Tame v State of New South Wales S83/2001
[2001] HCATrans 633
•5 December 2001
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)
Copyright in the High Court of Australia
________________
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 which need be taken into account when has precious interests at heart like that of the protection of children.
CALLINAN J: The police officer would be performing a duty that would be consistent with his statutory duties.
MR MULLANY: I accept that, your Honour.
CALLINAN J: And it would be in pursuance of his statutory duties that he would be ferrying out the report.
MR MULLANY: That is true, your Honour, but in Sullivan’s Case the legislature was quite specific. It specifically declared that the paramountcy of children was to be taken into account. It specifically declared that certain people had to take action on the mere suspicion. It specifically declared that those who took such action, provided they acted in compliance with the Act and in good faith were to be protected from civil liability. That is not the position here.
GLEESON CJ: Mr Mullany, a good deal of defamatory material is published as a result of a careless mistake on the part of the publisher or an employee of the publisher. In a case where the defamed person suffers actual damage, could that person sue in negligence?
MR MULLANY: You are talking about, your Honour, as I take it, injury to the mind?
GLEESON CJ: No, any kind of actual damage, including injury to the mind, or financial damage.
MR MULLANY: Only if it is proven that there has been damage to reputation. This returns to a point I wanted to pick up that your Honour Justice Callinan mentioned yesterday concerning the interrelationship between the two courses of action.
GLEESON CJ: I am not asking about suing in defamation. I am asking about suing in negligence. If a defamatory matter is published as the result of a careless mistake on the part of the publisher, as often occurs, and the publication results in actual harm – physical, emotional or financial – to the defamed person, can the person sue in negligence?
MR MULLANY: Assuming all the normal hurdles to relief in negligence are satisfied, the answer must be yes. Can I return to your Honour Justice Callinan’s comments in relation to defamation yesterday? We do not accept, with respect, that Mrs Tame had a clear‑cut case of defamation on the basis that she was wrongly accused of drunk‑driving. That slur may or may not be defamatory. It is our respectful submission that it is not beyond argument that to assert wrongly that someone is a drunk driver will lower the reputation of that individual in the eyes of the reasonable person.
CALLINAN J: You cannot seriously suggest that.
MR MULLANY: We do, your Honour.
CALLINAN J: It is a very serious offence.
MR MULLANY: Can I explain why we say that. Some people may think less of Mrs Tame for such indiscretion and foolishness for such illegal conduct - I might submit the majority - but it might be a sad reflection on modern society or some parts of it, more accurately, that others would think nothing, or very little, of it.
McHUGH J: That is not the test, the test is that of the right thinking person. You need a better argument than that. I would get off this subject if I were you, Mr Mullany, it is a hopeless point.
MR MULLANY: All right, your Honour, I will do that. Of all of the limitations that the common law has engrafted on to the recovery for infliction of mental illness, the demand for sudden shock, we say, is the most invidious. Your Honour Justice Kirby has already indicated that, on this issue, your door is open. I will not press against that but I seek to open at least three others. The demand for shock is a telling indicator, we submit, of the unjustified prejudice exhibited by the common law towards this species of personal harm and a subordination to bodily injury thought more worthy of legal redress. It is, we submit, a vestige of medically meaningless Victorian language. It has been exposed as an unduly restrictive limitation on recovery for serious loss operating to exclude liability for certain forms of other compensable disorder arising in circumstances which deserve common law support. If control on limits of liability be needed, it is not found in this requirement.
Australian common law has now moved far from the traditional accident scenario. The fact that Mrs Tame’s claim does not sit within the traditional shocking accident categories of suit, we say, is not fatal, nor is it a reason supporting dismissal of the claim. The New South Wales Court of Appeal was wrongly influenced, we say, at paragraphs 124 and 166 found at AB 4, 808/17, to deny relief because the appellant’s action was not based on the death injury or imperilment or a dramatic accident touching her or anyone near or dear to her.
The boundaries of liability, we submit, should not be set by the demand that she demonstrate that her proven disorder be of a particular kind, namely that it was shock induced. That requirement to negotiate the shock-induced hurdle has been erected consequent upon the dated practice of referring to actionable mental illness in terms of nervous shock. Nowadays when courts speak of injuries sued for, they speak of psychiatric illness. When they speak of the precursor to that illness, they speak of sudden sensory impact.
It is our submission that there remains no compelling reason to continue to compel hunts for events said to trigger the assault to the senses. The abrogation of that requirement, we submit, is part of the logical progression of the development of the common law already evidenced in the earlier authorities, to use the phrase expressed by Chief Justice Gibbs in Jaensch v Coffey 155 CLR 549 at 552.
As Justice Ward observed in the Ravenscroft decision [1991] 3 All ER 73 at 77 to 78, if we cease to use the inaccurate and misleading expression “nervous shock”, then there is no reason why some notion of shock, especially which is not to be understood in terms of recognisable psychiatric illness, should be reintroduced as an element in the chain of causation. A demand in this country for shock‑induced disorder stems from the comments of Justice Brennan in Jaensch v Coffey, particularly those at 565 to 567, who considered the expression “nervous shock” to be of some value as a term of art to indicate the aetiology of disorder. At 565 his Honour categorises illness arising in the absence of shock as non‑compensable, notwithstanding that it was:
reasonably foreseeable that psychiatric illness might be a consequence of the defendant’s carelessness.
His Honour was of the opinion that the notion of psychiatric illness induced by shock was a compound, rather than a simple concept. It was, his Honour considered, comprised of two elements, the disorder and the shock which causes it. The explanation that his Honour advances is found at page 567, beginning at the sentence, “I understand ‘shock’”. I will not read that to your Honours. That, contrary to the view expressed by Justice Ipp in the Annetts’ Case at paragraphs 74 to 75 of that decision, his Honour was utilising the term “shock” in the sense of the cause of damage. We say that is clear, not only from the passages I have just referred your Honours to, but also from the following: 563, 560, 565 and 578.
It is evident that his Honour utilised that concept in the sense of the aetiology of damage since his Honour used the term “recognised psychiatric illness” to denote the relevant injury in the same way that it was used in Hinz v Berry [1970] 2 QB 40 at 42 and by his Honour Justice Windeyer in the Pusey decision 125 CLR 383 at 402 and 414, where his Honour talks of the injury being “set off” by the shock.
The reasoning of all of the justices below, in our submission, indicates that their Honours appreciated the context in which his Honour was using it. The Brennan view, in relation to shock and the concept of recognised ‑ ‑ ‑
McHUGH J: Please, “Justice Brennan”, not “the Brennan view”. I mean, please ‑ ‑ ‑
MR MULLANY: Justice Brennan, I apologise, your Honour – has been treated by many, but not all, of the judges as stating the law in this country. That it does so is not at all clear cut, as the Chief Justice highlighted below at paragraph 67 found at AB 4 772. Although at page 606 Justice Deane was not prepared to sanction recovery sustained as a consequence of post‑accident contact with the immediate tort victim, it is uncertain whether his Honour, with whom the Chief Justice agreed, considered shock injury to be a precondition to recovery. I refer your Honours to his comments also at 600 to 601, 587 and 593. Justices Murphy and Dawson were silent on that issue.
