Duty Psychiatric Injury - Torts Law

Class 3- Duty- Psychiatric injury:

In class notes:

Gender and torts

• Women as plaintiff. Women get compensated differently. The impact of the law is women must work twice as hard.

• Women do the majority of child care/education.

• Women socialised to be emotional.

• Mental harm linked to irrational. Therefore less valid.

  • The reasonable person is expected to be rational.

  • Mental harm is intangible so people thought it was tolerable suffering. There has been an expansion of who can recover in term of mental harm (consequential harm (a result of physical harm) v pure mental harm). Can get compensation for exposure to fear or harm or death, witnessing the harm or something you hear but don’t see, aftermath. The law continuously expands to increase what can be compensated for.

• Expectation of reaction of ‘normal’ mother. E.g. Lindy Chamberlain case – put down because she was emotionless and not motherly. Mothers should react in one way.

• Public space= rational
  Private space= emotional

• Public relationship. E.g. A contract makes it easier to recognise harm than in other circumstances. Often advantages men over women.

Self- relative – workmate (when you can get compensation in torts)

• Actual harm

• Exposure to fear/harm

• Witness

• Around corner

• Aftermath

The concept of psychiatric harm:

• Nervous shock was the old legal term used.

• Plaintiffs have recovered compensation for psychiatric harm where:

  • The psychiatric harm followed an injury to the self. E.g. Donaghue v Stevenson.

  • The psychiatric harm developed after exposure to a dangerous or fearful situation

  • It developed when the plaintiff feared for her relatives. E.g. In Rook v Stokes Bros a mother saw a driverless truck coming down a hill towards her children.

  • It developed when a relative was badly injured or killed and the plaintiff saw or heard the accident.

  • A rescuer or workmate developed psychiatric injury after witnessing a horrific scene.

• They may claim damages for physical injury and the consequential mental harm that followed.

• Sometimes they just have psychiatric harm and no injury.

• It must be a recognised psychiatric illness (CLA).

• To bring an action for nervous shock, the plaintiff must show that it was reasonably foreseeable that a person in their position would suffer psychiatric injury if the defendant carried out the act contemplated. It must be a form of harm that is compensable. It must be more than grief and sorrow and there must be evidence.

The duty to avoid inflicting psychiatric harm:

• It is not easy to establish a duty of care in psychiatric harm and special rules evolved to stop people faking it.

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Tame v NSW; Annetts v Australian Stations (2002) – reasonable care must be taken to avoid inflicting psychiatric harm. This risk must be reasonably foreseeable. Old law that is displaced by CLA.

Facts:

• Two cases were heard together that both dealt with psychiatric harm.

• 1. Mrs Tame was involved in a car accident.

• The police incorrectly recorded that Mrs Tame had been drunk at the time of the accident.

• 2. The Annetts sent their son to work at a cattle station owned by the defendants. He was meant to be fully supervised.

• Their son ran away with another boy and his remains were later found in the Gibson Desert.

Remedy sought:

• Both parties want to claim damages for nervous shock in the High Court of Australia.

Legal issue:

• How is the duty of care for psychiatric harm established?

• Are there special rules in such cases to prevent a plaintiff faking the mental harm to themselves?

Outcome:

• Mrs Tame’s appeal was dismissed with costs. The appeal was allowed for the Annetts.

Legal reasoning:

• Mrs Tame: Gleeson CJ reasoned that it would be inconsistent to require the police officer to protect Mrs Tame’s emotional disturbance. It was not reasonable for the officer to contemplate that his mistake would cause the kind of harm that resulted. He was not under a duty of care.

  • The duty of the police officer is inconsistent with the duty to take care of the person’s mental stability when they are making a report. The police man could not be reasonably suspected to do this.

• Annetts: Gleeson CJ reasoned that the Annetts psychiatric harm was not sudden and they did not directly witness their son’s death. However Australian Stations had a responsibility to care for their son and give constant supervision. They instead sent him to a remote area to work alone. This was clearly likely to result in mental anguish to his parents even if they did not experience a sudden sensory perception.

