Class 5 -Psychiatric Harm PDF

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Psychiatric Harm (p 259-274) [8.90] The concept of psychiatric harm  Nervous shock is the term traditionally used to refer to psychiatric harm in the legal domain.  The legal use of the term reflects Windeyer J’s remark in Mt Isa Mines v Pusey that law was marching behind medicine and limping a litter.  Plaintiffs have recovered compensation for psychiatric harm in these situations: 1. Where the psychiatric harm followed an injury to the self 2. Where the psychiatric harm developed after exposure to a situation of danger creating for fore the self or within the zone of physical risk 3. Where the psychiatric harm developed after exposure to a situation where the plaintiff was safe from physical harm but feared for relatives 4. Where the psychiatric harm followed a situation where a relative has been badly injured or killed and the plaintiff saw or heard the accident or the aftermath of the accident and where a rescuer or workmate developed psychiatric injury after witnessing a horrific scene.  In the situation where a person has been physically injured when they claim damages they may claim not only for the physical injury but for the consequential mental harm which followed.  In some situations a person who has not been physically injured may suffer from mental or psychiatric harm because of negligence.  In order to bring an action in negligence for nervous shock or pure psychiatric injury, the plaintiff must show that it was reasonably foreseeable that a person in the plaintiff’s position would suffer psychiatric harm if the defendant carried out the act contemplated.  The psychiatric harm must be a form of harm that is compensable. [8.95] Duty to avoid inflicting psychiatric harm: nervous shock  The duty to avoid inflicting mental harm or psychiatric harm to another is one duty category that has traditionally had particular rules to be satisfied. [8.100] Tame v NSW; Annetts v Australian Stations Pty Limited (2002)  Two separate cases were heard together because they both concerned psychiatric harm.  Facts relating to Mrs Tame are in 7.115 Note 3.  In short Mrs Tame sought damages relating to a psychotic depression that developed following a series of events commencing with a car accident in 1991 and involving the incorrect recording in police files that Mrs Tame had been drunk at the time of the accident. Mr and Mrs Annetts’ son James was employed by the defendant on a cattle station in the Kimberley district of WA. He was 16 and the defendant had agreed that he was to be fully supervised. However after 7 week he was sent to work alone as a caretaker on another cattle station.  After a month on 6 December 1986, a police officer telephoned Mr Annetts and told him his son was missing and was believed to have run away with another boy. Mr Annetts then collapsed and his wife took over the telephone conversation. The Annetts then travelled from NSW to WA and in January 1987 were sown some of their son’s belonging including a blood-stained hat. They travelled to WA some 9 times until Mr Annetts was informed by telephone that their son’s vehicle was found on 26 April 1987. Later that day Mr Annetts was told of a set of remains had been found nearby and he then returned again to Halls Creek to identify the skeleton in a photograph as being that of James. The coroner found that James died of dehydration, exhaustion and hypothermia in the Gibson Desert on or about 4 December 1986. Mr and Mrs Annetts claimed damages for nervous shock.  In both cases the concepts of control mechanisms of sudden shock and direction perception or immediate aftermath cannot serve as definitive tests of liability.  Mrs Tame’s illness did not result from any event which itself or in its aftermath might have caused her a shock. It resulted from the communication to her by her solicitor of the information that in the past

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a police officer had made an error about her in an accident report which was soon corrected. In the case of Mr and Mrs Annetts they reacted to distressing news of the disappearance and death of their son such news being conveyed to them at a distance and over a period of time. I agree with Gummow and Kirby JJ that the common law of Australia should not and does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. I would adopt the observation of Brennan J in Jaensch v Coffey (1984) – in my pinion the exigencies of proof of the elements of the cause of action impose the appropriate limits upon the scope of the remedy. Those limits are likely to be at once more flexible and more stringent than limits imposed by legal rules which might be devised to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds.

