Tame v New South Wales

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

CLARE JANET TAME  APPELLANT

AND

THE STATE OF NEW SOUTH WALES  RESPONDENT

Tame v New South Wales [2002] HCA 35
5 September 2002
S83/2001

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

P C B Semmler QC and N J Mullany for the appellant (instructed by Herbert Weller)

B H K Donovan QC with S C Finnane for the respondent (instructed by I V Knight, Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

LESLIE ANNETTS & ANOR  APPLICANTS

AND

AUSTRALIAN STATIONS PTY LIMITED  RESPONDENT

Annetts v Australian Stations Pty Limited
5 September 2002
P97/2000

ORDER

1.   Application for special leave granted.

2.   Appeal allowed.

3.   Set aside the order of the Full Court of the Supreme Court of Western Australia dated 21 November 2000 and, in its place, order that the appeal to that Court be allowed and the question posed by Heenan J in his order dated 5 May 1999, for the trial of a preliminary issue, be answered "Yes".

4.   Respondent to pay the applicants' costs at first instance, in the Full Court and in this Court.

On appeal from the Supreme Court of Western Australia

Representation:

B W Walker QC with G M Watson for the applicants (instructed by Brezniak Neil-Smith & Co)

D F Jackson QC with S C Finnane for the respondent (instructed by Deacons)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ.   These two matters (the first, an appeal from the Court of Appeal of New South Wales[1]; the second, an application for special leave to appeal against a decision of the Full Court of the Supreme Court of Western Australia[2]) were heard together.  The elements common to both are that they concern the tort of negligence, and the harm suffered by the plaintiffs was psychiatric injury unassociated with any other form of injury to person or property resulting from the allegedly tortious conduct.  To describe them as cases about psychiatric injury directs attention to the kind of harm suffered by the injured plaintiffs, and the interests of the plaintiffs which the law might protect.  However, the law of tort concerns duties as well as rights, and responsibilities of defendants as well as entitlements of plaintiffs.  If attention is directed to the conduct of the alleged tortfeasors, and the responsibilities attributed to them, the two cases are quite different.

  2. In the first case, the respondent is sought to be made vicariously liable for the conduct of a police officer who made…

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Details
Case
[2002] HCA 35
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Mrs Tame against the State of New South Wales concerning a claim for psychiatric injury. Mrs Tame suffered a psychotic depressive illness after learning that a police report incorrectly stated her blood alcohol content was 0.14 following a motor vehicle accident in which she was involved. The error in the police report was subsequently corrected, but Mrs Tame alleged that the initial false entry caused her significant distress and psychiatric harm.

The central legal issues before the Court were whether the police constable owed a duty of care to Mrs Tame in relation to the accuracy of the information recorded in the police report, and whether the psychiatric injury suffered by Mrs Tame was reasonably foreseeable. The Court was required to consider the principles governing the imposition of a duty of care in negligence, particularly in the context of psychiatric harm, and whether factors such as normal fortitude, sudden shock, direct perception, or the immediate aftermath of an event were determinative of the existence of such a duty.

The Court reasoned that the imposition of a duty of care in negligence is not solely determined by foreseeability of harm. It involves a broader consideration of policy and the relationship between the parties, including the existence of control mechanisms. The Court found that while the police constable's error was a factual cause of Mrs Tame's distress, it did not establish a novel duty of care owed by the constable to Mrs Tame in relation to the recording of her blood alcohol content. The Court held that the circumstances did not warrant the imposition of a duty of care that would extend to protecting Mrs Tame from psychiatric injury arising from the correction of a factual error in a police report, particularly when the error was not the reason for the insurer's dispute over physiotherapy costs.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Although Constable Morgan and the State of New South Wales were parties to the proceedings in the lower courts, the parties now agree that Constable Morgan's name should be removed from the record. He was not the officer who made the false entry. The orders Mrs Tame seeks from this Court are against the State of New South Wales.The material facts In January 1991, Mrs Tame was involved in a motor vehicle accident. She was taken to hospital for treatment where police took a blood sample for the purpose of a blood alcohol reading. The sample confirmed that she had not been drinking. The other driver had a blood alcohol reading of 0.14. There is not and never has been any doubt that the other driver was solely responsible for the accident. Subsequently, Constable Morgan visited Mrs Tame at her home where he took particulars of the accident and her injuries. On a second visit, he helped her complete a claim form under the Motor Accidents Act 1988 (NSW). During the second visit, Constable Morgan informed Mrs Tame that the other driver was responsible for the accident and that he would be charged with a number of offences, including drink driving. In February 1991, Mrs Tame submitted the claim form to the other driver's insurer. Because the other vehicle was uninsured, Mrs Tame's solicitor, Mr Weller, commenced proceedings against the Nominal Defendant. NZI Insurance ("NZI") handled the claim for the Nominal Defendant. In June 1991, NZI admitted liability. In August 1994, the claim was settled. Before it was settled, a dispute arose between Mrs Tame and NZI concerning the payment of treatment for physiotherapy. As a result, Mrs Tame suffered a great deal of stress. In April 1992, she was referred for crisis counselling. She raised her concerns about the non-payment by NZI with her solicitor who telephoned NZI's solicitors to inquire about the matter.An error in the police report Some time before 18 June 1992, NZI told Mr Weller that the Police Accident Report (P4) showed that at the time of the accident Mrs Tame had a blood alcohol reading of 0.14. After receiving this information, Mr Weller asked Mrs Tame whether she had been drinking on the day of the accident. She told him that the report was wrong. She said that she had hardly touched alcohol in the previous 20 years. She said she was upset and was worried that people would find out about the entry and that it would tarnish her good name. Immediately after the conversation with Mr Weller, Mrs Tame rang Constable Morgan who told her that a mistake had been made and that her blood alcohol reading was nil. Mrs Tame reported this conversation back to Mr Weller. After learning of the false entry, Mrs Tame assumed that NZI was not meeting her physiotherapy costs because of that entry. However, NZI had not paid the physiotherapy accounts because it believed that the treatment was unnecessary. On 29 July 1992, NZI's solicitors confirmed that liability for the accident was admitted and that NZI would continue to meet all reasonable expenses arising from the accident.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GAUDRON J (dissent) HUGH J

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J

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