The law for psychiatric harm by secondary victims

Critically analyse the way the courts have developed and limited the law in relation to claims for psychiatric harm by secondary victims

Introduction

There has been judicial comment in Australia that in relation to claims for psychiatric harm, the law has progressed haphazardly or pragmatically rather than logically or scientifically: [1]

“The ways in which the law of liability for nervous shock has been developed by courts in England and here, and extended to new situations, have been empirical, with results and limitations that appear as pragmatically rather than as logical applications of principle.”

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The development of the common law in Australia in relation to secondary victims, particularly under the law of negligence, has seen a gradual liberalising or expansion of the categories for recovery in recent years, most notably in the High Court decisions of Tame and Annetts [2] and Gifford [3]. This has, to some extent, been in response to a traditional reluctance by the Courts to allow secondary victims to recover for mental due to a perceived flood of imaginary claims. [4]

The view used to be held that ‘nervous shock’ without physical symptoms was not compensable at law, but it has long been recognised that mental harm has the same status in torts law as physical harm. [5] A secondary victim is understood in this context to mean a person who suffers a ‘recognisable psychiatric injury’, [6] typically as a consequence of perceiving injury to another, but not necessarily at the impact scene or its aftermath.

The fear of an avalanche or flood of mental harm cases led to policy restrictions or control mechanisms being imposed, including that the secondary victim must suffer ‘sudden shock’, be a witness to the accident scene or its aftermath’, or be in a relationship having close ties of love and affection with the primary victim.

The view that that the conditions for recovery have been unduly restrictive and led to arbitrary decisions seems to have been exacerbated by a lack of predictability in the common law applying said control mechanisms, as well as by a lack of uniformity on the part of the State and Territory legislatures in responding to the ‘insurance crisis’ of 2002, which sparked fears that the law was moving too fast to award damages to new classes of plaintiff. [7]

The foregoing matters will be discussed under the following headings:

1. Requirement of Sudden Shock

2. Requirement of Proximity

3. Requirement of Relationship

4. Foreseeability – Person of ‘Normal Fortitude’

5. Statutory Restrictions

Conclusion.

1.

Requirement of Sudden Shock

The first control mechanism restricting recovery for both primary and secondary victims is the requirement that there can be no liability in the absence of a sudden shock to the nervous system. [8] The limitation can be traced back to Brennan J’s interpretation of the case law in Jaensch v Coffey [9] and has been applied in numerous subsequent decisions. [10] However, there are exceptions to the general principle such as the ‘work stress’ cases [11] and ‘fear for the future’ cases. [12] The shock must in reality be a psychiatric illness of a lasting and clinical nature. It is clear that from the 1970s judges have required plaintiffs to be suffering a ‘recgonisable psychiatric illness”, [13] (although McHugh and Callinan JJ in retain the use of “nervous shock” in Tame and Gifford [14] ), in order for the harm to be compensable. Medical consensus suggests that lasting damage does not occur in ‘normal’ individuals. [15] It is therefore inappropriate to insist that an immediate reaction such as a sudden sensory perception be a prerequisite to recovery. This was the conclusion reached by a majority of the High Court in Tame. [16] However, the sudden shock rule remains relevant as a factor in determining whether psychiatric injury was reasonably foreseeable, as subsequently confirmed by the Civil Liability Acts. [17] The sudden shock rule is perhaps a striking example of the pragmatic and unscientific development of the common law. It is possible that this principle may yet operate to deny recovery or at least will operate unpredictably, turning upon the particular facts and evidence of each case.

2.

Requirement of Proximity

The common law has, however, gradually relaxed the restriction that, in order to recover, the plaintiff be present at the impact scene. [18] That process began in 1925 with Hambrook v Stokes in which a mother recovered for shock she suffered from fear for her own and her children’s safety from a runaway lorry. [19] The requirement that the plaintiff had to be present at the scene and witness the accident was gradually extended to witnessing the aftermath at the scene, extended to witnessing the aftermath at hospital during the immediate post-accident treatment. [20] The High Court suggested in Jeansch [21] that absence by the relative from the accident scene might not be a bar to recovery. In Annetts, [22] the Court finally removed the direct perception requirement as a bar to recovery. The aftermath requirement would always be a limitation in borderline cases, penalising family and friends who are too affected by shock and grief to go to the scene or a bar where there is no aftermath or no scene to perceive (as in Annetts, in which the body was not discovered at the time of the shocking event). [23]

