Mount Isa Mines Ltd v Pusey

[1970] HCA 60

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Walsh JJ.

MOUNT ISA MINES LTD. v. PUSEY

(1970) 125 CLR 383

23 December 1970

Negligence

Negligence—Duty of care—Damage—Nervous shock—Not necessary for particular type of mental illness to be reasonably foreseeable—Class of persons to whom duty owed—Remoteness of damage—Susceptibility of plaintiff to particular harm.

Decisions

December 23.
The following written judgments were delivered: -
BARWICK C.J. The appellant employed the respondent as an engineer in its powerhouse at Mount Isa. It also employed there two electricians, by name Kuskopf and Docherty. On a day when the respondent was working in the powerhouse the two electricians carried out a test on a switchboard in the powerhouse using for that purpose a multi-meter. Because of their mishandling of this instrument a short circuit of high tension current was caused with the result that the two electricians were severely burned by an intense electric arc. The short circuit caused a loud noise which was heard by the respondent as an explosion where he was working on the floor below that where the switchboard was located. The respondent who was carrying out the duties of an assistant charge engineer hastened to the scene and found Kuskopf, with whom he was unacquainted, naked and, as he put it, "just burnt up". He went to his aid supporting and assisting him down through the building to ground level where he was placed in an ambulance. The respondent did not see Docherty but later heard that Docherty had died the day following the incident. Kuskopf lived about nine days and thereafter the respondent learnt of his death. The respondent went about his work in the appellant's employ for some four weeks or so succeeding the incident without any apparent consequence to himself or to his health. But after that time he developed symptoms which indicated that he was suffering from a serious mental disturbance. According to the medical evidence produced at the trial he developed a profound psychiatric disability broadly comprehended in the term "schizophrenia". This according to that evidence is a "severe type of mental disturbance including disturbance of thought, disturbance of mood and disturbance of behaviour and personality". (at p387)

2. In an action in the Supreme Court of Queensland against the appellant for breach of a duty of care owed by the appellant to the respondent, the respondent was awarded damages for his mental injuries. An appeal against that judgment to the Full Court of the Supreme Court of Queensland was unsuccessful (1970) Qd R 1 The appellant on appeal to this Court now seeks to reverse the judgment for the respondent. (at p387)

3. In carefully expressed reasons for judgment the learned trial judge found that Kuskopf and Docherty were careless in the manner in which they used the multi-meter and that the appellant was in breach of its duty as an employer towards its employees in failing to instruct Kuskopf and Docherty in the proper way to use the multi-meter. He found that the respondent suffered a psychological disturbance manifesting itself in a form of schizophrenia as a direct result of seeing and assisting Kuskopf. He was of opinion that this disturbance came from a form of "shock or nervous shock". He found that a reasonable employer ought in the circumstances to have foreseen that a short circuit in high tension current caused by the misuse of the multi-meter would create a considerable electric arc and that the employees using that instrument might be so seriously injured that employees nearby including those who might go to their rescue might in so doing themselves sustain injury. He thought that injuries which the employer ought to have foreseen could result from the employees' misuse of the multi-meter could include what he described as "gruesome burning injuries". The trial judge further found that a reasonable employer in the circumstances ought to have foreseen that a fellow employee seeing another employee suffering from such gruesome burning injuries might well suffer some psychological reaction of more than a transient kind. He did not find that the specific psychological reaction which as he thought was the direct result of the respondent having seen Kuskopf's injuries was foreseeable by the appellant. However, he took the view that to establish liability it was enough that the employer ought to have foreseen the possibility of an employee suffering an injury within the broad category of injury of which the respondent's condition was a particular manifestation. (at p388)

4. The primary challenge of the appellant to the judgment of the primary judge is that he ought to have found that the precise mental condition from which the respondent suffers was not foreseeable as a possible consequence of the appellant's lack of care for the safety of its employees. But the appellant also submitted that it ought not to have been held that any kind of psychological reaction or disturbance was reasonably foreseeable as such a possibility. (at p388)

5. The third submission was that it ought not to have been found that the respondent's mental condition manifesting itself some weeks after the incident was causally related to the effect on the respondent of his view of, or contact with, Kuskopf. It was said that whatever that effect was, it was but transient and itself not compensable. The ultimate disturbance of the respondent's mental condition on this submission was due to his own subsequent, and as it were, autogenous brooding on the "incident". There was no physical or ostensible injury, so it was said, sustained at the time of the incident and none subsequently caused by it. (at p388)

6. These are the only matters raised for our consideration in this appeal. The appellant relied on expressions in the advice of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock &Engineering Co. Ltd. (The "Wagon Mound" (No. 1)) (1961) AC 388 in submitting that unless the injuries to the respondent were foreseeable no liability attached to the appellant either for its want of care in failing to instruct the electricians in the use of the multi-meter or for any want of care by the electricians in their use of the multimeter. It was not contended nor, in my opinion, could it be contended, that the respondent's mental condition if it in fact resulted from the "shock" - if that be a sufficiently precise description - of seeing his fellow employee "alight" was not an injury for which damages could be given. Nor was it contended, as I understand the appellant's argument, that if the respondent in supporting Kuskopf had himself been physically burned, he could not have recovered from the appellant damages for such an injury. In any case it might be observed that the respondent came to the scene in the course of his employment and that he should do so in the circumstances might well be thought to be within the area of foreseeability to be attributed to the appellant, his employer. (at p389)

7. I therefore find no need to discuss the development of the law with respect to the award of damages for what is called "nervous shock": nor do I find any need to discuss the implication of the decision in The "Wagon Mound" (No. 1) (1961) A.C. 388, nor the difficulties which an attempt to solve all questions of duty and damages by the single test of foreseeability will raise. (at p389)

8. Accepting for the purposes of this case that liability is all one question depending solely on foreseeability, I turn to consider the very limited submissions made in this case. I have set out the relevant facts and circumstances. Basically they are that an owner-operator of a powerhouse uses conductors carrying electricity at a high voltage: it employs persons whose duties include the taking of readings by means of a multi-meter. I cannot doubt that it could properly be held that as an employer such an owner-operator could and ought to foresee that misuse of such an instrument in connexion with a high tension current of electricity might, through an intense electric arc, cause an employee in proximity to the conductors carrying such current to be severely burnt. I think it could be held that such an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen. So much I think is within the ordinary experience of people who work with electric current, particularly electric current at a high voltage. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances. (at p390)

9. But the appellant points to evidence of medical practitioners in the case which says that the particular injury of the respondent was a rare consequence or reaction to follow emotional excitement or stress. Indeed an experienced psychiatrist had seen only one other like case to that of the respondent in his eighteen years of practice as a specialist. However, that practitioner insisted that, though unusual, a reaction such as that of the respondent to such an experience as he had had, was not "unexpected". (at p390)

10. But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established. (See e.g., Chapman v. Hearse (1961) 106 CLR 112, at p 115) (at p390)

11. Therefore, in my opinion, there is no reason to disturb the primary judge's finding that a mental disturbance of some kind was, in the circumstances, foreseeable as a possible consequence of a want of care in the handling of the electrical apparatus: or his conclusion that such a finding was sufficient to render the appellant liable for the particular mental disturbance suffered by the respondent. (at p390)

