King v Philcox
[2015] HCATrans 50
[2015] HCATrans 050
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 TUESDAY, 10 MARCH 2015, AT 2.14 PM
Copyright in the High Court of Australia
MR M.C. LIVESEY, QC: If the Court pleases, I appear with MR B.J. DOYLE, for the appellant.(instructed by Finlaysons Lawyers)
MR P.A. HEYWOOD‑SMITH, QC: If the Court pleases, I appear with MR G. STATHOPOULOS, for the respondent. (instructed by SE Lawyers)
FRENCH CJ: Yes, Mr Livesey.
MR LIVESEY: If the Court pleases, there are two points raised for determination on this appeal. The first is whether this Court should now recognise a common law duty to avoid causing mental harm caused by the hearing of news of the death of a family member who was not a parent or child and where there was no prior employment relationship or assumption of responsibility by the defendant. The second point concerns whether the requirement in section 53(1)(a) of the Civil Liability Act (SA) for:
present at the scene of the accident when the accident occurred –
is satisfied when the plaintiff sees the aftermath. If I might put the question of duty into its historical context, as with pure economic loss cases, pure mental harm cases have raised difficult questions concerning when a duty of care should or should not be recognised. In addition, they have also raised difficult questions about what matters in addition to reasonable foreseeability justify recognition of a duty of care at common law.
As with pure economic loss, there is exemplified in this area judicial caution. Four of those concerns were articulated by Justices Gummow and Kirby in Tame’s Case at paragraph 192. First, the problem that psychiatric illness is not objective and can give rise to problems with it being feigned or there being disputes amongst experts about its recognition. Second, there can be problems with litigation operating as a “disincentive to rehabilitation”. Third, full recovery can give rise to problems, or at least fears, of “indeterminate liability” and, fourth, recognition of liability in this area can give rise to what is regarded as an “unreasonable . . . burden on defendants”.
FRENCH CJ: Do you start with a proposition about the extent of the common law duty of care unaffected by the statute?
MR LIVESEY: No, my submission is that one starts with section 33, but the resolution of 33 is necessarily informed by the common law and, in particular, this Court’s consideration of the common law in both Tame and Gifford’s Case as well as more recently in Wicks. But the considerations which informed recognition of the duty of care in those cases, or the rejection of a duty of care in those cases, will likewise become relevant when determining whether a duty of care is owed having regard to section 33.
In that sense, section 33 forms a part of a single question: is there or is there not a duty of care? Inherent in that question is a determination of reasonable foreseeability. I will come back to that in a moment because reasonable foreseeability is infused, as the judgments in Tame and elsewhere recognise, with policy considerations, but because this Court has held on at least two prior occasions that reasonable foreseeability is necessary but not sufficient and that there are other matters that need to be taken into account, those are matters which are to an extent only supplied by subsection (2) of the Act – section 33(2) – but there are others and I will come to those in a moment.
In my submission, those other considerations which bear on whether or not a duty of care should be recognised and which inform judicial caution in this area are as follows, or at least three others are as follows. First, the forensic and practical difficulties associated with recognition of a duty to avoid causing mental harm and the distinguishing of that from the ordinary incidents of life, including grief, and in due course I will be coming to the Diagnostic and Statistical Manual of Psychiatric Disorders volume 5 and the way in which far from illuminating that issue has made it in one sense much more complex, suggesting that it may not be appropriate – as has hitherto occurred – to leave that issue to the determination of psychiatrists and their recognition of what is or is not a psychiatric illness.
A further aspect of this forensic and practical problem is the, some might say, relatively undemanding test of causation – fault needing to be only a cause before all of the incidents associated with a plaintiff’s harm are visited on a defendant. Allied to that is the absence of any proportionate liability legislation, the common law position being that because joint civil liability applies then the defendant who is sued who may be selected by a plaintiff will be visited with all of the harm associated with a plaintiff’s psychiatric illness, and finally, associated with that is only in some jurisdictions is contributory negligence by the deceased ‑ that is to say the victim whose plight gives rise to the nervous shock ‑ will be reflected in a reduction in a plaintiff’s damages. I accept that that is a controversial issue and it may play out in different ways in different cases but it serves to reinforce that a defendant in these settings can be visited with all of a plaintiff’s harm regardless what the competing considerations may be.
FRENCH CJ: Some of these things seem to be ranging more widely than the issues which I thought were before us in this case.
MR LIVESEY: With respect, no. These are reasons why one would or would not recognise a duty of care, having regard to section 33 and the common law. Having regard to what is described in the cases as the ordinary processes of the common law and the determination of a duty, that is the favourable and countervailing considerations that one would have regard to.
KIEFEL J: If section 53 applies, however, is it necessary to attend to section 33?
MR LIVESEY: With respect, it is. As this Court recognised in Wicks, it is necessary to determine the question of duty before one comes to the operation of section 53. Wicks suggests that there is a sequential approach that one looks at the question of duty, having regard to the Act and the common law, and having formed a view about duty, then move to section 53 as to its restrictive effect.
FRENCH CJ: But your contention is it does not matter whether there is a duty of care or not, you must succeed because of section 53.
MR LIVESEY: Ultimately, that is so. So far as the appellant is concerned, the appellant would succeed if he succeeds in negating the duty of care which was found to exist in the Full Court, or if he demonstrates that the plaintiffs did not satisfy the burden of overcoming section 53.
KEANE J: Indeed, does not section 53 operate on the footing that there might otherwise be a duty?
MR LIVESEY: With great respect, that is so. Section 53 assumes ‑ and may I, with respect, turn that up? That is in case book 2 behind tab 14. That is authority 14 on the appellant’s list. In contrast to the language used in section 33 which clearly fastens on the question of duty – 33(1) in particular – 53(1) refers to damages ‑ that is, the consequence of a finding of duty, “may only be awarded for mental harm if” – then the matters that follow. So, really, in conformity with ‑ ‑ ‑
KEANE J: So why would not all those reasons for caution that you have been taking us to, why would not one see them as reflected in the line that is drawn in section 53 rather than in the rather more diffuse language of section 33?
MR LIVESEY: Primarily because the question of duty needs to be determined, having regard to section 33 and the common law approach to the determination of duty. Because section 53 starts with damages, it assumes that the duty question has already been determined. It assumes that a decision has been made about section 33 and then sequentially considers whether damages should be awarded, notwithstanding the existence of a duty of care.
KIEFEL J: Can section 53 be approached on hypothetical assumption of duty of care in favour of a plaintiff or is there necessarily something in section 33 which informs section 53?
MR LIVESEY: That is certainly what occurred in Wicks’ Case and this Court suggested in Wicks’ Case – not without some misgiving – that because of the way in which that litigation had been progressed to that stage it was necessary to remit the question of duty. The Court expressed the view that it was necessary to first determine the question of duty before one then determined sequentially the next stage of the operation, in that case of section 30, in this case section 53.
There are other, in my respectful submission, reasons why one would not necessarily simply move straight to section 53. It may be in a given case that one is dealing with a situation which is not governed by section 53. One would then need to determine the question of duty without moving first to 53.
KIEFEL J: That is as may be, but where section 53 is involved, does Wicks say what it is about section 33 which provides some of the context for section 53?
MR LIVESEY: Case number 12 on our list, Wicks at paragraph 15, about five lines down the plurality said this:
To begin inquiries by asking whether s 30(2)(a) of the Civil Liability Act is engaged –
that is the counterpart to 53 –
without first deciding whether State Rail owed a duty to each appellant to take reasonable care not to cause him psychiatric injury, was to omit consideration of an important anterior question. To examine the content of the limitation . . . without a proper understanding of the provisions affecting duty runs the risk of reading the limitation divorced from its statutory context.
GAGELER J: Are you saying that we need to address the common law question before we can address the statutory question in section 53?
MR LIVESEY: That is my understanding of what the Court said at paragraph 15 in Wicks, that one needs to form a view about the extent of the duty that one can then form a view about the extent of the statutory limitation, absent which there is the risk of reading limitation divorced from its proper context. I accept that in Wicks itself the case went up on the basis that the contest was over the section 53 counterpart and ultimately the case was decided in this Court on that basis, but it then needed to be remitted so that the duty question could be resolved and the Court, as appears in the decision, was not entirely satisfied with that approach.
GAGELER J: If you win on section 53, you get the relief that you seek in the appeal, do you not?
FRENCH CJ: That was a reflection upon the approach taken in the Court of Appeal, was it not?
MR LIVESEY: With respect, the ‑ ‑ ‑
FRENCH CJ: Paragraph 15.
MR LIVESEY: Yes, it was, and the way in which the case was framed I think before the Acting Judge in the first instance and then in the Court of Appeal, that is so.
FRENCH CJ: It is logically anterior but that does not necessarily require ‑ depending on the nature of the case, that does not preclude a consideration of the limitation on damages recovery as a step if that step were dispositive. I am not saying that it is in this case but it is just the linkage beyond the statement of logical – the proposition of logical sequence that I do not quite understand, how 53 feeds back into the earlier consideration or the earlier consideration affects 53.
MR LIVESEY: That, with respect, as I understand Wicks, that one determines the question of duty then moves to the question of limitation to determine the operation of the limitation. For example, in Wicks’ Case itself, although the counterpart to section 33 was framed in terms of mental harm, the counterpart to section 53 was framed in terms of mental or nervous shock, so there was an obvious risk of disconnection between those two. I should emphasise also, in answer to your Honour the Chief Justice, that at paragraph 35 of Wicks, both parties before this Court in that case urged the Court not to resolve the question of duty. That does not appear to be the approach here and, indeed, it was not the approach before the Full Court where the question of duty was argued, as well as the question of the operation of section 53.
