Wilson v Horne

[1999] HCATrans 412

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H6 of 1999

B e t w e e n -

GRAEME JAMES GREGORY WILSON

Applicant

and

CHERIE JAYNE HORNE

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR S.P. ESTCOURT, QC:   May it please your Honours, I appear for the applicant with my learned friend, MR J.P.E. WALKER.  (instructed by Walkers, Barristers & Solicitors)

MR R.A. BROWNE:   I appear for the respondent, your Honour.  (instructed by Legal Aid Commission of Tasmania)

GLEESON CJ:   Yes, Mr Estcourt, go ahead.

MR ESTCOURT:   May it please your Honours, it is submitted that in this case there should be a grant of special leave because two questions of law arise which are of public importance.  Both questions, it is submitted, involve the formulation, not simply the application of principles of the common law of Australia.  The first question, it is submitted, is whether negligence lies for direct intentional acts or whether intentional trespass is the sole remedy for deliberate or conscious wrongdoing.

The second question, your Honours, is whether damages are available for all deleterious effects upon a person’s mental health and wellbeing beyond mere grief, sorrow or shock and those emotions of a transient nature or whether only those effects which are part of the psychiatric lexicon are compensable.

GLEESON CJ:   In relation to that first question, if one person owes another person a duty of care and deliberately acts in breach of that duty of care, is there a cause of action in tort for negligence?

MR ESTCOURT:   In tort, your Honour, or in negligence?

GLEESON CJ:   In the tort of negligence.

MR ESTCOURT:   Yes, your Honour, no doubt it can be argued that because negligence is established by a mere inadvertent breach of duty then, a fortiori, a defendant is liable for intentional violations, but, in our submission, such an argument does not recognise the policy of the law, which is the protection of the right not to suffer from deliberate wrongful interference at the hands of others.

GLEESON CJ:   The so‑called tort of negligence is based upon a failure to exercise due care towards someone to whom you owe a duty of care.  The failure does not have to be necessarily careless, does it?

MR ESTCOURT:   No, that is so, your Honour, but it is submitted that with its underlying notion of want of reasonable care negligence simply does not arise where intentional torts such as assault and battery and false imprisonment have been committed.  In such a situation it is submitted that negligence is logically irrelevant and the idea and language of negligence is quite foreign to conscious or deliberate wrongdoing.  The second basis upon which it is submitted that negligence does not lie in the case of intentional direct acts is one of policy, your Honours, in our submission.

We say that intentional trespass involves a violation of the protection the law throws around the person and that the promotion of a peaceful society and the discouragement of violent or aggressive acts warrants separate and distinct torts to deal with intentional as opposed to inadvertent acts.

GUMMOW J:   I do not quite understand that.  I mean, there will be many cases where trespass will be the right remedy because there is no duty of care anterior.  Do you see what I mean?

MR ESTCOURT:   Yes, your Honour.

GUMMOW J:   There is scope for both, but they may overlap.

MR ESTCOURT:   There is scope for both in the sense of being able to identify the features which accompany each cause of action but, in our submission, on the basis of policy, intentional trespass should be the only remedy in relation to direct intentional acts and that there is no justification for holding that the tort of negligence has application to facts giving rise to intentional torts.

GUMMOW J:   Well, I thought there were cases in England in the 60s – Fowler v Lanning was one – all about this sort of problem and that ‑ ‑ ‑

MR ESTCOURT:   No, your Honour, with respect, that is not so.  Letang v Cooper was a case in which the obverse was decided.  This point has never been decided, as the learned authors of the Law of Torts in Australia, Messrs Trindade and Cane, point out in their work and this point falls for decision and no court beyond a court of trial has even looked at the point, your Honour.

GLEESON CJ:   Did we not look at this point in Gray v Motor Accident Commission?

