Sinnott v F J Trousers Pty Ltd [2000] VSC 124

Supreme Court of Victoria|2000-04-10|Before: Gillard J

TORT - negligence - employer-employee - claim for damages for psychiatric injury caused by stress during employment - application to strike out as disclosing no cause of action on ground that employee cannot recover for mental illness not consequent upon physical injury or nervous shock - plaintiff's case not untenable - application fails

This is a summons issued by the defendant in a proceeding commenced by a writ, seeking an order that the proceeding be dismissed on the ground that the statement of claim does not disclose a cause of action.

The plaintiff claims damages for personal injury in the nature of mental illness suffered during the course of his employment by reason of the alleged negligence of his former employer the defendant. It is a common law claim. The plaintiff did not suffer physical injury. The plaintiff did not suffer nervous shock. His injury is severe mental illness developed over time allegedly due to the negligence of his employer.

The plaintiff, Bryan John Sinnott, was born on 5 October 1956 and is presently aged 44 years. Between 1987 and 7 September 1995 he was employed by the defendant, F.J. Trousers Pty Ltd as a computer operations supervisor at its factory premises in Warnambool. He ceased his employment on 7 September 1995 suffering from severe mental illness.

The defendant conducts a business in Warrnambool making clothing.

The plaintiff issued a writ on 2 August 1998. According to the statement of claim, he was exposed to excessive stresses and tensions during the course of his employment with the result that he suffered severe mental illness. He alleges his illness was caused by the negligence of the defendant.

The defendant delivered its defence on 12 April 1999. It asserted after denying negligence the following -

"6. Further to the denial in paragraph 4 hereof, the defendant denies the allegations in paragraph 4 disclose any duty of care imposed upon the defendant in the circumstances. 7. In the alternative to paragraph 6, the duty of care at common law or pursuant to contract, did not extend beyond the employer's duty to take reasonable care not to expose the plaintiff to unnecessary risk of injury and such duty did not extend to the avoidance of conduct that might place the plaintiff at risk of suffering purely psychiatric or psychological injury particularly where the plaintiff was predisposed to such injury but not to the knowledge of the defendant. 8. In the further alternative, the defendant asserts that no duty of care could have arisen because the likelihood or possibility of such injury occurring as alleged in paragraph 3 could not have been reasonably foreseeable. 9. In the further alternative, the defendant asserts that even if there was a duty of care which was breached, the limitations placed upon the recovery of damages for psychiatric injury preclude the plaintiff from recovering damages in that there is no specific incident or injury relied upon nor is there any allegation of shock by sudden sensory perception. 10. On account of the matters alleged in paragraphs 6-9 hereof, the statement of claim does not disclose a cause of action."

The pleading is hardly a model of good drafting and needs to be re-arranged in a logical order.

I interpolate here to note that the summons issued by the defendant seeks the following order -

"The proceeding to be dismissed under Chapter I rule 23.01 of the Rules of the Supreme Court and the inherent jurisdiction of the Court on the grounds that the statement of claim on the writ does not disclose a cause of action."

Paragraph 6 refers to the denial of the allegations in paragraph 4 of the statement of claim and asserts that the allegations do not disclose any duty of care owed by the defendant to the plaintiff. Paragraph 4 of the statement of claim asserts that the plaintiff's injuries were caused by the negligence of the defendant or by the defendant's breach of duty to the plaintiff as employee not to expose him to unnecessary risk of injury. Particulars are then given of the negligence and/or breach of duty.

Despite the various defences raised and the generality of the summons Mr T. Casey QC who appeared with Mr P. Jens of counsel for the defendant informed the court that the only paragraph in the defence which the defendant relied upon in the application was paragraph 9. He informed the court that the application was made pursuant to Rule 23.01(1) of the Rules of Court and the inherent jurisdiction of the court.

Mr Casey QC conceded that by reason of the relationship between the plaintiff and the defendant, namely, employee-employer, the latter did owe a duty of care to the plaintiff and the issues raised in paragraphs 7 and 8 were factual matters which had to be considered and determined at trial by the jury.

Paragraph 9 of the defence which the defendant relies upon in this application does not correctly state the real issue. The reference to "the limitations placed upon the recovery of damages" is not a reference to any statutory limitation.

What the defendant asserts is that the plaintiff as an employee of the defendant is not entitled in law to recover damages for purely mental illness caused by his employment unless it was consequent upon physical injury or as a result of nervous shock consequent upon some identified incident or incidents.

