Morgan v Tame - [2000] NSWCA 121

NEW SOUTH WALES COURT OF APPEAL

CITATION: MORGAN v TAME [2000] NSWCA 121

FILE NUMBER(S):
40163/98

HEARING DATE(S): 26/10/99-27/10/99

JUDGMENT DATE: 12/05/2000

PARTIES:
John Morgan
State of New South Wales
Clare Janet Tame

JUDGMENT OF: Spigelman CJ Mason P Handley JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2784/97

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL:
M J Finnane QC / S C Finnane (Appellant)
P Semmler QC / N J Mullany (Respondent)

SOLICITORS:
I V Knight, Crown Solicitor (Appellant)
Herbert Weller (Respondent)

CATCHWORDS:
NEGLIGENCE
duty of care
foreseeability
psychiatric injury
reasonable foreseeability
injury to a person of normal fortitude
NEGLIGENCE
duty of care
psychiatric injury
injury must be caused by shock in the form of "sudden sensory perception"

LEGISLATION CITED:
Law Reform (Vicarious Liability) Act 1983
Motor Accidents Act 1988
Suitors’ Fund Act 1951

DECISION:
Appeal allowed with costs
The Respondent's summons for leave to cross-appeal dismissed with costs
The orders of the District Court set aside and a verdict entered for the Appellants, with costs
The Respondent to have a certificate under the Suitors' Fund Act, if qualified

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL
CA 40163/98
DC 2784/97

SPIGELMAN CJ
MASON P
HANDLEY JA
Friday 12 May 2000

MORGAN & Anor v Clare Janet TAME
The Respondent was involved in a car accident. In the course of investigating the accident, a “P4 Report” was completed by the Police. The P4 Report had been incorrectly filled out and showed the Respondent as having a blood-alcohol reading of 0.14. That was the reading of the other driver involved in the accident. The correct reading for the Respondent was nil. The Respondent was informed of the error by her solicitor. Subsequently she was told by the Police that the entry was a mistake and that it had been corrected. Notwithstanding that the Respondent was informed that all parties knew that the P4 Report had been filled out incorrectly, she developed a psychotic depressive illness.
At trial, Garling DCJ held that the Appellants were liable in negligence for the psychiatric injury suffered by the Respondent as a result of her receiving knowledge of the mistake in the P4 Report.
Held
per Spigelman CJ and Mason P, Handley JA agreeing
1         Causes of action for pure psychiatric illness are distinct from claims based upon physical injury. Barnes v Commonwealth (1937) 37 SR(NSW) 511, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Jaensch v Coffey (1983-1984) 155 CLR 549, Commonwealth of Australia v McLean (1996) 41 NSWLR 389 applied. Page v Smith [1996] AC 155, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 discussed.
2         No duty of care is owed to a plaintiff unless a person of normal fortitude would suffer psychiatric injury by the negligent act or omission of the defendant unless the defendant has knowledge of any particular susceptibility of the plaintiff. Bunyan vJordan (1936) 36 SR(NSW) 350; (1936-1937) 57 CLR 1, Barnes v Commonwealth (1937) 37 SR(NSW) 511, Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR(NSW) 48, Bourhill v Young [1943] AC 92, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Jaensch v Coffey (1983-1984) 155 CLR 549, Woodrow v Commonwealth ofAustralia (1993) 45 FCR 52, Midwest Radio Ltd v Arnold (1999) EOC 92-970, McLoughlin v O’Brian [1983] 1 AC 410, Page v Smith [1994] 4 All ER 522; [1996] AC 155 discussed.
3         The “eggshell psyche” rule applies after a determination has been made that a person of normal fortitude would suffer some injury. Beavis v Apthorpe (1962) 80 WN(NSW) 852, Havenaar v Havenaar [1982] 1 NSWLR 626, Commonwealth of Australia v McLean (1996) 41 NSWLR 389, Page v Smith (1994) 4 All ER 522, White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 discussed.
4         The psychiatric injury suffered by the Respondent would not have been suffered by a person of normal fortitude.
per Mason P, Handley JA agreeing
5         No duty of care was owed to the Respondent as the risk of psychiatric illness which she suffered was not reasonably foreseeable. Bunyan v Jordan (1936) 36 SR(NSW) 350; (1936-1937) 57 CLR 1, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Jaensch v Coffey (1983-1984) 155 CLR 549, Attia v British Gas Plc [1988] QB 304 discussed.
per Spigelman CJ and Mason P, Handley JA agreeing
6         A necessary element in a cause of action for pure psychiatric injury is that it must be occasioned by a shock in the sense of a sudden sensory perception. Jaensch v Coffey (1983-1984) 155 CLR 549, Campbelltown City Council v Mackay (1989) 15 NSWLR 501, Chiaverini v Hockey (1993) Aust Torts Reports 81-223, Spence v Percy [1992] 2 Qd R 299, Pham v Lawson (1997) 68 SASR 124, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 discussed.
per Mason P and Handley JA, Spigelman CJ not deciding
7         The Respondent did not suffer psychiatric injury by shock.
per Mason P, Spigelman CJ and Handley JA agreeing
8         The damages suffered were not recoverable as they were too remote.
Orders
Appeal allowed with costs. The Respondent’s summons for leave to cross-appeal dismissed with costs. The orders of the District Court set aside and a verdict entered for the Appellants, with costs. The Respondent to have a certificate under the Suitors’ Fund Act, if qualified.

