Gifford v Strang Patrick Stevedoring Pty Ltd - [2003] HCA 33

HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No S111/2002
DARREN GIFFORD  APPELLANT
AND
STRANG PATRICK STEVEDORING  RESPONDENT
PTY LIMITED
Matter No S112/2002
KELLY GIFFORD  APPELLANT
AND
STRANG PATRICK STEVEDORING  RESPONDENT
PTY LIMITED
Matter No S113/2002
MATTHEW GIFFORD  APPELLANT
AND
STRANG PATRICK STEVEDORING  RESPONDENT
PTY LIMITED
Gifford v Strang Patrick Stevedoring Pty Ltd
[2003] HCA 33
18 June 2003
S111/2002, S112/2002 and S113/2002
ORDER IN EACH MATTER
1.Appeal allowed.
2.Set aside the orders of the New South Wales Court of Appeal dated 14 June 2001 and, in lieu thereof, order that:
(a)    appeal to the Court of Appeal is allowed;
(b)the orders of the District Court of New South Wales dated 24 August 1999 are set aside; and

(c)the matter be remitted to the District Court for determination of all outstanding issues.

3.The respondent to pay the costs of the appellant in this Court and in the Court of Appeal.
4.Costs of each party in the District Court to abide the outcome of proceedings in that Court.
On appeal from the Supreme Court of New South Wales
Representation:

B J Gross QC with D E Baran for the appellants (instructed by G H Healey & Co with Graeme R Jensen & Co)

J D Hislop QC with T F McKenzie for the respondent (instructed by Gillis Delaney Brown)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Gifford v Strang Patrick Stevedoring Pty Ltd
Torts – Negligence – Psychiatric injury – Employee killed in workplace accident – Whether employer owed duty of care to children of deceased employee – Whether reasonable care required to guard against the risk of psychiatric injury – Whether duty existed at common law – Whether the existence of duty was negated by s 4(1)(b) of Law Reform (Miscellaneous Provisions) Act 1944 (NSW).
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1)(b).
Workers Compensation Act 1987 (NSW), s 151P.

GLEESON CJ. These three appeals, which were heard together, arise out of claims for damages for negligently inflicted psychiatric injury brought by the children of a man who was killed in an accident at work. The issue is whether the man's employer owed a duty of care to the children.
The respondent to each appeal, a stevedoring company, employed the late Mr Barry Gifford, who was crushed to death by a forklift vehicle. Negligence on the part of the driver of the vehicle, who was also an employee of the respondent, and on the part of the respondent itself, was alleged, and was admitted. At the time, the appellants were aged 19, 17 and 14 respectively. They did not witness the accident. They were all informed of what had occurred later on the same day.
The appellants claim to have suffered psychiatric injury in consequence of learning of what had happened to their father. This aspect of their claims has not yet been determined. A similar claim by the mother of the appellants failed upon the ground that she had suffered no psychiatric injury, but had merely been affected by normal grief of a kind that did not give rise to an entitlement to damages. Her appeal against that decision was dismissed[1].
[1]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606.
In the District Court of New South Wales, the claims of the appellants were dismissed upon the ground that, by reason of s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ("the Act"), the respondent was under no liability for the "nervous shock" allegedly suffered by the appellants, because their father had not been killed, injured, or put in peril within their sight or hearing[2]. The New South Wales Court of Appeal (Handley and Hodgson JJA, Ipp AJA) considered that the respondent's reliance upon s 4(1)(b) was misplaced. However the Court of Appeal reached the same ultimate conclusion as the primary judge upon the ground that, because the appellants had merely been told about the incident, and did not directly perceive either the event that resulted in the death of their father or its aftermath, then there was no duty of care at common law.[3]
[2]At the time to which these appeals relate, s 4(1)(b) was in force. It has subsequently been overtaken by the Civil Liability (Personal Responsibility) Act 2002 (NSW), s 32, but that provision is presently irrelevant.
[3]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at 617.
Since the decision of the Court of Appeal, this Court has held, in Tame v New South Wales and Annetts v Australian Stations Pty Ltd[4], that direct perception of an incident or its aftermath is not in all cases a necessary aspect of a claim for damages for negligently inflicted psychiatric injury. Accordingly, it will be necessary to reconsider the claims of the appellants in the light of that decision. If it is concluded that the Court of Appeal was in error in deciding that the respondent owed no duty of care to the appellants at common law, it will then be necessary to deal with the respondent's Notice of Contention, which seeks to support the dismissal of the appeals upon the ground favoured by the trial judge, that is to say, s 4(1)(b) of the Act. In that connection, the appellants rely upon an argument, rejected both at first instance and in the Court of Appeal, to the effect that the operation of s 4(1)(b) of the Act is displaced by s 151P of the Workers Compensation Act 1987 (NSW) ("the Workers Compensation Act").
[4](2002) 76 ALJR 1348; 191 ALR 449.
In the event that the appellants succeed, the matter will have to be remitted to the District Court for the determination of the outstanding issues, including the issue that was fatal to the claim of the appellants' mother.
The common law duty of care
The Court of Appeal decided against the appellants on the ground that there can be no liability at common law for damages for mental injury to a person who is told about an horrific accident or injury to a loved one but does not actually perceive the incident or its aftermath[5]. That proposition is inconsistent with the reasoning of this Court in Tame and Annetts, and cannot stand with the actual decision in Annetts[6]. It does not follow, however, that the circumstance that the appellants were not present when their father suffered his fatal injury, and did not observe its aftermath, is irrelevant to the question whether the respondent owed them, as well as their father, a duty to take reasonable care to prevent injury of the kind they allegedly suffered.
[5](2001) 51 NSWLR 606 at 616-618 per Hodgson JA; Handley JA agreeing at 608; Ipp AJA agreeing at 623.
[6](2002) 76 ALJR 1348 at 1353 [18], 1357 [51], 1380-1381 [187]-[191], 1386-1387 [214]-[216], 1388-1389 [225], 1395 [256], 1398 [271]-[272], 1415 [366]; 191 ALR 449 at 456, 461-462, 494-495, 502-503, 505, 514, 518, 541-542.
