Hancock v Nominal Defendant [2001] QCA 227

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - WHERE NERVOUS SHOCK OR MENTAL DISORDER - COMMON LAW - where respondent's son was killed by the negligent driving of the first defendant - where respondent was informed of the accident the following morning - where initial uncertainty due to impossibility of visual identification as to whether it was the driver or passenger that had been killed - where respondent's relationship to his son was very close - where effect on the respondent of the receipt of the news was immediate and serious - whether a person who negligently causes injury or death to another owes a duty of care to a third person not present at the scene of the incident or its aftermath not to cause psychiatric injury to that person in consequence of hearing about it - consideration of reasonable foreseeability and proximity elements - whether policy considerations compel the imposition of the requirement of direct perception of the relevant incident or its immediate aftermath - consideration of elements involved in "sudden sensory perception"

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MENTAL AND NERVOUS SHOCK - COMMON LAW - where respondent awarded damages for psychiatric injury formerly called nervous shock - whether allowance should have been made for the grief which the respondent would ordinarily have suffered and for its consequences

Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310, considered

Annetts v Australian Stations Pty Ltd (2000) WAR 35, considered

Donaghue v Stevenson [1932] AC 562, referred to

Coates v GIO of New South Wales (1995) 36 NSWLR 1, considered

Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, considered

Barnard v Santam BPK [1998] ZASCA 84; (1999) (1) SA 202 (SCA), considered

McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410, followed

Morgan v Tame [2000] NSWCA 121; (2000) 49 NSWLR 21, considered

Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, referred to

Petrie v Dowling [1992] 1 QdR 661, considered

Pham v Lawson (1997) 68 SASR 357, considered

Reeve v Brisbane City Council [1995] 2 QdR 661, considered

White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455, considered

[1] McMURDO P: I agree with the reasons for judgment of Davies JA.

[2] The appellant's sole contention is that the respondent's claim for psychiatric injury must fail because it did not occur through perception of the motor vehicle accident leading to the death of the respondent's son or its immediate aftermath but rather the respondent was told of it by another. That contention is supported by powerful persuasive authority in England: see McLoughlin v O'Brian;[1] Alcock v Chief Constable of South Yorkshire Police[2] and White v Chief Constable of South Yorkshire Police.[3]

[3] Limiting claims for psychiatric injury in this way is based on policy arguments: see McLoughlin v O'Brian.[4]

[4] Psychiatrist Dr Curtis found the respondent to be suffering from a post-traumatic stress disorder reaction to his son's death constituting a chronic major depressive disorder. Dr Curtis noted that confrontation with the event included news of the event which was more horrific for some people than actually being at the motor vehicle accident scene; the respondent was encouraged to distance himself from his son's death which was a mistake for him.

[5] Neither the psychiatric evidence given in this case, nor the general body of psychiatric opinion, provides any support for the logic of this control mechanism for limiting claims for psychiatric injury: see the comments by Kirby P (as he then was) in Coates v Government Insurance Office of New South Wales.[5]

[6] The Law Commission of England has considered the matter in its report "Liability for Psychiatric Illness".[6] In the Executive Summary the report comments on the restrictions placed on the duty of care owed to plaintiffs who suffer psychiatric injury upon being told of the death of a loved one:

"3. These controls are drawn unnecessarily tightly. The present law produces arbitrary results. Our principal recommendation (which was overwhelmingly supported on consultation) is that the restrictions based on the plaintiff's physical and temporal proximity to the accident and the means by which he or she learnt of it should be removed; but the first control - a need for a close tie of love and affection - should be retained."

[7] Whilst the appellant would succeed on the current state of the law in England, there is no binding Australian authority which controls this Court's decision on this point.

[8] There is a body of Australian judicial opinion which takes a contrary view to the House of Lords. Gibbs CJ in Jaensch v Coffey[7] declined to adopt Lord Wilberforce's comments in McLoughlin as to the need for close proximity in space as well as in time and that the shock must come through sight or hearing of the event or its immediate aftermath, noting that: "The law must continue to proceed in this area step by cautious step".[8]

[9] Kirby P in Coates v Government Insurance Office of New South Wales,[9] dismantled the artificial control mechanism limiting damages for psychiatric injury by secondary victims to those in actual physical proximity to the occurrence of the tort or to its immediate aftermath. Kirby P referred to the outdated nature of the rule in the light of modern telecommunications including the widespread use of mobile telephones.[10]

[10] Although Kirby P was in dissent, the earlier passages to which I have referred and the following observations were not in conflict with the majority:

"The law should now recognise that, at least from a medical understanding of the outdated legal denomination of 'nervous shock', it is as much the direct emotional involvement of a plaintiff in an accident or perilous situation, as his or her physical presence at the scene or directly at its aftermath that is pertinent to the level and nature of the injury suffered, and the consequent psychological damage."[11]

[11] I respectfully agree with those observations.

[12] In Pham v Lawson[12] the Full Court of the Supreme Court of South Australia considered this issue. Lander J, with whom Bollen J agreed, adopted Kirby P's reasoning in Coates and noted:

"There is no doubt that it is foreseeable that if a tortfeasor injures or kills a child that child's mother might suffer injury in receiving the information of the injury or death. There is no reason in logic to exclude those persons from claims for nervous shock. The reason to deny them a right to claim lies in policy in restricting the liability of a tortfeasor to the direct consequences of his or her tort and to those who were in some way close in relationship to the person injured or killed, or were at the aftermath, which includes the hospital."[13]

After discussing s 35A(1)(c)(ii) Wrongs Act 1936 (SA) which allows a limited class of persons who were not at the accident scene to recover for nervous shock, Lander J found that there was:

"... no reason in policy to deny a parent, spouse or child of a person killed or injured or endangered in an accident a right to recover for nervous shock caused only by the receipt of information."[14]

[13] A number of Australian States and Territories, Queensland not included, have clarified the matter by statutory provisions allowing close relatives to sue for damages for psychiatric injury. See, for example, s 77, Motor Accidents Act 1988 (NSW); s 141, Motor Accidents Compensation Act 1999 (NSW); s 151P, Workers' Compensation Act 1987 (NSW); s 4(1) Law Reform (Miscellaneous Provisions) Act 1944 (NSW); s 35A(1)(c), Wrongs Act 1936 (SA); s 23(1) Law Reform (Miscellaneous Provisions) Act 1955 (ACT); s 24, Law Reform Miscellaneous Provisions Act 1992 (NT).

[14] The South African Supreme Court of Appeal in Barnard v Santam BPK[15] unanimously rejected the requirement of the English cases that psychiatric injury must be induced by direct personal perception of traumatic stimuli or the immediate aftermath. The appellant's 13 year old son was killed in a bus accident; she suffered psychiatric injury when her husband told her of their son's death. Deputy Chief Justice Van Heerden, with whom the remaining four members of the court agreed, cited with approval Kirby P's comments in Coates, rejected the notion that it was necessary to exclude liability to all hearsay victims of torts who suffered psychiatric injury,[16] and concluded that considerations of reasonableness and fairness did not preclude a finding that the respondent's negligence was the legal cause of her shock. [17]

[15] On the other hand, the Full Court of the Supreme Court of Western Australia in Annetts v Australian Stations Pty Ltd[18] recently adopted the approach taken by Windeyer J in Mount Isa Mines Ltd v Pusey,[19] Brennan J in Jaensch v Coffey[20] and the House of Lords in White[21] and Alcock[22] noting:

"Despite the criticisms of its restrictive consequences, the direct perception requirement satisfies the policy issues that have long troubled Judges at the highest level, establishes criteria for an appropriately close relationship of proximity, and has the undoubted merit of relative certainty."[23]

[16] This is also the Canadian approach. The Saskatchewan Court of Appeal[24] and the British Columbia Court of Appeal[25] have followed the English cases, concluding that damages for nervous shock are not recoverable where a secondary victim has merely been told of an accident, resulting in nervous shock.

[17] I prefer the approach taken by Kirby P in Coates and Lander J in Pham v Lawson. The question posed by Lee J in Reeve v Brisbane City Council[26] remains apposite:

"... on what rational basis can there be imposed a duty to take reasonable care to avoid a foreseeable risk of injury by means of nervous shock in respect of a person willing and able to attend to the scene of the accident or its aftermath but not in respect of a person unwilling or by circumstances out of their control unable to attend? How can the plaintiff's unfortunate presence at or fortuitous absence from the scene of the accident or its aftermath be said in all cases to necessarily affect the nature of the defendant's negligent actions or his responsibility for the consequences of them? It is only if an acceptable answer to these questions can be found that there can, in my opinion, be any justification for an inflexible condition of the nature suggested."

[18] Like Lee J, I am unable to find an acceptable answer.

