Jaensch v Coffey - [1984] HCA 52 - HCA 1984 case summary — Zoe

CTHHCA

Jaensch v Coffey

[1984] HCA 52

High Court of Australia|1984-07-01|Before: Dawson JJ, Windeyer J

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Source facts

Court

High Court of Australia

Decision date

1984-07-01

Before

Dawson JJ, Windeyer J

Source

Original judgment source is linked above.

Judgment (163 paragraphs)

[1]

High Court of Australia Gibbs C.J. Murphy, Brennan, Deane and Dawson JJ. Jaensch v Coffey [1984] HCA 52

[2]

I have had the advantage of reading the judgment prepared by my brother Deane. I agree with his conclusion and, in general, with his reasons. I can therefore express my own views quite shortly.

[3]

The respondent developed a psychiatric illness, characterized by anxiety and depression, because of what she saw and heard at the hospital to which her husband was admitted with serious injuries caused by the negligent driving of the appellant. Before the law had reached its present stage of development, the respondent would have had no right to recover damages from the appellant. She was not herself physically injured in the collision, and was not within the area of potential danger arising as a result of the appellant's negligence. She did not see or hear the accident, or its aftermath at the scene of the collision. The shock and fear (apparently well founded) that her husband might die, which caused her psychiatric illness, were caused partly by what she saw, and partly by what she was told, at the hospital on the night of the accident and on the following day. As the law relating to damages for what is somewhat crudely called "nervous shock" has limped on with cautious steps, to use the metaphor suggested by Windeyer J. in Mount Isa Mines Ltd. v. Pusey [1] , the old and irrational limitations on the right to recover damages for an injury of this kind have one by one been removed. Finally, in McLoughlin v. O'Brian [2] , the House of Lords, taking one short step onward from Benson v. Lee [3] (and see Gannon v. Gray [4] ) has held that a plaintiff was entitled to recover damages for nervous shock from a defendant whose negligent driving had caused a road accident in which the plaintiff's daughter was killed and her husband and other children were injured, notwithstanding that the plaintiff had been two miles from the scene of the accident when it occurred and did not hear of the accident until about two hours later, and did not see its consequences until she then went to the hospital. It was submitted on behalf of the appellant that we should not follow this decision. With all respect, however, the decision is part of the logical progression of the development of the law already evidenced in the earlier authorities and was correct in principle.

[8]

First one has to ask whether, as between the alleged wrong-doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prime facie duty of care arises. However, the particular circumstances of the case may require some qualification to be placed on the principle and accordingly Lord Wilberforce stated a second question, namely, "whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise" [10] . This view was in substance accepted by Mason J. in Wyong Shire Council v. Shirt [11] . Many examples could be given of cases in which foreseeability, although necessary to establish the existence of a duty of care, is not sufficient for that purpose. One such case is that of damages for negligent words which cause financial loss. The law, which at first did not allow recovery in such a case, now permits recovery, but by no means in every case where the loss was foreseeable; the principle, the limits of which are not yet fully defined, is complex and detailed: see Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [12] and L. Shaddock & Associates Pty. Ltd. v. Parramatta City Council [13] . Another case is that where the damage caused by some negligent physical act is solely economic. In Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" [14] , although the members of this Court gave different reasons why the plaintiff in that case should recover, all recognized that the fact that the loss was foreseeable was not enough to make it recoverable [15] . In Junior Books Ltd. v. Veitchi Ltd. [16] , where the House of Lords dealt with the same question, all of their Lordships recognized the importance of proximity in deciding it [17] . A third example is that of the advocate who cannot be sued for negligence in the conduct of a trial, although the consequences of such negligence are readily foreseeable: see Rondel v. Worsley [18] and Saif Ali v. Sydney Mitchell & Co. [19] . In all these cases policy has played a part in shaping the rule. In Dorset Yacht Co. v. Home Office [20] , Lord Diplock gives other examples of acts or omissions which give rise to no legal liability although the loss or damage which those acts or omissions caused was readily foreseeable. 1. [1932] A.C. 562, at p. 580. 2. [1978] A.C. 728, at pp. 751-752. 3. [1978] A.C., at p. 752. 4. (1980) 146 C.L.R. 40, at p. 44. 5. [1964] A.C. 465. 6. (1981) 150 C.L.R. 225. 7. (1976) 136 C.L.R. 529. 8. (1976) 136 C.L.R., at pp. 555, 573-574, 590, 604, 606. 9. [1983] 1 A.C. 520. 10. [1983] 1 A.C., at pp. 533, 535, 539, 545, 551. 11. [1969] 1 A.C. 191. 12. [1980] A.C. 198. 13. [1970] A.C. 1004, at p. 1060.

[26]

Mrs. Coffey had had an unhappy life until she met and married her husband, Allan. It was a happy marriage, and a baby was born to them in February 1979, a few months before Allan's accident. He was a policeman in Adelaide. In the early evening of 2 June 1979 he was on duty riding his motorcycle when he collided with a motor vehicle driven by Mr. Jaensch. Mr. Jaensch's careless driving was the sole cause of the collision. Allan was seriously injured. He was taken by ambulance to the Royal Adelaide Hospital. Two police officers brought the news to Mrs. Coffey. She was at home, away from the scene of the accident. The police brought her to the hospital where she saw Allan in the casualty section in severe pain. She waited while Allan was taken to the operating theatre. As he was being wheeled back from the theatre "his hip popped out again". He was taken back to the theatre. After he emerged again, he complained repeatedly of pain in his stomach. Again he was taken to the theatre and a tear in his liver was found. Mrs. Coffey did not know why he had been taken to the theatre on this occasion. She stayed at the hospital and saw what was happening to Allan until a doctor advised her to go home to sleep. He told her that Allan was "pretty bad". She went to stay with friends. At 5.30a.m. a doctor rang. He said, "Allan is in intensive care now. We don't know how he is going to be but we will keep in contact." At 8.30a.m. she had a call from the intensive care unit. She was told that there had been a change for the worse and she was asked to get up to the hospital as quickly as possible. When she arrived at the hospital, a doctor told her that Allan had kidney problems and that his liver was damaged. She stayed much of the day. She saw Allan with "all these tubes coming out of him". She said she was "scared that he was going to die and that all my security had been washed down the drain and I was just so scared and so resentful to the other person that caused the accident". Bollen J., who said that she "needed the security of a safe and affectionate relationship", believed that statement. When Mrs. Coffey left the hospital that evening, she thought Allan was going to die. She first realized that Allan would survive three to four weeks after the accident.

[36]

In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability not to compensation. Referring to this passage of his Lordship's speech, the Judicial Committee in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [No. 1] [50] said: We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young [51] . As Denning L.J. said in King v. Phillips [52] : "there can be no doubt since Bourhill v. Young [53] that the test of liability for shock is foreseeability of injury by shock ". In Mount Isa Mines Ltd. v. Pusey [54] , the criterion of reasonable foreseeability was applied in determining the existence of a duty owed to a plaintiff who had suffered a psychiatric illness as the result of going to the aid of fellow employees who had sustained gruesome burning injuries: see per Barwick C.J. [55] , McTiernan J. [56] , Menzies J. [57] , Windeyer J. [58] and Walsh J. [59] . The criterion of reasonable foreseeability is not a narrow test. In Chapman v. Hearse this Court said [60] : one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant's carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of. 1. [1943] A.C., at p. 101. 2. [1961] A.C. 388, at p. 426. 3. [1943] A.C., at p. 101. 4. [1953] 1 Q.B. 429, at p. 441. 5. [1943] A.C. 92. 6. (1970) 125 C.L.R. 383. 7. (1970) 125 C.L.R., at pp. 389-390. 8. (1970) 125 C.L.R., at p. 391. 9. (1970) 125 C.L.R., at p. 392. 10. (1970) 125 C.L.R., at pp. 395, 397, 402. 11. (1970) 125 C.L.R., at pp. 413-415. 12. (1961) 106 C.L.R., at pp. 120-121.

