37 Secondly, describing the inquiry as one into insanity may mislead. Insanity is a concept of varying content, and the true inquiry (if the validity of any such inquiry be assumed) is into the worker's mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in contexts not involving insanity that the will may be overborne or subjected to such influences that, although an act is deliberate, it is not regarded as the actor's intentional act. In the context of duress, for example, Lord Simon said that duress 'deflects, without destroying, the will of one of the contracting parties' (Director of Public Prosecutions for Northern Ireland v Lynch (1975) AC 653 at 695), and Lord Scarman took as one of the elements of duress 'pressure amounting to the compulsion of the will of the victim' ( Universe Tankships Inc of Monrovia v International Transport Workers Federation (1983) 1 AC 366 at 400). Lord Scarman said that the classic case of duress is 'not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him' (ibid). Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker's circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result."
180 I respectfully agree with the views expressed by his Honour, including the point made by his Honour that cases such as Medlin accept that an intentional act on the part of an injured person can, in an appropriate case, be regarded as part of the chain of causation. In the present case, the issue does not arise in any dramatic form for the deceased's depressive state developed into a psychotic state. It would be wrong to regard his action of suicide, whilst in that state, as an intentional act which broke the chain of causation.
181 Turning to the cases which have dealt with damages for negligence, I would respectfully adopt the remarks of Handley and Beazley JJA in Commonwealth of Australia v McLean (1996) 41 NSWLR 389. Their Honours there discussed the issues which arise when an injured person has developed a stress disorder or other psychiatric illness. At p 403, their Honours said:-
"A wrongdoer is responsible for all damage of the same type or kind as that which was reasonably foreseeable, even if the particular damage, or its extent, were not reasonably foreseeable, or the damage occurred in an unexpected and unforeseeable manner: see Chapman v Hearse (1961) 106 CLR 112 at 120-121. The test of liability for nervous shock is foreseeability of injury by shock: see Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402, 412; Jaensch v Coffey (1984) 155 CLR 549 at 552-553, 561, 563.
The courts have recognised that for some purposes psychiatric injury is a form of bodily injury: see Page v Smith [1996] 1 AC 155 at 182-183, 187-188; Aboushadi v CIC Insurance Ltd [1996] Aust Torts Reports, 63,336 at 63,339 and American Airlines Inc v Georgeopoulos (Court of Appeal, 26 September 1996, unreported) at 12-15; see also R v Chan-Fook [1994] 1 WLR 689 at 695-696; [1994] 2 All ER 552 at 559, where psychiatric injury was held to constitute actual bodily harm. The courts have nevertheless treated damage by nervous shock as different 'in kind' from tangible physical injury."
182 At p 406, their Honours further said:-
"It may be taken as a rule of law that damage by nervous shock is different in kind from damage caused by tangible physical injuries. On that view the further damage as a matter of law was different in kind from the stress disorder, but it is not necessary to go that far to decide this appeal. On the most favourable view for the plaintiff this was a question of fact for the jury: see Richards v Victoria [1969] VR 136 at 146.
The 'egg shell skull' principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability: see Smith v Leech Brain & Co Ltd [1962] 2 QB 405 at 414 ('not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind'). This is supported by the statement in Overseas Tankship (UK) Ltd v Mort's Dock & Engineering Co Ltd (The 'Wagon Mound' (No 1)) [1961] AC 388 at 415 '… the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen'; the statement in Hughes v Lord Advocate [1963] AC 837 at 845: 'But a defender … can only escape liability if the damage can be regarded as differing in kind from what was foreseen', and the statement in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The 'Wagon Mound' (No 2)) [1967] 1 AC 617 at 636: '… damage can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it.' "
183 A dramatic illustration of the implication of these principles is seen in Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 where the Court of Appeal, Samuels and McHugh JJA, Mahoney JA dissenting, held that, where a 10 year old boy had suffered only minor physical injuries but had subsequently developed symptoms of the Ganser Syndrome, a pseudo dementia, to which the overprotective and inappropriate conduct of the child's parents had contributed, the boy was entitled to damages for the dementia which he suffered. It was held that the accident was a legal cause of the Ganser Syndrome because it materially contributed to the onset and continuation of the condition.
184 The approach taken in these cases was followed in Kavanagh v Akhtar (1998) 45 NSWLR 588. Mason P, with whom Priestley and Handley JJA agreed, cited and approved the remarks of Handley and Beazley JJA in McLean and the approach taken in Nader. At p 602, Mason P said:-
"It was perfectly foreseeable that a severe and continuing shoulder injury would affect a plaintiff's capacity to attend to matters of personal hygiene and adornment, particularly in a context where she was a homemaker. And it was equally foreseeable that this would put strain on marital relations, as it certainly did in the months prior to the hair cutting incident. That such strain might lead to a severe breakdown of that marital relationship with extreme psychiatric consequences for a vulnerable plaintiff was also foreseeable. The fact that the breakdown occurred in consequence of a perhaps unforeseeable step taken by the respondent (cutting her hair) or the perhaps unforeseeable reaction of her husband is irrelevant in the light of cases such as Hughes and Nader , so long as psychiatric injury is itself regarded as a foreseeable consequence of the physical injury inflicted on the respondent: see Commonwealth v McLean ."