For the reasons I gave in Tame and Annetts, I consider that the central issue is whether it was reasonable to require the respondent to have in contemplation the risk of psychiatric injury to the appellants, and to take reasonable care to guard against such injury[7]. Relevant to that issue is the burden that would be placed upon those in the position of the respondent by requiring them to anticipate and guard against harm of the kind allegedly suffered by the appellants.
[7](2002) 76 ALJR 1348 at 1351-1352 [9]-[10], 1353 [18]; 191 ALR 449 at 453-454, 456.
As the facts in Tame illustrated so vividly, just as it would place an unreasonable burden upon human activity to require people to anticipate and guard against all kinds of foreseeable financial harm to others that might be a consequence of their acts or omissions, so also it would be unreasonable to require people to anticipate and guard against all kinds of foreseeable psychiatric injury to others that might be a consequence of their acts or omissions. In the case of Mrs Tame, her personal susceptibility raised an additional problem of foreseeability. However, just as advances in medical knowledge have made us aware of the variety of circumstances in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury, so they also make us aware of the implications, for freedom of action and personal security, of subjecting people to a legal requirement to anticipate and guard against any risk to others of psychiatric injury so long as it is not far-fetched or fanciful. In the context of a question of duty of care, reasonable foreseeability involves more than mere predictability. And advances in the predictability of harm to others, whether in the form of economic loss, or psychiatric injury, or in some other form, do not necessarily result in a co-extensive expansion of the legal obligations imposed on those whose conduct might be a cause of such harm. The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants. Rejection of a "control mechanism", such as the need for direct perception of an incident or its aftermath, originally devised as a means of giving practical content to that consideration, does not involve rejection of the consideration itself.
In its capacity as an employer, the respondent was under a duty of care towards the father of the appellants. The question is whether, additionally, it was under a duty of care which required it to have in contemplation psychiatric injury to the children of its employee, and to guard against such injury. The relationship of parent and child is important in two respects. First, it goes to the foreseeability of injury. That a child of the age of the various appellants might suffer psychiatric injury in consequence of learning, on the day, of a terrible and fatal injury to his or her father, is not beyond the "common experience of mankind"[8]. (The fact that all three of the victim's children are said to have suffered psychiatric injury might give rise to some questions for the experts on a new trial, but is not presently relevant). Secondly, it bears upon the reasonableness of recognising a duty on the part of the respondent. If it is reasonable to require any person to have in contemplation the risk of psychiatric injury to another, then it is reasonable to require an employer to have in contemplation the children of an employee.
[8]cf Chester v Waverley Corporation (1939) 62 CLR 1 at 10 per Latham CJ.
In Jaensch v Coffey[9], Gibbs CJ said:
"Where the relationship between the person killed or physically injured and the person who suffers nervous shock is close and intimate, not only is there the requisite proximity in that respect, but it is readily defensible on grounds of policy to allow recovery."
[9](1984) 155 CLR 549 at 555.
Not all children have a close and intimate relationship with their parents; and it may be that, even when parents are killed in sudden and tragic circumstances, most grieving children do not suffer psychiatric injury. However, as a class, children form an obvious category of people who might be expected to be at risk of the kind of injury in question. Where there is a class of person, such as children, who are recognised, by the law, and by society, as being ordinarily in a relationship of natural love and affection with another class, their parents, then it is not unreasonable to require that an employer of a person in the second class, whose acts or omissions place an employee at risk of physical injury, should also have in contemplation the risk of consequent psychiatric injury to a member of the first class.
Subject to the matter next to be considered, I would conclude that the respondent owed a duty of care to the appellants.
Section 4(1)(b)
Section 4 of the Act is set out in the reasons for judgment of Callinan J. The legislative history is described in an article written by Mr D Butler and published in 1996 in the Torts Law Journal[10].
[10]Butler, "Nervous shock at common law", (1996) 4 Torts Law Journal 120.
The provision was a response by the New South Wales legislature to the decision of this Court in Chester v Waverley Corporation[11]. In considering the nature of that response, it is important to note some features of the existing state of the common law, as exemplified in Chester. In Chester, the majority ruled against the claim of a mother who suffered "nervous shock" following the drowning of her child in a trench excavated by the local council and left unguarded. The mother did not witness the drowning, but participated in a search for the child, and was present when the child's body was recovered. Evatt J, in dissent, considered that the case fell within the principles relating to search and rescue, and that the council's duty of care to the mother was owed because, although she was not at the scene of the accident when the child was drowned, she came there soon afterwards in search of the child and might have been a participant in a possible rescue[12]. As Deane J pointed out in Jaensch v Coffey[13], in terms of modern law, the conclusion of Evatt J is to be preferred to that of the majority. However, the reasoning of Evatt J was put on a limited basis, and his analysis in terms of primary and secondary liabilities was criticised by Professor Fleming[14] in the first edition of his work on the law of torts.
[11](1939) 62 CLR 1.
[12](1939) 62 CLR 1 at 37-39.
[13](1984) 155 CLR 549 at 591.
[14]Fleming, The Law of Torts, (1957) at 180.
While the reasoning of all the members of the Court in Chester has since been overtaken by developments in the common law of Australia, that of Evatt J demonstrates a point that is significant in considering the legislative purpose behind s 4 of the Act. Section 4 deals with psychiatric injury to members of the family of a victim. Section 3 provides that in an action for injury caused after the commencement of the Act, "the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock". Section 4 goes on to provide that the liability of any person in respect of injury caused by the act, neglect or default by which any other person is killed, injured or put in peril, shall "extend to include liability" for injury arising from mental or nervous shock sustained by family members in certain circumstances. In the case of a parent, or husband or wife, of the victim, it is not stipulated that the victim must be killed, injured or put in peril in the sight or hearing of the plaintiff. In the case of other family members, there is such a stipulation. The expression "member of the family" is defined (s 4(4)). Relevantly, it includes children. Hence, if s 4(1)(b) were definitive of the potential liability of the respondent to the appellants, the appellants would fail, because the father was not killed, injured or put in peril within their sight or hearing.