The uncertain status of this requirement in Australia has been the subject of comment both below and by justices in intermediate courts. Your Honours find the relevant passages set out in footnote 56 of our written submissions which include your Honour Justice Kirby’s comments in the two cases referred to there, namely Coates and Campbelltown. It is our submission that although most Australian courts have regarded it as essential in all cases that disorder be precipitated by shock in the form of an assault on the senses, that its status remains unclear in this country. The pedigree of the requirement is instructive.
There was virtually no Australian authority suggesting that psychiatric injury had to be shock induced prior to the judgment of Justice Brennan in Jaensch v Coffey. On the contrary, there had been early resistance to that. You find it in the dissenting now favoured view of Justice Evatt in Chester’s Case 62 CLR 1 at 21.
McHUGH J: That was certainly my experience. I must say, when I first started doing nervous shocks cases 40 years ago I was rather nervous because I did not think I really understood what the courts were talking about, but I quickly found that with juries judges always spoke in terms of psychiatric illness. There was no question of the sudden assault on senses or anything of that nature. That was my experience anyway of Supreme Court judges sitting with juries in New South Wales. They just, in effect, said whether or not the negligence had caused the psychiatric illness that the person had. But in the last 17 years or so, Justice Brennan’s judgment seems to have become very influential on that particular point and, in fact, I think I referred to it in the Campbelltown v Mackay Case.
MR MULLANY: You do, your Honour, and we accept everything your Honour has just put to us. Its influence is seen perhaps best in the decision in the Alcock Case in the House of Lords, prior to which there had been no English case which had identified sudden shock as a separate ingredient of liability. Their Lordships suggested, unconvincingly, we respectfully submit, that the requirement had been implicit in all previous cases. We find that at page 411 of the report.
It appears that the genesis for the demand for sudden shock was Justice Brennan’s desire to impose the limitation where psychiatric injury resulted from events subsequent to the accident, such as the spouse worn down over time by caring for a tortiously injured child or a loved one. Regrettably, in our respectful submission, English and Australian courts have hardly ever imposed liability in those circumstances. In what appears to have been an unintended move, that special limitation has been elevated, as your Honour Justice McHugh refers, into a general limitation. A number of recent cases involving other fact situations have been denied recovery on that ground.
It is important, your Honours, to appreciate precisely what is required if the rule does operate. It is the assault on the sensory system which must be sudden rather than the onset of disorder. Contrary to the contention at paragraph 21 of our learned friend’s submissions, it is unnecessary for the psychiatric injury to follow this sensory insult immediately or proximately. Liability lies for delayed shock, to use the old language; in other words, for delayed injury consequent upon sudden impact to the senses which occurred a long time previously.
Even if, therefore, it was thought that Mrs Tame did not sustain recognised disorder until some time after receiving the call, that would in no way be fatal to her claim. It is of no significance, in our submission, that she did not collapse on the phone, faint, become immediately disordered or, as Mr Finnane put it at trial, “Need to take a pill after talking to Mr Weller”. The authorities which make that submission clear are found in footnote 48 on page 117 of the chapter in Torts in the Nineties published by the Lawbook Company in 1997.
McHUGH J: What is the page, again, Mr Mullany?
MR MULLANY: Page 117, footnote 48, and can I particularly ask your Honours to look at the judgment of Justice Dunford in the decision Dunn v The Commonwealth unreported, Supreme Court of New South Wales 15 December 1994, pages 15 to 16.
McHUGH J: Now, are there still a lot of these cases being run in New South Wales? They used to be run very regularly with compensation to relatives action because of the New South Wales statutes and fairly modest awards would be given for them but the action seems to have developed into its own right in recent years and it is a big production these days. Thirty or 40 years ago they were quit small sums in the award of shock of hearing of a death and you would rely on the statute. A case, Mammoliti v Scala come up to this Court with one of those sorts of cases that you have.
MR MULLANY: They are continuing to be run, your Honour, and they are increasing in awards, that is true, but there certainly has not been an avalanche of claims. There is, of course, the statutory amendments in New South Wales and in the ACT and the Northern Territory as well which sit with the common law position. So, the answer to your Honour’s question is that they are around and the damages are increasing. Take Mrs Tame’s example, by illustration. Her economic loss in this case was minimal but she is very seriously disordered. Her condition is chronic. It was described as 9 out of 10 on the scale of psychotic depression.
If a highly paid professional had sustained the kind of injury she had due to careless conduct, the claim would be very much more significant. There have been some awards for this kind of injury which are very substantial. The sudden shock rule, your Honours, has come under heavy fire from both within and outside Australia. It has been criticised by a growing number of judges and in the literature. It is significant that the Law Commission of England and Wales has recommended its excision in all cases, that is, irrespective of whether the claimant is properly characterised under the English system as primary or secondary victim.
Your Honours find those relevant references at 5.39 of the consultation paper and 5.30 of its report. The Commission exposes as unpersuasive the arguments advanced for the retention of the rule which reducing the main to the concern that actions will increase and that the test facilitates the proof of causation.
At 5.31 of the report the Commission satisfies itself that both of those main concerns can be counted. It is our respectful submission in relation to the second of those that the existing principles in relation to causation are, as the Commission accepted, well equipped to resolve any of the difficulties that might arise in that ‑ ‑ ‑
GUMMOW J: This was a consultation paper.
MR MULLANY: At 5.39, your Honour.
GUMMOW J: It was a consultation paper.
MR MULLANY: Both. At 5.39 and 5.30 is the final recommendation.
GUMMOW J: Has anything happened since?
MR MULLANY: No, your Honour. The complete references to the recommendations and to the authorities and to the literature are found in 30 to 33 of our written submissions. There are others.
KIRBY J: Did the Law Commission recommend legislation in England?
MR MULLANY: Yes, it did, your Honour.
KIRBY J: What year was that?
MR MULLANY: The consultation paper was 95. The report was 98. Additional authorities from North America can be found at pages 202 to 206 of Tort Liability for Psychiatric Damage. May we invite your Honours to have regard particularly to three judgments which ‑ ‑ ‑
GUMMOW J: Who is the author of that work?
MR MULLANY: Myself and Dr Handford.
GLEESON CJ: This report that you have referred us to says that:
The law relating to liability for negligently inflicted psychiatric illness . . . contains a shock requirement.
In several other jurisdictions, including Australia and Canada. Is that still the case in relation to Canada?
MR MULLANY: Yes, it is, your Honour. Although there is authority going both ways, at the pages I have just given you, you will, for example, find the decision of Beecham v Hughes (1998) 52 DLR (4th) 625, a decision of British Columbian Court of Appeal which suggests that the shock requirement should be abrogated. They, we respectfully submit, took the view that Justice McHugh has referred to earlier in relation to the way Justice Brennan’s limitation has been interpreted since 1984.
GAUDRON J: Could I just interrupt you briefly? I would have thought that the benefit of the shock requirement was foreseeability. It might be much easier to foresee shock than psychiatric illness.
