Mount Isa Mines Ltd v Pusey

[1970] HCA 60

High Court of Australia|1970-07-01|Before: Walsh JJ

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Source facts

Court

High Court of Australia

Decision date

1970-07-01

Before

Walsh JJ

Source

Original judgment source is linked above.

Judgment (85 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Walsh JJ. Mount Isa Mines Ltd v Pusey [1970] HCA 60

[2]

The appellant employed the respondent as an engineer in its powerhouse at Mount Isa. It also employed there two electricians, by name Kuskopf and Docherty. On a day when the respondent was working in the powerhouse the two electricians carried out a test on a switchboard in the powerhouse using for that purpose a multi-meter. Because of their mishandling of this instrument a short circuit of high tension current was caused with the result that the two electricians were severely burned by an intense electric arc. The short circuit caused a loud noise which was heard by the respondent as an explosion where he was working on the floor below that where the switchboard was located. The respondent who was carrying out the duties of an assistant charge engineer hastened to the scene and found Kuskopf, with whom he was unacquainted, naked and, as he put it, "just burnt up". He went to his aid supporting and assisting him down through the building to ground level where he was placed in an ambulance. The respondent did not see Docherty but later heard that Docherty had died the day following the incident. Kuskopf lived about nine days and thereafter the respondent learnt of his death. The respondent went about his work in the appellant's employ for some four weeks or so succeeding the incident without any apparent consequence to himself or to his health. But after that time he developed symptoms which indicated that he was suffering from a serious mental disturbance. According to the medical evidence produced at the trial he developed a profound psychiatric disability broadly comprehended in the term "schizophrenia". This according to that evidence is a "severe type of mental disturbance including disturbance of thought, disturbance of mood and disturbance of behaviour and personality".

[41]

Whether characterization after the event of its consequences as "reasonable and probable" precisely marks the full range of consequences which, before the event, were "reasonably foreseeable" may be, and no doubt will continue to be, the subject of much debate. But 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. The word "risk", adjectively qualified as "real", "remote", "serious" or "slight", can also cause difficulties. Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts. A man is culpably negligent if he failed to take measures, reasonably available, to obviate a risk "which would occur to the mind of a reasonable man in the position of the" defendant "and which he would not brush aside as far-fetched". That is how the Privy Council has expressed the matter: The "Wagon Mound" [No. 2] [1] . It simply states how the mind of Baron Alderson's reasonable and prudent man would work. The decision in Bolton v. Stone [2] , was prominent in the argument we heard about risk-created liabilities. That was to be expected. But that case must not be allowed to get out of its proper place in the law. It is enough to quote here two passages which shew that - one from the judgment of Lord Reid in the House of Lords in Carmarthenshire County Council v. Lewis [3] , the other from the judgment of the Privy Council in The "Wagon Mound" [No. 2] [4] . Lord Reid said: In my view, Bolton v. Stone [2] establishes that if an event is foreseeable the antithesis of its being reasonably probable is that the possibility of its happening involves a risk so small that a reasonable man would feel justified in disregarding it. The Privy Council said: In their Lordships' judgment Bolton v. Stone [2] did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. The contrast which in their judgment their Lordships spelt out between a mere possibility, a risk which a reasonable man might brush aside as far-fetched, and on the other hand a "real risk" but one that nevertheless might be "properly described as remote" may seem elusive and slippery if meticulous attention be fixed on words. The word "remote" has long had a place in the vocabulary of our law. It has commonly been used in relation to cause and consequence: a remote cause has been distinguished from the proximate cause: a consequence may be too remote to sound in damages. Sometimes too the phrase "remote risk" has meant an event which can be seen as a possibility, but one so unlikely to occur, or of such slight gravity of consequence if it should occur, that a prudent man might justifiably disregard it. This idea can be expressed by various words, as for example in the earlier cases quoted by this Court in Green v. Perry [1] . We must always beware lest words used in one case become tyrants over the facts of another case. 1. (1937) 57 C.L.R., at p. 16. 2. (1961) 106 C.L.R. 112, at p. 115. 3. (1961) 106 C.L.R., at pp. 120-121. 4. [1967] 1 A.C. 617, at p. 643. 5. [1951] A.C. 850. 6. [1955] A.C. 549, at p. 565. 7. [1967] 1 A.C., at p. 642. 8. [1951] A.C. 850. 9. [1951] A.C. 850. 10. (1955) 94 C.L.R. 606, at p. 611.

