Fagan v Crimes Compensation Tribunal

The facts may be shortly stated. On 17 February 1978 a married woman, one Mary Anne Fagan, was stabbed to death at about midday at her home in Melbourne by some person unknown. There were five children of the marriage, namely, Anthony, born on 21 December 1962, Katherine, born on 23 March 1964, Rebecca, born on 2 June 1965, Collins, born on 5 December 1972 and Patrick, born on 21 September 1976. At the time of the murder Mrs Fagan and the baby were in the house, the other children being at school. The three older children discovered their mother's body on their return from school in mid afternoon. The next child, Collins, (called "Jack"), was then aged five and had been taken to school by his mother on the day of the murder and would in the ordinary course of events have been brought home by her from school in the early afternoon. In the circumstances he waited some time not knowing what had happened to his mother. Late in the afternoon arrangements were made for him to be picked up at school by relatives. Jack was told of the death a few days afterwards but in his father's written evidence before the Tribunal he said that he thought that Jack had already heard of her death before that time because of what had appeared on television and what he had heard from other children at the school. His father said that "Jack was now very much a "loner" and withdrawn. Communication with him was difficult".

The medical evidence was apparently all in writing but the documents are not before us. We are therefore restricted to the comments made on the medical evidence by the Tribunal. Mr. Scurry Q.C., who constituted the Tribunal, said, "Dr. Applebe says that there has been a profound impact on them [i.e. all the children], and that the psychological damage will be with them for a long time", but added, "It is my view that in each case the greatest detriment has been the loss of an admirable and devoted mother. It is my understanding of the law that this greatest detriment cannot be the subject of compensation under this Act." Of the report by Dr. Ross he said, "I am not prepared to act on her view that Jack suffered tremendously from the shock of not being picked up from school." Mr. Scurry also said, in regard to the report of Dr. Conron, a psychiatrist, "If the last paragraph of the report is interpreted to mean that each of the applicants has suffered injury to an extent which exceeds grief and distress, then I would accept it." It is evident that the Tribunal relied principally on the reports of Dr. Kornan, an experienced psychiatrist, whose reports contained a history obtained from the applicants. The Tribunal agreed with Dr. Kornan "that there has been a grave emotional effect of traumatic origin".

that the emotional effect in this case (separating it from the factors of grief and maternal deprivation) lacks that nexus or direct connection with the criminal act and its consequences which the law at this time requires before such a claim should be allowed. The distinction between his case and that of the successful applicants is in a sense arbitrary, even artificial, but I feel bound to give effect to it. Counsel for the respondent did not seek to defend the reasons of the Tribunal before this Court but it will nonetheless be necessary to deal with the view which it expressed.

The Tribunal made awards of $5,000 for pain and suffering in favour of each of the three older children but no award in favour of Jack or the baby (Patrick). An appeal was taken on behalf of Patrick to the County Court, which awarded him $5,000.

An application made on behalf of Jack to a Master of the Supreme Court for an order to review under the Administrative Law Act 1978 Vict. was successful and was made returnable before the Full Court of the Supreme Court of Victoria. By majority (Brooking J. dissenting) the application was refused. The operative provisions of the Act need to be considered in the light of three definitions contained in s. 2(1). The definitions which relate to the terms "dependant", "injury" and "victim" are as follows:

"Dependants", in respect of a deceased victim, means such of the relatives of the victim as were wholly or mainly dependent upon his income at the time of his death or would have been so dependent but for incapacity due to the injury from which the death resulted.

"Injury" means actual bodily harm and includes mental or nervous shock and pregnancy and "injured" has a corresponding interpretation.

"Victim" means a person who is injured or killed by the act or omission of another person.

The critical operative provision is s. 3(1). It provides: Where a person is injured or killed by or as a result of the criminal act or omission of any other person (being an act or omission that occurred in Victoria after the commencement of this Act) the Tribunal hereafter in this Act established may, subject to this Act, make an order for the payment of compensation -

(b) where the compensation is in respect of pecuniary loss suffered or expenses incurred, as a result of the victim's injury or death, by a person responsible for the maintenance of the victim - to that person; or

(c) where the victim has died - to or for the benefit of the victim's dependants or any one or more of them or, if there are no such dependants, to any person who incurred expenses as a result of the victim's death.

