Tame v New South Wales

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Citation: (2002) 211 CLR 317

This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 209-10 [7.155]; 255-63 [8.135]


Background facts

  • Plaintiff had an accident which wasn't her fault.
  • She sought insurance, and became quite anxious when the payments weren't coming for some time.
  • Her solicitor notified her that the Police wrote on the form that the Plaintiff had a blood-alcohol rating of 0.14 (legal limit is 0.05) at the time (that rating belonged to the other driver).
  • The police acknowledged their mistakes, issued a formal apology,
  • The police fixed this mistake after 2 or 3 months, but not in time to be passed on to the insurer.
  • However, there is evidence that the insurer did not think that the Plaintiff was drunk. It still paid a substantial sum to the Plaintiff, although it took time before the payments came.
  • The Plaintiff developed some irrational and obsessive fear that delay of the payments is related to her perceived drunkenness, and that everyone around her thought she was drunk at the time.
  • It was diagnosed that this obsession was the cause of the psychotic depression that followed.
  • The Plaintiff sued the police for for negligence.

Legal issues


Rationale for control mechanisms

Gummow & Kirby JJ:

  • The original rationale for limiting the duty to avoid inflicting mental harm is as follows:
    • Mental harm is harder to discern and therefore can be faked more easily.
    • Ability to sue for mental harm is likely to be an unconscious disincentive to recover.
    • Ability to sue for mental harm without limitation will entail indeterminate liability (will mean anyone would be able to sue).
    • Ability to sue for mental harm without limitation might be an unreasonable or disproportionate burden upon defendants.
  • However these reasons are suspect.
  • Firstly most of these concerns apply to physical injury as well, yet it is not suggested that we have control mechanisms there.
  • Secondly, the concerns can effectively averted if we properly distinguish between mere emotional distress and proper mental harm (medically recognised mental illness)
    • This needs to be done using expert evidence, and so, it would be "illuminated by professional medical opinion rather than purely by idiosyncratic judicial perception."
  • Thirdly, the normal laws of negligence (reasonable foreseeability, asking whether the defendant took reasonable care, etc) are sufficient limitation.
  • Therefore, these concerns do not justify the creation of further limitations such as control mechanisms.

Control mechanism overview

Gummow & Kirby JJ:

  • We should not use these control mechanisms - 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 subsequen relaxation to permit recovery where the plaintiff feared for the safety of another... illustrates this point."

Normal fortitude mechanism

  • The concept of normal fortitude is "imprecise and artificial".
  • "The imprecision in the concept renders it inappropriate as an absolute bar to recovery".
  • It is thus not a pre-condition.

Sudden shock mechanism

  • The condition of sudden shock is "not a settled requirement of the common law in Australia".
  • "As a growing body of criticism has pointed out, individuals may sustain recognisable psychiatric illnesses without any particular 'sudden shock'...the pragmatic justifications for the rule are unconvincing..."
    • Firstly, it is ridiculous to say that a plaintiff who has suffered mental harm as a result of a series of prolonged incidents should not be entitled to damages.
    • Also, the whole concept of an event which induces 'sudden shock' is illusory - it can be attributed to any of the events in the cases of prolonged mental suffering. In this case for example, the plaintiff could always just say that the sudden shock was sustained when she first heard about the disappearance of her son.
  • "The requirement to establish 'sudden shock' should not be accepted as a pre-condition for recovery in cases of negligently inflicted psychiatric harm."

Direct perception mechanism

  • "Distance in time and space from a distressing phenomenon, and means of communication or acquisition of knowledge considering that phenomenon, may be relevant to assessing reasonable forseeability, causation and remoteness of damage in a common law action for negligently inflicted psychiatric illness. But they are not in themselves decisive of liability.


Gleeson CJ:

  • Control mechanisms should be rejected, and were not used for this judgement. Ultimately, it all comes down to the question of whether the harm was a reasonably foreseeable result of the action. The relationship between the plaintiff and defendant obviously makes a difference.
  • Case is dismissed for two reasons:
    1. The police officer's primary duty is to make a police report with the purpose of giving it to his superiors. It is not his duty to take measures to make sure that a person doesn't suffer mental harm as a result. Even if he also had this duty, there would then be a conflict of duties, and as a general principle the main duty will prevail in a conflict.
    2. The harm itself was not reasonably foreseeable at all - who would have known that a mistake about blood tests in a police report would lead to mental illness?
  • Both the Court of Appeal and the High Court dismissed the claim - nervous shock and depression is not a reasonable general consequence of filling out a form erroneously.


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