[19] I accept there are policy considerations which require the containing of damages for psychiatric injury but it is neither logical, just, nor in the interests of public policy to require direct perception of the tort or its immediate aftermath to establish an entitlement to damages. Sufficient control over actions brought by secondary victims of torts for psychiatric injury can be provided by requiring that the duty of care is only owed to those who have close ties of love and affection to the victim of the tort. Additionally, damages will always be limited to those relatively uncommon cases where there is a factual finding that the psychiatric illness, rather than a normal grief reaction, has been legitimately caused by the commission of the tort. Where, as here, those facts are established, there is no sound reason in logic, justice or public policy requiring attendance at the scene of the accident or its immediate aftermath before entitlement to damages.

[20] I agree with Davies JA that the appeal against liability must fail. I also agree with Davies JA for the reasons he has given that the appeal against quantum must also fail. Consequently the appeal should be dismissed with costs.

[21] This is an appeal by the Nominal Defendant from a judgment for $48,500 damages, of which $40,000 was for general damages, for psychiatric injury formerly called nervous shock. The appellant contends that the driver of a motor vehicle, who was the first defendant in the action, owed no duty of care to the respondent plaintiff who was the father of a 27 year old man killed by the negligent driving of the first defendant. In the alternative the appellant contends that the amount of damages awarded was too high.

[22] The first of these contentions involves a question of principle upon which there is no authority binding on this Court as there was none binding on the learned trial judge. That question is whether, and if so in which circumstances, a person who, by a negligent act, causes injury or death to another, may owe a duty of care to a third person who was not present at the scene of the incident which caused the injury or death or its aftermath but heard about it from another, not to cause that person psychiatric injury in consequence of so hearing about it.

[23] Although Mr Douglas SC for the appellant initially put his argument on alternative bases of -

(a) a need to prove a sudden sensory perception of the tort or its aftermath and a failure to do so and

in the end he conceded that if foreseeability were the only test his Honour was correct. He was therefore content to rely on the submissions that a duty of care not to cause psychiatric injury to a person who is not physically injured is owed only if he or she suddenly sensorily perceives the tort or its aftermath, and that the appellant did not do that. No issue therefore arose in this appeal as to whether the negligence of the first defendant caused the respondent psychiatric injury or whether an injury of that kind was reasonably foreseeable. It will be necessary to define the first of these submissions with greater specificity but before doing so something should be said about the facts of this case and some relevant findings made by the learned trial judge.

[24] On 28 May 1995 the respondent's son was killed in an horrific single vehicle motor car accident. He was the sole passenger in the car. He may have been decapitated. In any event his body was only able to be identified by means of his dental records. How much of the horrific circumstances of the accident in which this young man was killed and of the damage to his body was communicated to the respondent is unclear, principally because the condition which the respondent then suffered caused subsequent impairment of his memory of these events.

[25] The accident occurred late at night and the respondent first heard of it at 9.30 am the following morning when his former mother-in-law, the mother of his deceased first wife, rang him and told him that she had some "bad news, terrible news and let me know". When asked what he felt when he received the news he said:

"It is pretty hard to tell. Pretty lost. When she rang I thought it was the grandfather and she said it was Dean, so I was just - excuse me but - it was a shock. Still is. I felt nothing, really, but I remember screaming, that was about it, and ringing Susan.

Your current wife? -- Current wife, and - and from there on was a bit of a lousy day, you would say, from there and - but it was a case of numbness, shock, and disbelief and it still was for the whole day because they couldn't identify the one that got killed. So it was in and out of hell until about mid-afternoon to when the dentist did it by teeth. That's all I can remember, other than being over there and backwards and forwards.

Have you ever been to the scene where the accident occurred? -- Only that particular day after the funeral. After the funeral we drove out because someone was having people at their home and you have to go down Mount Lindsay Highway, friends of Dean's. So we went down there and I asked to stop and I walked around there and had look at the marks on the road, you know, just tried to see what actually would have happened at that particular time.

What were you thinking whilst you were doing that? -- Thinking that he didn't have a chance. There were four or five gum trees around the - oh, the foot, cut off ground level and obviously it was the car, to my knowledge, had gone passenger side sideways. Thinking not much really. There were bits and pieces of car still there. Nothing, really.

Is that as a matter of choice that you have not returned there? -- In a way, yeah. Just can't."

[26] Then in cross-examination the following passage occurred:

"MR WILSON: Mr Hancock, I have to ask you these questions. I appreciate that the death of your son was and is a distressing experience for you, but you were informed of the death of your son by telephone? -- That's right.

That was the day after the accident? -- Well, it happened on the Sunday evening and I was informed on the morning.

And you were informed by Dean's grandmother, your former mother-in-law? -- That's right.

Were you given any description as to how the accident had occurred? -- On the phone by ----

You were simply told the news, your son has been killed in an accident? -- Mmm, that's right, that's all.

Were you told it was in a motor vehicle accident? -- Dean has been killed. That's all I can remember. Dean has been killed.

So you didn't know the circumstances? -- Not at the particular time but I - no, no, don't think so.

You weren't required to identify the body? -- No, no, there was no - it couldn't have - talking to the police there was no need to come down to the morgue because we can't identify him.

At the time the news was conveyed to you there was no certainty that your son had been killed? -- That's right.

You also felt numbness and shock, you said? -- Well, I was told Dean was killed and probably we knew deep down that he was, but if you go through the experience where there is a slim hope it is the other fellow, grab it and I lived with that probably until two o'clock."

[27] It is plain from the above answers that, on that day, he was told much more than merely the fact of his son's death. He was told that

"... there was no need to come down to the morgue because we can't identify him".

"... it was a case of numbness, shock, and disbelief and it still was for the whole day because they couldn't identify the one that got killed."

"... it was in and out of hell until about mid-afternoon to when the dentist did it by teeth."

[28] It appears that the respondent had first been told that it was uncertain that it was his son or the driver of the car who had been killed and continued for part of that day to live in hope that it was not his son; that he knew the deceased was so badly injured as to make visual identification impossible; and that he was informed, probably by police, about 2.00 pm that day that, by means of dental records, his son had been identified as the deceased.

[29] It also appears from the evidence of the respondent's wife that the respondent had concerns that his son had been decapitated in the accident. However it is not clear when he first expressed those concerns or what communication to him led to those concerns.

[30] The respondent was very close to his son. The latter commenced his apprenticeship with the respondent after leaving school in Grade 9 and left that apprenticeship for his final year only because difficulties in the respondent's first marriage were making it difficult for the son in his relationship with both his father and his mother. After their divorce, which was before the son's death, both intended that the son would return to the business full time and he was working in it at the time of his death. The respondent described the relationship between him and his son as an inseparable friendship: "I was his best mate".

[31] In describing the effect on him of the receipt of the news on 29 May the respondent was discursive and his answers to questions were not always responsive as his Honour noted. But the effect of his answers was that it was immediate and serious.

[32] Dr Curtis, a psychiatrist whose evidence the learned trial judge accepted noted signs and symptoms, within the first month or so of receipt of the information, indicating the presence of an acute stress disorder. He described the respondent's condition as a post-traumatic stress disorder reaction to his son's death. He thought that this was a major depressive disorder which was chronic. When it was put to him, in cross-examination, that to be confronted with an event so as to be psychologically damaged by it a person must actually see it or be there when it happens, not merely be told about it afterwards, he said:

"I think confrontation with the event can include news of the event and that in some ways for some people might in fact be more horrific than actually being there and seeing the crash."

The doctor had earlier said in his report that the respondent, who did not go to the morgue or attend the inquest into his son's death because he was too upset, had distanced himself from his son's death which was a mistake in terms of its effect on his psychiatric state.

[33] Dr Dodds, another psychiatrist whose evidence his Honour also accepted, also noted signs indicating the early presence of an acute stress disorder. He also described the respondent's condition as a chronic post-traumatic stress disorder. Dr Dodds also shared the view that a post-traumatic stress disorder can be caused by hearing of, as opposed to the witnessing of, a traumatic event.

[34] His Honour described the respondent's feelings immediately on receipt of the news of his son's death, as described by him, as "immense shock combined with some hope that Dean had not been killed, a sense of loss, indecision, lack of motivation and the extreme sensitivity to distressing news on the TV". Having accepted the evidence of Doctors Curtis and Dodds his Honour also made the following findings:

"In my view the signs and symptoms of which Dr Curtis spoke as indicating the presence of an acute stress disorder, within the first month or so, are attested to by the evidence of the plaintiff and given some support by Dr Dodds' notes appended to exhibit 2. Once the early presence of an acute stress disorder is accepted then one can accept the final diagnosis made by Dr Curtis and by Dr Dodds.

Dr Curtis shares Dr Dodds' opinion that a post traumatic disorder can be caused by the hearing of, as opposed to the witnessing of, a traumatic event. That event was, in the plaintiff's eyes, particularly violent, and unusual, and of course it was quite unexpected.

Thus I accept that the receipt of the news of Dean's death caused the plaintiff an acute stress disorder, giving way to a post traumatic stress disorder from which he still suffers."