12. There remains the submission that that mental disturbance ought not to be held to be causally related to the incident. The primary judge clearly found that, though delayed in its manifestation, the schizophrenic condition of the respondent was directly related to the effect the view of, and contact with, the burning man had had upon him. It seems to me that the appellant's submission amounts in reality to no more than saying that the particular make-up of the respondent contributed to the resulting mental disturbance and that such an experience as he had had would not have caused a person of a different disposition to have become similarly disturbed. But that is clearly no answer to the respondent's claim for damages. In my opinion, the primary judge's conclusion as to the causal relationship between the incident and the respondent's schizophrenia ought not to be disturbed. (at p390)

13. For these reasons, in my opinion the appeal should be dismissed. (at p390)

McTIERNAN J. In my opinion the appeal should be dismissed. (at p391)

2. It is established by the evidence that the respondent sustained mental shock at seeing the severe burns suffered by Kuskopf in the accident. It does not appear that the respondent would be abnormally susceptible to emotional distress at the sight of the pathetic. But it does appear from the evidence that the respondent's emotional sensibilities were violently agitated by contact with Kuskopf. The trial judge found that, by reason of that experience, the respondent suffered mental illness and physical disability and awarded him compensation in respect of such damage. (at p391)

3. The appellant admits at this stage of the proceedings that it owed its employees a duty of care in relation to the electrical test which Kuskopf and a fellow workman were making in the switchroom of the powerhouse when the accident happened and that such duty was not discharged. It was reasonably foreseeable that any employees who were in the switchroom or in proximity to it might be injured if a short circuit resulting in a large electric arc occurred in the course of the test. The respondent was on a lower floor when the test was commenced. The events which have to be considered to decide whether it was reasonably foreseeable that the respondent might encounter a victim of the accident can be stated shortly. He heard the noise of the explosion on the floor above and went immediately to that floor. It was reasonable for him to do this (because he was actually a foreman on the appellant's staff), even though it was not obligatory that he should go upstairs to make an investigation. On arrival he saw a figure near the door of the switchroom and surrounded by smoke issuing from the room. There is no evidence that all electrical discharges had then ceased. The figure proved to be Kuskopf. I do not repeat the evidence regarding the burns on his body. Suffice to say that they were ghastly. (at p391)

4. The onset of the shock sustained by the respondent at his encounter with Kuskopf was "fairly contemporaneous with the casualty": see Chester v. Waverley Corporation (1939) 62 CLR 1, at p 31 per Evatt J It is clear that the onset of the shock sustained by the respondent was a consequence of the negligent conduct of the appellant in relation to the electrical test mentioned above. In my judgment this consequence fell within the range of reasonable foreseeability. (at p391)

5. The mental illness suffered by the respondent was diagnosed as an acute schizophrenic reaction. It appears from the evidence that this type of illness seldom results from emotional distress such as that suffered by the respondent. Counsel for the appellant therefore contended that the appellant should not be found liable in damages. In my opinion it was not necessary in order to hold the appellant liable that, as a prudent employer, he should foresee the prcise damage which would occur if he failed to discharge his duty of care. The evidence does not show that the type of damage in question could not be foreseeable by the prudent employer. (at p392)

MENZIES J. This is an appeal from the judgment of the Supreme Court of Queensland (Skerman J.) in favour of the respondent (the plaintiff) against the appellant (the defendant) for $10,000 for personal injuries caused by the defendant's negligence. (at p392)

2. An incident did happen in the defendant's powerhouse which, it is not now in dispute, was caused by the negligence of the defendant's management and of two of its employees who were electricians - Kuskopf and Docherty. The electricians, in the absence of proper instruction, made an incorrect electrical connexion and so caused a short circuit which threw an arc of electricity in which an intensely high temperature was generated by which Kuskopf and Docherty were burned to death in a grisly manner. Kuskopf had all his clothes burned off and was himself blackened. He did not die immediately. The plaintiff, who was working upon another floor of the building, heard the noise of the explosion caused by the short-circuiting and ran up a connecting ladder to investigate what had happened. He saw Kuskopf in the condition I have described and went to his aid. He put his arm around him and helped him to walk through the powerhouse down a flight of steps to an ambulance. The plaintiff, as a result of this experience and after the passage of some time, suffered acute schizophrenia. It was for this condition that he sought and recovered damages. (at p392)

3. The appellant's contention was that the risk of the injury which befell the respondent was one not reasonably foreseeable and, accordingly, the appellant owed the respondent no duty of care to safeguard him against it. The appellant's case, therefore, involved a major and minor premise. The major premise was that the duty of an employer to an employee does not go beyond the taking of reasonable steps to protect the employee from the risk of injury of a kind which a reasonable employer would have foreseen. The minor premise was that the risk of the injury which here eventuated, i.e. the plaintiff's schizophrenia, was not of a kind which a reasonable employer would have foreseen. (at p392)

4. I propose to decide this case upon the minor premise without considering whether the limited statement of the duty which was, it was argued, supported by observations in The "Wagon Mound" Case (No. 2) (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. Ltd.) (1967) 1 A.C. 617, is sufficiently comprehensive. (at p393)

5. The learned trial judge said (1967) 1 AC 617, at p 636:

"In the present case I think that the creation of an electric arc of fire was reasonably foreseeable by an expert in this field in the event of a short circuit occurring through the negligence of a servant or agent of the defendant. If, as happened, intense heat was created it was foreseeable that electricians in the powerhouse would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries. It is the fact on the evidence in this case that a schizophrenic reaction was a rare and most exceptional occurrence as was the chronic psychiatric disability which ensued but nevertheless, in my judgment, it was 'an injury of a class or character foreseeable as a possible result', as postulated in The "Wagon Mound" Case (No. 2). . . . I have come to the conclusion and find that the shock suffered by the plaintiff and its consequences were caused by the breach of the defendant's duty to the plaintiff and that the shock injury and the kind of illness that followed was of a kind or type which was reasonably foreseeable by the defendant in a general way with the result that I hold the defendant is liable to the plaintiff for damages, even though the extent of the damage was not foreseeable." (at p393)

6. Because I have not found any sufficient ground for differing from these findings I am of the opinion that the appeal should be dismissed. (at p393)

WINDEYER J. This case is the result of a "nervous shock" which the respondent, whom I shall call the plaintiff, suffered in April 1966. He was then employed by the appellant company as an engineer in the powerhouse at its Mount Isa mine. On the day in question two electricians, servants of the company, were working in the powerhouse on the floor above where the plaintiff was working. In the course of their duty in testing the electrical circuit and installations, they negligently misplaced on a switchboard the leads of an instrument they were using. The result was a short circuit of high-powered current. This caused two loud reports, described as explosions, and an electric arc of intense heat. The two electricians were horribly burnt. One of them died next day: the other, a man named Kuskopf, eight days later. The plaintiff when he heard the noise went at once to the upper floor to see what had happened there. In the smoke and confusion he saw Kuskopf. His clothes were burnt off: his skin was peeling: obviously he was grievously hurt. The plaintiff supported him and helped in getting him to the ground floor and to an ambulance. The plaintiff was distressed. After some days the shock of the event with the added knowledge that both men had died began to tell. He became depressed and suffered a severe schizophrenic reaction, with acute depression and an acute anxiety state. He became unable to do the skilled work on which he had been employed and was put by the appellant to routine tasks. He was away from work for considerable periods and under psychiatric treatment. (at p394)

