King v Philcox

[2015] HCATrans 51

[2015] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A26 of 2014

B e t w e e n -

GEORGE KING

Appellant

and

RYAN PHILCOX

Respondent

FRENCH CJ
KIEFEL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 11 MARCH 2015, AT 10.05 AM

(Continued from 10/03/15)

Copyright in the High Court of Australia

MR HEYWOOD‑SMITH:   If the Court pleases, I am up to paragraph 5 of my oral submissions document.  Before I come to that, there are two minor matters that I wish to go back to or raise with the Court arising out of yesterday.  The first was the reference by my learned friend to DSM‑V with a view, as we understand it, to make a submission to the Court that there is uncertainty concerning diagnosis of psychiatric conditions.  Can I just draw the attention of the Court to the fact that the only reference to DSM in proceedings appears at appeal book page 366 where psychiatrist called by the defendant – Dr Ewer – in fact line 20 on that page refers to DSM‑IV and emphasises in fact the reliability of the document.  DSM‑IV was not put in evidence.  That was the only significant reference to it.  Of course, DSM‑V which our friend refers to was for a different purpose, was not in evidence and, of course, a 2013 document. 

The second small matter that I wish to raise is – and it is I think a self‑inflicted injury.  The respondent has agreed that the appellant’s chronology is accurate.  Could I just ask the Court to go to the appellant’s chronology and if possible to have the appellant’s submissions available.  The appellant’s submissions in paragraph 7 on page 2, 7.1, 2, 3 and 4, is we say an accurate account of the factual circumstances that occurred between 4.55 pm on the evening and 5.30 on the evening.  In the chronology, it might suggest that the plaintiff did not go back through the intersection between 5 o’clock and 5.30 whereas in fact that is not the case and it is more accurately represented in the written outlines.  We should also indicate that on page 2 of the chronology at 5.30 Scott Philcox’s life was declared extinct.  The evidence was clear that that occurred at the scene.  The Court should be aware of those minor matters.

Now, coming then to paragraph 5 of the respondent’s outline which addresses the issue of the relationship and, of course, we are concerned here with section 33(2)(iv) which only speaks of the relationship and is no more specific than that, unlike 53(b), but in terms of the common law informing the proper application of section 33 and the reference to the relationship, we draw attention in our written submissions at paragraph 47 to the passage in Gifford’s Case from the judgment of Justice McHugh at paragraph 50 in which his Honour addresses relationships as extending to include certainly siblings and, indeed, others in a “close and loving” relationship.  His Honour goes on interestingly to make some observations about there not being – it being assumed that people in that relationship, such as a sibling, is in a close relationship and suggesting that it would be from the sentence halfway through:

To require persons in such relationships to prove the closeness and loving nature of the relationship would be a waste of curial resources –

and that observation.  So far as that paragraph 5 of our written outline is concerned, we are content to rely upon our written submissions, including paragraph 48.  There is one observation that we would wish to make, however, concerning our friend’s submissions in his reply.  Paragraph 12.1 of our friend’s reply it is suggested that in Ms Johnson’s report:

the respondent and the victim (his brother) had never really got on from an early age –

That is a reference to a passage from Ms Johnson who was called by the plaintiff at 287 of the appeal book and the psychologist goes on at the bottom of page 287 to expand on that to some degree, but importantly, in our submission, the Court should be aware of the evidence‑in‑chief given by the plaintiff, particularly at appeal book 25, lines 3 to 7; 26, lines 1 to 16 ‑ ‑ ‑

FRENCH CJ:   Now, what are you drawing from these transcript references?

MR HEYWOOD‑SMITH:   That the plaintiff is saying, in fact, he and his brother had a very close relationship and, of course, he was not cross‑examined upon these matters.  So we simply draw attention to the fact that there is, in our submission, no point to be made in a suggestion that Ms Johnson noted at a particular stage the plaintiff and his brother did not have a particularly close relationship.  We also draw attention to the observation of Justice McHugh in Gifford’s Case about being able to be assumed that level of relationship. 