[35] His Honour also concluded, on the basis of evidence before him of other tragedies which had befallen the respondent and the way in which he had reacted to them, that he was not abnormally sensitive to psychiatric injury resulting from the death, especially the sudden and unexpected death, of close family members.

[36] The phrase "sudden sensory perception" adopted by Mr Douglas in his submissions derives from the judgment of Brennan J (as his Honour then was) in Jaensch v Coffey[27] where, after saying that the notion of psychiatric illness induced by shock is a compound idea the elements of which are psychiatric illness and shock which causes it, his Honour said:

"I understand 'shock' in this context to mean the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognizable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential."

[37] As Spigelman CJ said, in effect, in Morgan v Tame[28] the phrase "sudden sensory perception", as used by Brennan J, involves two elements:

2. direct perception of the event or its aftermath.

Before this Court Mr Douglas did not attempt to separate these elements. However I think it is necessary to do so because of the trial judge's findings of fact that the receipt of the news of his son's death caused the respondent's acute stress disorder which appeared at an early stage and became a post traumatic disorder. In other words it was the assault on the respondent's senses by what was said to him on 29 May which caused his psychiatric injury.

[38] Mr Douglas did not seek to contest that finding. However, notwithstanding his Honour's finding that the respondent was not obviously sensitive to psychiatric injury, including such injury caused by the receipt of a communication such as he received, he did submit that:

1. the psychiatric injury which the respondent suffered was of the kind which a person of normal fortitude would not suffer unless exposed to news of an horrific kind; and

2. the respondent was not so exposed because he was told merely that his son had died.

[39] On the assumption which I am prepared to make for the purpose of this appeal that the appellant was not liable for psychiatric injury which would not foreseeably have been suffered in the circumstances by a person of normal fortitude, nevertheless neither of the propositions advanced was supported by the evidence. He was not told merely that his son had died. In the first place, because for some time on that day there was uncertainty as to whether it was his son or the driver of the car who had been killed, the respondent veered between hope and despair. Secondly the respondent was made aware that whoever was killed was so badly injured as to be visually unrecognizable.

[40] Nor was there evidence that a person of a normal fortitude would not suffer an injury of this kind unless exposed to news of an horrific kind. On the contrary Dr Curtis said no more than that an injury of this kind would not necessarily result merely from the communication of the fact of death. And it was reasonably foreseeable that communication of information of the kind which was communicated to the respondent on 29 May would cause injury of the kind which he suffered. In fairness to Mr Douglas, however, it should be said that the above submissions were made before he made the concession that if reasonable foreseeability was the only test, his Honour was correct. Accordingly I think it correct to assume that, in making that concession, he abandoned those submissions. In any event, in my opinion, they must fail.

[41] It follows, in my opinion, that the first element comprehended by the phrase "sudden sensory perception" was decided against the appellant by factual findings which are unassailable; that the respondent's psychiatric injury was foreseeably caused by a sudden assault on his senses on 29 May. It is therefore unnecessary for this Court to consider whether, as Brennan J held in Jaensch and as the majority of the court held in Morgan, a sudden assault on the senses is a necessary element in proof of liability for psychiatric injury in a case of this kind.[29] I would therefore prefer to leave this question open until it is necessary to decide it.[30] However it will be necessary to refer to the difficulty in reconciling that view with modern knowledge of psychiatric illness.

[42] I turn now to the law in respect of the second element.

[43] The English law on this element is substantially as contended for by Mr Douglas. A duty of care is owed only to persons, not themselves physically injured by a tort, who directly perceive the tort or its aftermath. That law may be found in three decisions of the House of Lords. [31]

[44] In the first of these cases, McLoughlin v O'Brian, a wife and mother who neither saw nor heard the accident in which one of her children was killed and her husband and other children were injured, nor went to the accident scene, was permitted to recover damages for psychiatric injury because, having come upon them at the hospital soon after the accident when they were in much the same condition as they were immediately after the accident, she was said to come within the "aftermath doctrine". Lord Wilberforce, whose views were substantially adopted in the second and third of those cases, after summarizing the previous law, stated three matters[32] which, he said, determined and thereby limited in such a case the scope of the duty which might otherwise arise from the doctrine of foreseeability.[33] These were the class of persons whose claims should be recognized, that is, the closeness of the tie between the person injured or killed and the plaintiff; the proximity in time and space to the accident, that is, the closeness to the accident of the event which was the immediate cause of the psychiatric injury; and the means by which the psychiatric injury is caused, that is, whether by seeing or hearing the event or its immediate aftermath or by seeing it reproduced on television or hearing of it on the radio or from some other person. Both the second and third of these encompasses the so-called aftermath doctrine which the House of Lords incrementally extended in that case. But Lord Wilberforce said that the "shock"[34] must come through sight or hearing of the event or its immediate aftermath, not merely through being told about it by a third party.[35]

[45] Lord Wilberforce thought that these control mechanisms gave effect to the need for proximity which he saw inherent in Lord Atkin's statement in Donoghue v Stevenson[36] that a duty of care is owed to "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected ... ". There were, he thought, policy arguments against a wider extension of liability.[37]

[46] Those control mechanisms, in particular the requirement that the psychiatric injury must come through sight or hearing of the event or its immediate aftermath, were applied in the second of these cases, Alcock v Chief Constable of South Yorkshire Police[38] to deny recovery to persons whose relatives died or were injured when they were crushed in an over crowded football stadium because of the negligence of the defendant. None of the plaintiffs saw the injuries being inflicted or their immediate aftermath; some saw the disaster from other parts of the stadium without being able to identify those injured, others saw it on television and others again heard about it by other means. Two plaintiffs who lost a son and one who lost her fiance watched the disaster on television but not in a way which enabled individuals involved to be identified. Another plaintiff was a man present at the stadium, who witnessed the scenes of disaster in which two of his brothers were killed.

[47] It was accepted in White v Chief Constable of South Yorkshire Police the third of these cases, that Alcock established that Lord Wilberforce's control mechanisms were cumulative; a person who suffers reasonably foreseeable psychiatric injury as a result of another person's negligently inflicted death or injury cannot recover damages unless he can satisfy three requirements:

(i) that he has a close tie of love and affection with the person killed or injured;

(ii) that he was close to the incident in time and space; and

(iii) that he directly perceived the incident or its aftermath rather than, for example, hearing about it from a third person. [39]

[48] In White claims by police officers arising out of the same disaster were rejected. That case involved questions of an employer's duty to his employees and a tort-feasor's duty to rescuers, neither of which arises here.[40]

But the case is notable for the application of the three control mechanisms in the way just referred to[41] and the restatement by Lord Steyn of Lord Wilberforce's policy considerations.[42]

[49] Four further points may be made about these cases before departing from them. The first is the rigidity with which Lord Wilberforce's control mechanisms were applied in them. They were not stated or applied as matters merely to be considered in fixing, as a matter of policy, the limits of a duty of care but rather as requirements which must be cumulatively satisfied for a duty of care to lie. Of particular relevance to the present case was Lord Wilberforce's requirements, already referred to, that the "shock" must come through sight or hearing of the event or of its immediate aftermath;[43] that by immediate aftermath he meant coming very soon upon the scene or the victim;[44] and that by sight and hearing he did not mean to include communication from some third party.[45] That is the way in which those control mechanisms were applied in Alcock and White to deny liability. And in White Lord Hoffman said it was too late to go back on these control mechanisms and,[46] it would seem, their application in this way.

[50] The second is the dubious status of a requirement that psychiatric injury must have been induced by a sudden assault on the senses. Lord Wilberforce did not mention any such requirement and his control mechanisms do not advert to it even implicitly. In Alcock it was stated as a requirement by Lords Keith[47] Ackner[48] and Oliver.[49] However in White it was mentioned only by Lord Goff who rejected it as a requirement[50] and in the other speeches in that case phrases such as "psychiatric injury", "psychiatric damage" and "psychiatric harm" replaced "nervous shock".[51] That may be because the requirement that the psychiatric injury must be induced by a sudden sensory assault was, by then, seen not to conform to modern medical opinion of the causes of psychiatric injury.

[51] This can be seen from the comment about the term "shock-induced" by the Royal College of Psychiatrists Mental Health Law Group quoted by the Law Commission in its report Liability for Psychiatric Illness to which reference was made in White:[52]

"The term is vague, has no psychiatric meaning and is emotively misleading. ... The requirement to fit the evidence around the concept of whether or not the disorder is 'shock induced' has no scientific or clinical merit. It is simply playing with words."

