Tame v NSW 2002 HCA - Case PDF

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211 CLR 317]

TAME v NEW SOUTH WALES

TAME ........................................................................ PLAINTIFF,

317

APPELLANT;

AND

NEW SOUTH WALES ............................................ DEFENDANT,

RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES

ANNETTS AND ANOTHER .................................. PLAINTIFFS,

APPELLANTS;

AND

AUSTRALIAN STATIONS PTY LIMITED.......... DEFENDANT,

RESPONDENT.

[2002] HCA 35 ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA

Negligence — Duty of care — Psychiatric injury — Erroneous entry in traffic accident report — Psychiatric injury suffered by driver after being told of error — Whether duty of care owed to driver by police officer in completing accident report — Foreseeability of injury — Normal fortitude — Particular susceptibility of plaintiff. Negligence — Duty of care — Psychiatric injury — Alleged lack of care and supervision by employer of adolescent — Disappearance and death of adolescent — Psychiatric injury suffered by parents when told that son missing or dead — Whether duty of care to parents owed by employer — Whether need for direct perception or sudden shock. The driver of a car that was involved in a traffic accident had a nil blood alcohol level. When completing a report on the accident, a police officer mistakenly recorded that the driver had a blood alcohol level of 0.14. The error was subsequently noticed and corrected, but a copy of the uncorrected report was provided to the insurance company handling the driver’s claim against the nominal defendant in respect of the accident. The insurer nevertheless admitted liability. Some time after the accident, the driver’s solicitor told her about the entry concerning her blood alcohol level in the police report which had been given to the insurer. On

HC OF A 2001-2002 Dec 4, 5 2001 Sept 5 2002 Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

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further inquiry, the police confirmed that the entry was wrong and apologised for the mistake. The insurer confirmed that liability for the accident was admitted. However, the driver became obsessed with the mistake and ultimately developed a psychiatric disorder. She brought proceedings against the State, claiming that it was vicariously liable for the negligent conduct of the police officer who had erroneously completed the accident report. Held, that the police officer did not owe a duty to take reasonable care to avoid psychiatric injury to the driver. It was not reasonably foreseeable that a person in her position would sustain a recognisable psychiatric injury or illness as a result of the erroneous recording of her blood alcohol level in the accident report. Per Gleeson CJ, Gaudron, Gummow and Kirby JJ, McHugh, Hayne and Callinan JJ contra. It is not a separate pre-condition to liability for negligently inflicted psychiatric injury that, in the absence of knowledge of a particular susceptibility, a person of ‘‘normal fortitude’’ might have suffered psychiatric injury. The central question is whether, in all the circumstances, the risk of the plaintiff sustaining a recognisable psychiatric injury was reasonably foreseeable. Per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The duties of an investigating police officer are potentially inconsistent with the existence of a duty to take reasonable care to avoid psychiatric injury to a person whose conduct is under investigation. Jaensch v Coffey (1984) 155 CLR 549, considered. Decision of the Supreme Court of New South Wales (Court of Appeal): Morgan v Tame (2000) 49 NSWLR 21, affirmed. In an action for negligence, the following facts were alleged by the plaintiffs in their statement of claim. The plaintiffs had agreed to their sixteen year old son being employed by the defendant as a jackeroo on a cattle station, after having made inquiries about the conditions under which he would be working, and having been assured that he would be under constant supervision and would be well cared for. The employer sent the plaintiffs’ son to work alone as a caretaker at a remote cattle station. Several months later, the employer learned that the plaintiffs’ son had gone missing from the cattle station, and the plaintiffs were informed of this by a police officer. After an extensive search over a period of several months, the plaintiffs were informed that their son’s remains had been found in the desert. He had died as a result of dehydration, exhaustion and hypothermia. The plaintiffs suffered psychiatric injury upon being told that their son was missing, or upon ultimately learning of his death. The trial judge directed that there be a separate trial on the preliminary issue of whether on these assumed facts the employer owed a duty of care to avoid causing psychiatric injury to the plaintiffs. Held, that the employer owed a duty to take reasonable care to avoid psychiatric injury to the plaintiffs, notwithstanding that such injury did not involve a ‘‘sudden shock’’ and was not caused by a direct perception by the plaintiffs of their son’s death. There was a pre-existing relationship between the employer and the plaintiffs, the plaintiffs having made inquiries about the arrangements to be made for the care of their son and the employer having given assurances that he would be supervised.

