Annetts v Australian Stations Pty Ltd
[2000] WASC 104
•28 APRIL 2000
ANNETTS & ANOR -v- AUSTRALIAN STATIONS PTY LTD [2000] WASC 104
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 104 | |
| Case No: | CIV:1192/1994 | 28-29 FEBRUARY 2000 | |
| Coram: | HEENAN J | 28/04/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Duty of care not owed to plaintiffs by defendant. | ||
| PDF Version |
| Parties: | LESLIE ANNETTS SANDRA ANNETTS AUSTRALIAN STATIONS PTY LTD (ACN 009 613 727) |
Catchwords: | Torts Negligence Duty of care Nervous shock Psychiatric injury suffered by parents following death of son Son employed as jackaroo on cattle station Whether duty of care owed by employer to parents Foreseeability Proximity Aftermath Means by which shock caused Telephone call from police officer |
Legislation: | Nil |
Case References: | Abramzik v Brenner (1967) 65 DLR (2d) 651 Barnard v Santam BPK (1999) 1 SA 202 Bourhill v Young [1943] AC 92 Campbelltown City Council v Mackay (1989) 15 NSWLR 501 Chester v Council of Municipality of Waverley (1939) 62 CLR 1 Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1 Devji v District of Burnaby [1999] BCCA 599 Dulieu v White & Sons [1901] 2 KB 669 Hinz v Berry [1970] 2 QB 40 Jaensch v Coffey (1984) 155 CLR 549 Knight v Pedersen & Ors [1999] NSW CA 333 McLoughlin v O'Brian [1983] 1 AC 410 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (No 1) [1961] 1 AC 388 Palmer v Tees Health Authority [1999] Lloyd's Rep Med 351 Perre v Apand Pty Ltd (1999) 73 ALJR 1190 Petrie v Dowling [1992] 1 Qd R 284 Pham v Lawson (1997) 68 SASR 124 Quayle & Ors v State of New South Wales & Anor [1995] A Tort Rep 81-367 Rhodes v Canadian National Railway (1990) 50 BCLR (2d) 273 Tranmore v T E Scudder Ltd, unreported; Eng CA; 28 April 1998 Victorian Railways Commissoners v Coultas (1888) 13 App Cas 222 White (under the name of Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Andrews v The Secretary of State for Health, unreported; QBD; 19 June 1998 Andrews v Williams [1967] VR 831 APQ v Commonwealth Serum Laboratories Ltd, unreported; SCt of Vic, App Div; 28 April 1995 Babineau v MacDonald (No 2) (1975) 10 NBR (2d) 715 Benson v Lee [1972] VR 879 Buljabasic & Ors v Ah Lam [1997] NSWCA; unreported; 3 September 1997 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Campbell v Animal Quarantine Station (1981) 632 P 2d 1066 Chiaverini v Hockey (1992) A Tort Rep 81-223 Clearly v Congregation of the Sisters of the Holy Family at Nazareth, unreported; SCt of Qld; Library No 1066 of 95; 23 December 1998 Cohen v McDonnel Douglas Corp (1983) 450 NE 2d 581 Cormier v Dixon and Clark (1992) 130 NBR (2d) 69 Cox v Fleming (1993) 13 CCLT (2d) 305 De Franceschi v Storrier (1988) 85 ACTR 1 Dietelbach v Public Trustee (1973) 37 DLR (3d) 621 Dillon v Legg (1968) 441 P 2d 912 Duncan v British Coal Corp [1997] 1 All ER 540 FAI General Insurance Co Ltd v Curtin (1997) A Tort Rep 81-442 Farrugia v Great Western Railway Co [1947] 2 All ER 565 Fife v Astenius (1991) 232 Cal App 3d 1090 Gannon v Gray [1973] Qd R 411 Group B Plaintiffs v Medical Research Council (1998) 41 BMLR 157 Hambrook v Stokes Bros [1925] 1 KB 141 Hevican v Ruane [1991] 3 All ER 65 Hunter v British Coal Corporation [1999] QB 140 Kelley v Kokua Sales & Supply Ltd (1975) 532 P 2d 673 Kelly v Hennessy [1993] ILRM 530 King v Phillips [1953] 1 QB 429 Kohn v State Government Insurance Commission (1976) 15 SASR 255 Mullally v Bus Eireann [1992] ILRM 722 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) (No 2) [1967] 1 AC 617 Page v Smith [1996] 1 AC 155 Ravenscroft v Rederiaktiebolaget Transatlantic [1992] 2 All ER 470n Reeve v Brisbane City Council [1995] 2 Qd R 661 Robertson v Forth Road Bridge Joint Board [1995] SLT 263 Rowe v Hanna (1989)102 AR 88 Rowe v McCartney [1976] 2 NSWLR 72 Scala v Mammolitti (1965) 114 CLR 153 Schneider v Eisovitch [1960] 2 QB 430 Sion v Hampstead Health Authority [1994] 5 Med LR 170 Spence v Percy [1992] 2 Qd R 299 Stergiou v Citibank Savings Ltd [1998] ACTSC 134 Strong v Moon (1992) 13 CCLT (2d) 296 Talibi v Seabrook (1995) 28 CCLT (2d) 254 Tame v Morgan [1998] A Tort Rep 81-483 Taylor v Somerset Health Authority [1993] PIQR P262 Taylorson v Shieldness Produce Ltd [1994] PIQR P329 Thing v La Chusa (1989) 771 P 2d 814 (Cal 1989) Tsanaktsidis v Oulianoff (1980) 24 SASR 500 Yoshikawa v Yu (1996) 21 BCLR (3d) 318 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : ANNETTS & ANOR -v- AUSTRALIAN STATIONS PTY LTD [2000] WASC 104 CORAM : HEENAN J HEARD : 28-29 FEBRUARY 2000 DELIVERED : 28 APRIL 2000 FILE NO/S : CIV 1192 of 1994 BETWEEN : LESLIE ANNETTS
- SANDRA ANNETTS
Plaintiffs
AND
AUSTRALIAN STATIONS PTY LTD (ACN 009 613 727)
Defendant
Catchwords:
Torts - Negligence - Duty of care - Nervous shock - Psychiatric injury suffered by parents following death of son - Son employed as jackaroo on cattle station - Whether duty of care owed by employer to parents - Foreseeability - Proximity - Aftermath - Means by which shock caused - Telephone call from police officer
Legislation:
Nil
Result:
Duty of care not owed to plaintiffs by defendant.
