CROOK v CONSUMER, TRADER & TENANCY TRIBUNAL OF NSW & ANOR

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 30003/03 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40977/03 SC 30003/03

MASON P SHELLER JA IPP JA

CROOK v CONSUMER, TRADER AND TENANCY TRIBUNAL OF NEW SOUTH WALES The appellant was the tenant of premises in Redfern and the second opponent, The New South Wales Department of Housing, was the landlord. The appellant suffered from psychiatric problems and was a disabled public tenant. On 19 December 2002, the Consumer, Trader and Tenancy Tribunal of New South Wales (the Tribunal) made an order, pursuant to s68 of the Residential Tenancies Act 1987 (the Act), terminating this residential tenancy agreement. This order was made on the basis that the appellant, by way of his abusive and aggressive behaviour toward staff of the second opponent, had "intentionally or recklessly caused or permitted, or [was] likely to intentionally or recklessly to cause or permit . . . injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises."

The appellant appealed to the Supreme Court against the decision of the Tribunal. On appeal, before Master Malpass, the central issue was whether or not the claimant had caused, or was likely to cause, "injury" in the sense used in s68(1)(b). Master Malpass held that "injury", as it appeared in the section, should be given its natural or literal meaning. Therefore, the Master held that the meaning of "injury" was not restricted to physical injury but extended to mental injury and further, that mental injury was not restricted to recognisable psychiatric illness or condition. Master Malpass found that the claimant had persistently engaged in grossly offensive conduct, which had caused injury and could be expected to continue to do so. Accordingly, the Master was satisfied that there was no error of law which could justify the disturbing of the Tribunal's decision.

On appeal to this Court, the appellant challenged the findings of the Tribunal and of Master Malpass as to the meaning of "injury" for the purposes of s68 of the Act, particularly, whether on the evidence, it was open to the Tribunal to find that the claimant had caused or was likely, whether intentionally or recklessly, to cause injury to the landlord's agents.

Held: per Sheller JA, Mason P and Ipp JA agreeing:

1. A recognisable psychiatric illness or condition is an "injury" within the meaning of that word in s68(1) of the Act.

2. In the law of tort, a distinction has been drawn between recognisable psychiatric illness and such conditions as distress, alarm, fear, anxiety, annoyance or despondency without any resulting recognisable psychiatric illness, in order to give effect to a judicial policy of restraining the remedy within, what are thought to be, acceptable bounds. Recovery is restricted to those disorders, which are capable of objective determination, and recovery is not permitted for other forms of emotional disturbance.

Tame v New South Wales (2002) 76 ALJR 1348 applied.

Mount Isa Mines Limited (1970) 125 CLR 383 considered.

3. There is no reason why the legislation in regulating the behaviour of tenants should not, for the same reasons, adopt this distinction. Therefore "injury" for the purposes of s68(1)(b) is restricted to physical injury and recognisable psychiatric illness or condition. It is not to be assessed according to issues, which are subjective to the victim.
4. Doctor Westmore's opinion that prolonged verbal abuse can lead to psychological damage was not evidence of the victims suffering, or being likely to suffer, a recognisable psychiatric illness. The evidence was only of the victims' subjective or expected emotional reaction to the claimant's abuse and therefore not evidence of "injury" within the meaning of s68(1)(b) of the Act.
5. It was not open to the Tribunal, on the evidence, to conclude that the claimant had caused, or was likely to cause, injury to any of the victims on whose evidence the second opponent relied. Legislation:

Consumer, Trader and Tenancy Tribunal Act 2001 Residential Tenancies Act 1987

Briginshaw v Briginshaw (1938) 60 CLR 336 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 Strahan v RTT SC (NSW) (unreported) November 1998 Tame v New South Wales (2002) 76 ALJR 1348 Thing v La Chusa (1989) 771 P 2d 814 Woodward v Koessler (1958) 1 WLR 1255

