Duty of Care
118 The appellants submitted that Acting Sergeant Beardsley owed no duty of care to the respondent in relation to the infliction of pure psychiatric injury. Alternatively, it was submitted that the respondent's injury was too remote because it was not reasonably foreseeable.
119 Reasonable foreseeability is both an essential element of any duty of care and a necessary but not sufficient prerequisite to establishing liability for a particular head of damage such as pure psychiatric injury. The two issues therefore tend to merge (Rowe v McCartney [1976] 2 NSWLR 72 at 88) at least in an area such as the present where the existence of a duty of care remains at issue (see Attia v British Gas Plc [1988] 1 QB 304 at 319). However, there is (as I shall explain) a special rule that, absent actual knowledge of particular susceptibility, requires a defendant to go no further than take reasonable care to avoid psychiatric injury to a person of normal fortitude.
120 Academic opinion is divided acutely about liability for the negligent infliction of psychiatric illness. At one end are those who argue that the same principles that apply to liability for physical injury should be applied to psychiatric illness, and that there is no legitimate reason to impose special restrictions in respect of claims for the latter. This view is put forward most forcefully by N J Mullany and P R Handford in their work Tort Liability for Psychiatric Damage 1993. When pressed about the limitations of the present law, the respondent invited this Court to take this path. At the other extreme are those who argue that liability in negligence for psychiatric illness should be abandoned altogether. They say that the arbitrary rules which are required to control potential liability are so artificial that they bring the law into disrepute. This view is advanced particularly by Professor Jane Stapleton, "In Restraint of Tort" in P Birks ed, The Frontiers of Liability 1994, vol 2, pp94-96. She describes the law relating to liability for psychiatric illness as "the area where the silliest rules now exist and where criticism is almost universal". Her focus is English law, but not exclusively so. A similarly bleak picture is painted by Lord Hoffmann in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 511 when he said:
No one can pretend that the existing law … is founded upon principle. I agree with Jane Stapleton's remark that 'once the law has taken a wrong turning or otherwise fallen into an unsatisfactory internal state in relation to a particular cause of action, incrementalism cannot provide the answer:' see The Frontiers of Liability vol 2, p87.
121 Australian law has yet to embrace all of the complexities and fine distinctions of the English common law as expounded recently by the House of Lords in Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Page v Smith [1996] AC 155 and White.
122 It is clear that a cause of action for negligent infliction of pure psychiatric injury exists and that some aspects of that cause of action are distinctive from claims based upon physical injury. Beyond this lie uncertain seas that are to be navigated by the charts of the leading cases in High Court: Bunyan v Jordan (1937) 57 CLR 1, Chester v Waverley Corporation (1939) 62 CLR 1, Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 and Jaensch v Coffey (1984) 155 CLR 549. These maps are authoritative, yet they are somewhat dated and sometimes unclear in a field where much has happened in the field of psychiatric knowledge and overseas case law.
123 The distance between the present case and "traditional" cases of liability for pure psychiatric injury is clear when it is recognised that there was no "trauma" in the sense of death, injury or dramatic accident and no risk or threat of the same as regards the respondent or anyone near and dear to her; and that the news of the mistake only came to her attention when it was relayed in qualified terms by a third party through the telephone.
124 In my view, Acting Sergeant Beardsley owed the respondent no relevant duty of care. Wherever the line is to be drawn, in the law as expounded by existing Australian case law, the present case lies well outside it. There was no death, injury or dramatic accident touching the respondent or anyone near or dear to her. The respondent was told of the mistake, she did not perceive it directly (cf Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1). There was no overriding duty based upon an employment relationship, knowledge of susceptibility, physical proximity or the creation of a situation likely to attract from the respondent a response in which psychiatric illness was a foreseeable prospect. (I shall explain the latter statement in more detail below.) The respondent was not known to be vulnerable psychiatrically (cf Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 at [3] per Gleeson CJ (agreeing with McHugh J), [43] per Gaudron J, [100], [104] per McHugh J, [233] per Kirby J).
125 Bunyan v Jordan (1936) 36 SR(NSW) 350, (1937) 57 CLR 1 involved a plaintiff whose alcoholic employer made a series of alarming threats, including the threat to "shoot someone", went outside and fired a shot and otherwise behaved in a disturbing manner. The plaintiff suffered nervous shock but her claim in negligence failed. Injury by nervous shock was not considered to be within the reasonable contemplation of the defendant. And the defendant had no reason to expect that the plaintiff had any peculiar susceptibility (see esp 36 SR at 354-5 per Jordan CJ, 57 CLR at 14 per Latham CJ, 16-17 per Dixon J, 18 per McTiernan J). Both points apply in the present case.