FRENCH CJ: You see this case as one involving an incorrect extension of the duty of care. What do you say is the correct extant formulation of the relevant duty of care that you would accept – and by reference to authority, of course?
MR LIVESEY: Yes, certainly. The outer limits appear to have been chartered by cases such as Mt Isa Mines v Pusey. That was an employment context.
FRENCH CJ: How about giving me the proposition.
MR LIVESEY: Certainly. Where there is a prior employment relationship, the nature of the relationship between plaintiff and defendant will give rise to a duty to avoid causing mental harm by communication. Quite apart from Pusey’s Case, that is the ruling in Gifford’s Case and different, but allied to it, where there is an assumption of responsibility by a defendant as there was in Annetts’ Case to take care for a minor who was an employee and that can give rise to a duty to avoid causing mental harm to the parents of that employee.
FRENCH CJ: What is the duty of care of a driver?
MR LIVESEY: It is the ordinary duty of care to take care not to cause harm to others, including physical or mental harm, in a motor accident. But, as the decision of this Court in Jaensch v Coffey demonstrates, that has traditionally been circumscribed by considerations of temporal and spatial nearness. This Court, of course, said in Tame, that those were not pre‑conditions, but it also said that those matters remained relevant to the determination and content of the duty.
So it is submitted by the appellant in this case that where all of those factors are here absent, there is no assumption of responsibility. There is no prior employment relationship. There is no nearness in space and time to the circumstances of the motor accident, but mere communication of the as it is sometimes put “bad news” does not give rise to a duty of care and the relation of sibling is not to be equated to the relation of parent and child, or child and parent, as it has been in the cases I have just mentioned. There are a number of reasons for that. Chief amongst those is the practical and legal vulnerability of a child and, on the other side, the nature of a relationship as between parent and child which more naturally gives rise to the risk of psychiatric illness in the event of misfortune to either of them.
KIEFEL J: Section 33(2) is, however, not an exclusive list.
MR LIVESEY: That is so.
KIEFEL J: Do you rely upon – we have talked in passing thus far about section 33 being used in aid of construing section 53. Do you rely on the reverse? Do you rely upon section 53 as restricting the scope of the duty of care? It would seem to put out of the picture damages and then one might inferentially argue, as a matter of statutory construction, a duty being owed to a person who was not, relevantly for this case, present at the scene of the accident.
MR LIVESEY: In the same way as the attraction of moving to a second issue in some senses appeals, your Honour’s proposition in a sense appeals, but the difficulty, with great respect, is that a counterpart to section 53 is not uniform across Australia and so it would be difficult to give, in accordance with common law principle, content and effect to the duty which arises as part of the Australian common law, influenced as it is by section 33, when there are such disparate and varying versions of section 53 around the country. To take that to its logical conclusion, that would run the risk, in my submission, of there being different considerations bearing on the duty of care in different jurisdictions which, of course, would run counter to the notion of an Australian common law.
NETTLE J: Is it a common law duty or, as you said before, one question in which the common law forms part of answering the issue raised by section 33?
MR LIVESEY: In my respectful submission, it is a common law duty informed by the requirements of section 33. That is to say, insofar as the common law contained within it a reasonable foreseeability analysis, now that is prescribed by section 33, but the overall question remains the single question whether there is or is not a duty of care at common law.
GAGELER J: And your argument that there is no duty of care at common law comes down to drawing a distinction between a sibling and a spouse or a child.
MR LIVESEY: With respect, that is a consideration but rather upfront is the question that there is no anterior employment relationship or assumption of responsibility. If one was to sweep that away just for the moment, absent those factors, the mere filial relationship has never in itself been recognised as grounding a duty of care at common law.
GAGELER J: So, if the facts here were identical – save that the plaintiff was a parent or a spouse – would there be duty of care?
MR LIVESEY: In my submission, no. Absent an assumption of responsibility, absent an employment relationship of or, indeed, absent – as they were described then – the proximity factors that influenced this Court in Jaensch v Coffey.
NETTLE J: There was no assumption of responsibility in Jaensch v Coffey, it was just temporal and physical proximity which did the day.
MR LIVESEY: With great respect, that is what I was moving to.
NETTLE J: There is a lot of temporal and physical proximity here, too, is there not?
MR LIVESEY: No, with respect.
NETTLE J: After all, he did go to the scene of the accident which is a greater degree of proximity than there was in Jaensch.
MR LIVESEY: Yes, but unlike Jaensch – and one can deal with this in two steps. The first step is the unusual fact of moving through the intersection on five occasions. The critical feature of that – and the point of distinction with Jaensch v Coffey – is that at no time during those series of traverses was the plaintiff in the slightest disturbed by what he saw. He did not describe that in his evidence. He did not describe it to the psychologist. He did not describe it to the psychiatrist.
The rationale for the control factors – even though they have been disregarded as pre‑conditions – of course is the common sense one. This is described by Justice Brennan in his decision at 567 that one ordinarily associates seeing the traumatic event with something which is much more likely to give rise to illness. Now, where the event is seen but does not give rise to any distress, then one satisfies that requirement as a matter of form rather than substance.
NETTLE J: But it was surely the fact that he saw what he did at the scene which was in the end causative of his mental condition, once it was revealed to him what he had in fact seen.
MR LIVESEY: That was answered, really, by the evidence of the plaintiff and by the evidence of the psychologist and the psychiatrist. The plaintiff, in his evidence, described becoming distressed on receiving the news and that, it is true, set in train a process of rumination – the “what if” question and a process of somewhat irrational guilt. But the psychologist and the psychiatrist made it plain that it was the learning of the death which gave rise to the illness, not the having fortuitously been at the scene earlier during the day.
Nothing about that played a part in his psychiatric illness. His psychiatric illness was, as he conceded at one point in cross‑examination, really akin to that of bereavement. This being a setting where, on the facts, these brothers simply did not get on and there was that sense of “what if” through no longer having that brother to, in a sense, make up a relationship with – to restore a relationship with.
KIEFEL J: Did the psychiatric evidence go so far as to suggest that his presence and what he saw at the scene, even if it was a result of later reflection, was not a factor?
MR LIVESEY: If your Honour would pardon me a moment. In appeal book, page 335, the report of psychiatrist, Dr Ewer, said at page 353 at about point 38 on the page, the Court will see the paragraph commencing “Determining whether”. It was the last sentence in that paragraph commencing “I can however say that”.
KIEFEL J: Is this 353?
MR LIVESEY: Page 353. Your Honour, in my book I have two numbers at the top right of the page – 353 and 869. It is page 19 of 27 of the report.
FRENCH CJ: This is the paragraph beginning:
Determining whether Mr. Philcox was present –
MR LIVESEY: Thank you, your Honour, yes:
I can however say that any psychological problems . . . were due to Mr. Philcox’s brother dying rather than as a result of what Mr. Philcox saw –
And there was a further comment by the psychiatrist at – I am sorry, just to round that out, the trial judge at appeal book page 410, paragraph 101 of her reasons, made the finding that there was “no causal link” between what Mr Philcox saw “and the injuries that he developed”. I should provide just one further reference to Dr Ewer’s evidence which appears at page 355 of the appeal book, third to last paragraph, commencing:
Mr. Philcox’s psychiatric illness came on as a result –
KIEFEL J: Can I just take you back to that finding of the trial judge at paragraph 101?
MR LIVESEY: Yes.
KIEFEL J: Why is the trial judge there dealing with this question in connection with section 53(2)?
MR LIVESEY: Her Honour took the view – and we do not support this particular aspect of her Honour’s legal reasoning – that there was a causal requirement as regards 53(2).
KIEFEL J: I see.
MR LIVESEY: But the finding that she makes is, nevertheless, supportable on the evidence that I am taking the Court to at the moment. At appeal book page 355, second sentence in that passage:
Indeed he was not particularly distressed before this and he continued doing his tasks which included dining with his then girlfriend.
rounding out my answer to your Honour.
NETTLE J: Yes. Thank you.
MR LIVESEY: That was not, in any sense, undermined by the evidence of the psychologist and, in this sense, in rejecting the argument that I have just alluded to, Justice Gray seemed to put, in the Full Court, a great store on the psychologist rather than the psychiatrist. Why he did so is, with respect, unclear because when one looks at what the psychologist had to say – and this is at appeal book page 291 – her view was that Mr Philcox’s condition was the result of the motor accident. She makes that conclusion on the basis, really, that there was:
a direct temporal link between the motor vehicle accident death and the development of the condition, in that the latter developed directly after the former.
and it does not go any further than that.
NETTLE J: You have taken us to the trial judge’s finding of the causation or cause. As you point out, the Court of Appeal before the Full Court’s decision was to the contrary. They found a causal link between what he observed at the accident and the loss he suffered.
MR LIVESEY: In this setting, the issue is not as regards 53(2), it is only as regards what it is that the plaintiff saw as regards the defendant’s negligence.
NETTLE J: I quite understand that. We come to 53, still back at 33 on the question of duty.
MR LIVESEY: Yes.
NETTLE J: You rightly say the trial judge found in your favour on causation that there was no injury the consequence of having seen the remnants of the accident as he did.
MR LIVESEY: Yes.