For reasons I have already given it is unnecessary to decide whether a sudden sensory assault should any longer be considered to be a necessary requirement or, indeed, whether it is open to this Court to decide that. But it is necessary to recognize the requirement for what, in reality, it is: it is, and is no more than another control mechanism[53]

imposed by defining foreseeability as foreseeability of psychiatric injury by shock, rather than as foreseeability of psychiatric injury by perception of death or injury to another.[54]

[52] The third is that their Lordships did not see the third control mechanism - that the plaintiff must directly perceive the incident or its aftermath rather than hear about it from a third person - as part of foreseeability.[55]

Instead they saw it as something required as a matter of policy to limit the duty of care which would otherwise arise from the application of the foreseeability principle.

[53] The fourth is that the cumulative application of Lord Wilberforce's control mechanisms in White resulted in a decision which was inconsistent with that of the High Court of Australia in Mount Isa Mines Ltd v Pusey.[56] Nothing said in Jaensch v Coffey[57] casts any doubt on the correctness of Mount Isa Mines Ltd at least as far as it relies on the relationship of employer and employee.[58]

[54] The leading case in this country is Jaensch v Coffey.[59] In that case a wife who suffered psychiatric injury because of what she saw and was told at the hospital to which her husband had been admitted with serious injuries caused by the negligent driving of another was held to be entitled to recover damages for that injury from that other person notwithstanding that she did not see or hear the accident or visit the accident scene. Its facts are therefore similar to those in McLoughlin and Gibbs CJ saw McLoughlin as part of the logical progression of the development of the law.[60] However this case was arguably an extension of McLoughlin because the injury in this case was caused, in part, by what the plaintiff was told at the hospital as well as by what she saw there.

[55] Gibbs CJ thought that Lord Wilberforce's control mechanisms were "relevant elements"[61] and that the first, the relationship between the person killed or injured and the plaintiff was of the greatest importance. His Honour thought that where the relationship was close and intimate there was the requisite proximity and recovery was defensible on policy grounds.[62] However he expressed reservations about Lord Wilberforce's other control mechanisms, especially the third of them, saying that "the law must continue to proceed in this area step by cautious step".

[56] Gibbs CJ and Deane J, like Lord Wilberforce, saw the rationale for control mechanism as proximity,[63] derived from the above quoted passage from Donoghue v Stevenson. However Deane J's description of proximity, which Gibbs CJ appeared to accept,[64] whilst not referring to Lord Wilberforce's control mechanisms, appears to be more general versions of them. His Honour said:

"It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained."[65]

His Honour's notion of physical proximity is similar to Lord Wilberforce's proximity in time and space, his circumstantial proximity would embrace Lord Wilberforce's closeness of the tie between the person injured or killed and the plaintiff and his causal proximity is a broader version of Lord Wilberforce's means by which the injury is caused.

[57] In addition to stating these aspects of proximity more broadly than Lord Wilberforce's control mechanisms his Honour did not seek to apply them with the same cumulative rigidity with which the House of Lords applied Lord Wilberforce's requirements. His Honour thought that the rationale for the distinction between contemporaneous observation at the scene of the accident, in which the common law accepts that liability may lie, and subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident, as in nursing a disabled person subsequent to immediate post-accident treatment, in which the common law does not accept that liability lies, lay in considerations of causal proximity, as his Honour had defined it in the above passage, in that:

"... in the one class of case the psychiatric injury results from the impact of matters which themselves formed part of the accident and its aftermath, such as the actual occurrence of death or injury in the course of it, whereas, in the other class of case, the psychiatric injury has resulted from contact with more remote consequences such as the subsequent effect of the accident upon an injured person."[66]

His Honour went on to say that causal proximity was a better explanation for this distinction than physical proximity because it was less arbitrary and better attuned both to legal principle and considerations of public policy. His Honour then proceeded to consider the question whether the requirement of proximity precluded recovery in a case where, like this, reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident and said: [67]

"It is somewhat difficult to discern an acceptable reason why a rule based on public policy should preclude recovery for psychiatric injury sustained by a wife and mother who is so devastated by being told on the telephone that her husband and children have all just been killed that she is unable to attend at the scene while permitting recovery for the reasonably, but perhaps less readily, foreseeable psychiatric injury sustained by a wife who attends at the scene of the accident or at its aftermath at the hospital when her husband has suffered serious but not fatal injuries."

However his Honour found it unnecessary to pursue that question in that case.

[58] Murphy J thought that any restriction on recovery should be based on policy considerations and that the court should not adopt a view of public policy more restrictive of recovery than had been adopted by the Australian legislatures which had dealt with the matter;[68] that is that in the case of parents and spouses recovery should be limited only by foreseeability and causation but that in the case of other relatives it should be limited also by a requirement that the accident occur within the sight or hearing of the plaintiff. [69]

[59] Brennan J, whilst rejecting Lord Wilberforce's control mechanisms, saying that they were appropriately taken into account by the general principles of causation and reasonable foreseeability,[70] defined foreseeability as foreseeability of injury by shock, as already mentioned defined "shock" as a sudden sensory perception and, in effect, defined "sensory perception" to mean direct perception - by seeing, hearing or touching - thereby excluding injury induced by "mere knowledge" of a distressing phenomenon.[71] Having so limited foreseeability by means of these control mechanisms, his Honour rejected proximity as a requirement additional to foreseeability and causation.

[60] Dawson J thought that, in cases of psychiatric injury, questions of policy limited liability[72] but he did not identify what those policy considerations were. However he said that it "appears to be accepted" that there is no liability for shock brought about by communication by a third party.

[61] It would not be unreasonable to think that, in the light of the above passages, Murphy J and Deane J would have permitted recovery in a case such as this. Whether Gibbs CJ would have done so would seem to depend on whether he thought that it represented the next "cautious step" and that it was appropriate to take it. On the other hand it seems likely that both Brennan J and Dawson J would have refused recovery.

[62] None of the other members of the Court specifically embraced Brennan J's definition of shock and consequently his control mechanism that psychiatric injury must result from a sudden sensory assault. Deane J, and presumably Gibbs CJ, rejected the requirement, at least impliedly, by Deane J's explanation of causal proximity as the reason for excluding the impact of more remote subsequent events.

[63] For about a decade after Jaensch, proximity became accepted by the High Court as a universal conceptual determinant, additional to foreseeability, in cases of negligence.[73] That appears no longer to be the case.[74] However that has not necessarily diminished the relevance of the factors referred to by Lord Wilberforce and by Deane J in determining whether, in a case of this kind, a duty of care lies or, put another way, whether there should be some limitation on liability, based on notions of nearness or closeness, in addition to foreseeabilty and, if so, what that limitation should be.

[64] Since Jaensch the question of the need to prove direct perception of the accident or its aftermath in a case of pure psychiatric injury has been considered three times in intermediate appellate courts in Australia, in 1995 in Coates v GIO of New South Wales,[75] in 1997 in Pham v Lawson[76] and in 2000 in Annetts v Australian Stations Pty Ltd.[77]

[65] In Coates the majority, Gleeson CJ and Clarke JA upheld the decision of the trial judge that neither plaintiff, children of a man killed in a motor vehicle accident, suffered psychiatric injury. They therefore found it unnecessary to consider whether the relevant legislative provision,[78]

intended to extend liability, also relevantly restricted it or whether, if it did not, the negligent defendant owed the appellants a duty of care not to cause psychiatric injury notwithstanding that neither witnessed the death of their father or its immediate aftermath.

[66] Kirby P, who dissented, decided both of these questions in favour of the plaintiffs. It is of course only the second of them which is relevant here. In deciding that question in the plaintiffs' favour his Honour referred to difficulties in the notions of immediate aftermath and direct perception to which I shall return. But his Honour described the "logic" which traditionally prohibits recovery where a plaintiff has been told of the incident and its effects, as opposed to directly perceiving the incident, as unsustainable. His Honour also said that such suggested rule was hopelessly out of contact with the modern world of telecommunications. [79] The cause of the injury is the same and is as direct and immediate in the first case as in the second.

[67] In Pham the Full Court of South Australia permitted recovery to a mother who suffered psychiatric injury upon hearing of the death of her seven year old daughter in a road accident caused by the negligence of the defendant. The injury was, it seems, caused substantially by what she was told but also partly by her driving past the accident scene on her way to the hospital to which her injured husband and son had been taken, seeing them injured in the hospital and some subsequent events including, at her own insistence, dressing her deceased daughter for her funeral. In this respect the case was like Jaensch. However the majority of the court concluded that if, contrary to the view which they expressed, the sole cause of the injury was what the plaintiff had been told, she would still have recovered. In reaching that conclusion they relied principally on the dictum of Kirby P referred to above. They also referred to a 1987 amendment to the Wrongs Act (South Australia) which limited damages for mental or nervous shock to those physically injured and "a parent, spouse or child of a person killed, injured or endangered in the accident". [80] Consequently, they said, there was no policy reason for denying recovery.

