Section 32 Civil Liability Act 2002 (NSW)
90The defendant submits that it does not owe a duty to the plaintiff not to cause mental harm, relying upon the provisions of s 32 Civil Liability Act 2002 (NSW).
91Section 32 Civil Liability Act 2002 (NSW) provides:
"32 Mental harm-duty of care
(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."
92I also note the definition of "consequential harm" in s 27 as follows:
""consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind."
93"Mental harm" and "pure mental harm" are also defined in s 27.
94The defendant submits that the plaintiff is not a person of "normal fortitude" and his psychological injury has arisen by reason of pre-existing vulnerabilities which affected not only his perception of the circumstances surrounding his accident but were in fact the cause of any mental harm that he had suffered.
95The precursor to s 32, in relation to "normal fortitude", was the High Court's decision in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 where Gleeson CJ described "normal fortitude" at [16] as follows:
"[16] Furthermore, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered. In the context of remoteness of damage, it is established that a tortfeasor must take a victim as the victim is found; but we are presently concerned with whether there is a duty of care, and whether a tort has been committed. Putting to one side cases where a defendant knows, or ought to know, of the peculiar susceptibility of a plaintiff, the law has established what Brennan J described in Jaensch v Coffey as "an objective criterion of duty". The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability. This does not mean that judges suffer from the delusion that there is a "normal" person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though "normal fortitude" cannot be regarded as a separate and definitive test of liability."
96This in turn has its origins in the reference to a "reasonably normal condition" in Bourhill v Young [1942] 2 All ER 393 at 406 per Wright LJ. In Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Windeyer J noted at 405:
"I venture to question its validity for reasons I shall state. But first it is enough to say that, assuming it be correct to the full extent stated, it does not affect the present case. The plaintiff here was not before the accident obviously prone to nervous shock or to any psychological derangement. He had worked satisfactorily for the appellant for fifteen years. The trial judge, directing his attention to this aspect, found as a fact that there was "nothing in his personal or family or medical or occupational history" before the accident which would disqualify him as a plaintiff. I must add that I am not to be taken as assenting to the proposition that nervous shock caused to a man who is prone to such shock is not compensable when a similar occurrence harming a "normal" man would be. That, I think, should remain for us an open question. It does not arise in this case. I therefore say only a few words to indicate my misgivings.
To begin with, the line of distinction postulated is not in any particular case easily drawn. The idea of a man of normal emotional fibre, as distinct from a man sensitive, susceptible and more easily disturbed emotionally and mentally, is I think imprecise and scientifically inexact. Waller J referred to this in Chadwick v British Railways Board (1967) 1 WLR 912, at p 922 (The case is also reported (sub nom. Chadwick v British Transport Commission) in All England Reports (1967) 2 All ER 945, at p 952; but the relevant sentence is there not the same: one word seems to be mistaken.) His Lordship said: "The community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress to be regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities."
Next, the supposed rule does not, at first sight, stand well with the so-called "egg-shell skull" rule in relation to physical harm. That, Lord Parker CJ has emphatically said, is still lively doctrine: Smith v Leech Brain & Co Ltd (1962) 2 QB 405, at p 414. I have no doubt that we should agree and that it is still for us the law that a tortfeasor takes his victim as he finds him. The proposition that a man susceptible to nervous shock is not entitled to damages is said to be reconcilable with that, because it is said that there is no duty of care for unknown abnormal persons who suffer harm because of their abnormality: only if a defendant knew or ought to have known of the existence of the plaintiff's infirmity had he a duty to avoid harm to him which a normal man would not suffer; only then would he be a tortfeasor and the man with an egg-shell mentality the victim of a tort. I appreciate that. Nevertheless I do not find the proposition easy. A mother who suffers a shock because she sees her child run over by a negligently-driven motor car is entitled to damages, apparently because mothers are likely to be near their children and prone to suffer shock if they see them hurt: yet a stranger who suffers shock because he sees the same happening is not entitled to damages unless he was a person not prone to shock, or it is suggested, with what logic is not apparent, if he was present as a rescuer. However, I need say no more about the position of persons prone to suffer shock, for the present plaintiff was not such a person. I wish only to guard myself for the future by saying that, as at present advised, I am not convinced that a defendant in cases of this sort can escape liability simply by shewing that, unknown to him, a person who suffered harm was easily harmed."
97The Civil Liability Act 2002 (NSW) does not define the concept of "normal fortitude" but I note the helpful discussion of this concept by Hume J in Hollier v Sutcliffe [2010] NSWSC 279 at [226]-[231] as follows:
"[226] In Tame, all of the judges agreed, although variously expressed, that the plaintiff's reaction to an allegation that she had consumed alcohol prior to a motor vehicle collision was not that expected of a person of normal fortitude. It was a reaction, which Gummow and Kirby JJ described (at [233]) as "extreme or idiosyncratic".
[227] By contrast, in Annetts, the reaction of parents, who had entrusted the care of their son to the defendants, to the news of his death was that expected of a person of normal fortitude.
[228] In Tomisevic v Menzies Wagga Southern Pty Ltd, [2005] NSWCA 178, Beazley JA (Mason P and Pearlman AJA agreeing) held that it was not reasonably foreseeable that a person of normal fortitude would suffer a recognisable psychiatric illness as a result of being splashed in the face by water contaminated by faeces.
[229] In Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower, [2006] NSWSC 512, the plaintiffs claimed damages for psychiatric harm arising out of the death of their horse caused by purchasing contaminated feed from the defendant. Hoeben J determined against the plaintiffs on this issue (see [257]) by applying Tame and Annetts in so far as it was not reasonably foreseeable that a horse owner of normal fortitude would develop a psychiatric injury in the circumstances of this case.