MR MULLANY: It might be, your Honour. The difficulty is that one does not recover from that. As soon as one acknowledges that ‑ ‑ ‑
GAUDRON J: The shock, I thought, was the injury and the psychiatric illness was the damage resulting from it.
MR MULLANY: No, your Honour. The old language has led to confusion. In the older cases where nervous shock has been used, it has been used to denote both the precursor and the injury. What we say is that some disorders may arise consequent on shock, others may not. Those which fall in the latter category, as the law currently stands, or if one accepts Justice Brennan’s view of it, will be non‑actionable. That, we say, is unacceptable.
GLEESON CJ: Could I just pick up a statement from this Law Commission Report that you referred us to. In the course of their discussion they say, “Damages are clearly not available at law for every misfortune that may occur to a person as a result of another’s negligence.” I wonder whether the predominance of motor vehicle accident litigation and industrial or work‑related injury litigation has not led modern lawyers to an assumption to the contrary of that; that is, that damages are usually available for every misfortune that may occur to a person as a result of another’s negligence, and there has to be some special reason shown why not.
MR MULLANY: I think that might be a fair statement, your Honour, with respect. We simply say that in that example the careless driver should have, within his contemplation, not only those who might be directly affected by his or her negligence but also those who may be affected indirectly. We are now into the secondary victim scenario.
GAUDRON J: Is there a cut‑out point, to those who may be indirectly affected?
MR MULLANY: Well, your Honour, that raises ‑ ‑ ‑
GAUDRON J: Does it extend to the staff of the casualty ward?
MR MULLANY: It might, your Honour. Can I develop that later, because that gives rise to the second ‑ ‑ ‑
GAUDRON J: Does it extend to the police officers who investigate accidents?
MR MULLANY: It might, in circumstances, your Honour. It raises, your Honour’s inquiry, the control devices under the umbrella of “proximity”, which I will deal with in due course if I may. At the minute we are putting to you that the old control of shock‑induced injury is no longer acceptable. The three examples that I want to refer your Honours to particularly, we say, demonstrate the fragilities of the requirement that in every single case disorder must stem from shock. The first is that of your Honour Justice Kirby in relation to Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 to 504. I have copies of that. I will make them available later, but will not take you to them. Your Honour Justice McHugh also sat on that case, but it was your Honour Justice Kirby who took particular issue with this orthodox position.
KIRBY J: I do not think I decided the point, did I? I simply referred to it.
MR MULLANY: You did not, your Honour, you make two observations, if I can summarise.
KIRBY J: I think there had been a concession in the case.
MR MULLANY: There had been.
KIRBY J: And I questioned whether the concession was appropriate. Justice McHugh thought it was entirely appropriate.
MR MULLANY: That is correct. Your Honour made ‑ ‑ ‑
McHUGH J: I am not sure I said that. I thought I said it was probably correct given what was said in Jaensch, I may be wrong.
MR MULLANY: I think your Honour took the view that has been expressed of the opinion of Justice Brennan but did not explore it in great depth in the light of the concession. Your Honour Justice Kirby certainly did that and you made two points if I can summarise what you said. Your Honour made the point that from a medical perspective it is highly unusual for an injury to arise consequent upon a sudden shock and you compared the position of the law with the position of medicine. You made a second and equally important observation, with respect, and it was this: that there were adverse consequences which might flow from the retention of the pre‑condition because any utility that the shock requirement may have served in the early part of the 19th century had dissipated if, indeed, it ever had any utility.
Your Honour makes that second observation at the bottom of 503 through to 504. Your Honour talks of the shackling of the common law with 19th century orthodoxy. We respectfully agree with those observations and sentiments. They reflect the position of the South African Supreme Court of Appeal in the Barnard v Santam decision, 1999 (1) SA 202, that the requirement of sudden shock is devoid of both medical content and validity. Your Honours have been provided with an affidavit which annexes an English translation of the Afrikaans judgment in that case.
KIRBY J: Can one justification for the notion of shock be that it is easy - and I think Justice McHugh was referring to this yesterday - for people to make assertions of psychiatric disturbance. A broken arm or leg you can see but the injury to the mind, you cannot. If there is a shock then, at least, that might be more susceptible to proof because as it was said, many centuries ago, I think, “The devil himself knoweth not the mind of man”. Therefore, this is a sort of check that proves the truth of the assertion.
MR MULLANY: The short answer is, no, your Honour, with respect. There are two responses. Firstly, we say that confidence is well placed in the psychiatric profession to identify the presence of clinical disorder as distinct from, say, grief. Secondly, that limitation would exclude from recovery all of those disorders which are not inevitably treated by way of a sudden shock. Depression is probably the best example. It is not the case that every depressive episode stems from a particular shocking, triggering event.
I said there were three cases I wish to refer your Honours to particularly ‑ I am not going to take you to any of these but ask your Honours to have particular regard to them – APQ v Commonwealth Serum Laboratories, unreported decision, Supreme Court of Victoria, 2 February 1995. That is a particularly apposite decision because it concerned a primary victim case where the lady in question suffered disorder consequent upon the fear that she would sustain a terminal illness as a consequence of exposure to certain agents, having participated in a Commonwealth fertility program, namely Creutzfeblt‑Jakob disease. The significance of the decision is this, at pages 12 through 16 of the decision, his Honour Justice Harper refers to the inappropriateness of this limitation in that particular context. It is the closest case to ours. Again, I will have a copy of that provided to your Honours.
The third of the three illustrations is important for this reason. It illustrates how judges, as well as counsel, clients and some medical experts, have had to manoeuvre to fit claims within the confines set by the common law demand for shock. That has led to compromise of the dignity of the common law and brought it into disrepute, as your Honour Justice Kirby put it at page 503 in the Campbelltown decision. The third case is Reeve v Brisbane City Council [1995] 2 Qd R 661. This was a traffic accident case where the secondary victim claimant was not present at the scene or the aftermath and was told of the death of her husband.
What his Honour did was to purport to apply Justice Brennan’s dictum requiring shock but he extended the concept so that the thing or event that was to be sensorially perceived did not have to be the accident itself but could also merely be being told of the accident. Your Honours find that at 676. In so doing, his Honour rejected Justice Brennan’s suggestion that psychiatric illness induced by the mere knowledge of distressing information as opposed to the sensory perception of it was not compensable. Your Honours find that discussion at 671 to 674.
A flexible application of that limitation allowed his Honour to avoid the strict limits of the concept as envisaged by his Honour Justice Brennan, although the claim still failed because there was a want of evidence of causation between shock and disorder. Chief Justice Spigelman below said the same thing at paragraph 49 AB 4 772. The Chief Justice said that the “sudden shock can be occasioned when someone is told of a traumatic event” or a thing. On one view, that would be consistent with what his Honour Justice Brennan said at 567 to 568.
A further illustration of the fluidity of this particular limitation is found in a decision referred to in our submissions, a County Court decision of the English system, Tredget v Bexley Health Authority [1994] 5 Med LR 178 at 184. In that case, a 48‑hour period stretching from the birth of a child, the pandemonium surrounding that delivery and the ensuing harrowing hours up to the death of the child were held to satisfy the legal requirements of sudden shock. At 182 to 184 there is specific reference to the need to expand the concept so that these sorts of claims are not denied, denying logic.