However, the gradual innovation of the common law has been complicated by the legislative response to the insurance crisis of 2002. The Civil Liability Acts (and variants) were legislated in each jurisdiction as a response to perceptions that the common law was moving too fast to allow new classes of plaintiffs to recover, including secondary victims. [24] Earlier legislation [25] provided that family members (other than parents, spouse and close family) were required to be within sight or hearing of the accident in order to recover. [26] Under the common law, that requirement was effectively removed as a condition for recovery by the High Court in Annetts and Gifford. At the time of the Gifford decision the Civil Liability Act 2002 took effect which excludes compensatory recovery for a person who is not a witness at the scene nor a çlose family member. [27] Yet similar provisions of other States do permit recovery for a plaintiff who witnessed the immediate aftermath [28] , or who was ‘present at the scene.’ [29] The civil liability provisions differ across jurisdictions creating disunity and much less predictability across Australia for secondary victims who suffer mental harm.

3.

Requirement of Relationship

Another limiting factor is that the plaintiff must have a close tie of relationship or care with the primary victim. Relationship is likely to lead to a conclusion in which there was foreseeability (which appears to be the predominant view in the UK authorities). [30] However, it is just as foreseeable that a harm could be suffered by those unrelated to the primary victim. Thus in Australia, Deane J in Jaensch was of the view that close ties of love and affection should override the direct perception limitation on reasonable foreseeability. [31] It is clear from Gifford that the absence of a pre-existing relationship is not a bar to recovery. [32] Involuntary participants is another category in which the shock stems from an apprehension that the plaintiff is the involuntary cause of injury to another. [33]

Legislative reforms introduced as a result of the insurance crisis of 2002 has complicated the picture. For example, the Civil Liability Act 2002 (NSW) restricts the class of plaintiffs to a “close member of the family” (parent, spouse, partner, child, stepchild, brother, sister, half-brother, half-sister, step-brother/sister) [34] , in contrast with earlier legislation which said that the defendant’s liability extended to those cases, and also to “any other member of the family” who saw or heard the plaintiff injured or put in peril. [35] Yet, somewhat haphazardly, the categories of potential claimants differ across jurisdictions. In Victoria, for example, the plaintiff must be or have been in “a close relationship with the victim”. [36] Yet “close relationship” is not defined, leaving it open for the courts to interpret the categories more expansively beyond family relationships to perhaps those with “close ties of love and affection” [37] as giving rise to a duty of care.

4.

Foreseeability – Person of ‘Normal Fortitude’

The doctrine that the shock must have been foreseeable to a person of normal fortitude acts as a control mechanism against unduly burdening human activity by indiscriminate claims of exposing others to the risk of mental harm. Such claims could interfere with otherwise tolerable conduct, such as making a loud noise which could cause a person peculiarly vulnerable to suffer shock. [38] Yet the onus of proving a special vulnerability lies on the defendant [39] who takes the victim as they are found. [40] However, the normal fortitude test has been criticised as unscientific and impracticable to apply, as it depends upon arbitrary judge-made distinctions as to what is ‘normal’ along a ‘slippery slope’ of psychiatric abnormality. [41] Yet under negligence law the foreseeability test is necessarily concerned with a balancing exercise by the Courts to assess whether a reasonable person would recognise an act or omission as posing an unreasonable risk of harm to a normal person [42] . The Courts do not insist upon foreseeing the specific kind of psychiatric damage, rather, if compensable mental harm is foreseeable, the predisposition is necessarily included. [43] Thus the High Court in Tame clarified the fortitude principle by establishing that the test is merely one consideration within reasonable foreseeability. [44] Whilst that consideration did not alter the outcome in Tame, it seems a sensible solution to a complex problem.

5.