(Page 2)
Representation:
Counsel:
Plaintiffs : Mr D R Clyne
Defendant : Mr N J Mullany
Solicitors:
Plaintiffs : Marks & Sands (Agents for Brezniak Neil-Smith & Co)
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Abramzik v Brenner (1967) 65 DLR (2d) 651
Barnard v Santam BPK (1999) 1 SA 202
Bourhill v Young [1943] AC 92
Campbelltown City Council v Mackay (1989) 15 NSWLR 501
Chester v Council of Municipality of Waverley (1939) 62 CLR 1
Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1
Devji v District of Burnaby [1999] BCCA 599
Dulieu v White & Sons [1901] 2 KB 669
Hinz v Berry [1970] 2 QB 40
Jaensch v Coffey (1984) 155 CLR 549
Knight v Pedersen & Ors [1999] NSW CA 333
McLoughlin v O'Brian [1983] 1 AC 410
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (No 1) [1961] 1 AC 388
Palmer v Tees Health Authority [1999] Lloyd's Rep Med 351
Perre v Apand Pty Ltd (1999) 73 ALJR 1190
Petrie v Dowling [1992] 1 Qd R 284
Pham v Lawson (1997) 68 SASR 124
Quayle & Ors v State of New South Wales & Anor [1995] A Tort Rep 81-367
Rhodes v Canadian National Railway (1990) 50 BCLR (2d) 273
Tranmore v T E Scudder Ltd, unreported; Eng CA; 28 April 1998
Victorian Railways Commissoners v Coultas (1888) 13 App Cas 222
White (under the name of Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455
(Page 3)
Case(s) also cited:
Andrews v The Secretary of State for Health, unreported; QBD; 19 June 1998
Andrews v Williams [1967] VR 831
APQ v Commonwealth Serum Laboratories Ltd, unreported; SCt of Vic, App Div; 28 April 1995
Babineau v MacDonald (No 2) (1975) 10 NBR (2d) 715
Benson v Lee [1972] VR 879
Buljabasic & Ors v Ah Lam [1997] NSWCA; unreported; 3 September 1997
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Campbell v Animal Quarantine Station (1981) 632 P 2d 1066
Chiaverini v Hockey (1992) A Tort Rep 81-223
Clearly v Congregation of the Sisters of the Holy Family at Nazareth, unreported; SCt of Qld; Library No 1066 of 95; 23 December 1998
Cohen v McDonnel Douglas Corp (1983) 450 NE 2d 581
Cormier v Dixon and Clark (1992) 130 NBR (2d) 69
Cox v Fleming (1993) 13 CCLT (2d) 305
De Franceschi v Storrier (1988) 85 ACTR 1
Dietelbach v Public Trustee (1973) 37 DLR (3d) 621
Dillon v Legg (1968) 441 P 2d 912
Duncan v British Coal Corp [1997] 1 All ER 540
FAI General Insurance Co Ltd v Curtin (1997) A Tort Rep 81-442
Farrugia v Great Western Railway Co [1947] 2 All ER 565
Fife v Astenius (1991) 232 Cal App 3d 1090
Gannon v Gray [1973] Qd R 411
Group B Plaintiffs v Medical Research Council (1998) 41 BMLR 157
Hambrook v Stokes Bros [1925] 1 KB 141
Hevican v Ruane [1991] 3 All ER 65
Hunter v British Coal Corporation [1999] QB 140
Kelley v Kokua Sales & Supply Ltd (1975) 532 P 2d 673
Kelly v Hennessy [1993] ILRM 530
King v Phillips [1953] 1 QB 429
Kohn v State Government Insurance Commission (1976) 15 SASR 255
Mullally v Bus Eireann [1992] ILRM 722
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) (No 2) [1967] 1 AC 617
Page v Smith [1996] 1 AC 155
Ravenscroft v Rederiaktiebolaget Transatlantic [1992] 2 All ER 470n
Reeve v Brisbane City Council [1995] 2 Qd R 661
Robertson v Forth Road Bridge Joint Board [1995] SLT 263
Rowe v Hanna (1989)102 AR 88
(Page 4)
Rowe v McCartney [1976] 2 NSWLR 72
Scala v Mammolitti (1965) 114 CLR 153
Schneider v Eisovitch [1960] 2 QB 430
Sion v Hampstead Health Authority [1994] 5 Med LR 170
Spence v Percy [1992] 2 Qd R 299
Stergiou v Citibank Savings Ltd [1998] ACTSC 134
Strong v Moon (1992) 13 CCLT (2d) 296
Talibi v Seabrook (1995) 28 CCLT (2d) 254
Tame v Morgan [1998] A Tort Rep 81-483
Taylor v Somerset Health Authority [1993] PIQR P262
Taylorson v Shieldness Produce Ltd [1994] PIQR P329
Thing v La Chusa (1989) 771 P 2d 814 (Cal 1989)
Tsanaktsidis v Oulianoff (1980) 24 SASR 500
Yoshikawa v Yu (1996) 21 BCLR (3d) 318
(Page 5)
1 HEENAN J: The plaintiffs, Mr and Mrs Leslie Annetts, seek damages for psychiatric injury which they claim was caused by the negligence of the defendant company and resulted from what they heard and saw following the disappearance and subsequent death of their son.