Your Honours, there is a degree of tension between the exclusion from recovery of psychiatric illness not induced by shock and the requirement that only the broad category of psychiatric injury need be foreseen rather than the particular manifestation of the disorder.
McHUGH J: How does this submission fit in with statutes of limitation? A fact has to be faced up to that rather than plaintiffs suddenly becoming psychiatrically ill, in some cases, perhaps quite a significant percentage of them, the illness will develop over a considerable period of time and it may be two, three, four years before a full understanding of the illness is apparent. Now, how do you fit statutes of limitation in if you abandon shock, which at least has the advantage, unscientific though it may be, of giving you a date for the statute of limitations?
MR MULLANY: Shock has never constituted actionable damage, therefore the tort has never been complete. One has to rely, it must be conceded, on the expertise of the medical profession to identify the precise point in time, or the window if you like, at which time the psychiatric threshold is crossed.
McHUGH J: I know that doctors always used to say, and probably still do, that the whole notion of shock just had no medical foundation in terms of psychiatric illness, but they still had to get around this notion of shock so they used to relate it to the precipitating event which startled the person, to use a neutral word, and that was regarded as the trigger, in effect.
MR MULLANY: And that can be avoided, your Honour.
HAYNE J: Can it? Any disputed question of causation in the law really, much more often than not, comes down to a question of attribution of legal responsibility. It does not come down to a contest about the history of the matter. In all the causation cases the history is very well known. What is not known and what is contestable is attribution of legal responsibility.
MR MULLANY: I accept that, your Honour. There is the question of the attribution of legal responsibility and the identification of the precise cause of an illness. They are slightly different.
HAYNE J: There are then two factors at play here. Firstly, there is a contestable question of fact about historic significance. Often enough a contestable question about whether event A was a trigger, the trigger, significant, insignificant, et cetera – those are contestable questions that are resolved in the ordinary way, but those questions mask the further legal question that arises about what is the legal attribution of responsibility that is to follow according to the resolution of that contested question of historical significance.
Is it sufficient legally to conclude that in a plaintiff’s life which has seen the usual slings and arrows of life, that there is event A caused by the negligence of D which can be seen as a trigger, the trigger, for the psychiatric illness that then ensues? I can understand the argument that says logic dictates discarding the shock rule because the argument assumes, first, resolution of the contestable question of fact and, second, it assumes the attribution of legal consequences or legal responsibility question to which I have referred. If you assume the answers in your process, the answer is self‑evident. If you discard shock, what is it that you put in its place? How do you resolve the combination of the contested question of fact and attribution of legal responsibility where you have a chain of events that is lifelong?
MR MULLANY: That requires a number of responses, your Honour. The fact that one accepts psychiatric evidence, in this case from all five doctors, that a particular event played a material contribution in the onset of decompensation does not necessarily carry with it a positive answer to your Honour’s second question. The common law can, in our submission, happily accommodate the two inquiries and separately.
Having said that, I accept what your Honour puts to me about there being an overlap and there being an importation of value judgments in relation to both the first and second inquiry. It is not an all‑or‑nothing thing, your Honour ‑ ‑ ‑
HAYNE J: But my question is, what are the values that are in play? It cannot be the uninformed, intuitive sense of justice of the judge. That cannot be.
MR MULLANY: I agree with that, your Honour, but one must start from the proposition that if those speaking from an informed position tell us that a particular event was triggered, or triggered the psychiatric disorder in the plaintiff, then we should start from the position that that is so. But that does not necessarily mean that recovery will lie in tort. It is not a question of all or nothing, it is not a question of abrogating every one of the control devices. Your Honours could, for example, remove the sudden shock requirement but retain the controls that your Honour Justice Hayne referred to yesterday. It is a piecemeal process, we submit, as our ‑ ‑ ‑
McHUGH J: But can the psychiatrist always identify the relevant damage for legal purposes, because often enough, the psychiatric illness is the result of a person continually thinking about something until at some stage they lapse from normality into psychiatric abnormality? Now, the psychiatrists might be able to say – they might be able to say in this particular case - it was reading or hearing about this particular document. But for the purpose of the Statute of Limitations, the question of when the damage is suffered, does the literature suggest the psychiatrists can tell us in these cases, where the abnormality develops over a considerable period, when it occurred?
MR MULLANY: Yes, your Honour, they can and I will develop that in just a minute. I have six minutes left. The pertinent first inquiry is why is that victim thinking that way? Now, if it is as a result of an avoidable want of due care and the disorder takes a particular manifestation, the question must then be asked, why should the format make any difference? Consider the parent who has the misfortune of having to care for a critically injured child over a long period as a result of a careless driving incident. Why should the parent, like Mrs McLoughlin, who runs to the hospital within two hours of the event and is told of a death, recover, and the parent who endures years, perhaps, of harrowing care to see her child wither away and finally die, let us say after two years, fail? It might be thought, as the Law Commission points out at 5.29(7) of the Report, that they are the very types of litigants which society may feel are most worthy of support.
McHUGH J: That brings in statutes of limitation and the rationale for them. Insurance companies want to clear their books, they want to know that after three years or whatever the time is, they have no further liability. People want to get on with their lives. These are factors that with the shock test, unscientific though it may be, it gives some guidance, but ‑ ‑ ‑
MR MULLANY: But then you are ‑ ‑ ‑
McHUGH J: Take the illustration you have just given, years later – I mean, we had a little incident in the Court here yesterday. Supposing one of the younger Justices is sitting thinking about this in years time and they suddenly have – they think, “Anything could happen to me”.
HAYNE J: I can feel a compensable injury coming on.
MR MULLANY: Your Honour, the point is there needs to be actionable damage. There needs to be something more than a trivial upset or grief or what have you. Unless your Honours were prepared to make an even more radical reform, namely, lowering the actionable damage threshold to include things that are recoverable in the United States, for example. Then one is stuck with, we would submit, a sound well‑established position that a certain form of damage needs to be sustained before the tort is complete and the limitation period begins to run. Why should claimants for post‑traumatic stress disorder, usually triggered by stresses, recover, and those suffering other disorders, not inevitably triggered by shock, fail, when we are talking about the same kind of injury?
Your Honours, my time is just about up. Can I say this, finally. Once the common law acknowledges that nervous shock has a scientific meaning and embrace the notion that the plaintiff must sustain disorder, any rationalisation of retaining the notion of shock has been removed. We ask this Court to abandon that requirement for the reasons that your Honour Justice Kirby postulates or describes at 503. That last link with the 19th century position should be abandoned.
Your Honours, on the issue of means of communication of trauma, we will rest on what we say in our written submissions and say only this. There is now a choice facing this Court in formulating the contemporary principles governing liability for this type of injury and in addressing the questions of the role of the means of communication of trauma and the role of the precipitant of disorder. Your Honours can choose to confirm the orthodox position, insisting on direct personal perception of trauma and exclude all those claims for injury consequent on the communication by third parties of distressing information. That is an approach which there can be no doubt lacks psychiatric validity and which is tainted by 19th century concerns and, particularly, of over‑extensive liability. That is an approach which would see the common law stagnate, as it has in Britain, as a consequence of the last three cases of the House of Lords.