- 61 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40163/98
DC 2784/97

SPIGELMAN CJ
MASON P
HANDLEY JA
Friday 12 May 2000

MORGAN & Anor v Clare Janet TAME
JUDGMENT

SPIGELMAN CJ: I have read the judgment of Mason P in draft. I adopt his Honour’s statement of the facts and issues.
I agree with Mason P that the Respondent’s submission that psychiatric injury should no longer be regarded as a kind of injury different from personal bodily injury, should be rejected.
In the case of psychiatric injury, the law has long proceeded, and continues to proceed, “step by cautious step” (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 403 per Windeyer J and Jaensch v Coffey (1983-1984) 155 CLR 549 at 555 per Gibbs CJ). In this field, the law manifests the classic aphorism of Oliver Wendell Holmes Jr: “The life of the law has not been logic: it has been experience” (OW Holmes Jr The Common Law 1882, Macmillan & Co, London at 1).
I recall Fullagar J’s warning in Attorney-General (NSW) v Perpetual Trustee Co Ltd (1951-1952) 85 CLR 237 at 285 to resist:
“… the temptation, which is so apt to assail us, to import a meretricious symmetry into the law”.
Australian case law establishes that psychiatric damage is a different kind of damage from personal bodily injury. The authorities were reviewed in this Court in Commonwealth v McLean (1996) 41 NSWLR 389 esp at 403E-404E, 406D and 407C-D. See also Kavanagh v Akhtar (1998) 45 NSWLR 588 esp at 600D-601A. To the authorities referred to in McLean can be added Beavis v Apthorpe (1962) 80 WN(NSW) 852 at 856; Nader v Urban Transit Authorityof NSW (1985) 2 NSWLR 501 at 533 per McHugh JA and March v E & MH Stramare Pty Ltd (1990-1991) 171 CLR 506 at 535 per McHugh J.
In McLean, Handley and Beazley JJA quoted the relevant passages from Mount Isa Mines Ltd v Pusey and made reference to the judgments of Gibbs CJ and Brennan J in Jaensch v Coffey. Other judgments in Jaensch v Coffey also refer to the need to foresee injury of a particular “kind” or “form” which, in the context, must be references to the distinctiveness of psychiatric injury. (See at 586.3, 595.5, 604.5 and 610.7 per Deane J and 611.9 per Dawson J).
Four of the five judges in Jaensch v Coffey incorporated a distinction between physical and psychiatric injury as an integral step in their reasoning. This Court is bound to treat the two forms of injury as different in kind.
In the classification adopted in England for cases of pure psychiatric injury, Mrs Tame is a “primary” rather than a “secondary” victim. According to the majority of the House of Lords in Page v Smith [1996] AC 155, a primary victim can recover for psychiatric injury even if the only damage that is foreseeable is physical injury (at 188H-189A).
In the present case the alternative foreseeable form of injury is economic loss, not physical injury. (Such loss may arise from the use to which the reports are put by persons who rely on the accuracy of the information eg. insurance companies). Page v Smith does not go that far.
In any event Page v Smith is not consistent with Australian law. Indeed the dissentients, Lord Keith of Kinkel and Lord Jauncey of Tullichettle, base their dissents in significant degree on an adoption of the Australian authorities (at 168, 173-175 and 179-180). (See also White v Chief Constable of South YorkshirePolice [1999] 2 AC 455 at 475C and D-E per Lord Goff of Chieveley; N J Mullany “Psychiatric Damage in the House of Lords: Fourth Time Unlucky - Page v Smith” (1995) 3 Journal of Law and Medicine 112 at 115).
In the Court of Appeal in Page v Smith [1994] 4 All ER 522 Hoffmann LJ, as his Lordship then was, in a judgment referred to with approval by the dissentients in the House of Lords, also referred to Jaensch v Coffey. His Lordship accepted the criticism of the terminology of “nervous shock”, preferring the formulation “damage caused by mental trauma”. His Lordship then set out at 549-550 a series of propositions:
“(1) Damage caused by mental trauma is a separate head of damage in the law of negligence with its own conditions of liability. (2) The conditions of liability are foreseeability, proximity and causation. (3) Foreseeability means foreseeability of damage caused by mental trauma. Foreseeability of physical injury is neither necessary nor sufficient. (4) The question of whether damage caused by mental trauma was foreseeable is asked with hindsight, in the light of the accident as it actually happened. (5) For the purposes of foreseeability, the plaintiff must be assumed to be a person of normal fortitude. (6) Normal fortitude is a matter of judicial notice and does not require medical evidence or statistical inquiry. (7) If some damage caused by mental trauma was foreseeable and the other conditions of liability are satisfied, the plaintiff is entitled to be compensated for all damage caused by mental trauma, whether its precise nature and extent were foreseeable or not.”
Subject only to the qualification that, in accordance with recent High Court authority, the concept of “proximity” is no longer to be regarded as a unifying principle, these seven points, in my opinion, reflect the law in Australia. Nevertheless, the facts and matters hitherto considered in relation to “proximity”, remain material in determining the existence of a duty of care.
Hoffmann LJ in Page v Smith as quoted above and Lord Goff of Chieveley in White v Chief Constable of South Yorkshire supra at 477C, both refer to the “person of normal fortitude test” as an aspect of foreseeability. However, particular matters often impinge on more than one of the analytically distinct elements of the tort of negligence - foreseeability, “proximity”, breach, causation and damage. The issue of “person of normal fortitude” may also be material in determining whether or not a duty of care exists by reason of matters additional to reasonable foreseeability and which were referred to until recently under the general term “proximity”. As Dawson J said in Gala v Preston (1990-1991) 172 CLR 243 at 277, in the course of discussing proximity:
“For example, there are reasons of general, if not universal application, which lie behind the rule which, for the most part, denies recovery of damages for pure economic loss or the rule which restricts the recovery of damages for nervous shock to a particular kind of plaintiff. But it is obvious that the search for a single principle underlying the concept of proximity is bound to be unsuccessful”.
This passage was quoted with approval by Gummow J in Hill v Van Erp (1995-1997) 188 CLR 159 at 239.
Of particular significance for the present case is Hoffmann LJ’s proposition (5). There is a strong body of Australian case law to the effect that a plaintiff cannot recover for “pure” psychiatric damage unless a person of “normal fortitude” would suffer psychiatric damage by the negligent act or omission.
A full statement of this limitation is found in the judgment of Jordan CJ in Bunyan v Jordan (1936) 36 SR(NSW) 350 at 354-356. The majority in the High Court affirmed his Honour’s reasoning in this respect (Bunyan v Jordan (1936-1937) 57 CLR 1 at 14, 16-17 and 18). Dixon J referred, at 17, with approval to the observations of Pollock CB in the course of argument in Allsop v Allsop (1860) 157 ER 1292 at 1293:
“The law deals with damage which might reasonably result, not with that which may depend on the idiosyncrasy of the party”.
In Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR(NSW) 48 at 51-52, Jordan CJ applied the same test - that an “act is incapable of injuring an ordinary normal person” - in a case of physical injury: an allergic reaction to bath salts. The Full Court of this Court also applied the test of an “ordinary normal person” in Barnes v Commonwealth (1937) 37 SR(NSW) 511 at 514-515, a case of psychiatric injury.
In Jaensch v Coffey Gibbs CJ at 556 expressly accepted a test of “ordinary person of normal fortitude”. Brennan J provided a more extensive analysis of the test, to which he referred in terms of “normal standards of susceptibility” at 568, 570-571, 572 and 578. I interpret Murphy J’s reference at 557 to a “normal person” to be supportive of the test. Deane J at 610 refers to the test with implicit approval.
The Full Court of the Federal Court and the Court of Appeal of the Supreme Court of Queensland applied this line of authority in, respectively, Wodrow v Commonwealthof Australia (1993) 45 FCR 52 at 72-73 and Midwest Radio Ltd v Arnold (1999) EOC 92-970 at [28]-[29]. Although Windeyer J doubted the proposition and treated the issue as open in Mount Isa Mines Ltd vPusey supra at 405-406, his Honour’s obiter comments have not been adopted. (See also at 417 per Walsh J). The prior Australian authorities were not considered in FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Reports 81-442 at 64,500.
This Court should follow the majority reasoning of the High Court in Bunyan v Jordan and Jaensch v Coffey. There is no occasion to revisit the reasoning of this Court in Bunyan v Jordan, Levi v Colgate-Palmolive and Barnes v Commonwealth.
The position in England is that normal fortitude is still required for “secondary victims”, but not for “primary victims”. (Page v Smith supra esp at 189D-F). This differentiation has never been adopted in Australia. (See the dissent of Lord Goff of Chieveley in White v Chief Constable of South Yorkshire supra at 474C-D and 476F-477E). It is becoming increasingly apparent that there is no bright line demarcation between “primary” and “secondary” victims. The most recent authority, a judgment of the House of Lords on an interlocutory matter, suggests a degree of flexibility which undermines the distinction as constituting an independent criterion. (See W v Essex County Council [2000] 2 WLR 601 at 605F-608D).
Garling DCJ failed, in my opinion, to apply the person of “normal fortitude” test. He said, Tame v Morgan (1998) Aust Torts Reports 81-483, at 65,203:
“It is also in my opinion foreseeable that a person of good character who was careful not to drink and drive, who had a vulnerable personality, may suffer a psychological injury by being told that the form recorded that she had a high blood alcohol reading and further, that that information had gone to other people and that such a reaction to this careless act could have been foreseen by the officer at or about the time he was filling in this form.”
Although, his Honour refers to the judgment of Brennan J in Jaensch v Coffey, he does not refer to, nor apply, Brennan J’s test of “normal standard of susceptibility”. On the contrary he expressly relies on the proposition that a person of “vulnerable personality” was the test of foreseeability.
By his reference to “vulnerable personality” his Honour was, it appears, applying an “eggshell psyche” rule. I accept that the “eggshell skull” rule applies to psychiatric injury. It is proposition (7) in the extract from Hoffmann LJ in Page v Smith I have quoted above, as his Lordship further explained at 550d-e. However, the “eggshell skull” or “psyche” rule is a rule of compensation, not of liability. Garling DCJ treated it as the latter. In this, I believe, his Honour erred.
As Handley and Beazley JJA said in Commonwealth v McLean supra at 406D-E:
“The ‘eggshell skull’ principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind”.
(See also Kavanagh v Akhtar supra at 600D).
In Havenaar v Havenaar [1982] 1 NSWLR 626 at 631 Glass JA expressly stated that the “eggshell skull” rule applies after a determination had been made that a person of normal fortitude would suffer some injury:
“It would doubtless be preferable to accord due respect to the proposition that foreseeability is the only criterion of remoteness by treating the eggshell skull principle as an accepted illustration of it. So regarded it does no more than recognise that the possession by the plaintiff of special proclivities capable of enlarging the lesser harm that would still be suffered by others is always foreseeable as a possibility notwithstanding that the particular proclivity and the way in which it has worked itself out in producing special harm may not be foreseeable even as possibilities.” (Emphasis added)
(Note the doubt about the wider proposition advanced by Glass JA, expressed by Samuels JA in Nader v Urban Transit Authority at 506).
The same approach was expressly applied to “nervous shock” in Beavis v Apthorpe supra at 857 per Herron CJ:
“Cases on the talem qualem principle decide that if it is reasonable to foresee some injury, however slight, to the plaintiff, assuming him to be a normal person, once liability is established then the defendant is answerable for the full extent of the injury which the plaintiff may sustain owing to some peculiar susceptibility”. (Emphasis added)
His Honour referred to Bourhill v Young [1943] AC 92 and other authorities and added:
“This same rule, I believe, applies to the nervous shock cases. The hypersensitivity to shock may prevent there being any breach of duty in the first place … but once liability is established … if some bodily injury to the particular plaintiff is foreseeable, the defendant will become liable for injury resulting from the plaintiff’s special sensitivity.” (Emphasis added)
To the same effect are the observations of Lord Griffiths (dissenting) in White v Chief Constable of South Yorkshire supra at 462H-463B:
“The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals. This is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected. It is a threshold test of breach of duty; before a defendant will be held in breach of duty to a bystander he must have exposed them to a situation in which it is reasonably foreseeable that a person of reasonable robustness and fortitude would be likely to suffer psychiatric injury.”
See also Bourhill v Young supra at 109-110; Smith v LeechBrain & Co Ltd [1962] 2 QB 405 at 414-415; White v Chief Constable of South Yorkshire supra at 470D; Watts v Rake (1960) 108 CLR 158 at 164; Jaensch v Coffey supra at 610; Nader v Urban Transit Authority supra at 536G-537E; Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 at 161.
Contrary to the Respondent’s submissions, in my opinion, there is no inconsistency between the “person of normal fortitude” test and the principle that tortfeasors take their victims as they find them (“talem qualem”).