126 Barnes v Commonwealth (1937) 37 SR(NSW) 511 is one of a tiny handful of non-employment, non physical accident cases where a duty of care has been found. An officer of the Commonwealth negligently wrote a letter directly to the plaintiff stating, what was in fact untrue, that her husband had been admitted to a mental asylum. Barnes is easily distinguished because of the directness of the communication, the type of information and the obvious potential it had to cause serious distress or worse.
127 As the Chief Justice demonstrates in his judgment, the common law in this area does not require a defendant to take care to avoid pure psychiatric injury to a peculiarly susceptible plaintiff, unless such susceptibility is known to the defendant. (I leave aside situations where employment or other special features are present.) The plaintiff with an eggshell psyche is owed no general duty. Foreseeability of injury which contributes to the generation of a duty assumes normal fortitude. The authorities are discussed by the Chief Justice.
128 Foreseeability involves the judge looking with hindsight at an event which has occurred and considering the perception of a hypothetical person placed generally in the position of the tortfeasor. Reasonable foreseeability must be something attributed to the person guilty of negligence (McLoughlin at 429). In Windeyer J's words in Mount Isa Mines (at 397-8):
The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and such capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in his position is expected to have…. He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot show that the event was foreseeable.
129 How are these general principles applied to pure psychiatric illness? As stated by Brennan J in Jaensch at 563, the enquiry is whether a reasonable person in the defendant's position "could have foreseen that his conduct might cause some recognised psychiatric illness induced by shock.... It is not necessary that the precise events leading to the administration of the shock should be foreseeable. It is sufficient that shock and a psychiatric illness induced by it are reasonably foreseeable." Later, Brennan J said that psychiatric injury through shock must be something reasonably foreseeable as the result of the very conduct for which the defendant is sued (Jaensch at 570). See also McLoughlin v O'Brian [1983] 1 AC 410.
130 Assuming causation to be established, one is still dealing (in this area of the law) with something more than mere grief, distress or normal emotional reaction. Since there must be a positive psychiatric illness, the judge posing as the "reasonable person" must seek information as to the state of medical knowledge at the relevant time without conceding that foreseeability to the medical expert is determinative. I respectfully agree with the following remarks of Dillon LJ in Attia (at 312-3):
Whether it was reasonably foreseeable to the reasonable man … is to be decided, not on the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect in a person of normal disposition or customary phlegm, but by the judge, relying on his own opinion of the operation of cause and effect in psychiatric medicine, treating himself as the reasonable man, and forming his own view from the primary facts as to whether the chain of cause and effect was reasonably foreseeable: see per Lord Bridge in McLoughlin v O'Brian [1983] AC 410, 432C-D. The good sense of the judge is, it would seem to be enlightened by progressive awareness of mental illness: per Lord Bridge at p443D. One consequence of this approach is, however, that the view of the courts as to what is reasonably foreseeable is, in this field, likely to lag behind informed medical opinion. Another consequence which finds favour with the courts at one time may well be considered unacceptable and out of date a few years later - when progressive awareness has progressed further.
131 Reasonable foreseeability is more than an issue of fact. Sir Robin Cooke described Viscount Simonds' test in the "Wagon Mound (No 1)" as a "flexible concept deprive[d] …of any fettering rigidity" ("Remoteness of damages and judicial discretion" [1978] Cam LJ 288). Perhaps that goes a little too far. But minds can obviously differ in this area. In King v Phillips [1953] 1 QB 429 at 441 Denning LJ asked:
But where must the hypothetical observer be situate? In the driver's seat, or in an observation post on high? It is obvious that much must depend on his powers of observation and the scope of his imagination. One judge may credit him with more foresight than another. One judge may think that he should have foreseen the shock. Another may not.
132 The remarks of Lord Wright in Bourhill v Young [1943] AC 92 at 110 are frequently cited, even though they pre-date Wagon Mound. Speaking of foreseeability in relation to nervous shock his Lordship said:
It is here, as elsewhere, a question of what the hypothetical reasonable man, viewing the position, I suppose ex post facto, would say it was proper to foresee. What danger of particular infirmity that would include must depend on all the circumstances, but generally, I think, a reasonably normal condition, if medical evidence is capable of defining it, would be the standard. The test of the plaintiff's extraordinary susceptibility, if unknown to the defendant, would in effect make him an insurer. The lawyer likes to draw fixed and definite lines and is apt to ask where the thing is to stop. I should reply it should stop where in the particular case the good sense of the jury or of the judge decides.