[46]

What is the reasoning which admits a cause of action for negligence if the injured person is actually struck, but declines it if he only suffers from shock? I cannot see why the duty of a driver should differ according to the nature of the injury If he drives negligently with the result that a bystander is injured, then his breach of duty is the same, no matter whether the injury is a wound or is emotional shock. Only the damage is different. However, his Lordship, constrained by the decision of the House of Lords in 1942, said, [1] " there can be no doubt since Bourhill v. Young [2] that the test of liability for shock is foreseeability of injury by shock". This sentence was indorsed by the Privy Council in The "Wagon Mound" [No. 1] [3] , as a "statement of the law". "But", his Lordship had added [1] , "this test is by no means easy to apply". Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including Chapman v. Hearse [4] , and Hughes v. Lord Advocate [5] . This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large. The logical problem thus engendered has been noticed by commentators, including Professor Jackson in his learned and critical article "A Kind of Damage" in The Australian Law Journal, vol. 39, pp. 3-16. Lord Wright in Bourhill v. Young [6] said: 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. That perhaps does not reckon with courts of appeal, and varying judicial opinions of where in good sense the proper stopping-place is. 1. [1953] 1 Q.B. 429, at p. 439. 2. [1953] 1 Q.B., at p. 441. 3. [1943] A.C. 92. 4. [1961] A.C. 388, at p. 426. 5. [1953] 1 Q.B., at p. 441. 6. (1961) 106 C.L.R. 112. 7. [1963] A.C. 837. 8. [1943] A.C., at p. 110.

[51]

The decision of Donovan J., as he then was, in Dooley v. Cammell Laird & Co. Ltd. [2] and of Waller J. in Chadwick v. British Railways Board [3] were based on the view that it is not only the relatives of a person hurt or endangered who can have damages for nervous shock caused by an accident. In my opinion we should follow these leads. 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. This allowed compassion and human sympathy to override the older doctrine, draconic and arbitrary, which recognized only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body. 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. Whatever the basis of the special position which it has been supposed should be given to near relatives, one thing can be said of it. That is that its application was in cases where the duty of care arose simply out of the duty to a "neighbour" in the legal sense. Relatives of an injured person might be neighbours in that sense, and in time rescuers joined them. But curious strangers, or mere bystanders, like the pregnant fishwife, were not "neighbours". They were not, using Lord Atkin's words, persons "so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected". But in the present case, the duty of care is not based simply on duty to a neighbour. It includes that but arises also independently from the legal relationship between the plaintiff and the defendant. It is the duty of care which a master has for the safety of his servant. Foreseeable harm caused by a master to the mind of his servant is just as much a breach of his duty of care for him as harm to his body would be. That, I think, is this case. But I do not wish to be taken as saying that where a duty of care springs only from foreseeability of harm to a "neighbour", and not out of a relationship of status or of contract such as master and servant, a different result would follow. It is apparent, from many cases that have come before the courts, that persons other than relatives of persons hurt may genuinely suffer nervous shock, as the present plaintiff did, on witnessing another's suffering or danger in an unexpected accident. That is a foreseeable possibility, and not a fantastic or negligible one. The Cartesian distinction between mind and matter for a long time had an obdurate influence on men's thinking. The interrelation of mind and body was little understood and often unacknowledged. But this position has given way in medicine and should, I think, give way in law.

[60]

The judgments given in this Court in Scala v. Mammolitti [2] were referred to in the argument. But that case is only remotely relevant. It turned upon the law of New South Wales as laid down in Pt III, headed "Injury arising from Mental or Nervous Shock", of the Law Reform (Miscellaneous Provisions) Act, 1944 N.S.W.. That statute was passed after the decision, in 1942, of Bourhill v. Young [1] . It modifies the effect of that case. It means that in New South Wales a right of action for nervous shock resulting from a happening, tortiously caused, in which a member of the plaintiff's family was killed, injured or put in peril can be founded on the fact of the relationship of the plaintiff to the person so killed, injured or put in peril. If the plaintiff who suffered the shock is a parent, as defined, or husband or wife of such person, that is enough. If the plaintiff is some other "member of the family", as defined, that is enough if the event which caused the shock happened within his sight or hearing. The operation of the statutory provisions has been considered in New South Wales in several cases, including Anderson v. Liddy [2] and Smee v. Tibbetts [3] . It may be that in that State, by reason of an expressio unius, it is only a member of the family who can sue for nervous shock caused by the sight of a tortious injury to someone else. However that may be, it is of no importance in this case. This case turns on the common law and I am unable to see that any guidance as to the operation of the common law in Queensland today is to be had from considering the operation in New South Wales of a statutory modification of what the common law was in 1944; for in this field the common law has been and is being continuously developed by the courts. There is, however, one thing to be read in Scala v. Mammolitti [4] in which the statute accords I think with the common law. That is that liability for nervous shock, resulting from the sight of another person's injury or peril negligently caused, is not a by-product as it were of liability to that other person. The shock-producing event is a tort to the plaintiff. It does not matter whether the person hurt or endangered could himself have succeeded in an action. As I mentioned above, in Dooley v. Cammell Laird & Co. Ltd. [5] , the only person who suffered harm was the plaintiff who suffered a nervous shock. And in any case the person whose suffering or peril it was that caused the plaintiff's shock might, for any one of a variety of reasons, fail if he himself brought an action against the defendant.

