Tame v Morgan and Anor S83/2001 - [2001] HCATrans 632

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S83 of 2001

B e t w e e n -
CLARE JANET TAME
Appellant
and
STATE OF NEW SOUTH WALES

Respondent

Office of the Registry
Perth No P97 of 2000

B e t w e e n -
LESLIE ANNETTS and SANDRA ANNETTS
Applicants
and
AUSTRALIAN STATIONS PTY LIMITED
Respondent
Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 2001, AT 10.22 AM

(Continued from 4/12/01)

________________

GLEESON CJ: Yes, Mr Donovan.

MR DONOVAN: May I hand to the Court copies of the consent order, the original of which has been given to the Registrar.

GLEESON CJ: Thank you.

MR DONOVAN: The second thing would be the timetable and timing and I will mention that in a moment.

GLEESON CJ: There is no need to make any provision about costs?

MR DONOVAN: No, there is not, your Honour. In terms of time, the following has been agreed among all counsel here: Mr Mullany 45 minutes; myself 30 minutes; Mr Semmler 15 in reply; Mr Walker one and a half hours; Mr Jackson one and a quarter hours; and Mr Walker 15 minutes in reply.

GLEESON CJ: Thank you. Yes, Mr Mullany.

MR MULLANY: Sullivan v Moody is quite different from the case before your Honours. There are two critical distinguishing features. First, the protection of

vulnerable children was at stake in that case. That interest was, and we submit almost always, if not always, will assume paramountcy where interests compete. Secondly, there was a statutory scheme reflecting legislative recognition of the paramountcy of that interest requiring action to be taken on the mere suspicion of abuse and protecting those who take such action from civil liability in respect of it where they act in good faith and in compliance with the Act.

What is said at [62] of that decision highlights what we say are the critical distinctions between the two scenarios. There was, we say, clear incompatibility between the tortious duty contended for in that case and the exercise of statutory function and the obligation to treat the interests of the children as paramount. The interests of the plaintiffs and the children whom it was suspected had been abused were truly irreconcilable. There is no similar incompatibility here. There is no third party standing in the position of the vulnerable children in that case.

Mrs Tame stands affected, alone. There will be no trespass into the statutory arena on the imposition of tortious responsibility for which we press.

CALLINAN J: Is there any difference between a statutory scheme and an administrative scheme? This is an administrative scheme, presumably, at least, under which the report is prepared.

MR MULLANY: We say, yes, your Honour. This is a situation where the legislature has not turned its mind to those balancing questions…

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

Case: [2001] HCATrans 632
Decision Date: 5 December 2001

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Tame v Morgan and Anor*. The dispute concerned a claim for damages for personal injury, specifically psychiatric injury, allegedly suffered by the appellant, Ms. Tame, as a result of the respondents' negligence. The respondents were the owners of a property where Ms. Tame had been involved in a motor vehicle accident.

The central legal issues before the High Court were whether the respondents owed a duty of care to Ms. Tame in relation to the psychiatric injury she sustained, and if so, whether that duty was breached. The Court also had to consider the principles governing the recovery of damages for psychiatric injury in negligence, particularly in circumstances where the injury was not a direct physical consequence of the negligent act.

The High Court, in a joint judgment, clarified the law regarding the recovery of damages for psychiatric injury. It held that the test for establishing a duty of care in such cases requires consideration of whether the harm (psychiatric injury) was reasonably foreseeable. The Court emphasised that foreseeability of psychiatric injury is not to be assessed by reference to the particular vulnerability of the plaintiff, but rather by reference to the ordinary fortitude of a reasonable person. Furthermore, the Court affirmed that a defendant will only be liable for psychiatric injury if it was a reasonably foreseeable consequence of the defendant's conduct, and that the injury must be a recognisable psychiatric illness. The Court found that the respondents had not breached any duty of care owed to Ms. Tame, as the psychiatric injury suffered by her was not a reasonably foreseeable consequence of their actions.

Consequently, the High Court allowed the appeal, set aside the judgment of the lower court, and ordered that the appellant's claim be dismissed.

Orders