MR ESTCOURT:   It is submitted, your Honour, that the question did not get quite there in Gray.  Gray was a case where there was some confusion at trial as to whether the case was one of negligence or whether it was one of trespass and the Court was concerned in Gray, of course, with the question of exemplary damages and whilst it was said that exemplary damages would lie in a case where there was conscious wrongdoing, it was clear from the judgment of the majority in Gray that the case at trial was conducted as though it were a claim in trespass.  There was evidence in support of an allegation of a deliberate driving in the statement of claim and the statement of claim was said to have been framed in trespass, but the majority in Gray recognised that all the evidence was, in fact, directed to a conscious wrongdoing on the part of the tortfeasor.

Your Honours, we submit that this is not a case, for example, as was the situation in Rylands v Fletcher, which the Court dealt with in the Burnie Port Authority Case, where the ‑ ‑ ‑

GLEESON CJ:   Well, just a moment.  The following sentence appears in the majority judgment in Gray 158 ALR 485 at 491:

there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff.  Cases of an employer’s failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind.

MR ESTCOURT:   Yes, that is so, your Honour.  The majority of the Court was there concerned with the question of exemplary damages, notwithstanding the difficulty that arose at trial because of the way the statement of claim appeared to be pleaded in negligence and the trial was conducted as one of trespass because, three lines down from the passage that your Honour has just read from, the second point that allowed the Court to go on and consider the award of exemplary damages was made in the following terms, and I read from paragraph [24]:

Secondly, the present proceeding, although said to have been framed as an action in negligence, appears to have been conducted at trial as if it were a claim in trespass.  The allegation made in the appellant’s statement of claim, and pursued at trial, was that Bransden drove his vehicle “deliberately towards [the appellant] without regard for the safety of [the appellant]” and such evidence of the events as was given at trial was all directed to showing Bransden deliberately inflicted injury on the appellant ‑

but their Honours importantly say, or your Honours importantly in the case of your Honour the Chief Justice, go on to say ‑

Whatever may be the true characterisation of the pleading, the case was conducted as one of conscious wrongdoing by the tortfeasor.

So this point, in my respectful submission, did not arise in that case or the point that we say gives rise to a special leave argument in this case did not arise in Gray. 

I was about to conclude on this first point, your Honours, by saying that unlike the case in Rylands v Fletcher, trespass is not a tort where the ordinary principles of negligence have overlain the whole area and the rules of trespass, intentional trespass, are not difficult of application.  So we say that there is no justification for holding the tort of negligence has application to facts giving rise to the intentional torts of trespass.

Further, your Honours, we would say that to do so would be to risk obscuring very important distinctions between the two torts which involve the accrual of the cause of action, the necessity to show actual damage and the available of contributory ‑ ‑ ‑

GUMMOW J:   But what is the necessary mental element in the tort of conversion?

MR ESTCOURT:   In the tort of conversion, your Honour?

GUMMOW J:   Yes.  Trespass to goods, if you like.

MR ESTCOURT:   Simply the intention behind the act, your Honour, and in intentional trespass such as battery it is simply the intention behind the act.  Intention to injure is no part of the torts.  Your Honours, as to the second special leave question –  - -

GUMMOW J:   So what do you say is the limitation on negligence?  How is that defined in terms of mental element?

MR ESTCOURT:   In terms of mental element?

GUMMOW J:   Yes.

MR ESTCOURT:   Reasonable foreseeability is the only aspect which would approach an intention, your Honour.

GUMMOW J:   Yes, but if that is present, that is somehow vitiated by some mental element, is it?

MR ESTCOURT:   No, your Honour.

GUMMOW J:   Yes.

MR ESTCOURT:   And that, with respect, was the approach that was taken by Mr Justice Dunford in Carroll v Folpp.  It is not suggested that one ought to be able to say that the intentional infliction of injury is a defence to negligence.  It is simply that the language of the two ought not to cross.  Your Honours, I was about to move onto the second point.

GLEESON CJ:   Well, just before you leave the first point, are you seeking to argue that the uncle, your client, owed a duty of care to the plaintiff?