NETTLE J: But you have got a contrary finding in the Court of Appeal against you on that point, have you not?
MR LIVESEY: Only on the 53 question, not on the 33 question. Insofar as the court took that step, it did so really on the basis of a favouring of the psychologist over the psychiatrist, and when one looks to the psychologist’s evidence, that still makes good the proposition for which I am arguing at the moment; that is to say, that nothing seen at the scene of the accident gave rise to illness.
NETTLE J: Thank you.
GAGELER J: Is this in your notice of appeal?
MR LIVESEY: A challenge – on 53, no.
GAGELER J: It becomes a question of fact, where you are asking us to prefer the trial judge’s view of the facts to that of the Court of Appeal’s.
MR LIVESEY: With respect, the submission…..the evidence as a whole supports the submission I have made. Even allowing for the finding made by the Full Court based on the psychologist’s evidence, that too supports the submission I have made. It is not necessary to go a step further of overturning the Full Court’s finding on causation.
NETTLE J: Well, I think it is, if you are going to meet the point about duty which we were discussing beforehand. I put it to you that temporally and physically, the degree of proximity involved here was not far removed from Jaensch for the reason that the claimant had gone to the scene of the accident, albeit after the collision, and suffered injury as a consequence of what he saw, albeit that it only arose when he was later informed of the nature of what he had seen.
You answered that by saying there was a finding, and indeed evidence at trial, that nothing which he saw at the scene was causative; it was all due to what was later revealed to him. But we do have a finding, it appears to me at the moment – and I express this only as a tentative view – in the Court of Appeal that there was a causal link between what the man saw at the scene of the accident, and the loss that he later suffered.
MR LIVESEY: With respect, Justice Gray’s finding appears to go no further than a preference for the psychologist over the psychiatrist.
NETTLE J: That is a fair point, but there it is.
MR LIVESEY: The evidence of the psychologist supports the submission I made. The evidence of the psychologist, as appears at page 291 of the appeal book, shows that the relevant link is between the motor accident death and the development of the condition. There is no suggestion in the evidence of the psychologist that the things seen at the scene of the accident gave rise to illness.
FRENCH CJ: There are two elements to your first ground of appeal in relation to the duty of care. The first is an error of law on the part of the Full Court in finding that the existence of a duty of care was determined solely by reference to section 33(1) – that is a question of law – and secondly, the challenge to the finding that a reasonable person in the position of the appellant would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, have suffered psychiatric illness.
MR LIVESEY: Sorry, Chief Justice, my ‑ ‑ ‑
FRENCH CJ: We do not need to canvass all of the ‑ ‑ ‑
MR LIVESEY: Your Honour, I accept that.
FRENCH CJ: Thanks for that.
MR LIVESEY: My submission was simply directed to this, that when one looks at where this case fits in the category of cases already decided by this Court, this is a case which fits within a category of nervous shock by communication or by news, not a case where things seen or heard at the scene of the motor accident gave rise to illness, or in the case of Mrs Jaensch, the things that she saw and heard at the hospital during the course of immediate post‑accident treatment.
It is on that basis that I submit to the Court that this case stands outside the recognised boundaries to date, and that it would be necessary to take a further step, an extension of the scope of liability which is being recognised to date, in order to grant a duty of care in this case. Might I move to, in the circumstances, the question of the existence of a duty of care being determined solely by reference to 33(1), and in that connection, might I invite the Court to take out Wicks’ Case ‑ ‑ ‑
FRENCH CJ: Before you do, can you just take us to the passage in the Full Court where you say reliance is placed solely upon 33?
MR LIVESEY: Certainly; paragraph 22.
FRENCH CJ: Page?
MR LIVESEY: At appeal book 430 – I am sorry, paragraph 20.
FRENCH CJ: Page 430 – I am sorry?
MR LIVESEY: Paragraph 20, appeal book page 430.
FRENCH CJ: Thank you.
MR LIVESEY: The starting point at 19 is a reference to what the trial judge did, and I will come back to that in a moment after answering your Honour the Chief Justice’s question. At paragraph 20, his Honour refers to the observations of the High Court in Wicks, and suggests that they have direct application to section 33. In a sense, that is true, but the point of the Wicks decision, particularly at paragraph 22 of that case, was that a reasonable ‑ ‑ ‑
FRENCH CJ: I am just having some difficulty in reading 20 as a statement that 33 is exhaustive of the duty of care.
MR LIVESEY: Well, apart from referring to section 33, nothing else is referred to; nothing else is identified. The Court was taken to the ‑ ‑ ‑
FRENCH CJ: Well, that may be an inadequacy in the expression. Whether it supports your characterisation of the decision is another matter.
MR LIVESEY: If there is any doubt about it, in my submission, it is resolved by the last sentence:
It was reasonably foreseeable that a sibling coming upon the scene . . . including its aftermath would, on hearing of [the] death, suffer mental harm.
Nothing further is considered. In Wicks’ Case at paragraph 22, this Court made the point that the reasonable foreseeability inquiry was necessary, but not sufficient. In its context, what his Honour was doing was having – the point about whether or not the trial judge had made an error, and there was no doubt that that is what the trial judge did; that is to say, it relied only on 33. That can be seen at appeal book 399, paragraph 27, second sentence. Section 33:
codifies what would otherwise be a common law duty –
Then after considering various requirements, his Honour concludes at appeal book 409, at 91 and 92 ‑ ‑ ‑
FRENCH CJ: Do you accept that a duty of care was not front and centre at the trial?
MR LIVESEY: Yes.
FRENCH CJ: I think the respondent says something about that in the submissions at paragraphs 11 and following.
MR LIVESEY: The respondent does, but it is clear from the way in which the judgment is written that there was no concession about duty ‑ ‑ ‑
FRENCH CJ: No, no; one wonders why there is a fairly elliptical reference to “duty of care”. It may be explained by the trial context.
MR LIVESEY: With respect, it is not an elliptical reference because although I have only gone to two passages, what comes in between those passages is a very lengthy dissertation, as it were, on section 33 and the four circumstances identified in section 33, commencing at paragraph 63 and concluding at 92, as I indicated. There was a very detailed analysis by her Honour of that aspect of the duty question – as I say, going only to foreseeability.
It is also said against us that the notice of contention in the Full Court articulated a narrower proposition. With respect, that is not so. The notice of contention, which appears at appeal book page 421, raised the question of duty, and of course foreseeability formed a part of the broader duty inquiry. It is really on that basis that the errors by the trial judge adopted by the Full Court, or at least not corrected by the Full Court, are inconsistent with the approach of this Court in Wicks at paragraph 22, and in addition, there is a failure by the Full Court to consider the policy considerations which were put to it about whether or not a duty of care should be recognised, or that step should be taken, in the circumstances of this case, it being a case of nervous shock by communication.
Might I turn to Tame’s Case, really to support the proposition that the question of foreseeability involves policy considerations, and those policy considerations are considered in a context where a number of the judges returned to Lord Atkin’s speech in Donoghue. Tame is case 10 on our list, and for present purposes, it is sufficient to go to the decisions of Chief Justice Gleeson and Justice McHugh, and the Court will see in Chief Justice Gleeson’s decision at paragraph 9, he starts with Lord Atkin, then at 12 articulates foreseeability of the kind of injury being:
A necessary, although not sufficient, condition of the existence of a legal duty –
Then at the foot of paragraph 12, the sentence commencing “It is important that” – I will come back to this, but the Court will see that the Chief Justice was concerned with whether recognition of the duty was appropriate, given that it was:
bound up with the question whether it is reasonable to require a [defendant] to have in contemplation the risk of injury that has eventuated.
Then at 13, the last three lines, the Chief Justice emphasises, as do the other judges, the relationship between the plaintiff and the defendant, which was of course here absent in this case. The only relationship between the plaintiff and the defendant was through the medium of the motor accident and the death, whereas what the Chief Justice is referring to at the foot of 13 is the relationship, as becomes clear in his resolution of the case, between the plaintiff parents and the defendant employer, given the assumption of responsibility between the two of them. That consideration is repeated in Gifford’s Case, where the Chief Justice again comes back to the nature of the relationship between the plaintiff and the defendant as grounding the duty of care.
NETTLE J: But you would accept that a relationship between the deceased and the plaintiff can be sufficient in appropriate circumstances? Jaensch is the paradigm.
MR LIVESEY: With respect, only if the other requirements, or, since Tame, the other considerations are made out; that is, closeness in time and space giving rise to the psychiatric illness.
NETTLE J: What we used to but are no longer allowed to call “proximity”.
MR LIVESEY: Quite so. Indeed, one of the features of Tame’s Case is that almost all of the judges go back to Donoghue v Stevenson, Lord Atkin’s expression of the “neighbourhood” principle and his reference to proximity; that is to say, the nearness or closeness between the plaintiff and the defendant – they do that in different ways, but the judges are clearly concerned with identifying the characteristics of that relationship which ground the duty of care, and are at pains to point out that on the facts of Annetts’ Case, the prior relationship was sufficient together with the kind of harm.
In the case of Tame, it simply was not reasonably foreseeable at all. So I think it is Justice McHugh in particular who gives work to the proximity requirement and questions Justice Deane’s articulation of that as a separate negativing element, says that that is not so; proximity is bound up in reasonable foreseeability. Other judges, and I will come to these decisions in a moment, contend for an approach whereby reasonable foreseeability is considered, but then there are further considerations which inform whether the duty is to be recognised or negatived.