Paragraph 6 of our outline of submissions, the paragraphs of our submissions are indicated and I do not think that I need to elaborate upon that paragraph.  Paragraph 7 of our written submissions relates to the issue of the aftermath and we would make this observation, that in terms of section 33 and the duty, if indeed as his Honour did when addressing the particular circumstance of missing the – that is 33(2)(a)(ii):

whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril –

her Honour took a particular view of that.  But even if a strict view was taken of that such as to exclude the aftermath because common law is informing the application of section 33, then what is seen in the aftermath can easily constitute another relevant circumstance observation.

KEANE J:   But it is not the case that the common law cases that talk about witnessing the aftermath are talking about the immediate impact of seeing the sights and sounds of the actual incident in which the person is injured as opposed to simply being told later that an event has occurred.

MR HEYWOOD‑SMITH:   Quite so, but the observations in Wicks, for example, is that the aftermath extends to the period during which people are being extracted from railway carriages and being treated at the scene.

KEANE J:   It is talking about that in a context of immediate exposure to the sights and sounds of the accident itself. 

MR HEYWOOD‑SMITH:   Well, our response to that is that it could be, but it could be many things.

KEANE J:   Bu, are any of the cases that talk about this notion of aftermath, are they talking about simply being told after the event that an event has occurred?

MR HEYWOOD‑SMITH:   No, I do not believe that is the case.  In Jaensch v Coffey, the events which immediately followed the accident to the husband involved her action driving past the scene of the accident and then to the hospital.  That was all encompassed as being within the aftermath. 

KEANE J:   Then being confronted by the sight of the injured person.

MR HEYWOOD‑SMITH:   Yes.  But, here, the Court has heard my submissions yesterday as to the significance of the attendance by the plaintiff at the scene, very shortly after the accident, prior to the emergency vehicles and his making a conscious decision not to stop.  That, we say, is in – we actually say that is part of the accident but if we are wrong about that then it is certainly part of the aftermath and it is what is perceived in a particular case will vary immensely.  Indeed, in our submission, this might be one of those occasions where Justice McHugh’s suggestion of it being a waste of curial resources for the courts to have to go into precisely what was perceived, what was heard, what was smelt.  If somebody is there for the purposes of this section – and I am coming to section 53 in a moment – then we say it is sufficient.  Paragraph 8 of our submissions – I may need to just qualify that a little.  Can I ask the Court to go to tab 14 of our friends’ materials, the Act itself.  Section 3 of the interpretation section:

accident means an incident out of which personal injury arises –

For our purposes, that is as far as we need to go.  Then turn to personal injury over the page.  The Court will see that:

personal injury or injury means bodily injury and includes –

(a)      mental harm;

(b)     death;

So that the accident in this case means an incident out of which death arose.  Now, the first submission we put to the Court is that this accident as opposed to aftermath inured from 4.55 to 5.30, so I just make that observation in respect of our paragraph 8.  Turning then to section 53 of the limitation of liability, paragraph 9, I would have thought would have been non‑contentious.  I do not seek to elaborate on 10 and 11 which, I think, are covered in our written submissions adequately.  Paragraph 12, section 53(1)(a) – it is 53(1)(a) that the plaintiff relies upon, not 53(1)(b) – parent, spouse, domestic partner or child for obvious reasons.  So the issue of sibling does not arise under section 53.  The words of 53(1)(a) are :

or was present at the scene of the accident when the accident occurred –

It is significant, we say, for a start that Parliament chose not to use the word “witness” which it did use in section 33 and our learned friends suggest – there is one other observation I make about that in relation to the interpretation section that I have just taken the Court to.  Obviously, if this man – if the victim had been taken to hospital and had died a month later, the accident would not extend to then.  It has to be at the scene.  But, in a situation where an accident occurs out of which death arises at the scene, our submission is that the accident encompasses that period.