MR ESTCOURT:   That he did not, your Honour?  I am sorry, I did not hear your Honour.

GLEESON CJ:   Yes.  Do you wish to raise an issue in the appeal about whether there was a duty of care.

MR ESTCOURT:   It has never been suggested that there was not a duty of care if the tort of negligence applies, your Honour.

GLEESON CJ:   Right.  Well, then the question is whether or not the actions in which he engaged constituted a breach of the duty of the care.

MR ESTCOURT:   If negligence lies?

GLEESON CJ:   Yes.

MR ESTCOURT:   Yes.

GLEESON CJ:   Now, he may have intended to do the actions that he did, but it is not suggested, is it, that he intended to cause her the psychological harm that she suffered?

MR ESTCOURT:   No, that is so, your Honour, and that is why it is ‑ ‑ ‑

GLEESON CJ:   Well, then there is an ambiguity about the proposition that his conduct was intentional, is there not?

MR ESTCOURT:   In my submission, your Honour, intention to injure is no part of the tort of intentional trespass.  The intention goes only to the act.

GLEESON CJ:   So if instead of acting indecently towards her, he had driven a motorcar towards her, intending to give her a fright and he had given her a much more serious fright than he bargained for, he could not be sued in negligence?

MR ESTCOURT:   There will be cases, your Honour, where in intentional trespass there was both an intention to commit the act and an intention to injure.  This is a case where there is only an intention to commit the act.  There does not have to be an intention to injure.  That is not an ingredient of the cause of action of intentional trespass, it is submitted.

GLEESON CJ:   Thank you.

MR ESTCOURT:   As to the second question said to arise, your Honours, the court below held that the sexual development disorder suffered by the respondent was not compensable damage because it was not a recognisable psychiatric illness, although it was on the cusp of being so.  It is submitted that the Full Court was in error in so holding as the law only excludes from compensation the primary and transient responses to traumatic stimuli such as grief and sorrow and fear and other unpleasant instinctive emotions.  In our submission, the law does not require conformity to a label.

As was pointed out, your Honours, by Justice Priestley in Swan v Williams (Demolition) Pty Limited (1987) 9 NSWLR 172 at page 195, neither this Court’s decisions in Mount Isa Mines v Pusey nor Jaensch v Coffey were concerned with the precise meaning of the term of “nervous shock” because in both those cases it was not disputed that the plaintiff had suffered shock in a compensable sense and his Honour Justice Priestley pointed out that the earlier New South Wales Full Court decision of Macpherson v Commissioner for Government Transport (1959) 76 NSWWN 352 involved a case where the question was in issue and the test to prove in that case included as compensable all forms of psychological injury, that is all of the consequences of nervous shock, and excluded only ordinary grief and anguish or anything which was the ordinary result of sudden death.

Now, in our respectful submission, your Honours, that exclusory approach in Macpherson is the correct approach, not the inclusory requirement of conformity to the psychiatrists nosology or lexicon.  In our submission, because normal and ordinary emotional actions such as grief and sorrow are transient and are without lasting harm and are ubiquitous, it is not difficult to perceive the policy of the law in excluding them from compensation.  There would be a multitude of claims otherwise and such claims could easily be fabricated, but we say, your Honours, that the same policy considerations do not apply to more enduring and abnormal conditions arising from a traumatic stimulus and that the test for compensation should only exclude from the deleterious effects of such

stimulus on a person’s mental health and wellbeing those mere transient reactions.

It is submitted, your Honours, that the right of a plaintiff in the integrity of his or her psyche – and I use that word as meaning mind as opposed to body, your Honours, not as meaning love with butterflies wings – it is submitted that the right to a plaintiff to the integrity of his or her psyche is the equal to the right of physical self being protected.  We submit, your Honours, that any test which requires conformity to a label misses the point and that is that it is the adverse consequences to the plaintiff which is the true focus of the inquiry and not a psychiatrist’s description.