Although the majority in the Full Court concluded that common law principles of remoteness were not applicable, they nonetheless found that the appellant was not entitled to compensation. Their view was that the only persons who were entitled to compensation under the Act were the "actual" victims of the criminal act and his dependants or, as they put it, "persons who actually sustain the injury or are actually killed at the hands of the person guilty of the criminal act or omission and their dependants". It is plain that the majority thought that only the first or immediate victims of the criminal act could recover compensation. The necessary consequence of this view, if it be right, is that none of the children were entitled to receive compensation under the Act.

This approach seems to attach undue importance to the statutory concept of "victim". What is significant is the absence in the definition of "victim" of words which confine it to a person who is injured by the criminal act or omission of another. It extends to a person who is injured by the act or omission of another, whether criminal or not. This aspect of the definition gives added importance to the language of s. 3(1)(a) which is the basic provision empowering the Tribunal to award compensation to or for the benefit of an injured person. Instead of referring to "victim", this provision speaks of the person who "is injured or killed by or as a result of the criminal act or omission of any other person". By way of contrast, pars. (b) and (c) of s. 3(1) speak of "the victim".

The opening words of s. 3(1) provide for two different kinds of situation. The first is where the person concerned was injured or killed "by the criminal act" and the second is where the injury or the death is "as a result of the criminal act". Thus a person who has been assaulted and suffers physical injury is properly described as having been "injured by the criminal act of another person". That expression may well be capable of a wider meaning but it is not necessary for present purposes to pursue that question. The second kind of situation, where the person concerned was injured or killed as a result of the criminal act, would cover the case of a person who was assaulted and suffered physical injury but it also covers a wider field as the form of the sub-section and the words themselves indicate. Thus, they would cover a person who was a witness to a criminal act such as an assault upon a third person and suffered shock to an extent which produced a heart attack. The two expressions "by" and "as a result of" are not mutually exclusive, and involve a substantial degree of overlap. Indeed the use of the two expressions may have been no more than caution on the part of the draftsman to ensure that what might perhaps have been thought to be "indirect" results were brought within the terms of the section.

The use in s. 3(1)(a) of the expression "the injured person" instead of "victim" does require some examination. The presence of that term is not due to mere "momentary aberration" on the part of the draftsman or a "slip of the pen". There is in truth no difference between the ordinary meaning of the expression "the injured person" and the definition of "victim" as "a person who is injured or killed by the act or omission of another person". All those words are repeated in the opening words of s. 3(1), but the additional expression "or as a result of" is introduced in the operative part of that sub-section. The material difference is that the definition of "victim" is not limited to those injured by criminal acts or omissions but includes all persons however injured. The draftsman, having chosen to define "victim" in such broad terms, found it necessary to be more specific in defining the jurisdiction of the Tribunal. Section 3 which provides for compensation is confined to persons injured or killed "by or as a result of the criminal act or omission of any other person", as distinct from "by the act or omission of another person". The requirement that compensation be limited to persons who are injured or killed by the criminal act or omission of some other person is introduced by the opening part of s. 3(1) and thereafter in that section the use of the terms "injured person" and "victim" are plainly governed by the opening provision. It is of some importance to bear in mind that the term "victim" does not mean, and is not defined as meaning, a person entitled to compensation, but it was often used in the course of argument as if that were its meaning.

What has been said about the scheme of s. 3(1) is consistent with s. 14(2)(a) which requires that the Tribunal shall not make an order for compensation unless it is satisfied on the balance of probabilities that "the victim" was injured or killed by the criminal act or omission of another person, using in this case only the expression "by the criminal act", consistently with the defined meaning of the term "victim", and not using the expression "as a result of". Here, as elsewhere, the expression "by the criminal act" conveniently expresses the concept of "by or as a result of the criminal act" which is introduced by s. 3(1).