Levi v Colgate-Palmolive, a product liability case, suggests that the test is not restricted to cases of pure psychiatric injury. It is, however, particularly well established in this area of the law, which continues to develop in a manner distinct from that involving other forms of personal injury. It represents, in my opinion, a viable and justifiable restriction on the scope of liability for psychiatric injury and is not to be interpreted into irrelevancy in the manner propounded by the authors of the English Law Commission Report No 249 Liability for Psychiatric Illness 1998, The Stationary Office, London at par 5.26.
Garling DCJ referred to the experience of the Court and to expert evidence, to the effect that extreme reactions of the character displayed by Mrs Tame, may sometimes be triggered by errors of the kind here under consideration. There is, however, no proper basis for a conclusion that any reaction, other than one of a qualitatively different and non-compensable kind - like grief, distress, worry, anxiety, anger, shame, etc - was foreseeable in a person of normal fortitude. Nor does his Honour apply any such test. The effects of the events on Mrs Tame were so idiosyncratic, that the test cannot be satisfied.
The Respondent called three psychiatrists in her case, one of whom, Dr Phillips, purported to give evidence about persons of “normal fortitude”. He said that even such a person is at risk of suffering a psychiatric disorder by reason of an error in a public record of the character which occurred here.
As so often occurs in evidence of this kind, the answers are in the nature of ex cathedra assertion without any attempt at justification or explication. This contrasts with other evidence which he, together with the other experts, was able to give.
As Hoffmann LJ said in proposition (6) from Page v Smith quoted above, “normal fortitude” is a matter of judicial notice. I do not accept that psychiatric injury can be caused in such a person because of clerical errors in an official form. Dr Phillips’ assertions to the contrary do not convince me that a person of normal fortitude would suffer psychiatric injury from an error of the character involved in these proceedings. The persistence of the Respondent’s obsessions even after correction and apology manifests an exceptional degree of frailty.
The “person of normal fortitude” test is not a relevant limitation in a case in which the alleged tortfeasor has knowledge of the particular susceptibility of the particular victim. (See eg. Levi v Colgate-Palmolive supra at 52). An attempt was made to bring Mrs Tame within this principle in submissions to this Court. It was said that the Respondent’s “shock”, displayed in her inability to assist police with their inquiries after the accident, manifested a susceptibility of a relevant character. This submission should be rejected. Such “shock” does not manifest any element of irrationality or, indeed, of special vulnerability of a character which could have put a reasonable person on notice that special care should be taken with respect to the filling out of the forms.
There is authority that, even if some form of psychiatric injury were foreseeable, the irrational response of the Respondent may be so predominant that the actual damage should be seen as different in kind for the purpose of attributing legal responsibility. See Rowe v McCartney [1976] 2 NSWLR 72. This authority may one day need to be revisited.
In Nader v Urban Transit Authority supra McHugh JA explained that decision in the following way at 535E:
“What it decides is that mental illness as the result of irrational guilt feelings and with only a ‘tenuous connection’ with the defendant’s negligence is damage different in kind from mental illness arising from an ordinary car accident.”
(See also at 535G-536A, 536B and 538A and per Samuels JA at 506C-F).
McHugh JA’s use of the terminology of “tenuous connection” suggests a conclusion that the damage was too remote.
In the present case the negligent act consisted of a clerical error in an official document. For purposes of attributing responsibility in law, liability for a chain of events triggered by such a clerical error should not be seen as extending to wholly irrational responses by the person about whom the error was made. The link is, in my opinion, too tenuous.
I agree with Mason P that the psychiatric injury in this case is too remote.
Mason P would allow the appeal on the alternative ground that the Respondent failed to make out an essential requirement for liability. His Honour accepts the Appellant’s submission that the common law of Australia contains a particular restriction in the case of pure psychiatric injury i.e. cases of psychiatric damage which are not associated with negligently inflicted physical damage. It was submitted that liability for such damage only arises in circumstances of a sudden assault on the senses of the plaintiff. This has been called “the need for sudden impact” (NJ Mullany and PR Handford Tort Liability for Psychiatric Damage” 1993, The Law Book Company Ltd, Sydney at Chapter 8).
The most frequently quoted statement of this proposition is that of Brennan J in Jaensch v Coffey. His Honour said at 565:
“A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffer psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child who suffers psychiatric illness as a result has no claim against the tortfeasor liable to the child.”
Brennan J added at 566-567:
“The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are, on the one hand, psychiatric illness and, on the other, shock which causes it. Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them. …I understand ‘shock’ in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness. A psychiatric illness induced by a mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing of what they have to impart, might be held liable as tort feasors.”
His Honour also concluded at 572:
“In each case where causation is established, the question of fact is whether it was reasonable foreseeable by the defendant that his conduct might bring about a phenomenon the sudden perception of which by the plaintiff or by a class of which the plaintiff is a member might induce a psychiatric illness, assuming the plaintiff or the members of that class to be of a normal standard of susceptibility.”
Another statement of this requirement is that of Lord Ackner in Alcock v Chief Constable of South YorkshirePolice [1992] 1 AC 310 at 401F:
“‘Shock’, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.”
It is by no means clear to me that in Jaensch v Coffey, Deane J (with whom Gibbs CJ agreed) accepted the proposition that a sudden assault to the senses was an essential condition for recovery of damages in a case of psychiatric injury. There are numerous references to “shock” and “nervous shock” in his judgment. However, most must be understood in the light of his Honour’s reference at 587.8 to “psychoneurosis and mental illness (which lawyers have imprecisely termed ‘nervous shock’)”. His Honour’s acceptance at 606 that no duty exists where “psychiatric injury results from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of an accident” may lead to a similar outcome in many cases. It does, however, constitute a different test.
The passage from Brennan J in Jaensch v Coffey at 566-567 contains two elements:
(i) Liability only arises if there is a sudden assault on the senses.
(ii) Mere knowledge, without direct perception of the event or its aftermath, is not enough.
These elements overlap in practice but are conceptually distinct. (Cf Mullany and Handford 1993 supra Chapter 7 on “Means of Communication” and Chapter 8 on “Sudden Impact”). The elements overlap because a sudden shock can be occasioned when someone is told of a traumatic event. If the relevant trigger is a combination of what a person is told and what he or she observed, it appears not to be necessary to establish that the psychiatric injury is attributable to the latter. Jaensch v Coffey itself was such a case. (See eg at 608-609 per Deane J).
The second element - the need for direct perception - was expressly left open in other judgments in Jaensch v Coffey (Gibbs CJ at 555, Murphy J at 556 and Deane J at 608-609). It was regarded as open by this Court in Coates v Government Insurance Office of NSW (1995) 36 NSWLR 1 per Gleeson CJ at 5B and Clarke JA at 23B-C. Kirby P rejected it as a relevant restriction at 8E-11E. A majority of the Full Court of South Australia has agreed with Kirby P in Pham v Lawson (1996-1997) 68 SASR 124 per Lander J at 148, Bollen J agreeing at 125 and Cox J not deciding at 125.
In his judgment, Mason P focuses on what I have referred to as the first element - the need for a sudden assault on the senses.
In Campbelltown City Council v Mackay (1989) 15 NSWLR 501, the Plaintiffs conceded that they could not succeed unless they established this element. McHugh JA said that “the concession of counsel seems correct” (at 507F), referring to both Brennan J and Deane J in Jaensch v Coffey. Kirby P made observations on the need for the common law to develop beyond this restraint and reserved his position on the concession (at 503D-504C).