Might I then move to Chief Justice Gleeson’s decision at paragraph 14? What his Honour does there is refer to the kind of considerations which render it inapt to recognise a duty, and his Honour refers to the nature of the illness in question. That is particularly apparent in the middle of that paragraph, the sentence commencing “When regard is had”. Then, if I might invite the Court’s attention to the last six lines of that paragraph, where the Chief Justice referred to “floodgates arguments”.
FRENCH CJ: Well, he is eschewing reliance on floodgates arguments.
MR LIVESEY: Quite so, but the risk of indeterminate liability is considered as an aspect of whether it is or is not reasonable for a defendant to have in contemplation the risk of mental harm to others. Then at 15, in a passage that our learned friends rely on, his Honour refers to “commonplace relationships” or recognised categories, and those being:
settled, often against a background of insurance practice.
What our learned friends overlook is the sentence commencing “But defining the circumstances”. So it is submitted in this case that that is a particularly important consideration because of the need for caution.
FRENCH CJ: All this tends to, does it, the proposition – I am looking at paragraph 7 of your outline – that absent “assumption of responsibility” and absent a relationship either of employment “or other special relationship” – which I suppose would pick up “close family” – and absent the respondent actually seeing “anything that distressed him”, the relationship of sibling is insufficient ‑ ‑ ‑
MR LIVESEY: Standing alone.
FRENCH CJ: ‑ ‑ ‑ to support a duty of care.
MR LIVESEY: That is so.
FRENCH CJ: Or standing alone; that is, standing without any of those other things you mention in paragraph 7 of your outline?
MR LIVESEY: Yes.
NETTLE J: If the sibling had gone to the hospital in the circumstances that Mrs Jaensch did, it would not be far removed from her position, would it?
MR LIVESEY: It would not be far removed, but one would then be grappling more closely with the nature of the relationship of sibling and sibling as distinct from husband and wife, parent and child and so forth, but I accept what your Honour says.
NETTLE J: Obviously, siblings are not as close as man and wife, but they are pretty close often.
MR LIVESEY: Often, but not in this case.
NETTLE J: It matters not in this case; it is what the defendant should have had in view and reasonably guarded against.
MR LIVESEY: Yes, but what were hitherto described as “control factors” included not merely filial relationships but the other matters to which I have been referring, all of which are absent in this case. Of course, being in a relationship of sibling and sibling and going to the hospital without more does not take a plaintiff very far, because Mrs Jaensch, on the facts of that case, saw a series of things as her husband, the policeman, was being wheeled in and out of theatre; receiving immediate post‑accident surgical treatment, being told about the lacerated liver and other problems, seeing horrific things ‑ ‑ ‑
NETTLE J: That is why the finding, if it is one in, you say, your favour, that nothing that the man in this case saw at the scene was causative of his loss is so critical, because if anything he had seen there was causative of, then it is very, very similar to Jaensch, if not stronger, from his point of view.
MR LIVESEY: And as I have submitted, the evidence of the psychologist, which was accepted by the Full Court, does not take the plaintiff very far at all in that respect ‑ ‑ ‑
NETTLE J: I know you have said that, but ‑ ‑ ‑
MR LIVESEY: ‑ ‑ ‑ and critically – I am sorry.
NETTLE J: No, you go ahead.
MR LIVESEY: Critically, the plaintiff’s own evidence does not suggest that he saw anything that distressed him. He described a process of deduction, I think, during the fourth visit through the intersection of seeing a car with – I think it was the blue car with the door removed, and the process of deduction was perhaps someone had been horrifically injured, even killed. At no stage in his evidence in‑chief when he was asked these questions did he suggest that he was upset by that or distressed in the slightest by it.
KIEFEL J: Is it necessary at the stage of determining duty of care for the purposes of section 33 for a plaintiff to show that they were, in fact, affected in a particular way or is it sufficient to determine the defendant’s reasonable foresight to look simply at the overall circumstances of a plaintiff and leave questions of causation for later?
MR LIVESEY: With respect, both. In terms of characterising a case as to where it fits and the classification of mental harm cases, formerly nervous shock cases, one is necessarily looking at what it is that gives rise to the nervous shock or the mental harm. Classically, nervous shock was all about the fact that horrific distressing things were seen and gave rise to a shock which assaulted the senses and gave rise to nervous anxiety and mental illness as a result; that is really the burden and the thrust of the former understanding of what nervous shock was, for example, as revealed by what or how Justice Brennan explained it in Jaensch v Coffey.
If one moves away from that approach and away from the terminology of nervous shock, that classification process is still appropriate because as this Court emphasised in Tame’s Case all of those factors formerly preconditions to liability remain relevant in determining the existence and content of a duty of care. So, whether someone is at the scene, whether someone does see something horrific, whether that gives rise to illness and the like, are all relevant. Indeed, in Jaensch v Coffey itself Justice Deane emphasised those matters in the case of Mrs Jaensch but went on to say that what she learned or the process of rumination thereafter did not disqualify her, regrounded the recognition of the duty in those things that gave rise to illness at the scene of the hospital.
FRENCH CJ: So a necessary condition ‑ going back to 7 again just to understand where the argument takes us as between the common law in section 33 and their interaction ‑ so a necessary condition of the duty of care is one of the accepted relationships, as you would put it, or assumption of responsibility, that might even be put into the genus of relationship, I suppose, pre‑existing employment, husband/wife, parent/child.
MR LIVESEY: With great respect, Chief Justice, the relations of husband/wife, parent/child are in a context of those pre‑existing relationships.
FRENCH CJ: Yes, that is right. Well, it fits into that sort of general notion of relationships with which a duty of care engages, as it were. Then, when you look to 33(1) is there an overlap between – I suppose there might be a factual overlap in a given case between the foreseeability issue and the nature of the relationship, but that may depend upon the particular facts of the case rather than categories of case.
MR LIVESEY: Bearing in mind that the question must be answered in prospect and that classification has been hitherto the traditional way of looking at whether a duty is to be owed or is to be recognised as in an earlier precedent.
FRENCH CJ: Section 33(1) would be consistent with accepting a duty of care extending to persons in a relationship of close friendship?
MR LIVESEY: Read literally, if foreseeability carried with it nothing more than what someone might predict might occur, that is so, but as I am endeavouring to show from Tame’s Case reasonable foreseeability is a compound conception, it is not merely a question of fact as Justice McHugh described it at paragraph 108 in Tame’s Case, it is:
a compound conception of fact and value, policy considerations affecting the defendant or persons in similar situations arguably enter into the determination –
FRENCH CJ: Well, you accept the proposition that 33(1) does not exclude the possibility of a duty of care with respect to mental harm in connection with a person who is in a relationship of close friendship with the primary victim?
MR LIVESEY: Literally, no, it does not. There are other considerations bearing on the foreseeability question such as those I have emphasised in Justice McHugh. Even allowing for that there is still a further step in determining the broader question of duty as to whether those other considerations, some of which are borne out in subsection (2), such matters as sudden shock and the like, will assist in the determination whether a sibling relationship is or is not something that would be regarded as reasonably foreseeable.
NETTLE J: Why would it not be reasonably foreseeable to me if I killed my passenger by negligence that his sibling is, if not likely then conceivably very possibly, going to suffer some sort of mental trauma the consequence of seeing the accident?
MR LIVESEY: Seeing the accident?
NETTLE J: Yes, or the aftermath?
MR LIVESEY: If those additional factors were present then that would be a step closer to a case such as Jaensch v Coffey.
NETTLE J: It all comes down to this question of temporal and physical proximity on the facts of this case.
MR LIVESEY: On the facts of this case it comes down to the absence of those factors and it comes down to the relationship not being one that has been hitherto recognised.
NETTLE J: I know you emphasise that but I have taken you to not concede but to accept advice of the Chief Justice’s questions that even close friends would be sufficiently analogous to recognised categories to be acceptable if other circumstances were capricious.
MR LIVESEY: My delay in answering your Honour’s question is really borne of this. One is looking at a selection of facts in any given case necessarily at the relatively high level of abstraction. So, in Jaensch v Coffey one is looking at husband and wife, observation of horrific matters at the scene of a hospital. In that setting, at that level of abstraction, the duty of care was recognised. In Pusey’s Case, prior employment relationship, the employee came to the scene and saw the horrific burns to co‑workers. On the facts of that case the duty was recognised. One can vary those facts and infuse, as it were, a sibling relationship, but one would still need the other elements, the other generalised facts, horrific scene, observation at the scene et cetera, before one would start, in my submission, to recognise a duty of care at law in respect of a sibling or a close friend or the like.
KIEFEL J: But it cannot be lost sight of that the requirement here is expressed in the word “might” in the circumstances of the case and what you are suggesting might be seen as tipping into questions of causation where moving from “might” into “likely to cause”.
MR LIVESEY: My apologies if I have done that. Shirt’s Case and other cases show that the question of foreseeability is not merely an assessment of probabilities or whether something is likely to occur; Bolton’s Case is an example of that.
KIEFEL J: No, it is something less than that, that is the point.
MR LIVESEY: That is true in the sense that it cannot be something which is far‑fetched or fanciful and that is accepted.