2. There have been, in recent times, so many cases about nervous shock, and they have led to so much academic commentary, critical, learned and discerning, but not all harmonious, that the topic has now a special place in books on the law of torts, indeed in some it is virtually a rubric. But the term itself can be misleading, unless its meaning for law be defined and confined. (at p394)

3. Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a "shock", however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. It is in that consequential sense that the term "nervous shock" has come into the law. In the last reported case on this topic in England - Hinz v. Berry (1970) 2 QB 40 - Lord Denning M.R. said (1970) 2 QB, at p 42: "Damages are . . . recoverable for nervous shock, or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant." His Lordship was speaking of the breach of a duty of care founding an action for negligence. In Bunyan v. Jordan (1937) 57 CLR 1, at p 16, Dixon J (as he then was) said, of the facts of that case:

"On the medical evidence, the jury might find that the defendant's actions threw the plaintiff into a sufficiently emotional condition to lead to a neurasthenic breakdown amounting to an illness. I have no doubt that such an illness without more is a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, that is, supposing that the other ingredients of the cause of action are present. But I do think that upon facts like those I have stated it is impossible to formulate any cause of action in which the reasonable likelihood of harm of some such nature resulting from the act done does not form an essential element."

This passage is noteworthy: first, as an anticipation of the present-day rule that a cause of action for nervous shock depends on foreseeability of harm "of some such nature" as that which actually occurred. Secondly, it emphasizes that nervous shock cases are not a new tort: they turn simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort. Law, marching with medicine but in the rear and limping a little, has today come a long way since the decision in Victorian Railways Commissioners v. Coultas (1888) 13 App Cas 222, which in recent times has been regularly by-passed by courts. An illness of the mind set off by shock is not the less an injury because it is functional, not organic, and its progress is psychogenic. I need say no more on that aspect. I merely venture to refer to what, in a different connexion, I wrote in Federal Broom Co. Pty. Ltd. v. Semlitch (1964) 110 CLR 626, at pp 635-637, about mental ailments. The plaintiff has suffered harm of a kind that can sound in damages in some cases. Is this case one? That depends on whether the appellant was in breach of a duty to the plaintiff of care, extending to care lest he should suffer a nervous shock. (at p395)

4. In the latest (8th, 1967) edition of Winfield on Tort the learned authors (Mr. J. A. Jolowicz and Dr. T. Ellis Lewis) say (at p. 125) of nervous shock:

"It is obvious then, that the authorities are in a state of confusion, and the confusion is only slightly reduced by the preponderance of modern opinion in Bourhill v. Young (1943) AC 92 and King v Phillips (1953) 1 QB 429 that the problem in cases of nervous shock is one of duty and not of remoteness. Duty, it is agreed, depends upon foreseeability, but foreseeability, a vague concept at the best of times, is of quite exceptional vagueness when nervous shock is in issue."

I put alongside that a reference to Professor Fleming's remarks on nervous shock in his Law of Torts, 3rd ed. (1965), pp. 154-161, and quote one sentence:

"Evidently, the foresight test, whatever lip-service be paid to it, is incapable of providing either an adequate explanation of past decisions or a basis of reasonable prediction for the future."

In the latest edition of Salmond on Torts by Professor Heuston (14th ed. (1965), p. 289), after a reference to the facts and decision in Bourhill v. Young (1943) AC 92, it is said:

"But this decision is no more than an application of the principle of reasonable foresight to the facts of the particular case. The position of the plaintiff is a relevant (but not decisive) factor in detemining whether the defendant ought reasonably to have foreseen the risk of emotional distress. The final result is not unsatisfactory: yet the mass of confusing dicta which the cases contain is in truth due to a failure to appreciate the fundamental fact that the question cannot be answered solely by logic and that an issue of policy is involved for which the concept of reasonable foreseeability is by itself incapable of providing a solution."

I agree, but with a caveat to myself that it is not for an individual judge to determine the policy of the law according to his own view of what social interests dictate. The field is one in which the common law is still in course of development. Courts must therefore act in company and not alone. Analogies in other courts, and persuasive precedents as well as authoritative pronouncements, must be regarded. But I have not thought it necessary to gather together all the decided cases about nervous shock, or to try to reconcile all the dicta, or to pick and choose among all the commentaries. I am absolved from any obligation to do that for two reasons. One is that, although the argument for the appellant ranged widely and some aspects of it demand consideration and comment, the critical issue in the present case can, I think, be ultimately narrowed. The other is that the careful, learned and thoughtful judgments of the learned trial judge, Skerman J., and in the Full Court make it unnecessary for me to traverse all the ground that they cover, or to discuss all the cases there cited. I would, however, particularly acknowledge assistance I got from the comprehensive survey by Burbury C.J. in Storm v. Geeves (1965) Tas SR 252 (at p396)

5. Since the judgment of the Privy Council in The "Wagon Mound" (No. 1) (1961) A.C. 388, reasonable foreseeability of consequences has become the foundation on which the whole law of negligence is raised. It is implicit in Baron Alderson's time-honoured statement in Blyth v. Birmingham Waterworks Co. (1856) 11 Ex 781, at p 784 (156 ER 1047, at p 1049):

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

It is a risk of harm to the plaintiff, or to anyone of a class of persons of which he is one, that creates a duty of care and makes him a neighbour in Lord Atkin's sense. So much was generally accepted before the decision in The "Wagon Mound" (No. 1) (1961) AC 388 Foreseeability of harm imposed a duty to take reasonable care to avoid harm: it was thus a criterion of liability for negligence. But the extent of the harm for which damages might be recovered for breach of that duty of care was not then limited by harm that was foreseen or foreseeable. Lord Sumner had put the distinction succinctly when he said:

"What a defendant ought to have anticipated as a reasonable man is material when the question is, whether or not he was guilty of negligence, that is of want of due care according to the circumstances. This, however, goes to culpability, not to compensation": Weld-Blundell v. Stephens (1920) AC 956, at p 984

But Lord Simonds, delivering the judgment of the Privy Council in The "Wagon Mound", said (1961) AC, at p 417:

"Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law":

and In re Polemis and Furness, Withy &Co. Ltd. (1921) 3 KB 560 seen as the pinnacle of confusion was overruled by their Lordships. So that now we have the blessed, and sometimes overworked, word "foreseeability" as a single test for both the existence of liability in negligence and the extent of recoverable damage. (at p397)

6. Foreseeability here predicates the foresight of a reasonable man. The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v. Young (1943) AC, at p 111, "a reasonable hypothetical observer". He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary couse of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot shew that the event was foreseeable. Fullagar J. spoke of this in Rae v. Broken Hill Pty. Co. Ltd. (1957) 97 CLR 419, at p 422:

