that being a child is enough because it has to be remembered that the law has a whole series of other controls, including the requirement for recognisable psychiatric injury and, of course, the need to prove the other elements.

GLEESON CJ:   And, perhaps, the abnormal sensitivity control.

MR GROSS:   Yes, and there are further controls because, although it is said, perhaps too frequently, that it is hard to disprove a psychiatric claim, it is also harder to prove one.  In other words, there is often controversy in this area and that does tend to discourage litigants and make trial courts relatively cautious, of which a growing number of legal practitioners take notice.

McHUGH J:   Yes, but these cases are seldom brought on their own.  They are usually brought in association with a claim under the equivalent of Lord Campbell’s Act.

MR GROSS:   Yes, they are, but in terms of their size relative to the compensation to relatives claim they are a mere margin compared to the size of those claims.  These are very modest claims.

McHUGH J:   Well, maybe that is a reason why we should not do anything about it, otherwise the lawyers will get most of the damages.

MR GROSS:   Another restraint is, of course, the reluctance of lawyers to bring cases for people who will be exposed to costs orders if they lose these cases, will be exposed to the usual battle of wits involved in offers of compromise in their rejection.  So there are numerous restraints which are in place.  Your Honours, can I just briefly deal with the matters which we wish to ‑ ‑ ‑

McHUGH J:   I did not see too much restraint in these cases when I was at the Bar.  They were pleaded almost as of course with comp to relatives cases.  Now, I do not know whether that is still the case, but you would be hard pressed to find a comp to relatives case that did not have a nervous shock claim with it.

MR GROSS:   Yes, and, of course, that was an invitation explicitly issued by the New South Wales Parliament in 1944, without any of the usual restraints of foreseeability, proximity and the like.  No matter what we say about anything else, that was a judgment which was made by the Parliament and which the community has been prepared to live with since 1944.  Of course, despite the existence of not a common law expansion, but a legislative conferral of a right in fairly public terms – they actually fought an election over it – the system has not folded under the weight of the massed legions of widows bringing nervous shock cases.  It is, in our submission, unrealistic to assume that these cases collectively are a burden for courts or a burden for the public purse which is intolerable. 

Incidentally – I cannot remember whether it was during my argument or my learned friend’s argument – your Honour Justice McHugh raised the question of September 11, and, of course, how you can have mass exposure of the public generally to frightening events.  Well, if we look at the history of this country and look at mass disasters – the Granville disaster, the Thredbo disaster, the Voyager disaster, assorted bus crashes mainly involving tourists, and the Ash Wednesday fires – between them, those cases have not generated any flurry of activity on the nervous shock front that itself has been alarming or disturbing to public ‑ ‑ ‑

McHUGH J:   But maybe that is because of the control tests that were in force until fairly recently. 

MR GROSS:   Well, we submit that the incidence of physical injury and death is where the toll is extracted on the community and on the person.  The nervous shock cases themselves are given far more weight, whether measured in floodgates theory terms or financial prediction terms, than truly is justified. 

Your Honours, can we just by way of reply deal with a couple of matters, and I will endeavour to deal with them relatively briefly.  Your Honours were referred to what was said by Justice Taylor in Scala v Mammolitti, and my learned friend did refer to that judgment as referred to in the judgment of the trial judge. It is convenient to refer to it in this way, as my learned friend did also. At page 446 of volume 3 in the judgment of the trial judge, there was the quotation from Justice Taylor. And, of course, it is to be observed in that passage at 446 lines 3 to 25 that Justice Taylor on two occasions makes reference to the common law remaining untouched. He does so in the context of section 4(1)(a) by saying at line 15:

But it otherwise leaves the earlier law untouched.

And then in the second paragraph at line 20:

But it does not otherwise affect the cause of any such member of the family.”

That is referring to section 4(1)(b).

Your Honours, that decision has been in place since 1965, coming up to 40 years ago, and we submit that we are dealing here with well‑established authority where it was evident that the court was correct, that the statute was facilitative, addressing a recently revealed apparent anomaly in the common law.  We would point out that sometimes statutes do operate, almost as a reflex action sometimes, to clarify the law or to address either an apparent anomaly or a recent judicial decision which has caused some turmoil or uncertainty.

We would submit that another matter that needs to be taken into consideration is the argument that when the legislature in 1944 used the expression “extend” it meant implicitly extend only, or only extend, or alternatively, shall extend no further.  We would submit that the concept of extension, but no further, only makes sense if you see the common law or ‑ ‑ ‑

GLEESON CJ:   It cannot possibly have meant “it shall extend no further than” can it?

MR GROSS:   No.

GLEESON CJ:   Because it then would have cut out claims for nervous shock to the person who was injured.