211 CLR 317]

TAME v NEW SOUTH WALES

319

Per Gleeson CJ, Gaudron, Gummow and Kirby JJ. The common law does not limit liability for damages for psychiatric injury to cases where the injury is caused by a sudden shock or where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. Decision of the Supreme Court of Western Australia (Full Court): Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35, reversed.

APPEAL from the Supreme Court of New South Wales. APPLICATION for special leave to appeal from the Supreme Court of Western Australia. TAME V NEW SOUTH WALES Clare Janet Tame sued the State of New South Wales in the District Court of New South Wales for damages for psychiatric injuries sustained as a result of being told of an erroneous entry concerning her blood alcohol level contained in a traffic accident report. In January 1991, the plaintiff was the driver of a car which was involved in a motor traffic accident. The accident was the fault of the driver of the other vehicle, who had a blood alcohol level of 0.14. The plaintiff had a nil blood alcohol level. In February 1991, a New South Wales police officer completed a report of the accident, in which he erroneously stated that the plaintiff had a blood alcohol level of 0.14. The error was noticed and was corrected in February or March 1991. The plaintiff sued the Nominal Defendant. In April 1991, an uncorrected copy of the accident report was provided to the insurer handing the claim against the Nominal Defendant. The insurer admitted liability in June 1991. In June 1992, the plaintiff ’s solicitor told the plaintiff that the police accident report stated that her blood alcohol reading was about three times over the limit. The plaintiff telephoned the police and was told that the information about her blood alcohol level on the accident report was a mistake. The insurer subsequently reconfirmed that liability was admitted, and the police provided a formal apology and an assurance that the mistake had been rectified. However, the plaintiff became obsessed with the error. Evidence was given at the trial by the plaintiff ’s treating psychiatrist, who adhered to a firm diagnosis of psychotic depressive illness stemming from the impact of the police mistake upon a vulnerable personality. The action was heard before Judge Garling, who found that the plaintiff suffered injury as a result of the defendant’s negligence, and gave a verdict for the plaintiff in the sum of $115,692.

Further, Mason P and Handley JA held that the plaintiff ’s psychiatric illness was not

(1)

Morgan v Tame (2000) 49 NSWLR 21.

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reasonably foreseeable, and was not occasioned by a sudden sensory perception or shock. On 6 April 2001, Gleeson CJ and Kirby J granted to the plaintiff special leave to appeal to the High Court from part of the judgment and order of the Court of Appeal. ANNETTS V AUSTRALIAN STATIONS PTY LTD Leslie Annetts and Sandra Annetts sued Australian Stations Pty Ltd in the Supreme Court of New South Wales. By consent, the proceeding was later transferred to the Supreme Court of Western Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The plaintiffs claimed damages for personal injuries including nervous shock, anxiety and depression allegedly suffered in connection with the death of their son James Annetts in December 1986. By their amended statement of claim, the plaintiffs alleged the following facts. The plaintiffs’ son was born on 13 March 1970 and lived with his parents in New South Wales until August 1986, when he was employed by the defendant as a jackeroo at one of its cattle stations near Halls Creek in Western Australia. Before their son left home, the plaintiffs had made inquiries of the defendant in relation to the arrangements for his safety, and had received assurances that he would be under constant supervision and well looked after. In October 1986, their son was sent to work alone as caretaker at Nicholson Station. On or about 4 December 1986, he died of dehydration, exhaustion and hypothermia after becoming stranded in the desert when his vehicle became bogged on a large sand dune. On 6 December 1986, Mr Annetts received a telephone call from the Griffith police in New South Wales advising him that his son was missing. Upon receiving this advice, Mr Annetts collapsed and Mrs Annetts continued the conversation with the police officer. On several occasions between January 1987 and April 1987, the plaintiffs travelled to Halls Creek for the purposes of obtaining information as to the whereabouts of their son. On one such occasion, they were shown his belongings, including a hat covered in blood. On 26 April 1987, the plaintiffs were advised by telephone that a vehicle had been found bogged in the Great Sandy Desert, and later that day they were told that two sets of remains had been found in the area of the vehicle. Mr Annetts returned to Western Australia and identified one set of remains from a photograph as those of his son. On 5 May 1999, Heenan J ordered the separate trial of a preliminary issue, whether, on the basis of certain facts admitted by the defendant and on the assumption that certain other facts pleaded in the statement of claim were true, those facts were ‘‘sufficient, at law, to give rise to an independent tortious duty of care owed by the defendant to the plaintiffs to exercise reasonable care and skill to avoid causing them psychiatric injury?’’ On 28 April 2000, Heenan J answered that question, no, concluding that the plaintiffs’ involvement in and perception of the events which led to their son’s death was not sufficiently close to give rise to a duty of care by the defendant to