Tame v The State of NSW  There are 2 reasons why Acting Sergeant Beardsley was not under a duty of care to Mrs Tame which required him to take reasonable care to avoid causing her injury of the kind she suffered.  The first reason- the case seems to be governed by the same principles as resulted in denial by this Court of the existence of a duty of Care in Sullivan v Moody (2001).  In the performance of his duties, Acting Sergeant Beardsley was completing an official report into the circumstances of a motor traffic accident. In the ordinary course, the report would be used in making a decision as to whether charges should be laid against anybody involved in the accident.  The primary duty of a police officer filling out such a report is to make available to his or her superiors, honestly and frankly the results of the observations, inquiries and tests that were made. It would be inconsistent with such a duty to require the police officer to take care to protect from emotional disturbance and possible psychiatric illness a person whose conduct was the subject of investigation and report.  The Court of Appeal was right to conclude that the psychiatric injury suffered by Mrs Tame to which the error of Acting Sergeant Beardsley made a material contribution, was not reasonably foreseeable. He could not have reasonably been expected to foresee that his mistake carried a risk of harm to Mrs Tame of the kind that resulted. It was not reasonable to require him to have her mental health in contemplation when he recorded the results of the blood tests. Annetts v Australian Stations Pty Ltd  It may be observed that the assumed facts of the case demonstrate the danger in treating what are often factual indicators of the presence or absence of proximity of relationship as inflexible and indispensable conditions of such a relationship.  The process by which the applicants became aware of their son’s disappearance and then his death was agonizingly protracted rather than sudden. And the death by exhaustion and starvation of someone lost in the desert is not an event or phenomenon likely to have many witnesses.  There was a relationship between the applicants and the respondent sufficient in combination with reasonable foreseeability of harm to give rise to a duty of care though the applicants did not directly witness their son’s death and after a sudden shock in consequence.  The respondent’s breach of duty consisted in failing properly to care for and supervise the applicants’ son by sending him to work alone in a remote area. He left his post, became lost in the desert and died. [8.105]  Gummow and Kirby JJ- a fundamental objective of the law of negligence is the promotion of reasonable conduct that averts foreseeable harm.  It is the assessment, necessary fluid, respecting reasonableness of conduct that reconciles the plaintiff’s interest in protection from harm with the defendant’s interest in freedom of action.

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So it is that the plaintiff’s integrity of person is denied protection if the defendant has acted reasonably. Protection of mental integrity from the unreasonable infliction of serious harm, unlike protection from transient distress, answers the general public sentiments underlying the tort of negligence that in the particular case there has been a wrongdoing for which in justice the offender must pay. CONTROL MECHANISMS- the court is concerned with 3 control mechanisms which influenced the intermediate appellate courts- 1. The requirement that liability for psychiatric harm be assessed by reference to a hypothetical person of normal fortitude, 2. The requirement that the psychiatric injury be caused by a sudden shock and 3. The requirement that a plaintiff directly perceive a distressing phenomenon or its immediate aftermath. None of these have been accepted as a pre-condition to liability for negligently inflicted psychiatric harm. The requirements of sudden shock and direct perception of a distressing phenomenon or its immediate aftermath have operated in an arbitrary and capricious manner. The old rule that nervous shock sounded in damages only where it arose from a reasonable fear of immediate personal injury to oneself and its subsequent relaxation to permit recovery where the plaintiff feared for the safety of another. PYSCHIATRIC HARM- the psychiatric harm is less objectively observable than physical injury and is therefore more likely to be trivial or fabricated and is more captive to shifting medical theories and conflicting expert evidence. 2. That litigation in respect of purely psychiatric harm is likely to operate as an unconscious disincentive to rehabilitation 3. That permitting full recovery for purely psychiatric harm risks indeterminate liability and greatly increases the class of persons who may recover and 4. That liability for purely psychiatric harm may impose an unreasonable or disproportionate burden on defendants. The tort of negligence requires no more than reasonable care to avert reasonably foreseeable risks