Can I just make this observation?  Our learned friend took the Court to Hoinvill‑Wiggins, the decision in Hoinvill‑Wiggins which appears in the appellant’s volume 2 at number 9.  I just make this observation about Hoinvill‑Wiggins.  Justice Sulan in the Full Court in this matter distinguished Hoinvill‑Wiggins, we say, for a very good reason in that – and our learned friend took the Court to page 171 of the judgment at line 20, the definition of section 77, and to the Parliament under the New South Wales then legislation that:

No damages for psychological or psychiatric injury shall be awarded in respect of a motor accident except in favour of:

(a)       a person who suffered injury in the accident and who:

 . . . 

(ii)     was, when the accident occurred, present at the scene of  
  the accident.

So the first of those two limbs does not exist under section 53 and Justice Sulan in his judgment at page 445 of the appeal book specifically in paragraph 63 extracted from the judgment of the Court of Appeal in Hoinville‑Wiggins, the passage which commences “close connection”.  But, towards the end of that paragraph, Justice Sulan notes that the Court of Appeal itself draws attention to – the fourth to last line:

the additional requirement that the plaintiff suffer injury in the accident –

which it is said –

underlines those spatial and temporal requirements.  The aftermath was never part of the accident and (at least for the purposes of s 77(a)) seeing or hearing the aftermath no longer founds recover of damages.

That is why we say Justice Sulan was correct to distinguish the legislation in the Hoinvill‑Wiggins Case from that in this case.  I do not believe – coming back to the outline – that I need to address 12.1 other than to refer the Court to the paragraphs in our written submissions.

KEANE J:   Mr Heywood‑Smith, just in relation to that, section 53(1)(b) recognises that mental harm or damages for mental harm suffered by a parent, or spouse, or other person in a particular relationship to a person injured in the accident or endangered, people in that class are not required to have the connection of presence at the scene.  People who are not in that class are required to meet the requirement of presence at the scene if they are to recover damages for mental harm they suffer.  What is the rationale for the difference?

MR HEYWOOD‑SMITH:   Well, the policy considerations that my learned friend referred the Court to yesterday of a perceived need of the Parliament to put some limit on recovery in the case of mental harm.  But the limit, we say, that has been imposed here is really an arbitrary limit and should be narrowly construed because if the ordinary principles of remoteness at common law and causation at common law are applied, there will be many instances, we would suggest, where recovery would be available.  This limits but it limits in an arbitrary way and ‑ ‑ ‑

KEANE J:   You say in an arbitrary way.  You do not see any rational basis for the distinction?

MR HEYWOOD‑SMITH:   Well, I imagine that the rational basis is that it is a recognition of the fact that if somebody is present at the scene and does have a first‑hand time and space involvement with the accident, that such a person is, perhaps, more likely to ‑ ‑ ‑

KEANE J:   It does seem, does it not, that it is talking about – or the rational basis for the distinction is actual exposure to the sights and sounds of the accident?

MR HEYWOOD‑SMITH:   That might well be the rationale, but our submission ‑ ‑ ‑

KEANE J:   An immediacy in terms of response to what one sees or hears.

MR HEYWOOD‑SMITH:   I think I would be bound to accept that, but the point that we would make is that once a plaintiff establishes presence at the scene of the accident, he or she does not need to go beyond that to satisfy a court that that presence resulted in a particular observation.

KEANE J:   So, when you say just “presence” – if, for example, your client were a passenger in the vehicle that drove back and forth and he happened to be asleep, even though he drove past the place where the accident occurred and he was asleep but he was present, in that sense, would that be enough?

MR HEYWOOD‑SMITH:   Well, that is a difficult one.  If one was not conscious, there would be a reasonable basis ‑ ‑ ‑

KEANE J:   So mere physical presence at the locale does not seem to be enough to get you within (1)(a).

MR HEYWOOD‑SMITH:   Well, there would be a question as to whether or not being unconscious actually constituted being present.  I think ‑ ‑ ‑

KEANE J:   Presence seems to suggest, in this context, a consciousness in terms of sense perception of the event.