KIEFEL J: So it is questions of causation that invariably, in this area, are usually at play. So reasonable foresight is only setting up something as perhaps at a minimum where it is said that no reasonable – no defendant reasonably could be regarded as perceiving this as likely to occur from their negligent act. Accepting that that is the correct approach, why are not the factors that Justice Nettle put to you sufficient for reasonable foresight? The defendant is considering a person whose brother has been killed in an accident. He has observed the aftermath of the accident and later comes to hear of his brother’s death and is able to reflect upon what has occurred. Now, putting aside causation, what medical evidence later shows to be the case, why would that not be sufficient to satisfy the requirement that a person might suffer a psychiatric illness; not is likely to, but might?
MR LIVESEY: One is dealing, in answer to your Honour’s question, with simply the question of foreseeability and it is clear from the decision of this Court in Tame that that is necessary but not sufficient. Second, insofar as one is dealing with foreseeability that policy considerations necessarily intrude and the Court may say a judgment in a sense, a normative judgment, as to community standards of expectation is to – or that something is that which might occur or not. It is not a question simply of whether it is foreseeable, possible without more, the question is a compound consideration and involves more than that and the only ‑ ‑ ‑
KIEFEL J: Can you take us to that part of Tame where – which you rely upon?
MR LIVESEY: Could your Honour take up – can I invite your Honour’s attention to paragraph 108 of Justice McHugh’s decision? It really starts ‑ ‑ ‑
KIEFEL J: I am sorry, 347?
MR LIVESEY: I am sorry, it is at page 357 of Justice McHugh’s decision and it starts with – it starts a little earlier on the page, about point 2 on the page, with a reference to Lord Atkin and the neighbour. I am particularly emphasising passages in 107 in the first two sentences and 108 in the first sentence.
FRENCH CJ: The character of foreseeability as a necessary condition is evident from 33(1) and the word “unless”, is it not?
KIEFEL J: At paragraph 108 his Honour says:
It is unnecessary –
I am sorry, I will withdraw that. It was unnecessary in that case to determine whether it was necessary to prove it was likely.
MR LIVESEY: Might I also emphasise a passage that perhaps I should have paused on earlier in Chief Justice Gleeson’s decision at 331 of the report, paragraph 12 at the last six lines “It is important that”?
FRENCH CJ: Now, is there anything more that you are getting out of this than one actually extracts from the words of the statute in the context of foreseeability?
MR LIVESEY: In terms of foreseeability, I do not think so, in my submission.
FRENCH CJ: You are saying it is a necessary, not a sufficient condition?
MR LIVESEY: In terms of the broader duty question, yes.
FRENCH CJ: Section 33(1) says no duty of care “unless”.
MR LIVESEY: “Unless”, that is so. I have already – in paragraph 13 after referring to Justice Deane in Jaensch v Coffey “relationship” is emphasised by Chief Justice Gleeson, that being, of course, the relationship as between plaintiff and defendant.
GAGELER J: I may not be understanding your argument. Are you saying that there is no foreseeability within the meaning of section 33(1) in this case?
MR LIVESEY: Yes.
GAGELER J: You are. You have another layer to your argument that even if there is foreseeability then there are policy factors at play?
MR LIVESEY: Yes.
GAGELER J: All right.
MR LIVESEY: Really, in support of what I have submitted about the infusion of policy into the determination of foreseeability, unlike a number of the judgments in Tame’s Case, section 33(1) builds in the normal fortitude requirement which itself is regarded by a number of the judges as a control factor or a controlling issue involving normative considerations, something that is looked at in prospect having regard to the hypothetical person in the plaintiff’s position of normal fortitude.
NETTLE J: Sorry, Mr Livesey, there is no suggestion here, is there, that the plaintiff was anything less than of reasonable fortitude?
MR LIVESEY: In answer to your Honour Justice Nettle, yes, there was but whether that is relevant is ‑ ‑ ‑
NETTLE J: It is a good question, I just wanted to know what the position is before I have to finally decide ‑ ‑ ‑
MR LIVESEY: The psychologist’s evidence at 291 emphasises the point I was about to make…..I would have made it ‑ in the middle of the page at 291, page 9 of the report:
It is noted that at the time . . . Mr Philcox would have been considered to be psychologically vulnerable to stress –
that was for a number of reasons. One reason was that he had sustained a series of burn injuries whilst in employment and was on what is described in this State as work cover benefits and was upset about that. He was in precarious employment, being involved in a dispute with the chef. He was also involved in a dispute with his domestic partner, their relationship being in the midst of failing, and he was having some difficulties with access to his children – I am sorry, child, and there was uncertainty about whether he would get access to the child that was as yet unborn.
Whether that is relevant, of course, is the real question and, in my submission, having regard to Wicks’ Case ‑ it probably is not relevant because the question of normal fortitude is answered in a hypothetical sense. If a plaintiff is not of normal fortitude in a sense one moves that to one side, but considers the duty, the foreseeability question as a hypothetical would, in that setting, a person of normal fortitude in the plaintiff’s position, or might a person in the plaintiff’s position be psychiatrically harmed, the answer to that is yes, then the eggshell psyche or eggshell skull rule operates and the defendant is rendered fully liable for the consequences.
NETTLE J: Yes, thank you.
GAGELER J: One way of reading paragraph 20 of Justice Gray’s judgment which you criticise is to say, well, the section 33(1) question informed by the factors in section 33(2) is a question of fact. That fact was resolved – that question of fact was resolved by the trial judge in a way which was open and there are no policy factors in the present case that would negate the existence of a duty of care, that question of fact being resolved in favour of the plaintiff. Is there a problem with reading his Honour’s reasoning in that way?
MR LIVESEY: Two problems that spring to mind. First is that foreseeability is not merely a question of fact, there are other considerations, as I have been endeavouring to point out. Second is that that gives rather a lot of work to do to two very brief sentences, as articulated by his Honour, in a context where it is abundantly clear that the trial judge utterly missed the point that 33(1) was not conclusive.
So, insofar as his Honour drew on the trial judge’s reasoning, that too suggests error. There is a third. The Full Court was taken to the various decisions of this Court on the question of duty and foreseeability, and decisions elsewhere including Alcock’s Case, where nervous shock by communication had not been recognised, and the Full Court was invited not to take the step which this Court has not yet taken of finding a duty of care in what was submitted to be a novel situation, a new situation not previously considered by the High Court. Those cases and those considerations are simply overlooked in paragraph 20.
Might I move then to the broader issues which would inform whether or not a duty of care is to be recognised? I am now moving to 2.4 of the outline. I mentioned earlier the four factors articulated by Justices Gummow and Kirby in Tame’s Case, and might I invite the Court’s attention to paragraph 192 of the decision. This is at page 381 of the report, page 10 on our list. Although these words are not used, this is really an articulation of some of the reasons why judicial caution has been displayed and what appears here, it is clear that their Honours were influenced by the arguments put to the Court by Mr Jackson.
The Court will see the four factors, commencing about seven lines down the page, and might I invite the Court’s attention to the reference to Prosser and Keeton, with which that paragraph concludes. Now, over onto the next page, their Honours draw on United States decisions, and it is clear that Australia fell into the same camp as England, Canada and New Zealand regarding the grief issue; that is to say that grief and sorrow do not sound in damages. That appears about halfway down 193 on page 382.
The distinction is draw with their Honours’ reference to United States jurisdictions where matters short of recognised psychiatric illness may sound in damages, but that is accompanied by a much stricter constricting test for liability that is a requirement that the plaintiff be at the scene when the accident occurs, or sees something associated with – directly associated with the defendant’s negligence. What their Honours do is suggest that with respect to them four lines down:
the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation.
With respect, that is not clear, and that is taken up by Justice Hayne in his decision, where one sees his reference to the factors which have warranted judicial caution. The Court could consider paragraph 254, page 404 of the report, where his Honour refers to the “three, distinct, limiting techniques”, and his Honour points out the problem associated with causation, and might I emphasise the last five lines:
as the causal connection . . . becomes more attenuated, or at least less obvious to a lay observer, what is the point of holding the defendant liable for those consequences? Does the holding the defendant liable truly promote reasonable conduct.
It is said at times and indeed said by the respondent in this case that there is no impediment to the recognition of a duty where the defendant was already under a duty – this is echoing a proposition that your Honour Justice Nettle put to me – already under a duty to take care to the passenger, in a sense where is the harm is taking that a step on and recognising your duty to those who may be harmed in turn.
Putting it another way, how does that meet the laws concerned that recognition of the liability promote reasonable conduct if that conduct is already, or if the spur to reasonable conduct is already in place with recognition of a duty to the passenger so far as physical harm or consequential mental harm is concerned. In other words, there is no reason or justification for the extension of liability beyond the recognition of the duty owed already. But, the thrust of his Honour’s reasoning ‑ ‑ ‑
NETTLE J: That would be true if any consideration were spurring reasonable behaviour, but once one recognises that an equally if not more important part of the law of torts is to compensate those who suffer injury, then there is good reason to take into account that it requires no more to look after the sibling than it does the immediate victim, is there not?
MR LIVESEY: Save this, with respect – at 260, his Honour makes the important point that death, disaster and a range of life’s misfortunates are all part and parcel of everyday existence, and it is not the purpose of the law of tort to compensate for all of those. The Court will see that – I will not read, but simply refer the Court to ‑ ‑ ‑
NETTLE J: No, I know the passage.
MR LIVESEY: ‑ ‑ ‑ what appears at 260, where his Honour makes the important point that it cannot be a function of the law of tort to compensate for all of life’s misfortunes, including the death of loved ones, and the consequences of recognising a duty in those circumstances give rise to the indeterminate liability fears. That appears at 261.