"The fact of the happening of the accident is, of course, itself a relevant consideration, but, in considering whether it ought to have been foreseen, it is wrong to take as the standard of comparison a person of 'infinite-resource-and-sagacity'." (at p398)

7. What I have said may seem trite to persons learned in the law of torts today. But I have said it because counsel for the appellant pressed us with passages in judgments about "foreseeable risks". I do not think that these carried him far, but they do raise some linguistic difficulties. The sense that the word "foreseeable" has acquired for lawyers may cause misgivings for philologists. Dixon J. in the passage I have quoted from Bunyan v. Jordan (1937) 57 CLR, at p 16, spoke of "reasonable likelihood". He preferred that expression. In Chapman v. Hearse (1961) 106 CLR 112, at p 115, he is reported as intervening in the argument to say so. However, the unanimous judgment of the Court in that case contained the following statement (1961) 106 CLR, at pp 120-121:

"Whether characterization after the event of its consequences as 'reasonable and probable' precisely marks the full range of consequences which, before the event, were 'reasonably foreseeable' may be, and no doubt will continue to be, the subject of much debate. But one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence."

The word "risk", adjectively qualified as "real", "remote", "serious" or "slight", can also cause difficulties. Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts. A man is culpably negligent if he failed to take measures, reasonably available, to obviate a risk "which would occur to the mind of a reasonable man in the position of the" defendant "and which he would not brush aside as far-fetched". That is how the Privy Council has expressed the matter: The "Wagon Mound" (No. 2) (1967) 1 AC 617, at p 643 It simply states how the mind of Baron Alderson's reasonable and prudent man would work. The decision in Bolton v. Stone (1951) AC 850, was prominent in the argument we heard about risk-created liabilities. That was to be expected. But that case must not be allowed to get out of its proper place in the law. It is enough to quote here two passages which shew that - one from the judgment of Lord Reid in the House of Lords in Carmarthenshire County Council v. Lewis (1955) AC 549, at p 565, the other from the judgment of the Privy Council in The "Wagon Mound" (No. 2) (1967) 1 AC, at p 642 Lord Reid said:

"In my view, Bolton v. Stone (2) establishes that if an event is foreseeable the antithesis of its being reasonably probable is that the possibility of its happening involves a risk so small that a reasonable man would feel justified in disregarding it."

The Privy Council said:

"In their Lordships' judgment Bolton v. Stone (1951) AC 850 did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man."

The contrast which in their judgment their Lordships spelt out between a mere possibility, a risk which a reasonable man might brush aside as far-fetched, and on the other hand a "real risk" but one that nevertheless might be "properly described as remote" may seem elusive and slippery if meticulous attention be fixed on words. The word "remote" has long had a place in the vocabulary of our law. It has commonly been used in relation to cause and consequence: a remote cause has been distinguished from the proximate cause: a consequence may be too remote to sound in damages. Sometimes too the phrase "remote risk" has meant an event which can be seen as a possibility, but one so unlikely to occur, or of such slight gravity of consequence if it should occur, that a prudent man might justifiably disregard it. This idea can be expressed by various words, as for example in the earlier cases quoted by this Court in Green v. Perry (1955) 94 CLR 606, at p 611 We must always beware lest words used in one case become tyrants over the facts of another case. (at p400)

8. Skerman J., the trial judge, found that the accident in the powerhouse was caused by negligences for which the defendant company, the present appellant, was responsible. By agreement between the parties he took into consideration in the present case evidence given in another action which had been heard by him at about the same time. In it the widow of one of the deceased men, suing on behalf of herself and her children, had claimed damages from the company for her husband's death. His Honour reserved his decision in that case, as in this. When he gave judgment in this case he incorporated his findings in that case so far as relevant. They were that both the deceased men were negligent in the way they had gone about testing the electric current; and that the company was negligent in failing to instruct them as to certain precautions which should have been taken before they used the multi-meter with which they were equipped; and that but for this breach by their employer of its duty to them the accident probably would not have occurred. These findings, which are not controverted, thus cast responsibility for the accident upon the appellant, vicariously as master for the negligence of its servants, and also primarily for a breach of its duty as employer to take reasonable care for the safety of its workmen. That duty, as formulated by this Court, "with some regard for precision" Dixon C.J. said, includes "instructing him" (the employee) "in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury": see Commissioner for Railways (N.S.W.) v. O'Brien (1958) 100 CLR 211, at pp 216-217 (at p400)

9. The dual basis on which the appellant was held by the trial judge to have been negligent is of some importance. It makes it unnecessary to determine whether, in a case based solely on an allegation of vicarious liability, the hypothetical reasonable observer, who is notionally asked whether he would have foreseen the occurrence, is to be regarded as standing in the shoes of the master or of the servant. That could involve the two debated theories of vicarious liability. Is the master liable because the law attributes to him the servant's acts and omissions as his? Or is he liable, truly vicariously, because liability for his servant's tort is imputed to him? This question was alluded to in the course of the argument. If it were necessary to determine it, I would for myself say, as I have said before this, that, however it is to be answered, I do not think we can overlook recent statements in the House of Lords; see Parker v. The Commonwealth (1965) 112 CLR 295, at pp 300-301 However, I can put the topic aside because of his Honour's finding that a breach by the appellant of its own duty of care was a cause of the accident. (at p401)

10. The question in the case is not was the happening of the accident foreseeable. That was involved in and is foreclosed by his Honour's finding of negligence, which was clearly supported by the evidence. The question is was it reasonably foreseeable that an accident of that kind, if it occurred, might have consequences for somebody of the kind that it had for the plaintiff. Whatever conclusion might have been reached when the doctrine of In re Polemis and Furness, Withy &Co. Ltd. (1921) 3 KB 560, held sway, a different inquiry is now demanded of us as the result of the decision of the Privy Council in 1961. That people in the powerhouse would go promptly to the scene of an accident there was obviously to be expected. If on reaching the upper floor the plaintiff had come in contact with some hot object or an exposed electric cable and been physically harmed by that or by any other abnormal condition created by the detonation, he would have had an indisputable claim to damages. But that is not what happened: and the suggestion that because the plaintiff could have had damages if he had suffered a different kind of harm he can now have damages for the harm he actually suffered calls to mind the "imaginary necktie" and Professor Goodhart's vigorous comments. (at p401)

11. In King v. Phillips (1953) 1 QB 429, at p 439, Denning LJ, as his Lordship then was, stated what seems to me to be a besetting problem in cases of nervous shock when he said:

"What is the reasoning which admits a cause of action for negligence if the injured person is actually struck, but declines it if he only suffers from shock? I cannot see why the duty of a driver should differ according to the nature of the injury. . . If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different."