It is submitted on behalf of the defendant that the statement of claim does not assert physical injury or nervous shock arising from a specific incident and accordingly even if the plaintiff can prove duty of care, and breach causing the injury the law does not permit him to recover damages for mental illness in the circumstances of this case.

"(1) Where a proceeding generally or any claim in a proceeding -

(a) does not disclose a cause of action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court -

the court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim."

The defendant asserts that the statement of claim does not disclose a cause of action.

In considering and determining an application pursuant to Rule 23.01(1) there are two well established propositions of law which apply to the application.

First, for the purpose of the application the court must assume that the allegations of fact contained in the statement of claim, including those denied in the defence, can be established. The court must assume the truth of the allegations of fact made.

However, the assumptions are only made for the purpose of determining the issue raised by the summons and if this matter proceeds to trial the plaintiff has the burden of proving all facts necessary to establish his cause of action. See Watt v Rama [1972] VicRp 40; (1972) VR 353 at 355.

The second proposition of law which is as equally trite as the first, is that a statement of claim will only be struck out as not disclosing a cause of action where it is established that the claim is hopeless.

Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 at p.91 described the jurisdiction of the court which is both statutory and inherent to stop a claim which is groundless. His Honour said -

"The principles upon which that jurisdiction is exercisable are well settled. The case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

His Honour went on to quote with approval what O'Connor J said in Burton v The Shire of Bairnsdale who said that the power "will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

Higgins J in the Burton case observed that the question was whether "there was anything in fact or in law that was fairly triable or arguable".

Dixon J also quoted with approval what Lord Herschell said in Lawrance v Norreys (1888) 15 App. Cas. 210 at 219 where he said -

"It cannot be doubted that the court has an inherent jurisdiction to dismiss an action which is an abuse of the process of the court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional cases."

Various judges over the years have sought to state their own test of when a statement of claim should be struck out, and phrases such as "obviously unsustainable" or "so obviously untenable that it cannot possibly succeed" or "clear beyond all doubt" that the plaintiff does not have a cause of action, have been stated.

It is obvious that the defendant in the present proceeding carries a heavy burden of establishing beyond doubt that the plaintiff's claim is doomed to fail at trial.

The following facts are assumed to be true and correct and are taken from the statement of claim -

(i) The plaintiff was born on 5 October 1956;

(ii) The plaintiff was employed by the defendant as a computer operations supervisor at its factory premises in Warrnambool from 1987 to 7 September 1995;

(iii) Over a period of one to two years prior to 7 September 1995 the plaintiff was exposed to excessive stresses and pressures in the course of employment as a result of which he was injured suffering severe mental illness involving a major depressive illness and/or adjustment disorder with depressed mood. He suffered from the onset and aggravation of psoriasis, pruritis and/or other skin condition;

(iv) His illness required hospitalisation and medical treatment;

(v) That in the course of his employment the defendant required or permitted him to work under excessive stress and pressure and excessively long hours, failed to heed numerous requests made by him for assistance and technical support in the performance of his work, and failed to heed numerous complaints made by him in respect to his excessive work load. The defendant failed to provide any or any adequate assistance and technical support and required him to perform duties for which he was neither trained nor qualified;

(vi) That during the course of his employment he was required by the defendant to perform electronics work when he was not trained or qualified to do so and was concerned about doing it;

(vii) The defendant failed to instruct or train him adequately in the safe and proper performance of his duties, that they deprived him of a number of co-workers to provide him with assistance and technical support, failed to adequately supervise and monitor his performance, cancelled certain services without making any adjustments to the plaintiff's duties, failed to give adequate consideration to whether he was coping with his duties and failed to warn him that there was a risk to his mental health associated with performing the duties he was required to perform;

(viii) Further, the defendant required and permitted him to continue working when it knew or ought to have known he was having difficulty coping with his duties and was at a significant risk of mental illness and further, required him to work in a position of danger and generally failed to take adequate precautions for his safety;

(ix) The plaintiff has suffered substantial pecuniary damages by reason of his inability to work and his continuing medical treatment.

Duty of care

The defendant asserts in its defence that the defendant did not owe the plaintiff a duty of care either at common law or pursuant to the contract presumably of employment. This is asserted in paragraphs 6 and 8.

Mr Casey QC conceded there was a duty of care owed by the defendant to the plaintiff. In my opinion he was correct in so doing.

