Duty - psychiatric injury

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If a plaintiff wishes to recover damages for a psychiatric injury, he must first prove that the defendant owed him a duty of care to avoid causing such injuries. Such a duty arises when:

  • It was reasonably foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.[1] In determining this, the court considers:[2]
    • (a) whether there was a sudden shock.
    • (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril.
    • (c) the relationship between the plaintiff and any person injured.
    • (d) the relationship between the plaintiff and the defendant.

In cases of pure mental harm (ie, no physical injury to the defendant) there is a further requirement:

  • Plaintiff can only recover if the psychiatric injury suffered is a recognised mental illness (to be determined by the use of expert evidence).[3]

Finally, in cases of pure mental harm, and in connection with another person (ie the person was injured by something happening to someone else), the plaintiff can only recover if he satisfies one of the following requirements:[4]

  • (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril.
    • This includes the aftermath, and being 'put in peril' has a wide application.[5]
  • (b) the plaintiff was a close member of the family of the victim.

If the relevant criteria are satisfied, the defendant will owe a duty of care to avoid causing mental harm too and the plaintiff will be able to recover for such injuries, granted that he can establish the rest of the negligence requirements.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 253-270 [8.125-8.145]; 272-275 [8.170-8.200].

Civil Liability Act 2002 (NSW), ss 27 - 33.

Supplementary Materials: Wicks v State Rail Authority of New South Wales (pp. 27-44); Vines, Roque & Rumble, Is 'nervous shock' still a feminist issue? The Duty of care and pyschiatric injury in Australia (pp. 44-68)

Introduction

[6] Psychiatric harm has traditionally termed "nervous shock" in law. However, mental injury or psychiatric harm are often better terms to use (all are now interchangeable). Compensation for psychiatric harm has been ordered in cases where mental harm was caused after:

  • Personal physical injury.[7]
  • A situation of danger creating a fear for the self[8] or within the zone of physical risk.[9]
  • A situation where the plaintiff was safe from physical harm but feared for his relatives[10].
  • A situation where a relative has been badly harmed and Plaintiff saw it or heard about it [11] or the aftermath of it.[12]
  • Witnessing a horrific scene (by a worker[13] or a rescuer[14])

The first example (mental harm developing after being physically injured) is called consequential mental harm, and the duty of care is really owed on the basis of the original personal injury. However, the rest of the examples describe situations where a person has not been physically injured, yet developed mental harm because of the negligence of another. In these cases, a duty of care is still breached because of the mental injury. These cases are called pure cases of mental harm (/nervous shock etc).

Pure cases of mental harm

[15] Traditionally, establishing a duty to avoid inflicting mental harm had particular requirements. Besides the usual Reasonable foreseeability test (was it reasonably foreseeable that a person in the plaintiff's position would suffer mental harm if the defendant carried out the act contemplated?[16]) which is applied to all claims in negligence, a plaintiff has to show that his mental harm is of a type which the court considers compensable.

  • In NSW, this must be a medically recognised form of psychiatric illness.[17].
  • Mere grief and sorrow are not.
  • Expert evidence is needed to establish a compensable/recognised type of harm

Control mechanisms

In addition, special limitations (or 'control mechanisms') have been put in place because of suspicions that mental harm can be easily faked or isn't quite 'real' in the sense physical harm is. These varied during the years, and were gradually modified to accommodate for exceptions, until they were ultimately dismissed in Tame v New South Wales and Annetts v Australian Stations. At the time, there were three control mechanisms which meant that a duty of care to avoid inflicting mental harm could only arise in situations where:

  1. Normal fortitude: the act of the defendant would cause mental harm to a person of 'normal fortitude' (this broadly means that he is not clinically prone to suffering from mental harm).
  2. Sudden Shock: The mental harm was caused by a sudden shock.
  3. Direct perception: The mental harm was caused by direct perception of the event.
    • This has subsequently been limited to also allow direct perception of the event's immediate aftermath.