However, his Lordship, constrained by the decision of the House of Lords in 1942, said, (1953) 1 QB, at p 441 ". . . there can be no doubt since Bourhill v. Young (1943) AC 92 that the test of liability for shock is foreseeability of injury by shock". This sentence was indorsed by the Privy Council in The "Wagon Mound" (No. 1) (1961) AC 388, at p 426, as a "statement of the law". "But", his Lordship had added (1), "this test is by no means easy to apply". Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including Chapman v. Hearse (1961) 106 CLR 112, and Hughes v Lord Advocate (1963) AC 837 This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large. The logical problem thus engendered has been noticed by commentators, including Professor Jackson in his learned and critical article "A Kind of Damage" in The Australian Law Journal, vol. 39, pp. 3-16. Lord Wright in Bourhill v. Young (1943) AC, at p 110 said:

"The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides."

That perhaps does not reckon with courts of appeal, and varying judicial opinions of where in good sense the proper stopping-place is. (at p402)

12. In what way does one test whether a particular harm is of the genus that was foreseeable? We have at least one "fixed and definite line". Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a "recognizable psychiatric illness". Whether particular consequences of the deranged mentality sound in damages is a different question: see for example Antonatos v. Dunlop, Allsopp and Transport and General Insurance Co. Ltd. (1968) Qd R 114 In the present appeal no question of the latter kind arises: and whether the plaintiff's mental disablement is best described in medical parlance as schizophrenia or by some other term does not matter. One of the psychiatrists who gave evidence did not like that term; but in his report he said he could not find "a more suitable diagnostic label". The plaintiff unquestionably developed a profound psychiatric disability however it be labelled. Perhaps it was latent and aroused by the experience. But, however that may be, the learned trial judge could find - and in my view he quite obviously rightly found - that this condition was a consequence of emotional shock on seeing and aiding the grievously hurt man. The medical witnesses agree that such a chronic pathological condition is a rare consequence of such a shock. But it is not unknown: and reasonable foreseeability is not measured by statistical probability. Moreover, as I have said, the question is not whether shock would be likely to produce this particular illness, but whether there was a real risk that a foreseeable accident such as occurred would cause a man in the powerhouse to suffer a nervous shock having lasting mental consequences. (at p403)

13. In Hinz v. Berry (1970) 2 QB, at p 42, Lord Denning M.R. this year said:

"The law at one time said that there could not be damages for nervous shock; but for these last twenty-five years, it has been settled that damages can be given for nervous shock caused by the sight of an accident, at any rate to a close relative."

In the present case the plaintiff was not a relative or friend of the man who was burnt. In fact he did not know him, except perhaps as a fellow in the powerhouse. Does that matter? I turn to that question. (at p403)

14. Courts have come - slowly, cautious step by cautious step - to give damages for mental disorders resulting from a man's seeing another person hurt, without himself having suffered physical injury or been in any peril of physical harm. A mother, or other near relative, who actually sees a child or other loved one hurt or killed or in imminent danger of being hurt or killed may suffer in mind, and sometimes indirectly in body, as the result of the shock. That this may happen is within the range of reasonable foresight. Such a person is therefore now taken to be a neighbour in Lord Atkin's sense, a person to whom a duty of care extends. But when, if at all, there is a duty of care for any other persons who may suffer shock from the spectacle of an accident, must, having regard to decided cases, be regarded as still for us an open question. We must now decide it. (at p403)

15. The decision of Donovan J., as he then was, in Dooley v. Cammell Laird &Co. Ltd. (1951) 1 Lloyd's Rep 271 and of Waller J. in Chadwick v. British Railways Board (1967) 1 WLR 912 were based on the view that it is not only the relatives of a person hurt or endangered who can have damages for nervous shock caused by an accident. In my opinion we should follow these leads. There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence. The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. This allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognized only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body. What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct. Whatever the basis of the special position which it has been supposed should be given to near relatives, one thing can be said of it. That is that its application was in cases where the duty of care arose simply out of the duty to a "neighbour" in the legal sense. Relatives of an injured person might be neighbours in that sense, and in time rescuers joined them. But curious strangers, or mere bystanders, like the pregnant fishwife, were not "neighbours". They were not, using Lord Atkin's words, persons "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected". But in the present case, the duty of care is not based simply on duty to a neighbour. It includes that but arises also independently from the legal relationship between the plaintiff and the defendant. It is the duty of care which a master has for the safety of his servant. Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be. That, I think, is this case. But I do not wish to be taken as saying that where a duty of care springs only from foreseeability of harm to a "neighbour", and not out of a relationship of status or of contract such as master and servant, a different result would follow. It is apparent, from many cases that have come before the courts, that persons other than relatives of persons hurt may genuinely suffer nervous shock, as the present plaintiff did, on witnessing another's suffering or danger in an unexpected accident. That is a foreseeable possibility, and not a fantastic or negligible one. The Cartesian distinction between mind and matter for a long time had an obdurate influence on men's thinking. The interrelation of mind and body was little understood and oftern unacknowledged. But this position has given way in medicine and should, I think, give way in law. (at p405)

16. But it is said that a person who in such circumstances suffers shock has no action for negligence unless he was emotionally and mentally a "normal" person, or, if he was a person of unusual susceptibility to shock that that was known, or ought to have been known, to the defendant. This proposition originates from remarks by Lord Wright in Bourhill v. Young (1943) AC, at p 110 There are decisions and dicta which follow and adopt it. I venture to question its validity for reasons I shall state. But first it is enough to say that, assuming it be correct to the full extent stated, it does not affect the present case. The plaintiff here was not before the accident obviously prone to nervous shock or to any psychological derangement. He had worked satisfactorily for the appellant for fifteen years. The trial judge, directing his attention to this aspect, found as a fact that there was "nothing in his personal or family or medical or occupational history" before the accident which would disqualify him as a plaintiff. I must add that I am not to be taken as assenting to the proposition that nervous shock caused to a man who is prone to such shock is not compensable when a similar occurrence harming a "normal" man would be. That, I think, should remain for us an open question. It does not arise in this case. I therefore say only a few words to indicate my misgivings. (at p405)

17. To begin with, the line of distinction postulated is not in any particular case easily drawn. The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. Waller J. referred to this in Chadwick v. British Railways Board (1967) 1 WLR 912, at p 922 (The case is also reported (sub nom. Chadwick v. British Transport Commission) in All England Reports (1967) 2 All ER 945, at p 952; but the relevant sentence is there not the same: one word seems to be mistaken.) His Lordship said:

"The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities." (at p406)

18. Next, the supposed rule does not, at first sight, stand well with the so-called "egg-shell skull" rule in relation to physical harm. That, Lord Parker C.J. has emphatically said, is still lively doctrine: Smith v. Leech Brain &Co. Ltd. (1962) 2 QB 405, at p 414 I have no doubt that we should agree and that it is still for us the law that a tortfeasor takes his victim as he finds him. The proposition that a man susceptible to nervous shock is not entitled to damages is said to be reconcilable with that, because it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality: only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him which a normal man would not suffer; only then would he be a tortfeasor and the man with an egg-shell mentality the victim of a tort. I appreciate that. Nevertheless I do not find the proposition easy. A mother who suffers a shock because she sees her child run over by a negligently-driven motor car is entitled to damages, apparently because mothers are likely to be near their children and prone to suffer shock if they see them hurt: yet a stranger who suffers shock because he sees the same happening is not entitled to damages unless he was a person not prone to shock, or it is suggested, with what logic is not apparent, if he was present as a rescuer. However, I need say no more about the position of persons prone to suffer shock, for the present plaintiff was not such a person. I wish only to guard myself for the future by saying that, as at present advised, I am not convinced that a defendant in cases of this sort can escape liability simply by shewing that, unknown to him, a person who suffered harm was easily harmed. (at p406)