As the reasoning of Evatt J in Chester shows, s 4 does not cover the entire range of persons who, as the common law stood in 1944, might have sued for "nervous shock". In particular, it does not cover rescuers who are not family members. The English decision of Chadwick v British Railways Board[15], in 1967, which concerned nervous shock suffered by a man who had participated in emergency services following a collision between two railway trains, did not represent a development in the common law. The principles upon which it was decided were the same as those which Evatt J said should have been applied in Chester[16]. If s 4 of the Act amounted to a definitive statement of the circumstances in which a claim for mental or nervous shock of the kind referred to in s 3 might succeed, then it did not "extend" the liability of defendants; in certain respects it narrowed that liability, even by reference to the state of the common law in 1944.
[15][1967] 1 WLR 912; [1967] 2 All ER 945.
[16]See also Haynes v Harwood [1935] 1 KB 146.
In Coates v Government Insurance Office of New South Wales[17], on the view I took of other issues in the case, it was unnecessary (and therefore, I thought, inappropriate) for me to decide whether s 4(1)(b) operated to limit rights that would otherwise have been given by the common law. It appeared to me then, and appears to me now, that the question is whether the statute evinces an intention that it is to be definitive of rights and liabilities in the case of all claims for damages for nervous shock, or whether the statute is to be regarded as supplementary to, and not derogating from, the rights of persons at common law[18]. In Coates, Kirby P, who found it necessary to decide the point, preferred the second construction. The same view was taken by Mason P in FAI General Insurance Co Ltd v Lucre[19], and by the Court of Appeal in this case.
[17](1995) 36 NSWLR 1.
[18]See Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 505-506 per Mason CJ and Toohey J.
[19](2000) 50 NSWLR 261 at 263-264.
In the present case, Hodgson JA, with whom Handley JA and Ipp AJA agreed, pointed out that s 4 does not expressly state that there shall be no liability in respect of mental or nervous shock sustained by persons other than the immediate victim, unless the conditions laid down by the section are satisfied. That is correct, and significant.
Hodgson JA went on to say[20]:
"One other consideration which persuades me that the common law is not displaced is that s 4 starts with a breach of duty of care to one person, and then extends liability for that breach to include a liability to certain other persons: it does not provide that there is any duty of care to those other persons. In so far as the common law provides for liability to persons other than the immediate victim, it does so by means of a duty of care owed directly to those persons, rather than a liability built upon a breach of duty to the primary victim."
[20](2001) 51 NSWLR 606 at 615.
The second sentence is accurate, but the explanation of the form of s 4, referred to in the first sentence, might possibly be found in the view of the common law taken by Evatt J in Chester, which was rather different from the modern view. Indeed, that was the basis of Professor Fleming's criticism of the reasoning of Evatt J noted earlier[21].
[21]Above at [15].
Whether or not it owes its origin to an outmoded or unorthodox view of the common law as involving primary and secondary liability, the scheme of s 4, including the expression "shall extend to include liability" of a certain kind in certain circumstances, is difficult to reconcile with a legislative intention comprehensively to define liability. Furthermore, the legislative history shows that, although s 4 represented a parliamentary compromise as to the desirable extent of reform, it was intended to confer, rather than take away, rights.
The Court of Appeal was right to conclude that s 4 of the Act does not have the effect of excluding the liability of the respondent to the appellants if such liability otherwise exists at common law.
As to the argument, advanced on behalf of the appellants, to the effect that s 151P of the Workers Compensation Act, in cases such as the present, displaces s 4, I agree with what has been said by Gummow and Kirby JJ.
Conclusion
The appeals should be allowed. I agree with the consequential orders proposed by Gummow and Kirby JJ.
McHUGH J. Section 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW)[22] enacted that a member of the family of a person killed by the negligence of another may bring an action for nervous shock[23] if the person was killed "within the sight or hearing of such member of the family." The children of an employee claim that they suffered nervous shock when they were told that their father had been killed at work. His death was caused by the negligence of his employer. The children were not present when he was killed, nor did they see his dead body. They learnt of his death some hours after it occurred. Accordingly, they cannot bring an action under s 4. But does s 4 abolish the common law right of a family member to bring an action for nervous shock suffered as the result of the wrongful death of the relative? If not, did the employer's duty to take reasonable care for the safety of their father during the course of his employment include a separate duty to the children to protect them from suffering nervous shock by reason of a breach of the duty owed to their father? These are the principal issues in these appeals from a decision of the Court of Appeal of New South Wales holding that the common law action is not abolished, but that the employer owed no such duty to the children.
[22]Sections 3 and 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) were repealed by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) and have now been replaced by Pt 3 of the Civil Liability Act 2002 (NSW).
[23]"Nervous shock" is an outdated term that nowadays is taken to mean a recognisable psychiatric injury.

In my opinion, the Court of Appeal was correct in holding that the Law Reform (Miscellaneous Provisions) Act does not abolish the common law right of a family member to bring an action for nervous shock. But it erred in holding that the employer owed no duty to the children. An employer owes a duty to take care to protect from psychiatric harm all those persons that it knows or ought to know are in a close and loving relationship with its employee. It is not a condition of that duty that such persons should be present when the employee suffers harm or that they should see the injury to the employee. That is the logical consequence of the reasoning in Tame v New South Wales[24] – a decision of this Court delivered after the decision of the Court of Appeal in the present case.
[24](2002) 76 ALJR 1348; 191 ALR 449.
An issue also arises in these appeals as to whether s 151P of the Workers Compensation Act 1987 (NSW) provides an independent cause of action for nervous shock. In my opinion, it does not do so.