MR HEYWOOD‑SMITH:   What we would say, I think, is expressed in our submissions at paragraph 84 of our written outlines, is presence at the scene means at the scene in the sense of being in a location from which the accident was apparent.  It must be apparent to the subject person at least directly through one of the senses.  We make the comment there that there is no suggestion, for example, that a blind person would be excluded.  So we would accept that presence at the scene does involve being in a position for it to be apparent, and I think that that would overcome the problem of the unconscious ‑ ‑ ‑

FRENCH CJ:   Conscious or unconscious, if you are present at the scene, all that does is to get you out of the disqualification in 53(1)(a).  You have still got the task of establishing a causal connection ‑ ‑ ‑

MR HEYWOOD‑SMITH:   Quite so.

FRENCH CJ:   ‑ ‑ ‑between the breach of duty and what you say is the mental harm you have suffered.

MR HEYWOOD‑SMITH:   Quite so.

NETTLE J:   Mr Heywood‑Smith, it all comes down to when the accident occurred, does it not?  On your case, you were present, you perceived what occurred, it was the causative effect of the loss you subsequently suffered.  The only question is, were you present when the accident occurred?

MR HEYWOOD‑SMITH:   Yes, if we have come down to section 53, that is what it comes down to.

NETTLE J:   No doubt you were present at the accident, but were you there when it had occurred?

MR HEYWOOD‑SMITH:   So our submission is, as I have indicated, and what the Full Court relied upon, was the definition of “accident” as being an “incident”, that being wider than the point of impact.  The prior observations of other courts, particular in Wicks, is to the effect that accident is not confined to the instant of impact for a variety of reasons, and it would be a construction which required in this case, for example, where it would appear that the plaintiff arrived at the scene within a matter of minutes, an arbitrary construction which would …... such inflexibility as to justify excluding this plaintiff on that basis.

KIEFEL J:   At the scene of the accident, is it sufficient that the respondent was in the vicinity of the accident, rather than actually at the scene?

MR HEYWOOD‑SMITH:   Well, I think that that is the point that I was attempting to make earlier.  I think that he has to be somewhere where it is apparent to one of the senses.  If one can – there is a host of scenarios, one can imagine an explosion taking place in the next block which was sufficiently loud to – apparent to somebody that an accident or something had occurred, and we would say that that would be sufficient even though the person might not have seen the particular event.  The factual circumstances ‑ ‑ ‑

KIEFEL J:   But the fact that someone cannot give evidence about the details of the scene and the factors in the scene which cause – I would not say caused an effect but which registered strongly with the person.  Is that indicative that they are really not at the scene in the sense that the legislation is talking about?

MR HEYWOOD‑SMITH:   In our submission not, I mean particularly in the facts of this case, where the plaintiff on the evidence that I read yesterday comes through the accident scene, makes observations, makes observations as to the fact that there is ‑ ‑ ‑

KIEFEL J:   But it is observations of something occurring over there, is it not, and it is not the detail, he does not see faces, he does not see the detail, he does not see bodies.  I mean, there is a degree of separation.

MR HEYWOOD‑SMITH:   Our submission is that section 53(1)(a) does not require that.  It does not go into ‑ ‑ ‑

KIEFEL J:   The point, I think, that Justice Keane was raising with you was the distinction drawn between (a) and (b).  It may be taken that – or may be assumed by the legislation that it is not necessary for a parent, spouse or child – and albeit here that there has been a cut‑off not to include siblings, cousins or other people who might be close, but at least persons in that category may not need to be present and see the horror of an accident to be affected adversely.  It may be accepted that they will, in any event, once they hear about it, because being their loved ones, they will imagine things.  But, in (a), I think you came close to conceding that there has to be at least a propinquity sufficient to have an effect upon a person, if not immediately, but somehow to explain an effect later on.

MR HEYWOOD‑SMITH:   Well, that is what we certainly advance here.  But our submission is that that is there to exclude the Hillsborough tragedy – the people who were watching that soccer game on their television sets.  It is to exclude people who are watching their TV and see a ‑ ‑ ‑

KIEFEL J:   That is the pointedness about a policy dealing with remoteness, as you acknowledge is its function.  It does draw a line.

MR HEYWOOD‑SMITH:   It does draw a line.

KIEFEL J:   The question is where that line is.

MR HEYWOOD‑SMITH:   Our submission is that the line is that the accident must be apparent to a person through one of his senses.  It will obviously be ….. but it has to be apparent as an accident and, in this case, it clearly was.