[68] In Annetts claims for damages for psychiatric injury by each of a mother and father alleged to have been caused by what they heard and saw following the disappearance and subsequent death of their 16 year old son in remote country in Western Australia due to the negligence of the defendant were rejected. The boy disappeared from his place of work on a pastoral property in Western Australia in December 1986 and died in the desert a day or two later. After extensive searches his decomposed body was found in April the following year. The plaintiffs at all times lived in New South Wales. They were informed of his disappearance by telephone in December 1986 and most of their communications with police and others involved in the searches thereafter were by telephone although they both visited Western Australia on several occasions during the period in which searches were being conducted. In April they were informed of his probable death and the father once again visited Western Australia and identified a photograph of a skeleton as that of his son.

[69] The matter came before the court on a preliminary issue on admission of some facts alleged in the statement of claim and assumption of others. This had a number of unsatisfactory consequences, one of which was that the court had to consider the matter on alternative scenarios; that the appellants suffered psychiatric injury in consequence of receipt of information in December 1986 that their son was missing and that they suffered it in consequence of receipt of the information in April 1987 that he had died. On each of these alternative scenarios the court decided against the appellants on three bases.

[70] The first of these was that the appellants failed to prove reasonable foreseeability of psychiatric injury. There were two reasons for this. The first was that it was not reasonably foreseeable that persons of normal fortitude would have suffered psychiatric injury on either scenario. And the second was that it was necessary to prove sudden sensory perception in the sense of a sudden assault on the senses and this was not established.

[71] The second basis was that which is relevant here; that neither appellant directly perceived the incident or its aftermath. And the third, which was in the alternative to the second, was that, on either scenario, because no facts were conveyed which made the situation horrifying and because of the distance involved and, additionally on the second scenario, because of the lapse of time and likely consequences thereof, causal proximity was not established.

[72] With respect to the second of these bases Ipp J, who delivered the principal judgment, said:

"In my opinion, the views of Windeyer J in Mount Isa Mines Ltd v Pusey and Brennan J in Jaensch v Coffey and those of the House of Lords in White and Alcock should be followed. Despite the criticisms of its restrictive consequences, the direct perception requirement satisfies the policy issues that have long troubled judges at the highest level, establishes criteria for an appropriately close relationship of proximity, and has the undoubted merit of relative certainty."[81]

[73] Pidgeon J agreed with those reasons. The Chief Justice, who also agreed with them, added, after referring to some facts:

"I agree that this did not satisfy the direct perception requirement which, as Ipp J has demonstrated, is a requirement accepted by Windeyer J in Mount Isa Mines v Pusey and Brennan J in Jaensch v Coffey, and required by the House of Lords in White v Chief Constable of South Yorkshire; and Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310."[82]

[74] Since Jaensch the question has also been considered twice by single judges of Supreme Courts. In Petrie v Dowling[83] the plaintiff's daughter, who had been riding a bicycle, was killed as a result of the negligent driving of the defendant. The plaintiff was initially informed that her daughter had been in an accident and had received gravel rash and concussion and been taken to hospital. She went to the casualty section of the hospital where she was bluntly informed that her daughter had died. She recovered damages for her psychiatric injury as a result of being so informed. The learned trial judge recognized that, unlike the cases to which he had been referred, this was one in which the plaintiff's injury was caused solely by something said to her and not by something seen or by a combination of things seen and heard. However his Honour adopted what Deane J had said in Jaensch as to the difficulty in discerning a reason for distinguishing between being told on the telephone and being at the scene of the accident or its aftermath in terms of liability.

[75] In Reeve v Brisbane City Council[84] a claim for psychiatric illness by a widow whose husband was killed by the negligence of the defendant failed because she failed to show that her illness was caused by the initial shock of his death rather than by other, mostly subsequent events. Her psychiatric illness first emerged only 18 to 24 months after his death. However his Honour also held that the plaintiff's failure to perceive her husband's accident or its aftermath provided no insurmountable obstacle to the existence of a duty of care being owed by the defendant in respect of nervous shock. [85] His Honour had earlier asked the following rhetorical questions:

"on what rational basis can there be imposed a duty to take reasonable care to avoid a foreseeable risk of injury by means of nervous shock in respect of a person willing and able to attend the scene of the accident or its aftermath but not in respect of a person unwilling or by circumstances out of their control unable to attend? How can the plaintiff's unfortunate presence at or fortuitous absence from the scene of the accident or its aftermath be said in all cases to necessarily affect the nature of the defendant's negligent actions or his responsibility for the consequences of them?"[86]

[76] In New Zealand the Court of Appeal in 1999 dismissed claims for mental distress on the basis that that distress fell short of psychiatric disorder.[87] In that respect the court's decision is in accordance with Australian law.[88]

However in its reasons the majority left open the question in issue here.[89]

[77] In Canada two decisions of the British Columbia Court of Appeal, one in 1990,[90] the other in 1999,[91] applied the aftermath test accepted by the House of Lords to deny liability in each case. In both, special leave to appeal to the Supreme Court of Canada was refused.[92]

[78] In two single judge decisions in Ireland in 1991[93] and 1993[94] plaintiffs recovered in circumstances similar to those in McLoughlin and Jaensch. However in both cases the decision appears to have been based on foreseeability a preference being expressed in the first of them for the speech of Lord Bridge in McLoughlin over that of Lord Wilberforce.

[79] South Africa is the only country in which an ultimate appellate court has decided this question and it has decided it in favour of a plaintiff who was the mother of a 13 year old boy killed in a motor vehicle accident. She heard news of his death from her husband who relayed a telephone message to that effect from a hospital doctor who called a few hours after the accident. The 1998 case[95] on appeal was decided on the assumption that the appellant had suffered nervous shock which led to recognized and material psychiatric trauma. Because of that the court did not have to decide whether a sudden assault on the senses is a necessary requirement but the Chief Justice, whose reasons were agreed in by the other members of the court, would not exclude the possibility that damages could be recovered in a case in which a person had suffered psychological injury which had not been caused by nervous shock. He said that there was undoubtedly much merit in the view that nervous shock was not only an outdated term without any specific psychiatric meaning but that it could also be misleading and that the only relevant question was whether a plaintiff had suffered recognizable psychological injury.

[80] Much of the reasoning in this case was taken up with the question of foreseeability which the learned primary judge had decided against the plaintiff appellant. Having resolved that question in the appellant's favour the Chief Justice then discussed a number of policy questions. These were all aspects of the floodgates argument: the risks of a flood of claims, of false or exaggerated claims and of disproportionate liability being imposed on defendants. His Honour thought that these risks were exaggerated and concluded that they did not preclude liability in this case.

[81] In the United States the relevant principles differ from state to state but in none of them would liability be found to exist in a case such as this. Some states still adhere to the requirement that the plaintiff must have sustained a physical impact, others require that he or she must have been within the zone of danger of physical impact.[96] The widest test appears to be that adopted in California[97] which imposes requirements similar to those imposed by the House of Lords.

[82] Compensation for psychiatric injury caused by negligent infliction of physical injury to another is recoverable both in France and Germany. Neither jurisdiction makes any distinction between direct observation of the accident or its consequences and being told about it.[98] However other devices appear to be used to narrow the ambit of recovery.

[83] The appellant's concession that if foreseeability and, I would add, causation, were the only requirements for recovery of damages the respondent was entitled to succeed was, in my opinion, correctly made. However the High Court appeared to be unanimous in Jaensch in concluding that there were other factors which restricted liability in this area of the law. Even Brennan J, who rejected proximity as a limiting mechanism and embraced foreseeability, did not define it in terms of foreseeability of psychiatric injury by perception of death or injury to another but in terms of foreseeability of psychiatric injury by shock which he then defined as requiring, in effect, both a sudden assault on the senses and direct perception of the accident or its aftermath.

[84] In my opinion, unless there are strong policy grounds for so stultifying the development of the common law in this area, the requirement of direct perception of the relevant incident or its immediate aftermath should not be accepted, at least where there are close ties of affection between the plaintiff and the person injured or killed, notwithstanding its acceptance by the House of Lords and by Brennan J and, apparently, by Dawson J. The difficulty expressed by Deane J in accepting such a requirement,[99]

the reasoning of Kirby P in Coates,[100]

the rhetorical questions posed by Lee J in Reeve[101]

and the evidence in this case show that there is no logical or medical basis,[102] in determining liability, for any distinction to be made between psychiatric injury caused by being told of an horrific accident to a loved one and one caused by seeing or hearing that accident or being present at its aftermath. Moreover the invention of the artificial and uncertain aftermath doctrine has already demonstrated the unnecessarily restrictive nature of the arbitrary rule.

[85] The policy considerations which, it was said, compel the imposition of this requirement by no means self evidently do so. The first of these was concern about the risk of indeterminate liability. This was behind Lord Wilberforce's first policy argument[103] and Lord Steyn's third factor.[104] Like Lord Bridge in McLoughlin[105] I think it is greatly exaggerated in cases of this kind where the number of people who may foreseeably suffer any such injury must be determinate.[106] But the truth is that we do not know what, if any, increase in claims any extension of the law in this area will be likely to bring.[107] Nevertheless the risk of such increase may be a reason for advancing in this area cautiously and, where possible, incrementally.