[54]

The capacity of a phenomenon to cause a person who perceives it to suffer a psychiatric illness depends in part upon the distressing aspects of the phenomenon which are manifest to be perceived by anybody and in part upon any special significance which the phenomenon may have for the person who perceives it. Thus a runaway lorry rushing around a bend has a special significance for a mother who knows her children to be there; she is more likely than another bystander to be shocked by the sight of the runaway lorry: see Hambrook v. Stokes Bros [10] . Of course a psychiatric illness may be induced by shock when a distressing phenomenon is perceived by a plaintiff for whom it has no special significance. Thus in Dulieu v. White & Sons [11] , where it was held that a plaintiff could recover for "a severe shock" if she proved that it was caused by the negligent driving of a pair-horse van into her husband's public house where she was behind the bar, it was not thought necessary that the plaintiff should allege and prove that she was more susceptible than other occupants of the public house to the sight of the entry of the pair-horse van. No doubt it is true to say that the more distressing and dramatic an event, the more likely it is to cause shock to those who perceive it. The scene of a road accident where an injured victim is to be seen is usually more distressing and dramatic, more inherently shocking, than the scene in a hospital ward where the victim is recovering from his injuries. There is, however, no legal principle which precludes a plaintiff from relying on phenomena other than the scene of an accident or, as in Hambrook v. Stokes Bros., the scene of a potential accident. A temporal extension beyond the actual occurrence of an accident was accepted by Lush J. in Benson v. Lee [12] , who allowed a claim based upon "direct perception of some of the events which go to make up the accident as an entire event, and this includes the immediate aftermath " [13] . But I know of no principle which precludes a plaintiff from relying on any phenomenon which is a reasonably foreseeable result of the defendant's carelessness. It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric illness.

[56]

Nowadays it is accepted by the community and by the courts that the sudden perception of a distressing phenomenon might induce psychiatric illness in some people, although the mechanics of the causal relationship involved is not fully understood even by those in whose field of expertise that subject lies. It is not surprising that there is great scope for differences of opinion as to the foreseeability of the inducing of a psychiatric illness by the sudden perception of a distressing phenomenon. Moreover, it is generally recognized that what will induce a psychiatric illness in one person may leave another unaffected. Some people are naturally more robust - or less sensitive - than others. Yet reasonable foreseeability is an objective criterion of duty, and a general standard of susceptibility must be postulated. At least to that extent it is possible to confine consideration of the question whether it is reasonably foreseeable that the perception of a particular phenomenon might induce in the plaintiff a psychiatric illness. Some general guidelines apply. The first guideline is this: the question "whether there is duty owing to members of the public who come within the ambit of the act, must generally depend on a normal standard of susceptibility": per Lord Wright in Bourhill v. Young [14] . Unless a plaintiff's extraordinary susceptibility to psychiatric illness induced by shock is known to the defendant, the existence of a duty of care owed to the plaintiff is to be determined upon the assumption that he is of a normal standard of susceptibility. Secondly, if it is reasonably foreseeable that the phenomenon might be perceived by a person or class of persons for whom it has a special significance - for example, the parent of a child injured in a road accident who comes upon the scene - the question whether it is reasonably foreseeable that the perception of the phenomenon by that person or a member of that class might induce a psychiatric illness must be decided in the light of the heightened susceptibility which the special significance of the phenomenon would be expected to produce.

[57]

Plaintiffs who have been present at the scene of an accident have recovered, especially where the injured third person is a spouse, child or sibling of the plaintiff: see Dulieu v. White & Sons [1] , where the plaintiff was shocked by the event itself; Storm v. Geeves [2] , where the victim's brother and sister were at the scene; and Hinz v. Berry [3] , where Mrs. Hinz looked immediately at the scene of disaster when a car ran into her husband and children, injuring them all and fatally injuring her husband. Rescuers have recovered when they come to the scene of an accident to render assistance to the injured, for it was foreseeable that they would come to the scene and their arrival there was treated as being a result of the defendant's careless conduct: see Mount Isa Mines Ltd. v. Pusey [4] ; Chadwick v. British Railways Board [5] . The law treats a rescuer's response to the victim's injury as the natural and probable consequence of the conduct which causes the injury: "The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences": per Cardozo J. in Wagner v. International Ry. Co. [6] . Similarly, parents who have been quickly summoned to the scene of a child's accident have recovered: for example, the mothers in Storm v. Geeves [7] and Benson v. Lee, and a father in Boardman v. Sanderson (Keel and Block Third Party) [8] . If rescuers' and parents' responses are so commonplace and expected that their attendance at the scene may properly be found to be the reasonably foreseeable result of inflicting an injury on the original victim, the response of one spouse in coming immediately to the other spouse in her or his distress must be similarly regarded. There is no difference in principle between the compassionate and immediate response of a rescuer, a parent or a spouse to a victim's cry of distress. The defendant's infliction of injury upon the victim is the summons to the rescuer, parent or spouse to attend the victim, and that attendance can properly be found to be the result, and the reasonably foreseeable result, of the defendant's conduct. The range of foreseeability in the case of rescuers is well stated by Evatt J. in the second of the "subsidiary principles" set out in Chester v. Waverley Corporation [9] :

[65]

There seems to be no sound ground of policy, and there certainly is no sound reason in logic, for putting some persons who suffer mental damage from seeing or hearing the happening of an accident in a different category from others who suffer similar damage in the same way from the same occurrence. The supposed rule that only relatives can be heard to complain is apparently a transposition of what was originally a humane and ameliorating exception to the general denial that damages could be had for nervous shock. Close relatives were put in an exceptional class. What began as an exception in favour of relatives to a doctrine now largely abandoned has now been seen as a restriction, seemingly illogical, of the class of persons who can today have damages for mental ills caused by careless conduct. In McLoughlin v. O'Brian [19] Lord Wilberforce acknowledged that, although close proximity to the accident in time and space is necessary, a plaintiff might recover when he comes from nearby and very soon upon the scene. I would regard those considerations to be relevant to the finding of facts, but not to be principles limiting liability. The question whether a plaintiff comes to the scene of an accident as rescuer (and may recover) or out of mere curiosity (so that he may properly be regarded as the author of his own shock) can be decided by reference to the currently accepted principles. Persons "of whom it could be said that one could expect nothing else than that he or she would come immediately to the scene - normally a parent or a spouse" (persons whom Lord Wilberforce would hold to be entitled to recover) are accommodated within those principles. I do not find it desirable as a matter of policy or permissible as a technique of judicial development of the law to create new criteria of limitation upon the scope of the cause of action in negligence causing psychiatric illness. The thing will stop where good sense in the finding of facts stops it. In each case where causation is established, the question of fact is whether it was reasonably foreseeable by the defendant that his conduct might bring about a phenomenon the sudden perception of which by the plaintiff or by a class of which the plaintiff is a member might induce a psychiatric illness, assuming the plaintiff or the members of that class to be of a normal standard of susceptibility. Of course, the room for judgment is manifest as it always is in the evaluation of facts, but that provides no warrant for introducing new criteria to limit liability. I would agree, with respect, with Burbury C.J. who said in Storm v. Geeves [20] : It can now I think be taken to be clear that the limits of liability for injury by nervous shock are to be determined only by a proper judicial application of the general test of reasonable foreseeability of that kind of injury in all the circumstances of the particular case. 1. [1983] 1 A.C., at p. 422. 2. (1970) 125 C.L.R., at p. 404. 3. [1983] 1 A.C. 410. 4. [1965] Tas. S.R., at pp. 261-262.