FRENCH CJ: This is just at a fairly high level of abstraction offering cautionary thoughts, as it were, about the risks associated with or the undesirability of drawing the circle too widely in terms of those who attract a duty of care.
MR LIVESEY: Respectfully, it is a very practical problem ‑ ‑ ‑
FRENCH CJ: By reference to some matters which are not an issue in this case. This man suffered a psychiatric illness and it was casually connected to the accident.
MR LIVESEY: Yes.
FRENCH CJ: So, I do not quite understand why we are talking about mere grief, for example. This is not a case of mere grief. You can tell us in a general way that the law has been cautious in this area, and one only looks at the history of the cases, but there has been a gradual recognition, if you like, perhaps associated with improved understanding of the nature of psychiatric illness, for example, that this is a species of harm which cannot be simply put into a separate box from physical injury and said somehow it is radically conceptually different. Now, the question is, why should the circle be drawn in such a way as to exclude the application of a duty of care to this respondent? I thought the answer to that was to be found, on your submission, in paragraph 7 of your outline.
MR LIVESEY: Yes, yes it is, Chief Justice.
FRENCH CJ: Rather than general approaches to courts waving red flags at various times on other issues.
MR LIVESEY: It would be appropriate nevertheless, in my submission, to make one further point. It is, as a matter of practicality in these cases, difficult to draw the line between compensable psychiatric illness and non‑compensable grief. Insofar as their Honours Justice Gummow and Justice Kirby suggested that that can be answered by psychiatric medicine, Justice Hayne’s answer, at 293 and following suggests that it cannot. One can see that thrown up very starkly by the latest edition of the Diagnostic and Statistical Manual, if I might very briefly go to a couple of passages in that. It is behind tab 24 –sorry, 26.
NETTLE J: Has V now been adopted in this country, Mr Livesey?
MR LIVESEY: It is routinely referred to by psychiatrists and psychologists in this country, and DSM‑IV was cited by the psychologist in this case.
NETTLE J: Yes.
MR LIVESEY: In fact, it may have been DSM‑IV‑TR, I think it is referred to, and DSM‑V is simply the next edition. It is a routine ‑ ‑ ‑
NETTLE J: There are radical differences between the two editions though, are there not?
MR LIVESEY: There are some differences, and one of the important differences I am about to turn to now.
FRENCH CJ: What is the proposition for which you are taking us to this?
MR LIVESEY: Psychiatrists have difficulty distinguishing between grief and abnormal grief, and it seems to be no more than a question of timeframe.
FRENCH CJ: Well, what does that lead to? Does that lead to the proposition that the respondent in this case was not suffering from a psychiatric illness?
MR LIVESEY: That is a not the thrust of the submission, that is not ‑ ‑ ‑
FRENCH CJ: Well then what – how does it lead to – what does it lead to in a way that is relevant to this case?
MR LIVESEY: It emphasises the practical and forensic difficulties associated with recognising a duty of care which depends on nothing more than a filial relationship. Duty of care stands to be determined on a filial relationship and nothing more than the problems associated with distinguishing grief from compensable harm are magnified. The Court will see ‑ ‑ ‑
FRENCH CJ: I am sorry, I do not understand how you run that proposition without undercutting the factual base upon which this case comes before us, and the findings upon which it comes before us.
MR LIVESEY: It is referred to the same way as Justice Hayne referred to DSM‑IV in Tame’s Case, as informing the approach of the Court to the recognition of liability for recognised psychiatric illness. In effect, Justice Gummow and Justice Kirby say the question can be answered by psychiatrists. Justice Hayne says it is not that clear and suggests that although the previously understood control mechanisms do not apply, other control mechanisms may be necessary otherwise there is the risk of indeterminate liability.
FRENCH CJ: Well, is this not a case for courts to look at case by case on the evidence? We all know that the DSM in its various manifestations over the years has involved evaluative judgments not least in the distinction between disorder and disease, some of which import normative criteria. But, this is being fought out on the basis of psychiatric evidence which has been accepted in the court below and I think without cross‑examination.
MR LIVESEY: Yes, that is so. This is underscoring the risk associated with recognition of an unadorned duty based on communication alone. There are two points I wish to make. First is that psychiatric medicine recognises the difference between ordinary grief and, as it is described, a “persistent complex bereavement disorder” – this is at page 789 of the passage – as turning on nothing more than the period of time involved. That suggests, contrary to what Justices Gummow and Kirby suggested, that there remains a role for the court in determining duty rather than leaving it to psychiatric medicine to determine the questions of duty.
Second is – I am sorry, just to round out that point – that would be inconsistent, of course, with this Court’s approach to the Bolam test and Rogers v Whitaker. There remains a role for the court determining whether psychiatric evidence is or is not accepted, whether psychiatric opinion is or is not accepted by the court. The second step I wanted to make was this. In looking at the question of coherence, it is relevant to acknowledge that the rule Baker v Bolton suggests that death is not an injury in the eyes of the civil law.
Now, whatever the controversies associated with that, in Penberthy’s Case this Court accepted that it remained part of the common law of Australia. So that leads to this, in my submission. If death cannot be an injury, where the communication of death is a necessary corollary of that, then it is difficult to see why one would regard the mere conveyance of news about death as being something which is compensable.
It is another reason to be cautious about recognising a duty of care for the communication of news and nothing more. If I might conclude the question of duty with this submission, it is clear that whatever the obiter statements made by the members of the Courts in Tame and Gifford may have suggested, including about siblings, in relation to the conclusions drawn in each of those cases, it is clear that it was on the assumption of responsibility in Annetts and the existence of the employment relationship in Gifford that the Courts rested their decisions and, of course, that is a powerful point of distinction with this case. I move then to the section 53 point. The Court will find section 53 behind tab 14. Section 53(1) is in issue, and it is to (1)(a) I that I invite the Court’s attention, and the second part of (1)(a):
present at the scene of the accident when the accident occurred –
clearly, considerations of presence as well as timing. The Full Court’s reasons on this topic, overruling the trial judge on a point, found in Justice Gray’s decision, commencing at paragraph 21 at appeal book page 431. His Honour at paragraph 22 says that:
The facts constituting a road accident and its aftermath are not confined to “the immediate point of impact”. It includes the aftermath . . . including the extracting and removal of persons from the damaged vehicles.
With respect, an obvious circularity in what his Honour has said, and his Honour has not grounded his observation in the words of the legislation. His Honour then considered at some length the decision of this Court in Wicks, and at appeal book 434, second paragraph, referring to the New South Wales counterpart, which is different and which includes the words “in peril”, what we see are the last two lines of the emboldened paragraph. His Honour then concludes at 28:
[Those] remarks of the High Court have obvious relevance to the construction of section 53 –
With respect, they do not. Justice Sulan in his reasons recites the arguments of the parties at appeal book page 441, from paragraph 53. The first on the next page – Jaensch v Coffey – what might be described as the common law aftermath doctrine, that is to say, the extension that recognised in Jaensch v Coffey to the hospital at the time of immediate post‑accident emergency treatment. Then refers at 58 to the second reading speech, to which the precursor was introduced, it then being 35A(1)(c). The Court will find 35a(1)(c) behind 16. The Court will see that the same two elements appeared in 35a(1)(c), that is, “physically injured”; second:
who was, when the accident occurred, present at the scene of the accident;
or
(ii) a parent, spouse or child –
The reason for those limitations was explained in the course of the second reading speech of the then Attorney‑General, as one sees behind tab 22 at page 2410, the second paragraph in the first column, “The Bill also provides”, but I invite the Court’s attention to those two paragraphs concluding with “the Government seeks to prevent”.
So far as the Attorney‑General referred to recognition of the result in the case of Coffey v Jaensch, of course that was a nod to (c)(ii), “a parent, spouse or child”, and the aftermath doctrine. That is to say, where a spouse comes to the scene of the accident after it has occurred and sees its aftermath or, in Mrs Coffey’s case, she saw the hospital. That was not disturbed by this amendment. Absent “a parent, spouse or child”, the net was tightened very markedly, and deliberately so.
Changes were later made in 2002 and then again in 2004 which then brought about what is now section 53, but the essential formula was not altered and in particular, although the Ipp recommendation numbered 34 used the words “their aftermath”, that was not picked up by the South Australian Parliament. It stayed with its version which had been in place since late 1986, clearly refusing to pick up the extension which the use of the word “aftermath” would involve.
Insofar as Justice Sulan at paragraph 60 on page 443 of the appeal book concludes otherwise, it is submitted that is an error. Further, insofar as his Honour suggests that this is a provision which calls into operation the well‑known presumption against the infringement of common law rights – that appears at appeal book page 444 and is referenced to Thompson v Australian Capital Television – respectfully that too is an error. Two points are made about that. First, in Gifford’s Case this was described by Justice McHugh as something which was “an ordinary legal right” about which the presumption against infringement was weak.
