#6928 - Torts B Extended Mental Harm - Torts Law

MENTAL (or PSYCHOLOGICAL) HARM

(also known as Nervous Shock)

• These are particular fact scenarios that presented novel situations to the courts as to whether a duty of care was owed

• Principles specific to those particular fact scenarios thereby emerged on which a determination of duty in such scenarios must be based

• This generally accords with the salient features approach in that the type of fact scenario is important in determining the features that are salient to determining a duty of care: Sullivan v Moody. This case found reasonable foreseeability was not enough, as there needed to be some sort of protection and it was necessary in order to maintain coherence.

• In area of mental harm, prominent salient features that have emerged include need for coherence (no conflict of duties); need to avoid indeterminate liability (autonomy; avoid unreasonable burden); vulnerability.

Historical Background

• Slow movement toward recognition of mental harm as a compensable injury:

  • Use of term ‘nervous shock’

  • Not considered to be reasonably foreseeable – eg Victorian Railways Commissioners v Coultas (1988) 13 AL 222

  • Originally only where stemmed from physical harm. But there are situations when there was ‘pure harm’. That is, mental harm was the only harm.

  • Then to mental harm suffered due to fear for self

  • Then to fear for self or close relative

  • Then to witnessing aftermath of accident involving close relative

• Policy reasons for reluctance:

  • Risk of fabrication

  • Risk of indeterminate liability and floodgates

  • Difficulty proving causation

  • The variability of mental constitutions

• Australian Law developed in two stages

  • Rise and fall of an approach based on applying restrictions. This began with Victorian Railways (where a pregnant woman suffered nervous shock which made her ill – Held: P could not recover as it was a type of harm that was not reasonably foreseeable) It had to be accompanied with a physical injury. It was difficult to show that the harm was caused by the shock in question.

  • Over time there is a move towards recognising mental harm as an illness. In 2002, the HC handed down judgments in Tame and Annets and the HC removed many of the existing barriers from Coultas. At this time, we had the IPP committee issuing it’s reforms

Definitions

• Terminology varies – eg psychiatric injury, psychiatric illness, psychiatric harm, mental harm

• What types of mental harm compensable? Serious mental harm in the form of ‘recognisable psychiatric illness’ is required. Mental harm is the term used in Wrongs Act as an overarching term

• Mere emotional distress, anxiety or grief will not be compensable

“Sorrow on its own does not establish damage. A plaintiff in an action for negligence cannot recover damages for a shock, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is however today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body …. For that, if be the result of a tortious act, then damages may be had” Mt Isa Mines v Pusey (1971) 125 CLR 383 per Windeyer J

“Australian law seeks to protect, in an appropriate case, the P’s freedom from serious mental harm which manifests itself in a recognisable psychiatric illness” Gifford v Strang Patrick Stevedoring (2003) 214 CLR 269 per Gummow and Kirby JJ

Wrongs Act S 23:

In any action for injury to the person the plaintiff shall not be debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock

Mental Harm – sections 67 – 78

Wrongs Act S 71:

Except as provided by this Part, this Part is not intended to affect the common law

Wrongs Act S67

• Mental Harm: psychological or psychiatric injury

• Consequential Mental Harm: mental harm that is a consequence of any other injury of any other kind; see also s 74

• Pure Mental Harm: mental harm other than consequential mental harm

• Injury: personal or bodily injury – including pre-natal injury; psychological or psychiatric injury; disease; aggravation, acceleration or recurrence of an injury or disease

Types of Pure Mental Harm (from Common Law)

• Where the defendant’s negligence directly causes the plaintiff’s mental harm – e.g. D’s negligence places them in a situation of apparent danger

• Where the defendant’s negligence indirectly causes the plaintiff mental harm – the plaintiff suffers mental harm due to witnessing or learning of another being killed, injured or put in danger.

Section 73

73. Limitation on recovery of damages for pure mental harm arising from shock

(1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless-

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or

(b) the plaintiff is or was in a close relationship with the victim.

(3) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

Reasonable foreseeability: ‘normal fortitude’

• Position prior to Tame & Annetts: if not a person of ‘normal fortitude’ then cannot recover damages for mental harm

• Tame & Annetts: A majority of judges in the High Court held that while the mental fortitude of a P may often be relevant issue particularly when deciding on breach, the rule that a person must be a person of normal fortitude should not be a pre-condition for the imposition of a duty of care.

• BUT note strong dissenting judgments by Mc Hugh and Hayne JJ. They argued the concept of normal fortitude still had a role to play

• The dissenting position was adopted by Ipp Committee – in line with dissenting approach – see Wrongs Act

S 72(1) of the Wrongs Act:

A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or 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 72(3) of the Wrongs Act:

This section does not affect the duty of care of a person (the defendant) to another (the plaintiff) if the defendant knows, or ought to know, that the plaintiff is a person of less than normal fortitude

Circumstances of the Case

S 72(2) of the Wrongs Act:

The circumstances of the case include the following -

(a) whether or not the mental harm was suffered as a result of a sudden shock ;

(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in danger;

(c) the nature of the relationship between the plaintiff and any person killed, injured or put in danger;

(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

S 72(2)(a) – ‘sudden shock’ – origins at common law but now see Annetts. Prior to Annetts, “sudden shock” which led to illness. This was specifically rejected in Annetts. Now, the fact that the psychiatrica illness may have been caused by shock will continue to be relevant but the illness no longer must be caused by the shock.

S 72(2)(b) – ‘witnessed, at the scene …’ origins at common law (eg Jaensch v Coffey where P could only recover damage if illness was a direct result of the P’s proximity to the event that gave rise to the claim) but now see Annetts. In this case, it was considered arbitrary and abolished.

S 72(2)(c) & (d) – nature of relationship between P, D and victim (see Annetts & Gifford) Problems arise with ‘secondary victims’.

Tame v State of New South Wales and Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 (CB 445)

• These two cases were heard together as they both revolved around the issue to whether mental harm could allow for damages

• Facts - TAME

  • P was involved in a minor car accident. As a result of an error in a police report, she was said to have had a BAC of the reading of the other driver

  • The reading was way beyond the legal limit

  • P did not drink alcohol

  • She sued the police and at trial and was successful

  • On appeal, the claim was rejected on a number of grounds

  • Her injury has farfetched and fanciful and not reasonably foreseeable

  • She was not considered to be a person of normal fortitude to whom a duty of care could be said to be owed

  • The injury had not been caused by “sudden shock”

  • She appealed and was granted special leave

• Held:

  • Test of reasonable foreseeability with regard to mental harm suffered by P was not satisfied – ‘far-fetched and fanciful’ (per Wyong)

  • Only reasonably foreseeable that carelessness in completion of car accident might result in surprise, anger or distress – not recognisable psychiatric illness

  • If pressed, the police service would offer an apology

  • It was not reasonably foreseeable that Tame would sustain a recognisable 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

  • Her reaction was extreme and idiosyncratic, and far-fetched and fanciful

  • The mental harm was not reasonably foreseeable

Re: Non-Imposition of Duty of Care

• Conflict of duties: to find duty...