2 The writ which began this action was issued on 1 December 1992 in the Supreme Court of New South Wales. On 21 February 1994, upon the motion of the defendant and with the consent of the plaintiffs, it was ordered that the action be transferred to this Court pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act (NSW) 1987. Pursuant to an order made on 5 May 1999, on the assumption that some facts pleaded by the plaintiffs are true and on the basis that the defendant has admitted some other facts, I am required now to decide a separate issue arising in the proceedings. The issue is whether these facts are sufficient, at law, to give rise to an independent tortious duty of care owed by the defendant to the plaintiffs to exercise reasonable care and skill to avoid causing them psychiatric injury.
3 My understanding of the facts which are assumed to be true is as follows.
4 James Annetts was born on 13 March 1970. In August 1986 he left Binya in New South Wales, where he had lived with the plaintiffs in the family home, and went to work for the defendant as a jackaroo at Flora Valley, one of the defendant's cattle stations. Flora Valley is situated about 40 km southeast of Halls Creek in the Kimberley district of Western Australia. Before James left home Mrs Annetts telephoned Mrs Loder, the wife of the defendant's station manager, and enquired as to the conditions under which he would be living and the supervision which would be provided for him. Mrs Loder told Mrs Annetts that James would be working at Flora Valley under constant supervision and would be sharing a room with one to four other men, that all of his meals would be supplied for him and that he would be well looked after. On the day after James arrived at Flora Valley Mrs Annetts again telephoned Mrs Loder to check that he had arrived safely. As it happened, he spent only seven weeks there. On 13 October 1986 Mr Loder sent him to work alone as caretaker at Nicholson Station, about 100 km east of Flora Valley and about 270 km north of Balgo.
5 On 6 December 1986 a police officer at Griffiths in New South Wales telephoned Mr Annetts and told him that James was missing from his place of employment and was believed to have run away. Mr Annetts collapsed and Mrs Annetts took over the telephone conversation.
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6 Meanwhile, an intensive search had begun for James and another teenager, Simon James Amos, who had been employed by the defendant as a jackaroo on another station. The plaintiffs had a number of telephone conversations with officers at Halls Creek police station, with Mr Loder and with numerous other persons in the Halls Creek area for the purpose of obtaining information as to the whereabouts of their son. In January 1987 they travelled to Halls Creek to obtain further information. They remained there for some four to five days, during the course of which they were shown some of their son's belongings, including a hat covered in blood. Between the time of that first visit and 26 April 1987 Mr Annetts went to the Halls Creek area on a further nine occasions and Mrs Annetts returned to Western Australia on a further two or three occasions.
7 On 26 April 1987 Mr Annetts was informed by telephone that the vehicle driven by James had been found bogged in the desert but that there were no signs of any people around it. Later that day he was told that two sets of remains had been found nearby. On 28 or 29 April 1987 he returned to Halls Creek alone. At the police station there he identified a skeleton in a photograph shown to him as being that of James.
8 The defendant has admitted that "the Coroner, upon inquiry, found that the deceased 'died on or about 4 December 1986 in the Gibson Desert some 133 km south of Balgo as a result of dehydration, exhaustion and hypothermia'" and that "the Plaintiffs are the mother and father of the Deceased".
9 In relation to claims such as this the law is "short on principle and predictability" (Fleming The Law of Torts (9th ed 1998) at 178) and so it is necessary to consider a number of cases in order to obtain some guidance as to how the law should be applied in this case.
10 In Victorian Railways Commissoners v Coultas (1888) 13 App Cas 222 the plaintiff, a pregnant lady, was a passenger in a buggy which was negligently allowed by the defendants' gatekeeper to cross the railway line when a train was approaching. The buggy crossed just in time, ahead of the train, but only narrowly escaped collision. The plaintiff was so alarmed that she suffered what was described as "a severe nervous shock." She fainted, and subsequently miscarried. She succeeded in her claim for damages in the courts below. The Privy Council allowed the appeal, holding that nervous shock unaccompanied by physical injury was not a form of harm for which damages for negligence could be recovered. After two Irish courts declined to follow the decision Kennedy J, in
(Page 7)
- Dulieu v White & Sons [1901] 2 KB 669, allowed the claim of a barmaid who suffered a miscarriage from fear of personal injury to herself when a van was negligently driven into a public house where she was standing behind the bar. Even so, in the course of his judgment (at 675) Kennedy J said, "the shock, where it operates through the mind, must be a shock which arises from a reasonable fear of an immediate personal injury to oneself". Over 40 years later much the same approach was taken in Bourhill v Young [1943] AC 92. A speeding motorcyclist crashed into a car and was killed a short distance after passing a stationary tram from which the plaintiff had just alighted. The plaintiff suffered nervous shock, allegedly as the result of hearing the impact and afterwards seeing a pool of blood. Her claim against the estate of the motorcyclist was dismissed because she was not within the zone of physical risk.