[86] The second related consideration mentioned by both Lords Wilberforce and Steyn[108] was the risk of imposing on a wrongdoer a burden out of all proportion to his or her wrongdoing. If that is an appropriate consideration it is one which requires no more than a cautious and incremental approach.[109]

[87] A third factor mentioned by both Lords Wilberforce and Steyn,[110] which seems at least partly to be based on a similar concern, was the difficulty in defining psychiatric injury and, in particular in cases of this kind, distinguishing it from mere grief which, it seems to be accepted,[111]

should not give rise to a claim for damages. I think that this difficulty is also exaggerated. It is of a kind which is already often resolved by courts and a similar difficulty arises in some claims in respect of physical disability. But again it may also justify proceeding cautiously.[112]

[88] None of these factors, either separately or together, require more than a cautious incremental approach to development of the law in this area. Moreover even if, as I am bound to accept, there are factors in addition to foreseeability and causation which guide and even limit liability in this area of the law, I do not think that they should prevent an extension of the law to cover the case where the psychiatric injury is caused by being told of the horrific event.[113]

And as already indicated there are logical and medical reasons why that step should be taken.

[89] If, as I have accepted, there are factors, in addition to foreseeability and causation, which must guide and limit recoverability of damages for pure psychiatric injury, those factors should, if possible, be found in flexible criteria which permit an incremental development of the common law. And whilst it is no longer possible to accept Deane J's statement of what is involved in proximity as stating the elements of a universal conceptual determinant of liability, it may nevertheless be a useful guide to the factors relevant to such limitation[114] and consequently to a determination of whether liability should be extended to a new facts situation.

[90] The most important of these in a case of this kind, in my opinion, is the closeness of the tie of love and affection between the plaintiff and the person injured or killed.[115] Indeed where that tie is very close I do not think it should be necessary to look for any further control mechanism.[116]

9. The application of those principles to this case

[91] Where, as in this case, the plaintiff did not observe the accident or its horrifying effect shortly afterwards and it is said that the plaintiff's injury results from what was said to him shortly after the accident, the most important factors are what was said to him during the course of the day after his son was killed, the nature of his relationship with his son and the effect which, on the medical evidence, the conveying of this information had upon him.

[92] Mr Douglas for the appellant submitted more than once that the respondent was told merely of the death of his son. As I have shown that is not correct. He was told facts from which he must have known that whoever was killed in the car was so badly injured as to be visually unrecognizable. He had the agony for some hours of not knowing whether or not that person was his son or the driver of the car; and finally he had the realization that it was his son.

[93] The respondent's relationship to his son was very close. It may be that that can be presumed in the case of a parent and young child in his or her care. In the present case, however, the evidence established that that close relationship continued into the son's adult life. And the medical evidence justified his Honour's conclusion that the respondent's psychiatric injury was caused by the information conveyed to him that day.

[94] In those circumstances I think his Honour was correct to extend liability to the facts of this case.

[95] The appellant's principal submission on this issue raises the question whether, in assessing damages for the respondent's psychiatric injury, the learned trial judge should have made an allowance, and consequently a reduction in the amount of damages, for the grief which the respondent would ordinarily have suffered and for its consequences. His Honour did not specifically refer to this question. It was contended that he ought to have specifically adverted to it and made allowance for it. However, as Mr Lee for the respondent has pointed out, no such contention was made to the learned trial judge. Nor was it raised in the appellant's pleading.

[96] The amount awarded was $40,000. The respondent was 51 at the time of his son's death and 56 at trial. Dr Dodds thought that his condition, if appropriately treated, should resolve over a period of a further six months to two years. His condition, serious though it was, did not result in any significant loss of earning capacity. Mr Lee conceded that the amount was towards the upper end of the range for damages of this kind.

[97] In Jaensch[117] Deane J described as:

"settled law in this country that there is a distinction, for the purposes of the law of negligence, between mere grief or sorrow which does not sound in damages and forms of psychoneurosis and mental illness (which lawyers have imprecisely termed 'nervous shock') which may."[118]

In view of advances in the law in other areas and in our knowledge of mental injury this state of the law may be criticized.[119] Nevertheless I think it is a state which this Court is bound to accept.

[98] No doubt in a case of this kind it may be possible to show that some of the symptoms and signs which go to make up his psychiatric illness would have occurred as part of a non compensable grief reaction. And it may have been possible for the medical witnesses to comment on the additional effect of a psychiatric illness upon what would otherwise have been a normal grief reaction. But no attempt was made to identify non-compensable elements of the respondent's suffering because the point was not taken at trial and his Honour was not invited to make any deduction for any such elements. Accordingly I do not think it open to the appellant to take the point now.

[99] I do not think that on the whole the damages were manifestly excessive. I would therefore dismiss the appeal with costs.

[100] BYRNE J: The expansion of liability for negligently inflicted mental harm which the dismissal of this appeal involves is a small step, but one which courts in Australia[120], New Zealand[121], England[122], Scotland,[123] Ireland[124], Canada[125], and the United States[126] have not yet taken.

[101] Factors commonly invoked to sustain such reticence and the, largely intuitive, responses often made are, put shortly:

A flood of comparatively unimportant claims[127]

Litigation is rarely lightly embarked upon. Attendant risks, including the inevitable difference between costs incurred and recovered, and the usual strains will deter trivial claims

Fraudulent, imagined, and exaggerated claims[128]

False claims for physical injury are not unknown: no one suggests that that reality is a sufficient reason to deny genuine claims. Also modern diagnostic techniques can cope[129]

The spectre of "unlimited and unpredictable liability"[130]

is abroad, with its correlative notion that liability would impose an insupportable economic burden on industry and society[131]

Liability could be extensive; but that does not mean that potential claimants cannot readily be identified.[132]

Anyhow, adoption of suitable control mechanisms limiting recovery adequately addresses this concern

Adjudication on conflicting medical opinion will be problematic[133]

This is a commonplace in litigation.[134]

Moreover, advances in medicine have diminished the difficulty. And in other contexts, tortious[135] and contractual[136], damages are assessed for emotional distress as well as for mental harm

Mental illness is often less serious than physical injury, and so less worthy of protection[137]

Psychiatric disorders can be more debilitating, as well as being productive of greater economic loss[138]

Litigation will prejudice recuperation[139]

Litigation neurosis (as the obsession tends to be pejoratively styled) affects some physically injured litigants as they brood on their symptoms and may see themselves as having a financial disincentive to recovery. Prompt settlement will be palliative.[140]

The assessment can accommodate the chances of post-trial recovery. And why should all claims be refused just because the legal process jeopardizes recuperation in some?[141]

[102] The rival contentions touching those considerations have generated much literature and controversy. In forming a view about the weight to be accorded them here, two general law constraints on awarding damages for negligently inflicted "pure" mental affliction matter:

a. only psychiatric illnesses are compensable: emotional reactions such as stress, anxiety, fear, and grief are not;[142]

b. liability does not attach unless it be reasonably foreseeable that a person of "normal fortitude" could so suffer.[143]

[103] The soundness of those controls has been questioned.[144] But both are established by decisions binding on this Court. And when they are coupled with the (apparently respectable) idea that "the psychiatric equilibrium of the vast majority of community members is not disturbed by even ... severe traumatic stimuli",[145] on balance, there seems no great force left in the policy-based objections to liability, despite the incremental increase in insurance premiums that can be anticipated: in any event, not enough to prevail against recompense in this case where a parent, with close ties of affection to his child, has suffered a recognised, serious psychiatric illness through learning that the child died in horrific circumstances; and where, it is conceded, the condition was of a kind reasonably foreseeable in a "normal" person. So we should - and Davies JA's analysis of the authorities shows we may - favour liability.

[1] [1982] UKHL 3; [1983] 1 AC 410, 422.

[2] [1991] UKHL 5; [1992] 1 AC 310, Lord Keith of Kinkel at 397-398, Lord Ackner at 402-405, Lord Oliver of Aylmerton at 411, 416, Lord Jauncey of Tullichettle at 423-424.

[3] [1998] UKHL 45; [1999] 2 AC 455, 502. See also Hunter v British Coal Corp [1998] EWCA Civ 834; [1998] 2 All ER 97, where a coal miner was denied recovery for injury sustained in the form of reactive depression and unjustifiable guilt following an underground explosion which killed a colleague. He had been with that colleague until a short time before the explosion and was told of his death about 15 minutes later.

[5] (1995) 36 NSWLR 1, 10-11.

[6] Law Commission Report 249, 10 March 1998, (iii). See also Summary of Recommendations (11), 122.

[7] [1984] HCA 52; (1984) 155 CLR 549.

[12] [1997] SASC 6086; (1997) 68 SASR 124.

[15] [1998] ZASCA 84; (1999) (1) SA 202.