19. It is worthwhile noticing here that the plaintiff in Dooley v. Cammell Laird &Co. Ltd. (1951) 1 Lloyd's Rep 271, recovered damages for nervous shock, caused by his seeing and being concerned in an accident, although he was not a relative of anyone involved, and no one was in fact hurt by the occurrence, and furthermore that he had before the accident suffered from neurasthenia which was made worse and accelerated in its course by the accident. I have not seen any suggestion that that case was not correctly decided. What I have said relates only to cases such as the present, industrial accidents - or to road accidents, resulting from negligence. I do not doubt that in some other situations the policy of the law prevents a man being liable for nervous shock suffered by susceptible persons. That is because men are not expected to go about their lawful occasions in such a way that they will not disturb the peace of mind of persons easily upset, unless in particular cases they were aware, or should have been aware, of the frailty and susceptibility of a "neighbour". (at p407)

20. The ways in which the law of liability for nervous shock has been developed by courts in England and here, and extended to new situations, have been empirical, with results and limitations that appear as pragmatical rather than as logical applications of principle. That does not mean that I think that cases are to be decided by a matching in detail of the facts of one case against those of another. But it does mean that in this field it is peculiarly true that circumstances alter cases. In the United States too similar questions have arisen. The answers there have varied in different courts and at different times; and the topic has produced much academic commentary. This is well brought out by the numerous references collected in a learned contribution to a recent number of the Fordham Law Review (May 1970), vol. 38, pp. 824-830. I need not pursue the American doctrines here. (at p407)

21. I repeat that in this case we are concerned with only one kind of occurrence causing nervous shock - a plaintiff employee in a factory seeing at the scene of accident there disastrous and pitiful consequences for another man. I need express no opinion and wish to guard against it being thought that I express any opinion on what would be the result if the facts were significantly different. In particular I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. If the sole cause of shock be what is told or read of some happening then I think it is correctly said that, unless there be an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news. That, however, seems to me remote from this case, and not to avail the appellant. No doubt the plaintiff's learning that the man who had been burnt had died added to his distress of mind: but it was not the sole or prime cause of it: cf. Andrews v. Williams (1967) VR 831 (at p407)

22. The judgments given in this Court in Scala v. Mammolitti (1965) 114 CLR 153 were referred to in the argument. But that case is only remotely relevant. It turned upon the law of New South Wales as laid down in Pt III, headed "Injury arising from Mental or Nervous Shock", of the Law Reform (Miscellaneous Provisions) Act, 1944 (N.S.W.). That statute was passed after the decision, in 1942, of Bourhill v. Young (1943) AC 92 It modifies the effect of that case. It means that in New South Wales a right of action for nervous shock resulting from a happening, tortiously caused, in which a member of the plaintiff's family was killed, injured or put in peril can be founded on the fact of the relationship of the plaintiff to the person so killed, injured or put in peril. If the plaintiff who suffered the shock is a parent, as defined, or husband or wife of such person, that is enough. If the plaintiff is some other "member of the family", as defined, that is enough if the event which caused the shock happened within his sight or hearing. The operation of the statutory provisions has been considered in New South Wales in several cases, including Anderson v. Liddy (1949) 49 SR (NSW) 320 and Smee v Tibbetts (1953) 53 SR (NSW) 391 It may be that in that State, by reason of an expressio unius, it is only a member of the family who can sue for nervous shock caused by the sight of a tortious injury to someone else. However that may be, it is of no importance in this case. This case turns on the common law and I am unable to see that any guidance as to the operation of the common law in Queensland today is to be had from considering the operation in New South Wales of a statutory modification of what the common law was in 1944; for in this field the common law has been and is being continuously developed by the courts. There is, however, one thing to be read in Scala v. Mammolitti (1965) 114 CLR 153 in which the statute accords I think with the common law. That is that liability for nervous shock, resulting from the sight of another person's injury or peril negligently caused, is not a by-product as it were of liability to that other person. The shock-producing event is a tort to the plaintiff. It does not matter whether the person hurt or endangered could himself have succeeded in an action. As I mentioned above, in Dooley v. Cammell Laird &Co. Ltd. (1951) 1 Lloyd's Rep 271, the only person who suffered harm was the plaintiff who suffered a nervous shock. And in any case the person whose suffering or peril it was that caused the plaintiff's shock might, for any one of a variety of reasons, fail if he himself brought an action against the defendant. (at p408)

23. For these reasons I consider that the order of the Full Court dismissing the appeal from the decision of the learned trial judge was right. This appeal should therefore be dismissed. (at p408)

WALSH J. The respondent claimed damages against the appellant in an action in the Supreme Court of Queensland which was tried by Skerman J. without a jury. It was an action in negligence. The respondent on 7th April 1966 was on duty as an employee of the appellant. Two electricians named Kuskopf and Docherty employed by the appellant were carrying out a test, using an instrument known as a multi-meter, on a switchboard in the appellant's powerhouse. In the course of the test the leads of the instrument were placed in contact with certain live parts on the switchboard and a short circuit was caused which in turn caused an electric arc and Kuskopf and Docherty received severe burns. When this incident occurred the respondent heard what he described as "some sort of explosion", followed by another explosion. He ran up a ladder to the floor above and there he saw Kuskopf standing with no clothes remaining on him and "just burnt up". The respondent supported the injured man and assisted him down to ground level. He did not actually see Docherty but knew that he was in the switchboard area. Later the respondent was informed of Docherty's death which occurred on the following day and later still he was informed of the death of Kuskopf, who died on 16th April 1966. (at p409)

2. The respondent claimed in the action that, as a result of those events, he suffered an acute schizophrenic reaction and that this disability was caused by the negligence of the appellant by its servants or agents. Skerman J. held that the respondent was entitled to succeed and entered judgment for him in the sum of $10,000. Subsequently, the Full Court of the Supreme Court of Queensland ordered that an appeal against that judgment should be dismissed (1970) Qd R 1 This is an appeal against that order (at p409)

3. Before I refer to the submissions made on behalf of the appellant, some important facts found by the learned trial judge should be mentioned. The injuries suffered by Kuskopf and Docherty were, in part, the result of their own negligence. But it was found also that the appellant was guilty of "personal or managerial negligence" in failing to instruct those employees that the multimeter instrument which they were using in "testing for dead" should be proved on a low capacity fused system. It was found that the respondent suffered a schizophrenic reaction and a severe type of mental disturbance as a direct result of seeing and assisting Kuskopf. This, said his Honour, "amounted to a form of ill-health within the meaning and scope of the term 'shock' or 'nervous shock' which has been the subject of discussion in many reported cases". His Honour found also that it was foreseeable that if a short circuit occurred and an electric arc was created the electricians in the powerhouse would be injured and that other employees in the building might go to the rescue and sustain burning injuries. It was foreseeable that "some employee might sustain gruesome burning injuries". (at p410)

