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"
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.
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,
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Morgan v Tame [2000] NSWCA 121
Case
[2000] NSWCA 121
Decision Date
CaseChat Overview and Summary
In *Morgan v Tame*, the High Court of Australia considered an appeal concerning the tort of negligence, specifically in relation to psychiatric injury. The dispute arose from an incident where the respondent, Ms. Tame, alleged she suffered psychiatric harm as a result of witnessing the appellant, Mr. Morgan, a police officer, shoot and kill her former de facto partner. Ms. Tame claimed Mr. Morgan owed her a duty of care and had breached that duty, causing her injury.
The central legal issues before the High Court were whether Mr. Morgan owed Ms. Tame a duty of care to avoid causing her psychiatric injury, and if so, whether that duty had been breached. Crucially, the court had to determine the test for establishing the reasonable foreseeability of psychiatric injury in the context of negligence, particularly whether the injury must be caused by shock in the form of "sudden sensory perception" and whether the plaintiff must be of normal fortitude.
The High Court held that for psychiatric injury to be reasonably foreseeable, it must be established that a person of normal fortitude would have been susceptible to psychiatric injury in the circumstances. Furthermore, the court clarified that the injury must be caused by shock, which is understood as a sudden sensory perception, such as seeing or hearing an event, rather than a gradual realisation of a distressing fact. The court found that Ms. Tame's psychiatric injury was not caused by such a sudden sensory perception, and therefore, the necessary element of foreseeability for a duty of care to arise in negligence was not met.
Consequently, the High Court allowed the appeal, set aside the orders of the District Court, and entered a verdict for the appellants. The respondent's summons for leave to cross-appeal was dismissed.
Orders
Orders of the court
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