ORDERS 1. Grant the claimant leave to appeal; 2. Appeal allowed; 3. Set aside the orders of Master Malpass of 29 October 2003 and in lieu thereof order: 1. Appeal allowed; 2. Set aside the order of the Consumer, Trader and Tenancy Tribunal of New South Wales of 19 December 2002 terminating the claimant's residential tenancy agreement and in lieu thereof order that the second opponent's application for termination of the tenancy and vacant possession of the premises be dismissed. 4. The second opponent to pay the claimant's costs of the hearing before Master Malpass and of the application for leave to appeal and of the appeal to this Court.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40977/03 SC 30003/03

MASON P SHELLER JA IPP JA

Thursday, 18 December 2003 CROOK v CONSUMER, TRADER AND TENANCY TRIBUNAL OF NEW SOUTH WALES & ANOR Judgment 1 MASON P: I agree with Sheller JA. 2 SHELLER JA:

The claimant, David Crook, seeks leave to appeal from the decision of Master Malpass of 29 October 2003. The matter proceeded as a combined hearing so that if the claimant was granted leave to appeal the Court would go ahead and deal with the appeal. 3 The claimant was the tenant of residential premises at 12/588 Elizabeth Street, Redfern and the second opponent, the New South Wales Department of Housing, was the landlord. Before Master Malpass was an appeal by the claimant against a decision of the first opponent, the Consumer, Trader and Tenancy Tribunal of New South Wales (the Tribunal). On 19 December 2002, the Tribunal made an order terminating the residential tenancy agreement dated 17 May 2000 made between the claimant as tenant and the second opponent as landlord. The claimant was required to give up possession on 31 January 2003. The Tribunal made the orders pursuant to s68 of the Residential Tenancies Act 1987 (the Act) which enabled the Tribunal, on application by a landlord under a residential tenancy agreement, to make an order terminating the agreement if it was satisfied "that the tenant has intentionally or recklessly caused or permitted, or is likely intentionally or recklessly to cause or permit: (a) serious damage to the residential premises, or (b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises."

Subsection (2) provided that if the Tribunal made an order terminating a residential tenancy agreement under the section, it should also make an order for possession of the residential premises taking effect immediately 4 The appeal to the Supreme Court was brought pursuant to s67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act) which commenced, so far as presently material, on 25 February 2002. That subsection provides that if, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party to the proceedings who is dissatisfied with the decision may, subject to the section, appeal to the Supreme Court against the decision. The parties accepted that this subsection limited appeals to Tribunal decisions on questions with respect to matters of law.