11 Since then the duty of care has been extended. It is no longer necessary to show direct impact or fear of immediate personal injury to oneself: a claimant may recover damages for psychiatric injury brought on by an accident or distressing event to another, at least when the other person is a member of the claimant's family. Nor is it necessary that the claimant should be present at the accident or the distressing event from which the psychiatric injury resulted. It has been sufficient if the claimant observes the consequences and those consequences need not be observed at the scene of the accident. At least since Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (No 1) [1961] 1 AC 388 the basic test of liability in negligence for such an injury has been whether injury of that kind was reasonably foreseeable in all the circumstances of the particular case. But the range of foreseeability has been difficult to determine, and in seeking to overcome that difficulty the courts have used a combination of principle, policy and common sense by applying a concept of "proximity" and an "aftermath" test and by considering the means by which the shock is caused.
Proximity
12 In McLoughlin v O'Brian [1983] 1 AC 410 the House of Lords awarded damages for psychiatric injury to a plaintiff who did not go to the scene of the accident in which her husband and children were involved but arrived at the hospital two hours later and saw them when their condition was much the same as it had been at the scene. In that case, having observed (at 420) that "foreseeability does not of itself, and automatically, lead to a duty of care" and (at 422) that there was "a real need for the law to place some limitation upon the extent of admissible
(Page 8)
- claims", Lord Wilberforce said that it was necessary to consider three elements inherent in any claim: "the class of persons whose claims should be recognised; the proximity of such persons to the accident; and the means by which the shock is caused". Lord Scarman, in agreeing with the dissenting speech of Lord Bridge of Harwich, expressed the firm view (at 431) that "common law principle requires the judges to follow the logic of the 'reasonably foreseeable test' so as, in circumstances where it is appropriate, to apply it untrammelled, by spatial, physical, or temporal limits" and added that "(s)pace, time, distance, the nature of the injuries sustained, and the relationship of the plaintiff to the immediate victim of the accident, are factors to be weighed, but not legal limitations, when the test of reasonable foreseeability is to be applied".
13 In Jaensch v Coffey (1984) 155 CLR 549 a motorcyclist suffered very serious injuries which were caused by the negligent driving of another person. His wife went to the hospital to which he had been admitted and saw him in obvious pain. She was told then that he was "pretty bad". Early next morning she was told by telephone that he was in intensive care. Later that morning she was told that he had taken a turn for the worse and that she ought to go to the hospital straightaway. Although he survived she suffered nervous shock as a result of what she had seen and been told. The High Court found that the defendant owed her a duty of care. Gibbs CJ and Deane J agreed with the general approach of Lord Wilberforce in McLoughlin v O'Brian that liability in negligence for psychiatric injury does not depend merely upon reasonable foreseeability but also requires a relationship of proximity between the parties. Dawson J did not express a view on the matter and Murphy J did not deal with it, but Brennan J rejected the requirement for such a relationship. At 571 his Honour said,
"In my opinion, the exigencies of proof of the elements of the cause of action impose the appropriate limits upon the scope of the remedy. Those limits are likely to be at once more flexible and more stringent than limits imposed by legal rules which might be devised to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds."
- At 572 his Honour went on to say,
"In McLoughlin v O'Brian Lord Wilberforce acknowledged that, although close proximity to the accident in time and space is necessary, a plaintiff might recover when he comes from nearby and very soon upon the scene. I would regard those
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- considerations to be relevant to the finding of facts, but not to be principles limiting liability."
- At 577 his Honour concluded,
"Apart from the elements of nervous shock, which distinguish this category of negligence from other categories of negligence causing personal injury, no special element restricting the cause of action has been hitherto admitted in this Court. The limitations suggested by Lord Wilberforce in McLoughlin v O'Brian, in my respectful opinion, are appropriately taken into account by the general principles of causation and reasonable foreseeability. There are no other elements which might preclude a duty of care arising where the kind of damage caused by a defendant's conduct is shock-induced psychiatric illness and that kind of damage is reasonably foreseeable."
"The answer has, it seems to me, to be found in the existence of a combination of circumstances from which the necessary degree of 'proximity' between the plaintiff and the defendant can be deduced. And, in the end, it has to be accepted that the concept of 'proximity' is an artificial one which depends more upon the court's perception of what is the reasonable area for the imposition of liability than upon any logical process of analogical deduction."
15 In cases for the negligent infliction of economic loss the concept of proximity now is of little use in determining whether a duty of care exists. Nevertheless, the High Court has not entirely abandoned the concept, acknowledging that it might serve the purpose of identifying the need for "a factor or factors of special significance in addition to the foreseeability
(Page 10)
- of harm" to establish the existence of a duty to the plaintiff not to cause pure economic loss (see Perre v Apand Pty Ltd (1999) 73 ALJR 1190 per Gaudron J at 1195). Although the elements of the several categories of negligence are not identical it seems to me that a similar approach would be entirely appropriate in a case such as the present one and would be entirely consistent with the above remarks of Lord Oliver.