[67]

It is true that no decision was cited to your Lordships in which the contrary has been held, but that is not to say that reasonable foreseeability is the only test of the validity of a claim brought in negligence. Both of their Lordships referred to what Lord Reid had said in McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [23] and to what Lord Wilberforce had said in Anns v. Merton London Borough Council [24] . Lord Reid's speech, however, was not concerned with reasonable foreseeability as the criterion of a duty of care; he was pointing out, as this Court pointed out in Chapman v. Hearse [25] , that liability in negligence does not extend to consequences that are not caused, in the eye of the law, by the defendant's act or omission. The context makes that clear [26] : His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not think that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as being quite likely. Lord Wilberforce's speech in Anns , however, was concerned with the criterion of reasonable foreseeability in torts which have developed from the general conception expressed by Lord Atkin in Donoghue v. Stevenson [27] . In Anns , Lord Wilberforce said [28] : Through the trilogy of cases in this House - Donoghue v. Stevenson, Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [29] , and Dorset Yacht Co. Ltd. v. Home Office [30] , the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise: see Dorset Yacht Case [31] , per Lord Reid. Examples of this are Hedley Byrne's Case where the class of potential plaintiffs was reduced to those shown to have relied upon the correctness of statements made, and Weller & Co. v. Foot and Mouth Disease Research Institute [32] ; and (I cite these merely as illustrations, without discussion) cases about "economic loss" where, a duty having been held to exist, the nature of the recoverable damages was limited: see S.C.M. (United Kingdom) Ltd. v. W. J. Whittal & Son Ltd. [33] and Spartan Steel & Alloys Ltd. v. Martin & Co. (Contractors) Ltd. [34] . The "sufficient relationship of proximity or neighbourhood" to which his Lordship refers in the first stage of the approach is Lord Atkin's well-known neighbour principle, as Lord Devlin explained in Hedley Byrne [35] : What Lord Atkin called [36] a "general conception of relations giving rise to a duty of care" is now often referred to as the principle of proximity. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. In the eyes of the law your neighbour is a person who is so closely and directly affected by your act that you ought reasonably to have him in contemplation as being so affected when you are directing your mind to the acts or omissions which are called in question. 1. [1983] 1 A.C., at p. 420. 2. [1983] 1 A.C., at p. 426. 3. [1969] 3 All E.R. 1621. 4. [1978] A.C. 728, at p. 752. 5. (1961) 106 C.L.R. 112. 6. [1969] 3 All E.R., at p. 1623. 7. [1932] A.C. 562. 8. [1978] A.C., at pp. 751-752. 9. [1964] A.C. 465. 10. [1970] A.C. 1004. 11. [1970] A.C., at p. 1027. 12. [1966] 1 Q.B. 569. 13. [1971] 1 Q.B. 337. 14. [1973] Q.B. 27. 15. [1964] A.C., at p. 524. 16. [1932] A.C. 562, at p. 580.

[76]

It remains to apply these principles to the facts as found in the present case. Mrs. Coffey's psychiatric illness was caused by seeing her husband in the Royal Adelaide Hospital some time after the accident, not by seeing him on the roadway immediately after the accident. No special principle governs the cases where the relevant phenomenon is set in a hospital rather than on a roadway, nor is there a special principle applicable when the relevant phenomenon is perceived hours rather than minutes after the careless act or omission produced its first consequences. Allan's movement by ambulance to the hospital and the lapse of time before Mrs. Coffey saw him might have provided an opportunity for other people to intervene so that his appearance in the hospital would not fairly be regarded as the result of the defendant's carelessness or the reasonably foreseeable result of it. But Allan was taken from the scene of the accident directly to a hospital for treatment of his injuries, Mrs. Coffey was quickly summoned to him there, and nothing untoward was shown to have intervened to exacerbate Allan's distressing appearance. In those circumstances, there is no reason why the resolution of the case should be governed by considerations different from those which would apply if she had been summoned to the scene of the accident. Liability cannot rationally be made to depend upon a race between a spouse and an ambulance; it must depend upon what the spouse perceives, its effect upon her, and whether her perceptions and their effect are the reasonably foreseeable results of the defendant's careless conduct. It was certain that Allan would have to be taken to hospital and treated there for his injuries. His treatment is not shown to be out of the ordinary for the injuries he sustained. Mrs. Coffey's presence at the hospital was the result of the defendant's infliction of injuries on her husband. It was reasonably foreseeable that Mrs. Coffey would be at the hospital to observe Allan and what happened to him that night. On the assumption that Mrs. Coffey was of a normal standard of susceptibility ("of normal fortitude", as Bollen J. put it), was it reasonably foreseeable that what she might see and hear that night would be such an affront or insult to her mind that she might suffer a psychiatric illness? Bollen J. answered that question in Mrs. Coffey's favour. It is a question of fact and, although an affirmative answer to that question was not beyond argument, the answer given by Bollen J. makes good sense and I do not think it should be disturbed.

[78]

The closest that the common law has come to providing a general remedy in respect of injurious conduct is the modern law of negligence with its hypothetical "neighbour" and associated test of "reasonable foreseeability". The common law duty to a "neighbour" has, however, scant in common with its New Testament equivalent; both priest and Levite ensured performance of any common law duty of care to the stricken traveller when, by crossing to the other side of the road, they avoided any risk of throwing up dust in his wounds: cf. Dorset Yacht Co. Ltd. v. Home Office [52] . In Donoghue v. Stevenson [53] , the common law duty of care was defined, for the purposes of the law of negligence, as the duty to take reasonable care when it can be reasonably foreseen that one's "acts or omissions" are likely to injure one's "neighbour". A "neighbour" was identified as being, in the view of the common law, a person who is "so closely and directly affected by my act that I ought reasonably to have [him or her] in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question" [53] . The significance of the requirement contained in the words "so closely and directly affected that" is that they constitute a control upon the test of reasonable foreseeability of injury. Lord Atkin was at pains to stress that the formulation of a duty of care merely in the general terms of reasonable foreseeability would be too wide unless it were "limited by the notion of proximity" which was embodied in the restriction of the duty of care to one's "neighbour" [54] . He traced that notion of proximity to the judgments of Lord Esher M.R. and A. L. Smith L.J. in Le Lievre v. Gould [55] but added an important explanation or qualification. The references to "proximity" in Le Lievre v. Gould had been couched in terms of physical proximity. Lord Atkin pointed out that physical proximity was but one facet of the proximity requirement that constituted an overriding control of the test of reasonable foreseeability in the law of negligence: the notion of proximity should "be not confined to mere physical proximity, but be used, as I think it was intended, to extend to such close and direct relations that the act complained of directly affects a person" [56] ; and see per Lord Macmillan [57] .