4. In the argument for the appellant the findings to which I have just referred were not disputed. Therefore it is not now in dispute that a breach of the duty which the appellant had to its employees Kuskopf and Docherty, consisting of a failure to instruct them properly concerning the test to be performed by them, was a cause of gruesome injuries suffered by them. It is also not in dispute that the circumstances were such that it was foreseeable that persons of a class which included the respondent might go immediately to the assistance of a person so injured. It is not in dispute that the respondent did go to the assistance of Kuskopf who had been gruesomely injured and that the injury to the respondent, in respect of which he brought the action, was in fact the result of his experience in seeing and assisting Kuskopf when he was in that condition. (at p410)

5. What is disputed is that it was reasonably foreseeable that the respondent would suffer any injury of the kind which did, in fact, occur. It was said that it has been settled by the decision in Overseas Tankship (U.K.) Ltd. v. Morts Dock &Engineering Co. Ltd. (The "Wagon Mound" (No. 1)) (1961) AC 388 that there cannot be liability for negligence for damage which is not of such a kind as a reasonable man should have foreseen. It was contended that in the present case the finding was not open or, at least, was clearly wrong, that it was foreseeable that the respondent would suffer any such significant mental illness or disturbance as the schizophrenic reaction which did occur. It was not foreseeable that he would suffer any injury which could be described as being of the same kind as that. All that was reasonably foreseeable was that he would have transient feelings of revulsion and distress. (at p410)

6. If it be accepted as correct that there could be no liability in the present case for damage which was of a kind which could not have been reasonably foreseen then, in my opinion, the result of the appeal must depend entirely upon the validity of the contention that it should have been found that damage of that kind was not reasonably foreseeable. Counsel for the appellant appeared to suggest at times in the course of his argument that another separate question was raised by the appeal, namely, the question whether or not there had been a breach of any relevant duty owed by the appellant to the respondent. But, in my opinion, this is not so. There can be no remaining question as to the existence of a relevant duty or as to the breach of it if, in addition to the findings that there was a breach of a duty owed by the appellant to Kuskopf and Docherty and that this was a cause of the injuries to them, two further propositions were established, namely, (1) that it was foreseeable that if injury was thus caused to those servants or either of them other persons in the building such as the respondent might go to investigate and to render assistance; and (2) that it was foreseeable that such a person going to the scene might suffer an injury of the kind for which the respondent sued and which he proved to have been caused, in fact, by the incident in question. The first of these propositions was established by a finding which by concession ought not to be disturbed. In my opinion, this concession was correct. It was clearly foreseeable that, upon the occurrence of such an incident as happened when the electricians were burnt, a person who was in the building and close enough to hear the noise made by the happening would go quickly to the scene and would assist, if he could, any person who had been injured. The consequence of this was (assuming that it was also foreseeable that a person thus going to the scene might suffer injury of the relevant kind, that is to say, assuming that the second proposition stated above is made out), that the respondent was one of a class of persons injury to whom could be foreseen as a consequence of the failure of the appellant to exercise reasonable care in relation to the giving of instructions to the electricians. Thus the respondent was within "the area of potential danger" to which Lord Thankerton referred in Bourhill v. Young (1943) AC 92, at p 98 In the language of Lord Russell in the same case (at p. 102) the respondent was one of "those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach". The respondent was the appellant's "neighbour" in Lord Atkin's sense: Donoghue v. Stevenson (1932) AC 562, at p 580 (See Bourhill v Young (1943) AC, at pp 107, 117) If then as a result of the appellant's negligent omission to instruct its employees there was injury to the respondent which was of a foreseeable kind it cannot be disputed, in my opinion, that there was a breach of a duty of care owed to him. (at p411)

7. Since I am of opinion that the learned trial Judge's finding that the injury suffered by the respondent was one which was reasonably foreseeable ought not to be disturbed, I need not consider whether or not the respondent was entitled to found his claim simply on the basis that he was an employee of the appellant and that there was a breach of a duty of care arising out of that relationship. In his reasons for judgment Skerman J. said:

"If, as happened, intense heat was created it was foreseeable that electricians in the power-house would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries."

This passage indicates that his Honour's view was that it should be regarded as foreseeable that an employee in the building would go to the scene. On that view the fact that the respondent was an employee was a relevant fact in deciding whether or not he was a person within "the area of potential danger" or within the area of risk. But on that view the liability of the appellant does not rest necessarily upon a duty arising out of the relationship of employer and employee. It rests upon a finding of a duty owed to all persons of whom it might reasonably be anticipated that they might suffer injury (of the relevant kind) and upon a finding that the respondent was such a person. It is on that basis that Skerman J. appears to have held the appellant liable. Earlier in his reasons his Honour said:

"It seems to me that it does not necessarily follow from my findings of negligence in Docherty's case that the defendant was in breach of its duty to the plaintiff Pusey by reason of the relationship of employer and employee."

It does not appear to me to be necessary in this appeal to take any different approach to the case from that which appears to have been taken by Skerman J. or to discuss the question whether or not the duty of the appellant as the employer of the respondent imposed any greater obligation upon it than to take reasonable care to protect him from the risk of foreseeable injury. (at p412)

8. I am of opinion, as I have stated, that the finding that the injury suffered was of a kind which was reasonably foreseeable was open to the learned trial Judge and ought not to be disturbed. In a passage which I have quoted his Honour stated that it was foreseeable that an employee might sustain gruesome burning injuries "with at least the possibility of shock and some form of mental illness or neurosis" to another employee who went to his assistance. In my opinion the finding was correct that it was foreseeable that if a person went to the assistance of another person who had suffered gruesome burning injuries there was at least the possibility of shock and of some form of mental illness or neurosis. But it is necessary to consider whether that finding was sufficient to satisfy the test of foreseeability laid down by The "Wagon Mound" (No. 1) (1961) A.C. 388 as being the effective criterion for determining "culpability" and not merely for determining compensation. One must first ask whether a finding that there was at least the possibility of some form of mental illness or neurosis, in a case in which the evidence showed that the particular result which occurred was a rare and exceptional occurrence, was enough to attract liability or whether it was necessary that there should have been a finding that it should have been foreseen that there was a risk of greater magnitude than that of the occurrence of an injury of that kind. In my opinion an answer favourable to the respondent must be given to that question. There are authorities which would suggest the contrary. But I think that it would be inconsistent with the exposition of the meaning in this context of the term "reasonably foreseeable" given in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (The "Wagon Mound" (No. 2)) (1967) 1 A.C. 617, at pp. 641-644. to hold in the circumstances of the present case that the appellant was not liable for the reason that the relevant risk was too small or could be regarded as too remote. (at p413)