The law recognises that by reason of a particular relationship a duty of care is owed by one to another. The law is that in the absence of a special relationship a duty of care arises where the principles enunciated by Lord Atkin in Donoghue v Stevenson (1932) AC 562 as later explained by various decisions of the High Court of Australia, apply.

The categories of relationships which establish a duty of care include teacher-pupil, road user-road user and employer-employee.

See Richards v The State of Victoria (1969) VR 136 the Full Court at p.138; Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 411-12 and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 at 581. As was said in the Sutherland case, supra, the duty arises from the relationship and exists prior to the conduct which constitutes the alleged negligence.

Because there is an existing relationship of employer-employee between the defendant and the plaintiff it cannot be argued that the defendant did not owe any duty of care to the plaintiff whilst the latter was performing his employment. The duty which has been stated many times in the cases is a duty to take reasonable care for the safety of the employee in all the circumstances.

The duty was stated by Dixon CJ and Kitto J in Hamilton v Nuroof (W.O.) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at p.25 as follows -

"The duty, to whomever it falls to discharge it, is that of a reasonable prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of each case."

In my opinion it is not open to plead there is no duty of care owed by the defendant to the plaintiff.

In order to prove his cause of action, a plaintiff must not only prove a duty of care owed by the alleged wrongdoer to him, but must also prove a breach of that duty, namely, negligence and that the negligence was a cause of his injuries. See Richards v Victoria, supra at p.138.

In a case where the alleged injury is mental illness, issues of foreseeability of injury relevant to negligence and causation assume some importance.

For present purposes the plaintiff is assumed to be able to prove the necessary elements of his proof. What is put against him is that on the facts pleaded in the statement of claim he is not entitled in law to damages because the mental illness was not consequent upon physical injury or nervous shock caused by some incident.

Given that it is assumed the plaintiff can prove all the elements of his claim against his employer, the proposition that he is not entitled to damages for mental illness is indeed a startling proposition. Baldly stated it means that although an employer cannot break the body of his employee during the course of his employment, nevertheless he is permitted to break the mind at will irrespective of the circumstances.

In Smith v Littlewood's Organisation Ltd [1987] UKHL 3; (1987) AC 241 at p.280, Lord Goff of Chieveley described the judicial function being epitomised as an educated reflex to the facts. My educated reflex to the startling proposition argued by Mr Casey QC is that it cannot be correct.

It cannot be correct that an employer with full knowledge that the duties imposed upon an employee are causing him mental distress, pressure and anxiety which foreseeably could lead to a mental breakdown is entitled to pursue that course without being be liable for the mental breakdown of his employee.

What then is the basis for this startling proposition which defies logic, common sense and justice?

Mr Casey QC seeks to answer that question by referring to what Brennan J said in Jaensch v Coffey, supra at p.565 where he said -

"The courts have insisted on proof of a demonstrable and readily appreciable cause of psychiatric illness - the cause itself being a result of the defendant's careless conduct - before damages for negligence occasioning psychiatric illness are awarded. A plaintiff may recover only if the psychiatric illness is a result of physical injury negligently inflicted on him by the defendant or if it is produced by 'shock'. Psychiatric illness caused in other ways attracts no damages, although it is reasonably foreseeable that psychiatric illness might be a consequence of the defendant's carelessness. The spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result goes without compensation; a parent made distraught by the wayward conduct of a brain damaged child and who suffers psychiatric illness as a result has no claim against the tort feasor liable to the child."

Mr Casey QC submitted that that statement of principle was of general application and applied in the present proceeding. It followed, he said, that the plaintiff could not recover because his illness was not the result of physical injury negligently inflicted upon him or produced by shock.

He pointed out that the law has moved slowly in recognising the right of an injured person to recover damages for psychiatric illness.

Going back to 1888 the Privy Council refused to allow a plaintiff to recover damages for a nervous shock or mental injury caused by fright of an impending collision and held that the injuries were too remote. See Victorian Railways Commissioner v Coultas (1888) 13 App. Cas. 222.

A claim by the mother of a son who was drowned and who saw the body recovered as a result of which she sustained severe shock failed because the facts did not disclose a breach of any duty owed by the defendant municipal council to the plaintiff. See Chester v Municipality of Waverley [1939] HCA 25; (1939) 62 CLR 1.

In the first case the plaintiff failed because the alleged injury was too remote. In the later case the plaintiff could not prove a duty of care owed to her to prevent injury resulting from nervous shock.