[80]

The notions of reasonable foreseeability and of proximity of relationship which were enunciated in Lord Atkin's speech in Donoghue v. Stevenson are related. The fact that an act of one person can be reasonably foreseen as "likely to injure" another is an indication, and, as will be seen, sometimes an adequate indication, that the requirement of "proximity" is satisfied. At the same time, the overall proximity of the relationship between the person or property of the plaintiff and that of the defendant or between the allegedly negligent act and its effect may be relevant to the question whether injury to the plaintiff was reasonably foreseeable. Lord Atkin's "restricted reply" to the common lawyer's question "who is my neighbour?" was not, however, couched in the unqualified terms of reasonable foreseeability which would, in the context, have served merely to provide a diversionary circuity of reasoning. The "neighbour" requirement ("this necessary qualification" [58] ) was a substantive and independent one which was deliberately and expressly introduced to limit or control the test of reasonable foreseeability. As explained and expanded in terms of "proximity" ("the relation being so close that the duty arises" and " so close as to create a duty": [59] , emphasis added), it differed in nature from the test of reasonable foreseeability in that it involved both an evaluation of the closeness of the relationship and a judgment of the legal consequences of that evaluation. The proposition to be found in the writings of some eminent jurists that Lord Atkin's "neighbour" or "proximity" requirement was an exercise in tautology (see, e.g., Professor Stone, The Province and Function of Law (1946), pp. 181-182; Professor Morison, A Re-examination of the Duty of Care, Modern Law Review, vol. 11 (1948), at pp. 12-13, 33 and Professor Winfield, Selected Legal Essays (1952), p. 70ff., and cf. per Windeyer J., Hargrave v. Goldman [60] and per Mahoney J.A., Minister for Environmental Planning v. San Sebastian Pty. Ltd. [61] ) is, as Professor Morison points out, based on the premise that Lord Atkin's overriding requirement of proximity involved no more than the notion of reasonable foreseeability. As I have indicated, that is a premise which I am quite unable to accept.

[82]

The more than fifty years which have passed since the decision in Donoghue v. Stevenson [62] have been marked by an apparent general ascendancy of the test of reasonable foreseeability in the law of negligence, at least in cases involving physical damage to person or property. Other restraints and requirements have tended to be eclipsed or overshadowed. Not without some disagreement (see, e.g., Caterson v. Commissioner of Railways [63] ), the requirement that it be reasonably foreseeable that injury was "likely" has been discarded and reasonable foreseeability of a mere (but "real") risk of injury to another, regardless of its likelihood, has been accepted as the appropriate foreseeability test: see C. Czarnikow Ltd. v. Koufos [64] ; The Wagon Mound [No. 2] [65] . "Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful": per Mason J., Wyong Shire Council v. Shirt [66] . Reasonable foreseeability has also displaced "directness" as the "effective test" for determining questions of the extent of recoverable damage: The Wagon Mound [No. 1] [67] ; Mount Isa Mines Ltd. v. Pusey [68] . In the context of the conclusion in The Wagon Mound [No. 1] that the damage was not reasonably foreseeable, more prominence was understandably given in their Lordships' reasons to the restrictive effect of the decision, namely, the imposition of the requirement that compensation be limited to damage which was reasonably foreseeable. The expansive effect of the decision was, however, of at least equal importance from the viewpoint of principle in that it removed the requirement of "directness" as an independent overriding control of recoverable damages for foreseeable injury. Overall, one cannot but be conscious of the emergence of a common, although mistaken, tendency to see the test of reasonable foreseeability as a panacea and, what is of more importance for present purposes, to refer to it as if it were, from the viewpoint of principle, the sole determinant of the existence of a duty of care.

[84]

Given the circumstances of a particular case, the question whether a common law duty of care exists is a question of law. It is inevitable that, in cases falling within some closely settled areas of the law of negligence such as cases involving ordinary physical injury to an employee in an accident at his place of work or to one user of a public road involved in a collision with another, it will have been established in previous cases that the relationship between the parties necessarily possesses the requisite degree of proximity. In at least most other cases involving ordinary physical injury to a person or his property as a consequence of the direct impact of an act of the other party, it will have been established in previous cases that if the risk of injury was reasonably foreseeable, any proximity requirement is satisfied: cf. per Jacobs J., Caltex Oil (Australia) Pty. Ltd. v. The Dredge "Willemstad" [69] . The result has been that, in cases involving direct physical damage to person or property, separate reference to any notion of proximity has come to be commonly regarded as either unnecessary or as being appropriately formulated in terms of being satisfied if the physical injury sustained was of a kind which was reasonably foreseeable. This approach is unobjectionable provided that one does not lose sight of the fact that reasonable foreseeability of injury was propounded by Lord Atkin in Donoghue v. Stevenson as constituting, on its own, no more than an incomplete determinant of a common law duty of care in the sense that such a duty of care will not be owed to a particular plaintiff unless the requirement of proximity in the relationship between plaintiff and defendant with respect to the relevant act and injury is satisfied. The fact that, as a practical matter, any separate requirement of proximity is commonly disregarded in cases where no issue is raised about it does not establish that it has been discarded as a matter of principle. All that that fact establishes is that, in such cases, the requirement of proximity is not a subject of dispute. Even in such cases however, one tends to find a deliberate qualification in more carefully worded judgments of any equation between reasonable foreseeability and a duty of care. Thus, in Wyong Shire Council v. Shirt [70] , Mason J., in a judgment with which Stephen and Aickin JJ. expressed full agreement, described the duty of care which "arises on the part of a defendant to a plaintiff" when the test of reasonable foreseeability is satisfied as but a "prima facie" one. It would seem clear enough that his Honour's description of the "duty of care" as "prima facie" indicated acceptance of the existence of requirements or limitations whose operation may preclude the existence of a duty of care: see his Honour's judgment in The Dredge "Willemstad" Case [71] , and that of Stephen J. [72] . What can properly be deduced from Mason J.'s remarks is that, to adopt and qualify words used by Lord Reid in the Dorset Yacht Co. Case [73] , the time has come when an equation between reasonable foreseeability of injury and a duty of care under the law of negligence can be accepted in cases involving ordinary physical injury unless there be "some justification or valid explanation for its exclusion". That approach corresponds generally with that adopted by Lord Wilberforce in the oft cited passage from his judgment in Anns v. Merton London Borough Council [74] . Upon analysis, it reflects an acceptance, rather than a denial, of the existence of overriding limitations upon the test of reasonable foreseeability.

[105]

In Chester's Case, the Court held, by majority, that the respondent local council was not liable in negligence for nervous shock suffered by a mother as a result of seeing the body of her seven-year-old son being recovered from a water-filled trench which the council had excavated in a public street and negligently failed to fence or otherwise render safe. The case was decided after cases such as Hambrook v. Stokes [18] and Owens v. Liverpool Corporation [19] had recognized that psychiatric illness resulting from shock was an injury capable of sounding in damages for the purposes of the law of negligence. The decision in Chester was expressed to turn on the question of reasonable foreseeability. It was held by the majority (Latham C.J., Rich and Starke JJ.) that, on the facts of the case, a finding was not open that harm to the plaintiff of the kind suffered was reasonably foreseeable: "it cannot be said that such damage (that is, nervous shock) resulting from a mother seeing the dead body of her child should be regarded as "within the reasonable anticipation of the defendant". "A reasonable person would not foresee" that the negligence of the defendant towards the child would "so affect" a mother" (per Latham C.J. [20] , using phraseology taken from Donoghue v. Stevenson [21] and Re Polemis [22] . Examination of the majority judgments discloses, however, that Latham C.J. and Rich J. were openly influenced in their decision by policy considerations, particularly a "floodgates" fear of countless actions: see Latham C.J. [23] and Rich J. [24] : "the law must fix a point where its remedies stop short of complete reparation for the world at large, which might appear just to a logician who neglected all the social consequences which ought to be weighed on the other side"). While such considerations may well be relevant to an overriding proximity requirement, they have little bearing on the question whether a risk of injury was reasonably foreseeable. In the only dissenting judgment, Evatt J. rejected the proposition that it was not reasonably foreseeable that a mother seeing the body of her drowned child taken from a water-filled trench might suffer injury in the form of nervous shock. His Honour adverted, however, to considerations of public policy ("the risk of too wide an extension of liability in cases where proof is beset with special difficulties" [25] and accepted [26] ) what can accurately be described as an operative proximity limitation upon the ordinary test of reasonable foreseeability. The relevant duty of care to avoid action which might cause injury by way of nervous shock to those not subjected to risk of direct physical injury was, his Honour said, owed only to those already present at or in the immediate vicinity of the scene of the actual or apprehended casualty and those "who will be brought to the scene for the purpose either of preventing the casualty altogether, or of minimizing its injurious consequences, or in the course of a search to discover and rescue or aid any person who is feared on reasonable grounds to have been injured in the casualty" (emphasis added). In other words, the relevant duty of care was seen by Evatt J. as being owed only to whose who are already in the vicinity of the accident or who are brought, and could reasonably have been foreseen as being likely to be brought, to the scene of the accident to render comfort, aid or assistance.