The use of the term "victim" alone in s. 15 does not involve any departure from the general scheme because that section is concerned with matters in respect of which compensation may be awarded. In the context "victim" must mean a person killed by or as a result of the criminal act, for otherwise there would be no jurisdiction to award compensation. The same is true of the use of the term victim in ss. 16, 17, 18, 19, 22 and 23. This fits in with the definition of "dependants" who in some respects stand in the place of a deceased victim.

In those circumstances it is proper to conclude that the words in s. 3(1)(a) "the injured person" refer to the "person" in the first line of s. 3(1) who is injured or killed by or as a result of the criminal act or omission of any other person. Such a person is a special kind of "victim" and it is thus a proper use of the expression and obviously refers back to the first two lines of that sub-section. It is therefore clear that the use thereafter in sub-s. (1) of the term "victim" is a special use, narrower than the definition of "victim", but nonetheless a use of the term which in the light of the opening words of sub-s. (1) is necessarily confined to persons injured or killed by or as a result of a "criminal act or omission". This mode of drafting may perhaps be regarded as somewhat clumsy but it gives rise to no ambiguity when the section is carefully examined. Wherever the term "victim" is used in the later sections of the Act it will be seen to be confined to such "victims" in the defined sense as are injured or killed "by or as a result of the criminal act or omission of any other person" because each use is in a context in which the term is related to decisions of the Tribunal on applications to it for orders - see ss. 10, 14, 15, 16, 17, 18, 19, 22 and 23.

The question is whether the infant child Jack was "injured by or as a result of the criminal act of any other person" within the meaning of s. 3(1).

The task of construction is one of ascertaining what limits are involved in the expression "by or as a result of the criminal act". It is not useful, even if it were possible, to attempt to substitute some other expression to delineate the boundaries of the remedy. It is a question very largely dependent on the facts of each case.

There is no basis in the context of the Act itself for regarding the words as having a narrow operation. The words are ordinary English words carrying no special or technical meaning. All that is required is a causal relationship; both the word "by" and the phrase "as a result of" indicate a causal connexion. Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause. The only requirement is that the injury is caused "by or as a result of" a criminal act.

For the respondent it was argued that the Act, when read as a whole, provided compensation only for the "immediate victim" and that the words "as a result of" were directed only to entitling the immediate victim to consequential loss. But there is no basis for reducing the operation of the expression "injured by a criminal act" to direct injury and excluding consequential injury. The distinction is a difficult one and there is nothing in the context of this Act to suggest that it has been introduced into this Act. The statutory criterion is whether the claimant has been injured "by or as a result of" the criminal act; it is concerned with causation in a specific situation.

The Tribunal made a finding of injury to the child but regarded that injury as "too remote" from the criminal act. The question however is not whether the injury was remote or proximate but whether it was "by or as a result of the criminal act".

The Tribunal approached the matter of injury by "nervous shock" or "mental shock" in the same manner as the common law has developed in claims for damages for negligence where the result of the negligence has been "nervous shock". But it is a mistaken approach to the construction of this Act to suppose that it is concerned only with the kind of injuries recognized by the common law as entitling the plaintiff to damages if they are caused by the negligence of a defendant. It is simply a question of reading the words of this Act without supposing that they are intending to copy or reproduce common law rules. Counsel for the Tribunal not having relied on this view it is not necessary to pursue its examination further.

The issue remains whether in the present case there was an injury caused by or as a result of a criminal act. The distinction which the Tribunal drew between the child Jack and the three older children was that the latter had had the dreadful experience of coming into their home and finding there the mutilated body of their mother, whereas Jack had had only the experience of the unexplained failure of his mother to pick him up at school and of thereafter being taken to a house of relatives without immediate explanation and having heard indirectly within the next day or so of his mother's death and the circumstances surrounding it.