FRENCH CJ:   The ordinary meaning of the term “when the accident occurred” would – understand it in terms of when the collision occurred, that particular event.  But you, as I understand it, say “when the accident occurred” encompasses not a point in time but a period of time up to and including the death of the deceased in this case.  Is that right?

MR HEYWOOD‑SMITH:   Yes.

FRENCH CJ:   Would it have made a difference if the deceased had died in hospital at 5.30?

MR HEYWOOD‑SMITH:   Well, no.  Well, because the plaintiff was there at a time when he was still alive and being treated, we would say we accept that so far as the accident itself is concerned if he is taken off to hospital, it has to be at the scene, it has to be at the scene, it is not somewhere else, but can I just make this point?  At the scene of the accident when the accident occurred, if it was only at the scene of the accident, of course somebody could claim that they went along to the scene of the accident the next morning and stood there and became – it has to be when the accident occurred.  That is, on our submission, either when it is occurring pursuant to the sections – the interpretation sections – or the aftermath, the immediate aftermath. 

FRENCH CJ:   You seem to place some weight on the definition of “accident” and the qualification “incident out of which personal injury arises”.

MR HEYWOOD‑SMITH:   Yes.

FRENCH CJ:   How does that work in extending the – or defining the period which you rely upon when you say there is a period covered by the term “when the accident occurred”?

MR HEYWOOD‑SMITH:   Well, it covers the situation of a person who is seriously injured at the point of impact and whose injury may be made worse by attempts of the rescuers to extricate.  It covers the situation of the person who is treated at the scene but, unfortunately, expires. 

FRENCH CJ:   See, it might cover a situation – it does not say that it has to be a person who is directly injured, “out of which personal injury arises” would include, having regard to the definition of personal injury, out of which an incident out of which mental harm arises.  That might be your client.  The problem is defining “accident” by reference to the period of the occurrence of the accident, if you like, or the duration of the accident by reference to a time period which incorporates injury, including death or mental harm, makes it almost infinitely extensible.

MR HEYWOOD‑SMITH:   Well, I think that your Honour is not affording proper use to the word “incident”.  “Incident” is obviously going to exclude something that is away from scene, in our submission, in response to that.  Can I just indicate in respect of the attempt by the appellant to suggest something can be drawn from the fact that following the Ipp Report, the word “aftermath” is not incorporated into the Act, Justice Sulan goes through the history of the legislation to point out that the wording does not continually change and the decisions on the legislation prior to it, including Jaensch v Coffey, embraced “aftermath”, our submissions in respect of that appear in our written submissions from paragraph 89.

Can I just, perhaps, ask by way of assistance to the Court for the Court to turn to pages 15 and 16 of the respondent’s written submissions and just to make a note?  Our learned friend took the Court yesterday to their tab 22 which is the Second Reading Speech that is referred to in paragraph 89 of our submissions, but so far as the respondent relies on the Second Reading Speech as of subsequent legislation, I would just ask the Court to note footnote 38 should assist the Court by saying that is our tab 10 and it is page 1771, if the Court could just write that in, and in paragraph 92 at footnote 41, if the Court could just write in the respondent’s tab 6.  I have addressed 12.2 and 13, 14, 15.  I am content to rely upon our written submissions. 

FRENCH CJ:   Thank you, Mr Heywood‑Smith.  Yes, Mr Livesey.

MR LIVESEY:   If the Court pleases, four points by way of reply.  First, as to section 53 and the submission that one can fasten on to a period of time rather than an incident or a motor accident, that is an approach which is divorced from the words actually used, in particular the definition section, as well as the ordinary conception of what a motor accident involves.

KIEFEL J:   Well, it involves – on the view of Wicks it would involve more than a collision, though, would it not?

MR LIVESEY:   With great respect, Wicks was a ruling made on legislation which used, amongst other words, the words “being in peril” and that notion of “being in peril” was the basis upon which the Court made its ruling that the rescuers in that case, coming upon the carnage of the railway accident, saw or came within the requisite statutory test.  That is very different to the notion used here of presence at the scene of the accident when the accident occurred.