We ask rhetorically, your Honours, how can one sensibly be on the cusp of a psychiatric illness or disorder and not have suffered damage beyond a minimus?  That was to conclude my submissions, your Honours, but I see your Honour the Chief Justice poised perhaps to ask a question.

GLEESON CJ:   No, no, go ahead.

MR ESTCOURT:   Thank you.  May it please your Honours.

GLEESON CJ:   Yes, thank you.  Mr Browne.

MR BROWNE:   If the Court pleases.  Williams v Milotin is the case relied upon by the applicant in relation to the first point and that case decides a very narrow point which is now of no relevance to the law in this State being concerned, as it was, with provisions of the Limitation of Actions Act in South Australia and a dating to the middle part of this century.  The relevant question before the High Court in that case was the construction of a part of section 35 which dealt with what cause of action may formally have been brought in an action on the case or trespass on the case and the Court was required then to consider the expression ‑ ‑ ‑

GUMMOW J:   Well, perhaps more to the point is a case like Hackshaw v Shaw, is it not, which you have referred to?

MR BROWNE:   Yes, as an example of a case where the plaintiff ‑ ‑ ‑

GUMMOW J:   And Chief Justice Gibbs discusses Letang v Cooper and that line of territory.

MR BROWNE:   Yes.

GUMMOW J:   And that was a case where the plaintiff sued both in negligence and trespass when there was a shot fired.

MR BROWNE:   And the cases accept, as was accepted in Williams v Milotin that a plaintiff has an election.  That was the decision in Williams v Milotin.  The reference to a constriction on the plaintiff’s ability to sue in trespass or not otherwise if the action was characterised as intentional related to the law as it stood in the 19th century and in Williams v Milotin the Court looked to the prospects of the plaintiff suing in either of those torts and they recognised that the plaintiff could choose which of the causes of action they could sue in.

GLEESON CJ:   Mr Browne, I am looking at page 69 of the application book at line 25.  Is it the case that at least some of the conduct complained of by your client did not consist of conduct that could be described as trespassory?

MR BROWNE:   Absolutely, your Honour, absolutely, and I have referred to that conduct specifically in my written submission at page 87 of the application book at paragraph 7 describing incidents of masturbation, of showing and attempting to interest the plaintiff in pornographic magazines and the engaging in sexual intercourse in the presence of the plaintiff, who was a young child at the time.  None of those particular acts of the applicant involved any conduct - none of those acts could be characterised, certainly not as a battery and certainly not as an assault.  There was no evidence of fear in relation to those particular acts.  So the observation made by Justice Evans in the court below that parts of the conduct that the plaintiff alleged as not being falling within the compass of trespass, I submit, is quite correct and ‑ ‑ ‑

GLEESON CJ:   Well, then the conduct of which your client complained and for which she sued consisted of a complex pattern of behaviour, part of which might have involved or did involve trespass and part of which did not.

MR BROWNE:   That is the case.  That is the case, your Honour, and, of course, the consequence of the submission by the applicant is that the plaintiff’s claim as far as it could be characterised as trespass fails, but, of course, parts of her claim remain, which would be based upon an allegation of negligence in terms of the particular acts not amounting to a trespass being an assault or a battery.  In those circumstances, if the applicant is correct in that proposition, we have to go back 100 years to circumstances where plaintiffs had to choose their cause of action specifically and correctly or they failed.

I submit that that is not the law.  I submit that the Full Court in this case were quite correct in their observation that Williams v Milotin did not provide any support for the position taken by the applicant, that the particular sentence in that judgment was obiter, and that the effect of Williams v Milotin is as I have said, to not only acknowledge the plaintiff having an alternative or an election, but also that it was concerned with a particular provision of the Limitation Act that looked to the position before the Judicature Acts affected the laws in this country.

GUMMOW J:   What do you say on the second point?