The question is, "Was the injury (i.e. the grave emotional effect of traumatic origin) something which occurred "by or as a result of the criminal act"?" It is proper to pose the question of what, if anything, broke the chain of causation or prevented the chain from being formed. The absence of the mother at the school was a direct consequence of the murder and must be regarded as having caused, at the least, apprehension and worry to this young child. Likewise his removal from the school by relatives and not being taken back to his own home was a direct result of the criminal act. His learning shortly thereafter of his mother's death from what was seen and heard on television and from what he heard from other children at school was also a direct result of the criminal act. So also was the fact that within a few days he heard directly from his father of his mother's death. How much of the horrifying circumstances was related to him does not appear but the mere fact of his mother's sudden and apparently inexplicable absence followed by his learning of her death and its effect upon him were the direct result of the murder itself. It may perhaps have been not so traumatic an event as that which the older children encountered but, if there were a distinction, it was a matter of degree only. There is no point in speculating as to whether the indirect effect upon the young child and the so-called "direct" effect upon the older children would cause greater or less trauma. There is nothing to suggest that this question was asked; indeed the expert evidence was all in the form of written reports, and the applicants themselves gave no evidence, the Tribunal having accepted a submission that they should not be called.

There was nothing in the circumstances related above which could be regarded as a break in the chain of causation. The facts demonstrate that the nervous shock suffered by the child was caused by the murder. The mode and the delay (whatever it may have been) in communication of the whole of the facts to the child could not be regarded as breaking the chain or as producing the result that the nervous shock was not caused by the murder itself. Indeed, so much was conceded by counsel for the respondent.

An argument was advanced that the consequences of the murder so far as the children were concerned were readily foreseeable by the murderer. No factual foundation for this contention was suggested but the Act does not make foreseeability a requirement of liability. The Act requires causation and foreseeability is irrelevant.

We should add that this judgment was prepared by Aickin J. In substance we have adopted it as our own.

The appeal should be allowed. The Tribunal did not indicate the award which it would have made if it had not regarded the injury as too remote and that matter is not dealt with in the Full Court of the Supreme Court. It is therefore appropriate that the question of the amount to be awarded should be referred back to the Tribunal for consideration and decision.

The issue on this appeal is whether a person suffering psychological damage because another person has been injured or killed by or as a result of a criminal act, can recover compensation under the Criminal Injuries Compensation Act 1972 Vict., as amended, ("the Act"), s. 3(1) of which provides that the Crimes Compensation Tribunal established by the Act has the power to award compensation to persons suffering injury or being killed "by or as a result of a criminal act". The facts are fully set out in the joint judgment of Mason and Wilson JJ. I agree with them that the concept of negligence is foreign to this remedial Act and that the claim comes within the scope of the Act.

Section 16 of the Act and the right of dependants to claim for pecuniary loss resulting from the criminal act were referred to in argument. "Pecuniary loss" should not be given a restricted meaning, especially as the expression seems to have been borrowed from compensation to relatives cases. (See Naum v. Nominal Defendant [1] ; Jacobs v. Varley [2] .)

1. [1974] 2 N.S.W.L.R. 14. 2. (1976) 50 A.L.J.R. 519.

The appeal should be allowed. The case should be referred back to the Tribunal to determine the amount to be awarded.

The appellant, who is known as Jack Fagan, is a child of the late Mrs. Mary Anne Fagan. He was only five years old when Mrs. Fagan was murdered in her home at Armadale in Melbourne on 17 February 1978. At that time, Jack was at school in the suburb of Caulfield. Mrs. Fagan was accustomed to pick him up when school finished for the day. On that day he remained at school waiting for his mother to come; after a time, he was taken off to the home of some relatives where he stayed for a few days before his father was able to take him into his care. During those days, he probably heard of his mother's murder. In any event, he was told of it by his father a few days later.

The Fagans were a closely-knit family. Group Captain Fagan and Mrs. Fagan had five children. Anthony, Katherine and Rebecca are older, and Patrick is younger, than Jack. Patrick, who was only 17 months old, was in a cot in their home when Mrs. Fagan was murdered. The elder three children were at their respective schools, and when they came home they broke into the house and found the body of their mother. She had been bound and gagged, and her body lay naked on the floor with multiple stab wounds. Group Captain Fagan, who had been on duty at the R.A.A.F. base at Tottenham that day, was summoned home.

Mrs. Fagan's murder naturally had a serious effect upon each of the members of the family. Each of the children suffered grievously. Group Captain Fagan, on behalf of each child, applied for compensation for him or her under the Criminal Injuries Compensation Act 1972 Vict. ("the Act"). The long title of the Act is "An Act to provide for the Compensation of Persons injured by Criminal Acts and of Dependants of Persons killed by such Acts". Jack is a person injured; he suffered mental and nervous shock in consequence of his mother's murder, and injury is defined to include mental or nervous shock (s. 2(1)). The applications on behalf of Anthony, Katherine and Rebecca succeeded before the Crimes Compenation Tribunal; the applications on behalf of Jack and Patrick failed. An appeal on behalf of Patrick to the County Court succeeded, but an order for review of the Tribunal's decision in Jack's case was discharged by a majority of the Full Court of the Supreme Court of Victoria. This appeal is brought by special leave against that refusal.

The Tribunal, constituted by Mr. Scurry Q.C., came to the conclusion -

that the emotional effect in this case (separating it from the factors of grief and maternal deprivation) lacks that nexus or direct connection with the criminal act and its consequences which the law at this time requires before such a claim should be allowed. The distinction between his case and that of the successful applicants is in a sense arbitrary, even artificial, but I feel bound to give effect to it. Jack's "injury", though it would not have befallen him if his mother had not been murdered, was thought to be too remote a consequence to attract an award of compensation. In the Full Court, the majority (Starke and Anderson JJ.) held that the Act conferred a benefit only upon a victim or upon the dependants of a victim, and that Jack did not fall within either category. Brooking J. dissented. Although his Honour held that Jack could not succeed unless he were a "victim" as defined by s. 2(1) of the Act, he found that Jack was a victim and that his right to compensation did not fail on the ground that his injury was too remote from the criminal act. I agree with the conclusion reached by Brooking J., though I reach that conclusion by a somewhat different route. To follow that route, it is necessary to examine several provisions of the Act which employ the term "victim". Three provisions must be cited in full:

"Victim" means a person who is injured or killed by the act or omission of another person. The definition does not include cases where the injury or death occurs from natural causes, or is self-inflicted, or is not caused by another's act. But it includes at least some cases where the injury or death would not have occurred if another person had done something. It is not necessary here to consider the difficulties inherent in the notion of causation by omission, for the relevant event in the present case is an act - the murder of Mrs. Fagan.

Next, a provision which empowers the Tribunal to make an order for compensation subject to the other provisions of the Act. Section 3 provides:

(1) Where a person is injured or killed by or as a result of the criminal act or omission of any other person (being an act or omission that occurred in Victoria after the commencement of this Act) the Tribunal hereafter in this Act established may, subject to this Act, make an order for the payment of compensation -

(b) where the compensation is in respect of pecuniary loss suffered or expenses incurred, as a result of the victim's injury or death, by a person responsible for the maintenance of the victim - to that person; or

(c) where the victim has died - to or for the benefit of the victim's dependants or any one or more of them or, if there are no such dependants, to any person who incurred expenses as a result of the victim's death.

(2) For the purposes of sub-section (1) "criminal act or omission" includes any act or omission occurring in the course of arresting or attempting to arrest an offender or suspected offender or in preventing or attempting to prevent the commission of an offence.

It is not every victim who may be paid or may attract the payment of compensation; only a person who is injured or killed by or as a result of the act or omission of another which is a criminal act or omission. Sub-section (2) then brings within the scope of relevant events the acts or omissions of police or other persons engaged in the law enforcement activities therein mentioned.

Then s. 14(2)(a) prohibits the Tribunal from making an order for compensation -

unless it is satisfied, on a balance of probabilities, that the victim was injured or killed by the criminal act or omission of some other person;. It is essential, therefore, that there be a "victim" and that the victim should have been injured or killed "by the criminal act or omission" of another. The power conferred upon the Tribunal by s. 3(1) cannot be exercised unless the condition prescribed by s. 14(2)(a) is satisfied.

The grant of the power in s. 3(1) is expressed in terms which appear wider than the condition in s. 14(2)(a) which limits its exercise. In s. 3(1)(a), the person in whose favour an order may be made is a person who is injured "by or as a result of" another's criminal act or omission; by s. 14(2)(a) the Tribunal is prohibited from making an order in favour of such a person unless he is injured "by" another's criminal act or omission. If there be a difference between an injury caused "by", and an injury caused "as a result of", another's criminal act or omission, there is a class of beneficiaries brought in by s. 3(1)(a) only to be excluded by s. 14(2)(a). So capricious an intention should not be attributed to the legislature. There can be no difference in meaning between the words quoted from s. 3(1)(a) and s. 14(2)(a) so far as they import a nexus between the relevant criminal act or omission on the one hand and the death or injury on the other.

A more likely explanation of inserting the phrase "as a result of" may be found in the intention of the legislature that the injury or death of a claimant should be treated as resulting from an act or omission of an offender, even though the injury or death was caused more directly by what occurred in the course of arresting or attempting to arrest the offender or in attempting to prevent him from committing the offence. Provision is made by s. 21 for an order against a person convicted of an offence for the refund of compensation paid under the Act "in respect of injury or death resulting from the act or omission constituting that offence". It may have been thought that where a person is injured by an act done in the course of arresting an offender, for example, the Act should provide that he be treated as having been injured also as the result of the act or omission constituting the offence. It may have been thought that, without that phrase, he would not be held to be injured by the act or omission constituting the offence. But whether this explanation of the phrase "as a result of" be correct, it ought not to be construed as authorizing the making of awards in cases which cannot satisfy s. 14(2)(a), that is, in cases where persons have not been injured or killed "by" another's criminal act or omission. And, in any case which satisfies s. 14(2)(a), the person injured or killed is a "victim".

Other provisions of the Act make it clear that the only classes of beneficiaries under the Act are victims and those who claim through them. Thus s. 15 prescribes the matters in respect of which compensation may be awarded in terms which assume that there is a "victim". There is no head of compensation which might result in an award of compensation except to a victim or to those claiming through a victim. Section 17 prescribes deductions which are to be made and factors to which regard is to be had in determining the amount awarded. The prescribed deductions and factors are applicable only to victims or the dependants of victims. Sub-sections (1) and (2)(c) and (e) of s. 14 provide that certain classes of conduct may or shall bar an award of compensation. The conduct mentioned in these provisions is the conduct of the victim. Thus s. 14(2)(e) provides that the Tribunal shall not make an order for compensation -

if the victim fails, without reasonable cause, to undergo any medical examination he is required by the Tribunal to undergo or to produce or cause to be produced to the Tribunal any medical records, X-ray photographs, or other documents relating to his injury or medical history he is required by the Tribunal to produce. It would be a curious operation to attribute to par. (e) that a victim's claim would be barred by his failure, without reasonable cause, to undergo a medical examination though a person who is not a victim and who claims compensation for an injury could recover compensation despite his unreasonable refusal to undergo a medical examination.

To say that only a "victim" or those who claim through him may be awarded compensation leaves for resolution the question critical to this case: what nexus between a person's injury and the criminal act or omission of which his injury is a consequence must be shown before an award of compensation under the Act can be made in favour of that person? Or, what does "by" mean in the definition of victim in s. 2(1), in s. 3(1) and s. 14(2)(a)? Clearly the word imports a causative relationship. And so the question relates to a criterion for determining what consequences of the criminal act or omission are to be recognized and what consequences are to be refused recognition as having been caused by a particular criminal act or omission. The question is of peculiar difficulty when mental or nervous shock is the only injury suffered by a claimant, for such an injury will often be suffered as a reaction to the death or injury of a person who is more directly or immediately affected by the particular criminal act or omission. Certainly since Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The "Wagon Mound" [No. 1] [3] , and, indeed, before that case (see Chester v. Waverley Corporation [4] ; and cf. Bourhill v. Young, especially per Lord Wright [5] the general test of reasonable foresight has been employed in determining liability in negligence for nervous shock (Mount Isa Mines Ltd. v. Pusey, especially per Walsh J. [6] ). It is irrelevant, of course, to the purposes of the Act to inquire into an offender's liability in tort for mental or nervous shock suffered by a person in consequence of the offender's criminal act or omission. But if it is shown that a claimant would not have suffered mental or nervous shock but for the relevant criminal act or omission, that injury can hardly be treated as too remote to attract an award of compensation if the injury were reasonably foreseeable at the time when the criminal act was done or the criminal omission was made. In the generality of cases (if not in all) an injury which satisfies the test of reasonable foreseeability will be found also to be a reasonable and probable consequence of the relevant criminal act or omission (cf. The "Wagon Mound" [No. 1] [7] ; Chapman v. Hearse [8] ; Mount Isa Mines Ltd. v. Pusey, per Windeyer J. [9] . The Act contains no expression limiting the consequences of a criminal act or omission which are to be taken into account by the Tribunal in awarding compensation (provided they are relevant to the matters specified in s. 15), and it ought not to be construed as imposing a more stringent limit upon those consequences than the limit which governs the liability of a negligent tortfeasor. It is not necessary to determine whether foreseeability marks the outer limits of injuries recognized by the Act as having been caused by a criminal act or omission; it is sufficient that foreseeability marks a limit within which an injury is recognized as having been caused by such an act or omission.