185 Those were cases where the psychiatric illness was suffered by the injured person. Damages have also been awarded to persons who suffered an illness as a result of observing the consequences of injury or death. In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383, an engineer was working next to electricians who had not been properly instructed by their employer as to a safe system of work. The engineer saw one of the electricians severely burnt and aided him and assisted in carrying him to an ambulance. Several days later, the electrician died. About four weeks later, the engineer developed a serious mental disturbance of the schizophrenic type. Barwick CJ, McTiernan, Menzies, Windeyer and Walsh JJ held that the negligent employer was liable for the injury suffered by the engineer. Their Honours held that there was a duty of care to persons who may suffer shock on seeing an accident and that it was reasonably foreseeable that an accident, of the kind that occurred, might have consequences for somebody, of the kind that it had on the engineer.
186 This approach was applied and extended in Jaensch v Coffey (1984) 155 CLR 549. In that case, a motorcyclist suffered serious injury in a collision with a vehicle which was driven negligently. The motorcyclist's wife, who was not at the scene of the accident, saw him in hospital and she was told that he was "pretty bad". The next morning, she was told that her husband was in intensive care and, shortly thereafter, she was told that he had "had a change for the worse" and she was asked to come to the hospital as quickly as possible. Although her husband survived, the wife suffered nervous shock as a result of what she had seen and been told. It was held that, in some cases, the impact of events will occur after the accident. At pp 567-568, Brennan J said:-
"The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it. Thus a runaway lorry rushing around a bend has a special significance for a mother who knows her children to be there; she is more likely than another bystander to be shocked by the sight of the runaway lorry: see Hambrook v Stokes Bros [1925] 1 KB 141. Of course a psychiatric illness may be induced by shock when a distressing phenomenon is perceived by a plaintiff for whom it has no special significance. Thus in Dulieu v White & Sons [1901] 2 KB 669, where it was held that a plaintiff could recover for 'a severe shock' if she proved that it was caused by the negligent driving of a pair-horse van into her husband's public house where she was behind the bar, it was not thought necessary that the plaintiff should allege and prove that she was more susceptible than other occupants of the public house to the sight of the entry of the pair-horse van. No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it. The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries. There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or, as in Hambrook v Stokes Bros , the scene of a potential accident. A temporal extension beyond the actual occurrence of an accident was accepted by Lush J in Benson v Lee [1972] VR 879, who allowed a claim based upon 'direct perception of some of the events which go to make up the accident as an entire event, and this includes … the immediate aftermath …' [1972] VR, at p 880. But I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant's carelessness. It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness."
187 In Jaensch v Coffey, Deane J, who favoured the application of a test of "proximity", expressed the test, in relation to a nervous shock claim, in this way, at pp 606-607:-
"There are at least two possible rationales of the distinction, for the purposes of the requisite duty relationship, between cases where psychiatric injury was sustained as a result of direct observation at the scene of the accident and its aftermath and cases where the psychiatric injury was sustained from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. One such rationale lies in considerations of physical proximity, in the sense of space and time, between the accident and its immediate aftermath on the one hand and the injury on the other. The other lies in considerations of causal proximity in that in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath, such as the actual occurrence of death or injury in the course of it, whereas, in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person. The choice between one or other or a combination of these two distinct rationales may obviously be of importance in the more precise identification of any essential criteria of the existence of the requisite duty relationship. On balance, I have come to the conclusion that the second, which justifies the line of demarcation by reference to considerations of causal proximity, is to be preferred as being the less arbitrary and the better attuned both to legal principle and considerations of public policy. It has been said in many cases that the general underlying notion of liability in negligence is 'a general public sentiment of moral wrongdoing for which the offender must pay': see, eg, Donoghue v Stevenson [1932] AC, at p 580; Dorset Yacht Co. Case [1970] AC, at p 1038; The Dredge 'Willemstad' Case (1976) 136 CLR, at p 575. A requirement based upon logical or causal proximity between the act of carelessness and the resulting injury is plainly better adapted to reflect notions of fairness and common sense in the context of the need to balance competing and legitimate social interest and claims than is a requirement based merely upon mechanical considerations of geographical or temporal proximity."
188 In Morgan v Tame (2000) 49 NSWLR 21, the cases were again fully considered. I need not deal with the judgment in detail for the facts were far apart from those which we are considering. Spigelman CJ, Mason P and Handley JA enunciated the view that, in nervous shock cases, issues of foreseeability must be examined in the context of "a person of normal fortitude". There is no question that, in the present case, both the deceased and Mrs Boxsell were persons of normal fortitude. Spigelman CJ, Mason P and Handley JA also held that, on the present state of the authorities, a sudden assault to the senses was an essential requirement for recovery of damages in a case of psychiatric injury. At p 31, Spigelman CJ cited, with approval, the view of McHugh JA in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 509:-
"… The illness must be the result of a shock caused by the perception of a phenomenon for which the defendant is responsible."