The decision in Campbelltown City Council v Mackay turned on the proposition which McHugh JA expressed in these terms:
“The illness must be the result of a shock caused by the perception of a phenomenon for which the defendant is responsible.” (509E)
Subsequent authority in this Court, applying Campbelltown City Council v Mackay, has affirmed the need for “shock”, understood in terms of a “sudden sensory perception”. (See Chiaverini v Hockey (1993) Aust Torts Reports 81-223 at 62,255 per Handley JA and 62,257 per Sheller JA with whom Meagher JA agreed).
In Spence v Percy [1992] 2 Qd R 299 in the Full Court of the Supreme Court of Queensland, Sheperdson J relied on the judgment of Deane J in Jaensch v Coffey to hold that the requisite “proximity” did not exist (at 308-310). Williams and de Jersey JJ, in separate judgments also found that the requirements of proximity set out in the judgment of Deane J had not been made out, but each also found, by reference to the judgment of Brennan J in that case, that there was no “sudden sensory perception” which caused the recognisable psychiatric illness (313-314, 317 and 320-321).
In Pham v Lawson, supra, the Full Court of the Supreme Court of South Australia accepted the need for a “sudden event” causing “nervous shock” (149.2), at least as a “probable” requirement (150.3). In Davis v Scott (1998) 71 SASR 361 at 379-381, the Full Court referred to Brennan J’s definition of “shock” when restricting the recovery of damages to the mental consequences of shock.
First instance judges have frequently applied the test of sudden assault on the senses, sometimes reluctantly. The cases are referred to in NJ Mullany “Fear for the Future: Liability for Infliction of Psychiatric Disorder” in Torts in the Nineties 1997 NJ Mullany (ed), The Law Book Company Ltd, Sydney esp at 113 fn 37. In addition to that list see Anderson v Smith (1990) 101 FLR 34 at 49-50 per Nader J; Woods v Lowns (Supreme Court of NSW, 9 February 1995, unreported) per Badgery-Parker J at pp93-96, 98-99, in a section of the judgment that was not reported in (1995) 36 NSWLR 344; Marchlewski v Hunter Area Health Service (Supreme Court of NSW, 14 August 1998, unreported) per Dowd J at pp17-18.
The need for a sudden assault on the senses has been subject to detailed criticism. (See eg J Swanton “Issues in Tort Liability for Nervous Shock” (1992) 66 ALJ 495 at 499-501; Mullany and Handford 1993 supra Chapter 8; H Teff “The Requirement of ‘Sudden Shock’ in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Tort Law Review 44; Mullany 1997 supra esp at 122-142; D Butler, “A ‘Kind of Damage’: Removing the ‘Shock’ from ‘Nervous Shock’” (1997) 5 Torts Law Journal 255 at 266-275; H Teff “Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries” (1998) 57 Camb. LJ 91 esp at 107-108; NJ Mullany and PR Handford “Moving the Boundary Stone by Statute - The Law Commission on Psychiatric Illness” (1999) 22 UNSWLJ 350 at 350-357, 392-396; NJ Mullany “Personal Perception of Trauma and Sudden Shock - South Africa Simplifies Matters” (2000) 116 LQR 29 at 33-36).
Policy considerations point in both directions. (See Law Commission Report No 249 Liability for Psychiatric Illness 1998, The Stationary Office, London at pars 5.29-5.30).
The requirement has recently been rejected by the South African Supreme Court of Appeal. (See Barnard v Santam Bpk 1999 (1) SA 202). Although there have been some judicial statements in Australia critical of this requirement, they have generally been made in interlocutory judgments concerned with applications to strike out pleadings or to extend a limitation period. This Court has acknowledged that there is some force in the criticisms, whilst reaffirming the existence of the requirement. (Buljabasic v Ah Lam (NSW Court of Appeal, 3 September 1997, unreported)).
Although, in my opinion, there is no authoritative statement of the High Court which formally binds this Court to apply the requirement of a sudden assault on the senses, this Court should follow its own earlier decisions and that of other intermediate courts of appeal. I agree with Mason P that change, if any, in this regard, should be determined by the High Court.
However, I do not join Mason P in deciding this appeal on this alternative ground. The trial judge failed to make relevant findings of fact. At the most, this Court would remit the matter on this ground.
There was evidence of sudden assault to the senses before Garling DCJ. His Honour referred at 65,204 to the Plaintiff’s evidence when she first learned of the assertion about her blood alcohol level:
“She said she was very shocked, it was like a blow.”
His Honour found “… difficulty with accepting the plaintiff’s evidence without question”. However, he did not make a finding with respect to the specific matter of the initial impact of the revelation upon the Respondent.
His Honour went on to summarise, ibid, the Respondent’s evidence about her continued obsession with the issue:
“The plaintiff says she was badly affected by the news of the blood alcohol reading. She said she became obsessed. Her spare time was spent thinking about it. She was concerned that bills were not paid and why they were not paid … [t]he longer it took to pay the bills, the more problems it caused and the worse she got.”
His Honour referred to a submission that there had not been the requisite “sudden impact”, but did not deal with the submission in those terms. His Honour decided this aspect of the case on other evidence, especially medical evidence, which was primarily concerned with the Respondent’s continued obsessive reaction to the allegation. This evidence did not focus upon the Respondent’s initial reaction.
I do not know whether or not his Honour accepted the Respondent’s evidence of a sudden assault on her senses. I do not feel able to resolve this issue on appeal. It may have been appropriate to order a new trial, if the appeal were not to be allowed on another ground.
The appeal should be allowed.
MASON P: A common traffic accident has thrown up an unusual claim for “nervous shock”. The State of New South Wales was found liable for the negligence of a police officer who completed a Traffic Collision Report that showed that both drivers had a blood alcohol reading of 0.14 whereas only one had been drinking. The later discovery of the mistake by the innocent driver was held to have contributed to her psychotic depressive illness. She recovered a verdict of $115,692 in the District Court (see Tame v Morgan (1998) Aust Tort Reports ¶81-483).
This appeal tests the limits of the cause of action for negligently inflicted pure psychiatric injury. The appellants challenge the findings as to causation, duty of care and foreseeability of psychiatric injury through “shock”. The challenge to duty of care has two aspects: lack of “proximity” and absence of “shock-induced” illness.
An innocent victim of a motor accident
On 11 January 1991 the respondent was driving in Richmond when a vehicle driven by Terence Lavender travelling in the opposite direction collided head-on. Each driver was conveyed to hospital for treatment. Blood-alcohol readings were taken. The blood sample taken from the respondent confirmed that she had not been drinking. The sample taken from Mr Lavender revealed a blood alcohol reading of 0.14.
There was never any question as to who was at fault. Mr Lavender was on the wrong side of the road and was affected by alcohol. He was arrested near the accident scene after having decamped and assaulted the police. The respondent was visited at home on two occasions in the weeks following the accident by Constable Morgan from the Windsor police station. At his first visit, Constable Morgan took particulars of the accident and details of the respondent's injuries. He returned to assist the respondent in completing a claim form under the Motor Accidents Act. He told her that the other driver was at fault and that a number of charges would be laid against him, including a charge based on his blood alcohol sample. The claim form was completed on this basis and was submitted to Mr Lavender's insurer on 11 February 1991.
The respondent instructed a solicitor, Mr Weller. Since Mr Lavender was driving an uninsured vehicle, the respondent sued the Nominal Defendant. The claim was handled by NZI Insurance (“NZI”) and solicitors retained by that insurer. NZI made a written admission of liability on 11 June 1991. Ultimately the claim against the Nominal Defendant was settled in August 1994 with a substantial sum being paid to the respondent.
The respondent learns about a police mistake in 1992
The accident caused significant leg and back injuries to the respondent. There were many attendances for physiotherapy. Initially, the respondent went to Mr Thompson of Richmond. In May 1992 she switched to another physiotherapist.
At about this time, there were problems with payment of physiotherapy accounts, which had previously been met promptly by NZI. The respondent’s anxiety about this led a friend to refer her for crisis counselling in April 1992. The respondent spoke to Mr Weller and told him that she wanted to see a counsellor, and that if the insurer would not pay, she may have to follow up with a psychiatrist. Her solicitor phoned NZI’s solicitor about the matter.

During a conversation in June 1992, Mr Weller asked whether she had been drinking prior to the accident. She was horrified at the suggestion. She had not been drinking and had scarcely touched alcohol for the last 20 years. Her previous employment as a nurse had shown the terrible effects of drink-driving. Mr Weller told her that there was a blood alcohol reading of about three times over the limit "on the form for the insurance company". He was referring to the well known Police Accident Report (P4) issued by the Police Department showing information gathered by the police about a motor accident.
The respondent said in evidence that she was very shocked, it was like a blow. "I couldn't believe that [a mistake like that] could happen" (AB 27). She began to worry about how many people would be told and how her good name would suffer.
After getting off the phone from her solicitor, she rang the police at Windsor. Constable Morgan told her that her blood alcohol reading was nil and that the information about it on the P4 form was a mistake. Somewhat rhetorically he asked “What do you want me to do about it?” He said that the papers were with Penrith Court (presumably referring to some criminal proceedings involving Mr Lavender). The respondent reported this conversation back to her solicitor.
NZI’s solicitor reconfirmed that liability was admitted on 29 July 1992. In early 1993 Mr Weller sought and received from the Police Service a formal assurance that the mistake had been rectified, coupled with an apology. One might have expected that any concern would have ended with rectification of the police records, formal apology by the Police Service and clear evidence that NZI harboured no belief that the respondent had been drinking.
However, the respondent continued to think that the delay in meeting the physiotherapy bills was connected with the false information on the P4 form. (In truth, the insurer considered the treatment unnecessary.) The respondent also ruminated that others might be thinking that the accident was due to her own drunkenness. She worried about how many people had been told something that she regarded as a serious insult to her reputation. She became obsessional about the police mistake, fearing that something similar could happen again. There were feelings of guilt that she was being punished for something she had done in the past. She used to talk about the mistake all the time to her husband and her friends. She hoped thereby to ease her mind. Instead, she found herself virtually unable to think about anything else. Sleep became difficult. The stress led to depression. The respondent had some counselling, but matters "seemed to get worse, out of proportion" (AB 37).
These reactions were irrational but genuine. The respondent was tested in cross-examination, corroborated by other witnesses, and accepted as a witness of truth by the learned trial judge.
The mistake on the P4 Report
The P4 Traffic Collision Report contains details about the accident, including particulars of the drivers of the two vehicles. Constable Morgan completed these details based upon information he obtained at the accident scene. The Report disclosed that the respondent had been driving on the correct side of the road when the accident occurred. Nothing suggested that she had caused the accident. Everything pointed to Mr Lavender. The Report also recorded that Mr Lavender had had a blood alcohol reading of 0.14 and that he “decamped scene of accident” .
In January 1991 Senior Constable Beardsley was the acting traffic sergeant at the Windsor Police Station. The portions of the Report relating to the blood sample had been left blank by Constable Morgan. It was Acting Sergeant Beardsley who completed that part of the form and who made the relevant mistake, in February 1991. The respondent’s blood sample analysis was also shown as giving a reading of 0.14.
Acting Sergeant Beardsley had worked from copies of blood testing certificates showing the results of tests taken on 11 January 1991 at Hawkesbury Hospital from each of the respondent and Mr Lavender. The respondent’s certificate disclosed no alcohol in the blood sample whereas Mr Lavender’s showed a reading of 0.14g of alcohol per 100 mls of blood. The system at the time was that when the blood alcohol certificates were received at the blood sampling section, details were entered on a computer, and a report was generated which was sent to the traffic sergeant or the constable concerned with the accident.
Some time before 18 March 1991 Constable Morgan informed Acting Sergeant Beardsley that he had charged Mr Lavender on the basis of his blood alcohol reading. The error in the original P4 Traffic Collision Report kept by the Police Service was detected by Beardsley some time between February and late March 1991. He corrected the error on the original P4 Report, but unfortunately not in time to prevent NZI getting a mistaken copy on 15 April 1991.
In 1991, 88,499 P4 traffic collision reports were created by the Police Service. In that same year 32,483 applications for such reports were received. This was information provided by an arm of government to members of the public, on application for a fee. Each of the police witnesses at trial (including Acting Sergeant Beardsley) readily agreed that it was important that the information should be accurate, if only because it was well known that the reports were relied upon by persons pursuing or defending civil or criminal matters. The form of report contains no disclaimer. In these circumstances I would have little difficulty in concluding that the Police Service owed a duty of care to take reasonable steps to ensure accuracy if physical injury or financial damage had ensued to someone relying upon their accuracy (cf L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (1981) 150 CLR 225).
However, the respondent’s claim was not of that nature, and it relates to pure psychiatric injury. Something more than reasonable foreseeability of such injury is required. Until recently the High Court described it as proximity. Whatever the label, special rules of uncertain scope apply to this corner of the law of negligence.
Diagnosis of depressive illness in 1995
The respondent was almost 52 at the time of the accident. Her treating psychiatrist, Dr Mitchell, who saw her frequently from June 1995 onwards, described her as a person whose “whole world is about other people and what other people think” (AB 176). Dr Mitchell was aware of various stressors affecting the respondent, including those entirely unrelated to the accident. Nevertheless, she adhered to a firm diagnosis of psychotic depressive illness stemming from the impact of the police mistake upon a vulnerable personality. When the respondent first attended Dr Mitchell in 1995, she was deeply ashamed about the consequences of the mistake. Despite the mistake having been rectified, the respondent had become obsessed with it, feeling shame and guilt extending beyond concern about her reputation, including belief that she may indeed have been responsible for the accident. In Dr Mitchell’s words (AB 179):
I felt the blood alcohol reading was extremely important, my job is to sit beside the patient and see the world the way they do and that filled her with such shame that her public face would be so bruised, that I felt that was a major factor indeed and this woman is a woman not without some resilience.
The respondent’s inability to accept that the mistake had been corrected and counteracted was an aspect of the illness itself, something Dr Mitchell and other doctors described as a recognised phenomenon in psychiatry.
Dr Mitchell prescribed drugs including anti-depressant medication (Prothiaden) and anti-psychotic medication (Stelazine). This treatment plus extensive counselling brought significant improvement by the time of the trial (November 1997). Nevertheless, the illness and its effects are continuing indefinitely.
The claim against the State was based upon its vicarious liability for a police officer’s act of casual negligence
Constable Morgan and the State of New South Wales had been sued as joint defendants, the State being joined on the basis of its vicarious liability for Morgan’s negligence. During the trial it became apparent that the mistake had been made by Acting Sergeant Beardsley and not Constable Morgan. The verdict in the respondent’s favour was entered against the State based upon vicarious liability for Acting Sergeant Beardsley’s casual act of negligence (cf Law Reform (Vicarious Liability) Act 1983). This was not a claim based upon an inefficient system in the workings of the Police Service.
Despite the reasoning of the trial judge, it remains unclear whether a verdict was entered in Constable Morgan’s favour, as it should have been. Surprisingly, Morgan became an appellant. He remains one, destined perhaps to enter the law reports in relation to something that never involved him directly.
Causation was established
The trial judge found that discovery of the police mistake caused depressive illness to the vulnerable plaintiff. This conclusion is challenged in the appeal, but it was well open to his honour, bearing in mind the test for causation in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514.
The first diagnosis of depressive illness was made in June 1995 by Dr Mitchell. Other experts on both sides agreed with the diagnosis of major (psychotic) depression. (See Dr Lewin (AB 70), Dr Westmore (AB 86), Dr Klug (233, 1258), Dr Phillips (AB 264).) However, issue was joined as to the cause of the illness.
The respondent did not require any medical attention on the day she was advised of the P4 blood alcohol error. She continued with daily routines, which included student tuition. Her contemporary diary entries reveal no evidence that the discovery of the police mistake had any immediate impact. The respondent did not raise her distress about the police mistake with any doctor until 1995. There were other major stressors in her life apart from the impact of the police mistake. The respondent had had a difficult childhood. Recovery from the physical sequelae of the accident had been slow and frustrating. The respondent was experiencing difficulty walking and she had continuing back pain. She was concerned about delays in meeting the claims from her physiotherapist. (In fact, this was due to NZI doubting that the physiotherapy treatment was reasonable and believing that the respondent was exaggerating the symptoms stemming from the accident itself.) The respondent's father suffered a terminal illness and died in July 1992. Her husband attempted suicide in December 1992 and he was subsequently treated for psychiatric illness. Some of the doctors examining the respondent on behalf of the insurer (notably Dr Ireland) had questioned the genuineness of her symptoms. Although liability was admitted, the claim against the Nominal Defendant was only quantified and settled in August 1994.
On the other hand, there was a body of psychiatric evidence which linked the onset of the depressive illness in 1995 with the respondent's discovery of the police mistake in mid 1992 and her subsequent rumination about it. That was the firm view of Dr Mitchell (the treating psychiatrist), Dr Klug and Dr Phillips. At least by the time they gave their evidence, these experienced specialists were aware of the other stressors affecting the respondent, including the obviously traumatic stress of the original accident and its sequelae. Further details of the psychiatric evidence about the aetiology of the mental illness are given below. The psychiatrists agreed that it was an aspect of the illness that correcting the mistake which triggered obsession would not remove the condition (Dr Mitchell at 182, Dr Klug at 235-6, Dr Phillips at 260).
Further corroboration about causation came from the evidence of the respondent and several of her friends. These were accepted as witnesses of truth. The respondent described the notification about the blood alcohol level as the "straw that broke the camel’s back". This evidence was accepted and the finding on causation has not been displaced on appeal.
Remaining issues
Closer examination of the aetiology of the depressive illness is required for the remaining issues in the appeal. These involve the appellants’ challenges to duty of care, the necessity for proof of shock-induced psychiatric illness and reasonable foreseeability of psychiatric illness through shock.
The respondent did not suffer post traumatic stress disorder (PTSD)
The respondent submitted that she had suffered post traumatic stress disorder (PTSD) according to the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association. Alternatively, the Court was invited to extend these criteria by analogy to the respondent’s illness.

100 PTSD is widely recognised. However, it remains controversial in the courtroom (see Mendelson, “Post-traumatic Stress Disorder and Litigation” and Slovenko, “Surveying the Attacks on Psychiatry in the Legal Process” in (1999) 15 Australian Forensic Society Bulletin).

101 The attempt to attract the label of PTSD was a legitimate forensic tactic which might have assisted in meeting the appellants’ arguments concerning the need to establish a “shock-induced” illness and as to foreseeability. It is an example of the phenomenon observed by Kirby P in Campbelltown CC v Mackay (1989) 15 NSWLR 501 at 503-4 where his Honour spoke of the difficulties of linking the artificialities of the present law with contemporary psychological understanding.

102 The illness suffered by the respondent was not PTSD according to the criteria of DSM in 1992 or today.

103 According to the Law Commission (UK), Liability for Psychiatric Illness (Law Com No 249, 1998) pars 3.4 and 3.5:

3.4 The phrase “post-traumatic stress disorder” was coined in the 1970s and was officially recognised with the publication of DSM-III” - the American Diagnostic and Statistical Manual of Mental Disorders - in 1980. Veterans returning from the Vietnam War were found to be suffering from severe stress and in need of treatment, yet there was no diagnosis to fit their syndrome. PTSD was a concept created to meet that need. However, the acceptance of PTSD among psychiatrists has not been universal and the diagnosis remains controversial …
3.5 The diagnostic criteria for PTSD in DSM-IV require that the person develop characteristic symptoms following exposure to a traumatic event (frequently referred to as the ‘stressor’) in which (i) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and (ii) the person’s response involved intense fear, helplessness, or horror. A diagnosis of PTSD under ICD-10 [the International Classification of Diseases] requires that the individual have been exposed to a stressful event or situation (either short- or long-lasting) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone.