[108]

As has been said, both the learned trial judge and the Full Court of the Supreme Court held that the risk of injury by nervous shock to Mrs. Coffey was reasonably foreseeable. In my view, that finding was correct. It is reasonably foreseeable that the negligent driving of a vehicle on a public road is liable to cause physical injury to another user of the road and mental illness, in the form of nervous shock, to a loving spouse who is caught up in the immediate consequences of the accident and the worry and uncertainty of urgent post-accident medical treatment and surgery. The fact that a husband or wife goes straight to the hospital where his or her injured spouse is being, or has been, taken rather than to the actual scene of the accident cannot rationally be said to have the effect that the relevant risk of injury by way of nervous shock can no longer be regarded as having been reasonably foreseeable. For that matter, it is easy to envisage circumstances, such as an injury to the spinal cord caused in a bloodless accident, in which the shock sustained by involvement in the aftermath of the accident on attendance at the hospital would render insignificant any shock which was or would have been sustained by prior attendance at the scene of the accident. Indeed, the present would appear to be such a case in that the more serious injuries sustained by Mr. Coffey, namely the injuries to his liver and kidneys, were only identified after he had been taken to hospital. If the scope of the duty of care of a user of the highway is to be limited as extending only to other users of the highway and those persons who actually attend the scene of an accident, it must be on some basis other than a genuine or realistic consideration of reasonable foreseeability. It follows that the answer to the first of the above questions is that the fact that Mrs. Coffey sustained nervous shock at the hospital rather than at the scene of the accident cannot rationally be seen as having the consequence that the risk of such injury to her was not reasonably foreseeable. I turn to the consideration of the second and more difficult question, namely, whether the requirement of proximity or some other overriding limitation operates to confine the class of persons to whom a duty of care in respect of a reasonably foreseeable risk of injury in the form of nervous shock is owed.

[109]

The changes and developments in views about liability for nervous shock which are to be found in cases during the last hundred years are, to a large extent, to be explained by reference to increasing knowledge of the nature of mental injury and illness caused by shock: the law, "marching with medicine but in the rear and limping a little" has, "cautious step by cautious step" (per Windeyer J., Mount Isa Mines Ltd. v. Pusey [27] ) come to accept that mental illness occasioned by nervous shock is as much a real injury caused to a person as conventional bodily damage sustained as a result of physical impact. While one can find, in some reported cases, support for the view that reasonable foreseeability of injury by nervous shock necessarily gives rise to a duty of care (see, e.g., the judgment of Burbury C.J., Storm v. Geeves [28] ), the actual attempts to identify classes of persons to whom that duty can be owed, which one finds in such cases, indicate the influence of what have been described as "subterranean" restraints. In most cases, however, one finds the clear approach that the duty of care in nervous shock cases is restricted by external limitations upon the ordinary test of reasonable foreseeability. If the relevant cases had merely involved decisions of courts of first instance on questions of fact, one could, perhaps, seek to reconcile the actual decisions with the view that "the only rational and satisfactory test is one based on reasonable foreseeability" simpliciter by stressing that each decision must be viewed "in the circumstances of the particular case": see Professor A. L. Goodhart, The Shock Cases and Area of Risk, Modern Law Review, vol. 16 (1953), at pp. 23-24. The critical cases were, however, mainly decisions of appellate courts on a question of law, namely, the question whether the common law recognized a relevant duty of care in ascertained circumstances. Unless one is to mutilate reasonable foreseeability to accord with operative but concealed considerations of policy, it must be acknowledged that the decided cases strongly support the view that the requirement of a relationship of proximity operates to impose particular criteria which must be satisfied by a plaintiff before a duty of care in respect of a reasonably foreseeable injury in the form of nervous shock will be held to have arisen in her or his favour. The requirement does not so operate in cases, such as Donoghue v. Stevenson itself, where mental injury or illness results from, or is associated with, conventional bodily injury caused to the affected person by actual physical impact or ordinary physical reaction. The limiting effect of the requirement is restricted to cases involving what may conveniently be called "mere psychiatric injury", that is to say, psychoneurosis and mental illness which is not the adjunct of ordinary bodily injury to the person affected.

[117]

The third of the unfortunate trio was Mrs. Bourhill. She is doomed to celebrity in the pages of the Law Reports, in language thought acceptable in another era, as the pregnant "fishwife". Her action failed because it was held by the House of Lords (Sc.) that the injury in the form of shock which she sustained was not, as a matter of law, within the limits of what was reasonably foreseeable. The circumstances of the case were that Mrs. Bourhill was in the process of being laden with her fish basket within some 15 metres of the point of impact of a fatal collision and that, according to her evidence which had apparently been accepted by the Lord Ordinary in Scotland, the effect of the sudden noise of the crash was that she was reduced to "a pack of nerves" and did not know whether she was "going to get it or not". The case was, however, conducted in the House of Lords [39] on the basis that Mrs. Bourhill's injury in the form of nervous shock had not resulted from any fear of physical injury to herself. Be that as it may, examination of the speeches in Bourhill v. Young discloses the continued acceptance of external limitations upon the ordinary test of reasonable foreseeability. In that regard, three things should be mentioned: (i) the judgments of a majority of their Lordships confirmed the rejection in Hambrook v. Stokes Bros. of any rigid overriding rule restricting liability in negligence for pure nervous shock to shock arising from fear for one's own safety [40] but cf. at pp. 103, 105; (ii) one finds in the judgments an implicit (explicit in the case of Lord Porter [41] ) acceptance of a refinement of the ordinary test of reasonable foreseeability of injury which has subsequently received general acceptance: in the case of mere psychiatric injury, the requirement of reasonable foreseeability will not be satisfied unless injury in that particular form, as distinct from personal injury generally (cf. per Atkin L.J., Hambrook v. Stokes Bros. [42] and per Singleton L.J., King v. Phillips [43] ), was reasonably foreseeable (see King v. Phillips [44] ; The Wagon Mound [No. 1] [45] ; Mount Isa Mines Ltd. v. Pusey [46] ); and (iii) the judgments support the view that, at least in the case of mere nervous shock sustained as a result of an accident on the highway, there is an operative proximity requirement restricting any relevant duty of care to a duty to persons within the area within which physical injury might have been sustained: "persons on the highway or in premises adjoining the highway": per Lord Russell of Killowen [47] and Lord Macmillan [48] both quoting Lord Jamieson in the Scottish Court of Session [49] ; and see also per Lord Thankerton [50] and per Lord Porter [51] . Upon analysis, there is a degree of tension between (ii) and (iii) in that, if the relevant foreseeability requirement in a case involving mere psychiatric injury is a requirement of reasonable foreseeability of injury in that form, it is somewhat difficult to see any rational basis for a proximity requirement limiting liability for such injury to liability to those within the area of possible physical injury in the conventional sense. To the contrary, an inflexible overriding limitation in that particular form would plainly be liable to lead to results that do not, at least in a contemporary context, lie well either with the ordinary processes of legal reasoning or with common sense. It seems to me, with due respect, that that is well illustrated by the case of King v. Phillips [52] .