The development of the law has been concerned with marking out the boundaries of the duty of care which is owed by the wrongdoer to the victim. There have been many cases concerning persons who were not directly affected by the tortious act but who have subsequently suffered mental injury and have recovered. The court has held that the victim is within the boundaries of the duty of care owed by the wrongdoer.

In Jaensch v Coffey, supra, Mrs Coffey, the wife of a motorcyclist who suffered sever injuries recovered damages for nervous shock suffered when she attended at her husband's hospital and observed his injured plight. This case pushed the boundary of the duty of care owed by the other road user a long way.

A person in a situation such as Mrs Coffey has been described as the secondary victim of the defendant's negligence which caused direct injury to the primary victim.

The present case is not concerned with a secondary victim but is concerned with a primary victim. The plaintiff was employed by the defendant and the mental illness suffered by him was caused in the course of his employment by the defendant's negligence. This case is not concerned with a person not employed by the defendant who having observed what happened to the victim suffered mental illness and was seeking damages for what is popularly called "nervous shock".

There is a body of authority which is against the contention of Mr Casey QC but he points out that the issue raised in the present matter was not considered in those cases. One may observe that one of the reasons why the issue was not raised or considered was because it had no substance. It will be necessary to consider the cases.

Mr Casey QC submitted that the slow evolution of the law in this area was because of a number of policy considerations including the floodgates argument, the inadequacy of medical knowledge in the area of mental illness and the difficulties of disproof of mental illness. He submits that the law has not progressed to the point where the plaintiff employee is entitled to recover damages for purely mental illness.

In addition to Brennan J's statement, Mr Casey QC relied heavily on the recent House of Lords decision of White v Chief Constable of South Yorkshire Police [1998] UKHL 45; (1999) 1 All ER 1.

In that case a number of police officers sued their employer for damages in negligence for post-traumatic stress disorder suffered in the aftermath of a disaster at a major football match. The immediate cause of the disaster was a senior police officer's decision to open a gate to the stadium which cut off access with the result that excessive numbers of people tried to enter the sections resulting in some 95 being crushed to death. The plaintiffs were on duty at the time and became involved in the aftermath of the disaster, principally concerned with looking after the injured and trying to resuscitate spectators who died.

The plaintiffs were diagnosed as suffering from a post-traumatic stress disorder brought about by their experience.

They sued the Chief Constable on two causes of action, namely, the breach of duty owed by an employer and secondly, on the basis that they were rescuers rather than mere bystanders and were entitled to recover in negligence.

The judge at first instance dismissed the claims and the plaintiffs appealed to the Court of Appeal who allowed the appeals of some of the officers who were at the football stadium. The House of Lords by a majority found against the plaintiffs.

It is important to observe how the plaintiffs put their case for breach of duty by their employer.

Lord Griffiths at p.6 described the case as follows -

"Their case as employees is put thus: they were all at the ground in the course of their duty, as employees. The Chief Constable owed them a duty to take reasonable care not to expose them to unnecessary risk of injury during the course of their employment. The Chief Constable is vicariously liable for the negligence of the police officer who caused the catastrophe by admitting the crowd into the pens. It was the impact of the horror of the situation on the minds of the police officers that caused them psychiatric injury. By the negligent creation of the horrific situation the Chief Constable was in breach of his duty not to expose the police to unnecessary risk of injury and is consequently liable for their injuries."

It is to be observed that the negligence relied upon was the negligence which caused injuries to others and it was the observance of the effect of the negligence which harmed the plaintiffs. In that regard they were secondary victims and not primary victims.

Indeed, that is how the House of Lords approached the issue.

The ratio decidendi is correctly summarised in the head note in this way -

"An employee who suffered psychiatric injury in the course of his employment had to prove liability under the general rules of negligence, including the rules restricting the recovery of damage for psychiatric injury. Accordingly if an employee who witnessed an accident at work would otherwise have been unable to sue because as a mere bystander he was only a secondary victim who was not in sufficiently close relationship with the victim, the mere fact that his relationship with the tort feasor was that of employee and employer could not make him a primary victim."

The distinction between primary and secondary victims is made clear by the House of Lords decision of Page v Smith [1995] UKHL 7; (1996) AC 155. The plaintiff had previously suffered from chronic fatigue syndrome for a considerable period prior to a motor vehicle accident in which he suffered the injury of an aggravation of his chronic fatigue syndrome. He did not suffer any physical injury. The trial judge found in favour of the plaintiff. The Court of Appeal set aside the finding on the basis that the plaintiff's injury was not reasonably foreseeable.

