LAW1124 - Week 2 - Chp 8.90 - 8 PDF

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LAW1124 Torts Week 2 Chapters [8.90] – [8.165]

Psychiatric Harm The concept of psychiatric harm 

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Plaintiffs have recovered compensation for psychiatric harm in these situations: - Where the psychiatric harm followed an injury to the self; - Where the psychiatric harm developed after exposure to a situation of danger creating fear for the self, or within the zone of physical risk; - Where the psychiatric harm developed after exposure to a situation where the plaintiff was safe from physical harm but feared for relatives; - 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. Where a person is severely injured, they may later suffer some kind of psychiatric harm, such as post-traumatic stress disorder or anxiety, which impacts severely on their ordinary life. When they claim damages, they may claim not only for the physical injury but for the consequential mental harm which followed. In such a case, the duty of care is really owed on the basis of the original physical injury. In some situations, a person who has not been physically injured may suffer from mental or psychiatric harm because of negligence. If this is the case, the duty of care arises because of a duty in respect of psychiatric harm. This is a “pure” case of “nervous shock” or psychiatric harm. 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. In Australia, such harm must be more than mere grief or sorrow and it must be a recognized form of psychiatric injury.

Duty to avoid inflicting psychiatric harm: “nervous shock”   

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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. Tame v NSW; Annetts v Australian Stations In Annetts, Gummow and Kirby JJ Observed that, “It is significant that legislation in NSW, the 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.” Koehler v Cerebos

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Plaintiff was an employee of the Defendant.

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Plaintiff felt she was greatly overworked, and made a few formal complaints to the Defendant.  The complaints did not mention that she was suffering in any way, only that she was unable to perform her work properly (to her own satisfaction) because of the high workload.

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The Plaintiff eventually developed a psychiatric illness because of her work.

 Plaintiff sued in negligence. Legal issues  Duty - Psychiatric injury - Pure cases of mental harm Judgment 

Whilst a duty of care not to inflict mental harm exists between an employer and employee, it was not reasonably foreseeable here that the Plaintiff would suffer from mental harm as a result of her work. This is because of two reasons: 1. She agreed (via signing a contract) to do the duties which ended up causing her the harm. The Defendant could then reasonably assume that the Plaintiff would not suffer harm because of them (otherwise she wouldn't have agreed).

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"her agreement to undertake the tasks stipulated...runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed risks to the appellant's psychiatric health." 2. The Defendant had no reason to suspect that the Plaintiff was at risk of mental harm (as the complaints were all work related and did not mention her health.

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"Here there was no indication (explicit or implicit) of any particular vulnerable of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested...that her attempts to perform the duties required of her were putting...her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury."

The Civil Liability Act regimes  

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The statues of each jurisdiction should be consulted because of their differences. Keep in mind that the Civil Liability Act regime will only operate if the matter is within the Act’s jurisdiction. This means there will still be cases where the common law still applies. Wicks v SRA (NSW); Sheehan v SRA (NSW)

Wicks v State Rail Authority of New South Wales [2010] HCA 22

Background facts 

Plaintiff was a police officer.

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A train operated by the Defendant was derailed and crashed causing great damage and injury.

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The Defendant admits that it was negligent in its operation of the train.

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The Plaintiff responded to the radio message alerting him to go help the victims of the crash.

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The Plaintiff arrived at the scene and was confronted by horrific sights of injury and death. The area itself was dangerous and torn electrical cables were lying everywhere.

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The Plaintiff assisted the wounded to the best of his ability.

The Plaintiff alleges that he sustained mental harm was a result of the sights he was exposed to at the scene. The Defendant's defence 

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The Defendant alleged that the Plaintiff failed to satisfy s30 because it specifies that they had to witness, at the scene, the victims "being killed, injured or put in peril".  The Defendant contends that since the Plaintiff came after the crash and therefore did not satisfy this requirement.

Also, the Defendant alleged that s30 requires the Plaintiff to demonstrate was caused by observation of a particular victim. Legal issues 

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Duty - Psychiatric injury - Pure cases of mental harm, After statutory amendments  Did the Plaintiff satisfy the requirement posed by s30 (2)(a) of the Civil Liability Act 2002 (NSW) - did the plaintiff witness, at the scene, the victim being killed, injured or put in peril?  Do the words of s30(1) mean that the mental harm needs to be connected with a specific person?