[17] But see Ipp J's comments in Annetts v Australian Stations Pty Ltd [2000] WASCA 357; (2000) 23 WAR 35, 60 [102].

[18] (2000) WAR 35.

[19] [1970] HCA 60; (1970) 125 CLR 383, 407.

[21] [1998] UKHL 45; [1999] 2 AC 455.

[22] [1991] UKHL 5; [1992] 1 AC 310.

[23] 61 [110]. See also 42 [19] and [20].

[24] Abramzik et al v Brenner et al (1967) 65 DLR (2d) 651.

[25] Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248 and Devji et al v District of Burnaby et al (1999) 180 DLR (4th) 205.

[26] [1995] 2 QdR 661, 671-672.

[27] [1984] HCA 52; (1984) 155 CLR 549 at 567.

[28] [2000] NSWCA 121; (2000) 49 NSWLR 21 at 30 [48].

[29] This also appears to have been the view of the majority in Campbelltown City Council v Mackay (1989) 15 NSWLR 501 and in Chiaverini v Hockey [1993] Aust Torts Reports 81 - 223.

[30] See however the decisions of appellate courts in Queensland in Spence v Percy [1992] 2 QdR 299, in South Australia in Pham v Lawson [1997] SASC 6086; (1997) 68 SASR 124 and in Western Australia in Annetts v Australian Stations Pty Ltd [2000] WASCA 357; (2000) 23 WAR 35 which support that view.

[31] McLoughlin v O'Brian [1982] UKHL 3; [1983] 1 AC 410, Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5; [1992] 1 AC 310 and White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455. It is unnecessary to discuss the preceding English cases by which the law developed to this stage.

[32] At 422; later referred to as "control mechanisms" by Lord Lloyd in Page v Smith [1995] UKHL 7; [1996] AC 155, 189, a phrase which was adopted by Lord Hoffman in White at 502 and ff.

[33] However in McLoughlin two of their Lordships, Lords Scarman and Bridge, based their decision on foreseeability. See also Lord Russell at 429; Deane J in Jaensch at 599.

[34] Which his Lordship appeared to equate with psychological injury of a particular kind rather than "a compound" the elements of which are psychiatric illness induced by a sudden sensory perception of a distressing event by seeing, hearing or touching: Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 566 - 567 per Brennan J.

[37] The first and second arguments and also, to some extent, the third argument referred to on p 421 reflect the floodgates argument. His Lordship also recognized some weakness in this argument on the same page. See however White at 495 - 496 per Lord Steyn. These are discussed further at [ to below.

38] At 397 - 398, 402 - 405, 411 - 417 and 422 - 424.

[39] Per Lord Goff at 472, Lord Steyn at 496 and Lord Hoffman at 502.

[42] At 493; the third and fourth factors appear to involve the floodgates factor and the second is arguably based in part on a concern about it. However Lord Steyn also referred to the complexity of drawing a line between acute grief and psychological harm and, more generally, to the difficulty of identification of emotional injury. I discuss these factors at [ to below.

[51] Cf Jaensch v Coffey supra at 587 per Deane J.

[52] Law Commission Report No 249, London HMSO 1998, par 5.29(1) and (2). See also Campbelltown City Council v Mackay (1989) 15 NSWLR 501 at 503 - 504; Barnard v Santam BPK [1998] ZASCA 84; 1999 (1) SA 202 (SCA) at 208 - 209.

[53] And one which is narrower than Deane J's notion of causal proximity as excluding psychiatric injury caused by more remote consequences of an accident: see [ below.

54] See Coates v GIO of New South Wales (1995) 36 NSWLR 1 at 12.

[55] Contrast Brennan J in Jaensch at [ below.

56] [1970] HCA 60; (1970) 125 CLR 383. Robertson v Forth Road Bridge Joint Board [1995] ScotCS CSIH_1; [1996] SLT 263 also appears to be inconsistent with Pusey.

[57] [1984] HCA 52; (1984) 155 CLR 549.

[59] [1984] HCA 52; (1984) 155 CLR 549. In view of the way in which the law has developed in this area since Mount Isa Mines Limited v Pusey [1970] HCA 60; (1970) 125 CLR 383 I do not propose to discuss it further here.

[63] At 553, 584, 585, 587, 601 and 603.

[69] Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 4(1); Law Reform (Miscellaneous Provisions) Ordinance 1955 (ACT) s 24; Law Reform (Miscellaneous Provisions) Ordinance 1956 (NT) s 25. These sections were intended, in each case to extend liability, overcoming the effect of Chester v Waverley Municipal Council [1939] HCA 25; (1939) 62 CLR 1. See also Deane J in Jaensch at 611.

[73] See, for example, Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 at 382.

[74] Hill v Van Erp (1997) 188 CLR 159 at 178 - 179, 189, 210 - 213, 237; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 198, 208 - 210, 283 - 284, 300 - 302.

[75] (1995) 36 NSWLR 1.

[76] [1997] SASC 6086; (1997) 68 SASR 124.

[77] [2000] WASCA 357; (2000) 23 WAR 35.

[80] Wrongs Act 1936 (SA), s 35A(1)(c).

[83] [1992] 1 QdR 284.

[84] [1995] 2 QdR 661.

[87] J & P van Soest & Ors v Residual Health Management Unit & Ors [1999] NZCA 206; [2000] 1 NZLR 179.

[90] Rhodes v Canadian National Railway (1990) 75 DLR (4th) 248.

[91] Devji v District of Burnaby (1999) 180 DLR (4th) 205.

[92] The first at 136 NR 80; the second in August 3, 2000 news release. The Court of Appeal of Saskatchewan in Abramzik v Brenner (1967) 65 DLR (2d) 651 had earlier denied, on the basis of lack of foreseeability, a claim by a mother who suffered nervous shock on being told that two of her children were killed by the defendant's negligent driving.

[93] Mullally v Bus Eireann [1992] ILRM 722.

[94] Kelly v Hennessy [1993] ILRM 530.

[95] Barnard v Santam BPK [1998] ZASCA 84; 1999 (1) SA 202 (SCA).

[96] See Consolidated Rail Corporation v Gottshall [1994] USSC 30; (1994) 512 US 532 at 546 - 554.

[97] Dillon v Legg (1968) 69 Cal Rptr 72.

[98] B S Markesinis, A Comparative Introduction to the German Law of Torts, Third Edition, Clarendon Press 1994 at 37 - 39, 109 - 131; J Fleming, Distant Shock in Germany (and Elsewhere) (1972) 20 Am J Comp L 485; English, French and German Comparative Law Cavendish Publishing Ltd 1998 at 333 - 336.

102] See also N J Mullany, "Negligently Inflicted Psychiatric Injury and the Means of Communication of Trauma - Should it Matter?" in N J Mullany and A M Linden (eds), Torts Tomorrow - A Tribute to John Fleming, LBC Information Services (1998) Ch 11 at 208 - 209.

[104] White at 494; and also, in part, his second factor.

[106] Unlike economic loss cases (see Bryan v Maloney (1995) 182 CLR 609 at 618 - 619) where it may not be. There is an additional policy factor in many of those cases, that the plaintiff will have had the opportunity of protecting itself against the risk of the loss which in fact occurred: see Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at 225 - 230.

[107] It has not noticeably done so in New South Wales: see Law Commission Report No 249, London HMSO 1998 at 6.14 fn 30.

[108] Lord Wilberforce's second argument at McLoughlin 421; Lord Steyn's fourth factor at White 494; cf Caltex Oil (Aust) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529 at 551.

[109] And again it has nothing like the potential seriousness that it may have in economic loss cases.

[110] Lord Wilberforce's third argument at McLoughlin 421; Lord Steyn's first factor at White 493.

[111] Jaensch at 587. See also [ below.

112] I would include in this concern the concern about unconscious exaggeration of symptoms which may be caused by the prospect of recovery of damages.

[113] On the other hand the adoption by some but by no means all states or territories of legislation imposing a less restrictive test for recovery is not a countervailing policy consideration to be applied by analogy in the common law: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 59 - 63 [18] - [28], 83 [91]; contrary to the view of Murphy J in Jaensch at 557 (see [ above). See also the limiting statutes in South Australia (fn ) and New South Wales (]Motor Accidents Compensation Act 1999 s 141).

[114] They are, of course, also a useful guide to foreseeability.

[115] See Jaensch per Gibbs CJ at 555, Deane J at 600.

[116] There is no doubt much to be said for the position, at which, as Lord Hoffman noted in White at 502, English law came within a hair's breadth of arriving in McLoughlin, that foreseeability alone should be sufficient in these cases. See, for example N J Mullany and P R Handford, Tort Liability for Psychiatric Damage, Law Book Co, 1993 and the various subsequent articles written by those authors together and separately. However for reasons already given I do not think it open to this Court to adopt that position even if it were persuaded of its correctness. Nor was that position urged upon us by the respondent.