[68]

If it be accepted as correct that there could be no liability in the present case for damage which was of a kind which could not have been reasonably foreseen then, in my opinion, the result of the appeal must depend entirely upon the validity of the contention that it should have been found that damage of that kind was not reasonably foreseeable. Counsel for the appellant appeared to suggest at times in the course of his argument that another separate question was raised by the appeal, namely, the question whether or not there had been a breach of any relevant duty owed by the appellant to the respondent. But, in my opinion, this is not so. There can be no remaining question as to the existence of a relevant duty or as to the breach of it if, in addition to the findings that there was a breach of a duty owed by the appellant to Kuskopf and Docherty and that this was a cause of the injuries to them, two further propositions were established, namely, (1) that it was foreseeable that if injury was thus caused to those servants or either of them other persons in the building such as the respondent might go to investigate and to render assistance; and (2) that it was foreseeable that such a person going to the scene might suffer an injury of the kind for which the respondent sued and which he proved to have been caused, in fact, by the incident in question. The first of these propositions was established by a finding which by concession ought not to be disturbed. In my opinion, this concession was correct. It was clearly foreseeable that, upon the occurrence of such an incident as happened when the electricians were burnt, a person who was in the building and close enough to hear the noise made by the happening would go quickly to the scene and would assist, if he could, any person who had been injured. The consequence of this was (assuming that it was also foreseeable that a person thus going to the scene might suffer injury of the relevant kind, that is to say, assuming that the second proposition stated above is made out), that the respondent was one of a class of persons injury to whom could be foreseen as a consequence of the failure of the appellant to exercise reasonable care in relation to the giving of instructions to the electricians. Thus the respondent was within "the area of potential danger" to which Lord Thankerton referred in Bourhill v. Young [1] . In the language of Lord Russell in the same case (at p. 102) the respondent was one of "those individuals of whom it may be reasonably anticipated that they will be affected by the act which constitutes the alleged breach". The respondent was the appellant's "neighbour" in Lord Atkin's sense: Donoghue v. Stevenson [2] . (See Bourhill v. Young [3] .) If then as a result of the appellant's negligent omission to instruct its employees there was injury to the respondent which was of a foreseeable kind it cannot be disputed, in my opinion, that there was a breach of a duty of care owed to him.

[71]

If, as happened, intense heat was created it was foreseeable that electricians in the power-house would be injured and property damaged by fire and also that other employees in the building might go to the rescue and sustain burning injuries. It was also foreseeable in my view that in such case some employee might sustain gruesome burning injuries comparable with the horrible consequences of vehicles coming into collision (including on occasions death by fire as a result of the collision), with at least the possibility of shock and some form of mental illness or neurosis to an employee in the building or in that vicinity who went to the assistance of the person suffering burning injuries. This passage indicates that his Honour's view was that it should be regarded as foreseeable that an employee in the building would go to the scene. On that view the fact that the respondent was an employee was a relevant fact in deciding whether or not he was a person within "the area of potential danger" or within the area of risk. But on that view the liability of the appellant does not rest necessarily upon a duty arising out of the relationship of employer and employee. It rests upon a finding of a duty owed to all persons of whom it might reasonably be anticipated that they might suffer injury (of the relevant kind) and upon a finding that the respondent was such a person. It is on that basis that Skerman J. appears to have held the appellant liable. Earlier in his reasons his Honour said: It seems to me that it does not necessarily follow from my findings of negligence in Docherty's case that the defendant was in breach of its duty to the plaintiff Pusey by reason of the relationship of employer and employee. It does not appear to me to be necessary in this appeal to take any different approach to the case from that which appears to have been taken by Skerman J. or to discuss the question whether or not the duty of the appellant as the employer of the respondent imposed any greater obligation upon it than to take reasonable care to protect him from the risk of foreseeable injury.