MR GROSS:   Yes. Your Honours, there are some further anomalies which we would like to point out in that context to just take up what your Honour the Chief Justice said. If, in fact, section 4(1)(b) became ‑ in 1944. We now realise, as my learned friend puts, the “cover the field” test, the sole source of entitlement for nervous shock where a person falling within 4(1)(b) is claiming same, the anomalies would be quite considerable because it would be cutting out the child or sibling ‑ and bearing in mind child and sibling are given very extended meanings within section 4 itself as your Honours will see from the passage we have extracted ‑ it would exclude the situation of a sibling or child who is present in the same area as the injured person either as a co‑worker or being in the same house as them, as siblings tend to do, or being involved in some community activity or sport. In order words, other persons coming from that situation whether they be bystanders or rescuers or co‑workers, passers‑by, could themselves claim nervous shock on common law principles because they came along at a time which the common law has now recognised would tolerate them being owed a duty of care yet a child or sibling otherwise similarly placed would be excluded by reference of the explicit words of section 4(1)(b).

HAYNE J:   In construing section 4(1), attention might usefully be given also to the judgment of Justice Kitto in Scala (1965) 114 CLR 153 at 157, where his Honour engages in a close analysis of the construction, concluding with the view that he agrees:

in the view of s. 4(1) which Owen J took when he said in Smee v Tibbetts, that the sub-section alters the common law to the extent only of giving to the persons it mentions a right to sue the person who has caused them injury –

et cetera. 

MR GROSS:   Yes.  So we would submit that this is a settled understanding of the law.  I appreciate we are not in the area of commercial law or other areas where certainty of interpretation of law is given such a high value as compared to correctness, but we would submit that it is plainly a situation where such a well-established construction by this Court should be adhered to. 

Your Honours, I was beginning to deal with the matter raised by your Honour Justice Gummow about, in effect, whether the liability shall extend, but shall extend no further.  If, in fact, common law liability in relation to nervous shock is seen as being a straight line, one can indulge such an analogy, but if we see common law for nervous shock as being a field, one can extend a field laterally, without, in fact, changing or making assumptions that that is the only movement which is permissible.  I appreciate analogies of any geographic kind are difficult to extend, but we would submit that the common law for nervous shock is plainly a field where there are many sources and, as it were, avenues, and it is not appropriate to treat this particular statutory bandaid, applied in 1944, as in some way curbing the future development of the common law. 

Your Honours, the next thing we would like to point out is that if, in fact, section 4 has the connotations of limitation of the common law which my learned friend submits should occur, it would actually cut out the worst cases, that is cases where the injury causes death would, within a fairly rapid space of time, be ones where it was most likely that the children would be incapable of being present at time of injury or time of peril or at time of death, so that the more severe the injury, the more dramatic the event causing an earlier death, the more likely it would be that they would be put outside the scope of permissible plaintiffs by the terms of section 4(1)(b).

We would submit that that would actually favour – not that they think about it beforehand – defendants who cause sudden death in the workplace or in any other zone of the community as compared to those who cause injury where the injured person lingers.

Your Honours, the next matter we would seek to point out, and I think we have really covered this largely, is that the liability which shall extend is the common law which it must be assumed is going to continue to grow and be interpreted and where the common law is seen as being alive and capable of change rather than static or frozen, particularly frozen by a statute of this sort.

Your Honours, we would submit that section 4 represents only part of the law of damages for this purpose and the common law is otherwise unimpaired. There are just a few other matters, your Honours ‑ ‑ ‑

KIRBY J:   What work is left to it to do?

MR GROSS:   To section 4? It may well be there is no work left for it to do because the common law has at least caught up with those minimal protections which were inserted, I suppose, with some degree of haste in 1944, and so whereas the legislature had to act quickly then, the passage of time has enabled the common law to grow to provide, from what we can see, at least equivalent protections in relation to wives or spouses or parents but we submit that there is this regime in relation to children where plainly the common law has gone well past that fairly minimal protection.

All that remains, your Honours, then is that we had been asked by your Honour Justice Kirby to collect some references and we would propose, having discussed it with my learned friend, to put those references together.  As we would see it, that would include, in effect, the periodical literature which bears particularly on the question of relationships.

We do see that the Law Commission report in England, paragraphs 6.24 to 6.40, deals at length with the question of what relationships should be in or not.  That Law Commission paper, that is the paper on liability for psychiatric illness, was preceded by what is described as consultation paper 137 on the same topic where there is a whole series of questions asked as to who should be within or outside the relevant class of persons concerned and we will get hold of the consultation paper and provide that as well.

There has been some periodical legal discussion on that Law Commission report but we will go through that periodical literature and extract out that part that deals with the question of who forms the relevant classes of persons who are, or should be, protected by reference to their relationship.  Would it assist your Honours if we also give a list of those articles which deal with the question of nervous shock?  I appreciate your Honours will get those anyway but we will add that as a supplement.  We will also deal with the German or continental position described.

Your Honours also want the New Zealand, Canada position reviewed.  We do have some views in relation to that but that is better done as a supplementary list provided to your Honours after showing it to my learned friends.

Your Honours, I think that completes my submissions.

GLEESON CJ:   Thank you, Mr Gross.  Yes, Mr Hislop.

MR HISLOP:   Simply one matter I wish to draw attention to in response to a question put by your Honour Justice McHugh. Section 3(2) of the Law Reform (Miscellaneous Provisions)Act provides that section 4 is not retrospective.

McHUGH J:   Yes

GLEESON CJ:   We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.

AT 3.39 PM THE MATTER WAS ADJOURNED