[230] In CSR Ltd and Another v Thompson [2003] NSWCA 329 at [43] ; 59 NSWLR 77, Ipp JA (Handley and Sheller JJ agreeing) said that consequential mental symptoms such as emotional distress that do not amount to recognisable psychiatric harm are not compensable. In contrast, in the present case the defendant concedes the plaintiff suffers from a recognisable psychiatric illness.
[231] In Bourhill v Young, supra, the plaintiff, a pregnant women, suffered nervous shock and subsequently gave birth to a still born child, in consequence of hearing a collision involving a motorcyclist. In discussing the issue of normal fortitude, Lord Porter said at 117:
The driver of a car or vehicle, even though careless, is entitled to assume that the ordinary frequenter of the streets has sufficient fortitude to endure such incidents as may time to time be expected to occur in them, including the noise of a collision and the sight of injury to others."
98More recently the High Court in Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of NSW (2010) 241 CLR 60 at [23]-[29] has explained:
"[23] The determination of whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be made with regard to "the circumstances of the case". Section 32(2) identifies four kinds of circumstance to which regard should be had: whether the mental harm was caused by sudden shock, whether there was "witness[ing], at the scene," of certain types of event, what was the relationship between plaintiff and victim, and whether there was a relationship between plaintiff and defendant. But s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances.
[24] Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this court in Tame v New South Wales. Judgment in Tame was delivered on 5 September 2002; the provisions of Pt 3 of the Civil Liability Act were inserted in December 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW).
[25] Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the court in Tame rejected the propositions that concepts of "reasonable or ordinary fortitude", "shocking event" or "directness of connection" were additional pre-conditions to liability.
[26] In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, "shocking event", and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
[27] For present purposes, there are three important features of s 32. First, "sudden shock" (the expression used in s 32(2)(a)) is no more than one of several circumstances that bear upon whether a defendant "ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken". The occurrence of "sudden shock" is neither a necessary nor a sufficient condition for a finding that a defendant owed a duty to take reasonable care not to cause a plaintiff pure mental harm.
[28] Secondly, witnessing, at the scene, a person being killed, injured or put in peril is also but one of the circumstances that bear upon the central question of foreseeability. Witnessing, of the kind described, is neither a necessary nor a sufficient condition for finding a duty of care.
[29] Thirdly, the focus of s 32 is "mental harm" and "a recognised psychiatric illness", not mental or nervous shock. Section 32 does not use the expression "mental or nervous shock". Yet, as noted earlier, the phrase "mental or nervous shock" appears in s 29 of the Civil Liability Act, and in s 30(1), the provision which determines whether s 30 is engaged. Section 30 applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) "arising wholly or partly from mental or nervous shock" in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant."
99I have had the benefit of additional submissions from both the plaintiff (5 March 2012) and defendant (1 March 2012) concerning other recent decisions which have considered this issue, none of which add anything to the discussion set out in the extracts above.
100The parties agreed that questions of what amounts to "normal fortitude" should be approached in the manner described by the High Court of Australia in Tame v New South Wales, supra; Hollier v Sutcliffe, supra, at 16.
101Essentially what the plaintiff submits is that the plaintiff's reaction was neither extreme nor idiosyncratic (written submissions, paragraph 6) in that he was a 11 year old boy whose inability to play sport and consequential psychological response was readily foreseeable by the defendant who admits that the standard of repair at its premises might give rise to a foreseeable risk of injury. An important factor should be the age of the plaintiff. In Hollier v Sutcliffe, no physical injury, in the sense of an accident causing physical injury, occurred in the ordinary sense of the word.
102The defendant submits that the plaintiff was not a person of normal fortitude but a person pre-disposed by the many factors referred to in the X School reports which formed part of Exhibit 2 (especially pp 51-57) and that the response of the plaintiff was similar to that of the plaintiff in Tame v New South Wales, namely "extreme or idiosyncratic" (at 233 per Gummow and Kirby JJ). It is submitted that it was not reasonably foreseeable that a person of normal fortitude might, in the circumstances of a physical injury of the kind suffered here, suffer a recognised psychiatric illness.
103In Hollier v Sutcliffe Hume J noted at [232] that whilst it would be expected that if reasonable care was not taken some physical harm might occur, the question of whether a recognised psychiatric illness might be suffered could not have been foreseen.
104Cases of this kind turn on their facts. It is a factor of very great weight that the plaintiff is a child, and he suffered his injury unexpectedly and in a place where the defendant must have expected young children would congregate. The potential dangers of swimming pools and the consequence of injury in circumstances where a child is in water are significant. However, children of normal fortitude suffer injuries of this kind in the course of recreational activities. There is no expert evidence before me to the effect that children are more vulnerable to psychiatric injury arising from accidents suffered during recreational pursuits.
105None of the elements in s 32 are able to be made out. As an injury in terms of the injuries potentially capable of being suffered, namely an injury caused by a cut toe on a broken tile in a swimming pool, is at the bottom of the range. The plaintiff's response was out of all proportion to what might reasonably have been anticipated (Tomisevic v Menzies Wagga Southern Pty Ltd [2005] NSWCA 178 at [13] and [39]). The plaintiff's response was not that of a person of normal fortitude.
106Accordingly, I am satisfied that the defendant does not owe a duty of care to the plaintiff by reason of the provisions of s 32 Civil Liability Act 2002 (NSW).
107This brings me to a consideration of the question of damages. As the defendant has succeeded on issues relevant to causation and s 32 Civil Liability Act 2002 (NSW), I have assessed the damages as amounting solely to the $305.55 out-of-pockets in relation to the plaintiff's toe injury. I include some brief comments concerning the plaintiff's claim for damages as alternative findings in the event that these are of assistance if I have erred in my findings concerning causation and s 32 Civil Liability Act 2002 (NSW).