The House of Lords upheld the plaintiff's appeal.

Lord Lloyd of Berwick who delivered the main speech for the majority held that the issue in the proceeding was not concerned with whether the plaintiff was a secondary victim and outside the range of foreseeable injury. He held that the plaintiff was a primary victim and a duty of care was owed to him by the defendant, who was another road user.

The learned trial judge proceeded on the basis that the question was one of causation and not the limit of the duty of care but in the Court of Appeal the approach became far more complicated because the majority of the court considered the question from the point of view of psychiatric illness suffered by a secondary victim and whether he was owed a duty of care.

"I must say at once that I prefer the simplicity of the judge's approach to what, with respect, seems to be an unnecessary complication introduced by the Court of Appeal. Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant's negligence, the nervous shock cases, by which I mean the cases following on from Bourhill v Young are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury."

It will be necessary to consider whether the statement of principle by Brennan J in Jaensch v Coffey, supra is of general application but before doing that it is necessary to briefly refer to another authority relied upon by Mr Casey QC and that is Campbelltown City Council v Mackay (1988) 15 NSWLR 501.

In that case Mr and Mrs Mackay sued a number of parties who negligently permitted a house to be built which subsequently cracked and suffered substantial damage. Subsequently Mrs Mackay became pregnant and delivered a stillborn child. It was common ground that both plaintiffs were suffering from psychiatric illness.

The trial judge allowed damages for nervous shock but on appeal the court held that they were not entitled to damages for nervous shock but could recover damages in the like sum for vexation, worry, distress and inconvenience resulting from the defendants' negligence.

In considering the case it is necessary to note that a concession was made by counsel for the plaintiffs that they had to show if they were to recover damages in tort for nervous shock that the damage resulted from a sudden affront to their respective psyches whch caused a recognisable psychiatric illness. This, if I may say so with respect, is a misunderstanding of the issues in Jaensch v Coffey.

It was on that basis that the court came to the view that the evidence did not establish injury arising from a single incident.

This is made clear by what McHugh JA said at p.507 when he stated -

"The approach of counsel for the plaintiffs makes it unnecessary to determine whether liability in an action for 'nervous shock' can arise where the psychiatric illness does not result from a sudden sensory perception'. But the concession of counsel seems correct."

His Honour then went on to refer to what Brennan J said in Jaensch v Coffey.

In my opinion, the case does not stand for the authority that in the present circumstances the employee cannot sue the employer and recover damages for mental illness because the mental illness did not come about by reason of a single incident causing nervous shock or consequent upon physical injury.

The reasoning is based on a concession which was incorrect.

Mr Kaye QC who appeared with Mr Keely for the plaintiff submitted that the statement made by Brennan J in Jaensch v Coffey is only applicable to a situation where it is the secondary victim who was suing as plaintiff, a defendant who negligently caused injury to another.

Cases such as Bourhill v Young [1942] UKHL 5; (1943) AC 92, McLoughlin v O'Brian [1982] UKHL 3; (1983) 1 AC 410, Benson v Lee [1972] VicRp 103; (1972) VR 879, Pratt and Goldsmith v Pratt [1975] VicRp 37; (1975) VR 378 and Jaensch v Coffey, supra, were all concerned with the one issue, namely, where to mark the boundaries of the duty of care owed by a negligent tort feasor to a secondary victim not to cause nervous shock.

This is made quite clear by a consideration of the judgments in Jaensch v Coffey. Where does the court mark the boundary of the duty of care owed by the wrongdoer to somebody not to cause him nervous shock as a result of negligently causing injury to another?

The law has moved step by step but has confined the boundary. Mr Kaye QC submits that the statement by Brennan J in Jaensch v Coffey does not have general application and is confined to the real issue in that case which was concerned with defining the boundary of the duty of care owed by the defendant to the plaintiff. I agree.

If one reads the statement relied upon in context it becomes readily apparent that his Honour is not seeking to lay down a principle of general application. This is made clear by what he said at p.567 when he said -

"I understand 'shock' in this context means the sudden sensory perception - that is, by seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness. A psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception by the plaintiff of the distressing phenomenon is essential. If mere knowledge of a distressing phenomenon sufficed, the bearers of sad tidings, able to foresee the depressing effect of what they have to impart, might be held liable as tort feasors."

In my opinion, the general statement of principle by Brennan J in Jaensch v Coffey has to be read in the context of the issue in that case, namely, the scope of the duty of care owed by a tort feasor to a secondary victim.