Statement of the case
The District Court
Darren Gifford, Kelly Gifford and Matthew Gifford sued Strang Patrick Stevedoring Pty Ltd ("Strang") in the District Court of New South Wales for damages for nervous shock suffered when they were told of the death of their father as a result of a workplace accident. Strang admitted that its negligence caused the death of their father, however the District Court dismissed their actions[25]. Naughton DCJ, who heard the actions, held that in New South Wales s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act covered the field of nervous shock actions, and that it replaced the common law action with a statutory cause of action. Accordingly, his Honour held that, as the deceased was not killed, injured or put in peril within the sight or hearing of any of the children, s 4(1)(b) prevented them from recovering damages for nervous shock. His Honour made no finding as to whether any of the children had suffered nervous shock[26].
[25]Gifford v Strang Patrick Stevedoring Pty Limited unreported, District Court of New South Wales, 24 August 1999.
[26]The wife of the deceased also claimed damages for nervous shock. Naughton DCJ dismissed her action on the basis that she had not suffered any demonstrable psychological or psychiatric illness caused by mental reaction to news of the deceased's accidental death. Subsequently, the Court of Appeal affirmed this finding [Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at 621 [66]]. This Court rejected her application for special leave to appeal to this Court.
The Court of Appeal
The Court of Appeal (Handley and Hodgson JJA and Ipp AJA[27]) dismissed appeals by the children[28]. Their Honours held that s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act did not cover the field of nervous shock and did not affect a person's right to bring an action for nervous shock at common law. But they held that the common law actions must fail. They applied the reasoning in cases decided before Tame[29]. Those decisions severely restricted the grounds upon which an action for nervous shock could be brought at common law. They held that a person was not entitled to damages if no more appeared than that a person had suffered psychiatric injury on being told of the death of, or injury to, a loved one. To bring such an action, the defendant must have breached its duty to the loved one and the plaintiff must have seen the incident or been present at its immediate aftermath[30].
[27]Handley JA and Ipp AJA agreed with Hodgson JA on all issues except for his Honour's discussion of s 4(1)(a) of the Law Reform (Miscellaneous Provisions) Act on which their Honours chose not to express an opinion and which is not relevant for the purposes of this appeal.
[28]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606.
[29](2002) 76 ALJR 1348; 191 ALR 449.
[30]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at 616-617 [40]-[44].
The material facts
Strang employed Mr Barry Gifford as a wharf labourer and wharf clerk. On 14 June 1990, he was killed by what the trial judge described as an "horrific" accident when a large forklift vehicle reversed over him, crushing him to death immediately. Soon after the accident, Mrs Kristine Gifford, his estranged wife, was informed that he had been killed. Darren Gifford, Kelly Gifford and Matthew Gifford are Barry and Kristine Gifford's children. They learnt of their father's death later that same day. At the time they were aged 19, 17 and 14. While the children did not live with the deceased, they maintained a close and loving relationship with him. Their father visited them almost daily. The children claim that they were shocked and distressed at the news. None of them saw the deceased's body after the accident; they were apparently discouraged from doing so because of the horrific injuries that he suffered.
Section 4 of the Law Reform (Miscellaneous Provisions) Act
Strang has filed a notice of contention that seeks to support the decision of the Court of Appeal by contending that in New South Wales s 4 of the Law Reform (Miscellaneous Provisions) Act has abolished a family member's right to bring a common law action for nervous shock. The notice contends that, so far as family members are concerned, actions for nervous shock can be brought only in accordance with the conditions specified in s 4. If this contention were upheld, questions of common law duty would be irrelevant.
In my opinion, both the wording of s 4 and its history demonstrate that the section does not exhaust the rights of a family member to bring an action for nervous shock resulting from the death or injury of a relative. Section 4 confers rights; it does not abolish them. The right of action that it confers on parents and spouses is superior to the right that it confers on other family members. But nothing in the section or its history suggests that the right of either group to bring an action for nervous shock is confined to the statutory right that s 4 confers. Section 4 relevantly provides:
"(1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by:
(a)a parent or the husband or wife of the person so killed, injured or put in peril; or
(b)any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."
Section 4 was a statutory response to the decision of this Court in Chester v Waverley Corporation[31] and the decision of the House of Lords in Bourhill v Young[32].In Chester, this Court held that no action for nervous shock could be brought by a mother who had suffered shock after seeing the dead body of her missing son in a trench under the control of the council. In Bourhill, the House of Lords denied a right of action to a woman who suffered nervous shock after hearing a motor cyclist collide with a motor vehicle. At the time she was unloading a basket from a platform on the other side of a nearby stationary tram. In the Second Reading Speech on the Law Reform (Miscellaneous Provisions) Bill in the Legislative Council, the Minister for Justice said[33] that s 4 was "a statutory extension of liability to meet the position created by the decision in [Bourhill] v Young … It creates no new substantive right of action."
[31](1939) 62 CLR 1.
[32][1943] AC 92.
[33]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 8 November 1944 at 830.
When s 4 was enacted, it was seen as a beneficial provision that expanded the ability of close family members to recover for nervous shock. It was a legislative response to the perceived inadequacies in the common law, as then understood, to provide compensation to family members for nervous shock suffered as the result of injury to their relatives[34]. It removed the need for a family member to show the existence of a duty to the family member or that psychiatric injury to that person was reasonably foreseeable. The Minister said[35] that the bill would "provide a considerable advance on the present law". Nothing in s 4 or its history supports Strang's submission that the section was intended to operate to the exclusion of the common law and cover the field in relation to claims for nervous shock by family members.
[34]See Jaensch v Coffey (1984) 155 CLR 549 at 601-602 per Deane J.
[35]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 5 December 1944 at 1491.
There is a presumption – admittedly weak these days – that a statute is not intended to alter or abolish common law rights unless the statute evinces a clear intention to do so[36]. In Malika Holdings Pty Ltd v Stretton[37], however, I warned of the need for caution in applying this presumption: nowadays legislatures regularly enact laws that infringe the common law rights of individuals. The presumption of non-interference is strong when the right is a fundamental right of our legal system; it is weak when the right is merely one to take or not take a particular course of action. Courts should not cut down the natural and ordinary meaning of legislation evincing an intention to interfere with these lesser rights by relying on a presumption that the legislature did not intend to interfere with them. Given the frequency with which legislatures now abolish or amend "ordinary" common law rights, the "presumption" of non-interference with those rights is inconsistent with modern experience and borders on fiction. If the presumption still exists in such cases, its effect must be so negligible that it can only have weight when all other factors are evenly balanced.