Aftermath test
16 As we have seen, the injury for which the plaintiffs now claim damages has been called "nervous shock", a term which has been used to describe "any recognisable psychiatric illness" (per Lord Denning MR in Hinz v Berry [1970] 2 QB 40 at 42). In Pham v Lawson (1997) 68 SASR 124 at 149 Lander J made the following comment:
"It seems to me that the essence of a claim for nervous shock is that there is a sudden event which gives rise to the nervous shock. There seems to be no logical reason to require it but the authorities seem to suggest the necessity of the sudden onset of a psychiatric illness caused by something amounting to a shock. The reason is not founded on logic but policy so as to limit the class of persons for whom an action would lie."
17 In McLoughlin v O'Brian at 422 - 423 Lord Wilberforce observed that there was no case in which the law had compensated shock brought about by communication from a third party, adding that the shock must come through sight or hearing of the event or of its immediate aftermath. Despite the strong objection of Lord Bridge (at 442), supported by Lord Scarman (at 429), to drawing a line by reference to such a criterion, the courts in England have insisted that damages will not be awarded when psychiatric injury results from being told of an accident or distressing event by another person. They have applied a duty to take care only in respect of a person who is present at the accident or the event or its immediate aftermath and whose injury was caused by direct perception and not by hearing about it from someone else (see, in particular, Alcock v Chief Constable of South Yorkshire Police (supra) and White (under the name of Frost) v Chief Constable of South Yorkshire Police [1999] 2 AC 455). In the latter case (at 502) Lord Hoffmann set out in summary form the conditions which the House of Lords in Alcock's case established for the making of an award. His Lordship stressed that the summary did not purport to be a complete description and that it might for other purposes require qualification. The conditions which he identified were as follows:
(Page 11)
- (1) The plaintiff must have close ties of love and affection with the victim. Such ties may be presumed in some cases (e.g. spouses, parent and child) but must otherwise be established by evidence.
(2) The plaintiff must have been present at the accident or its immediate aftermath.
(3) The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath and not upon hearing about it from someone else.
18 In Canada the courts have adopted the same approach (see, for example, Abramzik v Brenner (1967) 65 DLR (2d) 651 and Rhodes v Canadian National Railway (1990) 50 BCLR (2d) 273). As recently as 19 October 1999 in Devji v District of Burnaby [1999] BCCA 599 the Court of Appeal for British Columbia proceeded on the basis that the existence of a duty of care required "not merely foreseeability but also proximity and something more" per McEachern CJ at par 67. The Court was not able to conclude that psychiatric injury to the parents and sisters of Yasmin Devji, when they attended at a hospital to view and identify her body, was reasonably foreseeable. But, even if the injury were reasonably foreseeable, the Court concluded that, although the temporal relationship was sufficient, the plaintiffs' actual experience at the hospital when they identified the body would not have been sufficient to found a claim for damages. At par 76 McEachern CJ said,
"It seems to me that the principal shock suffered by the plaintiffs was in learning of Yasmin's death; after that, grief, sorrow and regret would follow immediately, and would continue for an unlimited period. The experience of viewing the body, however, cannot be equated to the shock and horror that would be experienced, for example, at the scene of an accident witnessed by the plaintiffs because the features of surprise, shock, horror and even fear are absent in a hospital setting. As already mentioned, it might have been different if Yasmin's body had been horribly mutilated or if she had died in the presence of her family ….
While I consider myself free to agree with many eminent judges who have extended the immediate aftermath of a casualty to the hospital in circumstances such as these, I am constrained by authorities binding upon me to decide that the experience the plaintiffs endured, grievous as it must have been for them, was not one that falls within the requirements of the law relating to
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- the circumstances in which persons who are not physically injured are entitled to damages for nervous shock."
19 In relation to the aftermath test, as in relation to the broader question of proximity, the Australian courts have proceeded warily. Evatt J had expressed resistance to the requirement of a sudden sensory perception in Chester v Council of Municipality of Waverley (1939) 62 CLR 1 at 35, and the matter still is the subject of differing views. In Jaensch v Coffey at 555 Gibbs CJ reserved his opinion:
"Lord Wilberforce pointed out in McLoughlin v O'Brian [1983] 1 AC at 422, that in deciding on the limits that should be placed upon the extent of admissible claims for nervous shock it is necessary to consider three elements: 'the class of person whose claims should be recognized; the proximity [in time and space] of such persons to the accident; and the means by which the shock is caused.' I would with respect reserve my opinion as to the correctness of some of Lord Wilberforce's comments on the other elements and in particular on his statements that there must be a close proximity in space as well as in time ([1983] 1 AC at 422) and that 'the shock must come through sight or hearing of the event or of its immediate aftermath' ([1983] 1 AC at 423). The law must continue to proceed in this area step by cautious step."