In my opinion, it does not exclude a plaintiff such as the present plaintiff from recovering damages for purely mental illness consequent upon negligence by his employer.

There are a number of cases that support that conclusion.

In Gillespie v Commonwealth (1993) 104 ACTR 1 the plaintiff sued the Commonwealth for an anxiety state caused by the stress experienced by him when performing his services in the diplomatic mission in Caracas, Venezuela. At first instance Miles CJ found against him on the ground that he had not established negligence. The importance of the decision is that his Honour had no doubt that the employer owed a duty of care to the plaintiff and that he was entitled to recover if he could prove negligence causing nervous shock. The issue raised in the present proceeding was not discussed. It was not argued that it was not open to him to recover damages for mental illness.

"Nevertheless, the defendant was under a duty to take reasonable and effective steps which were likely to have avoided a foreseeable harm, even if the harm was purely psychological."

He referred to what Dixon J said in Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1 at p.16.

Dixon J after referring to the fact that the jury may have found that the defendant's conduct caused mental illness, said -

"I have no doubt that such an illness without more is a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action, that is, supposing that the other ingredients of the cause of action are present."

"In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only insofar as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have to take to reduce the risk to the extent that any 'unnecessary' risk was eliminated. In practical terms this means the plaintiff must show that the defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable that is sociably acceptable, level. It may be that this takes the court into an area of value judgment for which the inscrutability of a jury verdict may provide a more appropriate means of expression."

It was clear that there was no question in that case of the plaintiff not being able to recover damages for purely mental illness.

The plaintiff appealed to the Full Court of the Federal Court but failed on the basis that he could not establish that the judge's findings were incorrect - (1993) Aust. Torts Reports 81-217.

Again no mention was made on the appeal that the plaintiff could not have recovered damages in any event. It is interesting to note that von Doussa J who sat on the appeal was counsel for the unsuccessful appellant in Jaensch v Coffey. One would expect that his Honour was aware of the restrictions on recovery for damages for mental illness in secondary victim cases but the point was not raised in the appeal.

The next case is another decision of the Full Court of the Federal Court. It is Wodrow v The Commonwealth of Australia (1993) 45 FCR 52.

In that case the plaintiff sued the Commonwealth for mental illness alleged to have been caused by his employer's negligence. He did not suffer any physical injury. The breakdown arose because of events which occurred over a period of time.

The trial judge entered judgment for the plaintiff.

The plaintiff appealed in relation to a number of findings and the employer cross-appealed and in the result the plaintiff failed.

The Full Court of the Federal Court found that the plaintiff who had abnormal personality traits had to prove that there was a duty of care owed to a person such as him with abnormally accentuated personality traits. The court held that the duty of care only extended to a person of normal mental condition.

The question of him not having a right to recover damages for purely mental illness was not directly raised but it is clear that the court proceeded on the assumption that a plaintiff could claim damages for purely psychiatric illness caused to him in the course of his employment.

This is made clear by the observations of Gallop and Ryan JJ at p.71 where their Honours said -

"The plaintiff is entitled to succeed if all the elements of negligence were made out to the requisite standing, notwithstanding that the harm suffered was purely psychological."

They referred to the High Court decisions of Bunyan v Jordan, supra and Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 394.

The next case is Arnold v Mid West Radio Limited (1998) Aust Reports 81-472 where the plaintiff suffered depressive illness caused by the conduct of the defendant's manager. This is the only case in which the issue raised in the present matter was discussed and rejected.

"Although it was suggested in submissions on behalf of the defendant that no action was permissible in respect of psychiatric injuries alone in the absence of some bodily injury I am satisfied that psychiatric injury is sufficient to satisfy the element of damage in a cause of action of this kind."

His Honour referred to the cases of Bunyan, Pusey, Wodrow and Gillespie.

"I was referred to a number of cases in which actions had been brought by employees claiming to have suffered psychological or psychiatric damage as a result of being unnecessarily exposed to stressful situations in the course of their employment. Each of these is, it seems to me, no more than an illustration of the general principles which apply to an action brought by an employee against an employer for a breach of the latter's duty to the former."

On appeal the Court of Appeal set aside the decision in favour of the plaintiff and did so on the narrow ground that the trial judge's decision was based on an opinion of an expert as to the cause of the plaintiff's injuries but many of the facts relied upon by the expert to reach that conclusion were facts which were disproved. See 1999 EOC 92-970. However it is clear that the court recognised that psychiatric damage may be claimed in an employer-employee relationship. See p.79,190 and 79,191.