[36]Potter v Minahan (1908) 7 CLR 277 at 304. See also Sargood Bros v The Commonwealth (1910) 11 CLR 258 at 279 per O'Connor J; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ; Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ and myself; Coco v The Queen (1994) 179 CLR 427 at 437-438 per Mason CJ, Brennan and Gaudron JJ and myself.
[37](2001) 204 CLR 290 at 298-299 [28]-[30].
The right to bring an action for psychiatric injury is an ordinary legal right. It is not a fundamental right of our society or legal system similar to the right to have a fair trial or to have a criminal charge proved beyond a reasonable doubt. Nor is the presumption against interfering with ordinary common law rights of the same strength as the presumption that laws do not operate retrospectively. Whether or not the Law Reform (Miscellaneous Provisions) Act excludes the common law has to be determined by construing the legislation in its natural and ordinary meaning, having regard to its context and the purpose of the enactment. The context and purpose of a law includes the history of the enactment and the state of the law when it was enacted[38].
[38]Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 341 per Mason ACJ, Wilson and Dawson JJ; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at 299 [30].
Section 4(1) says that liability in respect of a negligently inflicted injury shall "extend to include" liability for nervous shock. The words "extend to include" indicate that the New South Wales legislature sought to alter the common law in that State, as understood at the time, for the benefit of certain family members. The words of s 4(1), and in particular the words "extend to include", indicate that the section expanded the scope of the common law so far as family members were concerned, but otherwise maintained the existence of a common law action for nervous shock for those persons.
There is not a word in the Law Reform (Miscellaneous Provisions) Act that suggests that its purpose was to abolish generally the common law right to bring an action for damages for nervous shock. Nothing in the legislation itself or the Second Reading Speech indicates that the legislature intended that only those family members included in the definition in s 4(5) of the Law Reform (Miscellaneous Provisions) Act could bring an action for nervous shock. The fact that the legislature did not seek to exclude the common law is evident from a statement in the Second Reading Speech where the Minister said that s 4 would not affect the liability of newspaper publications who would continue to be governed by the common law[39]. Against that background, it would be surprising if s 4 had the purpose – sub silentio – of abolishing the common law rights of the family members of an injured or deceased person and confining their rights to those conferred by the section. This is particularly so, given that the evident purpose of the legislation was to give family members rights of action denied to other persons who suffer nervous shock as the result of the careless conduct of wrongdoers.
[39]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 8 November 1944 at 830.
Because the present issue has not previously arisen for determination, judicial utterances concerning the issue have been limited. But on two occasions, members of this Court have expressed the view that s 4 was an extension and not an abolition of the common law right to bring an action for nervous shock. In Scala v Mammolitti[40], Taylor J said that, although s 4 extended the field in which persons standing in a special relationship to a person killed, injured or put in peril might recover for nervous shock, "it otherwise leaves the earlier law untouched." In Mount Isa Mines Ltd v Pusey[41], Windeyer J said that New South Wales had modified the common law by enacting the Law Reform (Miscellaneous Provisions) Act and that the common law concerning nervous shock continued to develop.
[40](1965) 114 CLR 153 at 159-160, Barwick CJ and Windeyer J agreeing.
[41](1970) 125 CLR 383 at 408.
Statements in the New South Wales Supreme Court are also consistent with the view that s 4 does not exclude the operation of the common law in New South Wales. In Anderson v Liddy[42], Jordan CJ referred to s 4 as extending "in certain respects the common law liability of wrongdoers" in relation to nervous shock. His Honour referred to actions by family members brought under s 4 as "special cases". In Coates v Government Insurance Office of New South Wales[43], Kirby P held that s 4(1) does not exhaustively define the rights of persons to recover for nervous shock. His Honour said that, on its proper construction, the section provided a right for certain persons to bring proceedings for nervous shock in addition to common law rights that remained unaffected. Clark JA tentatively agreed with Kirby P on this issue[44]. Similarly in FAI General Insurance Co Ltd v Lucre[45], Mason P, with whose judgment Meagher and Giles JJA agreed, said that the "section does not purport to restrict the continuing development of the common law of Australia".
[42](1949) 49 SR(NSW) 320 at 323.
[43](1995) 36 NSWLR 1 at 7-8.
[44](1995) 36 NSWLR 1 at 22.
[45](2000) 50 NSWLR 261 at 263-264.
Accordingly, it was not the purpose of s 4 of the Law Reform (Miscellaneous Provisions) Act to abolish the rights of the persons identified in that section to bring common law actions for nervous shock suffered as the result of harm to, or the putting in peril of, a relative. Nor is the position changed because in 1944 lawyers and the legislature of New South Wales understood the common law to be more restricted than this Court has now declared it to be.
Is s 151P of the Workers Compensation Act an independent source of rights?
Counsel for the children submitted that s 151P of the Workers Compensation Act should be given a purposive construction – one providing an independent right to sue for nervous shock – even though it is expressed in the negative language of restriction, rather than the positive language of entitlement. Section 151P is in Pt 5 of the Act which is entitled "Common law remedies". Relevantly, Pt 5 provides:
"151 Common law and other liability preserved
This Act does not affect any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides.
...
151E Application – modified common law damages
(1)This Division applies to an award of damages in respect of:
(a)an injury to a worker, or
(b)the death of a worker resulting from or caused by an injury,
being an injury caused by the negligence or other tort of the worker's employer.
...
151PDamages for psychological or psychiatric injury
No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:
(a)the injured worker, or
(b)a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction."
The Court of Appeal correctly concluded that s 151P was a limitation on awards of damages rather than the source of an independent right to damages. The relevant parts of the legislation assume the existence of rights of action for nervous shock arising out of workplace injuries and confine the right to claim damages in such actions to injured workers and their immediate family members. The heading "Common law remedies" in the relevant part of the Workers Compensation Act reflects this fact, as does the heading "Modified common law damages" in Div 3 which contains s 151P. Thus, s 151P does not give plaintiffs a right to recover damages. On the contrary, it takes away the right to recover damages in an action for nervous shock for workplace injuries but makes an exception in favour of injured workers and members of their close families.