[119]

In King v. Phillips, the English Court of Appeal upheld a finding of the trial judge (McNair J.) that taxicab driver who had negligently backed his vehicle into a small boy riding his tricycle was not liable in negligence to the child's mother who, on hearing him scream, had suffered injury in the form of nervous shock when she looked out the window of her home and saw the tricycle under the cab. The basis of the decision of both McNair J. and a majority (Singleton and Hodson L.JJ.) of the Court of Appeal was the existence of a proximity requirement which operated to preclude recovery by reason of the fact that the mother's observations had been from the window of her home which was some six houses up a street from the intersection where the accident occurred where she was not within the area of potential physical danger. The rationale of a rule which determines the entitlement of a mother to recover damages for nervous shock, sustained as a result of her observation from the window of her home of an accident involving the possible death of her child according to whether she was herself within the area of potential physical danger remains unexplained in the judgments. The judgment of Denning L.J. demonstrates that an acceptable explanation of the denial of liability in the particular case is not to be found by reference to the ordinary test of reasonable foreseeability simpliciter. His Lordship, in an effort to accommodate that test to what had been said and decided in Hambrook v. Stokes Bros. and Bourhill v. Young, was driven to conclude that it was reasonably foreseeable that a mother would suffer nervous shock on seeing a runaway lorry enter a street in which she thought her children would be whereas it was not foreseeable that a mother would suffer nervous shock when, on hearing her small boy scream, she looked out the window of her home and saw his tricycle under a car and was unable to see any sign of him: the basis of the perceived distinction was, apparently, the difference between "the terrifying descent of the runaway lorry" and "the slow backing of the taxicab" [53] .

[120]

The reported Australian cases since 1939, when Chester v. Waverley Corporation [54] was decided, have tended to isolate that decision by treating it as confined to its particular facts. Reference should first be made to the decision of this Court in Mount Isa Mines Ltd. v. Pusey [55] . That was a case involving mere nervous shock sustained by the plaintiff who went to the aid of a fellow employee who had been horribly burned when testing a switchboard in the premises in which both were employed. The plaintiff had not seen the accident but went to the scene immediately after its occurrence and became involved in its immediate aftermath. He was not related to the injured employee. He was held to be entitled to recover damages from the employer who had negligently failed to take reasonable steps to avoid the reasonably foreseeable occurrence of an incident such as that in which the fellow employee had been burned. The decision in the case must, however, be understood in the context of the relationship of employer and employee and of the specific issues which had been raised by the notice of appeal: in that context, the case was seen by all members of the Court as turning on the limited issue whether it had been reasonably foreseeable that there was a risk of injury by mere nervous shock to an employee in the position of the plaintiff [56] . While the case may, upon proper analysis, lend support for a general proposition that an employer is liable for damages in respect of nervous shock sustained by an employee at his place of employment in circumstances where the employer has failed to take reasonable steps to avoid a reasonably foreseeable risk of injury in that form, Pusey is not authority for any such unqualified proposition in a case where the proximity involved in the relationship of employer and employee is not to be found. No such special pre-existing relationship between plaintiff and defendant existed in any of the other three Australian cases to which specific reference should be made at this stage. They are Storm v. Geeves [57] , Benson v. Lee [58] and Pratt and Goldsmith v. Pratt [59] .

[123]

In our view, it is still the law that, while reasonable foreseeability is essential to any liability for negligence, such foreseeability by itself does not in all situations impose a duty of care. In the case of the driver of a vehicle on the highway, his duty does not, save in exceptional circumstances, extend beyond road users in the neighbourhood or persons who are themselves on or who have property adjacent to the roadway. Policy and reasons of humanity have extended by way of exceptional cases the primary duty to take care to those injured in the course of rescue attempts or the like: Chapman v. Hearse [62] ; Chadwick v. British Railways Board [63] ; Fleming Law of Torts, 4th ed. (1971), p. 157. Likewise, these considerations have dictated that relatives of an accident victim suffering harm by reason of nervous shock should have a cause of action if their shock not only is foreseeable by the tortfeasor, but also the relative is in sufficient proximity to the tortfeasor's carelessness But beyond this the law has not yet gone nor do we think it is for us to attempt to take it (emphasis added). The statement, in the last sentence of the above passage, that "beyond this the law has not yet gone" now requires qualification, at least in so far as the law of England is concerned, in the light of the recent case of McLoughlin v. O'Brian [64] where the plaintiff, whose husband and two children had been injured and whose third child had been killed in a road accident, was unanimously held by the House of Lords to be entitled to recover damages from the negligent driver for nervous shock sustained when she went to the hospital some two hours after the accident had occurred and there learned of her child's death and saw her husband and the two other children, injured and covered in mud and oil. The plaintiff had been at her home some two miles from the scene of the accident and had not been told of it until almost two hours after it had occurred. 1. [1975] V.R., at p. 382. 2. [1975] V.R., at p. 386. 3. (1961) 106 C.L.R. 112. 4. [1967] 1 W.L.R. 912; [1967] 2 All E.R. 945. 5. [1983] 1 A.C. 410.

[126]

The general approach of Lord Wilberforce in McLoughlin , namely, that liability in negligence for mere psychiatric injury does not fall to be determined by reference merely to a test of reasonable foreseeability, is plainly that which accords with the overwhelming weight of prior authority. In any field of law however, there may arise the rare "landmark" case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law. In such a case, the judicial function may be seen to impinge, albeit in a subordinate role in that it remains subject to being overridden by legislative action, upon the function of the legislature and it is at least possible that judicial method and ability are liable to be exposed as wanting. The reassessment of the content of the particular rule or rules of law in such a case is, nonetheless, an unavoidable concomitant of the proper performance of the judicial function if the law is not to lose contact with the social needs which justify its existence and which it exists to serve. Even in such a case, however, the distinction between the judicial and legislative functions should never be forgotten and any reassessment of the content of relevant rules should be approached with due regard to existing authority and established principle: see, generally, per Windeyer J. in Pusey [68] and per Lord Edmund-Davies in McLoughlin [69] . McLoughlin would appear to have been such a landmark case for the United Kingdom. It is arguable that the present should be seen as such a case for Australia. At the least, the present case requires, in the light of the speeches in McLoughlin , reassessment of the effect of the operation of a proximity requirement or other overriding control to limit liability in negligence for mere psychiatric injury sustained by a person as a result of actual or threatened injury to another in a road accident.

[128]