The final case is Queensland Corrective Services v Gallagher (1998) QCA 426, an unreported decision delivered 18 December 1998. This was another case by an employee seeking damages for depressive illness. The trial judge found in favour of the employee. The Court of Appeal upheld the defendant's appeal for two principal reasons, namely, that there was no evidence that the employer might reasonably foresee that the plaintiff would suffer his injury and further that there was no evidence that the injury was caused by negligence during the employment.

Again there is no suggestion that the plaintiff was not entitled to recover damages if he had proven the other elements of his cause of action.

There are two English cases which supports the plaintiff. The first is the decision of Walker v Northumberland County Council [1994] EWHC QB 2; (1995) ICR 702; (1995) 1 All ER 737.

In that case the plaintiff employee suffered a nervous breakdown in 1986 because of stresses of his employment. He left work. He returned some three months later. In 1987 he suffered a further breakdown and he sued his employer. The plaintiff was employed by the defendant council as an area social services officer responsible for four teams of field workers in an area in which during the 1980s child abuse references were particularly prevalent. One could trace the causes of his problems to the volume of work, the stresses and strains and anxiety.

The trial judge, Coleman J, held that the first breakdown was not reasonably foreseeable by the defendant and therefore the plaintiff could not recover in respect of it but held that the second breakdown was reasonably foreseeable and hence he was entitled to recover.

No argument was put to his Lordship that the plaintiff was not entitled to recover damages for psychiatric illness. His Lordship proceeded on the basis that the plaintiff could so recover and he found for him.

At p.749 of All ER report his Lordship said -

"In these circumstances was it the council's duty to take steps to protect Mr Walker against the risk of psychiatric damage? There has been little judicial authority on the extent to which an employer owes to his employees a duty not to cause him psychiatric damage by the volume or character of the work which the employee is required to perform. It is clear law that an employer has a duty to provide his employee with a reasonable safe system of work and to take reasonable steps to protect him from risks which are reasonably foreseeable. Whereas the law on the extent of this duty has developed almost exclusively in cases involving physical injury to the employer as distinct from injury to his mental health, there is no logical reason why risk of psychiatric damage should be excluded from the scope of an employer's duty of care or from the co-extensive implied term in the contract of employment. That said, there can be no doubt that the circumstances in which claims based on such damage are likely to arise will often give rise to extremely difficult evidential problems of foreseeability and causation."

117 Walker's case was referred to by two of their Lordships in White v Chief Constable of the South Yorkshire Police, supra.

As I have stated the majority of their Lordships held that the employees were not entitled to recover because they were secondary victims.

Lord Goff of Chieveley dissented but in my opinion made it clear that he was putting to one side cases such as Walker. At p.21 he said this -

"However all the employer's duties are connected in some sense to what happens to the employee while at work (see Munkman on Employers' Liability, 12th ed. 1995, p.33); and it is with cases arising in this context that we are concerned. I put to one side those cases in which an employee seeking damages from his employer in respect to stress at work, as to which see Munkman pp.128-130 and Walker v Northumberland CC [1994] EWHC QB 2; (1995) 1 All ER 737 ..."

His Lordship did not in any way cast doubt upon the correctness of the approach in Walker's case.

Lord Hoffmann also referred to the case without criticism. Lord Browne-Wilkinson agreed with Lord Hoffmann.

"But there is no reason why he (the plaintiff) should be exposed to injuries which reasonable care could prevent. Why, in this context, should psychiatric injury be treated differently from physical injury? He (counsel) referred to Walker v Northumberland CC where an employee recovered damages for a mental breakdown, held to have been foreseeably caused by the stress and pressure of his work as a social services officer. This, he said, showed that no distinction could be made."

"It would not be suggested that the employment relationship entitles the employee to recover damages in tort ... for economic loss which would not ordinarily be recoverable in negligence. The employer is not, for example, under a duty in tort to take reasonable care not to do something which would cause the employer purely financial loss, eg by reducing his opportunities to earn bonuses. The same must surely be true of psychiatric injury. There must be a reason why, if the employee would otherwise have been regarded as a secondary victim, the employment relationship should require him to be treated as a primary one. The employee in Walker v Northumberland CC was in no sense a secondary victim. His mental breakdown was caused by the strain of doing the work which his employer had required him to do."

