Duty Psychiatric Injury Notes

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.

Page 255

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...

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