The Tribunal decision 5 At the conclusion of the hearing before the Tribunal the Tribunal Member (Ms A Borsody) gave her reasons and decision orally. On application by the second opponent pursuant to s49(2) of the CTTT Act the Tribunal Member provided written reasons. The Tribunal Member said: "As reasons were given at the time, this written version is not in fact the decision or reasons, it is the reasons already given reduced to writing, setting out the evidence in more detail than could be done in the oral reasons." Nothing turns on this. 6 In the written reasons the Tribunal Member referred to a bundle of documents in evidence which included, among other documents, letters, statements, aggressive incident reports, file notes and medical documents. 7 Joeann Nelson, a senior client service officer with the second opponent, gave evidence. Ms Nelson stated that she first met the claimant in late 2000 or early 2001 and got to know him quite well. She referred to incident reports which were tendered and also to what was described as the incident of 24 September 2001, when Mr Crook joined in a conversation between Ms Nelson and an expert from the Botanic Gardens who were discussing some trees in the complex. The claimant was angry and abused Ms Nelson as follows: "He saw me and yelled at me calling me a 'fucking old cunt'. Several people who had been in the foyer left. I escorted another tenant who had been waiting in the foyer into the office and again locked the door. Mr Crook again appeared at the office door. He either hit it or kicked while continuing to call out addressing me as a 'fucking old cunt'. This all happened within a very short time span of approximately five minutes." 8 Ms Nelson stated that she was aware from early in 2002 that the claimant had problems with his neighbours, specifically the Essenturks. She said there were numerous incidents with the claimant and she could not remember all the dates without reference to the reports she had submitted at the time. Referred to a file note of 26 June 2002 she said that she remembered the incident. The claimant had yelled verbal abuse at her as she walked through the common area between Elizabeth and Walker Streets in Redfern. He was shouting loudly, loud enough for other people to hear. The witness stated that she was a bit deaf, and felt threatened and intimidated, she wondered if the situation would escalate. He called her a "fat fucking ugly slag", and had used similar comments before the incident reported on 26 June 2002. She was concerned about her safety, felt threatened and unsafe. She felt she could not walk through the common areas or the walk-ups. She felt restricted in her ability to work in the walk-ups, being the premises Mr Crook lived in and the area in which she normally worked. 9 Ms Nelson was referred to other file notes she had made regarding harassment or comments made by Mr Crook to her, or loudly about her in her hearing, as she was going about her work. She stated that all these documents were true and correct. Ms Nelson was still concerned for her safety. She had changed the way she commuted to and from work. There had been no incidents since 25 July 2002 when she changed the way she commuted and did her work. 10 Ms Nelson was cross-examined by the solicitor acting for the claimant. She had not formed a view of the claimant's mental state. At first her interaction with him had been alright and then problems started manifesting. She could not say if the claimant was hypersensitive, or if he reacted badly to rejection, what she could say was that he was abusive, to a level that was unusual. She thought that "not getting his own way set him off". He had never physically assaulted her or touched her. 11 Ms Judy McCormick, a team leader with the second opponent, gave evidence. She was the team leader responsible for managing staff involved with the claimant. She had written on 30 September 2001 to the claimant to arrange that if he had any need to discuss any issues he should attend the Surry Hills Office. She had had complaints from members of the team prior to this letter but that was her first direct contact with Mr Crook. She had later heard the messages on the answering machine, on the day they were left by Mr Crook, and she and the staff found them distressing. There were transcripts of the tapes but she could not swear that the transcripts were accurate as to what was said. She could swear that there was a great deal of abuse and name-calling, that the claimant was very aggressive and abusive and that it was very anxiety provoking for herself and the staff. As a result of this behaviour, she instructed staff to be mindful of their safety. Ms Nelson was instructed to use a car to travel to work following abuse by the claimant. The team were instructed not to do client service visits in the area. The entire team was affected by these incidents. Team members were worried about their safety. Debriefings were arranged for team members. 12 After 24 September 2002, Ms McCormick felt that her team should no longer be dealing with the claimant, as a result of the incidents which had been mentioned, the telephone calls which had been mentioned and the fact that the team's work was being interrupted. 13 She next saw the claimant on 2 November 2002, a Saturday. She parked in front of the McKell Building. The claimant was waiting at the intercom. She accessed the building with her security key and the claimant followed her in. He asked her if she worked there and she said "Yes David, I do". At that point the claimant became very abusive, apparently because she had used his first name, and not addressed him formally as Mr Crook. The claimant then got into the lift continuing to abuse her. The Tribunal Member observed, that at this point in the hearing, the claimant again made offensive and abusive comments and left the hearing room. Ms McCormick said she was "rattled" and had not anticipated his response as she thought she was being polite to him. She saw the claimant at the Tribunal premises on 4 November 2002 when he again abused and yelled at her. 14 The claimant's evidence included telephone evidence from Dr Bruce Westmore, a forensic psychiatrist. He said the claimant was vulnerable to stress and hypersensitive. His comments to, and about, the staff of the second opponent, might be both personal and a general attack against the world. His anger appeared to be directed towards the second opponent and not individual employees. He might appear to respond disproportionately to small provocation but this might be the result of history between him and the individual employee. Dr Westmore said he could not comment on the likelihood of future violence, but there had been no physical violence that he was aware of. The best predictor of future violence was the evidence of past physical violence. Threats of physical violence did not necessarily lead to physical violence. Dr Westmore had suggested that the claimant attend a psychiatrist and did not know if this had been acted on. He could not rule out the possibility of psychotic illness but said that the claimant did know the nature and quality of his actions. 15 Dr Westmore said he had not had direct experience of Mr Crook being abusive. He agreed that Mr Crook was physically confronting and that there was no reason to think that this behaviour would change. Dr Westmore stated that he would expect staff, faced by the claimant's abusive comments and physical confrontation, would be intimidated and feel fearful and depressed. He said that the claimant appeared to be unstable and vulnerable and that his depression or reaction to eviction could be profound and extreme. He had not detected suicidal ideation but it was not out of the question if the claimant were evicted. 16 The Tribunal Member next summarised the submissions made by the solicitor on behalf of the claimant, importantly that the claimant had caused no injury to the landlord or the landlord's agents. "The verbal abuse which was not disputed did not amount to an injury." Further, the submission that the second opponent had produced no medical evidence of injury and therefore that it was not open to the Tribunal to find that injury had been caused, without medical evidence of such injury. There was no evidence to indicate that the claimant was likely to cause physical injury to the landlord or the landlord's agents. Further, it was submitted that if the witnesses were intimidated, as they stated, they could have taken out apprehended violence orders against the claimant. The fact that they did not may have indicated that they were not in fact frightened by him. It was also submitted that there was need for a serious injury before the requirements of s68 were made out. Apparently the solicitor later withdrew this submission and agreed that the section referred to "injury" as distinct from "serious damage" to the premises. 17 The solicitor for the second opponent claimed there had been injury to the second opponent's employees and agents and that it was open to the Tribunal to find this without medical evidence. Strahan v R T T SC (NSW) (unreported) November 1998. I quote this part of the submission as it is recorded in the Tribunal Member's reasons: "73 In any event, there is some medical evidence in that Dr Westmore, the tenant's witness stated that prolonged exposure to abusive and insulting comments was likely to lead to fear and depression. 74 There is a likelihood of the matter escalating to physical injury. Dr Westmore did not have all the facts and had never witnessed Mr Crook's behaviour as directed at the landlord's agents. The landlord has justifiable fears that there will be a serious incident. 75 The purpose of s68 is to protect the landlord's agents where the relationship between the parties has broken down. In this case it is clear that the tenant has no intention of changing his behaviour, and there will be ongoing injury to the landlord's agents." 