133 This passage indicates that there is no room for the egg-shell psyche in this area of negligence. Elsewhere in Bourhill, Lord Wright spoke of a "normal standard of susceptibility" (at 110). Lord Porter spoke of persons of "customary phlegm" (at 117).
134 As I read the judgments in Jaensch, this remains part of the touchstone for liability for pure psychiatric illness:
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. ( Jaensch at 568 per Brennan J. See also at 556 per Gibbs CJ, 609-610 per Deane J.)
135 This is recognised as the current position in Australian law by the Full Federal Court in Wodrow v Commonwealth of Australia (1993) 45 FCR 52. Cf FAI General Insurance Co Ltd v Curtin (1997) Aust Torts Reports ¶81-442. English law is to the same effect, at least as regards what it terms "secondary" victims, being persons not put in fear of physical injury (see Frost at 463, 470). As to "primary" victims, see Page v Smith [1996] AC 155).
136 The Law Commission (UK), op cit at par 5.26, suggests that the reasonable fortitude (or "customary phlegm") test is:
best interpreted as meaning nothing more than that, in deciding whether psychiatric illness was reasonably foreseeable … one can take into account the robustness of the population at large to psychiatric illness.
137 I do not think that this represents the law in Australia, although I perceive an unresolved tension in this corner of the law. To apply generally-enunciated principles of foreseeability would usually require regard to be taken of the fact that "the community is not formed of normal citizens, with all those who are less susceptible or more susceptible to stress being regarded as extraordinary. There is an infinite variety of creatures, all with varying susceptibilities" (per Waller J in Chadwick v British Railways Board [1967] 1 WLR 912 at 922). To allow the defendant to assume, in the absence of actual knowledge, that the plaintiff is "a person of normal disposition or phlegm" (McLoughlin at 429 per Lord Russell of Killowen) is better viewed as an additional control device - none the worse for that - than an aspect of conventional foreseeability. Windeyer J was troubled on this account in Mount Isa Mines in a lengthy passage in which he questions Lord Wright's remarks and the cases following them (at 405-6).
138 Applying these principles, I conclude that the respondent's psychiatric illness was not reasonably foreseeable, whether or not the test requires reasonable foreseeability of psychiatric illness through "shock".
139 The trial judge was correct to find that Acting Sergeant Beardsley knew, or should have known, of the importance attached to a P4 police report. And it is clear that the officer ought to have foreseen that the particular report which he was completing could come to the attention of the respondent and of persons about whose opinions the respondent might be concerned. But nothing more of consequence was reasonably foreseeable.
140 When he carelessly completed the P4 form, Acting Sergeant Beardsley knew or ought to have known about the totality of the information in it. That conveyed a clear picture that Lavender was solely at fault for an accident in which the respondent was injured. He also probably knew that criminal charges would follow if they had not already been commenced.
141 The reasonable observer sitting at the police officer's shoulder would conceive it likely that Mrs Tame would take umbrage or even be outraged to read that she had a high blood alcohol content; but it would, I think, appear equally likely that she would perceive that the entry was a mistake and a fairly obvious one. The identical blood alcohol reading was shown for each driver. Everything else on the form pointed solely to Lavender's guilt.
142 Acting Sergeant Beardsley's reasonable bystander would also be imputed with the knowledge that the mistake would be corrected readily if discovered and drawn to the attention of the Police Service and that the erroneous P4 Report was therefore incapable of having lasting impact as a source of evidence. It would also be reasonable to perceive that Mrs Tame herself would at all times know the true situation.
143 Nothing in the evidence suggests any basis for the police officer perceiving that shock and a psychiatric illness induced by it (Jaensch at 563) were a reasonably foreseeable consequence of the mistake. To my mind, this was so whether one assumes a normal standard of susceptibility or whether one merely takes into account the robustness of the population at large. Whatever the respondent suffered, it was not PTSD as promulgated in the DSM current at the time. Looking backwards from the trial, the medical evidence may have established causation according to the law's relatively easy standard, but it did not show any corpus of knowledge even amongst the cognoscenti that this sort of trigger might be expected to cause psychiatric injury (contrast Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 328-335). A fortiori, psychiatric injury to a person of normal fortitude.
144 The risk that Acting Sergeant Beardsley's negligent act might cause the respondent "shock" or a psychiatric illness induced by it was far-fetched or fanciful. Regretfully it happened, but liability does not ensue in what remains a fault-based system of negligence.