The common law action for nervous shock
The Court of Appeal held that the children could not maintain a common law claim for damages for nervous shock because they did not see the accident that caused their father's death or its aftermath. Hodgson JA said[46] "authority is strongly against the view that there can be liability at common law for damages for mental injury to a person who is told about even an horrific accident or injury to a loved one but does not at any time actually perceive the incident or its aftermath." However, this Court held in Tame[47] that the common law does not limit liability for nervous shock to injuries brought about by a sudden shock in circumstances where the plaintiff has directly perceived a distressing event or its immediate aftermath. Accordingly, the Court of Appeal erred in dismissing the claim on the ground that the children were not present at the accident or its aftermath.
[46]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606 at 616 [40].
[47](2002) 76 ALJR 1348 at 1353 [18] per Gleeson CJ, 1357 [51], 1360 [66] per Gaudron J, 1380-1381 [189], 1386 [213], 1386 [214], 1388-1389 [225] per Gummow and Kirby JJ, 1397 [267] per Hayne J; 191 ALR 449 at 456, 461-462, 465, 494, 502, 505 and 517.
The question then is, whether the relevant principles of the law of negligence required a finding that the respondent owed the children a duty of care to prevent psychiatric injury. That depends on whether the children were "neighbours" in Lord Atkin's sense of that term[48]. Were they so closely and directly affected by Strang's relationship with their father that Strang ought reasonably to have had them in contemplation when it directed its mind to the risk of injury to which it was exposing their father? That Strang negligently caused the death of their father is conceded. So it is unnecessary in this case to determine whether a risk of physical harm to the father existed and, if so, whether it could reasonably be disregarded. It is necessary, however, to determine whether exposing the father to that risk gave rise to a risk that the children would suffer nervous shock and whether that risk to the children could reasonably be disregarded[49].
[48]Donoghue v Stevenson [1932] AC 562 at 580.
[49]Tame v New South Wales (2002) 76 ALJR 1348 at 1367 [108]; 191 ALR 449 at 475.

The answer to these questions lies in the nature of the relationship between the children and their father. The collective experience of the common law judiciary is that those who have a close and loving relationship with a person who is killed or injured often suffer psychiatric injury on learning of the injury or death, or on observing the suffering of that person. Actions for nervous shock by such persons are common. So common and so widely known is the phenomenon that a wrongdoer must be taken to have it in mind when contemplating a course of action affecting others. Accordingly, for the purpose of a nervous shock action, the neighbour of a wrongdoer in Lord Atkin's sense includes all those who have a close and loving relationship with the person harmed. They are among the persons who are likely to be so closely and directly affected by the wrongdoer's conduct that that person ought reasonably to have them in mind when considering if it is exposing the victim to a risk of harm. In Alcock v Chief Constable of South Yorkshire Police, Lord Keith of Kinkel pointed out[50]:
"The kinds of relationship which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendship … It is common knowledge that such ties exist, and reasonably foreseeable that those bound by them may in certain circumstances be at real risk of psychiatric illness if the loved one is injured or put in peril. The closeness of the tie would, however, require to be proved by a plaintiff, though no doubt being capable of being presumed in appropriate cases."
[50][1992] 1 AC 310 at 397. See also at 403 per Lord Ackner, 415-416 per Lord Oliver of Aylmerton, 422 per Lord Jauncey of Tullichettle.
It is the closeness and affection of the relationship – rather than the legal status of the relationship – which is relevant in determining whether a duty is owed to the person suffering psychiatric harm. The relationship between two friends who have lived together for many years may be closer and more loving than that of two siblings. There is no policy justification for preventing a claim for nervous shock by a person who is not a family member but who has a close and loving relationship with the person harmed or put in peril. In a claim for nervous shock at common law, the reasonable foresight of the defendant extends to all those with whom the victim has or had a close and loving relationship.
Whether such a relationship exists in a particular case will often be a matter for evidence although, as Lord Keith pointed out in the above passage, in some cases the nature of the relationship may be such that it may be presumed. Among such relationships are those of parent and child. As s 4 of the Law Reform (Miscellaneous Provisions) Act recognises, the children of a person who is killed, injured or put in peril are especially likely to suffer nervous shock upon learning that their parent has suffered harm. Ordinarily, the love and affection between a parent and child is such that there is a real risk that the child may suffer mental injury on being informed of the harm to, or of observing the suffering of, the parent. The ordinary relationship between parent and child is so close and loving that a wrongdoer cannot reasonably disregard the risk that the child will suffer mental injury on being informed that his or her parent has been harmed or put in peril as a result of the wrongdoer's negligence.
Nor can the wrongdoer reasonably disregard some other close and loving relationships. Husband and wife, sibling and sibling, de facto partners and engaged couples, for example, almost invariably have close and loving relationships. No doubt the parties to such relationships may sometimes be estranged. Despite this possibility, however, so commonly are these relationships close and loving that a wrongdoer must always have such persons in mind as neighbours in Lord Atkin's sense whenever the person harmed is a neighbour in that sense. To require persons in such relationships to prove the closeness and loving nature of the relationship would be a waste of curial resources in the vast majority of cases. The administration of justice is better served by a fixed rule that persons in such relationships are "neighbours" for the purposes of the law of nervous shock and the defendant must always have them in mind. Similarly, the wrongdoer must always have in mind any person who can establish a close and loving relationship with the person harmed.
Although a close and loving relationship with the person harmed brings a person within the neighbour concept, it is not a necessary condition of that concept. In some cases, a relationship, short of being close and loving, may give rise to a duty to avoid inflicting psychiatric harm. A person is a neighbour in Lord Atkin's sense if he or she is one of those persons who "are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected"[51]. If the defendant ought reasonably foresee that its conduct may affect persons who have a relationship with the primary victim, a duty will arise in respect of those persons. The test is, would a reasonable person in the defendant's position, who knew or ought to know of that particular relationship, consider that the third party was so closely and directly affected by the conduct that it was reasonable to have that person in contemplation as being affected by that conduct?