Despite the advances in knowledge of mental illnesses since the majority decision in Chester v. Waverley Corporation, much remains unexplained and uncertain even among experts. Expert opinion is available to support a number of differing (at least as regards matters of emphasis) propositions as to the likely causes of mere psychiatric injury consequent upon an accident involving actual or threatened serious physical injury to another. They include: that the most important explanation of nervous shock resulting from injury to another is the existence of a close, constructive and loving relationship with that person (a "close relative") and that it is largely immaterial whether the close relative is at the scene of the accident or how he or she learns of it (see, e.g., D. J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, Journal of Family Law, vol. 15 (1976-1977), p. 196); that genuine nervous shock can be caused to a person caught up in a disaster in which neither that person nor any one in a pre-existing relationship with him or her is physically injured or threatened (see, e.g., Raphael, Singh and Bradbury, Disaster: The Helpers' Perspective, Medical Journal of Australia, vol. 2 (1980), pp. 445-447); that there is no necessary correlation between psychiatric illness caused by nervous shock and the severity of the "shock": see, e.g., Parker, Accident Litigant with Neurotic Systems, Medical Journal of Australia, vol. 2 (1977), p. 320, but cf. N.T. Sidley, Proximate Cause and Traumatic Neurosis, Bulletin of The American Academy of Psychiatry and the Law, vol. 11 (1983), pp. 200-202. There is continued expert support for the Freudian view which emphasized the importance of the element of sudden fright or surprise in neurosis following trauma: see E. K. Madruga, Some Legal Aspects of Post-Traumatic Neurosis in Obilos, Ballus, Monclus, and Pujo (eds.), Biological Psychiatry Today (1979), p. 1549. There is also strong expert support for the proposition that there is a real - and foreseeable - risk that psychiatric illness may result from mental stress during the period consequent upon bereavement, particularly conjugal bereavement, or during a period of constant association and care of a badly injured spouse or other close relative independently of any shock sustained at the time of the actual death or injury. While it must now be accepted that any realistic assessment of the reasonably foreseeable consequences of an accident involving actual or threatened serious bodily injury must, in an appropriate case, include the possibility of injury in the form of nervous shock being sustained by a wide range of persons not physically injured in the accident, the outer limits of reasonable foreseeability of mere psychiatric injury cannot be identified in the abstract or in advance. Much may depend upon the nature of the negligent act or omission, on the gravity or apparent gravity of any actual or apprehended injury and on any expert evidence about the nature and explanation of the particular psychiatric injury which the plaintiff has sustained. That being so, it is not possible to define with precision the practical effect of the conscious alteration of the common law which would be involved in acceptance of the proposition that reasonable foreseeability simpliciter should be accepted as the determinant of liability for nervous shock. What is clear, however, is that that conscious alteration of the law would be much more far reaching and less discriminating than that effected by legislation in those Australian jurisdictions where legislative action was taken to overcome the effect of the majority decision in Chester .

[134]

If liability in negligence for nervous shock caused by the death, injury or peril of another in a road accident fell to be determined by reference to an unqualified test of reasonable foreseeability, there would be no proper basis for excluding liability on the part of the injured person, her or his estate or her or his compulsory third party insurer for mere psychiatric injury which was sustained by another as a result of the self-inflicted death, injury or peril of the negligent person in circumstances where the risk of such psychiatric injury was reasonably foreseeable: cf. Bourhill v. Young's Executor [70] . Nor, on an unqualified test of reasonable foreseeability, would there be any rational basis for excluding liability to a close relative or friend who has no contact with the accident or its immediate aftermath but who suffers reasonably foreseeable nervous shock by reason of constant social contact, as loyal nurse or companion, with the injured victim. It is conceivable that, if left to develop by analogy and logical necessity on a case by case basis, the common law in Australia may eventually change to the extent that it comes to recognize liability in some or all of such cases. It has not, however, recognized any such liability up to now. These are but two examples of types of case in which judicial abrogation of the operation of a proximity requirement or any other special control to limit liability for nervous shock would, unless the law were to revert to strict and rigid general notions of causation and remoteness of damage which were discarded in the wake of the Wagon Mound Cases [71] or to the narrow approach to reasonable foreseeability which, apparently, enjoys some lingering support in at least some United States jurisdictions (see, e.g., Dillon v. Legg [72] : "excluding the remote and unexpected"; Hathaway v. Superior Court of Fresno County [73] ; Yandrich v. Radic [74] ), involve the peremptory imposition of liability where the law, up to now, has recognized none. What, one is led to ask, is the pressing demand of principle or policy which necessitates the unqualified destruction of any such overriding limitation upon reasonable foreseeability? The answer, for this country, is that there is none. In so far as principle is concerned, both general principle and the general framework of the law of negligence allow, as has been seen, room for the operation of special overriding rules to exclude, in certain areas, the implication of a duty of care by reference to the ordinary test of reasonable foreseeability and recognize the requirement of proximity as a general overriding requirement of the law of negligence which may operate, in an appropriate case, to preclude or confine the prima facie duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. In so far as policy is concerned, the arguments for and against the removal of any overriding control of the test of reasonable foreseeability in cases of mere psychiatric injury are finely balanced and, as Lord Scarman pointed out in McLoughlin [75] , more appropriate for legislative than judicial consideration. While the present case does call for a reassessment of the effect of the operation of the requirement of proximity and any other overriding control upon the test of reasonable foreseeability in cases of mere nervous shock, neither principle nor considerations of public policy require or justify the conclusion that no such requirement or control is operative in such cases. In that regard, it is relevant to note that Lord Scarman and Lord Bridge of Harwich appear, in their speeches in McLoughlin , not to have excluded completely the possibility that some overriding limitation on reasonable foreseeability might be appropriate in addition to the general refinement that, in cases of mere psychiatric injury, risk of injury in that particular form must have been reasonably foreseeable. Lord Scarman [76] confined his statement that "common law principle requires the judges" to apply an "untrammelled" reasonable foreseeability test to "circumstances were it is appropriate". Lord Bridge [77] appears to have restricted his acceptance of an unqualified foreseeability test in cases of mere psychiatric injury to cases where such injury is caused by the death, injury or apprehended injury of someone other than the person whose negligence was responsible for the accident, that is to say, of someone who was, in any event, a "negligent tortfeasor". Once mere psychiatric injury is accepted as sounding in damages for the purposes of the law of negligence and as being, in an appropriate case, reasonably foreseeable in the relevant sense, the duty of care in respect of a foreseeable risk of mere psychiatric injury is an independent and primary duty owed to the person at risk of such injury: see, per Barwick C.J. and Taylor J., Scala v. Mammolitti [78] and per Windeyer J., Pusey [79] . That being so, that function performed by any rule confining the existence of a duty of care to avoid such injury to the case where there has been some breach of a duty of care owed to some other person to avoid ordinary bodily injury is that of an overriding control of the test of reasonable foreseeability.

[136]

The limitations upon the ordinary test of reasonable foreseeability in cases of mere psychiatric injury are conveniently stated in negative form. Two of them have already been mentioned. The first of those is that reasonable foreseeability of risk of personal injury generally will not suffice to give rise to a duty of care to avoid psychiatric injury unassociated with conventional physical injury: a duty of care will not arise unless risk of injury in that particular form was reasonably foreseeable. The other is that, on the present state of the law, such a duty of care will not exist unless the reasonably foreseeable psychiatric injury was sustained as a result of the death, injury or peril of someone other than the person whose carelessness is alleged to have caused the injury; there is no need to consider here whether this limitation should be more widely stated as excluding such a duty of care unless the carelessness was in any event wrongful in the sense that it involved a breach of a duty of care owed to the person who suffered or was at risk of physical injury: cf., e.g., a case where a defence of volenti non fit injuria is available against that person and see, generally, Scala v. Mammolitti [80] . Both are satisfied in the present case and it is unnecessary to determine whether each or either of them is properly to be seen as part of the requirement of proximity of relationship or as constituting some other and special controlling rule based on policy considerations. As at present advised, I am inclined to see them as necessary criteria of the existence of the requisite proximity of relationship in the sense that, for policy reasons, the relationship will not be adjudged as being "so" close "as" to give rise to a duty of care unless they be satisfied. What is of critical importance for the purposes of the present appeal is the identification of the content of any further criteria included in the general line of demarcation which can, in the light of the cases, properly be drawn "between what is and is not a sufficient degree of proximity" in cases of mere psychiatric injury: cf. per Stephen J., The Dredge "Willemstad" [81] . I turn to that question of identification.