Second, insofar as this is an example of motor accident legislation and after Ipp more broad civil liability legislation which has been amended over time, there is, it is submitted, no room for the operation of that presumption. An example of that is provided by this Court’s decision in Daly v Thiering 249 CLR 381 at paragraph 33 where it is said in the last sentence:
the MAC Act evinces an unmistakable intention to cut back those rights –
that is to say, common law rights, the conclusion being that there is really no scope for the operation of the presumption against infringement of common law rights. In my submission, what the Full Court failed to do is give primary focus to the ordinary meaning of the text, and I am referring now to paragraphs 11 and 12 of our outline. Justice Parker at paragraph 70 suggested that the definition of “accident” as an incident gave rise to an extended meaning of the term “accident” such that it brought within it the concept of aftermath, with respect, appears to be against the ordinary meaning of the words used, “accident” being defined to mean an incident including a motor accident, and a “motor accident” meaning:
an incident in which personal injury is caused by or arises out of the use of a motor vehicle –
In my submission, in most motor accident cases that will therefore accident being a compound expression, invite attention to a collision ….. occurs and one can envisage all sorts of permutations but in most cases it is clear that Parliament had in mind the ordinary conception of a motor accident collision and nothing more.
That view is supported by the reference or the use of the word “accident” in other parts of the Civil Liability Act. Two examples – first is section 47 which refers to the alcohol presumptions of contributory negligence, and the further example is section 49 which refers to the presumption of contributory negligence in the event of a failure to wear a seatbelt. It is very hard to imagine how an extended meaning of the word “accident” would work in those other contexts.
A further argument we have put to the Full Court relying upon the decision of the Court of Appeal in Hoinville‑Wiggins Case, that is referred to at paragraph 61 and that case turned on section 77 of the now repealed Motor Accidents Act 1988 (NSW). That section appears at appeal book 444, paragraph 62, and the particular words which are relevant appear in (a)(ii):
(a) a person –
. . .
(ii)was, when the accident occurred, present at the scene -
It is accepted that in the chapeau to 77(a) there is a reference to:
a person who suffered injury in the accident and who –
I will come back to that in a moment, but for present purposes that does not affect what Justice Giles with whom President Mason and Justice Stein agreed had to say in Hoinville‑Wiggins Case. The relevant passage appears at 63. I will not read it, but Justice Sulan at paragraph 63, appeal book
page 445, sets out the ruling made by the Court of Appeal in that case and the Court will see the reference to:
Close connection in space and time –
and what occurred in effect here was that a person working in a school heard an accident, came to the scene of the accident, rendered treatment to the stricken victim and the victim died. The ruling of the Court of Appeal in that case was that that was not presence at the scene of the accident when the accident occurred and rejected the notion that “aftermath” should be brought within the meaning of the word “accident”. It is clear that in what his Honour had to say at 63 the words in the chapeau to which I have already referred had no effect.
Justice Sulan in his reasons from 64 suggested that there were a number of bases for distinguishing that decision of the New South Wales Court of Appeal. He referred to two. First is the definition of “accident” to which I have already referred, and at footnote 35 his Honour made the rather unconventional reference in reliance upon a thesaurus. Second, his Honour at 67 – this is appeal book 446 – suggested that a point of distinction was the absence of an equivalent to section 33 going to the duty of care. With respect, neither of those points warranted a different conclusion.
It being clear in this case that there was, on the evidence at least, a collision and nothing more or, as it is put, an incident which gave rise to the personal injury which led to the death of Scott Philcox, and that having occurred before the plaintiff made the first of his five trips through the intersection, there was no presence at the scene of the accident when the accident occurred and it was an error for the Full Court to conclude otherwise. If the Court pleases.
FRENCH CJ: Yes, thank you, Mr Livesey. Yes, Mr Heywood‑Smith. The Court will sit until 4.30.
MR HEYWOOD-SMITH: If the Court pleases. I would like to commence my submissions by just spending a moment briefly to indicate where the respondent sees the parties – where the battlegrounds are in this appeal, and it would seem that there are two battlegrounds.
FRENCH CJ: Mr Heywood‑Smith, you prepared an outline?
MR HEYWOOD-SMITH: Yes.
FRENCH CJ: I think it has been circulated to some. I am not sure we all have it. I think we need two, Mr Heywood‑Smith.
MR HEYWOOD-SMITH: Before I arrive at the propositions in that ‑ ‑ ‑
FRENCH CJ: I have just been asked if you could lift your voice a little.
MR HEYWOOD-SMITH: Certainly.
FRENCH CJ: Yes, thank you.
MR HEYWOOD-SMITH: I will start again. I would like to just make some observations as to where we see the battlelines in this appeal are really existing. In assessing whether a duty arises, to what level of generality does the prospective tortfeasor notionally have to have regard? The appellant seems to be advancing a proposition that in this case only the generality of a close relative subsequently being told of the death of the relative. Addressing the Court today, my learned friend put it thus: mere communication of bad news does not raise a duty. That, I might remind the Court, is very similar to what was in the notice of alternative contentions to the Full Court.
The respondent, however, says that to so approach the prospective question disregards the terms of section 33 which requires the Court to consider “the circumstances of the case”. In this case, circumstances of the case must include the fact that the plaintiff attended at the scene without awareness as to the identity of the victim, made a decision not to stop and render aid, giving rise when later told of his brother’s death that evening to overwhelming feelings of guilt.
Now, if I could just pause there because it is unfortunate that at this stage I should really have to refer the Court to some of the transcript, but there are a few brief references in the transcript unchallenged and accepted by her Honour, because her Honour finds that the plaintiff was a witness of truth. Could I ask the Court to refer to firstly appeal book page 45 – this is the plaintiff in‑chief - from line 15:
I didn’t think that anyone in that vehicle had been seriously injured from the damage. There were other people assisting, I made a decision to move on.
Q. Had you had any first aid training.
A.As part of when I was travelling and I had worked in a place like Arkaroola there was a policy to do first aid courses. It had expired . . .
Q.Did you turn your mind to that when you went through the intersection.
A.I did consider that I could stop and see if anyone needed assistance or if I could be of any help. But between – I was worried about picking up my partner, I was running slightly late . . . There were other people stopping . . . I chose not to stop.
At page 59 of the appeal book, again in‑chief, lines four to 13:
Q. What were your feelings at the time.
This is after he had learnt of his brother’s death –
A. Angry and you know anger at myself for being there and not knowing, knowing when – just Scott was a passenger, he was just there and just I don’t know, angry, guilty for not knowing, not stopping, not – you know.
Q. Why were you angry or guilty at not stopping.
A.You feel like you should know, it’s your brother, you’ve grown up with this kid and you’re there a matter of metres from them dying in a car and you don’t even know, I chose not to stop.
Page 66, again in‑chief, lines 25 to 31 – sorry, that should be 63. I apologise, page 63 at lines 25 to 31:
Q.When you first saw Dr Awwad about your emotions how were you feeling.
A.I was depressed. I was still not being able to shake the feeling of guilt for not stopping.
NETTLE J: Was that 64, Mr Heywood‑Smith?
MR HEYWOOD‑SMITH: Page 64, lines 9 to 14.
NETTLE J: Thank you.
MR HEYWOOD‑SMITH:
Thoughts on the accident. Thoughts, as I said, about things not sitting right with me as far as having seen it but not known and choosing not to stop.
Now, this is against ‑ and the point he was not cross‑examined on that evidence and it is against her Honour’s finding at appeal book 396, paragraph 9:
make it clear that I accept his evidence. He was an honest witness trying his best to give his evidence about his life before and after the tragic death of his brother and in particular, the five occasions he drove through or turned left at the intersection.
When we then come to treatment of this evidence in the Full Court we note that Justice Gray, appeal book page 435 at paragraph 32 in the last two sentences:
It is evident that he was in a state of some mental anxiety, with feelings of guilt and self‑blame at not having stopped and attended to his brother. It was common ground that his brother had not died instantly but had survived for some time.
Our learned friend suggested that the plaintiff expressed no distress on any occasion going through the intersection. However, if the Court turns to appeal book page 436 and 437, you note that Justice Gray sees fit to reproduce the evidence of the psychologist, Ms Johnson, in paragraph 37 and paragraph 38 and, in particular, the psychologist’s last sentence of the quotation in paragraph 38:
He reported that after the accident he suffered feelings of guilt “I was there, I could have done something, possibly saved him”.
Then Justice Gray turns to Dr Ewer’s evidence in paragraph 40. The Court will note from the fifth line in paragraph 40 that Justice Gray notes that:
A review of Dr Ewer’s report discloses that he had a materially imperfect understanding of the plaintiff’s observations at the scene ‑
and his Honour goes on at the commencement of paragraph 41 to note that ‑
Dr Ewer’s opinions do not materially assist on the issue of causation.
I will also ask the Court to note that, by reason of that reference to the evidence, we would suggest that our learned friend has somewhat minimised the impact of his connection with the accident scene. The evidence clearly is that he drives through the accident scene shortly after the accident, within a matter of some minutes, because it is before the emergency vehicles arrive. He makes a decision not to stop and assist, a decision that he later, obviously, regrets.
We would also ask the Court to note that – no, I think that that is covered the transcript in AB 45 that I have taken the Court to. So that, in our submission, if the Court pleases, the answer to your Honour Justice Nettle’s question to my learned friend must be answered that there is a substantial connection between the attendance, or the presence, such as it was, of the plaintiff on that afternoon and what occurred later that evening.
Coming back to the issue of the prospective question that must be asked in considering whether there is a duty of care and considering the short tortfeasor before the incident, what level of generality does the appellant say that the matter must be reduced? The matters that I have drawn the Court to of attendance at the scene, positive decision not to stop and assist, subsequent guilt, must be a circumstance, a circumstance under section 33(1). It cannot be eliminated. If it is not to be expressed precisely in the manner in which I have put it, it is…..tortfeasor, having in contemplation driving a motor vehicle such as to cause the death of a passenger in circumstances where their relative might come upon the scene and make such a decision and subsequently regret it.