- By contrast Brennan J expressed an unequivocal view in favour of the test when he said (at 567):
"I understand 'shock' in this context to mean the sudden sensory perception - that is by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors."
and (at 570),
"When the scene of an accident is left behind, and the perception of some later phenomenon induces a psychiatric
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- illness in a plaintiff, the factual difficulties in the way of establishing negligence occasioning nervous shock are greatly increased though the principles are unchanged. The occurrence or existence of the later phenomenon, its sudden perception by the plaintiff and the inducing of the plaintiff's psychiatric illness must be proved to be the results, and the reasonably foreseeable results, of the defendant's conduct. But the separation in time and distance of the later phenomenon from the immediate consequences of the defendant's conduct may make it difficult to prove the elements of causation and reasonable foreseeability as they apply in cases of nervous shock."
- Deane J, like Gibbs CJ, regarded the question as an open one. At 608-609 he commented:
"One can point to a number of judicial statements to the effect that a person 'who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account': per Denning LJ, King v Phillips [1953] 1 QB at 441 and see Hambrook v Stokes Bros [1925] 1 KB at 152, 159. A requirement that the plaintiff must have perceived the peril or injury by her or his 'own unaided senses' (Hambrook [1925] 1 KB at 152) has not, however, enjoyed unqualified support either in the United Kingdom or Australia (see, eg, Schneider v Eisovitch [1960] 2 QB 430; Andrews v Williams [1967] VR 831) and the question whether the requirement of proximity precludes recovery in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one. It is somewhat difficult to discern an acceptable reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a wife and mother who is so devastated by being told on the telephone that her husband and children have all just been killed that she is unable to attend at the scene while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a wife who attends at the scene or its aftermath at the hospital when her husband has suffered serious but not fatal injuries."
In the course of his judgment, at 613, Dawson J seems to have accepted the view of Lord Wilberforce:
"… there appear to be strictures upon liability for the infliction of nervous shock which are not readily explicable in terms of
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- foreseeability and which may be seen to be the result of the application of policy considerations.
For example, if no action will lie in negligence against a defendant who carelessly injures himself and thereby inflicts nervous shock upon the plaintiff, there would seem to be a limit imposed which is outside the test of foreseeability. Similarly, the test of foreseeability may be thought to have a limited application if, as appears to be accepted, there is no liability for shock brought about by communication by a third party and not by the sight or sound of an accident or its consequences.
It is the existence of strictures of this kind that lends support to the view that, in order to be compensable, nervous shock must not only be reasonably foreseeable; it must also fall within the bounds set as a matter of policy: see McLoughlin v O'Brian [1983] 1 AC at 420 - 422, per Lord Wilberforce."
20 In Campbelltown City Council v Mackay (1989) 15 NSWLR 501 the respondents had sought damages for nervous shock after observing cracking and displacement of parts of their home for which the defendants were responsible. The members of the Court of Appeal of New South Wales (Kirby P, Samuels and McHugh JJA) proceeded on the basis that liability in an action for "nervous shock" could not arise where the psychiatric illness does not result from a sudden sensory perception. However, at 503 Kirby P commented as follows:
"As the facts of the damage suffered by the respondents illustrate, psychiatric injury, more than most, is very unlikely to result from the single impact upon the psyche of the claimant of an isolated event. Since the tort of nervous shock was fashioned, there have been substantial advances in the understanding of human psychology. It is highly artificial to imprison the legal cause of action for psychiatry injury in an outmoded scientific view about the nature of its origins. The causes of action at common law should, in my opinion, be released from subservience to nineteenth century science."
- His Honour went on to say at 503 - 504:
"… the price paid for the failure of the law to develop is the persistence of a legal entitlement to recovery which nowadays bears little relationship to contemporary psychological understanding. Such artificialities bring the law into disrepute.
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- They force claimants to try to squeeze their claims into outmoded formulae. They subject expert witnesses to the pressure to distort opinions on what they may feel to be legitimate claims, out of deference to outmoded formulations of the legal basis of entitlement to recovery."
21 On 25 May 1989 in Petrie v Dowling [1992] 1 Qd R 284 at 286 - 287 Kneipp J, having referred to the dictum of Deane J in Jaensch v Coffey at 608 - 609 quoted above, took the view that "in an appropriate case it is sufficient that it be proved that shock and consequent illness follows on the receipt of distressing news." His Honour went on to say,
"Of course, a decision in any particular case must depend on the circumstances. In the present case the plaintiff attended at the hospital, no doubt distressed at the fact that her daughter had been in an accident but in the belief that she had not sustained serious injury, only to be told bluntly that her daughter had died. In these circumstances I think that …. the plaintiff is entitled to recover."
- In Quayle & Ors v State of New South Wales & Anor [1995] A Tort Rep 81-367 Hosking J of the District Court of New South Wales adopted much the same approach.