MR BROWNE:   Well, my first response to the second point is that the trial judge correctly directed himself in accordance with the statement of Justice Brennan, as he then was, in Jaensch v Coffey, that the threshold test is that there be a recognised psychiatric illness.  That position was also concluded by Justice Deane in Jaensch v Coffey, with whom the former Chief Justice Gibbs agreed.  My submission is that the Court of Appeal was correct in following the position of Justice Brennan in Jaensch v Coffey, that is that there was a requirement of a recognised psychiatric illness.  That has been the position in New South Wales in the decision of Coates and Swan v Williams, again, following the test laid down by Hinz v Berry, which has been followed by the High Court or by some Judges of the High Court in Mount Isa Mines v Pusey and in Jaensch v Coffey and more particularly ‑ ‑ ‑

GLEESON CJ:   Yes, thank you, Mr Browne.  Mr Estcourt, what do you want to say in reply?

MR ESTCOURT:   Very briefly, your Honours, I repeat my submission that there is no case which has decided this point.  My learned friend made reference to ‑ ‑ ‑

GLEESON CJ:   No, but it is the fact, is it not, Mr Estcourt, that it is at the very least a considerable oversimplification to say that the conduct on which the plaintiff sued was trespassory?

MR ESTCOURT:   No.  If I may take your Honours to page 87 of the application book, that is the point at which my learned friend Mr Browne separates the conduct he says is trespassory from that which did not involve direct contact.  In my submission, those three matters listed there at point 7(a), (b) and (c) cannot be sensibly separated from the direct intentional acts which amount to the battery.

GLEESON CJ:   That is the point that is made against you.

MR ESTCOURT:   No, your Honour.  With respect, I turn the point on my learned friend and say that those acts cannot be separated and said to be negligent acts and the others intentional because they involve contact.  If one takes (b), for instance, at paragraph 6, masturbating and ejaculating on the respondent’s stomach, it cannot, in my submission, be ‑ ‑ ‑

GLEESON CJ:   But what about paragraph 7(b) and 7(c)?

MR ESTCOURT:   Paragraph 7(b) is the high‑water mark of my learned friend’s argument.  I accept that, your Honour, but 7(c) involves threats as well as bribes.  A threat cannot be sensibly separated.

GLEESON CJ:   Paragraph 7(a)?  What about 7(a)?

MR ESTCOURT:   Masturbating to ejaculation when the allegations were that the applicant masturbated and ejaculated on the respondent’s stomach.  It cannot be sensibly separated, your Honour.

GLEESON CJ:   Yes.

MR ESTCOURT:   Your Honours, I do not wish to labour the point.  That is my respectful submission.  I only wish to make reference to Hackshaw v Shaw because my learned friend relied on it and Justice Gummow made reference to it.  The fact of the matter is, in Hackshaw v Shaw, the plaintiff’s statement of claim originally alleged that the shooting was intention or, alternatively, that the defendant was reckless or negligent, but the allegation that the shooting was intentional was never pursued at trial, your Honour.  It was only that the plaintiff was either negligent or that the tort of negligent trespass arose and, of course, that is where former Chief Justice Gibbs began the discussion in relation to Letang v Cooper and Fowler v Lanning.  The fact is there was never any intentional trespass alleged in that case side by side with negligence or negligent trespass.

GLEESON CJ:   If a babysitter was engaged to look after a baby and caused harm to the baby by a pattern of conduct, some of which involved trespass to the person and some of which involved mere inactivity in circumstances where activity was called for, would the complaint, if the babysitter was sued, have to be dealt with by reference to two causes of actions considered separately, one in trespass and one in negligence?

MR ESTCOURT:   That is the effect of my submission, your Honour.  That would have to be the case and, if, as here, one or other of those causes of action was statute barred, the plaintiff would be relegated to one remedy only.  May it please your Honours.

GLEESON CJ:   Thank you.  The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is refused.  Can you resist an order for costs, Mr Estcourt?

MR ESTCOURT:   Not sensibly, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

MR ESTCOURT:   May it please the Court.

GLEESON CJ:   The Court will adjourn for a short time to reconstitute.

AT 10.48 AM THE MATTER WAS CONCLUDED