The solution to the dilemma is not found in this difficult area in the Atiyah or Stapleton theses of total abolition. We have, as the Law Commission acknowledged, come too far since Victorian Railway Commissioners v Coultas to turn the clock back 100 years. An enlightened alternative now presents itself. Their Honours should embrace the informed, mature approach favoured by a number of Australian judges in intermediate levels, and overseas, and allow recovery in the absence of proximity in that form and in the absence of sudden sensory perception. That is, we submit, the next logical step to be taken, to use the expression that Chief Justice Gibbs in Jaensch v Coffey did.
Your Honours should embrace, in our submission, the sound stance adopted by the South African Supreme Court of Appeal. A declaration by this Court that both the way in which the trauma is experienced by those who suffer injury and the nature of the precursor to its onset are irrelevant to the question of liability in all types of claim and by all types of claimant would be a declaration of confidence in Australian common law to find a balance between the competing interests. It would be confidence well placed. It would avoid the tortured path trodden by English courts in their so far unsuccessful quest to resolve that tension. It would restore the dignity and reputation of the common law, signal an important social value, and acknowledge and accommodate the changing needs and concerns of contemporary, multicultural, sophisticated Australian society. Those are the submissions.
GLEESON CJ: Thank you. Mr Donovan.
MR DONOVAN: Just to start with, your Honours, may I hand up some additional material which was omitted from the appeal book? It is only a few pages. They relate to letters from Dr Upton who was the GP treating the appellant at the time when the news was given to her.
GLEESON CJ: Thank you.
MR DONOVAN: They just show that there was nothing referred to by him in any of his letters. I am sorry they were omitted. The appeal books ended up being done in rather a hurry. The second thing I wanted to hand up are copies of Makita v Sprowles which we referred to in our written submissions but we did not provide, I am afraid – I am sorry for that – copies at the time when we filed them.
KIRBY J: Is not the anomaly in the law here just as bad as the anomaly that moved the Court in Brodie to re‑express the common law? Is it not exactly the same problem that is before the Court?
MR DONOVAN: It certainly is not exactly the same problem.
KIRBY J: It is very similar.
MR DONOVAN: Brodie in a sense was able to be corrected reasonably simply. If one accepts as an anomaly – and I must say there is an argument that there is not – that although there may not be any kind of uniform logicality to it, the common law being an experiential law has developed certain mechanisms which work in a commonsense way reasonably well. Might I add this, your Honour: this is not a case where this Court is being asked to make a fine adjustment, a small change, an increment. It is a case where this Court is being asked to sweep away effectively if not all, then nearly all the control mechanisms that have previously existed. I want to come to that in a moment if I may.
There are a couple of factual matters I need to raise just to correct a few things that were said. I will be very brief on them. It was put to this Court yesterday by Mr Mullany that the appellant made communication with – it was a phone call – Mr McGregor, the counsellor, prior to receiving the news. That is not necessarily so. Mr McGregor can only say that the phone call occurred some time between 8.30 and 5.00 pm and that appears at 295, line 32. Mrs Tame herself deals with Mr McGregor at 22 and 116 and she makes no reference to when the time was. Mr McGregor’s record – he was at Richmond Hospital, I think, at the time – is at 558. So we do not know what time that phone call was, nor do we know what time of the day on the 18th Mr Weller received information about the P4. He received it, he said, with a letter which arrived on his desk – 224, line 10 – and he says later that day – but the time again is unspecified – he rang Mrs Tame – 220, line 40. Then Mrs Tame rang Morgan and there is no record of when that was either.
The second preliminary matter I wanted to mention is this: with the written submission we provided to the Court a police instruction. It is the nearest one we have been able to find so far which was applicable at the time, but in fact it came into effect slightly after the date of this event. The one which was before it was very similar but I have not been able to get a copy of it so far.
The next thing I wanted to say as a preliminary matter, is this. So far as this respondent is concerned, the simple answer is that used by two judges of the Court of Appeal, namely, simple foreseeability. Both Justice Mason and Justice Handley said that this was far‑fetched and fanciful.
KIRBY J: Far‑fetched and fanciful by what standard, foreseeability ‑ ‑ ‑
MR DONOVAN: By foreseeability. As a foreseeability issue it was far‑fetched and fanciful. They did not specify whether that - well, it looks from the context as if they are talking about foreseeability of damage rather than foreseeability in relation to duty. Perhaps it does not matter. I will give your Honours references to those when I go through the points I wanted to make. I now have, your Honours, some 22 points I want to make. Some of them are simple propositions and nothing more, and they are these.
One, experience of the law so far shows that in certain areas of law control mechanisms are needed or appropriate. Two, they are mainly needed in areas where traditional neighbour tests are inapplicable or uncertain because, for example, there is no physical or temporal proximity, there is no special relationship. That is not all of them, but it is some of those sorts of areas. Three, they are needed in those types of cases because indeterminate liability may or will occur. Four, psychiatric injury is just such a class of case. Five ‑ ‑ ‑
KIRBY J: But so is some physical injury.
MR DONOVAN: Where there is no physical injury, yes, I am sorry.
KIRBY J: But why single out psychiatric injury?
MR DONOVAN: I am not singling it out ‑ ‑ ‑
KIRBY J: Subdural haematoma may be difficult to diagnose.
MR DONOVAN: It may be, but it will result from some proximity in the sense that there is, as Justice Gaudron pointed out yesterday, a violation of the person in some way. So there is a physical proximity there, whereas psychiatric injury does not need that, nor does pure economic loss, as Perre’s Case would illustrate, although there was some physical closeness of the properties there. Now, the next thing is this - five, while it may be appropriate for the law to adjust control mechanisms from time to time, it should not engage in wholesale abandonment of them in a single sweep, which is what this Court has been asked to do. Step by cautious step, as Mr Justice Windeyer said; incremental adjustments, I think was the phrase used by Justice Brennan.
KIRBY J: Where did Justice Windeyer say that? In Pusey, was it?
MR DONOVAN: In Pusey, yes. That is the passage where he talks about the law limping behind medicine. Now, for that reason, Justice Brennan discussed in Jaensh at page 70 point 7, whether the immediate assault was a requirement of law or more a practical requirement of causation and evidence. There was some adjustment that he looked at there and, indeed, the whole Court looked at an adjustment of the traditional approach. But it is a fairly minor adjustment to see how things work, not a wholesale sweeping away.
Six - I want to just point out what traditional control mechanisms have been, that there is a psychiatric illness; that there is foreseeability of psychiatric illness; there is a sudden assault on the senses; there is an actual perception of the event; and, finally, normal susceptibility. Now, we have heard the phrase “reasonable fortitude”, and that is a phrase which is used, but if you look at Justice Brennan’s reasoning at 568 point 5 in Jaensch, you will find, your Honours, that he uses the term “normal . . . susceptibility” and he associates it, very appropriately, one might think, with foreseeability. This is point 5 on page 568:
Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness.