[8.110] Normal fortitude  The attention given to his notion by both the Court of Appeal in Tame and the Full Court in Annetts may suggest that a plaintiff has no action unless he or she be an individual of normal fortitude.  The statement by Spigelman CJ in the Court of Appeal in Tame that a plaintiff cannot recover for pure psychiatric damage unless a person of normal fortitude would suffer psychiatric damage by the negligent act or omission should not be accepted.  Windeyer observed in Pusey that the notion of a normal emotional susceptibility in a population of diverse susceptibilities is imprecise and artificial.  SUDDEN SHOCK- nervous shock operates as a common lawyer’s shorthand for the categories of psychiatric harm which are compensable under the tort of negligence.  In Jaensch v Coffey, Brennan J stated that [a] plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by shock.  Authority in the House of Lords has identified sudden shock as a distinct and necessary element of liability.  Liability in negligence for which damage is the gist of the action should turn on proof of a recognizable psychiatric disorder not on the aetiology of that disorder.  To require proof of sudden shock is often to mandate a similarly contrived search for an identifiable triggering event.  The requirement to establish sudden shock should not be accepted as a pre-condition for recovery in cases of negligently inflicted psychiatric illness.  DIRECT PERCEPTION AND IMMEDIATE AFTERMATH- in Pusey, Windeyer J said – I do not question decisions that nervous shock resulting simply from hearing distressing news does not sound in damages in the same way as does nervous shock from witnessing distressing events. If the sole cause of shock be what is told or read of some happening then I think it is correctly said that unless there be

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an intention to cause a nervous shock, no action lies against either the bearer of the bad tidings or the person who caused the event of which they tell. There is no duty in law to break bad news gently or to do nothing which creates bad news. In Jaensch v Coffey, Brennan J expressed the view referred to above that perception by seeing hearing or touching a sufficiently distressing person, thing or event is a prerequisite to recovery for negligently inflicted psychiatric harm. Dawson J did not accept that there can be no liability for shock brought about by third party communication rather than by the sight or sound of an accident or its consequences. BEARERS OF BAD TIDINGS- where shock is caused purely by the communication of some happening, in the absence of an intention to cause nervous shock, no action lies against either the bearer of bad tidings or the person who caused the event of which they tell.

[8.115] The outcome in Tame v NSW  It is unlikely that an investigating police officer owes a duty of care to a person whose conduct is under investigation.  No case in negligence can be made out against the respondent in respect of the conduct of Acting Sergeant Beardsley. This is because a reasonable person in Acting Sergeant Beardsley’s position would not have foreseen that his conduct in carelessly completing the Traffic Collision Report involved a risk of causing a recognizable psychiatric illness to the appellant. But it was not reasonably foreseeable that a person in the position of Mrs Tame would sustain a recognizable psychiatric illness from a clerical error which she was told was a mistake that had been rectified and in respect of which she received a formal apology.  The question of reasonable foreseeability involves an assessment respecting the foresight of a reasonable person in the defendant’s position; that foresight may differ from the foresight of qualified psychiatrics. The appeal in Tame should be dismissed with costs. The outcome in Annetts v Australian Stations Pty Ltd  The Full Court erred in failing to apply the ordinary principles of the tort of negligence, unhindered by artificial constrictions based on the circumstance that the illness for which redress was sought was purely psychiatric. In particular neither the lack of the applicants’ direct perception of their son’s death or its immediate aftermath nor the circumstance that the applicants may not have sustained a sudden shock is fatal to the applicant’s claims.  In the present case the applicants sought and obtained from the respondent assurances that James would be appropriately supervised.  The applicants had no way of protecting themselves against the risk of psychiatric harm that eventuated. The control over the risk of harm to James, and the risk of consequent psychiatric harm to the applicants, was held to a significant, perhaps exclusive, degree by the respondent. [8.120] Notes  Originally a nervous shock was not a kind of injury which the law recognised as flowing from negligence in the ordinary sense of things- VRC v Coultas (1888) 13 APP Cas 222.  A plaintiff could only recover in respect of nervous shock where it was caused by immediate fear of immediate physical injury to the plaintiff- Kennedy J in Dulieu v White & Sons [1901].  In Annetts, Gummow and Kirby JJ observed that it is significant that legislation in NSW, ACT and NT permits the spouse or parent of a person killed, injured or imperiled by the defendant’s wrongful act to recover damages for consequent mental or nervous shock, regardless of whether they saw or heard the relevant incident.  Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383- the plaintiff was employed by the defendant in its power house. Owing partly to the neglect of the defendant to properly instruct two employees in the