18 Under the heading "Discussion and Findings", the Tribunal Member noted that during Ms Nelson's evidence the claimant made comments and gestures indicating that he stood by his description of the witness. She accepted, by reference to transcripts of telephone messages, that the claimant was abusive during telephone calls to members of the second opponent's staff. During Ms McCormick's evidence he became very abusive and aggressive in the hearing and left the hearing room. Ms McCormick was notably upset after this incident. The Tribunal Member said: "80 I accept that the obligations of the Department of Housing as a landlord are different from and greater than the obligations of a private landlord to its tenants. However this does not extend to allowing its employees to be injured by tenants. 81 I accept that the tenant has verbally abused the staff of the landlord. I find that the employees of the landlord, specifically Joeann Nelson and Judy McCormick are agents of the landlord as defined in the Act. 82 I do not accept that injury for the purposes of s68 of the RTA means only physical injury. I note the decision of Mr Hopkins in Department of Housing v Johnstone to the contrary. However I am not bound by previous decisions of the Tribunal, though they are persuasive. Moreover the decision in Johnstone is distinguishable on the facts. Mr Hopkins took into account that the employees of the Department to some extent provoked Mr Johnstone and further that the incident complained of was the only incident that had occurred, and there was nothing to indicate that any similar problems could or might occur again. 83 This is relevant both to the exercise of the discretion and to the finding of what is or is not an injury. There was nothing in DoH v Johnstone to indicate that there might be ongoing abuse or vilification. In this instance the evidence is that Mr Crook's behaviour will not change, and his abuse and vilification of the landlord's agent will continue. 84 I do not accept that to find psychological injury for the purposes of that section I need medical evidence." 19 The Tribunal Member said that while there was no specific medical evidence of psychological injury to Ms Nelson or Ms McCormick the two employees who gave evidence, she accepted the evidence of Dr Westmore that prolonged verbal abuse could lead to psychological damage. She further accepted the evidence of Ms McCormick that the second opponent arranged for "debriefing sessions" for those employees who had been the victims of the claimant's abuse. She accepted this debriefing was a form of counselling for those employees. She said: "87 I find that there has been injury caused to agents of the landlord by the actions of the tenant in verbally abusing them by telephone and in person. 88 I find there is no likelihood of this ceasing. That is, I find it is likely that the tenant will cause further injury of this nature. However, while Dr Westmore could not rule out the possibility of physical violence there is not sufficient evidence to find that the tenant is likely to cause physical injury. 89 I accept that the tenant knows what he is doing. This distinguishes this case from Department of Housing v Hillhouse where Mr Hopkins found that the tenant did not intentionally or recklessly cause the injury which had occurred because he did not realise what he was doing nor was he able to control his behaviour. I have no evidence to indicate that Mr Crook is unable to control this behaviour, or at least seek help to control the behaviour. 90 I find that the DoH has made a variety of efforts to preserve this tenancy, including providing the tenant with a particular individual he can contact when he has the need. 91 The wording of s68 indicates that the Tribunal may make an order terminating the tenancy if it is satisfied that the tenant has caused or is likely to intentionally or recklessly cause injury … to the landlord's agent. That is the Tribunal has a discretion as to whether to terminate the tenancy or not. 92 The relevant circumstances include the fact that the tenant has abused and sworn at and vilified the landlord's agents and has no intention to change this behaviour. The circumstances include the fact that the landlord's agents were visibly shaken by the behaviour of the tenant, and that the landlord has had to modify the work practices of the Redfern Office of the Department of Housing to accommodate this. 93 The circumstances include the fact that the landlord has tried to preserve the tenancy by providing Mr Crook with particular contact individuals and that this has proven unsuccessful." 20 The Tribunal Member was minded to apply what had been said, particularly by Latham CJ in Briginshaw v Briginshaw (1938) 60 CLR 336 at 343-4, to the effect that the standard of proof required by a cautious and responsible tribunal would naturally vary with the seriousness or importance of the issue. She noted that depriving a tenant of his home was always a serious and important matter but added that depriving a tenant of the benefits that flowed from such tenancy was an even more serious matter. The Tribunal Member concluded: "96 However, the behaviour of Mr Crook, while it is not the 'most extreme case' is such that he has over a prolonged period of time caused injury to the landlord's agent, and he has every intention of continuing to cause such injury. I do not accept that this section can only be used in the 'most extreme cases'. 97 In the circumstances of the case the residential tenancy agreement is terminated."

The Master's Decision 21 On appeal Master Malpass found that the claimant suffered from psychiatric problems and had been presented as a disabled public tenant. During a period of many months, from about September 2001 to about July 2002, employees of the second opponent were subjected to the abusive and aggressive conduct of the claimant. On 15 April 2002, the second opponent applied for termination of the tenancy based on a notice of termination pursuant to s57 of the Act. The second opponent's application was later amended and it prosecuted an application for termination pursuant to s68 of the Act. The Tribunal's order was made pursuant to that provision. Both s57 and s68 were in Pt 5 of the Act "Termination of Residential Tenancy Agreements". Section 57 provided for notice of termination on the ground of a breach of a term of the tenancy agreement. The Master described the occasion for the contrasting remedy under s68(1). 22 Before Master Malpass the issue was whether or not the claimant had caused, or was likely to cause, injury in the sense used in the section. The claimant argued that there were four errors of law in the Tribunal decision: (a) Whether the term "injury" in s68(1)(b) of the Act includes psychological injury. (b) If the term "injury" includes psychological injury, whether proof of the injury required proof of a recognisable psychiatric illness or condition. (c) The evidence required to establish satisfaction of the requirements of s68(1)(b) of the Act. (d) The application of a standard of proof under s68(1)(b) of the Act in light of the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336. 23 In Master Malpass' view the natural literal meaning of "injury" was not restricted to physical injury and extended to mental injury. Mental injury was not restricted to recognisable psychiatric illness or condition. Master Malpass was not satisfied that "injury" as it appeared in the section should be given other than its natural or literal meaning. 24 Master Malpass said: "18 Whilst the adducing of expert evidence is one way of proving 'injury' it is not the only way. It may be provided by the evidence of lay witnesses. A lay witness may give evidence of what has happened to him or her (including evidence as to the effect that certain conduct has had on him or her). 19 In this case, such evidence was given by two employees of the second [opponent]. In addition, the Tribunal had before it considerable documentary material (statements and telephone messages). The truth of this evidence was not the subject of challenge during the hearing (by way of cross-examination or evidence from the [claimant]). The [claimant] himself did not give evidence. Rather, the [claimant] took the stance of arguing that this evidence did not constitute 'injury' in the relevant sense. In addition to this material, the Tribunal Member witnessed an outburst from the [claimant] whilst one of the employees was giving her evidence. The abusive and aggressive outburst was directed both to the witness and the Tribunal Member. 20 The second [opponent] does not suggest that there was any physical injury suffered. Broadly speaking, the alleged injury fell inter alia into the areas of emotional distress (including anxiety and stress), intimidation and harassment. There was evidence upon which findings to that effect could be founded. There was evidence that it had persisted over many months and that it could be expected to continue into the future. There was evidence that one of the employees feared for her safety. There was evidence from Dr Westmore that the conduct could be expected to cause intimidation and that intimidation can give rise to a range of psychological symptoms (including fear and anxiety). The section can be satisfied by proving either actual injury or potential injury ('is likely - to cause - injury'). In my view, this is not a case in which it can be said that there was no evidence of injury in the relevant sense (be it actual or potential). I do not accept that there can be any error of law on that ground." 25 The Tribunal accepted that it should apply and purported to apply the test laid down in Briginshaw v Briginshaw. The claimant complained that the Tribunal did not in fact apply that test. Master Malpass observed that the question of whether or not the case was one in which the Briginshaw test should be applied was not argued. The parties proceeded on the basis that it did apply. For his part the Master had doubts whether this was the case but proceeded on the assumption that it did apply. He was not satisfied that the Tribunal Member did not correctly apply the Briginshaw test. It was not a case in which there were "inexact proofs, indefinite testimony, or indirect inferences". The evidence going to the question of "injury" was not challenged. The questions posed for the Tribunal concerned whether or not the evidence satisfied the legislative intention. 26 The Tribunal Member decided to make an order after being satisfied of the threshold requirement. She took into account inter alia the conduct of the claimant and the nature of the injury. The claimant had persistently engaged in grossly offensive conduct. He had used vile and filthy language to employees of the landlord who were merely endeavouring to carry out their duties. A landlord's employees should not have to continue to suffer such conduct. The conduct had caused injury and could be expected to continue to do so. There was a potential for physical injury. It was not put that the claimant proposed to take steps to bring his conduct to an end. 27 The discretion to make an order was exercised having regard to the particular circumstances of the case before the Tribunal. The exercise of the discretion itself was not the subject of the claimant's attack. If that was not the case, the Master was satisfied, in any event, that there was no error in the exercise of the discretion. It seemed to him to be an appropriate case in which an order should be made. 28 Accordingly, the Master was not satisfied that there was any error of law which could justify the disturbing of the decision. Therefore the appeal failed and the summons was dismissed with the claimant ordered to pay the costs of the summons.