“Normal susceptibility” may be a more flexible phrase than “reasonable fortitude”, but it certainly is consistent with the article by Pound, which your Honour Justice Hayne took us to yesterday, arising out of the judgment of Mr Justice Windeyer in Mount Isa Mines.
Seven: the Court may wish to consider a control mechanism which deals with the nature of the experience. Now, this is an additional one which the Court might wish to consider. It is not necessary for us to succeed, but let me put it forward. The news in the present case has been described, rightly, by one member of this Court as “trivial”, in our submission. Perhaps it might be appropriate to have a control mechanism of horrifying news. On the other hand, maybe that is already covered by reasonable foreseeability. That is something which this Court may wish to look at. I raise it simply as a factor. Again, it is not essential to our success in this case. Trivial news would not lead to reasonably foreseeable psychiatric injury. Eight: whatever adjustments are made here ‑ ‑ ‑
KIRBY J: Can I just interrupt there. There are references in the case as to the horrifying news aspect. Where is that said most clearly, do you remember?
MR DONOVAN: The passage which I was thinking of when I wrote that, your Honour was a passage of Justice Brennan who talks about “distressing news”. I think you will find something stronger than that in the English cases but I am not sure ‑ ‑ ‑
GLEESON CJ: It is at page 568 of 155 CLR about a quarter of the way down the page.
MR DONOVAN: Thank you, your Honour. That is not at the moment a control mechanism, but I just raise it for the thought, nothing more.
Eight, as I started out: whatever adjustments are made here will not allow the plaintiff to succeed. She fails on reasonable foreseeability, whether or not there is a requirement of reasonable fortitude. I wanted, very briefly, to mention what Justice Mason and ‑ ‑ ‑
GUMMOW J: Do you say she fails also on duty?
MR DONOVAN: Yes. She fails on duty on two bases. One, because there is no reasonable foreseeability and, two, there is none of the traditional types of indicia which would create a duty such as, as Justice Mason refers on page 800, line 45, of the appeal book:
no overriding duty based upon an employment relationship, knowledge of susceptibility, physical proximity or the creation of a situation likely to attract from the respondent a response in which psychiatric illness was a foreseeable prospect
GLEESON CJ: I understand it to be common ground, that the – it is an accurate description of the relationship between Acting Sergeant Beardsley and Mrs Tame that he was a police officer and that she was a person whose conduct, in relation to a motor traffic accident, was under investigation and report.
MR DONOVAN: Yes.
GLEESON CJ: That is the relationship.
MR DONOVAN: Yes, but in response to that we would say that that is not a relationship which gives rise to a duty of care. Now, in saying that I cannot say to this Court there is a precedent which says that.
GLEESON CJ: Is there not? What about Sullivan v Moody? What about cases dealing with the duty owed by police officers investigating crime to people who might be charged with crime?
MR DONOVAN: Your Honour, I know of no particular case – and I may be wrong on this – where there has been any successful claim for a negligent investigation.
GLEESON CJ: On the contrary. I thought there had been decisions which say that an investigating police officer does not owe a duty of care to a person whose conduct is under investigation.
MR DONOVAN: I am sorry, I said where a claim has been successful. I am sorry. Yes, your Honour. I was thinking of it the other way round. That is one of the factors that we would raise which positively – and I will adopt what your Honour says – shows there is no duty, but apart from that – perhaps I will just leave it at that. In what I was just doing there, your Honour, I was really taking more on board what the President had said in the court below. I wanted also, if I might, just to point out a further passage at 808, line 45. The President, Justice Mason said:
The risk that Acting Sergeant Beardsley’s negligent act might cause the respondent “shock” or a psychiatric illness induced by it was far‑fetched or fanciful.
I am sorry just to jump around but just to go back to 800, this also is what the President said:
In my view, Acting Sergeant Beardsley owed the respondent no relevant duty of care. Wherever the line is to be drawn, in the law as expounded by existing Australian case law, the present case lies well outside it.
Nine is that the particular piece of information in this case in the context where the plaintiff knows it is a mistake is trivial. She tells her solicitor that it is a mistake, it is wrong. She immediately rings Morgan who says, “You know it is a mistake”. Ten, looking at it from the other side, from Acting Sergeant Beardsley’s point of view, it is a minor slip. Reasonable foreseeability, as this Court discussed yesterday, must be judged from the point of view of the actor, not from the point of view of the victim or the psychiatrist. The test is would the reasonable man in the position of the defendant foresee the events and injury.
Eleven, the reasons in support of the control mechanisms are set out in the submissions of Mr Jackson at paragraph 12, pages 4 and 5. I wanted to raise two others. Distributive justice – but these apply to this case. I do not say they are generally applicable, but to this case – distributive justice and commonsense. Lord Hoffmann in White v Chief Constable [1999] 2 AC 455 at 510C said – there is just one sentence I am going to read. For the plaintiff to recover for this cause of action “would be quite unacceptable” and he then explained further. The reason for that was that people who had lost their children back in Alcock could not recover, therefore police officers who were only involved in seeing the aftermath also should not recover, and that was how Lord Hoffmann looked at it.
We would just point out here that if the plaintiff could recover for this type of event in circumstances where the legislature has limited recovery for motor accidents so that this sort of thing and even worse injuries would be excluded and in industrial accidents where worse injuries would be excluded, it would be, to use Lord Hoffmann’s words, quite unacceptable for this plaintiff to recover.
GUMMOW J: Is there some theory that the common law adjusts to these other statutes in other fields?
MR DONOVAN: I cannot answer that, your Honour; I do not know.
KIRBY J: It is difficult, is it not? This is a statutory regime in two particular statutes in New South Wales and the common law is the common law of Australia.
MR DONOVAN: Yes.
KIRBY J: Just because in particular mass‑produced areas of litigation the Parliament of New South Wales has introduced what on some views is an arbitrary restriction, why would the common law impose arbitrary restrictions?
MR DONOVAN: I am putting this forward as a non‑arbitrary restriction because in this particular case, and I do not say it applies across the board to nervous shock or psychiatric injury, but where you have such a – I will use the word – trivial piece of news leading to such an extraordinary idiosyncratic result, commonsense and distributive justice, we say, would stand in the way of recovery. This Court may say, “We’re not interested in those sorts of tests. They are English tests and shouldn’t apply here”, but I raise them for consideration.
CALLINAN J: Why is distributive justice relevant? It is an expression I hear from time to time. Judges take an oath to do equal justice between rich and poor, not to distribute the liability among those who can afford to pay or not afford to pay. What does it have to do with the law?
MR DONOVAN: Lord Hoffmann was not using it in that sense, your Honour.
CALLINAN J: In what sense was his Lordship using it?
MR DONOVAN: Lord Hoffmann was using it in the sense of: there should be reasonable consistency of people who are entitled to recover. So that, for example, if the parents cannot recover in the Alcock Case for the loss of their children and the nervous shock they suffer, policemen who have no contact with those children, who have no relationship with them, who happen to see the aftermath at some later stage also should not recover. That is what his Lordship meant by it. I do not say necessarily one way or the other it is a rule that this Court should apply. I raise it as a rule which has been applied in another jurisdiction for the Court’s consideration. Again, as I said before, I do not need to establish these various matters in order to win this case. Simple foreseeability is the fundamental matter which would allow us to win.