Statutory Restrictions

However, statutory law has returned to the old test in respect of ordinary fortitude. At the time of the Tame decision in 2002 there was a nationwide concern as to the way in which the law of negligence was operating in personal injury cases, with the effect of driving up insurance premiums and making it difficult to obtain liability cover (eg. in the practice of medicine). The Commonwealth Government appointed a panel to review the law of negligence and the resultant report recommended greater restrictions to recovery in some areas. In the area of foreseeability of mental harm to primary and secondary victims the panel urged that:

“a person (the defendant does not owe another (the plaintiff) a duty to take care not to cause the plaintiff pure mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.” [45]

Civil liability legislation in six Australian jurisdictions subsequently adopted a general principle which closely resembled this formulation. [46] The principle that if the defendant knows or ought to know that the plaintiff is a person of less than normal fortitude is specifically preserved. However, the re-formulation by eh High Court in Tame is pointedly ignored. The change in the law effected is to limit the principle that where a plaintiff suffers personal injury, there can be recovery for all consequential harm, physical or mental. That limitation had not previously been imposed by the common law and is viewed as a way of reducing the size of damages awards. [47] The result of these legislative reforms in response to the insurance crisis is that Australian personal injury law restricts recovery to claimants previously classified by the common law as deserving in a range of situations, but in a way which is far from consistent across jurisdictions.

Conclusion

In many ways, the common law has developed incrementally in the area of psychiatric harm by showing innovation. For example, in Tame and Gifford in removing the proximity requirement and focussing more on the relationship between primary and secondary victim as the touchstone for reasonable foreseeability. In that sense, the common law has come a long way since the Coultas decision in recognising the particularly devastating nature of psychiatric injury. However, such developments are coloured by the response of the legislatures to the insurance crisis of 2002. The Civil Liability Acts across the Australian jurisdictions are characterised by a lack of consistency and uniformity in approach, and in some cases went beyond the recommendations of the panel Report. For example, seemingly outdated legal rules such as the ‘sudden shock’ requirement persist, and a person unrelated to the plaintiff present at the aftermath may be permitted to recover damages for psychiatric harm in Tasmania, but not in New South wales. This disunited and unsatisfactory state of Australian law will await a legislative solution in the future, and will continue to pose challenges for the Courts as they proceed “step by cautious step” to develop the foregoing policy considerations in ways which will deliver appropriate and just outcomes for deserving secondary victims.

Bibliography

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[1] Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 407per Windeyer J. Cf. UK Law Commission, Liability for Psychiatric Illness, Law Com No 249, 1998, cited by Luntz and Hambly (2006 p. 536 at [7.11.4]).

[2] Tame v New South Wales (2002) 211 CLR 317.

[3] Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269.

[4] Victorian Railways v Coultas (1888) 13 App Cas 222 at 226. Cf. under the intentional infliction of mental harm, the interest protected is that of the legal right of the plaintiff to personal safety, that is, the right to mental or emotional tranquillity and bodily dignity: Wilkinson v Downton (1897) 2 QB 57 at 59 per Wright J; Bunyan v Jordan (1937) 57 CLR 1 at 10-11 per Latham CJ; Dulieu White [1901] 2 KB 669 at 683 per Phillimore J; Purdy v Woznesensky [1937] 2 WWR 116 at 120; Magnusson (1994) pp. 166, 169.

[5] See for example the various statutes of limitation, eg. Limitation Act 1969 (NSW) s 11(1); Limitation Actions Act 1985 (ACT) s 81(1); Limitation Act 1981 (NT) s 4(1); Limitation of Actions Act 1974 (Qld) s 5(1); Limitation of Actions Act 1936 (SA) s 36(2); Limitation Act 1974 (Tas) s 5(5); Limitation of Actions Act 1958 (Vic) s 3(1). Cf. Limitation Act 1980 (UK) s 38(1). For the medical background see Handford (2006: pp. 53-73).

[6] Tame v New South Wales (2002) 211 CLR 317 per Gleeson CJ at 329, 338; per Gaudron J at 339; per Gummow & Kirby JJ at 292, 302; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 per McHugh J at 291; per Gummow & Kirby JJ at 292, 302; Butler (1997);

[7] Civil Liability Act 2002 (NSW) s 32; Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (TAS) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 5S.

[8] Butler (1997).

[9] Jaensch v Coffey (1984) 155 CLR 549 at 565.