Judgment 

The Defendant's argument fails for the following reasons: "Being killed, injured or put in peril"

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The Defendant erred when he assumed that the 'event' causing the shock ended when the crash ended. Here, witnessing the horrific scenes that immediately followed still caused shock.

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"Contrary to what appeared to be an unexpressed premise for much of the submissions on behalf of State Rail [Defendant], the event capable of causing a shock to observes did not finish when the train came to rest...Rather, the consequences, which each appellant [Plaintiff] alleged he suffered as a result of what happened on that day, were said to follow from some or all of the series of shocking experiences to which he was exposed at the scene[1]."

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The Plaintiff is required to have seen the victims "Being killed, injured or put in peril". Even if all the deaths were instantaneous at the time of the crash, victims continued to be injured and in peril when the Plaintiff arrived.

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"It may readily be inferred that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages. That inference follows from the fact that some were trapped in the wreckage. It would be very surprising if each was extracted without harm[2]."

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"Further, it may be readily inferred that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene. The process of their suffering such an injury was not over when Mr Wicks and Mr Sheehan [Plaintiffs] arrived[3]."

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"If either inference is drawn, Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident 'being injured'[4]."

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Even if these inferences are rejected, the Plaintiff definitely witnessed the victims 'in peril'.

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"A person is put in peril when put at risk; the person remains in peril (is 'being put in peril') until the person ceases to be at risk. The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of the State Rail. State Rail's submission that neither Mr Wicks nor Mr Sheehan witnessed, at the scene, a victim or victims

being killed, injured or put in peril should thus be rejected[5]." Particular victim

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"In such a case as the present, where there were many victims, s 30(2) does not require that a relationship be identified between an alleged pyschiatric injury...and what happened to a particular victim. To read the provision as requiring establishment of so percise a connection would be unworkable. ..Rather, the reference in s30 (10) to 'another person (the victim)' should be read as 'another person or persons (as the case requires)'[6]." King v Philcox

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On 10 June 2015, the High Court of Australia handed down a significant decision; King v Philcox [2015] HCA on the contentious issue regarding claims for “mental harm” in South Australia. On 12 April 2005, Scott Philcox was killed in a car accident as a result of the negligent driving of the defendant, George King. Ryan Philcox, the brother of the deceased and the plaintiff in the case, alleged that he drove through the location of the accident on five separate occasions in the hours after the accident. At no time on each occasion did Ryan Philcox was aware that his brother was involved in the accident. He witnessed emergency vehicles and noticed one vehicle had been cut open to retrieve an occupant. Ryan Philcox was later informed of his brother's death and from such knowledge and based on his evidence, Ryan Philcox claimed that as a result, he suffered a recognised psychiatric illness (major depressive disorder). Under South Australian Law, section 53(1) of the Civil Liability Act 1936 (SA) identifies the circumstances where damages may be awarded in claims for mental harm: (1) Damages may only be awarded for mental harm if the injured person— (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; Prior to this case proceeding to the High Court, the Full Court of the South Australian Supreme Court found for Ryan Philcox, noting that he was present at the scene when the accident occurred, on the basis the accident continued over a period of time. The occurrence of the accident not only constituted the events of the collision, but rather the accident consisted of the events that followed; this being the events of the rescue and emergency efforts. The South Australian Supreme Court referred to Wicks v State Rail Authority (NSW) [2010] HCA 22 (Wicks), in support of the proposition that accidents may extend over a period of time. It is important to realize that Wicks was decided in the context of section 30 of the Civil Liability Act 2002 (NSW) where damages for mental harm would only be awarded if (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril. The wording “being killed, injured or put in peril” suggested a temporal concept in accidents, which subsisted longer than the moment the accident unfolded. In the present case, the High Court noted that section 53(1) of the Civil Liability Act 1936 (SA), in contrast is worded differently to the NSW provision, stipulating that the plaintiff was “present at the scene of the accident when the accident occurred”. The High Court held that to be present at the scene of an accident, a person must be ".....exposed to the sights and sounds of the accident" (at [53]) and Ryan Philcox did not satisfy this requirement on the facts. The decision must now have implications in limiting the scope of the circumstances that would allow for damages to be awarded in mental harm cases, in South Australia to the least. Whether this decision will have any bearing on the policy of the NSW position remains to be seen....