Twelve: the very reason why Judge Garling gave a verdict was because he ignored the reasonable fortitude or normal susceptibility control mechanism. He specifically said that and this is referred to by Chief Justice Spigelman at appeal book 763 to 764, especially at 764, line 20.
KIRBY J: What is this point, I am sorry?
MR DONOVAN: This was that Judge Garling specifically did not apply one of the traditional control mechanisms, namely normal susceptibility. That is referred to by the Chief Justice at 763 and 764.
Thirteen: the normal susceptibility test does help to avoid idiosyncratic decisions by trial judges, such as happened here. It reminds lawyers that there is an objective test for reasonable foreseeability, and this is something which Justice Brennan refers to. He does not elaborate greatly on it but refers to it at page 568 of Jaensch v Coffey.
KIRBY J: How does it square though with the “eggshell skull” notion in physical injury?
MR DONOVAN: It has been put by the Court of Appeal – and we would adopt this – that “eggshell skull” applies as a principle of quantum. So that once there is physical injury, “eggshell skull” allows the totality of whatever happens; you do not have to break it up.
In psychiatric injury, reasonable fortitude or normal susceptibility is a derivative or derivation of reasonable foreseeability and therefore is a liability test. That is how the Court of Appeal put it and that is how we would adopt it. It certainly is a rational distinction, although I recognise that judicial minds may differ on that.
KIRBY J: It does seem to show a judicial tendency to suspicion of psychiatric injury which certainly was the tendency in the last century, the 19th century and in the 20th century, until quite recent times. It was not really until the Mental Health Act of New South Wales was amended, I think in 68 or thereabouts, that a more enlightened view began to emerge about mental illness.
MR DONOVAN: “Suspicion” is a bit of a loaded word and can I respond to what your Honour said by this. If you take reasonable foreseeability from the position of the plaintiff of the person who is psychiatrically hurt you might come up with one answer. If you take reasonable foreseeability from the point of view of the defendant, the person who is accused of creating the tort, you could come up with a different view, and we are suggesting that the appropriate view for reasonable foreseeability is to look at it from the point of view of the reasonable person in the position of the defendant.
GAUDRON J: But it goes beyond that, does it not, in this area of the law? It certainly can be fitted into that conceptual framework but it does go beyond to the point where the individual must be of normal ‑ ‑ ‑
MR DONOVAN: Well, no, I am sorry, the individual does not have to be of normal fortitude, that is something I wanted to say. The test is not that the plaintiff is a person of normal fortitude but rather that a person, either of normal fortitude or normal susceptibility, would be affected by this event.
KIRBY J: Yes, but that is a distinction without a difference because you are testing the criterion of the plaintiff’s reaction against this mythical objective person of ordinary fortitude.
MR DONOVAN: Well, in a sense that is right, but in a sense that is what comes out of objective reasonable foreseeability. I do not say that one cannot move but if one does move, a person would then leave open the problem of how do you reconcile objective reasonable foreseeability with the idiosyncrasies of a particular plaintiff which no one could ever possibly imagine under any circumstances and this case comes pretty close to that great extreme.
GAUDRON J: Where is the authority that the plaintiff does not have to be a person of normal susceptibility?
MR DONOVAN: I am not sure I can answer that. My memory is it is certainly referred to by the judges of appeal in this case. My memory - look, I cannot answer it, your Honour, I would have to look it up, I just cannot tell you. But if you look at the authorities, although it is often said the plaintiff must be a person of reasonable fortitude, what underlies that, in reality, is vulnerable plaintiffs can recover but they cannot recover if the only reason for their recovery would be their vulnerability and an ordinary person of normal susceptibility would not recover.
At page 417, your Honours will see, between letters F and H, that he referred to the potential difficulties in trying to expand the area of liability further. Our submission is that this is a case which, sad and distressing as it must have been, did not fit within that test, and the Full Court was right so to decide. Similarly, if one goes to the other basis on which the Full Court so decided – it is called the “aftermath rule” – your Honours will see that referred to in our written submissions, in paragraphs 20 to 34. May I just say a couple of things about what is contained in there, without going to the detail of it.
Your Honours will see that what is spoken of is that in relation to proximity – and I refer your Honours to paragraph 21 – the immediate aftermath concept does, in our submission, carry with it the requirement of immediacy. We refer to this in paragraph 23. Could I give your Honours a reference in that regard, in relation to the last sentence of paragraph 23, namely, to what was said by Justice Deane in Jaensch at 155 CLR 607.
Your Honours will see in the passage which is the last paragraph on that page, going through to about halfway down page 608, that his Honour is not speaking of any lengthy time that is involved and, your Honour, I do not suggest a two‑hour rule or anything of that kind, or that the ‑ ‑ ‑
GLEESON CJ: No, but there must be some element of flexibility, must there not, in concepts both of propinquity and immediate aftermath, to accommodate cases that happen in the desert over a period of time, or at sea, or whatever?
MR JACKSON: Your Honour, no doubt it must depend on the circumstances. I do not suggest there is an absolute ‑ ‑ ‑
GLEESON CJ: But these are relative concepts.
MR JACKSON: Of course, your Honour, yes. Immediate and aftermath are both concepts that are flexible. Having said that, if one is speaking about, first of all, the event that gives rise to potential liability and the event being the event causing the death of the son, your Honours, one has, first of all, a notification that the boy is lost or the boy cannot be found or has disappeared, but if one speaking about immediate aftermath, we would submit one is not speaking about something that occurred over a period of months. Your Honours, no doubt there is an element of value judgment in that and we have endeavoured to deal with that in our written submissions which I will not go to in detail.
GUMMOW J: I am not sure that the written submissions deal with W v Essex County Council [2000] 2 WLR 601, do they?
MR JACKSON: Your Honour, I do not think so, unless we have it in a ‑ ‑ ‑
GUMMOW J: It is a decision of the House of Lords in which there seems to be, perhaps, some backtracking from these cases in the 1990s. It is a case about the foster child who then attacked the children of the foster parents when the county authority had told the foster parents that they would take good care to make sure they only hired out a child who was safe and not likely to attack foster siblings. The question was whether that should be struck out but the House of Lords did not strike it out.
MR JACKSON: Your Honour, the ‑ ‑ ‑
GLEESON CJ: I wonder if Osmond was good law at the time? The striking‑out procedure seems to have suffered some inhibition as a result of the decision of the European court.
MR JACKSON: Your Honour, I was going to say that one is, of course, dealing in a case like that with something that is not struck out. The reasons for not striking out can be (a) that the claim is good, or (b) that it is not established that the claim is bad. There is sometimes ‑ ‑ ‑
GUMMOW J: The parents were claiming “nervous shock” though.
MR JACKSON: Your Honour, equally so. It may mean that the case fails on the way up and it eventually succeeds but at the moment, in our submission, the position has not changed, that to which I adverted. Your Honours, perhaps if necessary if there is anything further we want to say about that, maybe we can give your Honours a note about it.
GUMMOW J: Yes, it might be an idea.