104 PTSD may only have been defined in 1980. But there is a vast debate as to whether it is a new phenomenon. The history of post-traumatic illness (PTI) and PTSD is traced by Dr Stephen O’Brien in his monograph Traumatic Events and Mental Health 1998, Cambridge University Press. He states that:

There appears to exist clear evidence that PTSD is an illness or disorder, and thus that it is not “normal”.
•At its simplest, the fact that PTSD is included in DSM-IV as a mental disorder indicates that it is one.
•There is considerable support for the contention that there is a recognisable pattern of symptoms, even if none is pathognomonic.
There is a body of evidence that the symptoms of PTSD do occur together, and also that they are consistent across populations. This latter is a necessary requirement for establishment of a diagnosis. … There is plenty of evidence that, in victims of crime, in veterans, and in disaster victims, there is a common pattern of symptoms that occurs despite the differing types of trauma. The symptoms of PTSD have been shown to have good internal cohesion and high interrelation.
•PTSD is clearly a source of distress and disability. The new diagnostic criteria of DSM-IV demand that there be identifiable disability in occupational, social, or other important area of functioning, in order to make the diagnosis. (p37, references omitted)

105 The Diagnostic and Statistical Manual of Mental Disorders, 3rd ed (DSM-III) was published in 1987.

106 The current DSM-IV was published in 1994. A comparison of DSM-III and DSM-IV bears out Dr O’Brien’s conclusion (op cit p125) that the progression in DSM has been a relaxing of the stringency of the stressor criterion. Initially PTSD was only considered to be a possibility following extreme or disastrous stressors. The range of “qualifying” stressors has been widened. The focus of the stressor criterion has moved away from the nature of the stressor to the nature of the perception of the victim, so that the current DSM-IV criterion requires two elements. The sufferer must have “experienced”, “witnessed” or “been confronted by” a threat to “physical integrity” or worse. The sufferer must also have responded with “intense fear, helplessness, or horror”.

107 Section 309.81 of DSM-IV sets out at length the diagnostic features of PTSD as defined in DSM-IV. The first portion states:

The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate (Criterion A1). The person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganized or agitated behaviour) (Criterion A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent reexperiencing of the traumatic event (Criterion B), persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criterion C), and persistent symptoms of increased arousal (Criterion D). The full symptom picture must be present for more than 1 month (Criterion E), and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning (Criterion F).

108 Elsewhere in §309.81 of DSM-IV it is emphasized that the stressor must be of an extreme (ie life-threatening) nature. Several examples are provided, none of them coming close to the event which triggered the respondent’s psychiatric illness.

109 The evidence seems fairly clear that at least until the mid 1990s the consensus of psychiatric opinion as embodied in the fairly authoritative DSM was that the phenomenon known as PTSD required a type and intensity of stressor more significant than that which affected the respondent. None of this is to deny the linkage between the respondent’s psychiatric depressive illness and the police mistake. But the linkage is to be found outside the area of discourse associated with PTSD.

The medical evidence as to the aetiology of the illness

110 Dr Mitchell’s reports mention PTSD, but not in the sense of concluding that the diagnostic criteria for PTSD were satisfied with respect to the illness stemming from the police mistake. Sometimes she used PTSD in the context of problems stemming directly from the accident itself (SAB 2, AB 197). At other times she wrote that the respondent suffered post-traumatic stress symptoms in consequence of the impact of the police mistake. Dr Mitchell linked the psychotic depressive illness to the police mistake and its impact upon a vulnerable victim. In her oral evidence, she referred to the police mistake as a trauma (AB 189) and made a passing reference to DSM-IV but in the limited context of being authority for the proposition that one aspect of the psychiatric illness is the inability to accept that a mistake has been counteracted (AB 182).

138 Applying these principles, I conclude that the respondent’s psychiatric illness was not reasonably foreseeable, whether or not the test requires reasonable foreseeability of psychiatric illness through “shock”.

139 The trial judge was correct to find that Acting Sergeant Beardsley knew, or should have known, of the importance attached to a P4 police report. And it is clear that the officer ought to have foreseen that the particular report which he was completing could come to the attention of the respondent and of persons about whose opinions the respondent might be concerned. But nothing more of consequence was reasonably foreseeable.

140 When he carelessly completed the P4 form, Acting Sergeant Beardsley knew or ought to have known about the totality of the information in it. That conveyed a clear picture that Lavender was solely at fault for an accident in which the respondent was injured. He also probably knew that criminal charges would follow if they had not already been commenced.

141 The reasonable observer sitting at the police officer’s shoulder would conceive it likely that Mrs Tame would take umbrage or even be outraged to read that she had a high blood alcohol content; but it would, I think, appear equally likely that she would perceive that the entry was a mistake and a fairly obvious one. The identical blood alcohol reading was shown for each driver. Everything else on the form pointed solely to Lavender’s guilt.

142 Acting Sergeant Beardsley’s reasonable bystander would also be imputed with the knowledge that the mistake would be corrected readily if discovered and drawn to the attention of the Police Service and that the erroneous P4 Report was therefore incapable of having lasting impact as a source of evidence. It would also be reasonable to perceive that Mrs Tame herself would at all times know the true situation.

143 Nothing in the evidence suggests any basis for the police officer perceiving that shock and a psychiatric illness induced by it (Jaensch at 563) were a reasonably foreseeable consequence of the mistake. To my mind, this was so whether one assumes a normal standard of susceptibility or whether one merely takes into account the robustness of the population at large. Whatever the respondent suffered, it was not PTSD as promulgated in the DSM current at the time. Looking backwards from the trial, the medical evidence may have established causation according to the law’s relatively easy standard, but it did not show any corpus of knowledge even amongst the cognoscenti that this sort of trigger might be expected to cause psychiatric injury (contrast Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 328-335). A fortiori, psychiatric injury to a person of normal fortitude.

144 The risk that Acting Sergeant Beardsley’s negligent act might cause the respondent “shock” or a psychiatric illness induced by it was far-fetched or fanciful. Regretfully it happened, but liability does not ensue in what remains a fault-based system of negligence.

The evidence as to the aetiology of the respondent’s illness did not satisfy the orthodox legal requirement of a sudden affront to the sensory system

145 I would also accept the appellants’ submission that the respondent fails on a narrower basis, in that a necessary element of the cause of action is missing. This is the requirement that the psychiatric injury stem from a sudden “shock”.

146 The respondent accepts that the traditional common law rule is that, in the absence of negligently inflicted physical damage, psychiatric damage must result from a sudden impact to the sensory system rather than a gradual deterioration in mental health (Written submissions par 33).

147 Brennan J in Jaensch v Coffee (1984) 155 CLR 549 said (at 565):

... A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by “shock”. Psychiatric illness caused in other ways attracts no damages, though it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable to the child.

Later (at 567) he said:
I understand “shock” in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of a distressing phenomenon if essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tortfeasors.

148 Deane J (with whose reasons Gibbs CJ was in general agreement) also appeared to recognise the need in a nervous shock action for the psycho-neurosis or mental illness to be the result of a sudden shock suffered by the plaintiff (see at 602, 606).

149 The English common law contains a similar requirement. According to Lord Ackner in Alcock at 400-401:

… Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways, such as by the experience of having to cope with the deprivation consequent upon the death of a loved one, attract no damages. [His Lordship cited the two examples given by Brennan J in Jaensch at 565 (above).] .… 'Shock,' in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which wildly agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.

See also Lord Keith (at 398) (“a sudden assault on the nervous system”) and Lord Oliver (at 411) (“the sudden and unexpected shock to the plaintiff's nervous system”). See also Sion v Hampstead Health Authority [1994] 5 Med LR 170 (CA) and generally Teff, “The Requirement of ‘Sudden Shock’ in Liability for Negligently Inflicted Psychiatric Damage” (1996) 4 Torts L Rev 44.