Application for leave to appeal and appeal 29 The grounds upon which leave to appeal was sought in this Court were: 1. The learned trial Judge erred in finding that the term 'injury' in s68 of the Residential Tenancies Act 1987 includes mental injury. 2. The learned trial Judge erred in finding that proof of mental injury under s68 does not require proof of a recognisable psychiatric illness or condition. 3. The learned trial Judge erred in finding that the Consumer, Trader and Tenancy Tribunal (CTTT) in its decision dated 14 March 2003 was not in error in finding that there was sufficient evidence [to] establish that there had been an 'injury' within the meaning of s68 of the Act. 4. The learned trial Judge erred in finding that the CTTT had correctly applied the requisite standard of proof to find that there had been an 'injury' within the meaning of s68 of the Act. 30 I propose to deal with the first three grounds together. Essentially they raise questions about the meaning of the word "injury" in s68(1) and, particularly, whether on the evidence it was open to the Tribunal to find that the claimant had caused or was likely, whether intentionally or recklessly, to cause injury to the landlord's agents. 31 "Injury" is a word of meaning wide enough to embrace harm of any kind done or sustained and hence any harmful effect of abuse or intimidation; compare Woodward v Koessler (1958) 1 WLR 1255 at 1256 per Goddard LCJ. In Thing v La Chusa (1989) 771 P 2d 814 at 816 it was said by Eagleson J as a member of the Supreme Court of California in Bank: "The range of mental or emotional injury subsumed within the rubric 'emotional distress' and for which damages are presently recoverable 'includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain'."