My friend accepts that perception is necessary and, with great respect, that is correct.  As your Honour Justice Kiefel and Justice Keane pointed out, it is very difficult to associate presence without perception.  That, indeed, explains the two limbs of the test, the traditional nervous shock cases requiring propinquity between the horrifying circumstances of the accident scene and, on the other test, the relationship that Mrs Coffey had with her husband and the later effects of the motor accident at the scene of the hospital.

Just to throw up two illustrations for why it is submitted that this is not something about a period of time, the first is the plaintiff’s own evidence which is extracted at paragraph 7 of our argument.  At page 2 of our submissions, the Court will see that the five trips are there extracted and the plaintiff describes, for example, 7.1, he:

did not think anyone had been seriously injured –

Paragraph 7.2, he saw the:

emergency vehicles but did not pay a lot of attention –

Paragraph 7.3:

things were still going on but he did not take notice of anything specific.

Paragraph 7.4, he noticed that the car:

had been cut open and that it was apparent from that damage that someone had been, if not quite horrifically hurt, then killed.

but no distressing observation, no distressing event and certainly no distress in him, and, as Mr Doyle reminds me, this on the evidence was after the death and outside the period for which the respondent contends.  The second illustration which reinforces the importance of the use of the word “incident” is provided by situations that we can all remember.  An example of that would be the Beaconsville miners who were trapped for a number of days.  Is it seriously to be suggested that that period classifies as an incident?  Or the accident further back in time involving Mr Stuart Diver at Thredbo where he was trapped for a number of weeks, can it seriously be suggested that that classifies as an incident?  In my submission, it cannot.

Finally on section 53, my friend, indeed, goes to the chapeau of section 77 and suggests that that is significant.  With great respect, Justice Giles makes it clear in the passage behind tab 9, page 173, about line 22 on that page, that the words in the chapeau of injury in the accident are described by his Honour as “the additional requirement” and that underlines the spatial and temporal requirements that he had considered in the first part of that passage. 

In short, that aspect of the definition of the section does not detract in any respect from its utility as an authority which reinforces the view of section 53 for which we contend.  I ought not overlook, in that respect, that Chief Justice Miles considered – and this is set out at footnote 29 – the potential for complications in particular factual circumstances but, again, reinforced the need for a moment in time.  Can I then move to the evidence that my friend highlights regarding the relationship between the brothers in this case and provide four references?  Appeal book page 39, line 23, the plaintiff described the relationship as “strained”.

NETTLE J:   What is the relevance of this evidence?

MR LIVESEY:   Insofar as my friend sought to invoke what Justice McHugh had said in Gifford, the evidence suggested that this was not a close relationship – not a close and loving relationship.

NETTLE J:   One is to suppose that the relationship between siblings is close for the purposes of assessing duty.  You both agreed about that.

MR LIVESEY:   Yes.

NETTLE J:   So what is the point of looking at what, in fact, was the situation?

MR LIVESEY:   My friend calls in aid Justice McHugh’s approach which suggests either a fixed rule or a question of proof in any given case.  The short answer to Justice McHugh’s obiter comments at paragraph 50 is that no other member of the Court adopted them and insofar as he was adopting a new approach, no other member of the Court shared in that.

NETTLE J:   So you say it is a question of fact that we need to decide.

MR LIVESEY:   No, I do not.  I say, insofar as the respondent seeks to adopt that as an approach, the evidence is against that approach.

NETTLE J:   I am sorry I am being obtuse about this ‑ ‑ ‑

MR LIVESEY:   Not at all.

NETTLE J:    ‑ ‑ ‑ but is it contended by the appellant that the relationship between siblings is not necessarily such that one may infer for the purposes of deciding duty that it is close?

MR LIVESEY:   Standing alone, it is not sufficient.  That does not mean that it is not – it may not be assumed in most cases that it would be a close relationship. 

NETTLE J:   But may be countered by the evidence, you would say, and is countered in this case.  Is that it?

MR LIVESEY:   Yes, that is it.

NETTLE J:   I see.  Thank you.