[118] See also McLoughlin at 431; Alcock at 416; White at 465; Coates at 4, 19 - 21.

[119] See for example Mullany and Handford, The Law Commission on Psychiatric Illness[1999] UNSWLawJl 2; , (1999) 22 (2) UNSW Law Journal 350 at 368 - 373.

[120] Annetts v Australian Stations Pty Ltd [2000] WASCA 357; (2000) 23 WAR 35.

[121] van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179.

[122] White v Chief Constable of South Yorkshire Police [1998] UKHL 45; [1999] 2 AC 455; W v Essex County Council 2 AllER 237_._

[123] Stair Memorial Encyclopaedia_, The Laws of Scotland,_ Vol 15 (1996), p 188.

[124] Kelly v Hennessy [1993] ILRM 530.

[125] Devji v District of Burnaby (1999) 180 DLR (4th) 205; L Belanger-Hardy, "Nervous Shock, Nervous Courts: The Anns/Kamloops Test to the Rescue", (1999) 37 Alberta Law Review 553, 583.

[126] Some States permit recovery for "emotional distress" suffered by a bystander who is a close relative of a victim of negligence, and who observes the incident or aftermath, subject to a substantial variety of controls and restrictions: Beck v State Department of Transportation & Public Facilities 837 P 2d 105 (Alaska 1992); Thing v La Chusa 771 P 2d 814 (Cal 1989); Clohessy v Bachelor 675 A 2d 852 (Conn 1996); Zell v Meek 665 So 2d 1048 (Fla 1995); Lee v State Farm Mutual Insurance Co 533 SE 2d 82 (Ga 2000); Kelley v Kokua Sales and Supply Ltd 532 P 2d 673 (Haw 1975); Groves v Taylor 729 NE 2d 569 (Ind 2000); Pekin Insurance Co v Hugh 501 NW 2d 508 (Iowa 1993); Trahan v McManus 728 So 2d 1273 (La 1999); Michaud v Great Northern Nekoosa Corporation 715 A 2d 955 (Me 1998); 1998); ; (6th Cir 1996) (Michigan law); 2000); 1995); 1999); 1989); ; (1st Cir 1996) (New Jersey law); 1998); 1994); 1995); Super 1993); 1994); 1985); 1996); 1998); 1998); Va 1997); 1994); 1994).

Other jurisdictions permit recovery where the bystander is within the "zone of danger": Dyson v Winfield 129 F Supp 2d 22 (DDC 2001); Pierce v Casas Adobes Baptist Church 782 P 2d 1162 (Ariz 1989); James v Harris 729 P 2d 986 (Colo App 1986); Rickey v Chicago Transit Authority 457 NE 2d 1 (Ill 1983); Dobbins v Washington Suburban Sanitary Commission 658 A 2d 675 (Md 1995); Wall v Fairview Hospital and Healthcare Services 584 NW 2d 395 (Minn 1998); Asaro v Cardinal Glennon Memorial Hospital 799 SW 2d 595 (Mo 1990); Trombetta v Conkling 626 NE 2d 653 (NY 1993); Whetham v Bismarck Hospital 197 NW 2d 678 (ND 1972); Nielson v AT & T Corp 597 NW 2d 434 (SD 1999); Straub v Fisher and Paykel Health Care 990 P 2d 384 (Utah 1999); 1995).

A few deny claims unaccompanied by physical "impact" to the claimant: MBM Co v Counce 596 SW 2d 681 (Ark 1980); Garrison v Medical Center of Delaware Inc 581 A 2d 288 (Del 1989); Black Canyon Racquetball Club Inc v Idaho First National Bank 804 P 2d 900 (Idaho 1991); Anderson v Scheffler 752 P 2d 667 (Kan 1988); Deutsch v Shein 597 SW 2d 141 (Ky 1980); Slaton v Vansickle 872 P 2d 929 (Okl 1994); Sherwood v ODOT 11 P 3d 664 (Or App 2000); Goff v Jones 47 F Supp 2d 692 (ED Va 1999) (Virginia law).

Alabama, peculiarly, does not compensate for psychic injury negligently inflicted, even to bystanders: Gideon v Norfolk Southern Corporation 633 So 2d 453 (Ala 1994).

Only Nebraska, it seems, permits a claimant who later "hears" of death or injury to recover, and then only if the information is received in a manner so "sudden and shocking or startling such as to have produced emotional distress so severe that no person could be expected to endure it": Vosburg v Cenex-Land O'Lakes Agronomy Co 513 NW 2d 870, 873-874 (Neb 1994); although perhaps Hawaii permits such recovery by residents: Campbell v Animal Quarantine Station 632 P 2d 1066, 1068-9 (Haw 1981); Masaki v General Motors Corporation 780 P 2d 566, 576 (Haw 1989).

In the USA, however: juries assess damages (D F Partlett, "Tort Liability and the American Way: Reflections on Liability for Emotional Distress", (1997) 45 The American Journal of Comparative Law 171, 177, 183); in many jurisdictions where bystander claims are allowed, mere "emotional distress" sounds in damages (86 Corpus Juris Secundam, Torts, s 82 pp 741-742); in most States, unsuccessful plaintiffs are not liable for costs; and, typically, plaintiffs' lawyers are remunerated through contingency fee arrangements. Ramifications of these factors contribute, I suspect, to the pronounced reluctance to admit claims such as the present.

For concise, though somewhat dated, surveys of the American jurisprudence, see Consolidated Rail Corporation v Gottshall [1994] USSC 30; 512 US 532, 548-549 (1994); Lejeune v Rayne Branch Hospital 556 So 2d 559, 563-566 (La 1990); Camper v Minor 915 SW 2d 437, 440-444 (Tenn 1996); Williams v Baker 572 A 2d 1062, 1064-1072 (DC App 1990).

[127] Metro-North Commuter Railroad Co v Buckley [1997] USSC 65; 521 US 424, 433 (1997); UK Law Commission, Report on Liability for Psychiatric Illness, 1998, ("UK Report"), pp 81-82.

[128] Gottshall at 557; cf Migliori at 414; Trombetta at 655-656; N J Mullany and P R Handford, "Moving the Boundary Stone by Statute - The Law Commission on Psychiatric Illness", [1999] UNSWLawJl 2; (1999) 22(2) University of New South Wales Law Journal 350, 351, 377.

[130] Gottshall at 557; cf Migliori at 415; Marzolf at 427, 429; Clohessy at 858-860, 862; Lawson v Management Activities Inc 81 Cal Rptr 2d 745, 750-751 (Cal App 4 Dist 1999); White at 494 C-E.

[131] "Claims that society simply cannot afford to honor": Blinzler at 1154; "an intolerable burden on the public purse": White at 492 H; cf Fernandez at 781; and Chief Judge Posner's hard view that "it is difficult to believe that the expense of determining damages in such cases and of screening out the inevitable phony cases would be justified by the incremental contribution to the deterrence of wrongful conduct": Kuehn v Children's Hospital, Los Angeles [1997] USCA7 787; 119 F 3d 1296, 1299 (7th Cir 1997).

[132] Perre v Apand [1999] HCA 36; (1999) 198 CLR 180, 303.

[133] Metro-North at 433; Camper at 441; White at 493G.

[134] Mullany & Handford, "Moving the Boundary ..." at 378.

[135] eg. defamation, assault, false imprisonment and other intentional torts where compensation is awarded for injured feelings (N J Mullany & P R Handford, Tort Liability for Psychiatric Damage, (1993), pp 45-47), and in negligence causing primarily economic loss for reactions like stress: Mouat v Clark Boyce [1992] 2 NZLR 559.

[136] Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344.

[138] H Teff, "Liability for Negligently Inflicted Psychiatric Harm: Justifications and Boundaries", (1998) 57 Cambridge Law Journal 91.

[139] Lawson at 749; L Belanger-Hardy, op cit, p 580; UK Report p 82 fn 11; H Teff, op cit, pp 95-96; White at 494 A-B.

[140] The public health risk could also be ameliorated by insurers according greater significance to recuperation, consistently with the legislative emphasis on rehabilitation in the Motor Accident Insurance Act 1994, Part 4, Division 4 and the WorkCover Queensland Act 1996, Chapter 4.

[142] Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, 587.

[143] Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1, 16; Midwest Radio Ltd v Arnold [1999] EOC 92-970 [28]-[29]; Annetts at 52.

[144] UK Report p 66; D Mendelson, The Interfaces of Medicine and Law, (1998), pp 247-248.

[145] Mullany and Handford, "Moving the Boundary ...", p 37; cf the UK Report's reference to "the robustness of the population at large to psychiatric illness": p 66; see also D Butler, "Identifying the Compensable Damage in `Nervous Shock' Cases", (1996) 5 Torts Law Journal 67, 80-81 ("For most people ... the reactive processes after a traumatic event settle. Only rarely do reactions continue into ... mental disorder.")