22 In Coatesv Government Insurance Office of New South Wales (1995) 36 NSWLR 1 the plaintiffs were the children of a man killed by the negligence of a car driver. They claimed damages for nervous shock suffered as a consequence of being informed of their father's death. They had not seen the accident nor been anywhere near to it at any relevant time. Nor had they seen the body of their father. The trial judge found that neither child was shown to have suffered a recognisable psychiatric illness or injury. Two of the three members of the Court of Appeal (Gleeson CJ and Clarke JA) declined to interfere with that finding and, therefore, neither expressed an opinion as to the aftermath test. Gleeson CJ was content to observe (at 5) that it is not clear, in relation to that test, that the law of Australia is the same as the law of England. At 22 - 23 Clarke JA put the situation this way:
"While decisions in England (McLoughlin v O'Brian [1983] 1 AC 410) and Australia (Jaensch) support the existence of what might be described as an 'aftermath' doctrine, so that it is sufficient if the nervous shock results from events within the immediate aftermath of the relevant event (Lord Wilberforce in McLoughlin (at 423) and Deane J in Jaensch (at 607 - 608)) the
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- leading authorities in England do not support the proposition that a plaintiff who is informed of the death of a relative and as a result suffers shock can sue to recover damages for that nervous shock. It is true that Hevican v Ruane [1991] 3 All ER 65 and Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73, permitted the recovery of damages in instances where the effective cause of the psychiatric illness was the news of the death of a relative but in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 the House of Lords expressed serious doubt as to the correctness of those decisions.
On the other hand the courts in Australia have not taken the firm stand of denying recovery where the plaintiff did not see the accident or events within its aftermath but suffered shock as a result of being informed of the death of, for instance, her mother. Indeed there are decisions in Australian courts which permitted recovery where there was no sighting of the accident, or its aftermath: Petrie v Dowling [1992] 1 Qd R 284; Hanley v Keary & Kearey; Melor v Moran (1985) 2 MVR 461; Andrews v Williams [1967] VR 831. In Jaensch the question was adverted to by Gibbs CJ (at 555) and Deane J (at 608, 609) and left open.
In Alcock, Lord Oliver could not accept that the basis of the English law was some 'arbitrary but unenunciated rule of "policy"'. Nor did he think it rested on foreseeability. In his opinion it flowed from the fact that in contemplation of the law persons who simply heard of the death were not in a relationship of sufficient proximity to give rise to a duty of care (at 410).
In Australia, as I have pointed out, there is support for the view that a different answer should be given on the proximity question in circumstances where the deceased was a close relative of the plaintiff and, possibly, in other circumstances.
In the present case it is unnecessary to resolve the issue and I do not think it appropriate to proffer a tentative view by way of obiter dictum. The question should be reserved for another day."
- Kirby P took the view that the trial judge was wrong in concluding that the plaintiffs had failed to prove that they had suffered "nervous shock"
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- within the understanding of that condition as expressed in the cases. At 11 his Honour went on to say:
"The law should now recognise that, at least from a medical understanding of the outdated legal denomination of 'nervous shock' it is as much the direct emotional involvement of the plaintiff in an accident or perilous situation, as his or her physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage …
….
There is no binding Australian authority to control the decision of this Court on this point. There is no reason of legal principle or policy to exclude reasonably foreseeable damage to persons such as the appellant children of the deceased person. I would therefore not be prepared to exclude them from recovery for proved 'nervous shock' simply because they were not in the sight or hearing of the event which led to their father's death or its 'immediate aftermath', whatever that phrase may precisely mean."
The means by which the shock is caused
24 As the cases of Alcock and White show, the House of Lords has consistently rejected claims for shock brought about by communication from a third party. The Australian courts have not adopted a uniform stand in this regard. In Jaensch v Coffey Brennan and Dawson JJ, it seems, accepted the approach of the House of Lords as being correct, but Gibbs CJ and Deane J regarded the question as an open one. In Coates' case Kirby P referred (at 10) to "(t)he artificiality of restricting recovery to perceptions derived directly from active, physical proximity to the happening of the tort, or to its immediate aftermath" and added,
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- "… hearing by telephone, or by later oral message, can, in today's world, be just as foreseeable and just as directly related to the wrong sued upon as if the vulnerable observer had received the shocking perception by his or own eyes and ears at the moment of the relevant wrong. The rule of actual perception is in part a product of nineteenth century notions of psychology and psychiatry. In part, it was intended as a shield of policy against expanding the liability of wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century modes of communicating information."
25 In Pham v Lawson (supra) a neighbour had telephoned the plaintiff at about 1 am to say that the police were trying to wake her. The plaintiff opened the front door of her house and found two police officers standing there. One told her that there had been a road accident and that her daughter had been killed. The plaintiff suffered nervous shock and grief caused partly by news of the accident and partly by associated subsequent events which included driving to the hospital, passing the scene on the way and staying there with her husband and 4-year-old son, both of whom also had been involved in the accident. The Full Court of the Supreme Court of South Australia found that a duty of care arose. At 148 Lander J concluded that "(t)here is … no reason in policy to deny a parent, spouse or child of a person killed or injured or endangered in an accident a right to recover for nervous shock caused only by the receipt of information" and said that he agreed with the reasons of Kirby P in Coates' case. Bollen J agreed with the reasons of Lander J.
26 As far as I have been able to discover there still is no binding Australian authority supporting recovery for psychiatric injury caused solely by learning of a distressing event by telephone. But there is a decision on the point in South Africa. On 25 September 1998, in Barnard v Santam BPK (1999) 1 SA 202, the Full Bench of the South African Court of Appeal dealt with a claim for damages by a mother who had suffered serious nervous shock following the death of her 13-year-old son. The boy had been injured in a bus accident and had died shortly afterwards in a hospital. His mother learned of his death a few hours later when a doctor at the hospital telephoned her husband with the news. In delivering the judgment of the Court in favour of the mother of the lad Deputy Chief Justice Van Heerden described it as 'a hearsay case' and the mother as 'a hearsay victim'. Having referred to the English cases and to Jaensch v Coffey and having commented that "the hearsay victim does not have a happier lot in Canadian law" his Honour spoke of the "more sympathetic ear" which Kirby P had lent to the victim in Coates' case.