150 In Campbelltown CC v Mackay (1989) 15 NSWLR 501 McHugh JA (with whose reasons Samuels JA agreed) held (at 507-8) that the matter was foreclosed by the decision in Jaensch. Based on this view, he said in effect that a plaintiff in an action for pure psychiatric illness, as distinct from one when the illness stemmed from physical injury, damage to property or defamation, had to establish that the psychiatric illness is the result of a shock caused by the sudden perception of some phenomenon from which the defendant is responsible (see at 511). Kirby P reserved his position as to the correctness of the parties’ concession to this effect (see at 503-4. See also Coates at 8-11).

151 I accept that the views of McHugh JA and Samuels JA in Campbelltown CC both represent the existing common law as declared by this Court and correctly interpret the reasoning of the majority of the High Court in Jaensch. See also Chiaverini v Hockey (1993) Aust Torts Rep ¶81-223; Buljabasic v Ah Lam, Court of Appeal, unreported, 3 September 1997. In the circumstances, such advances in psychiatric knowledge as may have occurred in the last decade offer no basis for ignoring this deliberately adopted control mechanism. If there is to be change, it is a matter for the High Court (see Garcia v National Australia Bank Ltd (1998) 194 CLR 395).

152 I content myself with the following observations about the orthodox position:

153 (1) Arguments for challenging the traditional position are marshalled by the Law Commission (UK) op cit, Teff op cit, and by the respondent's counsel Mr N J Mullany in his note in (2000) 116 LQR 29. See also Frost v Chief Constable of South Yorkshire Police [1998] QB 254 at 271 per Henry L J, White at 489 per Lord Goff.

154 (2) The traditional position conceded by the respondent sits uneasily with cases where liability for "pure" nervous shock has been found without the requirement of a sudden assault on the nervous system. These cases seem, however to be distinguishable on the basis that the particular relationship between the parties contained additional factors which established the necessary "proximity" to give rise to a duty of care (see Jaensch at 611). I include Barnes v Commonwealth (1937) SR(NSW) 504 (discussed above) and Furniss v Fitchett [1958] NZLR 396. Most importantly, there are several occupational stress cases where the employer’s general duty to provide a safe system of work has been sufficient to generate a duty even in the absence of the usual control factors in nervous shock cases. This is no longer the law in England (see White). I discuss this matter at further length in my judgment in State of New South Wales v Seedsman [2000] NSWCA 119.

155 (3) Whatever philosophical principles inform tort law in Australia, there is consensus that something more than unreasoning fear of “flood gates” of new litigation explains continuing reluctance to embrace the proposition that foreseeability alone should govern in this area. Cogent reasons for treating this area as different in some respects from the law of negligence in its application to personal injury and property damage are given by Lord Steyn in White (at 493-4) and the Law Commission UK, op cit at pars 6.5-6.8. Beneath some of the debate lie dimly enunciated positions about the role of tort law as an instrument of corrective and/or distributive justice. Whether or not White reflects the Australian law in this field, the speeches of Lord Steyn and Lord Hoffmann are (with respect) remarkable and commendable in their explicit discussion of these matters. Cf also Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 284, 289 (McHugh J), Perre v Apard Pty Ltd (1999) 73 ALJR 1190 at [103], [151] (McHugh J), McFarlane v Tayside Health Board [1999] 3 WLR 1301. I discuss these broader issues in a recent paper “Fault, Causation and Responsibility: Is Tort Law Just an Instrument of Corrective Justice?” which is to be published in the Australian Bar Review in the near future.

156 (4) Depressive illness is widespread and it appears to be on the increase. Its origins are frequently uncertain and almost invariably the product of many factors. Some factors are genetic, other stressors are external to the patient. Some will be the consequence of a trauma, but frequently (as in the present case) a trauma that affects a plaintiff differently than most members of the public. The difficulties of fact-finding and decision-making referable to the inevitable disputes between psychiatrists in this area are themselves a significant transactional cost for the system of justice, including litigants. That cost cannot be ignored by a court invited to alter transmitted orthodoxy, even incrementally. Simply because the present state of the law is arbitrary does not mean that it is necessarily irrational or indefensible.

157 Dr Phillips’ reference to the 1994 article in the British Journal of Clinical Psychology discussed above was to emphasise the point that the commonly-experienced symptoms of PTSD such as intrusive images, avoidance and disordered arousal did not have to come from what the article described as a “single, acute, dramatic episode” (AB 1728P).

158 Although the respondent was seen by her general practitioner and by a counsellor not long after discovery of the police mistake, nothing that she said or did on those occasions suggested evidence of symptoms of an immediate shock in the sense indicated by Brennan J in Jaensch. Undoubtedly the respondent was surprised, hurt and “shocked” (in the lay sense) by discovery of the police mistake through the conversation with her solicitor. She got on the phone to the police promptly, but admission of the error did not assuage her, particularly since it was accompanied by Constable Morgan’s “what do you want me to do about it” remark. Absence of early complaint does not itself negate “shock” in the legal sense. However, it was the rumination that triggered the symptoms of the respondent’s psychotic depression. It was significant to the respondent that the mistake was made by police, persons in authority, and that it affected her amour propre as a law-abiding citizen. As she put this information side by side with her continuing concern about the insurer’s delay in meeting the physiotherapy bills, various theories commenced to form in her mind. Some even involved belief as to her own fault in the original accident.

159 The respondent's depressive illness did not come about as the result of a sudden sensory perception in the sense required in the authorities.

Foreseeability of damage

160 Proof of causation of damage is not sufficient for a plaintiff, nor is proof of a plaintiff’s special vulnerability sufficient for a defendant. Even where there is a duty and a breach, it must be shown that the damage suffered was not too remote.

161 Damage must be reasonably foreseeable. In the normal case of physical injury the test is, in Glass JA’s words, an “undemanding one” (Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641). Probability of occurrence is not required, it is sufficient that the risk is not one that is far-fetched or fanciful.

162 When dealing with duty, I concluded that risk of injury was not reasonably foreseeable, whether or not one assumed a potential victim of normal fortitude. It follows that, were duty and breach established, I would still conclude that damages were not recoverable.

Postscript

163 This was not pleaded or fought as a defamation case. Had it been, and had the respondent established liability, then her damages could have included compensation for psychiatric injury (see Rigby v Mirror Newspapers Ltd (1963) 64 SR(NSW) 34; Campbelltown CC at 511). But different hurdles would have had to be overcome before that step was reached.

Orders

164 The appeal should be upheld with costs. The orders in the District Court should be set aside. A verdict should be entered in favour of the defendants, with costs. The respondent should have a certificate under the Suitors Fund Act if qualified.

165 The respondent sought leave to cross-appeal in relation to the particular costs orders made at trial. The application had many difficulties. The reversal of the verdict below makes it unnecessary to consider it further. The respondent’s summons should be dismissed with costs.

166 HANDLEY JA: In this appeal I have had the benefit of reading the judgments of the Chief Justice and the President in draft form. I agree that the appeal should be allowed and judgment entered for the defendants in the action. I do so because in my judgment, for the reasons they have given, Acting Sergeant Beardsley owed no duty of care to Mrs Tame to avoid exposing her to the risk of psychiatric injury. She was not a person of ordinary fortitude and the risk of her suffering psychiatric injury as a result of learning about the contents of the police accident report was not reasonably foreseeable. The risk in my view was “far-fetched or fanciful” (Wyong Shire Council v Shirt (1980) 146 CLR 40, 48 per Mason J).

167 I also agree with the President that the action fails because Mrs Tame did not suffer nervous shock as a result of learning about the mistake in the report. That is, she did not suffer a sudden affront or assault on her psyche from the perception of a horrifying event which is a necessary pre-condition for liability for psychiatric damage in a case such as this, as explained by Brennan J in Jaensch v Coffey (1984) 155 CLR 549, 565, 567; and subsequent decisions of this court.

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LAST UPDATED: 16/05/2000