• Gummow and Kirby JJ reasoned that hard cases must be accommodated and the old rules relating to nervous shock should be relaxed (seen in ratio decidendi). The old rules are that the person who suffered psychiatric shock must have had normal fortitude, caused by sudden shock and directly perceive a distressing phenomenon or its aftermath.

  • Set out control factors and try not to be fixated on unreasonable control factors.

• Mrs Tame: Gummow and Kirby JJ reasoned that a reasonable person in the officer’s position would not have foreseen that carelessly completing a Traffic Collision Report would have caused Mrs Tame’s psychiatric illness. The mistake was rectified and a formal apology was given. Mrs Tame’s reaction was extreme and idiosyncratic (eccentric).

• Annetts: Gummow and Kirby JJ reasoned that the defendant owed the Annetts a duty of care. The defendant undertook to minimise risk to the son and to his parents. The Annetts had no way of protecting themselves from the risk of psychiatric harm that eventuated.

• Dissenting judgment by Hennan J, reasoned that the death was too remote for there to be a sensory shock (p.g. 247).

Ratio decidendi:

• The psychiatric harm that results from a defendant’s actions must be reasonably foreseeable by a reasonable person (not a psychiatrist). However the type of disorder that eventuated does not have to be reasonably foreseeable.

• The psychiatric harm does not have to come from sudden shock. Cases of prolonged suffering are also a cause. A triggering event is often illusory.

• This was evaluated by the effect the defendant’s conduct would have on a person of “normal fortitude”, unless special circumstances exist (for example, knowledge of an especially susceptible person). Once it is established that a person of normal fortitude would have suffered psychiatric illness as a result of the defendant’s action, the defendant must take the plaintiff as they find them, that is, they must compensate the plaintiff for all psychiatric damage although greater in extent than that which would be suffered by a person of normal fortitude (the “egg-shell skull” rule).

• The plaintiff does not have to have seen or heard the distressing phenomenon in its immediate aftermath. Acquisition of knowledge may be relevant in assessing reasonable foresee-ability.

• There can be no legal duty to break bad news gently even in cases of carelessness or insensitivity.

• Grief, sorrow, fright, distress or embarrassment is not forms of psychiatric harm that will ground an action in negligence. The harm must be measured by professional medical opinion.

Obiter dictum:

• Gummow and Kirby JJ reasoned that Australian courts are more willing to permit recovery for psychiatric harm where the plaintiff and defendant were in a pre-existing relationship as employer and employee.

• Gleeson CJ reasoned that Australia should not limit liability for damages for psychiatric injury.

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Koehler v Cerebos (2005) – Psychiatric harm in the employment context.

Facts:

• Koehler was employed by Cerebos three days a week as a merchandising representative.

• She complained orally and in writing that she needed more time to do her work or help with it. All the complaints were about the work and not her health.

• No changes were made.

• Five months later she developed a major depressive illness.

Remedy sought:

• Koehler claims that Cerebos was under contractual duty to provide a safe system of work and they breached the Occupational Safety and health Act 1984 (WA).

Prior proceedings:

• Koehler won in trial. The commissioner found her workload to be excessive and the injury was foreseeable.

• Koehler lost in the Full Court of the WA Supreme Court.

• She appealed to the High Court.

Legal issue:

• Does a duty of care arise for employers to reduce the tasks an employee must perform in their contract so as not to cause stress to the employee that may result in psychiatric illness?

Outcome:

• Koehler lost. Appeal dismissed with costs.

Legal reasoning:

• McHugh, Gummow, Hayne and Heydon JJ reasoned that Cerebos had no reason to suspect that Koehler was at risk of psychiatric injury. There was no indication from Koehler’s complaints that this was the case. They related to industrial relations and did not suggest any danger. At the time, the company could not have had the foresight they do today. The risk was not reasonably foreseeable.

• A reasonable person in the shoes of the employer would not have foreseen the risk of...