[10] Chiaverini v Hockey (1993) Aust Torts Rep 81-223; Reeve v Brisbane CC [1995] 2 Qd R 661; Pham v Lawson (1997) 68 SASR 124 (FC). Note that the UK has retained the sudden shock requirement: Alcock v Chief Constable [1992] 1 AC 310.

[11] That is, where an employee claims against the employer for damages for psychiatric injury caused by work stress, see: Handford (2006, Chapter 22, pp. 539-571); Butler (2002) pp. 103-124..

[12] That is, where the plaintiff claims to have suffered psychiatric injury through fear of what will happen in the future, such as the possibility of exposure to a deadly disease, see: APQ v Commonwealth Serum Laboratories Ltd [1999] 3 VR 633; Handford (2006 Chapter 27, pp 645-671).

[13] Handford (2006) p. 30 and cases cited at [2.20].

[14] Tame v NSW (2002) 211 CLR 317 at 348, 427; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; cf. White v Chief Constable of South Yorkshire Police [1999] 2 AC 455.

[15] Teff (1996, pp. 54-55).

[16] Tame v NSW (2002) 211 CLR 317 at 333; 344; 389-90; 410. See also: New South Wales v Napier [2002] NSWCA 402 at [67] per Mason P; Wicks v SRA (2010) 241 CLR 60 at 72 – the ‘shocking event’ is a relevant consideration but a necessary pre-requisite of recognising a duty of care (two police officers who rescued injured persons at scene of a horrific railway accident were denied recovery by the NSW Court of Appeal because they did not witness victims being killed, injured or put in peril).

[17] Civil Liability Act 2002 (NSW) s 32; Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 1936 (SA) s 33; Civil Liability Act Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 55.

[18] Williams v Ocean Coal [1907] 2 KB 422 (CA); Bourhill v Young [1943] AC 92.

[19] Hambrook v Stokes [1925] 1 KB 141.

[20] Jaensch v Coffey (1984) 155 CLR 549. Cf. Alcock v Chief Constable [1992] 1 AC 310; cf. Galli-Atkinson v Seghal [2003] Lloyd’s Rep Med 285 – the House of Lords upheld restrictions on being told or reading about the accident afterwards or hearing about it simultaneously on radio, barring recovery for relatives of spectators crushed in a football stadium disaster, on the basis that they were not at the scene or at the hospital within an hour or so.

[21] Jaensch v Coffey (1984) 155 CLR 549 at 555, 608-609 per Gibbs CJ, Deane J.

[22] Annetts v Australian Stations; Tame v NSW (2002) 211 CLR 317 (the Court held that parents who were telephoned in Sydney and told of the disappearance of their son, a sixteen year old jackaroo working in remote Western Australia, were owed a duty of care even though they never visited the accident scene, where his body was not discovered for four months).

[23] See Handford (2006 p. 238 and cases cited at [8.340]).

[24] See the account by Handford (2006 pp. 427-432).

[25] The Law Reform (Miscellaneous Provisions) Act (NSW) s 4(1), for example, provided that whilst a parent, husband or wife of the plaintiff did not need to be at the scene or its aftermath to recover (a position more progressive than the common law, which nonetheless extended the boundaries of liability over the years, prior to Tame v New South wales (2002) 211 CLR 317, see for example: Quayle v NSW (1995) Aust Torts Rep 81-367 (mother told of son’s death in custody allowed to recover both under statute and common law); see also mother’s claim for shock related injury in X and Y (by her Tutor X) v Pal (1991) 23 NSWLR 26). Note, however, that despite the repeal of the Law Reform (Miscellaneous Provisions) Act (NSW) s 4, that provision still has some effect in workplace claims due to the complex interaction of the 1944 Act, the Civil Liability Act 2002 and the Workers Compensation Act 1987 (NSW), for discussion see: Foster (2004).

[26] Cases in which children’s claims under the statutes were ruled out on this ground include:Coates v Government Insurance Office of New South wales (1995) 36 NSWLR 1 (children told of father’s death in road accident); Knight v Pedersen [1999] NSWCA 333; Gifford v Strang Patrick Stevedoring Pty Ltd (2001) 51 NSWLR 606, on appeal (2003) 214 CLR 269.

[27] Civil Liability Act 2002 (NSW) s 30.