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- Taking the view that it is primarily considerations of policy which, according to English law, weigh against liability to a hearsay victim, the Deputy Chief Justice went on to say (as translated from Afrikaans to English):
"The question whether someone's act should be regarded as the legal cause of a result must naturally be decided on the facts of each case. It is necessary to stress once more that in this case we have to do with the nervous shock suffered by a mother when she was informed of the death of her son within a reasonably short time after it occurred. In my view, considerations of policy, and in particular considerations of reasonableness and fairness, do not preclude the conclusion that (the bus driver's) negligent driving was the legal cause of her shock. What the position would be in other types of hearsay instances, is not relevant for present purposes."
27 It is still true that in the overwhelming number of successful claims "shock" was suffered either as a result of the plaintiff's direct and unaided perception of a traumatic event or as a result of the combined effect of what he or she perceived and what was communicated at the scene. Nevertheless, Australian judges generally have not embraced either the concept of proximity as described by Lord Wilberforce in McLoughlin v O'Brian or what Mackenzie J referred to in Devji v Burnaby (supra) at par 110 as "the aftermath test of the House of Lords in Alcock and White". However, in trying to determine the range of foreseeability, almost invariably they have taken into account notions which are remarkably similar to those adopted in England and Canada. Thus in Pham v Lawson at 144 Lander J took this approach:
"For the purposes of a consideration of the facts of this case those judgments (ie the judgments in Jaensch v Coffey) establish that a duty of care will be owed by a tortfeasor to the spouse of an injured person where that spouse has suffered nervous shock and consequent psychiatric illness in circumstances where the spouse was not present at the time of the accident and did not attend the scene of the accident but was later told of the consequences of the accident in relation to her spouse and attended at the hospital and perceived for herself some of the consequences.
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- Whether in any particular case a duty of care is owed is a matter of fact. The finding that a duty of care exists is more likely when the person is a relative who attended at the scene of the accident and perceived himself or herself the injury to the loved one.
The existence of the duty of care becomes less likely as all of the matters which are important for its existence become more remote. So that if the relative was not at the scene or does not attend at the scene then there is less likelihood of the determination of a duty of care as that person has less direct involvement in space and time and therefore less direct perception of the injuries suffered by the person for whom that relative cares.
It is a matter of degree. It is a matter of common sense when the stage is reached that a court must say there can be no duty of care in a given case because the involvement of the person who suffered the nervous shock is not sufficiently close in terms of relationship, involvement or perception. That stage is reached when the facts of the case demonstrate that it is not appropriate to erect a duty of care."
- Although the word "proximity" does not appear in the above passage his Honour does refer to closeness "in terms of relationship, involvement or perception", and his summary of the law, it seems to me, does fit within the aftermath test in Alcock and White.
28 The facts in the present case show that the defendant knew, through Mr and Mrs Loder, that James Annetts was young, that he had little experience as a jackaroo and that his parents were particularly concerned about his safety and welfare. It was foreseeable that they would suffer psychiatric injury if harm befell him as a consequence of the negligence of the defendant. As Lord Oliver commented in Alcock's case at 411,
"The traumatic effect on … a mother on the death of her child is as readily foreseeable in a case where the circumstances are described to her by an eye witness at the inquest as it is in a case where she learns of it at a hospital immediately after the event … [Moreover] the news brought by a policeman hours after the event may be as sudden and unexpected to the recipient as the occurrence of the event is to the spectator present at the scene."
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- But in seeking to establish that the defendant owed them a duty of care the plaintiffs are faced by the circumstance that they were separated in time as well as in space from the distressing events which culminated in the death of their son and by the fact that their knowledge of those events was gained from communication by telephone. That circumstance and that fact each tends to show that the psychiatric injury upon which this claim is based was not the result of a sudden sensory perception by persons directly involved.
29 As we have seen, many of the "nervous shock" cases dealt with by the courts have concerned death or injury of the primary victim resulting from a motor vehicle accident. Others have arisen from a discrete event such as the collapse of a building (Tranmore v T E Scudder Ltd, unreported; Eng CA; 28 April 1998), the crushing of people in a crowd (Alcock and White) or the murder of a 4-year-old girl (Palmer v Tees Health Authority [1999] Lloyd's Rep Med 351). Generally the plaintiff has either been present at the event, arrived at the scene shortly afterwards, visited the hospital where the injured person has been treated or gone to the place to which the body has been taken.
30 In the present case neither of the plaintiffs was involved in such a way. When James Annetts went missing and later died he and Simon Amos were the only persons there. Their bodies were not found until months afterwards. Neither of the plaintiffs saw their son's body or went to the scene of his death. Clearly they were close to their son in terms of relationship. Their condition of mind and nerve while they were awaiting news after the first telephone call "can be completely understood only by parents who have been placed in a similar agony of hope and fear with hope gradually decreasing" (the words used by Evatt J in a very moving passage of his judgment in Chester v Waverley Corporation (supra) at 16 - 18). But their involvement in and perception of the events which led to their son's death were remote. In my opinion, they were not sufficiently close to give rise to a duty of care owed to the plaintiffs by the defendant.
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