In my opinion the references to Walker's case in White's case did not in any way cast doubt upon the correctness of the decision.

The other English case is Petch v Customs and Excise Commissioners (1993) ICR 789 where the plaintiff claimed damages for negligence against the defendants for causing him to have a mental breakdown by the volume and stressful character of the work he was required to do.

This was a Court of Appeal decision. Again there was no suggestion that the plaintiff was not entitled to recover damages for injuries of a purely mental nature.

In my opinion the cases overwhelmingly support the proposition that a plaintiff employee can recover damages for purely psychiatric illness due to his employer's negligence where the plaintiff is a primary victim and he does not have to prove that it is consequent upon some physical injury or as a result of nervous shock caused by the impact of an incident or incidents.

This conclusion accords with one's notions of justice and avoids the absurd situation arising where an employer can with knowledge of the stressful nature of the work causing mental illness to an employee, require the employee to continue his employment under those conditions with impunity and no responsibility.

One example graphically makes the point. An employer requires an employee to work in an extremely stressful and demanding job which ultimately causes patent anxiety problems and results in a mental breakdown. The employee takes sick leave and returns to be confronted with exactly the same situation. He is required to continue in the same employment carrying out the same duties even though there would be steps available to the employer to avoid or minimise the risk. It affronts common sense and justice to suggest that when the employee suffers a further breakdown resulting in his total incapacity that the employer can then turn around and say, that he is not entitled to recover damages because they are of a purely psychiatric nature despite his gross negligence perpetrated with full knowledge of the stresses and strains placed in the employment and the susceptibility of the employee to mental illness.

After considering the submissions made and the authorities my educated reflex to the submissions remains the same. They are wrong and not in accordance with the law. Accordingly the defendant's application fails.

This conclusion does not relieve the plaintiff from proving the two important elements of his case, namely, negligence and causation. These issues depend very much on what is reasonably foreseeable by the reasonable person in the shoes of the employer, the magnitude of the risk and what steps could be taken reasonably to alleviate the risk.

In this regard the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR at p.47-8 is apposite.

Another factor which may be relevant is the susceptibility or otherwise of the plaintiff to withstand stresses and strains in his day to day activities. Is he abnormally sensitive? These are all matters to be entrusted to the tribunal of fact, the jury.

At the hearing before me, the plaintiff sought and obtained leave to deliver a reply.

In addition to joining issue, the plaintiff asserted -

"By reason of the matters admitted in paragraph 5 thereof (the defence) it is open to the plaintiff to recover damages pursuant to s.135A(2) of the Accident Compensation Act 1985."

Paragraph 5 of the statement of claim which was admitted, asserted that a company was the relevant authorised insurer within the meaning of the Accident Compensation Act 1985 and it had issued a certificate in writing consenting to the bringing of the proceedings on the basis that the injury suffered by the plaintiff was a serious injury within the meaning of s.135A(19) of the Act.

The reply does not plead waiver or any form of estoppel or any basis that the issuing of a certificate of serious injury entitles the plaintiff to recover damages for purely mental illness arising out of his employment.

There is nothing in s.135A of the Act or indeed any other provision which expressly states that the plaintiff is entitled to recover damages for purely mental illness arising out of his employment in a common law negligence claim. All that s.135A does is to permit a plaintiff to bring a common law proceeding for injury or injuries if the injury is "a serious injury".

It does not purport to provide that damages are recoverable for that injury if in fact the damages were not recoverable at common law.

As is made clear by the decision of Wilson v Nattrass (1995) 21 MVR 41 the provisions of s.135A are no more than gateways which a plaintiff must proceed through in order to bring a common law proceeding.

In my opinion if the common law precluded recovery of damages in a proceeding such as the present, the mere fact that there has been a certificate that the injury is a serious injury does not expressly or impliedly entitle the plaintiff to recover damages which the law denies him.

It follows that in my opinion the reply would not be an answer to the defence if the defence was a complete defence in law.

In my opinion the law does not preclude the plaintiff in the present proceeding recovering damages for injuries purely of a psychiatric nature. The plaintiff's case is not untenable, or beyond argument, or hopeless, but on the contrary if he proves the facts alleged in his statement of claim is one of substance.

Subject to any submissions from counsel I propose to make the following orders -

(i) That the defendant's summons filed 29 March 2000 is dismissed;

(ii) That the defendant pay the plaintiff's costs of its summons.

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At a glance

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Judgment (162 paragraphs)

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Cases Cited (10)