[51]Donoghue v Stevenson [1932] AC 562 at 580 (emphasis added).
In other cases, an association with the primary victim or being in their presence may be sufficient to give rise to a duty to take reasonable care to protect a person from suffering psychiatric harm. This will often be the case where the person suffering psychiatric harm saw or heard the harm-causing incident or its aftermath. As members of this Court pointed out in Tame, in determining whether the psychiatric injury suffered was reasonably foreseeable, relevant considerations may include whether the person who suffers that injury directly perceived the distressing incident or its immediate aftermath or suffered a sudden shock. If so, a duty to take care may exist even though the primary victim and the person suffering psychiatric harm had no pre-existing relationship. In Tame[52], Gleeson CJ said that such matters are relevant where the nature of the relationship is not that of parent and a child. They are relevant because they go to the issue whether it was reasonable to require the defendant to have in contemplation injury of the kind suffered by the plaintiff and to take steps to guard against such injury. Gaudron J[53] said that, absent circumstances giving rise to a sudden shock, the risk of psychiatric injury will not be reasonably foreseeable in many cases. Gummow and Kirby JJ said[54]:
"Distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge concerning that phenomenon, may be relevant to assessing reasonable foreseeability, causation and remoteness of damage in a common law action for negligently inflicted psychiatric illness. But they are not themselves decisive of liability."
[52](2002) 76 ALJR 1348 at 1353 [18]; 191 ALR 449 at 456.
[53](2002) 76 ALJR 1348 at 1360 [66]; 191 ALR 449 at 465.
[54](2002) 76 ALJR 1348 at 1388 [225]; 191 ALR 449 at 505.
The employer owed a duty of care to the children
In the present case, the relationship between the children and their father made them a neighbour of Strang for duty purposes, and Strang owed the father a duty of care to provide a safe place of employment. The father was killed in the course of his employment by reason of the negligence of Strang. A reasonable employer in the position of Strang was bound to have in mind that any harm caused to its employee carried the risk that it would cause psychiatric harm to any children that he might have when they learned of his death. Because that is so, Strang owed a duty to the children to take reasonable care in its relationship with their father to protect them from psychiatric harm. And the admission that Strang negligently caused the death of their father means that Strang breached its duty to the children. However, the trial judge made no finding as to whether any of the children suffered a recognisable psychiatric injury upon being told of their father's death. Accordingly, it is not possible to enter verdicts in favour of the children. The proceedings must be remitted to the District Court for further hearing.
Orders
The appeals should be allowed. The orders of the Court of Appeal should be set aside. In place thereof, it should be ordered that the appeals to that Court be allowed, that the orders of the District Court be set aside and the matters be remitted to that Court for further hearing. The respondent should pay the costs in this Court and in the Court of Appeal. The costs in the District Court should follow the outcome of the further hearing.
GUMMOW AND KIRBY JJ. These three appeals against a decision of the New South Wales Court of Appeal (Handley and Hodgson JJA, Ipp A‑JA)[55] concern the liability of an employer for "nervous shock" allegedly suffered by the children of an employee upon learning that their father had been killed in the course of his employment.
[55]Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606.
On 14 June 1990, the appellants' father, Mr Barry Gifford was killed in a forklift accident which occurred during the course of his employment by Strang Patrick Stevedoring Pty Limited ("the respondent"), as a wharf labourer and container location clerk at Darling Harbour in Sydney. The appellants, who were then aged 19, 17 and 14 respectively, were informed of their father's death at their home in Woolloomooloo later that day. They were shocked and distressed at the news. None of the appellants saw the deceased's body after the accident; it appears they were discouraged from doing so because of its damaged condition.
The appellants and their mother, the deceased's widow, Mrs Kristine Gifford, each commenced proceedings against the respondent in the Supreme Court of New South Wales seeking damages in negligence for "nervous shock". Each action was, by order of that Court, transferred to the District Court and each was heard on 11 May 1998 as a civil arbitration under the Arbitration (Civil Actions) Act 1983 (NSW) ("the Arbitration Act"). Section 18 of that statute provided, in certain circumstances, for the District Court, upon application by a person aggrieved by the arbitral award, to order a rehearing of the action as if the action had never been referred to arbitration. Upon applications made under s 18 of the Arbitration Act, the District Court (Naughton DCJ) conducted a rehearing of each action, uninformed as to the content of the arbitrator's award in each case. On 24 August 1999, the District Court gave judgment for the respondent in each proceeding. The appellants and their mother each appealed unsuccessfully to the Court of Appeal. The leading judgment was delivered by Hodgson JA.
Special leave to appeal to this Court was granted to the appellants but refused to Mrs Gifford. The Court of Appeal upheld the trial judge's finding that, although Mr Gifford's death caused Mrs Gifford to experience shock, distress and an extended grief reaction, it did not cause her to develop a recognisable psychiatric illness. In this country, emotional distress or grief not amounting to a recognisable psychiatric illness does not found a common law action in negligence[56].
[56]Tame v New South Wales (2002) 76 ALJR 1348 at 1356 [44], 1381‑1382 [193], 1400 [285]; 191 ALR 449 at 460, 495‑496, 522.
Mrs Gifford also brought a claim on behalf of the three children under the Compensation to Relatives Act 1897 (NSW) ("the Compensation to Relatives Act"), the respondent having admitted that its negligence caused the death of the deceased. The claim was heard by Naughton DCJ together with the negligence actions but was the subject of a separate judgment, from which no appeal was brought. Section 4(1) of the Compensation to Relatives Act provides for the recovery, by specified relatives of a person killed by a wrongful act, neglect or default, of damages "proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought". As the recent discussion in De Sales v Ingrilli[57] indicates, there is a long history of judicial interpretation of similar language in cognate legislation and its antecedents which restricts the damages recoverable in such actions to pecuniary loss and forbids any consideration of mental suffering or loss of society.