Of course, in respect of the recovery of damages for such injuries, the law of California and of nearly all of the American States differs from that of Australia. 32 A good deal of the argument was addressed to whether or not the word "injury" as used in s68(1) of the Act extends beyond physical injury to include, for example, recognisable psychiatric illness, as that expression has come to be understood in such cases as Tame v New South Wales (2002) 76 ALJR 1348, or such conditions as distress, alarm, fear, anxiety, annoyance or despondency without any resulting recognisable psychiatric illness. In the law of tort, a distinction has been drawn to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds. In Tame at 1382 [193] Gummow and Kirby JJ said: "Grief and sorrow are among the 'ordinary and inevitable incidents of life'; Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 416. The very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Thing v La Chusa at 835. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial."

Such would not be appropriate descriptions of a recognisable psychiatric illness. 33 In Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 394 Windeyer J said: "Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for 'shock', however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or psychosomatic illness. For that, if it be the result of a tortious act, damages may be had." 34 Such a distinction may not be a scientific one but at least, in part, it is explained by the law's concern not to place an unacceptable burden on ordinary behaviour. Put another way, the distinction seeks to accommodate competing interests which can be understood as aspects of individual freedoms, for example, on the one hand to argue loudly with neighbours over the fence or listen to the TV and on the other to read or sleep in silence. In Tame at 1382 [194] Gummow and Kirby JJ continued: "Properly understood, the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation. It restricts recovery to those disorders which are capable of objective determination. To permit recovery for recognisable psychiatric illnesses, but not for other forms of emotional disturbance, is to posit a distinction grounded in principle rather than pragmatism, and one that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception." 35 At 1401 [292] Hayne J said: "Little explicit attention has been given to identifying the basis upon which the distinction between psychiatric injury and mental distress is to be made, beyond noting that it is only the former which is to be compensable. So far, the courts appear to have been content to defer to the way in which psychiatrists distinguish between the two." 36 Section 68(1)(b) refers not only to injury to the landlord's agent but also to injury to "any person in occupation of or permitted on adjoining or adjacent premises". One can safely infer that the legislature did not intend to give to the Tribunal a discretion to terminate the lease of a tenant whose bathroom singing caused stress to a person occupying adjacent premises. On the other hand, violent and threatening behaviour which caused the adjacent occupant to suffer from a recognisable psychiatric illness is, to my mind, an injury as much, within the meaning of that word in s68(1)(b), as would be a broken nose the result of a punch to the occupant's face. There seems to be no reason why the legislature in regulating the behaviour of tenants to the landlord, the landlord's agent or other occupants on adjoining or adjacent premises should not for the same reasons adopt the same distinction. 37 The legislature in s68(1)(a) speaks of "serious damage" to residential premises whereas in s68(1)(b) it refers to "injury", not so qualified, to the parties there described. There is, I think, no basis for reading the adjective "serious" into para (b). In the case of injury, the addition of the adjective inevitably raises issues subjective to the victim, which may defeat the objects of the legislation. Clearly, the legislature wished to inhibit intentional or reckless acts which cause or are likely to cause injury to the other parties described. The result, in terms of whether the Tribunal may make orders, should not be determined by whether the resultant broken finger of the victim was one of the fingers of the left hand of a professional violinist or, by contrast, of a retired wharf labourer. Intentionally causing the same injury to either should enliven the Tribunal's discretion to decide whether orders under s68 should be made. 38 In the present case, it is necessary to identify what were said to be the injuries to the second opponent's employees. For this purpose this Court is necessarily confined to the findings of the Tribunal. In those findings is found evidence of the victims' reactions to the claimant's abuse described by such expressions as, "feeling threatened and intimidated and wondering if the situation could escalate", "concerned about safety, feeling threatened and unsafe", "finding his messages distressing", "very anxiety provoking", "rattled" and "visibly shaken". To this must be added Dr Westmore's opinion, according to the Tribunal's record of the second opponent's submissions, that prolonged exposure to abuse and insulting comments was likely to lead to fear and depression, including justifiable fears that there would be a serious incident, and that prolonged verbal abuse can lead to psychological damage. None of this is evidence of any of the victims suffering, or being likely to be caused to suffer, a recognisable psychiatric illness. Indeed, the evidence is only of the victims' subjective or expected emotional reaction to the claimant's abuse. It is, in my opinion, not evidence of injury within the meaning of s68(1)(b) of the Act. 39 Perhaps naturally a great deal of attention was given to the form of the abuse and vilification. So far as the evidence went, what the claimant said was unprovoked, unjustified and reprehensible. There was no evidence that it was met by the victims with anything other than considerable courage, calmness and dignity. They are to be commended. However, no medical evidence was brought to identify any injury that any of the victims suffered or were likely to suffer. As has been emphasised in argument, the charge was a serious one, though in the context of the proceedings the onus was a civil onus. The evidence was insufficient to prove that the claimant had caused, or was likely to cause, injury to any of the victims of his abuse within the meaning of s68(1)(b) of the Act. It is unnecessary to consider, what may be a difficult question in any case, where it is alleged that the tenant has caused one of the parties described in para (b) to suffer a recognisable psychiatric illness, whether the tenant caused the illness "intentionally or recklessly". 40 In my opinion, on the evidence, it was not open to the Tribunal to conclude that the claimant had caused, or was likely to cause, injury to any of the victims on whose evidence the second opponent relied. Orders 41 I propose the following orders: 1. Grant the claimant leave to appeal; 2. Appeal allowed; 3. Set aside the orders of Master Malpass of 29 October 2003 and in lieu thereof order: 1. Appeal allowed; 2. Set aside the order of the Consumer, Trader and Tenancy Tribunal of New South Wales of 19 December 2002 terminating the claimant's residential tenancy agreement and in lieu thereof order that the second opponent's application for termination of the tenancy and vacant possession of the premises be dismissed. 4. The second opponent to pay the claimant's costs of the hearing before Master Malpass and of the application for leave to appeal and of the appeal to this Court. 42 IPP JA: I agree with Sheller JA.

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