These control mechanisms, especially in their original form, greatly reduced the likeliness of the duty being recognised. Over time, mental harm has been validated in law, and these control mechanisms have been discussed and altered in the joint ruling of Tame v New South Wales and Annetts v Australian Stations which were tried simultaneously. In particular, the judgment of Gummow and Kirby JJ addressed control mechanisms in great depth:

  • The control mechanisms should be removed - whilst they are intended to clarify the law and create a strong line of precedents, they do just the opposite because strange or special always come up which do not satisfy the requirements but where a duty of care is surely owed (this is one of them). Thus, exceptions are made and the control mechanisms themselves are expanded thus complicating everything (expansions and exceptions have been made already to the control mechanisms).
    • "the emergence of a coherent case law is impeded, not assisted, by such a fixed system of categories."
    • "Rigid distinctions of the type required by the 'direct perception' rule inevitably generate exceptions and new categories, like the 'immediate aftermath' qualification, as the inadequacies of the recognised categories become apparent and 'hard cases' are accommodated."
    • "The old rule that 'nervous shock' sounded in damages only where it arose from a reasonable fear of immediate personal injury to oneself...and its subsequent relaxation to permit recovery where the plaintiff feared for the safety of another... illustrates this point."
  • The ultimate question is always simply the test of reasonable foreseeability - "Liability will be imposed for consequences which the defendant, judged by the standard of the reaosanble person, ought to have foreseen".

The decision removed the control mechanisms as absolute requirements, however they continue to serve as influential considerations for the court in determining reasonable foreseeability.

Conclusion - after statutory amendments

Soon after the judgments in Tame and Annetts removed the control mechanisms, the Civil Liability Act 2002 (NSW) was amended. As a result of those amendments, ss 27-33 of the Act still set some requirements (notice that some of the provisions of NSW legislation are pretty much contrary to the judgments above). Under both the common law and statutory law (provided the other elements of negligence are satisfied) damages will awarded in cases of pure mental harm after it has established that:

  • By reasonable standards, the defendant should have anticipated that his action (or omission) might cause mental harm to a person of normal fortitude in the position of the plaintiff[18].
    • This means that the normal fortitude requirement has been reinstated. However, note that this doesn't require the plaintiff to be a person of normal fortitude. It requires that it is reasonably foreseeable that the defendant's actions would cause mental harm even in a person of normal fortitude.
  • The mental harm caused was a recognisable mental illness.[19]

The other control mechanisms have become some of the circumstances to be considered by the court when establishing a duty of care or reasonable foreseeability. This is specified in s32 (2)

  • Whether or not the mental harm was suffered as the result of a sudden shock,
  • Whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
  • The nature of the relationship between the plaintiff and any person killed, injured or put in peril,
  • Whether or not there was a pre-existing relationship between the plaintiff and the defendant.

If the Plaintiff was not a person of normal fortitude, it is also to be considered by the court whether the defendant had knowledge of this fact.[20] Another case involving pure mental harm in general is Koehler v Cerebos.

Pure cases arising from mental shock in connection with another person

In addition, s30 specifies that in the case of (1) pure mental harm arising from (2) mental or nervous shock and (3) in connection another person (for example, witnessing or hearing about a horrific accident between the defendant and someone else), the plaintiff can only recover damages if:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.

In that way, it is arguable that s30 reintroduces the control mechanism of 'direct perception' in certain cases. The application of both the common law and the statutory law to pure cases of mental harm was discussed in Wicks v State Rail Authority of New South Wales:

  • An event does not have to be instantaneous - if the plaintiff comes after the actual moment of the accident, yet still witnesses victims "being killed, injured or put in peril" after the accident actually happened, that will still satisfy the requirement of s30 (2) (a).
  • A person is considered 'being put in peril' as long as he is at risk.

End

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References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. CLA, S 32 (1)
  2. CLA, S 32 (2)
  3. CLA, s 31.
  4. CLA, s30 (2).
  5. Wicks v State Rail Authority of New South Wales [2010] HCA 22
  6. Textbook, pp. 253-4 [8.125]
  7. Donoghue v Stevenson [1932] AC 562 and many others.
  8. Victorian Railways Commissioner v Coultas (1988) 13 Appl Cas 222 AC 562, Dukieu v White & Sons [1901] 2 KB 669
  9. Bourhill v Young, Victorian Railways Commissioner v Coultas (1988) 13 Appl Cas 222 AC 562
  10. Rook v Stokes Bros [1925] KB 141, King v Phillips [1953] 1 QB 429
  11. Hinz v Berry [1970] 2 QB 40, Dillon v Legg (1968) 441 P 2d 912; 69 Cal Rptr 72 (US)
  12. Janesch v Coffey (1984) 155 CLR 549, Mcloughlin v O'Brian [1983] 1 AC 410
  13. Dooley v Cammell, Laird & Co Ltd [1951] 1 Lloyd's Rep 271
  14. Chadwick v British Railways Board [1967] 1 WLR 912
  15. Textbook, pp. 254-5 [8.130]
  16. CLA, s 32 (1)
  17. CLA, s 31
  18. CLA, s32 (1)
  19. CLA, s31
  20. CLA, s32(4)
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