MR JACKSON: Could I just say that we would submit that there is no basis for the extension of the aftermath rule. We have referred to it in our submissions. If I could just go back for one moment to the sudden shock rule. Your Honours, again, in our submission, there are good reasons for its retention. It reflects the fact that one is trying to identify whether negligent conduct is the cause of psychiatric illness and whether that should or should not reasonably have been foreseen.
Could I say, your Honours, there has been much talk about whether the psychiatric position has moved on relevantly. Your Honours will see if one goes to Jaensch for a moment, 155 CLR 600 to 601, that Justice Deane, in the new paragraph on page 600, says:
Despite the advances in knowledge of mental illnesses since the majority decision in Chester v Waverley Corporation, much remains unexplained and uncertain even among experts.
He discusses that through the remainder of that page and through the next page. He goes on to say particularly, your Honours, at page 601 about point 2 or 3:
There is continued expert support for the Freudian view which emphasized the importance of the element of sudden fright or surprise in neurosis following trauma.
Your Honours will also see in the last third of the page that he adverts to the fact that the courts ought not to engage in this area in significant law reform because of the difficulty of doing so very precisely.
In Chester if one looks, your Honours, at pages 18, 43, 44 and 45 one sees Justice Evatt speaking in terms of not sudden shock or nervous shock as being the illness, but speaking of psychiatric injury or psychiatric illness caused by the sudden shock to the person involved. Your Honours will see, for example, at page 18 where, referring to Coultas, he said that:
precludes the courts of the British Dominions from allowing damages to be recovered where injury takes the form of illness due to nervous shock.
Then at page 43 one sees that, about a third of the way down the page, he says:
but I am of opinion that in the present case the plaintiff is clearly entitled to have her claim considered by the jury and to recover damages upon proof that her shock and illness were caused by emotional distress caused by the circumstances -
and, further down the page in the next paragraph, the third line:
provided that her shock and suffering were due in the main to what she realised from her own unaided senses during the period I have defined.
Could I refer your Honours also to the decision of the Court of Appeal of British Columbia in – I will give the short version of it – Devji 180 DLR (4th) 228 paragraph 73.
Your Honours, the remainder of what we would seek to say is, I think, set out in our written submissions. Could I refer particularly to what we have submitted at pages 17 and 18, paragraphs 39 and following, under the headings “The Law of Torts does not cater for all tragedy” and also “The case for change is not all in one direction” and then page 19 “Any Radical Change Should be Statutory”.
Your Honours, one sees references made from time to time to the law limping along but is not quite the context in which Justice Windeyer said it but, your Honours, sometimes if one is moving pace by pace or step by step, sometimes it is time to stop as well and to pause before taking the next step or going along the next road. Your Honours, those are our submissions.
GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Walker.
MR WALKER: Your Honours, there is no viable suggestion in this case, (a), because it is being argued on, admitted, assumed facts; and, (b), because this is a question of duty in this argument. There is no viable suggestion possible for what we contend for represents an invitation to the Court to be in the vanguard of a, perhaps, soon to be discredited variant school of pioneer psychiatry. Our case does not turn on anything idiosyncratic but turns on the extremely usual ‑ ‑ ‑
GUMMOW J: You are saying we cannot be modishly innovative.
MR WALKER: That is right, your Honour, whether as a matter of capacity or prescription is perhaps a matter for your Honours, but it is the modishness that concerns us in the last suggestion from our friend. There is nothing modish about suggesting that intense grief may be the foundation of mental illness. Your Honours, Lord Oliver’s comments in his speech in Alcock, cited by my learned friend from [1992] 1 AC 416 to 417, bears, in our submission, an evocative comparison with the passage well known to your Honours from Justice Rich in Chester 62 CLR 11 to 12, where his Honour fore‑tendered an “amorphous” state of the law of tort where the step to be taken, which history shows has been taken, with steps taken thereafter.
With respect to the “mere news” argument that my learned friend has put, may I simply draw to attention by way of further reference from the reasons of Justice Hodgson in Gifford v Strang Patrick [2001] NSWCA 175 of 14 June this year. The passage is at paragraphs 70 to 73 where his Honour is talking about the statutory question by contrast with the common law question he referred to at paragraph 44. Perhaps interestingly, that is, perhaps relevantly for our case, where all his Honour was doing was construing the statutory words “sudden shock” and the like, then in that case his Honour had little difficulty, as one would expect from ordinary life, in finding that that could be brought about by so-called “mere news”. It is difficult to see why as a matter of principle it should be different when the common law, also using ordinary English words, asks: how can sudden shock be caused? That is even assuming one were to keep something in the nature of sudden shock meaning something which is both instantaneous and memorable.
Your Honour the Chief Justice inquired of my learned friend concerning the question of control mechanisms and perhaps the fact that their need is obviated or reduced in cases of a prior relationship. First, we embrace that as part of our argument. Second, it is to be recalled that control mechanisms are regarded when explicitly described as such as appropriate in the development of the common law or the search for what the common law already is, for a number of different reasons which are conveniently but obscurely lumped under the title of “policy”.
In our submission, one needs to identify the social interest, call it policy, which is intended to justify the imposition of a control mechanism upon what would otherwise be a structure intellectually satisfying supported by principle and authority. We have identified two because they seem to be the two which dominate the learning, both curial and extra-curial in this area, starting with Dean Pound from the materials before your Honours. Those two are what we have called the Ultramares spectre and there is also what Dean Pound called “imposture”. “Imposture”, of course, really means difficulty of proof. But even perhaps I should say especially in that passage in 1915, the way he put it, particularly at page 362 of the Harvard Law Review – I think your Honours already have it, if I may hand up copies of the particular passage – at the end of the paragraph from which I think your Honour Justice Hayne was particularly quoting when drawing attention to the balance between people exercising their faculties freely:
for purposes recognised by law and, so far as he could reasonably foresee –
that is the foreseeability question –
does nothing that would work an injury, the individual interest of the unduly sensitive or abnormally nervous must give way.
An early appearance of the normal fortitude point.
GUMMOW J: I am sorry, which page are you reading from, Mr Walker?
MR WALKER: The foot of 361 and I am now at the top of page 362, your Honour.
GUMMOW J: Yes, thank you.
MR WALKER: At the foot of that paragraph, he goes on:
Probably advance in our knowledge of psychology and mental pathology and progress in means of arriving at the truth in matters where expert evidence is required –
I rely upon the second, not the first –
will determine the development of the law upon this subject. So long as the margin for imposture and the scope of pure expert conjecture remain as large as they are at present, this phase of the interest of personality must remain in some measure insufficiently secured.
No doubt and no doubt all things are relative, but things have advanced and, in our submission, it cannot seriously be suggested that that remains a driving policy, to use that word, which ought to justify a control mechanism imposed, notwithstanding the acceptance, as the Full Court did accept that mental illness had been caused, that is, for the purposes of the argument, by the grief. In our submission, that is to turn on its head the initial purpose of the control mechanism in question. May it please your Honours.
GLEESON CJ: Thank you. We will reserve our decision in these matters.
AT 4.08 PM THE MATTERS WERE ADJOURNED
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