[138]

The decisions involving mere psychiatric injury are obviously not all reconcilable. Some, such as Chester v. Waverley Corporation [82] and King v. Phillips [83] , are best seen as out of accord with preferable authority and as no longer acceptable even in relation to their own facts. The three more recent Australian decisions to which particular reference has been made - Storm v. Geeves [84] , Benson v. Lee [85] and Pratt [1] - fall readily into an overall perspective and, with the guidance of what has been said and decided in other cases and in other jurisdictions, enable the identification of the area in which the boundary lies between what will and what will not satisfy the overriding requirement of proximity at least in cases involving mere psychiatric injury sustained as a result of carelessness in the use of a public road. The decided cases have been largely confined to circumstances where the psychiatric injury resulted from direct sensory observation at the scene of the apprehended or actual injury. The successful plaintiffs in cases involving those circumstances have included persons who have suffered psychiatric injury as a result of apprehended physical injury to themselves (see, e.g., Bell v. Great Northern Railway Co. [2] ; Dulieu v. White [3] ) and persons who have suffered such injury as a result of apprehended or actual physical injury to a son or daughter (see, e.g., Hambrook v. Stokes Bros. [4] ; Benson v. Lee, to some other close relative such as a brother (Storm v. Geeves), or to a stranger (Chadwick v. British Railways Board [5] ). While the relationship of the plaintiff with the threatened or injured person (e.g. that of spouse, parent, relative, rescuer or uninvolved stranger) may well be of critical importance on the question whether risk of mere psychiatric injury was reasonably foreseeable in the particular case, the preferable view would seem to be that a person who has suffered reasonably foreseeable psychiatric injury as the result of contemporaneous observation at the scene of the accident is within the area in which the common law accepts that the requirement of proximity is satisfied (cf. per Atkin L.J., Hambrook v. Stokes Bros. [6] ) regardless of his particular relationship with the injured person. There was, as has been seen, at one time strong judicial support in the United Kingdom for the view that the requirement of proximity in a case involving mere psychiatric injury could not be satisfied unless the plaintiff was within the "area of physical risk": see King v. Phillips. Such a restrictive view is not, in my view, supported by considerations of principle, fairness or policy. It has not been, and should not be, accepted in this country: see Benson v. Lee; Storm v. Geeves. Indeed, it has now been emphatically rejected in the United Kingdom: see McLoughlin v. O'Brian [7] . Nor do the cases support the approach that the requirement can only be satisfied by a plaintiff who saw or heard the actual accident: both common sense and authority support the conclusion that the requirement of proximity of relationship may be satisfied by a plaintiff who has suffered psychiatric injury as a result of what he or she saw or heard in the ftermath of the accident at the scene: Benson v. Lee [8] ; Storm v. Geeves; Chadwick v. British Railways Board.

[141]

There are at least two possible rationales of the distinction, for the purposes of the requisite duty relationship, between cases where psychiatric injury was sustained as a result of direct observation at the scene of the accident and its aftermath and cases where the psychiatric injury was sustained from subsequent contact, away from the scene of the accident and its aftermath, with a person suffering from the effects of the accident. One such rationale lies in considerations of physical proximity, in the sense of space and time, between the accident and its immediate aftermath on the one hand and the injury on the other. The other lies in considerations of causal proximity 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. The choice between one or other or a combination of these two distinct rationales may obviously be of importance in the more precise identification of any essential criteria of the existence of the requisite duty relationship. On balance, I have come to the conclusion that the second, which justifies the line of demarcation by reference to considerations of causal proximity, is to be preferred as being the less arbitrary and the better attuned both to legal principle and considerations of public policy. It has been said in many cases that the general underlying notion of liability in negligence is "a general public sentiment of moral wrongdoing for which the offender must pay": see, e.g., Donoghue v. Stevenson [9] ; Dorset Yacht Co. Case [10] ; The Dredge "Willemstad" Case [11] . A requirement based upon logical or causal proximity between the act of carelessness and the resulting injury is plainly better adapted to reflect notions of fairness and common sense in the context of the need to balance competing and legitimate social interest and claims than is a requirement based merely upon mechanical considerations of geographical or temporal proximity.

[144]

It has already been seen that the requirement of proximity in a case of mere psychiatric injury is satisfied where injury was sustained as a result of observation of matters involved in the aftermath of a road accident at the actual place of collision. The facts constituting a road accident and its aftermath are not, however, necessarily confined to the immediate point of impact. They may extend to wherever sound may carry and to wherever flying debris may land. The aftermath of an accident encompasses events at the scene after its occurrence, including the extraction and treatment of the injured. In a modern society, the aftermath also extends to the ambulance taking an injured person to hospital for treatment and to the hospital itself during the period of immediate post-accident treatment. It would, in my view, be both arbitrary and out of accord with common sense to draw the borderline between liability and no liability according to whether the plaintiff encountered the aftermath of the accident at the actual scene or at the hospital to which the injured person had been quickly taken. Indeed, as has been mentioned, in some cases the true impact of the facts of the accident itself can only occur subsequently at the hospital where they are known. In the present case, as in McLoughlin , the aftermath of the accident extended to the hospital to which the injured person was taken and persisted for so long as he remained in the state produced by the accident up to and including immediate post-accident treatment. Mrs. Coffey sustained her psychiatric injury by reason of what she saw and heard at the hospital while her husband was under such treatment. Her psychiatric injuries were the result of the impact upon her of the facts of the accident itself and its aftermath while she was present at the aftermath of the accident at the hospital. That being so, she was not, in my view, precluded from recovering damages for those injuries by reason of the fact that she did not attend at the actual scene of the collision. What, then, is the effect of the fact that her nervous shock was caused by what she was told, as well as by what she observed, at the hospital?

[145]

One can point to a number of judicial statements to the effect that a person "who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account": per Denning L.J., King v. Phillips [12] and see Hambrook v. Stokes Bros [13] . A requirement that the plaintiff must have perceived the peril or injury by her or his "own unaided senses" (Hambrook [14] ) has not, however, enjoyed unqualified support either in the United Kingdom or Australia (see, e.g., Schneider v. Eisovitch [1] ; Andrews v. Williams [2] ) and the question whether the requirement of proximity precludes recovery in a case where reasonably foreseeable psychiatric injury is sustained as a consequence of being told about the death or accident, remains, in my view, an open one. 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. It is unnecessary to pursue the question here however since the authorities plainly indicate that the overriding limitation upon the test of reasonable foreseeability does not preclude recovery in a case, such as the present, where the psychiatric injury was sustained as a result of the combined effect of what a plaintiff himself or herself observed and what he or she was told while at the scene of the accident or its aftermath. Thus, in Hambrook v. Stokes Bros. [3] , Atkin L.J. indicated that Mrs. Hambrook would be precluded from recovering damages only if it appeared that her psychiatric injury had been "in no way caused" by her own observation but "solely [by] the report of the injury" made to her by a third person and it is apparent that the plaintiff's psychiatric injuries in each of Benson v. Lee and Storm v. Geeves result from the combined effect of the report of the accident and their own subsequent observations of its aftermath. Indeed, while the question was not raised in argument and it is unnecessary to express a concluded view upon it, the position would appear to be that provided that psychiatric injury resulted from what was seen or heard at the scene of the accident or its aftermath, the fact that the injury was subsequently, and reasonably foreseeably, aggravated as a result of being told of the deterioration or death of the person injured will neither preclude recovery nor require apportionment between different causes: see, per Windeyer J., Pusey [4] and note the helpful discussion in the article by P. G. Heffey, The Negligent Infliction of Nervous Shock in Road and Industrial Accidents in Australian Law Journal, vol. 48 (1974), pp. 204-211. It follows that neither the requirement of proximity of relationship nor any other control upon the test of reasonable foreseeability operated, in the circumstances of the present case, to preclude the existence of a common law duty of care owed to Mrs. Coffey in respect of the psychiatric injury which she sustained.