[28] Civil Liability Act 2002 (Tas) s 32.

[29] Civil Liability Act 1936 (SA) s 53(1).

[30] Owens v Liverpool Corp [1939] 1 KB 394; cf. Storm v Geeves [1965] Tas SR 252; Alcock v Chief Constable [1992] 1 AC 310.

[31] Jaensch v Coffey (1984) 155 CLR 549 at 608-609 per Deane J.

[32] Gifford v Strang Patrick Stevedoring (2003) 214 CLR 269. Note that In Tame the fact that the mother of the victim had contacted the tortfeasor to ensure that her son would be looked after was a factor significant in recognising the duty of care. Compare cases of intentionally inflicted mental harm in which persons closely connected with the victim or witnesses to the attack are entitled to recover: Battista v Cooper (1976) 14 SASR 225; Purdy v Woznesensky [1973 2 WWR 116; Beilitski v Obadiak (1922) 65 DLR 627; cf. Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 681.

[33] Dooley v Cammell Laird [1951] 1 Lloyd’s Rep 271 (crane driver suffered shock when he saw his load fall into a ship’s hold where he knew fellow workers to be unloading); Alcock v Chief Constable [1992] 1 AC 310 at 408. The common law also recognises other categories of case (eg. rescuers: see Handford (2006), Chapter 19; employees susceptible to psychiatric illness: Moricz v Grundel Boilermaking & Engineering Works [1963] SASR 112; Corporation of the City of Woodville v Balassone [1968] SASR 147; cf. Donjerkovic v Adelaide Steamship Industries Pty Ltd (1980) 24 SASR 347) not dependent on there being a family relationship. However, those plaintiffs tend to be classified as primary victims with possibly greater restrictions on recovery.

[34] Civil Liability Act 2002 (NSW) s 30. Contrast: Civil Law (Wrongs) Act 2002 (ACT) s 36(1).

[35] Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4(1).

[36] Wrongs Act 1958 (Vic) s 73.

[37] Alcock v Chief Constable [1992] 1 AC 310.

[38] Bourhillv Young [1943] AC 92; Bunyan v Jordan (1937) 57 CLR 1.

[39] Mount Isa Mines Mines Ltd v Pusey (1970) 125 CLR 383 at 405-406; Benson v Lee [1972] VR 879 at 881; Gannon v Gray [1973] Qd R 411 at 414; Jaensch v Coffey (1984) 155 CLR 549 at 556; Petrie v Dowling [1992] 1 Qd R 284 at 287; Skea v NRMA Insurance Ltd [2005] ACTCA 9.

[40] The victim as found may include the plaintiff’s cultural context: See Kavanagh v Akhtar (1998) 45 NSWLR 588; Handford (2006 p. 328 at [11.290] and cases cited therein).

[41] Sappideen & Vines (2011 p. 182).

[42] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.Jaensch v Coffet (1984) 155 CLR 549 at 556, 609-610, 613. Compare cases of intentionally inflicted mental harm in which the range of foreseeability is greater as the intended consequences must be likely: Bunyan v Jordan (1937) 57 CLR 1 at 10 per Latham CJ; Battista v Cooper (1976) 14 SASR 225 at 229-230. As such the intentional tortfeasor deserves lesser leniency from the court, and later High Court decisions have recognised that intention includes recklessness: XL Petroleum v Caltex i(1985) 155 CLR 448 at 471; Northern Territory v Mengel (1995) 185 CLR 307 at 347.

[43] Jaensch v Coffey (1984) 155 CLR 549 at 556; Petrie v Dowling [1992] 1 Qd R 284; Skea v NRMA Insurance [2005] ACTCA 9. For example, an abnormality may not be so pronounced as to take it outside the normal bounds of reasonable foresight.

[44] Tame v NSW (2002) 211 CLR 317.

[45] Review of the Law of Negligence: Final Report (2002) at par. [9.28].

[46] Civil Liability Act 2002 (NSW) s 32(1); Civil Law (Wrongs) Act 2002 (ACT) s 34(1); Civil Liability Act 1936 (SA) s 33; Civil Liability Act Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 5S.

[47] The statutory preference for the term ‘recognised’ rather than ‘recognisable psychiatric illness’ is a further