testing of a switch board an electric arc was produced which horribly injured them. The plaintiff went to the scene on hearing the noise and assisted one of the burnt men to an ambulance. The man died 9 days later. The trial judge found that the defendant should have anticipated that other employees who might go to the rescue would suffer nervous shock and perhaps injuries from burning. While the trial judge did not find that the specific mental illness suffered by the plaintiff was foreseeable, he found it enough that some psychiatric injury could have been foreseen.

[8.160] Wicks v SRA (NSW); Sheehan v State Rail Authority of (NSW) (2010) (p 277-282)  The plaintiffs were police officers who were called by radio to the scene of a train accident. The train had been derailed, people had been thrown out of the train and many remained in the wreckage. The plaintiffs each spent several hours at the scene attempting to relieve suffering and distress of those who were still alive. Seven people died in the accident. State Rail admitted negligence. The plaintiffs claimed damages for psychiatric injury suffered as a result of their attendance at the scene. At first instance the plaintiff’s claim was dismissed. Their appeals to the Court of Appeal were dismissed also. Both courts refrained from deciding whether a duty of care was owed.  French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ: THE DETERMINATIVE ISSUE- all parties accepted that resolution of the issue of liability turns on the construction and application of Pt 3 (ss 27-33) of the CLA 2002 (NSW).  The outcome of the litigation was treated both at trial and on appeal to the Court of Appeal as turning upon whether Mr Wicks and Mr Sheehan witnessed at the scene the victim being killed, injured or put in peril within the meaning of s 30(2)(a). Both Malpass Asj and the Court of Appeal concluded that neither appellant witnessed a victim/s of the derailment being killed, injured or put in peril.  PART 3 OF THE CIVIL LIABILITY ACT- this is entitled Mental Harm and is defined in s 27 to mean impairment of a person’s mental condition.  S 28(1) provides that Pt 3 except s 29 applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.  S 28(2) provides that s 29 applies to a claim for damages in any civil proceedings.  S 29 provides that in any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.  The claims made by both Mr Wicks and Sheehan are claims for damages for pure mental harm.  S 31 provides that there is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness. No finding was made at trial or on appeal whether each suffers a recognised psychiatric illness or whether the negligence of State Rail was a cause of either appellant suffering such an illness.  Consideration of the operation of s 32 must begin from the observation that neither s 32 itself nor any other provision of the CLA identifies positively when a duty of care to another person to take care not to cause mental harm to that other should be found unless a condition is satisfied.  The necessary condition for establishment of a duty of care identified by s 32(1) is that the defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness if reasonable care were not taken.  S 32(2) identifies four kinds of circumstance to which regard should be had: whether the mental harm was caused by sudden shock, whether there was witnessing at the scene of certain types of event, what was the relationship between plaintiff and victim and whether there was a relationship between plaintiff and defendant.  S 32 assumes that foreseeability is the central determinant of duty of care.

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3 important features of s 32- 1. Sudden shock is no more than one of several circumstances that bear upon whether a defendant ought to have foreseen that a person of normal fortitude might in the circumstances of the case suffer a recognised psychiatric illness if reasonable care were not taken. The occurrence of sudden shock is neither a necessary nor a sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintif...