Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269; 198 ALR 100; 77 ALJR 1205 - HCA 2003 case summary — Zoe

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Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269; 198 ALR 100; 77 ALJR 1205

[2003] HCA 33

High Court of Australia|2003-06-18|Before: Callinan JJ

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At a glance

Source facts

Court

High Court of Australia

Decision date

2003-06-18

Before

Callinan JJ

Source

Original judgment source is linked above.

Judgment (279 paragraphs)

[1]

For the reasons I gave in Tame and Annetts, I consider that the central issue is whether it was reasonable to require the respondent to have in contemplation the risk of psychiatric injury to the appellants, and to take reasonable care to guard against such injury[7]. Relevant to that issue is the burden that would be placed upon those in the position of the respondent by requiring them to anticipate and guard against harm of the kind allegedly suffered by the appellants.

[2]

As the facts in Tame illustrated so vividly, just as it would place an unreasonable burden upon human activity to require people to anticipate and guard against all kinds of foreseeable financial harm to others that might be a consequence of their acts or omissions, so also it would be unreasonable to require people to anticipate and guard against all kinds of foreseeable psychiatric injury to others that might be a consequence of their acts or omissions. In the case of Mrs Tame, her personal susceptibility raised an additional problem of foreseeability. However, just as advances in medical knowledge have made us aware of the variety of circumstances in which emotional disturbance can trigger, or develop into, recognisable psychiatric injury, so they also make us aware of the implications, for freedom of action and personal security, of subjecting people to a legal requirement to anticipate and guard against any risk to others of psychiatric injury so long as it is not far-fetched or fanciful. In the context of a question of duty of care, reasonable foreseeability involves more than mere predictability. And advances in the predictability of harm to others, whether in the form of economic loss, or psychiatric injury, or in some other form, do not necessarily result in a co-extensive expansion of the legal obligations imposed on those whose conduct might be a cause of such harm. The limiting consideration is reasonableness, which requires that account be taken both of interests of plaintiffs and of burdens on defendants. Rejection of a "control mechanism", such as the need for direct perception of an incident or its aftermath, originally devised as a means of giving practical content to that consideration, does not involve rejection of the consideration itself.

[139]

"4 Extension of liability in certain cases > > (1) The liability of any person in respect of injury caused after the commencement of this Act by an act, neglect or default by which any other person is killed, injured or put in peril, shall extend to include liability for injury arising wholly or in part from mental or nervous shock sustained by: > > (a) a parent or the spouse of the person so killed, injured or put in peril; or > > (b) any other member of the family of the person so killed, injured or put in peril where such person was killed, injured or put in peril within the sight or hearing of such member of the family. > > (2) Where an action is brought by a member of the family of any person so killed, injured or put in peril in respect of liability for injury arising wholly or in part from mental or nervous shock sustained by the plaintiff as aforesaid and claims have been made against or are apprehended by the defendant at the suit of other members of the family of such person in respect of liability arising by operation of subsection (1) out of the same act, neglect or default the defendant may apply to the Court in which the action is brought and that Court may thereupon stay any proceedings pending at the suit of any such other member of the family arising out of the same act, neglect or default and may proceed in such manner and subject to such regulations as to making members of the family of such person parties to the action as to who is to have the carriage of the action and as to the exclusion of any member of the family who does not come in within a certain time as the Court thinks just. > > (3) Where any application under subsection (2) is made the action shall be for the benefit of such members of the family of the person so killed, injured or put in peril as are joined by the Court as plaintiffs pursuant to such application and the Court may give such damages as it may think proportioned to the injury resulting to the persons joined as plaintiffs respectively, and the amounts so recovered after deducting the costs not recovered from the defendant shall be divided amongst the persons joined as plaintiffs in such shares as the Court finds and directs. > > (3A) Where any case to which subsection (3) applies is tried by a judge sitting with a jury, the jury shall find the shares of damages and the judge shall direct in accordance with the finding. > > (4) Any action in respect of a liability arising by operation of subsection (1) shall be taken in the Supreme Court or the District Court. > > (5) In this section: > > 'Member of the family' means the spouse, parent, child, brother, sister, half-brother or half-sister of the person in relation to whom the expression is used. > > 'Parent' includes father, mother, grandfather, grandmother, stepfather, stepmother and any person standing in loco parentis to another. > > 'Child' includes son, daughter, grandson, granddaughter, stepson, stepdaughter and any person to whom another stands in loco parentis. > > 'Spouse' means: > > (a) a husband or wife, or > > (b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984, > > but where more than one person would so qualify as a spouse, means only the last person so to qualify."

[142]

"(1) In my opinion it follows from the plain and ordinary meaning of the words in the statute. > > (2) It seems that four High Court Justices, in obiter dicta ... are of the same opinion[131]. > > (3) To construe s 4(1)(b) as Kirby P has done[132] would mean that it has no function to perform at all. > > (4) If s 4(1)(a) continues to have a function so too should s 4(1)(b). > > (5) If the law as laid down in s 4(1)(b) is to be altered it is for Parliament to do so, not the Courts by a process of construction which seems to deny the provision its plain ordinary meaning and any operation at all. > > (6) There was a policy justification for enacting s 4(1)(b) so as to restrict the rights of family members other than spouses and parents in claims for damages for 'nervous shock'. The cause of action for 'nervous shock' is potentially a 'flood gates' one opening the doors of the Courts to a multitude of such claims. Psychiatric illness often depends on subjective opinion and is potentially a disease of indeterminate reference and all the more so in 1944 when the provision was enacted. As a 'quid pro quo' for allowing family members to be compensated for 'nervous shock' without having to prove reasonable foreseeability of the particular type of damage alleged the legislature apparently considered that for family members more remote than spouses and parents actual presence at, or within hearing of the accident site, should be required as a condition of recovering damages. In other words, the provision seems to have been a legislative compromise in circumstances where compromise was considered reasonable. The prospect of increased road user and work place insurance premiums if there was not some type of perceived curtailment of claims for psychiatric illness provides a policy reason for making it harder for more remote family members than spouse or parent to recover damages. > > (7) If there is ambiguity in the provision, and in my opinion there is not, then a purposive construction is proper and, having regard to (6) above, I consider that such a construction should be given. That would result, in my opinion, in restricting the claims of family members who are more remote than spouse or parent to cases where the death, injury or peril occurred within the sight or hearing of the plaintiff as referred to in s 4(1)(b). Children in general terms have more potential to form fresh relationships and forget mental trauma than do existing parents or spouses. At least that was probably so in 1944."

[148]

There is a difficulty yet to be resolved and not adverted to by the courts below, or the parties in this Court, which arises when either a significant change in the common law is effected by a decision of a court, or, as here, where the decision may have the effect of holding that an enactment extending, and therefore apparently relevantly defining the rights to which it refers, has not finally defined those rights. The difficulty arises because the common law as stated, certainly as stated by this Court is, by a legal fiction, to be regarded as having always been the law, when in practice and truth the law has been different up to the moment of the pronouncement of this Court's decision. One consequence is that actions mounted, and defences pleaded upon the basis of the law as it was previously understood will become worthless. Another is that affairs which have been arranged on the basis of the prior understanding of the law, have to be, if they can be, rearranged, or may be set at nought. Lord Browne-Wilkinson drew attention to these matters in Kleinwort Benson Ltd v Lincoln City Council[140]. I said that they provided reason for caution in judicial activism in Esso Australia Resources Ltd v Federal Commissioner of Taxation[141]. Unfortunately, the law so far has found no way constitutionally to enable courts to prevent or ameliorate the problem by, for example, treating a landmark decision as applying prospectively only, or as having no precedential relevance to actions pending or not yet statute barred. And nor, regrettably, have legislatures generally chosen to intervene to cure potential injustices so arising. To hold that the law now extends beyond what it was when s 4 of the Act was enacted, is to hold that this extension is now and has for some indefinite period in the past, been the law. How this may affect claims earlier not pursued but still not statute barred, and insurance and re-insurance effected by insurers the Court has no means of knowing. The difficulty does not arise however if on its proper construction the relevant enactment can be seen to be truly ambulatory, that is, as speaking for the common law as it develops. These matters indicate a need for caution in reaching the decision that the appellants seek in this appeal.

Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269; 198 ALR 100; 77 ALJR 1205

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Judgment (279 paragraphs)

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Gifford v Strang Patrick Stevedoring Pty Ltd [2003] HCA 33; 214 CLR 269; 198 ALR 100; 77 ALJR 1205 (18 June 2003)