MR LIVESEY:   Appeal book page 40, line 20:

never had a lot in common –

and – sorry, the evidence of the psychologist at appeal book page 338, line 20 – they had not spoken much, in contrast to appeal book page 341, line 20, a reference to the friend, “Gav”, who committed suicide, the plaintiff described him as much more like a brother than was Scott.  My third point concerns the contention that section 33 is a code.  In my submission, that contention should be rejected for three reasons.  First, the language does not suggest that effect and, in that connection, this Court in Wicks said at paragraph 22 that nothing in the section:

identifies positively when a duty of care . . . should be found to exist.

There is an assumption that there is a pre‑condition, not a conclusion, if section 33 is satisfied.  Second, this Court in Wicks at paragraph 33 emphasised that duty is “a question of law”.  There are a range of common law techniques for the determination of duty beyond reasonable foreseeability.  Examples include the assessment of coherence.  It is not likely that those common law techniques and the common law duty analysis were simply swept aside by the insertion of section 33 in favour of a test based on foreseeability alone.

Third, if it is correct that 33 operates as a code, that has the perhaps remarkable consequence that mental harm is therefore to be determined only by having regard to foreseeability and in a less demanding way than physical harm.  As Justice Gaudron pointed out in Tame at paragraph 46, foreseeability is not sufficient even in cases of physical harm.

My fourth and final point concerns the dispute between the parties about the level of abstraction of which one classifies this case.  In my submission, that is resolved by appreciating the purpose for which classification is undertaken.  That purpose is so as to assist in defining, prospectively, whether the plaintiff is a member of a class whom the defendant ought reasonably to have had in contemplation.  In that sense, the tension between section 33 and the common law – 33 referring to the circumstances of the case and the common law looking at classification in a prospective way – is resolved on the facts of this case by abstracting from the facts of this case those key facts which allow one to draw a conclusion about which the plaintiff fell within a class whom the defendant ought to have had in contemplation.

So, on the facts of this case, presence at the scene becomes important for that reason.  It is not merely a question of ticking the box, as it were, it is presence at the scene where one is more inherently likely to see something horrific or distressing.  That is a recognised class as is the recognised class of rescuer. That explains the rules or what were formerly described as proximity factors, ways of looking at the definition of a class.  Here, on the evidence, the plaintiff does not describe seeing anything distressing.  He does not describe being distressed.

It is certainly not, in my submission, meaningful to suggest that a class of those who do not see anything distressing – though they travel through the accident scene – is something which a defendant ought reasonably to have had in contemplation.  In that sense, the absence of cross‑examination of the plaintiff about that underscores the essential weakness in the plaintiff’s case.  Justice Gaudron in Tame at paragraph 52 emphasised that:

Save for those who fall within the “direct perception rule”, as extended by this Court in Jaensch v Coffey –

recovery will depend upon a “special” relationship as between plaintiff and defendant and I need not repeat my submissions about Annetts’ Case and Gifford’s Case.  In Justice Hayne’s decision at paragraph 280, he emphasised that difficult cases are thrown up where there is no relationship between the plaintiff and the defendant apart from, as he described it at paragraph 280:

whatever connection is provided by the defendant’s negligent conduct . . . It is in these kinds of case that it has been thought necessary to find something more than foreseeability –

It is for that reason that, I submit, that this is a case of mental illness caused by communication.  That is clear on the evidence, and because that is potentially a very broad class – the Alcock Case is an example of it, communication not merely by the bearers of sad tidings but by electronic means – these types of cases epitomise the need for caution. 

Alternatively, if one is to adopt the classification that the respondent contends for, as specifically as the respondent contends for it, one is looking at, in prospect, a case of a family member who travels past the scene of the accident, who has first‑aid training, who does not stop because that person is in a hurry, who later experiences an irrational guilt reaction and, thereby, mental illness.  In my submission, that is not a reasonably foreseeable class of person likely to experience a mental illness.  If the Court pleases?

FRENCH CJ:   Thank you, Mr Livesey.  The Court will reserve its decision.

AT 10.56 AM THE MATTER WAS ADJOURNED