9. One must ask also whether or not the finding that "shock and some form of mental illness or neurosis" was foreseeable satisfies the requirements of the principle asserted in The "Wagon Mound" (No. 1) (1961) A.C., at p. 426 that "the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen". In the application of this principle there may be difficulty in some cases in determining whether damage for which an action is brought and damage which was foreseeable are the same "kind" of damage. But in the present case there are two reasons which appear to me to justify the conclusion reached by Skerman J. The first is that it is not a condition of liability that either the precise character of the damage or the extent of it should have been foreseen. It is necessary only that the damage suffered should not be different in kind from that which was foreseeable: see Hughes v. Lord Advocate (1963) AC 837, at p 845 and Chapman v Hearse (1961) 106 CLR 112, at p 121 The second reason is that in The "Wagon Mound" (No. 1) (1961) A.C., at p. 426 express approval was given to the statement of Denning L.J. in King v. Phillips (1953) 1 QB 429, at p 441 that "there can be no doubt since Bourhill v. Young (1943) AC 92 that the test of liability for shock is foreseeability of injury by shock". Thus injury by shock is treated as a distinct "kind" or class of damage for the purposes of the general principle enunciated in The "Wagon Mound" (No. 1) (1961) AC 388 that liability depends upon the foreseeability of the kind of damage for which the defendant is sued. (at p414)

10. It is not here necessary to consider whether or not there are satisfactory reasons for treating injury by shock as different in kind from other forms of personal injury. If all personal injuries, whether "mental" or "physical", were to be treated as being of the same kind, then it would be evident in the present case that damage of a foreseeable kind was suffered. But for the purposes of the present case the statement in The "Wagon Mound" (No. 1) (1961) AC, at p 426 that the test of liability for shock is foreseeability of injury by shock may be accepted. It treats "injury by shock" as a distinct kind of injury. Its acceptance means that all forms of mental or psychological disorder which are capable of resulting from shock are to be regarded as being, for the purposes of the foreseeability test of liability, damage of the same kind. If, therefore, some form of mental illness or neurosis was foreseeable, as Skerman J. found, and in my view properly found, the respondent satisfied the requirements of that test. He proved that the damage which he suffered was of a kind which was foreseeable. (at p414)

11. If the question of liability in the present case is to be determined by the application to the facts of the criterion of foreseeability in accordance with The "Wagon Mound" (No. 1) (1961) AC 388, then for the reasons which I have stated I am of opinion that the judgment in favour of the respondent should not be disturbed. I am of opinion that that is the criterion of liability which should be applied. The appellant did not really contend otherwise. There are, however, some authorities in which special limitations have been placed upon liability for nervous shock and the question of liability has been approached and considered in a different manner from that of liability for physical injuries. But in my opinion there is no established rule of law which precludes me from accepting as correct the application by Skerman J. of the general criterion of foreseeability to the facts of this case. There is no established rule which requires me to hold that there could be no liability in the appellant on the facts of this case, because some special criterion of liability for "nervous shock" was applicable and was not satisfied. The relevant authorities on this subject have been reviewed in the judgments of Skerman J. and of the members of the Full Court in this case and they were discussed fully in the judgment of Burbury C.J. in Storm v. Geeves (1965) Tas SR 252 Therefore, I may deal briefly with the matter now under discussion. (at p415)

12. Whatever the case of Victorian Railways Commissioners v. Coultas (1888) 13 App Cas 222 should be taken to have actually decided (as to which see the dissenting judgment of Evatt J. in Chester v. Waverley Corporation (1939) 62 CLR 1, at pp 46-48) it should not now be accepted as establishing a rule which precludes the respondent from success in this case. In Bourhill v. Young (1943) AC 92, at p 103 Lord Macmillan said:

"The crude view that the law should take cognizance only of physical injury resulting from actual impact has been discarded, and it is now well recognized that an action will lie for injury by shock sustained through the medium of the eye or the ear without direct contact."

The "crude view" to which his Lordship referred has been rejected by the House of Lords in that case and, again, by the Privy Council in The "Wagon Mound" (No. 1) (1961) A.C. 388, as well as in other modern cases. (at p415)

13. In my opinion the present case does not require the application of any special rule limiting liability for nervous shock. I think, in accordance with what Burbury C.J. said in Storm v. Geeves (1965) Tas SR, at p 257, that the case requires the application to its facts of "the general test of reasonable foresight". That was the test which was applied, in my opinion, in two cases in this Court, which might appear at first sight to give some support to the contention of the present appellant that in this case it incurred no liability. In Bunyan v. Jordan (1937) 57 CLR 1 it was held that the plaintiff had not established any cause of action against the defendant, although his conduct had caused her to suffer shock and a resulting nervous condition amounting to an illness. That conduct of the defendant was alleged to have been deliberate and wilful rather than careless. But it was argued also that the defendant was liable in negligence. The ground of the decision in favour of the defendant was not that there was some special rule which precluded the plaintiff from recovering damages in any circumstances, in an action in negligence, for an injury of the kind which she suffered. The ground was that on the facts of the case the finding was not open that harm to the plaintiff of the kind suffered was reasonably foreseeable. That appears from the reasons for judgment of Latham C.J. (1937) 57 CLR, at pp 13-14, of Rich J (1937) 57 CLR, at p 15, of Dixon J (1937) 57 CLR, at pp 16-17 and of McTiernan J. (1937) 57 CLR, at p 18 (at p416)

14. It was for the same reason that the plaintiff failed in Chester v. Waverley Corporation (1939) 62 CLR 1 The view taken was that the injury to the plaintiff was not foreseeable and, in consequence, the existence of a duty of care owed to her was not established, there being no other basis upon which such a duty of care could be found to exist. I agree with the observations upon that case made by Burbury C.J. in Storm v. Geeves (1965) Tas SR 252 His Honour concluded those observations by saying (1965) Tas SR, at p 261:

"There is no proposition of law in Chester v. Waverley Corporation (1939) 62 CLR 1 which is conclusive against liability of the defendant in the present case. The result depended upon the court's view of the result of the application of the reasonable foreseeability test to the facts."

I adopt those statements and apply them to the case which is now before this Court. In Chester's Case (1939) 62 CLR 1 the Court, upon a consideration of the facts, took differing views as to what was within the ordinary range of human experience (see (1939) 62 CLR, at pp 10, 13, 25) and, therefore, as to what could be found in that case to have been foreseeable. But the conclusion of the majority that a finding was not open on the facts of that case that injury of the kind suffered was foreseeable cannot be treated as a precedent requiring a like conclusion on the facts of this case. (at p416)

15. In the present case the respondent was not a close relative of the man who suffered injury. In my opinion there is no rule of law which made it a condition of the respondent's right to recover that he should have been a close relative. No doubt a family relationship between a person who has been injured and a plaintiff who claims to have suffered nervous shock in consequence of that injury may be a relevant and important fact in deciding the question whether or not injury of that kind to the plaintiff was reasonably foreseeable. But there is no warrant for holding that that question, which is a question of fact, must always receive a negative answer unless the plaintiff be a close relative. (at p417)

16. On the findings made by Skerman J. it is not necessary to consider whether liability for nervous shock is limited to cases in which the plaintiff had no unusual susceptibility to shock or had an unusual susceptibility which was known or ought to be known to the defendant. (at p417)

17. In my opinion the appeal should be dismissed. (at p417)

Orders

Appeal dismissed with costs.