[57](2002) 77 ALJR 99 at 109‑111 [54]-[58], 122 [119]; 193 ALR 130 at 143‑144, 160.
The District Court
In the negligence actions, Naughton DCJ made no findings as to whether the appellants suffered a recognisable psychiatric illness consequent upon being informed of the death of their father. One result is that, even if the appellants otherwise are successful in this Court, their actions must be returned to the District Court for determination of outstanding issues.
Naughton DCJ entered verdicts for the respondent because he decided that in any event s 4(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) ("the 1944 Act") operated to exclude the children's common law claims to damages for "nervous shock"; the deceased was not killed, injured or put in peril within the sight or hearing of any of the children. Section 4(1) states:
"The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by:
(a)a parent or the husband or wife of the person so killed, injured or put in peril; or
(b)any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family."
"Member of the family" is defined in s 4(5) to mean "the husband, wife, parent, child, brother, sister, half‑brother or half‑sister of the person in relation to whom the expression is used"; "child" is defined to include "son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis".
In the course of his reasons, Naughton DCJ referred also to Pt 5 (ss 149-151AC) of the Workers Compensation Act 1987 (NSW) ("the Workers Compensation Act"), which is headed "Common law remedies". In particular, his Honour rejected a submission, put by counsel for the appellants, respecting s 151P of that statute. This provides:
"No damages for psychological or psychiatric injury are to be awarded in respect of an injury except in favour of:
(a) the injured worker, or
(b)a parent, spouse, brother, sister or child of the injured or deceased person who, as a consequence of the injury to the injured person or the death of the deceased person, has suffered a demonstrable psychological or psychiatric illness and not merely a normal emotional or cultural grief reaction."
Section 151P does not assist the appellants by conferring a private right of action for breach of statutory duty[58]. Rather, the appellants submitted that s 151P excludes what otherwise would be any application to them of s 4(1)(b) of the 1944 Act.
[58]Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459‑461.
The Court of Appeal
The Court of Appeal agreed with the trial judge's conclusion that s 151P of the Workers Compensation Act does not displace the operation of s 4(1)(b) of the 1944 Act[59]. However, their Honours disagreed with the primary judge as to the effect of s 4(1)(b). The Court of Appeal held that that provision does not exclude any liability that may otherwise exist at common law[60].
[59](2001) 51 NSWLR 606 at 608, 614, 623.
[60](2001) 51 NSWLR 606 at 608, 615, 623.
The Court of Appeal nonetheless held that the appellants could not recover; this was because no liability was said to arise at common law for damages for mental injury to a person who is told about an horrific injury to a loved one but does not actually perceive the incident or its aftermath[61].
[61](2001) 51 NSWLR 606 at 608, 616‑617, 623.
In this Court
Tame v New South Wales and Annetts v Australian Stations Pty Ltd[62], which were heard and decided by this Court after judgment was delivered by the Court of Appeal in the present case, determined that liability in negligence for "nervous shock" does not depend upon satisfaction of an absolute requirement that a plaintiff "directly perceive" the relevant distressing incident or its "immediate aftermath". The lack of direct perception by the appellants of the death of their father is not itself fatal to their action in negligence for "nervous shock". It follows that the Court of Appeal erred in dismissing the appeals on that basis.
[62](2002) 76 ALJR 1348 at 1353 [18], 1357 [51], 1380‑1381 [189], 1388‑1389 [225]; 191 ALR 449 at 456, 461‑462, 494, 505.
The identification of that error, however, does not establish that the respondent owed the appellants a duty to take reasonable care to avoid causing them psychiatric harm. A consequence of the rejection of an absolute requirement of "direct perception" is the need for consideration in the particular case of the ordinary principles of the law of negligence in accordance with which a duty of care either is established or denied. This reflects the process of reasoning which followed in Brodie v Singleton Shire Council[63] from the removal from the corpus of the common law of the "immunity" of "highway authorities"; the removal of that restriction provided occasion for what otherwise would have been the ordinary operation of the elements of the tort of negligence.
[63](2001) 206 CLR 512 at 539-540 [54]-[55], 604 [238]-[239].
A duty of care in cases involving psychiatric injury is not defeated at the outset by the absence of "direct perception"; but it does not follow that a duty arises in all circumstances to which the control mechanism previously has been said to attach. Indeed, it would be quite wrong to take it from Tame and Annetts that reasonable foreseeability of mental harm is the only condition of the existence of a duty of care[64]. This aspect of the present appeals is considered further below under the heading "Duty of care".
[64]cf Review of the Law of Negligence, Final Report, September 2002, §9.13.
By its Amended Notice of Contention, the respondent submits that the decision of the Court of Appeal should be affirmed on the basis that the trial judge was correct to conclude that s 4(1)(b) of the 1944 Act operated to prevent the appellants' claim for damages for "nervous shock". If accepted, that contention would foreclose any occasion for the application to the present case of the ordinary principles governing the existence of a common law duty of care.
The respondent further submits that, even if s 4(1)(b) does not have the effect for which it contends, no duty of care arose in the present circumstances. The respondent points in particular to the significance to the finding of a duty of care in Annetts of the reliance by Mr and Mrs Annetts on the assurances given by the respondent in that case as to the care that would be taken in its employment of their adolescent son on its isolated cattle station; an antecedent relationship therefore existed between Mr and Mrs Annetts and their son's employer[65]. It is said that the respondent in the present case provided no similar assurances upon which the appellants relied respecting their father's safety from harm during the course of his employment.
[65](2002) 76 ALJR 1348 at 1355‑1356 [37], 1373 [144], 1391 [239], 1403 [ 302]-[303], 1415 [366]; 191 ALR 449 at 459, 483‑484, 508‑509, 525‑526, 541‑542.
Section 4(1) of the 1944 Act

The appeals should be allowed with costs. The respondent should pay the appellants' costs of the appeals to the Court of Appeal. The cases should be remitted to the District Court for decision according to law. The costs of the proceedings in the District Court (both the trials so far and in the future) should abide the result in the District Court.