211 CLR 317]

TAME v NEW SOUTH WALES

321

them. Accordingly, on 8 May 2000, the claim was dismissed and judgment was entered for the defendant. An appeal to the Full Court (Malcolm CJ, Pidgeon and Ipp JJ) was dismissed on 21 November 2000 (2). The Court held that it was not reasonably foreseeable that persons of normal fortitude in the position of the plaintiffs would suffer psychiatric injury upon being informed that their son was missing or dead, and that the plaintiffs had not established the requisite degree of proximity to give rise to a duty of care. The plaintiffs applied for special leave to appeal to the High Court from the judgment of the Full Court. On 1 June 2001, Gaudron and Callinan JJ referred the application to a Full Bench of the Court to be listed at the same time as the appeal in Morgan v Tame. The appeal and the application were heard together. P C B Semmler QC and N J Mullany, for the appellant Tame. P C B Semmler QC. It is no longer appropriate for Australian courts to treat actions for psychiatric injury as fundamentally different from claims based on physical injury, particularly in the light of recent advances in psychiatry and psychology and a wider community awareness of metal illness. None of the policy-based justifications advanced for special controls on liability for mental injury can be defended. Fears of boundless liability or of a wave of unmeritorious claims are unsubstantiated. Modern medical opinion accepts the absence of a clear division between physical and psychiatric harm and recognises that for some purposes psychiatric injury is a form of bodily injury. [GLEESON CJ. Is a police officer under a duty to take reasonable care to prevent psychological harm to a person whose conduct is the subject of police investigation and report with a view to possible prosecution?] The appellant was a completely innocent party in a traffic accident, and was never a suspect. [GAUDRON J. Where you are talking about mere communication of distressing information, you have to factor in the right of people to be informed.] This is not a case of negligent communication. There is no question of suing the bearer of bad news. [GLEESON CJ. It is a defamation case, is it not?] Defamation protects a different interest: reputation, not bodily or mental integrity. If the appellant was entitled to recover for damage to her reputation, that it no reason to deprive her of a remedy that protects her physical and mental integrity. Her pre-existing vulnerability to psychological injury does not impact on the defendant’s liability. Traditionally, liability for damage to the mind has been judged by reference to the hypothetical person of ordinary resilience (3). This question is yet to be authoritatively settled in Australia. Judging liability for psychiatric injury by reference to the standard of

(2) (3)

Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35. eg, Bourhill v Young [1943] AC 92 at 110, 117; Jaensch v Coffey (1984) 155 CLR 549 at 568-569.