If it is not to be that specific, what is it to be? It would have to be, we would suggest, if it is to be more general, that the plaintiff attended and was present at the scene of the accident whilst rescue was being attempted by others. In either case, we say the respondent would succeed on establishing a duty of care here, whether under the common law, unmodified by section 33, or as modified by section 33 and in those circumstances, in our submission, the courts below have not erred in…..
I might add that, while the Chief Justice has commented on a number of occasions on my learned friend’s paragraph 7, my learned friend’s paragraph 7 is answered, is answered by the analysis which I have just made because it cannot be suggested that the respondent did not see anything that distressed him. I should say, this really relates to the issue that your Honour the Chief Justice adverted to about the observations made by the respondent as to duty of care not being at the forefront at trial.
There was no cross‑examination as to the level of distress at any particular point in time, and so far as the respondent is concerned, the reason for that is that the respondent did not understand duty of care to be seriously at issue but, in any event, we say that our learned friend’s paragraph 7 is answered simply by the facts in this case.
Now, the other preliminary observation as to the latter lines in this appeal goes to the issue of remoteness, or the section 53 issue. As the Full Court erred in its construction of section 53, was it justified in construing, “present at the scene of the accident when the accident occurred” such as to embrace in the word “accident” a period of half hour or 35 minutes prior to the death of the plaintiff’s brother when being attempted to be treated by ambulance officers at the scene or, indeed, by observations made by the plaintiff shortly after the emergency vehicles had left, when he drove through the accident scene for the last time and saw only the state of the two vehicles, and it was apparent to him that it was a very serious accident and somebody had either been very seriously injured, if not killed.
Was the Full Court justified in embracing those matters within the phrase, “present at the scene of the accident when the accident occurred” and such as not to require any more than presence and to reject any sort of curial inquiry as to just what an extent to which the plaintiff may have perceived something? So that is where we say the battle lines are drawn.
Can I just make some preliminary observations before coming to our oral submissions? Firstly, on the issue of duty of care at trial, and we only draw this to the attention of the High Court because it impacts somewhat on the submissions that have been put by the appellant as to issues such as the relationship of the plaintiff with his brother and the extent to which he may have been distressed.
The appeal book at pages 20 to 21 constitute the defence in the matter, and the Court will note ‑ I would not seek to suggest that the pleadings, particularly of the plaintiff, were model pleadings, but the statement of claim clearly implied a duty of care ‑ the claim was in negligence. The defence, however, from paragraph 5, which is the substantive defence, concentrates solely on section 53 of the Act, in paragraphs 5 and 6, then goes on to raise the question of whether or not there was a recognised psychiatric illness, then goes on to argue certain damages matters in paragraph 8.
So, the point that we make is that at trial and at the appeal stage, the Court has seen the notice of alternative contentions, the appellant approached the issue of duty of care in a quite perfunctory way, and as I have indicated, it meant that issues such as normal fortitude, relationship, degree of distress, were simply not addressed. There was no cross‑examination on these issues and the respondent would invite this Court to reflect upon the prejudice that might follow to the plaintiff if they are now to be agitated.
FRENCH CJ: So coming to your submissions on the duty of care, you accept, do you, that section 33(1) defines a necessary condition of the existence of a duty of care?
MR HEYWOOD‑SMITH: Yes.
FRENCH CJ: Necessary, but not sufficient?
MR HEYWOOD‑SMITH: Necessary and sufficient.
FRENCH CJ: And sufficient?
MR HEYWOOD‑SMITH: Well, we say that the subsection (1) when it refers to “the circumstances of the case” then incorporates what appears in subsection (2).
FRENCH CJ: Well, how do you make that contention against the words that “A person . . . does not owe a duty . . . unless”?
MR HEYWOOD‑SMITH: I take your Honour’s point. Our submission, as your Honour has seen from our outline, is that section 33 effectively codifies the common law.
FRENCH CJ: Well, as I understand from your outline, you seem to be saying, and I may be misunderstanding it, looking at paragraph 5, that the factors affecting the requisite requirement of foreseeability include the existence of a close family relationship. Is that right?
MR HEYWOOD‑SMITH: Sorry, is that paragraph 5 of the ‑ ‑ ‑
FRENCH CJ: Of your outline.
MR HEYWOOD‑SMITH: ‑ ‑ ‑ outline, as opposed to ‑ ‑ ‑
FRENCH CJ: You say:
The familial relationship which might be relevant to foreseeable risk of harm contemplates close family relationships including that of siblings.
I understand what you seem to be doing is feeding that into 33(1) and so you meet that condition because in the case of a close family relationship, including that of a sibling, the plaintiff is someone who might in the circumstances of the case suffer a psychiatric illness. Is that right?
MR HEYWOOD‑SMITH: That is right.
FRENCH CJ: All right. So, in other words, that is where you feed in the relationship issue, into the satisfaction of the condition under 33(1)(a). What else is necessary, or sufficient I should say, to establish the duty of care upon which you rely?
MR HEYWOOD‑SMITH: What we say is necessary is that the determiner as to the existence of a duty is obliged to turn their mind to the circumstances of the case which include the four identified circumstances, or potential circumstances, obliged to do that, and effectively what we are saying is that section 33 does codify the common law.
What you have is section 33 really addressing all of the old battlefields in this area. It addresses the definition of mental harm, which is defined in the Act. It addresses psychiatric injury. It addresses reasonable foreseeability and puts it forward as the key issue. It specifically adopts normal fortitude as a particular that is required to be satisfied. It addresses the significance of sudden shock, formerly a requirement, now simply a matter for consideration. It addresses perception. The same way, it addresses relationship and it addresses in sections 33(2)(a) and (b) primary and secondary victims. So that all of the old battlefields, we say, are addressed in section 33. Now, the ‑ ‑ ‑
FRENCH CJ: All those circumstances ‑ am I right ‑ to which the Court is to have regard, feed into the question of foreseeability in 33(1)?
MR HEYWOOD‑SMITH: They do, because of the phrase “in the circumstances of the case”. Now, there are difficult questions that arise. I am bound to say that, having read Gifford’s Case and the way the High Court approached section 4(1) of the 1944 New South Wales provisions and held that section was not seeking to codify the law, the arguments of the High Court in that matter would appear to apply as much here.
All that we could really suggest is that because the circumstances are left open‑ended in section 33(1), one can see or could see in the future, possibly with the development of science, possibly with advances in the etiology of psychiatric conditions, that there might be other deficiencies that might come to be seen to be of particular circumstances for the finding of a duty of care, but just at the moment, in our submission, it is very hard to see the need of the Court to go beyond section 33, particularly in the context of a motor vehicle accident.
I mean, if a court is bringing to consideration section 33, and the example which I think I gave of somebody leaving a rake in the side of a house, then clearly concepts that our learned friends have raised as to the need to confine liability in certain circumstances, particularly in the circumstance such as that, for example, where home insurance is not compulsory or common, as opposed to motor vehicle accidents where it is, but our submission is that really section 33, it has really adopted Tame and Annetts with the minor modification of making normal fortitude a requirement and in doing so has really codified the law as to what is the duty of care. Now ‑ ‑ ‑
GAGELER J: Is the condition expressed in section 33(1) simply a state of fact. Does it have some normative element?
MR HEYWOOD‑SMITH: Sorry, I ‑ ‑ ‑
GAGELER J: Is it a jury question?
MR HEYWOOD‑SMITH: Well, there are what would appear to be inconsistent statements as to whether the determination of whether a duty of care arises in a particular case is a question of fact or law. We would suggest that it is really a question of fact. In applying section 33, the Court must have regard to the circumstances of the case. The circumstances of the case here, we have pointed what we say they are, they are obviously factual issues, and it is difficult to see, we say, how an appeal court where there are no challenges to findings of fact can bring a new line to the issue.
We have indicated in our outline, paragraph 2 that “circumstances of the case” must be considered. We have commented on the four named, not exclusive, circumstances. Circumstances are not preconditions. In this particular instance, the learned trial judge found that two of those factors were established, that is the factors of sudden shock and the factors of the relationship, sibling relationship, and ‑ ‑ ‑
FRENCH CJ: All of those circumstances feed into the question of whether the person might suffer a psychiatric illness. That is a prospective assessment, or a notional assessment, of some finite, non‑trivial probability that the person would suffer a psychiatric illness. That is not greater than ‑ that is not more likely than not, it is just some finite, non‑trivial probability.
MR HEYWOOD‑SMITH: Yes.
FRENCH CJ: In other words, excluding the fanciful.
MR HEYWOOD‑SMITH: As I have already indicated that the appellant seems to place much on a submission to the Court that there is no direct perception of anything at the scene which distressed the respondent; that is in the appellant’s reply submission, paragraphs 8 and 10. We reject that for the reasons indicated. We addressed the Court on the issue of the extent to which the question is addressed and the level of generality or abstraction and I hope identified the problem for the appellant in this case. Paragraph 4 of our outline ‑ ‑ ‑
FRENCH CJ: Well, that might be a convenient moment, Mr Heywood‑Smith ‑ ‑ ‑
MR HEYWOOD‑SMITH: Yes, I will endeavour to be reasonably short in the morning.
FRENCH CJ: The Court will adjourn until 10.00 o’clock tomorrow morning.
AT 4.27 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 11 MARCH 2015
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