1. [1961] A.C. 388. 2. (1939) 62 C.L.R. 1. 3. [1943] A.C. 92, at pp. 107-108. 4. (1970) 125 C.L.R. 383, at pp. 415-416. 5. [1961] A.C., at p. 422. 6. (1961) 106 C.L.R. 112, at pp. 120-121. 7. (1970) 125 C.L.R., at pp. 397-400.

In the present case, mental and nervous shock was an injury which any young child of Mrs. Fagan was likely to suffer when he or she heard of the manner of Mrs. Fagan's death. No doubt the trauma of seeing their mother's body more easily establishes the causal relationship between her murder and the injuries suffered by the elder three children. But there is no doubt that Jack suffered an injury in the relevant sense and that it was suffered as a consequence of his mother's death. The circumstances of Mrs. Fagan's age and the environment of her home at the time of her murder showed that Mrs. Fagan might have had a young family. Patrick, indeed, was in his cot in the adjoining room. It is manifest that her murder - not merely her death - was likely to cause mental and nervous shock to her young children; it could scarcely do otherwise. In Battista v. Cooper [10] Bray C.J. observed:

It does not lie in the mouth of the murderer to say that he did not foresee and could not have been expected to foresee that his crime would cause injury from shock or other emotional cause to the children of his victim. Agreeing with but applying that observation as relevant to the objective test of reasonable foresight, I am of the opinion that the Tribunal ought to have held that Jack was injured "by" the murder of his mother. The Tribunal failed to make that finding because it misconceived the nature of the test imported by the word "by" in the sections earlier set out, and the Tribunal thus misdirected itself as to the question which it had to determine in Jack's case. The order nisi for review should have been made absolute, the decision of the Tribunal in Jack's case should have been quashed, and the matter should have been remitted to the Tribunal. The appeal to this Court should be allowed, the order of the Full Court set aside and, in its stead, an order made in the terms I have stated. 1. (1976) 14 S.A.S.R. 225, at p. 231.

In this case the Tribunal appeared by counsel as respondent to contest the appellant's case. Where curial proceedings arise out of a matter which is contested between parties appearing before a tribunal, it is not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it (Reg. v. Australian Broadcasting Tribunal; Ex parte Hardiman [11] ). But where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest (cf. Corporate Affairs Commission v. Bradley [12] ) and neither a law officer nor a public official is heard by the court (cf. Reg. v. Cook; Ex parte Twigg [13] ), it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court and, in an appropriate case, to argue against the applicant's case. That is what was done in this case. Here, the Tribunal's function was to determine whether and to what extent a claimant was entitled under statute to a payment out of public moneys. Though the Tribunal was bound to act impartially, it was in a sense the guardian of the moneys appropriated by Parliament to answer the proper claims for compensation under the Act. In proceedings to review its decision, the Tribunal properly represents the public purse, and it was right that the Tribunal should appear by counsel as a party to respond substantially to the application. It follows that the Tribunal should then be treated as an ordinary party in the matter of costs. Therefore I would make an order awarding the applicant his costs against the Tribunal both here and in the Supreme Court.

1. (1980) 144 C.L.R. 13, at pp. 35-36. 2. [1974] 1 N.S.W.L.R. 391. 3. (1980) 147 C.L.R. 15.