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the person of ‘‘ordinary phlegm’’ is unacceptable and should cease (4). Injury to the unusually susceptible is not always unforeseeable, and it may not be unreasonable to demand that persons keep those with particular emotional sensitivities in mind. It is a question of who should be in contemplation as possibly suffering harm as a result of an obvious error. There is a widely varying threshold of tolerance to trauma, and it is inherently difficult if not impossible to determine what is a ‘‘normal standard of susceptibility’’ (5). The assumption that the Australian community is of ‘‘normal fortitude’’ ignores modern psychiatric understanding of the prevalence of some disorders, such as depression. The normal susceptibility standard is irreconcilable with the long established principle of negligence that tortfeasors must take victims as found (6). No distinction can be drawn between eggshell bodies and eggshell psyches. The concept of ‘‘normal mental fortitude’’ has no role to play in the duty of care inquiry in a claim for compensation for the negligent infliction of mental illness, whether in relation to primary victims (7) or secondary victims. The dissection of victims into primary and secondary categories is not part of Australian law (8). The test of reasonable foreseeability should be the determinant. [GUMMOW J referred to Van Soest v Residual Health Management Unit (9).] Alternatively, on the uncontroverted psychiatric evidence, it was reasonably foreseeable that persons of normal mental fortitude in the circumstances of the appellant would have suffered psychiatric injury. It could not reasonably be concluded on the evidence that the risk of psychiatric injury was far-fetched or fanciful. The test of reasonable foreseeability must be informed by psychiatry and expert opinion, and is not properly regarded as a question of judicial notice. [MCHUGH J. But the defendant in the particular case has to be able to foresee the risk before he or she knows what to avoid in a reasonably practicable manner. Is reasonable foresight to be attributed to a policeman, without medical knowledge?] There was abundant evidence to support the finding of a causal nexus between the breach of duty and the onset of a psychiatric disorder. N J Mullany. In all psychiatric injury cases, the ultimate test is whether or not psychiatric injury was foreseeable in the circumstances, coupled with policy considerations and other value judgments which operate to control the scope of liability. None of the concerns

(4) (5) (6) (7) (8) (9)

Mullany & Handford, Tort Liability for Psychiatric Damage (1993), pp 226-229. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 405-406. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 406. See Page v Smith [1996] 1 AC 155 at 189. cf Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Page v Smith [1996] 1 AC 155; White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. [2000] 1 NZLR 179.

211 CLR 317]

TAME v NEW SOUTH WALES

323

identified in Sullivan v Moody (10) militate against the imposition of a duty of care. In filling out the report, the police officer did not owe duties which are irreconcilable with the duty claimed to have been owed to the appellant. The fear of indeterminate or unlimited liability is unfounded. It is yet to be settled in Australia whether, in the absence of negligently inflicted physical damage, psychiatric damage must result from a ‘‘shock’’ in the form of a sudden impact to the sensory system. Jaensch v Coffey (11) is inconclusive. The ‘‘sudden shock’’ rule cannot be justified in the light of current medical and other professional knowledge, including that many psychiatric disorders are not inevitably triggered by sudden trauma. Courts should be concerned with illness, not aetiology. There is no strong reason to compel hunts for events said to trigger the assault to the senses. Authorities in various jurisdictions provide support for the abandonment of the ‘‘sudden shock’’ limitation (12). The test of reasonable foresight is not undemanding and involves a value or qualitative judgment. The concept of reasonable foreseeability can, and often does, produce satisfactory outcomes without additional artificial control mechanisms. The traditional rule that a plaintiff cannot recover unless he or she perceives the traumatic event or its aftermath cannot stand in the light of current medical knowledge. From a medical perspective, there is no distinction between being told something that traumatises and seeing something that does so. There may be liability for the psychiatric consequences of the communication of news of a distressing situation which arose through the negligence of another. Where appropriate the common law demands reasonable care to be taken to ensure that information to be recorded and communicated is accurate so as to avoid mental harm to those who may foreseeably be injured on learning of mistaken news (13). B H K Donovan QC (with him S C Finnane), for the respondent State. The appellant must satisfy both the general requirements of negligence and the specific control mechanisms or have all of those control mechanisms set aside. The traditional control mechanisms are that there is a psychiatric illness, foreseeability of such an illness, a sudden assault on the senses, an actual perception of the event, and normal susceptibility. The control mechanisms are sensible and appropriate, particularly in areas where traditional neighbour tests are

(10) (2001) 207 CLR 562. (11) (1984) 155 CLR 549. (12) eg, Kralj v McGrath [1986] 1 All ER 54; Campbelltown City Council v McKay (1989) 15 NSWLR 501 at 503-504; Rav...